Jurisdictional Statement — California Manufacturers Ass'n v. Industrial Welfare Commission
Supreme Court brief1980
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Supreme Court, Ui. $.
80-3552 FILED a
js OCT 7 1980
IN THE
Supreme Court of the United!Statés0 2®. cer
October Term, 1980.
CALIFORNIA MANUFACTURERS ASSOCIATION, ef al.,
Appellants,
VS.
INDUSTRIAL WELFARE COMMISSION, ef al.,
Appellees.
ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
JURISDICTIONAL STATEMENT.
GIBSON, DUNN & CRUTCHER,
WILLARD Z. CARR, JR.,
KENNETH E. RISTAU, JR.,
DENNIS A. GLADWELL,
660 Newport Center Drive, #1600,
Newport Beach, Calif. 92660,
(714) 759-3800,
Attorneys for California
Manufacturers Association.
BROBECK, PHLEGER & HARRISON,
JEAN C. GASKILL,
JAMES L. MEEDER,
Spear Street Tower,
One Market Plaza,
San Francisco, Calif. 94105,
(415) 442-0900,
Attorneys for United Air
Lines, Inc., American
Airlines, Inc. and Sierra
Ski Areas Association.
(Names and addresses of Attorneys continued on inside front cover)
Parker & Son. Inc.. Law Printers, Los Angeles. Phone 724-6622
MITCHELL, SILBERBERG & KNUPP,
RICHARD M. MOSK,
1800 Century Park East,
Los Angeles, Calif. 90067,
(213) 553-5000,
Attorneys for Theatre
Properties, Inc., and
Th. .ire Association of
California.
KAHN & SOARES,
JAN L. KAHN,
Old Phone Building,
217 North Douty Street,
Hanford, Calif. 93230,
(209) 584-3337,
RICHARD W. SMITH,
1240 Bayshore Highway,
Burlingame, Calif. 94010,
(415) 579-3538,
Attorneys for Hitchcock
Transportation Co.,
Corcoran Motor Transport, Inc.,
and California Trucking
Association.
Attorneys for Appellants
Questions Presented.
Two questions are before this Court.
(1) Are the California Industrial Welfare Commission’s
Orders 1-80, 3-80, 4-80, 8-80, 9-80 and 10-80 preempted,
in part or in whole, by the National Labor Relations Act,
29 U.S.C. section 151 et seg. and the Railway Labor Act,
45 U.S.C. section 151, et seq.?
(2) Did the California Supreme Court deny procedural
due process to appellants by denying them the right to an
evidentiary hearing and the right to present and develop
evidence on all issues, including the federal preemption
issue?
Parties to Appeal.
Appellants are: The California Manufacturers Associa-
tion; United Air Lines, Inc.; American Airlines, Inc.; Sierra
Ski Area Association; California Trucking Association;
Theatre Association of California; Theatre Properties, Inc.;
Hitchcock Transportation Co. and Corcoran Motor Trans-
port, Inc.
Appellees are: The Industrial Welfare Commission and
the Division of Labor Standards Enforcement of the State
of California.
TABLE OF CONTENTS
Page
ee sd s\ ca iscunbeasdvenen sus anevesovesnns i
ES ae st cas cy Veh oper tas ide rack vevOendeless i
SN Cre. once valinseeareisidsescdsconcsiahiganens I
PU Sass vba rita cea vddcdensnckvcexereTreeitdssckanenssd |
Constitutional Provisions and Regulations ............... I
Statement of the Case ................. padavers ctAROEIIO SE Kee 2
The Questions Are Substantial ...........ccc....cccccceeees 7
A. Presumption by the National Labor Relations
SE Sa iin si vncncntessbbshiecuckavdicakicskssabsdcteree) 7
B. Preemption by Railway Labor Act ............... |
og EE dots snes cddadisinenutsuheiessakdsecaveues 13
LS NLL OT DA EE Ry: TE Te 16
INDEX TO APPENDICES
Page
APPENDIX A. Opinion of the Supreme Court of
RING. d Sa vaul cov Unceuadhetorndnadcens tunis App. p. |
APPENDIX B._ Notice of Appeal to the Supreme Court
of the United States, Filed: Aug. 4, 1980 ............ 55
Notice of Appeal to The Supreme Court of the United
en Ns PUES he OU es ci ccccesceconeaere 58
APPENDIX C. Amended Notice of Appeal to the Su-
preme Court of the United States, Dated: September
I aa Sas takin ed tidds Cok uchanerd ool (iach oavandiaheudes 59
APPENDIX D. Order 1-80. 11180. Order Governing
Wages, Hours, and Working Conditions in the Man-
I i cas Cocbaawuub shy pasnswnedwiniawycs 62
Order 3-80. 11075. Order Governing Wages, Hours,
and Working Conditions in the Canning, Freezing,
ONE PROSETVING INGUBTY .........0.00cccecccsesTeccccccees 79
Order 4-80. 11345. Order Governing Wages, Hours,
and Working Conditions in Professional, Technical,
Clerical, and Similar Occupations ...................... 96
Order No. 8-80. 11110. Order Governing Wages,
Hours, and Working Conditions in the Industries
Handling Products After Harvest ....................64. 115
Order 9-80. 11460. Order Governing Wages, Hours,
and Working Conditions in the Transportation
hs sao lindy bakbhureWivhsiniestaccchdabsexnscens 132
Order 10-80. 11040. Order Governing Wages, Hours,
and Working Conditions in the Amusement and Rec-
ee ew oweeers 150
APPENDIX E. Stipulation and Order, Filed: Jan. 16,
iV
Page
APPENDIX F. Letter to All Counsel: Re: S.F. 24123
— Industrial Welfare Commission v. Superior Court,
County of Kern. S.F. 24140 — Hitchcock Transpor-
tation Company v. Industrial Welfare Commission,
SN PE 20, COR vce caitiensvccacoiaausctintepessesks 170
APPENDIX G. (First Page of Appellants’ April 25,
1980 Brief) Supplemental Return of Real Parties in
Interest Responding to the Court’s Inquiry on Labor
Law Preemption and Replying to Petitioner’s Sup-
PUMRSGREE THOTICIIONE oon. cocsisoscvsicecaciserebnmneens 172
APPENDIX H. Letter to the Honorable Mathew O.
Tobriner, Acting Chief Justice, And All Justices of
the California Supreme Court, Dated May 8, 1980
ee ee
Vv
TABLE OF AUTHORITIES CITED
Cases Page
City of Burbank v. Lockheed Air Terminal, 411 U.S.
624, 36 L.Ed.2d 547, 93 S.Ct. 1854 (1973) .........
California Hotel and Motel Association v. Industrial
Welfare Commission, 25 Cal.3d 200 (1979) .........
California Manufacturers Association v. Industrial Wel-
fare Commission, et al. (Orange County Superior
RN Gs I OBS a oo ab ewaae bans
California Manufacturers Association, et al. v. Industrial
Welfare Commission, et al. (Civil No. C-80-2644
EES OE Mer pp reo Bem PP eee
California v. Taylor, 353 U.S. 553 (1957) ..............
California Trucking Ass’n et al. v. Industrial Welfare
Commission et al. (Kings County Superior Court No.
ME ies cddtasionk sch ceen lanes Recitals Ceatueck susastensocst
Farmer v. Carpenters, et al., 430 U.S. 290, 51 L.Ed.2d
Pe Ee es PEPE SD wcsavsccsovdereccstsicesaee 8,
Finkel v. Superior Court, 71 Cal.App. 97 (1925) ......
Flournoy v. Wiener, 321 U.S. 253 (1944) ..............
Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed.2d 287, 90
ee I Ses tices nasiessbdetapubseniasessons 3,
Henning v. IWC, 22 Wage Hour Cases 25 (1975) .....
fees V. FUOKES, SZ9-U.S. SHE CUGSD) ccsecevisecsciscseces
Hines v. Davidowitz, 312 U.S. 52 (1941) ...............
Hitchcock Transportation Co., et al. v. Industrial Wel-
fare Commission, 27 Cal.3d 736 (1980) ..............
Homemakers, Inc. v. IWC, 509 F.2d 20 (9th Cir. 1974),
cert. denied, 423: U.S. 1063 (1976) ....................
Joint Anti-Fascist Refugee Committee v. McGrath, 341
SS re ED ise nivel let cannsas kexesweubeowasieadenis
12
vi
Page
Lassen v. Alameda, 150 Cal.App.2d 44, 309 P.2d 520
ERED cava lie Dec saduassin Geis cewhe van diebeiig nite nics deunowis
Linn v. Plant Guard Workers, 383 U.S. 53, 15 L.Ed.2d
_ Baer <4 > ie oe eet es aaa
Lodge 76, Machinists v. Wisconsin Employment Re-
lations Comm'n et al., 427 U.S. 132, 49 L.Ed.2d
FO FE ie RP LEOTOD cccessccdsscscisceeseans 8, 9,
Machinists v. Gonzales, 356 U.S. 617, 2 L.Ed.2d 1018,
ee ee, I, ree, es Nedmawiniewadal babe
Malone v. White Motor Corp., 435 U.S. 497, 55
Be Fe Fo eh) . eer rere S
Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18,
ee, PEE Waki keneueesiecncdevavenwedtevatenses
Motor Coach Employees v. Lockridge, 403 U.S. 274
ME cecetnrsvecnivist ersrircrististeisasstessigaeeiiss 14,
New York Tel. Co. et al. v. New York State Dept. of
Labor, etc. et al., 440 U.S. 519, 59 L.Ed.2d 553,
we Lo ae eo) ee ee ero rrren 7, 8,
Ong v. Tovey, 552 F.2d 305 (9th Cir. 1977) ...........
Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922) ...
Railway Employees’ Dept. v. Hanson, 351 U.S. 225
Ge see eters ine Neos eka pes SAK NTs Sp Niko bn cd Soaae
San Diego Bidg. Trades Council v. Garmon, 359 U.S.
236, 3 L.Ed.2d 775, 79 S.Ct. 773 (1959) . 7, 8, 9,
San Joaquin Nisei Farmers League, et al. v. Industrial
Welfare Commission (Stanislaus County Superior
CA Ft UE hh dis cubs chcudcueecs sallcusensctysaccastee
Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 56
L5G. 20 209, 9B S.Ct. V74S CIG7B) .... cer cacscccveess
Shields v. Beto, 370 F.2d 1003 (Sth Cir. 1967) ........
Sotto v. Wainwright, 601 F.2d 184 (Sth Cir. 1979) ...
13
10
10
15
13
13
Vil
Page
Teamsters v. Oliver, 358 U.S. 283, 3 L.Ed.2d 312, 79
Ms IT CIID, cai nus canicddedolccdsdocadaddmebedennt ; a
Teamsters Union v. Morton, 377 U.S. 252 (1964) .... 15
Thompson v. Madison County Board of Education, 476
Fe PO Gs OED ier batidcs thi sdie<iuesidinigdgh 14
Truax v. Corrigan, 257 U.S. 312 (1921) ................ 15
Western Growers Assn., et al. v. Industrial Welfare
Commission (Kern County Superior Court No.
IRR ee atiad BM Se PEN Y «heen amare dark Maus eels 1 5 3, 4
Youngdahl v. Rainfair, Inc., 355 U.S. 131, 2 L.Ed.2d
Re ge es re ir ey patn oe 10
Constitution
United States Constitution, Art. VI ................... i: Se
United States Constitution, Fourteenth Amend-
NE rr coc entawecueelcecuenvereiecrice 2, ¥3
Miscellaneous
California Industrial Welfare Commission’s Orders:
Nos. 1-80, 3-80, 4-80, 8-80, 9-80 and 10:80 ..... om
Statutes
California Administrative Code, Title 8, Sec. 11000 et
Ws sisnnanceiinvdstenciapes sauiaannsd ede doomennadtioeeakiae sa 2
California Code of Civil Procedure, Sec. 1085 ......... 13
California Code of Civil Procedure, Secs. 1090-1091 . 13
California Code of Civil Procedure, Sec. 1090 ......... 13
California Labor Code, Sec. 1182 ............cccceccescees 2
National Labor Relations Act, Sec. 7 ............ 8, 10, 11
National Labor Relations Act, Sec. 9 ..................... 10
National Labor Relations Act, Sec. I] ................... 10
Vili
Page
United States Code, Title 29, Sec. 151 et seq. (National
sg a . ec cibeegueney pai i
United States Code, Title 45, Sec. 151 et seq. —
a ee gi oe in tad coduduieasnaad i
United States Code, Title 45, Sec. 151(a) (Railway La-
ee RU a ce ae pu vbasakcwaLarerbatens 11
United States Code, Title 45, Sec. 152(4) (National
EE PD os os sa vachscehcvaccobsecveseres ia, iz
Textbook
Cox, Labor Law Preemption Revisited, 85 Harv. L.
Rev. pp. 1337, 1337-1338, 1352 (1972) .......... 8, 11
OPINION BELOW.
The opinion of the Supreme Court of California, reported
at 27 Cal.3d 690 (1980), appears as Appendix A hereto.
There are no lower court decisions.
JURISDICTION.
The judgment of the Supreme Court of California was
entered on July 10, 1980. It was modified on August 28,
1980 to allow for recovery of costs by appellees. The effect
of the modification was to move forward to August 28,
1980 the date of entry of judgment. Motions by appellants
for rehearing and stay orders were denied on August 28,
i980. .
Notices of appeal to this Court were duly filed in the
Supreme Court of California on August 4 and 5, 1980.
(Appendix B) An amended notice of appeal was filed on
September 3, 1980 because of the August 28 modification
of the judgment. (Appendix C)
This appeal is being docketed in this Court within ninety
days from the date of entry of judgment. The jurisdiction
of this Court is invoked under 28 U.S.C. section 1257(2).
The Court has jurisdiction to review the constitutional due
process questions presented in this case under the rule in
Flournoy v. Wiener, 321 U.S. 253, 263 (1944) and Pru-
dential Ins. Co. v. Cheek, 259 U.S. 530, 547 (1922).
CONSTITUTIONAL PROVISIONS AND
REGULATIONS.
Article VI, United States Constitution:
This Constitution, and the Laws of the United States
which shall be made in pursuance thereof; . . . shall
be the supreme Law of the Land;... .
et, ee
Fourteenth Amendment, United States Constitution:
No State shall . . . deprive any person of life, liberty
The California Industrial Welfare Commission Orders
1-80, 3-80, 4-80, 8-80, 9-80 and 10-80 are too voluminous
to quote here; they are codified in Title 8, California Ad-
ministrative Code, section 11000 et seq. and are reproduced
in Appendix D.
STATEMENT OF THE CASE.
The California Industrial Welfare Commission (‘‘Com-
mission’’) is a five person, quasi-legislative agency of the
State of California. It has the authority, under Section 1182
of the California Labor Code, to promulgate wage orders
which purport to establish a minimum wage and to regulate
overtime hours and other terms and conditions of employ-
ment for all employees in the State of California. The orders
include, inter alia, provisions relating to reporting time pay,
record keeping requirements, cash shortages and breakage,
uniform and equipment allowances, meals and lodging,
meal periods, rest periods, change room ana resting facil-
ities, seats, temperature controls, and elevators.
There are 15 separate wage orders. Twelve prescribe
working conditions in twelve broadly defined **industries’’;
three regulate conditions of employment in certain specified
occupations.’ Historically, the orders applied only to women
'The California Manufacturers Association and its members are cov-
ered by Wage Orders Nos. 1-80 (Manufacturing Industry), 3-80 (Can-
ning, Freezing and Preserving Industry), 4-80 (Professional, Technical,
Clerical, Mechanical and Similar Occupations), 8-80 (Industries Han-
dling Products After Harvest). The California Trucking Association and
its members, United Air Lines, Inc., American Airlines, Inc., Hitch-
cock Transportation Co. and Corcoran Motor Transport, are covered
by Wage Order 9-80 (Transportation Industry). Sierra Ski Areas As-
sociation and its members, Theatre Association of California and its
members, and Theatre Properties, Inc., are covered by Wage Order 10-
80 (Amusement and Recreation Industry).
a
and minors. Since 1972 the Commission has attempted to
promulgate orders regulating industries and occupations
predominantly employing males, but has been unsuccessful
because of various court challenges rendering the orders
invalid.’ If the 1980 orders are ultimately found valid, they
will be the first orders to apply to all employees. The effect
which a totally new set of regulations will have upon in-
dustries numerically dominated by male employment, in
which customs, practices and collective bargaining rela-
tionships have evolved for fifty years unimpeded by the
orders of the Industrial Welfare Commission, is cata-
strophic.
