“the principles defining the 25 preemptive reach of the NLRA are generally applicable in determining the scope of PERB’s preemptive jurisdiction under EERA”
How later courts described this case
- “the principles defining the 25 preemptive reach of the NLRA are generally applicable in determining the scope of PERB’s preemptive jurisdiction under EERA”
- setting forth California’s preemption doctrine
Written by the judges who cited it.
The opinion
GRODIN, J.
While I concur fully in the opinion of the Chief Justice, which I have signed, I am inspired by Justice Richardson’s concurring opinion to write a brief response.
Justice Richardson takes the court to task for failing to recognize, and to “honestly, openly, and forthrightly enforce” what is, in his view, a “central legal principle” that “public employees’ strikes are illegal in this state.”
There is no denying the fact that the principle which Justice Richardson propounds finds verbal support in numerous judicial opinions, some of which he has cited, as a statement of the common law. With all respect, however, I suggest that California law pertaining to public employee bargaining has progressed beyond the common law stage, and that the Legislature has taken hold of the field in such a way as to cast substantial doubt upon the continuing validity (assuming it was once valid) of the familiar generalization concerning the illegality of public employee strikes.
That generalization got its start, in California, with a Court of Appeal decision in City of L.A. v. Los Angeles etc. Council (1949) 94 Cal.App.2d 36 [ 210 *963 P.2d 305 ]. In that case, a group of building trades unions made various demands of the city’s department of water and power. Among other things, they demanded a closed shop, reclassification of civil service positions to conform with craft jurisdictions and job classifications of the unions, and the fixing of pay in accordance with privately negotiated collective bargaining agreements. When these demands were not met, pickets were posted, and the union employees withdrew from work. The city obtained an injunction in the trial court, and the Court of Appeal affirmed.
The court began its analysis by observing that the constitutional protections which had been afforded strikes and picketing were subject to qualification for “illegality of purpose”; and this qualification extended to situations where the “illegality consists of violation of settled public policy.” It was therefore necessary to consider the “peculiar nature of public employment, and particularly ... the legal foundations of such employment in the Los Angeles Department of Water and Power.” (94 Cal.App.2d at pp. 42-43.) That “peculiarity” consisted in the fact that “[t]he employer-employee relationship in the city’s service is governed by statutory law and administrative regulation; it is not fixed, either in whole or in part, by contract, as in the field of private industry.” (Id., at p. 44.) Thus, it was “self-evident that defendants may not, consistently with the public policy expressed in the Los Angeles City Charter, lawfully either strike or picket for the purpose of enforcing demands as to conditions of employment in respect to which neither the city nor the department of water and power is obligated to bargain collectively. To hold to the contrary would be to sanction government by contract instead of government by law.” (Id., at p. 46.)
The premise underlying the court’s opinion in City of L.A.—that it is necessarily contrary to public policy to establish terms and conditions of employment for public employees through the bilateral process of collective bargaining rather than through unilateral lawmaking—has since been rejected by the Legislature. The heart of the statute under consideration in this case, for example, contemplates that matters relating to wages, hours, and certain other terms and conditions of employment for teachers will be the subject of negotiation and agreement between a public school employer and organizations representing its employees. (Gov. Code, §§ 3543.2, 3543.3, 3543.7.) Thus, the original policy foundation for the “rule” that public employee strikes are illegal in this state has been substantially undermined, if not obliterated.
There are, to be sure, other policies which might be asserted in justification of a ban on public employee strikes, or at least some public employee strikes (see, e.g., Wellington & Winter, The Limits of Collective Bargaining in Public Employment (1969) 78 Yale L.J. 1107 , and Justice Richardson’s dis. opn. in *964 San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 15-18 [ 154 Cal.Rptr. 893 , 593 P.2d 838 ]), but these policies are, to say the least, highly debatable. (See, e.g., Burton & Krider, The Role and Consequences of Strikes by Public Employees (1970) 79 Yale L.J. 418 ; and, more recently, Hanslowe & Acierno, The Law and Theory of Strikes by Government Employees (1982) 67 Cornell L.Rev. 1055.) And the Legislature itself has steadfastly refrained from providing clearcut guidance. The Education Employees Relations Act, for example, while excluding the application of Labor Code section 923 (Gov. Code, § 3548 et seq.) does not expressly prohibit, or even mention, strikes. Under these circumstances, for courts to undertake resolution of the policy controversies through assertion of a blanket prohibition on strikes, independent of the statute and irrespective of the authority of the Public Employment Relations Board, seems quite inappropriate, even if constitutional.