In September 1979, the Commission promulgated 15 new
wage orders which were scheduled to become effective on
January |, 1980. In December 1979, in four separate Cal-
ifornia superior courts, various employer associations and
employers filed petitions for writs of mandate challenging
the impending 1980 orders.’ They did so on a variety of
“In the early 1970s all then existing wage orders, being in the nature
of women’s protective statutes, were declared invalid in a series of
federal cases on the ground that, since they applied only to women,
they conflicted with and were therefore preempted by various federal
civil rights laws. See, e.g., Homemakers, Inc. v. IWC, 509 F.2d 20
(9th Cir. 1974), cert. denied, 423 U.S. 1063 (1976). All 15 of the
lidustrial Welfare Commission’s 1973 Wage Orders were stayed ab
initio and declared invalid in 1975, in that instance, as the result of a
challenge levied by organized labor. Henning v. IWC, 22 Wage Hour
Cases 25 (1975). In 1976 the Commission issued new wage orders
which again were successfully challenged. California Hotel and Motel
Association v. Industrial Welfare Commission, 25 Cal.3d 200 (1979).
None of the 1976 counterparts to the wage orders here challenged have
ever been fully enforced. See Hitchcock Transportation Co., et al. v.
Industrial Welfare Commission, 27 Cal.3d 736 (1980).
‘California Manufacturers Association v. Industrial Welfare Com-
mission, et al. (Orange County Superior Court No. 325866): California
Trucking Ass'n et al. v. Industrial Welfare Commission, et al. (Kings
County Superior Court No. 31321); Western Growers Ass‘n., et al. v.
Industrial Welfare Commission, et al. (Kern County Superior Court
No. 164537); San Joaquin Nisei Farmers League, et al. v. Industrial
Welfare Commission (Stanislaus County Superior Court No. 164580).
ea aes
grounds, most of which centered on the Commission’s fail-
ure to comply with certain provisions of the California Labor
Code specifying the procedures for promulgation of the
regulations. Because employer groups concluded that the
preemption issue was exclusively a federal question and
should be raised, as it has been, in a federal court action,
a decision was made not to raise it in the state court liti-
gation.*
In three of the actions, superior courts issued orders stay-
ing in whole or in part the implementation and enforcement
of the challenged wage orders and alternative writs of man-
date ordering the Commission to show cause on dates cer-
tain.” On February 25, 1980 before any evidentiary hearing
could be held in any of the four actions, the Commission
filed an original petition for a peremptory writ of mandate
in the California Supreme Court, challenging the discretion
of the superior courts to issue the stay orders and asking
the California Supreme Court to dispose of the cases on
their merits.
Or April 1, 1980, the California Supreme Court, over
appellants’ written opposition, issued an alternative writ of
mandate directing that all proceedings in the superior courts
cease and that the four actions, in effect, be consolidated
and transferred to the Supreme Court. No factual record had
been developed below and pretrial discovery had barely
commenced when the court took up the cases. Indeed, ap-
pellants were in the midst of taking the depositions of four
“This issue, in conjunction with other constitutional issues, is pendin
before the United States District Court for the Northern District o
California in an action entitled California Manufacturers Association,
et al. v. Industrial Welfare Commission, et al. (Civil No. C-80-2644
WHO).
‘In the case of Western Growers Ass'n et al., supra, n. 3, there was
no need for the Court to issue a stay order because the Commission
stipulated ab initio to the stay order.
iene
of the principal actors in the promulgation of the orders
when the California Supreme Court’s alternative writ came
down; appellants were never allowed to complete the dep-
ositions. On the assumption that the Supreme Court was
aware neither of the status of discovery nor of the lack of
any factual record below, appellants filed, on April 13, 1980
a motion to allow discovery and for reference to a special
master for the taking of evidence and resolution of all factual
issues.°
All motions were denied summarily on April 22, 1980
without comment.
Simultaneously, and only fifteen days before the time set
for oral argument (held on May 7, 1980), the court notified
all counsel of the issues it wished them to address at ar-
gument. One of those issues, raised sua sponte by the court,
was:
Is the IWC precluded by federal or state labor re-
lations statutes from regulating with respect to matters
that are subject to collective bargaining?
(See, letter to all counsel dated April 21, 1980, in Appendix
F hereto. )
On April 25, 1980, in response to the court’s inquiry
concerning federal labor law preemption and in response
to appellees’ unsolicited brief on this issue, appellants filed
a brief with the court objecting on due process grounds to
the court’s assumption of this critically important and highly
¥ —- also moved to dismiss the Supreme Court action on
jurisdictional grounds. Appellants had every right to suppose that they
would have an opportunity to make a factual record. In the case which
originated in Orange County, the California Manufacturers Association
had entered into a stipulated stay order with the IWC, which order
specifically provided for a trial on the merits. See, Stipulation and Order
contained in Appendix E hereto.
for ae
complex issue without a factual record.’ The objection was
stated in the opening page of appellants’ brief:
The major difficulty with addressing [the federal
labor law preemption question] at this point in these
proceedings is that no factual record has been devel-
oped. To the extent that the Court wishes to rule upon
these issues in the present case, it will be doing so in
a vacuum... .
The Real Parties in Interest [Appellants] hereby ob-
ject to the Court’s taking up this issue on the ground
that it deprives them of their right to due process, in
that it denies them the right to a hearing and the orderly
development and presentation of evidence.
Attached hereto as Appendix G is the first page of appel-
lants’ April 25, 1980 brief. This objection was repeated
both during and after oral argument. (See, letter dated May
8, 1980 to Acting Chief Justice Tobriner; Appendix H.) The
California Supreme Court considered these due process ob-
jections and expressly overruled them (27 Cal.3d 699, n.
3, and 725-726, n. 14). On July 10, 1980 the Supreme
Court handed down a unanimous opinion declaring the wage
orders valid despite the doctrine of federal preemption (27
Cal.3d 725-729).
It is not completely informative for the court to say, as it does, that
‘‘both sides have filed briefs.’’ (27 Cal.3d 725-726, n. 14.) The fact
is that, because of the shortness of time and the total absence of a
record, the *‘briefs’’ were nothing more than an accumulation of written
arguments filed by the parties in earlier litigation involving the 1976
wage orders of the Commission. Appellants found themselves between
Scylla and Charybdis; they could either ignore the ‘‘brief’’ filed by
appellees or, in a purely defensive move, respond in kind. They chose
the latter course, taking care first to state their due process objection.
ee, es
THE QUESTIONS ARE SUBSTANTIAL.
This case presents, probably in the most classic sense,
a matter of far-reaching precedential value because of the
context in which the preemption issue arises. The 1980
Industrial Welfare Commission orders seek to override and
supersede some of the most significant provisions in stand-
ard collective bargaining agreements. Not only do the orders
affect local labor agreements entered into by some of the
appellants and their employees, they render ineffectual his-
torical, painstakingly wrought clauses in national labor con-
tracts negotiated by such entities as Kaiser Steel Corpora-
tion, McDonnell Douglas Corporation, United States Steel
Corporation, Bethlehem Steel Corporation, Aluminum
Company of America, Union Oil Company of California
(members of the California Manufacturers Association),
United Air Lines, American Airlines and many members
of the California Trucking Association. The California Su-
preme Court’s almost presumptuous disposition of so critical
a federal issue without giving the appellants the opportunity
to submit evidence is an egregious denial of fundamental
procedural due process.
A. Preemption by the National Labor Relations Act.
A case which raises the preemption question under the
National Labor Relations Act undoubtedly affords this Court
a wide range of judicial alternatives. Witness, for example,
New York Tel. Co., et al. v. New York State Dept. of Labor,
etal., 440 U.S. 519, 59 L.Ed.2d 553, 99 S.Ct. 1328 (1979),
the Court’s most recent explication, in which four separate
viewpoints were advanced.
Collectively analyzed, however, New York Tel. Co., su-
pra, and the important preemption cases of the past two
decades, Teamsters v. Oliver, 358 U.S. 283, 3 L.Ed.2d
312, 79 S.Ct. 297 (1958); San Diego Bldg. Trades Council
stele
v. Garmon, 359 U.S. 236, 3 L.Ed.2d 775, 79 S.Ct. 773
(1959); Lodge 76, Machinists v. Wisconsin Employment
Relations Comm'n, et al., 427 U.S. 132, 153, 49 L.Ed.2d
396, 96 S.Ct. 2548 (1976); Farmer v. Carpenters, et al.,
430 U.S. 290, 51 L.Ed.2d 338, 97 S.Ct. 1056 (1977); and
Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 56
L.Ed.2d 209, 98 S.Ct. 1745 (1978); all express the central
theory advanced by Justice Powell in his dissent in New
York Tel. Co., supra:
Free collective bargaining is the cornerstone of the
structure of labor management relations carefully de-
signed by Congress when it enacted the NLRA. .. .
What Congress left unregulated is as important as
the regulations that it imposed. It sought to leave labor
and management essentially free to bargain for an
agreement to govern their relationship.
440 U.S. 519, 552, 59 L.Ed.2d 553, 576.
At the heart of the National Labor Relations Act is section
7 which specifically provides that employees have the right
to organize collectively, to designate representatives of their
own choosing, to negotiate terms and conditions of their
employment and to engage in concerted activity. Cox, Labor
Law Preemption Revisited, 85 Harv. L. Rev. 1337 (1972).
The doctrine of federal labor law preemption, first enun-
ciated in Hill v. Florida, 325 U.S. 538 (1945), has continued
to develop over the past thirty years. The central tenet of
the doctrine is that a forum must be provided in which
parties may contend on even footing, free of unwarranted
state influences.
State attempts to influence the substantive terms of
collective bargaining agreements are as inconsistent
with the federal regulatory scheme as are such attempts
by the NLRB... .
Lodge 76, supra, 427 U.S. at 153.
elias)
|T]here is no room in this [federal regulatory] scheme
for the application . . . of this state policy limiting the
solutions that the parties’ agreement can provide to the
problems of wages and working conditions. Since the
federal law operates here, in an area where its authority
is paramount, to leave the parties free, the inconsistent
application of state law is necessarily outside the power
of the State. The solution worked out by the parties
was not one of a sort which Congress has indicated
may be left to prohibition by the several States.
Teamsters v. Oliver, 358 U.S. at 296.
This case presents squarely the most dramatic example
to reach this Court in 20 years of a state’s attempt to regulate
and set terms and conditions of employment, which up to
now, have been left by the Congress for the exclusive con-
sideration and resolution by the collective bargaining proc-
ess. It is not simply another attempt by a state to regulate
matters ‘arguably protected or prohibited’’ by the Act. San
Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 3
L.Ed.2d 775, 79 S.Ct. 773 (1959). Rather, it is a straight-
forward effort by the State of California to impose inflexible
legal standards for such mandatory subjects of collective
bargaining as meal periods, rest periods, lunch breaks, cash
shortages and breakage, change room facilities, rest room
facilities, reporting time pay, uniforms, tool allowances,
etc., all of which are major bargained for items of virtually
every labor contract.
The matters which the orders seek to control are not
concerns that are so ‘‘deeply rooted in local feeling and
responsibility,’’ that the states are left with the power to
act." San Diego Bldg. Trades Council v. Garmon, supra,
“Indeed, there actually are no roots at all. Recall that until 1973 there
was no effort by the state to include adult males within the coverage
of the wage orders.
—_— we
359 U.S. at 244, 3 L.Ed.2d at 782. See, e.g., Youngdahl
v. Rainfair, Inc., 355 U.S. 131, 2 L.Ed.2d 151, 78 S.Ct.
206 (1957) (violence); Linn v. Plant Guard Workers, 383
U.S. 53, 15 L.Ed.2d 582, 86 S.Ct. 657 (1966) (libel);
Farmer v. Carpenters, supra (intentional infliction of emo-
tional distress). Nor are these matters merely ‘‘peripheral
concerns’’ of the Labor Act. Lodge 76, Machinists v. Wis-
consin Employee Relations Commission, supra, 427 U.S.
at 137, 49 L.Ed.2d at 401; see, e.g., Machinists v. Gon-
zales, 356 U.S. 617, 2 L.Ed.2d 1018, 78 S.Ct. 923 (1958).
Neither is this a case involving a federal/state benefit pro-
gram specifically sanctioned by legislative history and
congressional intent. New York Tel. Co., supra, see, @.g.,
Malone v. White Motor Corp., 435 U.S. 497, 504-505, 55
L.Ed.2d 443, 451, 98 S.Ct. 1185.
These regulations, in contrast, intrude deeply into the
very core of section 7. In operation, they not only purport
to supersede and render void clauses in existing labor agree-
ments, they impede and actually prohibit the very process
of negotiation. Consider, for example, that each order re-
quires that all employees be given a duty free lunch period
of at least 30 minutes. (See section | 1 of each wage order.)
It is impossible for an employer and a union, in the face
of this proscription, to agree to a twenty minute paid lunch,
or two twenty minute breaks but no lunch, or any other
configuration consistent with the economic realities which
the parties mutually may agree make more sense.
Consider also those provisions of the wage orders that
require employers to pay for and maintain uniforms and
equipment. (See section 9 of each order.) This requirement
virtually eliminates the ability and incentive of the negoti-
ating parties to make one of the fundamental trade-offs
inherent in the bargaining process, i.e., a higher wage in
lieu of a uniform or tool allowance.
What the State of California has done through these wage
orders is to insinuate itself as a third party participant in
collective bargaining. Not only does this smother the ‘‘free
atmosphere’’ created by the NLRA, it brings an Orwellian
flavor to the table. The state, not the parties, hereafter will
decide what is best.
An appreciation of the true character of the national
labor policy expressed in the NLRA and LMRA in-
dicates that in providing a legal framework for union
organization, collective bargaining, and the conduct
of labor disputes, Congress struck a balance of pro-
tection, prohibition, and laissez faire in respect to union
organization, collective bargaining, and labor disputes
that would be upset if a state could also enforce statutes
or rules of decision resting upon its views concerning
accommodation of the same interests. {Emphasis
added].
Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev.
1337, 1337-1338, 1352 (1972).
Collective bargaining, as we have known it for the past
half century, cannot survive this kind of intrusion.
B. Preemption by Railway Labor Act.
Section 151(a) of the Railway Labor Act echoes the pur-
poses and intent of the National Labor Relations Act:
It is one of the purposes of the Act ‘to forbid any
limitation upon freedom of association among em-
ployees . . . to provide for the complete independence
of carriers and of employees in the matter of self-or-
ganization. .. .”
Section 152, Fourth, is the equivalent of section 7 of the
National Labor Relations Act:
Employees shall have the right to organize and bar-
gain collectively through representatives of their own
choosing.
aes Dice
The decision of the California Supreme Couit also con-
flicts directly with the policies and pronouncements of this,
Court in connection with Railway Labor Act matters, insofar
as it allows the wage orders to supersede conflicting pro-
visions of collective bargaining agreements entered into
pursuant to the Railway Labor Act, 45 U.S.C. §$152(4).
Railway Employees’ Dept. v. Hanson, 351 U.S. 225, 232
(1956) and California v. Taylor, 353 U.S. 553, 559-60
(1957). This Court has said, ‘‘a union agreement made
pursuant to the Railway Labor Act has, therefore, the im-
primatur of the federal law upon it and, by force of the
Supremacy Clause of Article VI of the Constitution, could
not be made illegal nor vitiated by any provision of the laws
of a State.’’ Railway Employees’ Dept. v. Hanson, 351
U.S. at 232.
Even where there is no collective bargaining agreement,
the decision of the California Supreme Court still directly
conflicts with the rationale of California v. Taylor, 353
U.S. 553, 567-568 (1957), by allowing the wage orders to
interfere with and supersede a uniform system of national
labor relations policies which this Court has recognized are
established in order to ‘‘[e]liminate inequities and . . . pro-
mote a desirable mobility within the . . . labor force.’’ 353
U.S. at 567. The pressing need for uniformity of labor
relations for employees and employers covered by the Rail-
way Labor Act is evident from the nature of the jobs which
require employees routinely to move from one state to an-
other. 353 U.S. at 567-568, n. 15. The wage orders, by
altering these policies for California employees, directly
conflict with this principle of uniformity and wreck havoc
on employers such as United Air Lines or American Air-
lines, and many members of the California Trucking As-
sociation whose labor agreements are national, even inter-
national, in ‘scope.
C. Due Process.
The substantive content of the due process clause of the
Fourteenth Amendment goes beyond the specific provisions
of the Bill of Rights and embodies a concept of ‘*funda-
mental justice’’. Shields v. Beto, 370 F.2d 1003, 1004 (Sth
Cir. 1967). Fundamental justice embraces the notion of
ordered liberty, Sotto v. Wainwright, 601 F.2d 184, 191
(Sth Cir. 1979) and includes the right of access to the courts.
In this case, the fundamental ingredient missing was the
‘‘opportunity to be heard at a meaningful time and in a
meaningful manner.’’ Mathews v. Eldridge, 424 U.S. 319,
333, 47 L.Ed.2d 18, 32, 96 S.Ct. 893, 902 (1976). Ap-
pellants realize that the process which is ‘‘due’’ is flexible
and must be tailored to the particular situation. Ong v.
Tovey, 552 F.2d 305 (9th Cir. 1977). But in this circum-
stance, at the very least, the appellants should have been
given the opportunity to litigate questions the court chose
to consider sua sponte, through an evidentiary hearing or
the appointment of a master who could make factual de-
terminations.’ Certainly, this is true as to issues framed by
the pleadings.
“All the actions filed by 1 ag in the —- courts, as well as
the proceedings commenced by the Industrial Welfare Commission in
the California Supreme Court, were initiated by petitions for writs of
mandate pursuant to section 1085 of the California Code of Civil Pro-
cedure. Proceedings under section 1085, ef seg. are specifically de-
signed to allow the introduction of evidence. Indeed, Section 1090, a
companion section of the Code, provides that a jury trial may be re-
quested and conducted. When issues of fact are raised in a mandamus
proceeding, the hearing is conducted as a regular trial pursuant to
ordinary civil action rules, with parties given the right to call witnesses.
elicit testimony and produce evidence. Cal. Code of Civil Proc. sections
1090-1091; see, Lassen v. Alameda, 150 Cal.App.2d 44, 309 P.2d 520
(1957). Evidence is not limited to the record of the respondent tribunal.
but is limited only by the issues raised by the petition and the return.
Finkel v. Superior Court, 71 Cal.App. 97, 103 (1925).
FS
caitlin
Due process mandates that a judicial proceeding give
the affected parties an opportunity to be heard on the
allegations asserted in the complaint and to present
evidence and argument on the contested facts and legal
issues framed by the answer to the complaint. Before
a district court adjudges, it must determine the facts
for itself on the basis of the proffered evidence. . . .
In short, a court can only render a judgment after the
parties have been afforded a full and fair trial on the
claims properly before the court.
Thompson v. Madison County Board of Education, 476 F.2d
676, 678 (Sth Cir. 1973). A fortiori where the court raises
the issue sua sponte.
Preemption is not a pure legal question. The collective
bargaining agreement should be before the court, affidavits
or testimony should point to the conflicts between the labor
agreement and the orders (whether by language or practice),
there should be evidence of the economic impact which a
change in the agreement would produce, and there should
be a factual showing of the effect of the regulations on the
ability of the parties to continue meaningful negotiations.
Only then can a court realistically decide whether the chal-
lenged regulations interfere impermissibly with the collec-
tive bargaining process.
In Motor Coach Employees v. Lockridge, 403 U.S. 274,
285-286 (1971), a federal labor law preemption case, this
Court noted:
The constitutional principles of preemption, in what-
ever particular field of law they operate, are designed
with a common end in view: to avoid conflicting reg-
ulation of conduct by various official bodies which
might have some authority over the subject matter. A
full understanding of the particular preemption rule set
forth in Garmon especially requires, we think, appre-
pn | oe
ciation of the precise nature and extent of the potential
for injurious conflict. . . . [Emphasis added].
In Teamsters Union v. Morton, 377 U.S. 252, 258 (1964),
another federal labor law preemption case, this Court noted:
The basic question, in other words, is whether ‘in
a case such as this, incompatible doctrines of local law
must give way to principles of federal labor law.’
Teamsters Local 174 v. Lucas Flour Co., 369 U.S.
95, 102. The answer to that question ultimately de-
pends upon whether the application of state law in this
kind of case would operate to frustrate the purpose of
the federal legislation.
The essence of the due process clause is that ‘‘every man
shall have the protection of his day in court, and the benefit
of the general law, a law which hears before it condemns,
which proceeds not arbitrarily or capriciously, but upon
inquiry, and renders judgment only after trial. . . .”’ Truax
v. Corrigan, 257 U.S. 312, 332 (1921). The Court has left
no doubt that, in situations like the present, due process
requires that close attention be paid to questions of fact.
Goldberg v. Kelly, 397 U.S. 254, 269, 25 L.Ed.2d 287,
90 S.Ct. 1011 (1970); cf. City of Burbank v. Lockheed Air
Terminal, 411 U.S. 624, 638, 36 L.Ed.2d 547, 93 S.Ct.
1854 (1973); Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
In setting the standard by which courts should measure the
adequacy of due process provided in particular cases, the
Court stated in Goldberg, supra, that:
The extent to which procedural due process must be
afforded the recipient is influenced by the extent to
which he may be ‘condemned to suffer grievous loss,’
. . and depends upon whether the recipient’s interest
in avoiding that loss outweighs the governmental in-
terest in summary adjudication.
_"
Goldberg, supra, 397 U.S. 254, 262-263 (1970), quoting
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
123, 168 (1951) (Frankfurter, J., concurring).
It was contended below that some 8 million employees
are affected by the Commission’s orders. The California
Manufacturers Association alone has over 1200 members
employing some [5 million] workers in California. The op-
erations of United Air Lines and American Airlines are at
least national in scope. The California Trucking Association
counts among its members some of this nation’s largest
over-the-road haulers of goods. Existing collective bargain-
ing relationships pervade the workforces of all these parties.
No one disputes that this matter is of enormous significance
and impact. Yet just when careful adherence to concepts
of ‘‘ordered liberty’? and the observance of fundamental
first principles of due process such as the basic right to a
hearing and to present evidence were needed most, the Cal-
ifornia court substituted short shrift and myopic judicial
notice.
To employers in the State of California whose entire
history of employment and compensation practices is about
to be stood on its head, the loss is, quite aside from the
incalculable monetary cost, grievous indeed.
CONCLUSION.
For these reasons, this Court should note probable juris-
diction of this appeal.
DATED: October 6, 1980.
Respectfully submitted,
GIBSON, DUNN & CRUTCHER,
WILLARD Z. CARR, JR.,
KENNETH E. RISTAU, JR.,
DENNIS A. GLADWELL,
Attorneys for California
Manufacturers Association.
—
BROBECK, PHLEGER & HARRISON,
JEAN C. GASKILL,
JAMES L. MEEDER,
Attorneys for United Air
Lines, Inc., American
Airlines, Inc. and Sierra
Ski Areas Association.
MITCHELL, SILBERBERG & KNUPP.
RICHARD M. MOSK,
Attorneys for Theatre
Properties, Inc., and
Theatre Association of
California.
KAHN & SOARES,
JAN L. KAHN,
RICHARD W. SMITH
Attorneys for Hitchcock
Transportation Co.,
Corcoran Motor Transport, Inc.,
and California Trucking
Association.
APPENDIX A.
Opinion.
[S.F. No. 24123. July 10, 1980.]
Industrial Welfare Commission et al., Petitioners, v. The
Superior Court of Kern County et al., Respondents; Cali-
fornia Hotel and Motel Association et al., Real Parties in
Interest.
Summary
By an original petition in the Supreme Court, the Attorney
General, on behalf of the Industrial Welfare Commission,
sought a writ of mandate or prohibition providing a prompt
and definitive resolution of numerous common legal issues
raised in various trial court challenges by employers to
industry-wide wage orders adopted by the commission. Sev-
eral of the trial courts had issued stay orders having the
practical effect of enjoining the operation of the adminis-
trative regulations promulgated pursuant to the commis-
sion’s quasi-legislative authority.
The Supreme Court ordered issuance of a peremptorv
writ of mandate directing the trial courts to vacate the orders
previously issued staying the operation and effect of the
challenged wage orders and to enter judgment in favor of
the commission in each of the underlying mandate actions.
Preliminarily, the court held that, in view of the large num-
ber of affected employees, the tortuous litigation history
which had prevented implementation of the majority of the
commission’s wage orders in recent years, and the effect
of the stay orders, the matter was properly before it. The
court held that the commission had properly complied with
the requirement of Lab. Code, § 1178, that it investigate
and find that wages paid employees were inadequate or that
hours or conditions of labor were prejudicial to the health,
Ce a
morals, or welfare of employees, before appointing wage
boards to consider such matters, and that it had adequately
complied with the requirement of Lab. Code, § 1177, that
each wage order include a statement as to its basis. The
court rejected a claim of invalidity of the orders by reason
of the commission’s alleged failure to comply with the re-
quirements of the Environmental Quality Act relating to
preparation of an environmental impact report or a negative
declaration, as clearly without merit. Rejecting a contention
that the commission’s orders were null and void insofar as
they dealt with matters generally relating to the health and
safety of employees, in that the California Occupational
Safety and Health Standards Board (Cal/OSHA) has exclu-
sive jurisdiction in the field, the court held that the provision
of Lab. Code, § 1173, that, in cases of overlapping juris-
diction, Cal/OSHA shall have ‘‘exclusive jurisdiction, and
rules, regulations, or policies of che commission on the same
subject have no force or effect,’’ is properly interpreted as
permitting the commission to regulate working conditions
related to health and safety in the absence of any actual
conflict with existing Cal/OSHA regulations or policy. The
court further held that neither federal nor state labor reiation
legislation precludes the commission from establishing min-
imum wages, maximum hours or standard conditions of
employment to protect the health and welfare of employees.
Taking up individual challenges to specific provisions by
certain employers, the court held that, in enacting a wage
order relating to the public housekeeping industry, the com-
mission did not abuse its discretion in refusing to provide
a lower minimum wage for tipped employees, that agri-
cultural wage orders did not violate due process or impose
‘undue hardship,’’ and that the commission acted within
its authority in adopting a more restrictive provision with
respect to the work week of agricultural laborers than that
ee EP
provided by general statutes on the subject. (Opinion by
Tobriner, Acting C. J., with Clark, Richardson, Manuel
and Newman, JJ., Taylor, J.,* and Racanelli, J.*° concur-
ring.)
Counsel
George Deukmeyjian, Attorney General, Arthur C. de
Goede, Assistant Attorney General, Randall P. Borcherd-
ing, Joseph M. O’Heron, James M. Schiavenza, Carol
Hunter and Ronald V. Thunen, Jr., Deputy Attorneys Gen-
eral, for Petitioners.
Van Bourg, Allen, Weinberg & Roger, Victor J. Van Bourg,
David A. Rosenfeld, Joan Bodner, Redburn, Bodner &
Palewicz, W. Kenneth Rice, Adrian Andrade and Richard
M. Pear] as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
Jerome B. Falk, Jr., Dirk M. Schenkkan, Howard, Prim,
Rice, Nemerovski, Canady & Pollak, Richard W. Smith,
Jan L. Kahn, Kahn & Soares, Richard M. Mosk, Mitchell,
Silberberg & Knupp, Jean C. Gaskill, James L. Meeder,
Brobeck, Phleger & Harrison, Willard Z. Carr, Jr., Kenneth
E. Ristau, Jr., Dennis A. Gladwell, Mark Wm. Shurtleff,
Donald B. Ayer, Gibson, Dunn & Crutcher, George J. Tichy
II, Richard H. Harding, Michele S. Poohar, Littler, Men-
delson, Fastiff & Tichy, Robert P. Roy and Dressler, Stoll,
Quesenbery & Hersh for Real Parties in Interest.
Opinion
TOBRINER, Acting C. J.—On September 7, 1979, the
California Industrial Welfare Commission (hereafter IWC
or commission), acting pursuant to its constitutionally and
statutorily based authority (Cal. Const., art. XIV, § 1; Lab.
*Assigned by the Chairperson of the Judicial Council.
-¢
—_4—
Code, §§ 70-74, 1171-1204),' adopted a series of industry-
wide ‘‘wage orders,’’ prescribing the minimum wages,
maximum hours, and standard conditions of employment
for employees in this state. These orders (hereafter 1980
wage orders) were scheduled to go into effect on January
1, 1980. In mid-December 1979, however, shortly before
the effective date of the orders, numerous employer asso-
ciations and individual employers (hereafter employers),
representing companies which employ millions of California
workers, initiated four separate mandate actions in various
superior courts throughout the state, challenging the validity
of nine of the 1980 wage orders on various grounds.’ In
each of the cases, an alternative writ of mandate issued,
along with an order staying each of the nine challenged
wage orders in whole or in part.
In a significant number of respects, the December 1979
lawsuits were sequels to similar litigation that had been
brought by many of the same organizations and employers
several years earlier challenging the 1976 orders adopted
by the IWC. In the earlier round of litigation, various courts
throughout the state had reached differing conclusions with
‘Unless otherwise indicated, all statutory references are to the Labor
Code
’The four actions, and the respective wage orders challenged therein,
are: (1) Western Growers Assn. et al. v. IWC (Kern County Super. Ct.
No. 164537) (challenging orders 8-80 (industries handling products
after harvest), 13-80 (industries preparing agricultural products for
market, on the farm), 14-80 (agricultural occupations); (2) California
Manufacturers Assn. v. IWC (Orange County Super. Ct. No. 325866)
(challenging orders 1-80 (manufacturing industry), 3-80 (canning,
freezing and preserving industry), 4-80 (professional, technical, cler-
ical, mechanical and similar occupations), 8-80); (3) San Joaquin Nisei
Farmers League et al. v. IWC (Stanislaus County Super. Ct. No.
164580) (challenging orders 8-80, 13-80, and 14-80); and (4) California
Trucking Association et al. v. IWC (Kings County Super. Ct. No.
31321) (challenging orders 5-80 (public housekeeping industry), 9-80
(transportation industry) and 10-80 (amusement and recreation indus-
try).
init
respect to a number of common legal issues raised in each
of the separate lawsuits. As a consequence, in some indus-
tries employees were denied the benefits of the 1976 wage
orders, while in other industries similarly situated employ-
ees were afforded the protections of the orders. After the
normal, lengthy process of trial and appeal, one of the cases
challenging the 1976 orders reached this court for decision
in 1979. In California Hotel & Motel Assn. v. Industrial
Welfare Com. (1979) 25 Cal.3d 200 [157 Cal.Rptr. 840,
599 P.2d 31], our court resolved several of the common
legal issues presented in the challenges to the 1976 wage
orders, but at the same time determined that a number of
other legal issues ‘‘could be dealt with more appropriately’
in a future case in which the IWC had explained the basis
of its wage orders in a fashion consistent with our holding
in that case. (25 Cal.3d at pp. 204-205, fn. 2.)
In February 1980, two months after the institution of the
four December 1979 lawsuits noted above, the Attorney
General, acting on behalf of the IWC, initiated this pro-
ceeding seeking an original writ of mandate or prohibition
from this court. The Attorney General’s petition alleged that
each of the four mandate actions filed in December 1979
presented a number of common legal issues, many of which
had been raised but left unresolved in California Hotel &
Motel Assn. The petition also suggested that if the lower
court actions were permitted to run their normal course,
there was a significant possibility that the history of the
1976 wage order litigation would repeat itself, with lower
courts reaching disparate results on common legal issues,
and with employees in many industries being deprived of
the protection of the 1980 wage orders for perhaps as long
as several years. Under these circumstances, the Attorney
General urged this court to issue an alternative writ and to
provide a prompt and definitive resolution of the numerous
a
common legal issues raised in the various court actions
below.
In view of the large number of employees affected by the
challenged orders, and the tortuous litigation history which
had prevented the implementation of the majority of IWC
wage orders in recent years, we concluded that this was an
appropriate instance for the exercise of our original juris-
diction, and accordingly we issued an alternative writ of
mandate. (See, e.g., Agricultural Labor Relations Bd. v.
Superior Court (1976) 16 Cal.3d 392, 402 [128 Cal.Rptr.
183, 546 P.2d 687].) Although the employers claim that we
lack jurisdiction to review the legal challenges to any of the
1980 wage orders because none of the trial courts has as
yet entered a judgment on the merits, the Court of Appeal
in Rivera v. Division of Industrial Welfare (1968) 265
Cal.App.2d 576, 580-581 [71 Cal.Rptr. 739], acted under
similar circumstances to review the validity of an IWC wage
order in an original mandate proceeding instituted in the
appellate court.”
Moreover, because the stay orders issued by several of
the respondent courts have the practical effect of enjoining
the operation of an administrative regulation promulgated
pursuant to the IWC’s quasi-legislative authority, past au-
thorities teach that if this court concludes that the challenged
‘The employers additionally argue that this court should not act at
this time because there are allegedly numerous factual issues upon
which evidence must be taken. We do not believe, however, that the
alleged factual disputes preclude our consideration of the employers’
legal challenges to the wage orders at this stage. As we explained under
similar circumstances in Burrey v. Embarcadero Mun. Improvement
Dist. (1971) 5 Cal.3d 671, 676 [97 Cal.Rptr. 203, 488 P.2d 395}:
‘*Respondents argue that we should not exercise our jurisdiction because
there exist numerous questions of fact which must be resolved prior to
any decision in the case. The petition for writ of mandate does contain
allegations of fact which are controverted by respondent and intervener.
[sic] We are satisfied that these disputed facts are either not material
to our resolution of the case, or may be resolved by judicial notice.”’
pen a
orders are in fact valid, the lower court’s issuance of such
quasi-injunctive relief would properly be subject to correc-
tion by extraordinary writ. (See, e.g., Agricultural Labor
Relations Bd. v. Superior Court, supra, 16 Cal.3d at p.
401.) Accordingly, we conclude that this matter is properly
before this court.
1. Background and general principles of review.
Before undertaking an analysis of the numerous legal
contentions which the employers have advanced in support
of their attack upon the 1980 wage orders, we believe it
may be helpful to summarize very briefly the historical
backaground of the IWC’s jurisdiction and the established
legal principles which govern judicial review of the com-
mission’s administrative orders.
The IWC is a five-member appointive board initially es-
tablished by the Legislature in 1913. For the first 60 years
of its existence, the IWC’s mission was to regulate the
wages, hours and conditions of employment of women and
children employed in this state, in furtherance of such em-
ployees’ ‘‘health and welfare.’’ To this end, the commis-
sion—beginning in 1916—promulgated a series of industry-
and occupation-wide ‘‘wage orders,’’ prescribing various
minimum requirements with respect to wages, hours and
working conditions to protect the health and welfare of
women and child laborers. For many decades, IWC wage
orders have embraced a variety of subjects comparable in
scope to the 1980 wage orders at issue in this case.
In the early 1970s, a number of federal judicial decisions
invalidated a substantial portion of the then-prevailing IWC
wage orders on the ground that the limited application of
such orders to women workers (and chiidren) violated the
prohibition on sex discrimination embodied in title [sic] VII
of the federal [sic] Civil Rights Act of 1964. (See, e.g.,
— am
Rosenfeld v. Southern Pacific Co. (9th Cir. 1971) 444 F.2d
1219, 1225-1227; Homemakers, Inc., Los Angeles v. Di-
vision of Indust. Welf. (N.D. Cal. 1973) 356 F.Supp. 1111,
affd. (9th Cir. 1974) 509 F.2d 20, cert. den. (1976) 423
U.S. 1063 [46 L.Ed.2d 655, 96 S.Ct. 803]; and cases cited,
509 F.2d at p. 23, fn. 7.) In response to these federal
decisions, the California Legislature in 1972 and 1973
amended the applicable provisions of the Labor Code to
authorize the IWC to establish minimum wages, maximum
hours and standard conditions of employment for a// em-
ployees in the state, men as well as women. (Stats. 1972,
ch. 1122, §§ 2-6, pp. 2153-2155; Stats. 1973, ch. 1007,
§§ 1.5-4, pp. 2002-2003.) The constitutionality of this leg-
islative expansion of the IWC’s jurisdiction to all California
workers is explicitly confirmed by Article XIV section |
of the California Constitution which declares: ‘‘The Leg-
islature may provide for minimum wages and for the general
welfare of employees and for those purposes may confer
on acommission legislative, executive and judicial pow-
ers.’””
Although the 1973 modification of the IWC’s jurisdiction
to encompass men as well as women and minors clearly
worked a substantial expansion in the number of workers
affected by the commission’s orders, and, as a practical
matter, was probably a major impetus to the host of litigation
that has surrounded the commission’s wage orders since
1973, the 1973 legislation did not alter the basic nature of
“Article XIV section 1 replaced former article XX, section 17!
which, pricr to 1970, provided: ‘‘The Legislature may, by appropriate
legislation, provide for the establishment of a minimum wage for
women and minors and may provide for the comfort, health, safety and
general welfare of any and all employees. No provision of this Con-
stitution shall be construed as a limitation upon the authority of the
Legislature to confer upon any commission now or hereafter created,
such power and authority as the Legislature may deem requisite to carry
out the provisions of this section.’’
<<
the IWC’s decision-making authority or the basic principles
governing judicial review of the commission’s exercise of
that authority. From its inception in 1913 to the present, the
commission has been vested with broad statutory authority
to investigate ‘‘the comfort, health, safety, and welfare’’
of the California employees under its aegis (§ 1173, enacted
Stats. 1913, ch. 324, § 3, p. 633) and to establish (1) ‘‘[a]
minimum wage .. . which shall not be less than a wage
adequate to supply . . . the necessary cost of proper living
and to maintain the health and welfare of such [employ-
ees],’’ (2) ‘‘[t]he maximum hours of work consistent with
the health and welfare of [such employees]’’ and (3) [t]he
standard conditions of labor demanded by the health and
welfare of [such employees]. . . .”’ (§ 1182, enacted Stats.
1913, ch. 324, § 6, pp. 634-635.)
Indeed, the 1973 act—while retaining the authorizing
language of section 1182 quoted above—restated the com-
mission’s responsibility in even broader terms, directing the
commission continually to review and to update its ‘‘rules,
regulations and policies to the extent found by the com-
mission to be necessary to provide adequate and reasonable
wages, hours, and working conditions appropriate for all
employees in the modern society.”’ (Italics added.) (§ 1173,
enacted Stats. 1973, ch. 1007, § 1.5, p. 2002.)
Judicial authorities have repeatedly emphasized that in
fulfilling its broad statutory mandate, the IWC engages in
a quasi-legislative endeavor, a task which necessarily and
properly requires the commission’s exercise of a consid-
erable degree of policy-making judgment and discretion.
(See, e.g., California Hotel & Motel Assn., supra, 25
Cal.3d 200, 211; California State Restaurant Assn. v. Whit-
low (1976) 58 Cal.App.3d 340, 344 [129 Cal.Rptr. 824];
California Grape etc. League v. Industrial Welfare Com.
(1969) 268 Cal. App. 2d 692, 708 [74 Cal.Rptr. 313]; Rivera
—_ se
v. Division of Industrial Welfare, supra, 265 Cal.App.2d
576, 586, 591, 595.)
Because of the quasi-legislative nature of the IWC’s au-
thority, the judiciary has recognized that its review of the
commission’s wage orders is properly circumscribed. As
the Court of Appeal noted in Rivera, supra, 265 Cal.App.2d
576, 594: ‘‘A reviewing court does not superimpose its own
policy judgment upon a quasi-legislative agency in the ab-
sence of an arbitrary decision; rather, the review is limited
to an examination of the proceedings to determine whether
the action is arbitrary or entirely lacking in evidentiary sup-
port or whether the agency has violated the procedure re-
quired by law; in these technical matters requiring the as-
sistance of experts and the collection and study of statistical
data, courts let administrative boards and officers work out
their problems with as little judicial interference as possi-
ble.’’ (Fn. omitted.)
Moreover, past decisions additionally teach that in light
of the remedial nature of the legislative enactments author-
izing the regulation of wages, hours and working conditions
for the protection and benefit of employees, the statutory
provisions are to be liberally construed with an eye to pro-
moting such protection. As the court observed in California
Grape etc. League, supra, 268 Cal.App.2d 692, 698;
‘*Remedial statutes such as those under consideration [i.e.,
the statutes governing the adoption of wage orders] are to
be liberally construed. [Citation.] They are not construed
within narrow limits of the letter of the law, but rather are
to be given liberal effect to promote the general object
sought to be accomplished. . . . [|] Regulations and orders
of the Industrial Welfare Commission are presumed to be
reasonable and lawful.’’ (Italics in original.)
With these general principles of judicial review and sta-
tutory construction in mind, we turn to the numerous legal
challenges which the employers have mounted against the
IWC’s 1980 wage orders. The employers contend that the
1980 wage orders are fatally flawed on both procedural and
substantive levels. Procedurally, the employers argue that
the wage orders are invalid because the IWC (1) failed to
conduct an adequate ‘‘investigation’’ under section 1178
before selecting wage boards, (2) failed to include an ad-
equate ‘‘statement as to the basis upon which the order is
predicated’ as required by section 1177, and (3) failed to
comply with the requirements of the California Environ-
mental Quality Act of 1970 (CEQA) prior to the adoption
of the orders.
Substantively, the employers contend (1) that all of the
various provisions of the wage orders dealing with the health
and safety of employees are invalid because only the Cal-
ifornia Occupational Safety and Health Standards Board,
and not the IWC, has jurisdiction to act on such matters and
(2) that various labor relation statutes preclude the IWC
from setting fixed minimum standards with respect to mat-
ters that the labor laws leave to the collective bargaining
process between employers and employees. As we explain,
we have concluded that none of these objections to the 1980
wage orders has merit.”
2. The IWC complied with the pre-wage board “‘investi-
gation’ requirements of section 1178.
The employers initially contend that all of the 1980 wage
orders are invalid in their entirety because the IWC allegedly
failed to comply with an initial step in the elaborate pro-
‘In addition to the general common legal issues enumerated above,
a number of the mandate actions filed below set forth additional con-
tentions directed at more specific and limited portions of the various
wage orders. We address these additional contentions in section 7 be-
low, and conclude that all of these challenges also lack merit.
=)
cedure established by Labor Code section 1178 for the
adoption of commission regulations fixing minimum wages,
maximum working hours and standard conditions of em-
ployment. To place this contention in context, we set forth
the lengthy provisions of section 1178 in full.
Section 1178 provides: ‘‘If after investigation the com-
mission finds that in any occupation, trade, or industry, the
wages paid to employees are inadequate to supply the cost
of proper living, or that the hours or conditions of labor are
prejudicial to the health, morals, or welfare of employees,
the commission shall select a wage board to consider any
of such matters. Such wage board shall be composed of an
equal number of representatives of employers and employ-
ees in the occupation, trade, or industry in question; and
a representative of the commission to be designated by it,
who shall act as chairman of the wage board on request of
the commission. The wage board shall report and make
recommendations to the commission, including therein:
‘*(a) An estimate of the minimum wage adequate to sup-
ply the necessary cost of proper living to, and maintain the
health and welfare of employees engaged in the occupation,
trade, or industry in question.
**(b) The number of hours of work per day in the oc-
cupation, trade, or industry in question, consistent with the
health and welfare of employees.
‘*(c) The standard conditions of labor in the occupation,
trade, or industry in question, demanded by the health and
welfare of employees.
‘*Before promulgating an order relating to wages, hours,
or conditions of labor for the occupation, trade, or industry
in question, and after receipt of the report from the wage
board, the commission shall prepare proposed regulations
for the occupation, trade, or industry in question and then
shall hold a public hearing. The proceedings shall be re-
ae.
corde and transcribed and shall thereafter be a matter of
public record. Whenever the occupation, trade, or industry
in question is statewide in scope, a public hearing shall be
held in each of two cities in this state; when it is not state-
wide, a public hearing shall be held in the locality where
the occupation, trade, or industry prevails.’’
The employers concede that before the 1980 wage orders
were adopted (1) the IWC convened wage boards for each
of the industrial and occupational groupings to consider the
updating of its prior wage orders, (2) the wage boards re-
ceived recommendations and statements from affected in-
dividuals and prepared wage board reports containing rec-
ommendations as to revisions, (3) the IWC reviewed the
wage board reports and the records of the wage board pro-
ceedings and, after deliberation, prepared and published
proposed revisions of the existing wage orders, (4) the IWC
held public hearings throughout the state on the proposed
revisions, and (5) the IWC considered the additional matters
raised in the public hearings, amended its proposed orders,
and finally on September 7, 1979, adopted its 1980 wage
orders together with a statement as to the basis of each
order.
Despite this extensive procedure, the employers, focusing
upon the initial passage of section 1178 which states that
‘“lilf after investigation the commission finds that. . . the
wages paid to employees are inadequate to supply the cost
of proper living, or that the hours and conditions of labor
are prejudicial to the health, morals or welfare of employees,
the commission shall select a wage board to consider any
of such matters. . . .’’ (italics added), maintain that the
1980 wage orders are invalid because of the commission's
alleged failure to conduct an *‘adequate’’ investigation prior
to convening the wage boards. The plaintiffs in California
Hotel & Motel Assn. raised a similar contention, but our
oaediliens
court ultimately concluded that we did not need to determine
the general scope of the prewage board investigation pro-
vision of section 1178 in that case, for we found that other
provisions of the 1973 legislation, directing the IWC to
undertake a ‘‘full review’’ of its orders ‘‘forthwith,’’ had
in any event relieved the commission of any separate pre-
wage board investigation requirement prior to the promul-
gation of the 1976 wage orders. (See 25 Cal.3d at pp. 206-
209.) We now address the issue which we did not reach in
California Hotel & Motel Assn, and, as we shall explain,
we conclude that the IWC fully complied with the require-
ments of section 1178.°
On May 8, 1978, the IWC voted to open the 1976 wage
orders for full review by wage boards. At that time, the
commission unanimously adopted a statement explaining
that ‘‘Section 1173 of the Labor Code requires that the
Commission conduct a full review of all existing rules,
regulations and policies made under its jurisdiction at least
once every two calendar years. The Commission has made
a continuous investigation of wages, hours, and working
*In addition to contending that it has fully complied with the prewage
board investigation provision of Section 1178, the IWC points out that
section 1173, as amended in 1973, directed the commission not only
to undertake a ‘‘full review”’ of its orders **forthwith,”’ but also required
the commission to ‘‘conduct such a full review at least once every two
calendar years, or at such more frequent times as the commission,
based upon then current conditions, deems appropriate.’’ (Italics
added.) (Stats. 1973, ch. 1007, § 1.5, p. 2002.)
The commission maintains that, as in California Hotel & Motel
Assn., this statutory mandate of a ‘‘full review’’ of existing orders at
least once every two years itself authorizes the commission, as part of
its biennial review, to convene wage boards without regard to any
prewage board investigation. Because, as we explain below, we con-
clude that the commission complied with the preliminary investigation
requirements of section 1178, we need not decide whether section
1173’s mandate of a full review once every two years in itself empowers
the commission to initiate the wage board procedure as part of its full
review.
oe
conditions affecting employees in industries, trades and
occupations covered by its orders, and it also takes official
notice of the substantial inflation affecting all members of
society, and the recent increase in the federal minimum
wage. It thereby concludes that it would be imperative to
conduct a full review of the existing wage orders in order
to provide for the health and welfare of employees and
wages adequate to supply them with the necessary cost of
proper living even if Section 1173 did not dictate a full
review at that time.”’ (Italics added.) |
Although the employers acknowledge that the commis-
sion, as part of its on-going duties under section 1173,’
gathers a voluminous quantity of statistical and other data
from governmental and private studies with respect to eco-
nomic trends and employment conditions,” the employers
contend that this normal on-going commission activity does
not constitute ‘‘adequate’’ investigation to satisfy the ‘‘after
investigation’’ provision of section 1178. While the em-
ployers concede that section 1178 establishes no standard
as to the required depth or breadth of investigation contem-
’Section 1173 provides in relevant part: ‘‘/t shall be the continuing
duty of the Industrial Welfare Commission. . .to ascertain the wages
paid to all employees in this state, and to ascertain the hours and
conditions of labor and employment in the various occupations, trades,
and industries in which employees are employed in this state, and to
investigate the comfort, health, safety, and welfare of such employees.”’
(Italics added.)
“The administrative record in this case contains a variety of infor-
mation obtained by the commission members prior to their decision to
convene wage boards to review the existing wage orders. That infor-
mation includes: (1) proposed and enacted state and federal legislation
affecting wages, hours, and working conditions, (2) complaints and
correspondence from employees and employers concerning wages,
hours and working conditions, (3) studies, surveys, reports and bulletins
from the California Department of Industrial Relations, and the Cali-
fornia Health and Welfare Agency, and from the United States De-
partment of Labor and Department of Agriculture, and (4) transcripts
of hearings held by the IWC with respect to minimum wage one related
compensation.
a
plated before wage boards are convened, the employers
apparently maintain that the investigation in this case was
not adequate because it did not involve field investigation
and did not apprise the commission of specific changes that
were needed in the existing wage orders.
We think the employers have misconceived the nature of
the preliminary investigation contemplated by section 1178,
as well as the administrative agency’s discretion in deter-
mining the extent of the investigation necessary. As the
United States Supreme Court has explained in a similar
context: ‘‘[An agency’s] duty to investigate is a duty to
make such investigation as the nature of the case requires.
An investigation is ‘essentially informal, not adversary’; it
is ‘not required to take any particular form.’ [Citation. ]
These principles are particularly apt . . . where Congress
has simply told the [agency] to investigate and has left to
it the task of selecting the methods and procedures which
it should employ in each case.’’ (Railway Clerks v. Em-
ployees Assn. (1965) 380 U.S. 650, 662 [14 L.Ed.2d 133,
141-142, 85 S.Ct. 1192]; see, e.g., Inland Empire Council
v. Millis (1945) 325 U.S. 697, 706 [89 L.Ed. 1877, 1883,
65 S.Ct., 1316]; Ruby v. American Airlines, Inc. (2d Cir.
1963) 323 F.2d 248, 255.)
As the full text of section 1178 makes clear, the prewage
board investigation contemplated by the statute is only the
first step in a lengthy administrative process by which the
IWC determines whether existing wage orders are adequate
and decides if and how any present orders should be mod-
ified. The section does not require the commission to for-
mulate specific proposed modifications of the present orders
before selecting the wage boards; indeed, as the Court of
Appeal observed in California Grape etc. League, **it would
be contrary to the clear purpose of the statute for the com-
. a —
ia
mission to arrive at specific proposals without benefit of the
views and advice of interested persons on the wage board
and at the public hearings.’’ (268 Cal.App.2d 692, 708.)
Instead, the investigation contemplated is simply a pre-
liminary inquiry to determine whether there is sufficient
question as to the adequacy of the existing wage orders that
wage boards ought to be selected. In this context, we think
that the commission’s reliance on the statistical and other
data compiled in its normal investigative process, along with
its consideration of the obvious effect on employees of the
economy’s rapidly increasing inflation, clearly sufficed to
justify the convening of wage boards to review the adequacy
of the existing orders under section 1178.
Authorities construing statutes embodying similar prelim-
inary investigation requirements confirm this conclusion.
In Modern Plastics Corporation v. McCulloch (6th Cir.
1968) 400 F.2d 14, for example, an employer sought to
enjoin the NLRB from conducting a representation election
among the company’s employees on the ground that the
NLRB had failed to comply with section 9(c) of the NLRA
(29 U.S.C. § 159(c)) which provides in part that *‘[w]henever
a [representation] petition shall have been filed .. . the
Board shall investigate such petition. . . .’’ (Italics added.)
In rejecting the employer’s contention, the Modern Plastics
court pointed out that the investigation contemplated by the
statute was simply a preliminary inquiry to determine
whether there was sufficient question as to representation
so as to warrant holding a formal hearing on the issue.
Because the investigation contemplated by the statute was
only a threshold step leading to further administrative pro-
cedures, the court concluded that the agency had not violated
the statute merely because it had not undertaken any formal
field investigation before deciding to go forward with a
hearing, when the facts before the relevant administrative
_
official ‘*were not so plainly insubstantial that he could not
reasonably conclude that a sufficient question of represen-
tation existed to justify inquiry through the usual. . . hear-
ing.’’ (400 F.2d at p. 19.)
In like manner, the facts within the knowledge of the
commission in May 1978—by virtue of its continuing in-
vestigation and the readily ascertainable increasing infla-
tion—were certainly sufficient to permit the commission to
conclude that ‘‘further inquiry’’ into the adequacy of the
existing wage orders through the wage board procedure was
warranted. Under these circumstances, the commission did
not violate section 1178 in reopening the wage orders for
review by wage boards.
Our conclusion in this regard is buttressed bv the history
of section 1178. The ‘‘after investigation’’ language of sec-
tion 1178 relied upon by the employers has been part of
California law since the inception of the [WC in 1913.
(Stats. 1913, ch. 324, § 5, p. 634.) Past cases indicate that
the commission has long interpreted the statute as author-
izing the opening of existing wage orders and the convening
of wage boards on the basis of its review of data comparable
to the matters that were before the IWC in the instant case.
(See, e.g., Rivera v. Division of Industrial Welfare (1968)
265 Cal.App.2d 576, 582-584, 590 [71 Cal.Rptr. 739]. See
also Cal. Drive-in Restaurant Assn. v. Clark (1943) 22
Cal.2d 287, 301 [140 P.2d 657, 147 A.L.R. 1028].)
Furthermore, while section 1178 has been amended on
several occasions, the Legislature has never altered the
‘after investigation’ language to indicate that the com-
mission’s long-standing interpretation of the section is er-
roneous. As California courts have noted, ‘‘[r]Jeenactment
of a provision which has a meaning well established by
administrative construction is persuasive that the intent was
to continue the same construction previously recognized and
= =
applied.’’ (Cal. M. Express v. St. Bd. of Equalization (1955)
133 Cal.App.2d 237, 239-240 [283 P.2d 1063]; see, e.g.,
Coca Cola Co. v. State Bd. of Equalization (1945) 25 Cal.2d
918, 922 [156 P.2d 1].)
Finally, even if the commission’s prewage board inves-
tigation was in some respects inadequate—which we do not
believe to be the case—we do not understand how such a
deficiency realistically prejudiced the employers so as to
justify setting aside the entire 1980 wage orders. (Cf. Mod-
ern Plastics Corp. v. McCulloch, supra, 400 F.2d 14, 17,
fn. 5.) The employers had a full opportunity during both
the wage board proceedings and the subsequent public hear-
ings to fully apprise the commission of all relevant facts
and to present arguments and recommendations either in
support of or in opposition to changes in the wage orders.
Under these circumstances, we would be loath to overturn
vital administrative regulations on the basis of a minor,
nonprejudicial misstep. As the Fifth Circuit Court of Ap-
peals has observed: ‘‘Courts ..., as partners with .. .
agencies in the effectuation of [legislative] will through the
administrative process, . . . do not function to strie down
agency action because of merely formal or technical flaws.’’
(Ala. Ass'n of Ins. A. v. Bd. of Gov. of F. R. System (5th
Cir. 1976) 533 F.2d 224, 236.)
Accordingly, we conclude that the IWC adequately com-
plied with section 1178 prior to convening wage boards to
consider the 1980 wage orders.
3. The ‘‘statements as to basis’’ accompanying the 1980
wage orders comply with the requirements of section
1177 as articulated in California Hotel & Motel Assn.
v. Industrial Welfare Com. (1979) 25 Cal.3d 200.
The employers next contend that in adopting the 1980
wage orders the IWC failed to comply with Labor Code
section 1177 which provides in relevant part: ‘‘Each order
=
of the commission shall include a statement as to the basis
upon which the order is predicated and shall be concurred
in by a majority of the commissioners.’’ The employers
acknowledge that each of the commission’s 1980 orders
includes a lengthy document entitled ‘‘Statement as to
Basis,’ concurred in by a majority of the commissioners,
providing a section-by-section analysis and explanation for
each portion of the accompanying wage orders. The em-
ployers maintain, however, that the statements are not suf-
ficiently detailed to satisfy the statutory requirements of
section 1177 under this court’s recent decision in California
Hotel & Motel Assn. As we shall explain, the employers’
contention misconceives the basic thrust of this court’s hold-
ing in California Hotel & Motel Assn. and, contrary to that
decision, seeks to read into section 1177 unreasonably bur-
densome requirements that are basically incompatible with
the commission’s quasi-legislative task.
In California Hotel & Motel Assn., this court reviewed
the validity of one of IWC’s 1976 wage orders, order 5-76,
dealing with the public housekeeping industry. Unlike the
1980 wage orders now before us, the order contained no
provision or document which specifically purported to be
a statement as to the basis of the order as required by section
1177. The commission, however, contended that the state-
ment as to basis requirement of section 1177 was satisfied
by a paragraph in the order, entitled ‘‘To Whom It May
Concern,’’ which read as follows:
‘*To Whom It May Concern: Take Notice: That pursuant
to the Legislature’s 1973 mandate to the Industrial Welfare
Commission to review, update and promulgate regulations
necessary to provide adequate and reasonable wages, hours,
and working conditions appropriate for all employees, and
by virtue of authority vested in the Commission by section
1171 through 1204 of the Labor Code of the State of Cal-
oe, eae
ifornia, and after investigation and findings pursuant to sec-
tion 1178 and after receiving recommendations from duly
appointed wage boards, and after consideration of all written
material and information submitted, and after public hear-
ings duly held, notice of said hearings having been duly
slven in the manner provided by law, the Industrial Welfare
Commission, upon its own motion has found and concluded
that its Public Housekeeping Industry Order, Number 5-68,
enacted on September 24, 1967 and its Minimum Wage
Order 1-74 enacted on January 1, 1974, should be altered
and amended.
‘‘Now, Therefore, the Industrial Welfare Commission of
the State of California does hereby alter and amend said
Public Housekeeping Industry Order, Number 5-68, and its
Minimum Wage Order 1-74.”’
In California Hotel & Motel Assn. our court rejected the
commission’s contention in this regard, concluding that the
commission had misinterpreted the fundamental purpose of
section 1177 by suggesting that the provision could be sat-
isfied by a statement which simply listed the statutory basis,
i.e., the authorzing statutes, for the agency’s regulatory
action. Instead, adverting to the legislative history of the
provision and to an analogous provision of the federal Ad-
‘ ministrative Procedure Act (APA),”’ we pointed out that the
Statute was a response to the Legislature's belief ‘‘that the
"Section 4(c) of the APA (5 U.S.C. § 553(c)) reads in pertinent part:
‘‘After consideration of the relevant matters presented [in an informal
rule-making proceeding], the agency shall incorporate in the rules
adopted a concise general statement of their basis and purpose.”’ (Italics
added.) In view of the similarity of this provision to section 1177, we
indicate in California Hotel & Motel Assn. that federal authorities
construing section 4(c), while not controlling, will often be persuasive
in interpreting section 1177. (See 25 Cal.3d at p. 210, fn. 20, id., at
pp. 219-220 (Christian, J.. conc.).) As noted post, we have utilized
a number of such federal authorities in reaching our conclusions in the
instant case.
a
public has a right to know the reasons for the laws which
govern them’’ (italics added) (25 Cal.3d at p. 210, fn. 21),
and accordingly we concluded that section 1177 contem-
plated that the IWC would provide a reasoned explanation
to accompany its orders, an explanation that would ‘‘reflect
the factual, legal and policy foundations for the action
taken.”’ (/d., at p. 213.)'°
At the same time, however, we recognized that in pro-
mulgating wage orders the IWC is involved in a quasi-
legislative, rather than a quasi-judicial endeavor, and we
cautioned that ‘‘[t]he statement of basis is not the equivalent
of the findings of fact that a court may be required to make.”’
(Id.) Instead, we emphasized that what section 1177 de-
mands is simply ‘‘an explanation of how and why the Com-
mission did what it did.’’ (Italics added.) (Id.) Because the
‘*To Whom it May Concern’’ paragraph did not fulfill this
basic function, we concluded that the commission had failed
to comply with section 1177 in initially adopting order
5-76.
The 1980 wage orders at issue in this case were pro-
mulgated shortly after this court’s decision in California
Hotel & Motel Assn., and the statements as to the basis of
such orders were quite evidently drafted with that decision’s
guidelines firmly in mind. Unlike the ‘‘To Whom it May
‘We explained this requirement as follows: ‘‘If terms of the order
turn on factual issues, the statement must demonstrate reasonable sup-
port in the administrative record for the factual determinations. If, on
the other hand, the terms of the order turn on policy choices, an as-
sessment of risks or alternatives, or predictions of economic or social
consequences, the statement of basis must show how the commission
resolved conflicting interests and how that resolution led to the order
chosen. If an order differentiates among classes of industries, employ-
ers, or employees, the statement of basis must show that the distinctions
drawn are reasonably supported by the administrative record and are
reasonably related to the purposes of the enabling statute.’’ (25 Cal.3d
at p. 214.)
a. me
Concern’’ paragraph of the initial 1976 orders, the state-
ments accompanying the 1980 orders deal directly with the
substantive provisions of each of the orders, and provide
concise and clearly worded explanations for the various
provisions of those orders. The statements make frequent
reference to specific comments and recommendations raised
in the course of the lengthy administrative proceedings and
indicate why the commission decided to adopt some pro-
pesals and declined to adopt others; when the wage orders
impose different regulations on some industries than are
imposed on others, or exempt some occupations from gen-
erally applicable requirements, the statements explain the
differential treatment. Indeed, a reading of the numerous
statements as to basis in the 1980 orders leaves little doubt
that the commission has made a thorough and conscientious
effort to explain “‘how and why [it] did what it did.”’ (25
Cal.3d at p. 213.)
The employers assert, however, that the commission’s
efforts in this regard were insufficient, and they level a
multi-pronged attack challenging the adequacy of virtually
every statement as to basis in all of the wage orders under
review. We do not believe that it is necessary, in this pro-
ceeding, to review each of the employers’ numerous attacks
separately. As we shall explain, an analysis of several rep-
resentative challenges mounted by the employers reveals
the general tenor and, in our view, misguided nature, of the
employers’ various contentions.
The employers initially challenge the adequacy of the
Statement as to basis relating to section 3 of the wage orders,
concerning ‘‘Hours and Days of Work.’’ The statement
adopted by the commission reads in relevant part:
‘*The 8-hour day, 40-hour week is an accepted standard
in American society. Federal law embodying these standards
(Walsh-Healy Act and Fair Labor Standards Act) was en-
a
acted with the purpose of encouraging employers to hire
more employees when they have need for labor in excess
of 40 hours a week. The California Legislature declares that
‘eight hours of labor constitutes a day’s work’ (Labor Code
Section 510). Employee representatives continue to express
their conviction that a regular schedule of work beyond eight
hours a day is detrimental to the health and welfare of
employees.
‘*The Commission relies on the imposition of a premium
or penalty pay for overtime work to regulate maximum hours
consistent with the health and welfare of employees covered
by this order. Employers have objected to the requirement
for overtime pay after 8 hours a day and in 1976 they urged
a 10-hour day without overtime, asserting that employees
favored such a schedule to save travel time and expense and
to have more leisure for weekend trips. The Commission
provided for such alternative in the 1976 Order, specifying
conditions under which employees could exercise a choice.
In the review just completed, employee representatives [o]n
the wage board and in public hearing asked that the pro-
visions for four 10-hour days be deleted. Some complained
that once employees voted for such a schedule there was
no way to get out of it even when employees found, from
experience, that it was detrimental to their welfare. Em-
ployer representatives on wage boards and in public hearing
proposed an alternative of three or four workdays of not
more than 12 hours each without overtime. In view of the
accepted 8-hour day standard, social experience, and tes-
timony by employees the Commission determined that a
12-hour day generally is detrimental to the welfare of em-
ployees. Where, in special circumstances, employees and
employer agree in collective bargaining that it is not det-
rimental, provision is made for such exception as described
below. The Commission did, retain the provision for the
week of four 10-hour days, and made it more flexible at
the request of some employers and employees by allowing
the four days to be worked any time within the work week
so long as the employee received two consecutive days off.
Previously the four days had to be scheduled within five
consecutive days.
‘At the same time the Commission acknowledges the
employees’ problem of being trapped in such a schedule
when it proved to be detrimental and provided a means of
voting out such a schedule (Section 3(B)(4)) under reason-
able conditions which protect the employer against frivolous
or too frequent changes.’’
In questioning the adequacy of this lengthy statement,
the employers concede that *‘[i]t would be difficult to attack
the Commission’s apparent conclusion that an eight hour
day is consistent with the health and welfare of employees’’
but argue that the statement is deficient for failing to indicate
why the Commission concluded that ‘‘an eight-hour day is
the only work day consistent with the health and welfare
of employees.’’ (Empiloyers’ italics.) In a similar vein, the
employers argue that the statement does not satisfy the re-
quirement of section 1177, as interpreted in California Hotel
& Motel Assn., because while the statement explains why
the commission decided to permit a 10-hour day, 4-day
week without overtime pay, it does not indicate why the
commission did not permit any other alternative 40-hour
week.
In essence, the employers’ contention amounts to an as-
sertion that under section 1177, the commission must not
only explain why it adopted the orders that it did, but also
detail its reason for not adopting the myriad of possible
alternatives to its regulations. Such an interpretation of sec-
tion 1177, however, would be totally impractical and would
impose an unreasonable burden upon the agency. As one
=
federal court has explained in an analogous context. “‘A
rule-making agency makes not one but dozens of ‘ultimate’
decisions—not only because a set of regulations has many
provisions, but also because adoption of any one provision
constitutes simultaneous rejection of many possible alter-
natives. . . . [{]] For these reasons we think petitioners’
expansive reading of the ‘findings’ requirements .. . [to
require findings as to such alternatives] is inherently un-
realistic. To require [such] findings of a rule-making agency
. would be to invite endless confusion and great uncer-
tainty.”’ (Amoco Oil Co. v. Environmental Protection
Agency (D.C.Cir. 1974) 501 F.2d 722, 734-735.)
Indeed, we think that the governing legislation itself dem-
onstrates that the Legislature, in enacting section 1177, did
not intend to require the extraordinarily extensive statement
as to basis that would be required under the employers’
proposed interpretation. As we recognized in California
Hotel & Motel Assn., supra, 25 Cal.3d at page 215, section
1177 provides that the statement as to basis is to be included
as an integral part of each wage order; section 1183, in turn,
requires that the commission mail a copy of such orders to
employers covered by the order and directs such employers
to ‘post a copy thereof in the building in which employees
affected by the order are employed.’’ These statutes dem-
onstrate that the Legislature contemplated that the statement
as to basis would take a form that could reasonably be posted
in places of employment and could be read and understood
by the employers and employees affected by the order.
This legislative purpose of effectively informing em-
ployers and employees of the basic reasons for the com-
mission’s actions would be defeated if we were to interpret
the statute to require a statement so lengthy and detailed
that, in practice, such statement would have to been printed
in extremely small type or in a document so extended that
an, . Se
no one could reasonably be expected to read it. As the
United States Supreme Court has recently emphasized in
another context: ‘‘Meaningful disclosure does not |neces-
sarily] mean more disclosure. Rather, it describes a balance
between ‘competing considerations of complete disclosure
ana the need to avoid . . . ‘‘informational overload’’
* (Ford Motor Credit Co. v. Milhollin (1980) —
U. S. —, — [63 L.Ed.2d 22, 33, 100 S.Ct. 790, 798].)
The — also challenge the adequacy of the state-
ments as to the basis of a number of sections of the 1980
wage orders in which the commission made no changes
whatsoever from previous wage orders. Thus, for example,
the statement as to the basis of section 12, Rest Periods,''
reads: *“The Commission received no compelling evidence
and concluded that there was no rationale to warrant any
change in this section, the basic provisions of which date
back to 1932. \t also noted that administrative exemptions
are available if warranted under provisions of section 17 of
this order.”’ (Italics added.) The employers contend that
even when no change from a previous order is implemented,
section 1177 requires the IWC to provide a full explanation
for the original adoption of the provision and precludes the
commission from simply indicating the historical basis of
the order.
As this court explained in California Hotel & Motel Assn.,
however, the legislative history of section 1177 indicates
that the section was intended to ensure that the commission
"The rest period provision of wage order 1-80 provides in full:
‘*Every employer shall authorize and permit employees to take rest
periods, which insofar as practicable shall be in the middle of each
work period. The authorized rest period time shall be based on the total
hours worked daily at the rate of ten (10) minutes net rest time per four
(4) hours or major fraction thereof.
‘*However, a rest period need not be authorized for employees whose
total daily work time is less than three and one-half (3'/2) hours. Au-
thorized rest period time shall be counted as hours worked for which
there shall be no deduction from wages.”’
_—
would ‘‘accompany any new or revised order’’ with an
explanation for the agency’s determinations. (Italics added. )
(25 Cal.3d at p. 210, fn. 21.) When the commission, on
the basis of its investigation, wage board proceedings and
public hearings, determines that an existing regulation
should be altered or a new regulation promulgated, section
1177 requires that the commission explain the reason for
the new or revised rule. When the commission concludes
that no such modification is warranted, however, no com-
parable explanation is necessary, for the commission is sim-
ply continuing in effect a regulation that has previously
become a part of the standard working conditions of **em-
ployees in the modern society.’’ (§ 1173.) Although we can
perhaps conjure that, under some circumstances, underlying
societal conditions may so change as to reasonably require
an explanation from the IWC for its decision to continue
a particular working condition regulation in effect, we do
not believe that the commission’s retention of the long-
Standing provisions in this case—involving rest periods,
meal periods, and the !ike—require any such justification.
Finally, the employers contend that a number of the state-
ments as to basis are deficient even though they contain a
general explanation of the commission’s actions because the
statements do not specifically respond to some comments
or suggestions raised by wage boards or affected individuals
at some point in the administrative process. Once dgain,
however, the employers’ argument would expand the state-
ment as to basis beyond all reasonable bounds. As the Fifth
Circuit has observed with respect to the analogous “‘state-
ment of basis and purpose’’ called for by section 4(c) of
the federal APA: ‘‘It is not expected that the agency will
discuss in detail every item of fact or opinion included in
the comments submitted to it. [What] is expected [is] that
the agency’s concise general statement of basis and purpose
—,
. ‘will enable us to see what major issues of policy were
ventilated by the |administrative| proceedings and why the
agency reacted to them as it did.’ *’ (Italics added.) (Gen-
eral Telephone Co. of Southwest v. United States (Sth Cir.
1971) 449 F.2d 846, 862.) In our view the statements as
to the basis of the 1980 wage orders adequately fulfill this
function.
In sum, we conclude that the 1980 statements as to basis,
promulgated in the wake of this court’s decision in Cali-
fornia Hotel & Motel Assn., satisfy the requirements of
section 1177 as articulated in that decision.
4. The IWC did not violate the provisions of CEQA in
promulgating the 1980 wage orders, since such orders
are specifically exempted from the statutory require-
ments under title 14, section 15124 of the California
Administrative Code.
The employers next argue that the 1980 wage orders are
invalid because of the IWC’s alleged failure to comply with
the requirements of CEQA, relating to the preparation of
an ‘environmental impact report’’ or a “‘negative decla-
ration,’ prior to the promulgation of its wage orders. As
we explain, this contention is clearly without merit, for the
commission's wage orders have been explicitly exempted
from the statutory requirements of CEQA by a valid ad-
ministrative regulation.
In enacting CEQA to protect the environment of Cali-
fornia, the Legislature recognized that not all actions of
governmental agencies have significant environmental ef-
fect, and concluded that it was desirable to exempt certain
categories of governmental actions from the generally ap-
plicable requirements of the statute. Accordingly, the Leg-
islature in section 21084 of the Public Resources Code,
directed the Secretary of the California Resources Agency
ae ae
to promulgate as part of the administrative guidelines gov-
erning the administration of CEQA, ‘‘a list of classes of
projects which have been determined not to have a signif-
icant effect on the environment and which shall be exempt
from the provisions of this division.”’
Acting pursuant to this directive, the Secretary of Re-
sources has established a list of classes of projects which,
by regulation, are declared ‘‘to be categorically exempt from
the requirement for the preparation of environmental doc-
uments.’’ In February 1978, the secretary adopted section
15124 of title 14 of the California Administrative Code
which categorically exempts from CEQA’s requirements
‘“‘actions taken by regulatory agencies, including the In-
dustrial Welfare Commission as authorized by statute to
regulate any of the following: (a) Employee wages, (b)
Hours of work, or (c) Working conditions where there will
be no demonstrable physical changes outside the place of
work.’’ Under this regulation, the IWC had no obligation
to prepare an environmental impact report or negative dec-
laration prior to the adoption of the wage impact report or
negative declaration prior to the adoption of the wage orders
at issue here.'”
Although the employers recognize that the regulation in
question exempts IWC wage orders from the application of
CEQA, the employers contend that the Secretary of Re-
sources exceeded his statutory authority in adopting section
15124. In support of this argument, the employers rely on
this court’s decision in Wildlife Alive v. Chickering (1976)
18 Cal.3d 190, 204-206 [132 Cal.Rptr. 377, 553 P.2d 537],
in which we held that an administrative regulation catego-
"Before promulgating the 1980 orders, the IWC specifically made
a written finding ‘‘that none of its proposed regulations would make
a demonstrable physical change outside the place of work or have a
significant effect on the environment.”’
ee
rically exempting ‘‘actions taken . . . to assure the main-
tenance, restoration or enhancement of a natural resource
.’’ could not properly be interpreted as creating an ex-
emption from CEQA for actions of the Fish and Game
Commission in fixing hunting or fishing seasons.
In reaching that conclusion in Wildlife Alive, however,
we recognized that ‘‘the setting of hunting and fishing sea-
sons has the potential for a significant environmental impact,
both favorable and unfavorable,’’ and that ‘‘[t]here inheres
in the fixing of hunting seasons and the issuance of hunting
permits a serious risk of overkill and depletion of the af-
fected species.’’ (18 Cal.3d at p. 206.) Noting that under
section 21084 **[t]he secretary is empowered to exempt only
those activities which do not have a significant effect on the
environment’’ (id., at p. 205), we concluded that because
of the obvious possibility that the setting of hunting and
fishing seasons would have a significant effect on the en-
vironment, an interpretation of the exempting regulation to
cover such administrative acts would cast doubt on the va-
lidity of the regulation.
From an environmental standpoint, however, the wage
orders at issue in this case are obviously a far cry from the
administrative regulations fixing hunting and fishing seasons
which were before our court in Wildlife Alive. Unlike hunt-
ing and fishing season regulations which affect wildlife in
a very direct and unambiguous manner, the IWC regulations
governing the wages, hours and working conditions of em-
ployees have no obvious effect on the environment.
Indeed, the employers in the present case in effect con-
cede the absence of any such direct effect, arguing only that
the categorical exemption is improper because of certain
alleged collateral consequences to the environment which
the employers claim may possibly be engendered by the
commission’s vage orders. Thus, for example, the em-
—_32—
ployers attacking the IWC wage orders with respect to ag-
ricultural industries argue that ‘‘[t]he 1980 provisions with
regard to hours and days of work are much more restrictive
and financially more costly [than prior orders, and thus]
may well have the effect of forcing employers to turn to
mechanization or automation [which in turn] will result in
the greater use of machines and fuel of all types and, there-
fore, may have a significant effect on the environment.’’
In a similar vein, the growers contend that it is “‘likely that
increased mechanization of agricultural operations will
cause greater dust and noise pollution in areas adjacent to
metropolitan centers’’ and also allege that ‘‘increased wages
and overtime provisions will have the probable effect of
increasing the sale of agricultural land to developers for
urban purposes, thereby having an increasingly significant
environmental impact.’’
Aside from the obvious speculation implicit in the em-
ployers’ argument, it is not the IWC regulation of wages,
hours and working conditions that, in the employers’ scen-
ario may significantly affect the environment, but rather it
is the employers’ own future actions, not called for by the
wage orders, that may have such an effect. To the extent
that such future actions by growers may adversely affect the
environment, of course, the employers will be subject to
regulation by a variety of state and federal environmental
protection agencies. In any event, however, we think that
the mere possibility that an employer may respond to the
requirements of a wage order by adopting measures that
may endanger the environment does not undermine the va-
lidity of the Secretary of Resources’ conclusion that the
IWC’s promulgation of wage orders is categorically exempt
from CEQA’s requirements.
Accordingly, the IWC did not violate CEQA in adopting
its 1980 wage orders.
5. In the absence of a conflict with regulations promul-
gated by the California Occupational Health and Safety
Standards Board, the IWC nay adopt wage orders re-
lating to the health or safety of employees.
In addition to the various procedural contentions dis-
cussed above, the employers contend that the IWC exceeded
its substantive authority in promulgating a number of the
provisions included in all of the 1980 wage orders. In this
regard, the employers initially focus on those sections of
the wage orders which deal with matters generally relating
to the health and safety of employees, e.g., provisions reg-
ulating meal periods (§ 11), rest periods (§ 12), seats (§ 14)
and temperature (§ 15). The employers contend that under
the current statutes only the California Occupational Safety
and Health Standards Board (hereafter Cal/OSHA), for-
merly the Industrial Safety Board (see § 140, subd. (e)),
has jurisdiction to act with respect to such matters and that,
as a consequence, the [WC regulations in this field are null
and void.
The employers’ argument rests in principal part upon a
portion of section 1173 that was added to the statute in
1973. The relevant paragraph reads: ‘*‘Before adopting any
new rules, regulations or policies, the commission shall
consult with the Industrial Safety Board to determine those
areas and subject matters where the respective jurisdiction
of the commission and the Industrial Safety Board overlap.
In the case of such overlapping jurisdiction, the Industrial
Safety Board shall have exclusive jurisdiction, and rules,
regulations, or policies of the commission on the same sub-
ject have no force or effect.”’
The employers argue that this provision precludes the
commission from enacting regulations on any matter upon
which the Industrial Safety Board, i.e., Cal/OSHA has the
sails
authority or jurisdiction to act. Since, as the employers
maintain, the governing statutes and judicial precedents
clearly provide that Cal/OSHA has broad authority to act
to protect workers’ health and safety (see §§ 6305-6307; °
Carmona v. Division of Industrial Safety (1975) 13 Cal.3d
303, 312-313 [118 Cal.Rptr. 473, 530 P.2d 161]) the em-
ployer reasons that the IWC lacks any power to act in this
field. The IWC, by contrast, asserts that while the 1973
amendment of section 1173 grants Cal/OSHA the “‘last
word’’ on matters within its jurisdiction, the statute does
not inhibit the IWC from acting to protect employees’ health
and safety in areas in which no conflict with Cal/OSHA
regulations or policies actually exist.
In resolving this question of statutory interpretation, we
begin with a brief historical review of the two agencies’
overlapping jurisdiction in matters of employee health and
safety. Since its inception as an entity charged with the
regulation of wages, hours and working conditions of
women and children, the [WC has been statutorily mandated
‘‘to investigate the comfort, health, safety, and welfare of
such employees’’ and to fix wages, hours and working con-
ditions so as to maintain and protect the ‘‘health and wel-
fare’’ of such employees. (Stats. 1913, ch. 324, §§ 3, 6,
pp. 633, 634-635.) From its earliest days, the commission’s
regulatory orders have contained numerous provisions
aimed directly at preserving and promoting the health and
safety of employees ‘vithin its jurisdiction, and numerous
decisions throughout the commission’s existence have
Clearly recognized the validity of the commission’s regu-
lation of such matters. (See, e.g., Kerr’s Catering Service
v. Department of Industrial Relations (1962) 57 Cal.2d 319,
324-325 [19 Cal.Rptr. 492, 369 P.2d 20]; 2
Ops.Cal.Atty.Gen. 456 (1943); 6 Ops.Cal.Atty.Gen. 193,
194 (1945); 20 Ops.Cal.Atty.Gen. 120, 122 (1952).)
aii
Despite its broad authority in this field, however, the
IWC has never been the only state agency to regulate matters
relating to the health and safety of California employees.
In 1913, the year of the establishment of the IWC, the
Legislature enacted a separate bill creating the Industrial
Accident Commission, and vested that body, inter alia, with
broad authority to adopt regulations relating to the safety
and welfare of employees. (Stats. 1913, ch. 176, §§ 51-72,
pp. 305-311.) Unlike the IWC, however, the Industrial
Accident Commission’s jurisdiction was not limited only
to the protection of women or child workers, but encom-
passed the entire workforce. Subsequently, in 1945, the
Industrial Accident Commission’s broad authority to reg-
ulate safety in places of employment was transferred to a
new body, the Industrial Safety Board. (Stats. 1945, ch.
1431, § 78, p. 2698.)
In view of the broad grant of authority in matters relating
to occupational health and safety to both the IWC and the
Industrial Safety Board, the question of overlapping juris-
diction of these two agencies has existed for many decades.
Prior to 1973, however, no specific statutory provision at-
tempted to reconcile this overlapping jurisdiction. In the
absence of any such provision, the existing authorities de-
termined that both of the agencies had ‘‘concurrent juris-
diction’’ over matters within their authority, and concluded
that affected employers were required to comply with all
applicable regulations of both agencies. (See, e.g., 20
Ops.Cal.Atty.Gen. 120, 122 (1952); 37 Ops.Cal.Atty.Gen.
31, 36 (1961); cf. Orange County Air Pollution Control
Dist. v. Public Util. Com. (1971) 4 Cal.3d 945, 951-954
[95 Cal.Rptr. 17, 484 P.2d 1361].) When more than one
agency’s regulations applied to a particular activity, the
employer was obligated to comply with the most stringent
regulation. (See 37 Ops.Cal.Atty.Gen. 31, 36 (1961.)
~<a
As already noted, in 1973 the Legislature enacted a bill
expanding the IWC’s jurisdiction to include all California
employees, men, women and children. In the same bill, the
Legislature added to section 1173 a paragraph specifically
addressing the question of the overlapping jurisdiction of
the [WC and the Industrial Safety Board. It is the interpre-
tation of this provision upon which the present controversy
turns.'’ To reiterate, the relevant paragraph of section 1173
‘Although the employers argue that a separate 1973 enactment (Stats.
1973, ch. 993, §§ 11, 16, pp. 1919-1920), which renamed the Industrial
Safety Board the California Occupational Safety and Health Standards
Board and which included a provision stating that such board ‘‘shall
be the only agency in this state authorized to adopt occupational safety
and health standards’’ (§ 142.3), was intended by the Legislature to
give additional content to the 1973 amendment of section 1173, we
think that that contention is belied both by the language of the section
1173 amendment and by its legislative history. As we have noted, the
amendment of section 1173 refers to the *‘Industrial Safety Board’ not
the Occupational Safety and Health Standard Board and thus it is clear
that, contrary to the employers’ contention, the amendment of section
1173 was by no means a ‘‘companion’’ to the Cal/OSHA legislation.
Second, as originally introduced, the paragraph of section 1173 in
question provided that the /WC, rather than the Industrial Safety Board,
would have ‘‘exclusive jurisdiction’ in cases of conflict; although the
position of the two agencies in the section 1173 paragraph was ulti-
mately reversed, the legislation was not part of any comprehensive
legislative design to give the newly constituted Cal/OSHA sole authority
in this area.
Similarly, a review of Cal/OSHA legislation also suggests that the
provisions of section 142.3 were not intended to effect the IWC’s
jurisdiction. Unlike section 1173, which specifically addresses the issue
of the overlapping jurisdiction of the IWC and the Industrial Safety
Board (Cal/OSHA), section 142.3 makes no reference to the IWC at
all. Although that section provides that Cal/OSHA shall be the only
agency to adopt ‘‘occupational safety and health standards,”’ that ter-
minology is a term of art specifically defined by the Cal/OSHA leg-
islation (see § 6305, subd. (a)) and does not encompass wage orders
promulgated by the IWC. Indeed, another provision of the Cal/OSHA
legislation, section 144, subdivision (e), specifically provides that
**{njothing in this section shall affect or limit the authority of any state
or local agency as to any matter other than the enforcement of occu-
pational and health standards adopted by the board. . . .”’
Since the Legislature specifically enacted the amendment to section
1173 to address the question of the overlapping jurisdiction of the IWC
and the Industrial Safety Board (Cal/OSHA), we conclude that we must
properly look to that statute to determine legislative intent as to the
proper allocation of authority between the two agencies.
poe, BOR
reads in full: ‘“‘Before adopting any new rules, regulations
or policies, the commission shall consult with the Industrial
Safety Board to determine those areas and subject matters
where the respective jurisdiction of the commission and the
Industrial Safety Board overlap. In the case of such over-
lapping jurisdiction, the Industrial Safety Board shall have
exclusive jurisdiction, and rules, regulations, or policies of
the commission on the same subject have no force or ef-
fect.’’
The empfoyers contend that this provision was intended
to resolve the question of overlapping jurisdiction by entirely
eliminating the power of the IWC to regulate on any matter
over which the Industrial Safety Board (i.e., Cal/OSHA)
has jurisdiction, i.e., all matters of occupational health and
safety. The IWC contends that the Legislature had a more
modest goal in mind and simply intended to provide that,
in cases of conflict, the regulations or policies of the In-
dustrial Safety Board would govern.
Viewed in isolation, the language of the paragraph in
question is somewhat ambiguous. On the one hand, the
paragraph’s reference to the ‘‘exclusive jurisdiction’ of the
Industrial Board appears to support the employers’ reading
of the provision. On the other hand, however, the statutory
requirement of consultation between the two agencies would
be rather pointless if the IWC had absolutely no authority
to act with respect to health and safety matters in any cir-
cumstances. Moreover, the concluding language of the par-
agraph, declaring that ‘‘rules, regulations or policies of the
commission on the same subject have no force or effect,”’
suggests that the Legislature may well have intended that
IWC orders would be preempted only when the Industrial
Safety Board, i.e., Cal/OSHA, has actually regulated on
the same subject.
= =
Although the paragraph at issue, standing alone, is thus
arguably susceptible to either of the interpretations proffered
by the parties, for a number of reasons we conclude that
the construction suggested by the IWC is the more reason-
able and should be adopted.
First, and most significantly, numerous other provisions
of the 1973 bill in which the paragraph in question appears
are entirely incompatible with the employers’ proposed
interpretation. (See Stats. 1973, ch. 1007, §§ 1.5, 2, 3, pp.
2002-2003.) To begin with, as reenacted in 1973, the first
paragraph of section 1173, immediately preceding the par-
agraph relied upon by the employers, provides explicitly
that ‘‘lijt shall be the continuing duty of the Industrial
Welfare Commission. . . to investigate the comfort, health,
safety and welfare of . . . employees.’’ (Italics added.) In
addition, the 1973 legislation also explicitly retained the
provisions of section 1178, declaring that *‘wage board|[s]
shall report and make recommendations to the commission,
including therein: (a) An estimate of the minimum wage
adequate to supply the necessary cost of proper living to,
and maintain the health and welfare of employees . . .; (b)
The number of hours of work per day . . . consistent with
the health and welfare of employees; (c) The standard con-
ditions of labor . . . demanded by the health and welfare
of employees.’’ Finally, the 1973 act, while revising section
1182 in several respects, reiterated the portion of that section
authorizing the IWC to fix ‘‘the standard conditions of labor
demanded by the health and velfare of the employees
. in this state.”’
If the Legislature, by its 1973 enactments, had in fact
intended to preclude the commission from acting with re-
spect to matters of employee health and safety, as the em-
ployers suggest, it clearly would not have explicitly man-
dated the commission ‘‘to investigate the . . . health [and]
safety of . . . employees’’ and would not have continued
a
to authorize the commission to establish ‘‘standard condi-
tions of labor demanded by the health . . . of [such] em-
ployees.’’ A cardinal principle of statutory construction, of
course, decrees that all related statutory provisions must be
read together and harmonized, if possible. (See, e.g., Moyer
v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222,
230-231 [110 Cal.Rptr. 144, 514 P.2d 1224].) In this case,
a reading of the 1973 enactment as a whole indicates that,
contrary to the employers’ contention, the Legislature con-
templated that the IWC would retain authority to protect
workers’ health and safety, supporting the IWC’s position
that the statute simply requires the IWC to yield to the
Industrial Safety Board (Cal/OSHA) in instances of actual
conflict.
Second, the IWC’s reading of the statute is supported by
the fact that both of the administrative agencies charged
with administering the legislation in question agree that this
is the appropriate construction to be given the statutory
language. Since the enactment of the 1973 legislation, the
IWC and Cal/OSHA have consulted on numerous occasions
pursuant to the provision of section 1173, and as a result
of these consultations, the IWC has deleted from its wage
orders a number of long-standing provisions on various sub-
jects (e.g., protective garments and equipment, sanitary
conditions of toilets and floors) over which Cal/OSHA has
assumed jurisdiction. As the employers concede, however,
throughout this period the officials of both Cal/OSHA and
the IWC have taken the position that the IWC is not totally
precluded from regulating on matters relating to worker
health or safety, but may adopt such regulations so long as
they do not conflict with applicable Cal/OSHA directives
or policy. We have often said, of course, that ‘‘the con-
struction of a statute by officials charged with its admin-
istration. . . is entitled to great weight’’ (Morris v. Williams
—
(1967) 67 Cal.2d 733, 748 [63 Cal.Rptr. 689, 433 P.2d
697]) and this principle applies with particular strength when
two agencies agree as to the interpretation of a statutory
provision concerned with the allocation of authority between
the agencies.
Finally, the interpretation of the statute urged by the IWC
is sustained by the general principle of statutory interpre-
tation, noted at the outset of this opinion, that remedial
legislation of this nature is to be liberally construed in favor
of accomplishing the principal objective of the legislation,
i.€., protecting workers. Under the employers’ interpreta-
tion of the statute, employees would be deprived of the
benefits of health- and safety-related regulations of the [WC
even though Cal/OSHA had not yet acted on the subject to
protect the workers’ interests. Such a construction is clearly
at odds with the remedial purpose of the entire statutory
framework.
Contrary to the employers’ claim, the I[WC’s interpre-
tation of the provision in no way deprives the relevant
statutory provisions of section 1173 of all meaning. Unlike
the situation prior to 1973, under the new statute employers
need not comply with the most restrictive regulation when
IWC and Cal/OSHA regulations collide; instead, the statute
provides that in such a situation, the resulations promulgated
by Cal/OSHA will prevail.
Accordingly, we conclude that IWC retains jurisdiction
to regulate working conditions related to the health and
safety of employees in the absence of any actual conflict
with existing Cal/OSHA regulations or policy. Because the
record establishes that no such conflict exists, we reject the
employers’ challenge to the orders’ validity on this ground.
ae a
6. Neither federal nor state labor relation legislation pre-
cludes the IWC from establishing minimum wages,
maximum hours or standard conditions of employment
to protect the health and welfare of California em-
plovees.
A number of employers additionally contend that a variety
of state and federal labor relation statutes, which have as
a principal objective the resolution of employer-employee
disputes over wages, hours and working conditions through
the collective bargaining process, operate to ‘‘preempt’’ the
IWC from ‘‘imposing’’ or ‘‘dictating,’’ upon either em-
ployers or employees, conditions of employment that have
not been arrived at through collective bargaining.'* Relying
upon a number of labor law decisions which have indicated
in other contexts that neither the National Labor Relations
Board nor similar state agencies may ‘‘impose [their] own
views of a desirable settlement’’ in the event of a dispute
over employment conditions (see, e.g., Porter Co. v. NLRB
(1970) 397 U.S. 99, 103-104 [25 L.Ed.2d 146, 151, 90
S.Ct. 821]; Machinists v. Wisconsin Emp. Rel. Comm'n
(1976) 427 U.S. 132, 153 [49 L.Ed.2d 396, 411, 96 S.Ct.
‘In the underlying mandate actions, the employers have raised this
issue with respect to the provisions of the California Agricultural Labor
Relations Act (ALRA) (§ 1140 et seq.) which guarantee collective
bargaining rights in the agricultural sector. Because (1) the ALRA’s
provision in this regard were modeled upon the provisions of the Na-
tional Labor Relations Act (NLRA) (see, e.g., Vargas v. Municipal
Court (1978) 22 Cal.3d 902, 910-911 [150 Cal.Rptr. 918, 587 P.2d
714]), (2) many of the lawsuits challenging the 1976 orders raised an
analogous issue with respect to the federal labor legislation, and (3)
one of the issues specifically left open in California Hotel & Motel
Assn. concerned the alleged preemptive effect of federal labor laws
(25 Cal.3d at p. 205, fn. 2), we believe it is appropriate to analyze this
issue with reference to both state and federal labor legislation. Although
the employers have objected to the court’s addressing and discussing
the federal labor preemption issue in this proceeding, all parties were
notified prior to oral argument of this court’s intention to consider the
issue, and both sides have filed briefs directed to this issue.
—.
2548]), the employers maintain that the IWC lacks authority
to “‘interfere’’ with the collective bargaining process by
mandating minimum permissible employment conditions in
matters that are ‘*‘mandatory subjects’’ of collective bar-
gaining under the applicable labor statutes.
Taken at face value, the employers’ contentions in this
regard would have the effect of precluding the IWC from
regulating with respect to any of the matters within its ju-
risdiction. Under each of the labor statutes which apply to
the industries regulated by the commission—the National
Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.),
the Railway Labor Act (RLA) (45 U.S.C. § 151 et seq.),
and the Agricultural Labor Relations Act (ALRA) (§ 1140
et seq.)—‘**wages, hours and working conditions’’ consti-
tute mandatory subjects of collective bargaining. Thus, if
these labor statutes in fact prohibited all governmental reg-
ulation on any matter that is subject to employee-employer
bargaining, neither the IWC nor any other state or federal
agency would have authority to prescribe minimum wages
or maximum hours, to promulgate occupational health and
safety standards, or to prohibit discriminatory employment
practices. The mere recitation of the logical consequences
of the employers’ arguments, of course, signals the extreme
tenuousness of the employers’ contention.
In fact, the fundamental flaw in the employers’ present
argument was fully exposed nearly 30 years ago by Justice
Jackson in his opinion for the United States Supreme Court
in Terminal Assn. v. Trainmen (1943) 318 U.S. 1 [87 L.Ed.
571, 63 S.Ct. 420]. In Terminal, an employer covered by
the Railway Labor Act challenged the validity of a state
agency regulation which, to protect the health and safety
of employees, required the company to provide cabooses
on designated railroad runs. The employer in Terminal
pointed out that the state regulation conflicted with a specific
a Oe
provision of a collective bargaining agreement that had been
negotiated between the employer and employees, and ar-
gued that since the question of providing cabooses involved
a working condition of the employment and thus was a
‘‘mandatory subject’’ of collective bargaining subject to
resolution under the Railway Labor Act, state regulation on
the subject was preempted by the act.
In Terminal, the Supreme Court unanimously rejected the
employer’s contention and upheld the validity of the state
regulation. In reaching this conclusion, Justice Jackson ex-
plained: ‘‘The Railway Labor Act, like the National Labor
Relations Act, does not undertake governmental regulation
of wages, hours, or working conditions. Instead it seeks to
provide « means by which agreement may be reached with
respect to them. The national interest expressed by those
Acts is not primarily in the working conditions as such. . . .
‘*State laws have long regulated a great variety of con-
ditions in transportation and industry, such as sanitary fa-
cilities and conditions, safety devices and protections, purity
of water supply, fire protection, and innumerable others.
Any of these matters might, we suppose, be the subject of
a demand by workmen for better protection and upon refusal
might be the subject of a labor dispute which would have
such effect on interstate commerce that federal agencies
might be invoked to deal with some phase of it. But we
would hardly be expected to hold that the price of the federal
effort to protect the peace and continuity of commerce has
been to strike down state sanitary codes, health regulations,
factory inspections, and safety provisions for industry and
transportation. We suppose employees might consider that
state or municipal requirements of fire escapes, fire doors,
and fire protection were inadequate and make them the
subject of a dispute, at least some phases of which would
be of federal concern. But it cannot be that the minimum
a Eee
requirements laid down by state authority are all set aside.
We hold that the enactment by Congress of the Railway
Labor Act was not a preemption of the field of regulating
working conditions themselves and did not preclude the
State ... from making the order in question.’’ (Fn.
omitted.) (318 U.S. at pp. 6, 7 [87 L.Ed. at pp. 577-578].)
This reasoning, we believe, fully answers the employers’
contention that federal or state labor legislation, fostering
collective bargaining, can be read to preempt legislative
efforts to prescribe minimum standards of wages, hours and
working conditions for the protection of employees. Indeed,
as already suggested, the numerous existing federal and
state statutes embodying just such ‘‘minimum standards”’
stand as eloquent testimony to the validity of such regula-
tion. Thus, notwithstanding the NLRA and the RLA, the
federal government has enacted the Fair Labor Standards
Act of 1938 (29 U.S.C. § 201 et seq.) prescribing minimum
wages and maximum hours, and the Occupational Safety
and Health Act of 1970 (federal OSHA) (29 U.S.C. § 651
et seq.), authorizing the promulgation of specific standards
directly relating to workers’ conditions of employment.
Moreover, both the Fair Labor Standards Act and federal
OSHA contain specific provisions which recognize the
States’ authority to go beyond the federal legislation in
adopting more protective regulations for the benefit of em-
ployees. (29 U.S.C. § 218; 29 U.S.C. §§ 651 (b)(11), 667.)
Furthermore, although the employers argue that state reg-
ulation in this field—if permissible at all—must be confined
only to matters of minimum wages, maximum hours or
working conditions which directly implicate the health or
safety of employees, federal and state legislation directed
to discrimination in employment demonstrates that govern-
mental entities retain broad authority to establish minimum
standards related generally to the ‘‘welfare’’ of employees.
antcnds
(See, e.g., 42 U.S.C. §§ 2000e-2, 2000e-7; Lab. Code; §
1410 et seq.)
As the Terminal case teaches, the fact that these matters
may also constitute proper, indeed ‘‘mandatory,’’ subjects
of collective bargaining does not preclude the state from
adopting minimum standards to protect the welfare of work-
ers who may not enjoy sufficient bargaining strength to
obtain adequate protection from their employers at the bar-
gaining table.'®
To the extent that the case of United Air Lines v. Industrial Welfare
Com. (1963) 211 Cal.App.2d 729, 744 [28 Cal.Rptr. 238], supports
the contention that state regulation of working conditions is invalid
outside the realm of health and safety provisions, that decision is dis-
approved. Numerous legislative enactments and judicial authorities
make it clear that the states possess broad authority, under their police
power, to prescribe minimum standards of employer conduct found
necessary to protect the welfare of employees, even when health or
safety considerations are not directly implicated. (See, e.g., 42 U.S.C.
§ 2000e-7 (recognizing validity of state antidiscrimination provisions);
15 U.S.C. § 1677 (recognizing validity of state laws prohibiting dis-
charge on basis of wage garnishments); Lab. Code, § 1101 et seq.
(prohibiting employer interference with employees’ political activities
or affiliations); De Canas v. Bica (1976) 424 U.S. 351, 356 [47 L.Ed.2d
43, 49, 96 S.Ct. 933]; Baltimore & O. R. Co. v. Commonwealth, Dept.
of L. & 1. (1975) 461 Pa. 68 [334 A.2d 636, 643], app. dism. for want
of substantial federal question, 423 U.S. 806 [46 L.Ed.2d 26,
96 S.Ct. 14].)
‘’The numerous labor law preemption decisions relied upon by the
employers are clearly not in point. None of the decisions dealt with a
state regulation prescribing a minimum standard for working conditions
to protect the health, safety or welfare of employees. Instead, the cases
involve either direct state interference with the collective bargaining
process (see, e.g., California v. Taylor (1957) 353 U.S. 553 [1 L.Ed.2d
1034, 77 S.Ct. 1037}) or with the choice of economic weapons available
during a labor dispute (see, e.g., Machinists v. Wisconsin Emp. Rel.
Comm'n. supra, 427 U.S. 132), or the state’s use of its antitrust laws
to bar the collective action by employees or employers protected by
federal law. (See, e.g., Teamsters Union v. Oliver (1959) 358 U.S.
283 [3 L.Ed.2d 312, 79 S.Ct. 297].) As the United States Supreme
Court recently observed: **|A]Imost all of the Court's labor law deci-
sions in which state regulatory schemes have been found to be
preempted have involved state efforts to regulate or to prohibit private
conduct that was either protected by § 7 [of the NLRA] prohibited by
§ 8 [of the NLRA], or at least arguably so protected or prohibited.”’
(New York Tel. Co. v. New York Labor Dept. (1979) 440 U.S. 519,
529 [59 L.Ed.2d 553, 561-562, 99 S.Ct. 1328] (fns. omitted).)
(footnote continued on following page)
—46—
Accordingly, we conclude that existing federal and state
labor statutes establish no bar to the IWC’s promulgation
of the 1980 wage orders. (See, e.g., Rivera v. Division of
Industrial Welfare, supra, 265 Cal.App.2d 576, 602-604.)
7. The employers’ additional, individual challenges to
specific provisions in various wage orders are without
merit.
Finally, in addition to raising the numerous common legal
challenges to the 1980 wage orders discussed at length
above, a number of employers have put forward a variety
of more limited objections to specific provisions of one or
more of the various 1980 wage orders. As we shall explain,
we have also concluded that none of these additional con-
tentions has merit.
(a) Treatment of tipped employees in wage order 5-80.
In the Kings County action (see fn. 2, ante), a number
of employers argue that in enacting wage order 5-80, relating
to the public housekeeping industry, the IWC abused its
discretion in refusing to provide a lower minimum wage for
tipped employees. The IWC explained the basis of its de-
cision in the statement as to the basis for order 5-76 which
it adopted upon remand of this court’s decision in California
Hotel & Motel Assn. The commission stated: ‘‘Many re-
quests were received from the hotel and restaurant industry
for a special, lower rate for tipped employees. The Com-
mission carefully studied written and oral arguments on the
ee
Contrary to the employers’ contention, the Supreme Court has never
retreated from its holding in Terminal, quoted above, that the federal
labor laws do not ‘‘preempt [ |] . . . the field of regulating working
conditions. . . ."’ (318 U.S. at p. 7 [87 L.Ed.2d at p. 578]. See, e.g.,
Malone v. White Motor Corp. (1978) 435 U.S. 497, 504-505, 512 [55
L.Ed.2d 443, 450-451, 455, 98 S.Ct. 1185]; Baltimore & O. R. Co.
v. Commonwealth, Dept. of L. & 1., supra, 334 A.2d 636, app. dism,
for want of a substantial federal question, 423 U.S. 806.)
ae, Wes
matter. It denied the request, however, for two reasons.
First, and most important, the Legislature specifically re-
voked the authority it had earlier given the IWC to allow
credit for tips against the minimum wage, when it amended
Section 351 of the Labor Code this year [i.e., 1975]. Sec-
ond, the Commission noted from enforcement experience
during the time that tip credit was allowed that tip sharing
was required to such an extent that the traditional tipped
employees were subsidizing the minimum wages of other
classifications.’’
The employers contend that the [WC has misinterpreted
the effect of the 1975 amendment to section 351,'’ asserting
that while the Legislature intended by such amendment to
prohibit the [WC from allowing employers directly to deduct
from an employee’s wages tips that an employee actually
receives, the Legislature did not intend to prohibit the com-
mission itself from indirectly achieving a somewhat com-
parable result by establishing a lower minimum wage for
tipped employees. Although the tip credit practice sanc-
tioned by the IWC in the past may have engendered par-
ticular abuse because individual employers exacted credit
from their employees on an individual basis, we think that
the legislative history of the 1975 bill supports the IWC’s
conclusion that the Legislature contemplated that the en-
actment would insure that tips received by an employee
would not reduce an employer’s minimum wage obligation,
either directly or indirectly.
"Prior to 1975, section 351 provided in relevant part: ‘‘No employer
.. Shall . . . receive any gratuity or a part thereof, paid, given to or
left for an employee by a patron, or deduct any amount from wages
due an employee on account of such gratuity . . . except to the extent
that may be permitted by a valid regulation of the Industrial Welfare
Commission, . . .** (Italics added.) In 1975, section 351 was amended
to delete the italicized language of the statute.
a wer
For example, an analysis of the 1975 bill by the Senate
Industrial Relations Committee specifically states: ‘‘The
effect of this bill would be to require employers to pay
employees at least the minimum wage regardless of the
amount of tips the employees receive.’’ Similarly, a mem-
orandum on the legislation drafted by the Assembly Labor
Relations Committee states in part: ‘‘The basis for this leg-
islation would appear to be that tips or gratuities are given
for individual excellence of service above and beyond the
basic duties of employment, and as such, the employer has
no vested right to consider tips a part of wages.’’ In light
of the legislative history, the [WC could reasonably interpret
the amendment of section 351 as a legislative determination
that all employees should be guaranteed a minimum wage
that is not reduced by virtue of any tips an employee may
possibly receive. As already noted, the commission’s inter-
pretation of the statutes which it administers is entitled to
great weight, and, in our view, the employers have not
demonstrated a sufficient basis for rejecting the commis-
sion’s interpretation of this provision.
The employers additionally contend, however, that as
interpreted by the commission, section 351 violates equal
protection principles by creating an arbitrary distinction
between tipped and nontipped employees. We do not agree.
The Legislature could rationally determine (1) that, for
minimum wage purposes, employers should not receive the
benefits of gratuities that customers intend for the sole ben-
efit of employees and (2) that employers should not be
excused from the obligations of paying minimum wages to
certain employees upon the uncertain possibility that such
employees will in fact receive a predetermined amount of
tips for their services. (See generally Cal. Drive-in Restau-
rant Assn. Vv. Clark (1943) 22 Cal.2d 287, 295-300 [140
P.2d 657, 147 A.L.R. 1028]; Williams v. Terminal Co.
aesciillNcias
(1942) 315 U.S. 386, 388-389 [86 L.Ed. 914, 920-921, 62
S.Ct. 659]; id., at pp. 410-411 [86 L.Ed. at pp. 931-932]
(Black, J. dis.).) Although the employers also claim that
the absence of a lower minimum wage for tipped employees
is arbitrary in light of the credits which employers are given
for other ‘‘non-wage benefits,’’ e.g., meals provided by the
employer, there is an obvious distinction between the two
categories of “‘non-wage benefits’ in that the employer
makes a direct out-of-pocket expenditure for meals and the
like, whereas tips are paid by customers, not the employer.
Accordingly, we conclude that the minimum wage pro-
visions of wage orders 5-80 are not invalid in failing to
provide a differentiated minimum wage for tipped and non-
tipped employees.
(b) ‘‘Due process’’ challenge to orders 8-80, 13-80 and
14-80.
In the Stanislaus County case, numerous agricultural em-
ployers contend that the 1980 wage orders regulating ag-
ricultural industries violate due process, asserting in con-
clusory terms that the orders impose such ‘‘inflexible
overtime and work rules [that] many such employers will
not be able to operate efficiently or economically [and]
. will be forced out of business.’* The employers ad-
ditionally contend that in evaluating the constitutionality of
the wage order provisions, the judiciary should exercise de
novo review because the regulation may deprive the growers
of the right to practice a common occupation.
As the IWC suggests, the employers’ contentions in this
regard fly in the face of a long line of contrary. authority.
From at least as early as the United States Supreme Court
decision in West Coast Hotel Co. v. Parrish (1937) 300
U.S. 379 [81 L.Ed. 703, 57 S.Ct. 578, 108 A.L.R. 1330},
sustaining the constitutionality of a state minimum wage
—
law in the face of a similar due process challenge, the cases
have made clear that state regulations of minimum wages,
maximum hours and working conditions come to the courts
‘‘freighted with [a] strong presumption of regularity’’
(Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 175
(70 Cal.Rptr. 407, 442 P.2d 79]) and are not subject to
‘de novo’’ judicial review. As the court emphasized in
West Coast Hotel; ** ‘|T]imes without number we have said
that the legislature is primarily the judge of the necessity
of such an enactment, that every possible presumption is
in favor of its validity, and that though the court may hold
views inconsistent with the wisdom of the law, it may not
be annulled unless palpably in excess of legislative power.’ *’
(300 U.S. at p. 398 [81 L.Ed. at p. 712].)
Moreover, the authorities similarly declare that the ‘‘leg-
islative power’’ to regulate employment conditions is very
broad indeed, even though such regulations almost inevit-
ably impose some economic burden upon employers. Again,
as the Supreme Court stated in West Coast Hotel: *‘In deal-
ing with the relation of employer and employed, the leg-
islature has necessarily a wide field of discretion in order
that there may be suitable protection of health and safety,
and that peace and good order may be promoted through
regulations designed to insure wholesome conditions of
work and freedom from oppression.’ (/d., at p. 393 [81
L.Ed. at p. 709].) The employers completely fail to show
that the wage and hours regulations they attack are not
rationally related to these permissible state interests.
Indeed, although the agricultural employers complain
about the harshness of the wage orders applicable to their
industry, the fact of the matter is that the wage order relating
to agriculture appears to be particularly solicitous of the
interests of agricultural employers in several respects. Thus,
for example, wage order 14-80 provides for a longer work
ahs,
week for agricultural employees (ten-hour day, six-day
week) before the overtime premium applies, exempts grow-
ers from the requirement of providing specific places for
meal periods, changing rooms or rest facilities, and imposes
no temperature restrictions.
(c) ‘‘Undue hardship’’ .
In a corollary to the above ‘‘due process’’ argument, the
agricultural employers argue that orders 8-80, 13-80 and
14-80 are invalid because they impose an ‘‘undue hardship”’
on employers in violation of a provision of the 1973 leg-
islation which reads: ‘‘It is the intent of the Legislature in
enacting this act that the Industrial Welfare Commission
interpret these provisions in a manner which does not cause
undue hardship or loss of employment opportunities in any
segment of industry in California.’’ (Stats. 1973, ch. 1007,
§ 11, p. 2005.)
As already noted, however, the 1980 agricultural wage
orders give full consideration to the interests of both em-
ployees and employers, and provide numerous exemp-
tions—where the [WC found it appropriate—in recognition
of the commission’s responsibility to avoid ‘‘undue hard-
ship’’ to all affected individuals. The statutory language to
which the employers point makes it clear that the ‘‘undue
hardship’’ provision was not intended to grant courts the
prerogative of usurping the agency’s quasi-legislative func-
tion; the statute directs the /WC to interpret the provision
so as to forestall undue hardship. The employers fail to
demonstrate that the commission failed to give heed to the
guidance of this provision.
(d) Alleged conflict with section 554.
The agricultural employers additionally contend that sec-
tion 3(A) of orders 8-80 and 13-80 conflict with section 554
and are invalid. Section 3(A)(1) of each of these orders
requires that employees in the covered industries be given
a twenty-four hour period off after they have worked
seventy-two hours in any seven-day period,'” the employers
contend that this requirement is inconsistent with the pro-
visions of section 554 which exempt agricultural employees
from section 551’s statutory requirement of one day’s rest
in seven."”
The employers’ contention rests upon a fundamental
misconception of the relationship between the general stat-
utory provisions of sections 510-556 and the more specific
regulations embodied in IWC wage orders. Although section
1182 expressly provides that the maximum hours fixed by
IWC wage orders ‘‘shall not be more than the maximum
for employees in California’’ (italics added), the authorities
have uniformly held that ‘‘the Industrial Welfare Orders
may provide more restrictive provisions than are provided
by [the general] statutes adopted by the Legislature on this
subject [in sections 510-556]. .. .’’ (Italics added.) (2
Ops.Cal.Atty.Gen. 456, 457 (1943); accord Cal. Drive-in
Restaurant Assn. v. Clark, supra, 22 Cal.2d 287, 290-294,
cf. § 1356; Rivera v. Division of Industrial Welfare, supra,
265 Cal.App.2d 576, 599-601.) Thus, in the opinion cited
above, the Attorney General rejected a contention, similar
to that raised by the employers in the instant case, that the
provisions of section 556—exempting certain empleyees
from the statutory mandate of section 551—operated to pre-
"Section 3(A)(1) reads in relevant part: *‘An employee may work
up to a maximum of seventy-two (72) hours in any seven (7) consecutive
days after which the employee shall have a twenty-four hour period off
duty.’’
"Section 551 provides: ‘‘Every person employed in any occupation
of labor is entitled to one day’s rest therefrom in seven.”’
Section 554 provides in part: ‘*This chapter shall not apply to any
cases of emergency nor to work performed in the necessary care of
animals, crops or agricultural lands... ."’
clude the IWC from requiring employers to afford such
employees one day’s rest in seven. (2 Ops.Cal.Atty.Gen.
456, 458 (1943).)
Moreover, this conclusion is reinforced in the instant case
by the fact that the sections of the 1980 wage orders chal-
lenged by the employers have been part of the wage orders
of the industries in question since 1943. As the Court of
Appeal noted in Rivera about a similar wage order provision:
‘This long-continued and consistent administrative inter-
pretation has received at least silent acquiescence from the
Legislature. It supports the interpretation that the statutory
[provisions] . . : should not be construed to prevent it. The
courts will not depart from such an administrative construc-
tion unless it is clearly erroneous or unauthorized.” (Fn.
omitted.) (265 Cal.App.2d 576, 601.)
(e) Alleged conflict with section 1394, subdivision (a).
Finally, the agricultural employers contend that section
3(c) of order 13-80, regulating the hours of employment of
minors, conflicts with section 1394, subdivision (a) and is
invalid. As the IWC’s replication points out, however, the
employer's argument rests entirely upon an outdated version
of section 1394, subdivision (a) and completely ignores
recent amendments to section 1394 and the enactment of
section 1394.1. The employers have not demonstrated that
the 1980 wage orders conflict with the currently prevailing
Statutes.
8. Conclusion.
We are aware of the vexation that the managements of
many regulatea corporations must feel as to the multiple
controls an administrative society is compelled to impose
upon them. Perhaps this extensive regulation is the price
we pay for the very life of a society based upon the con-
=
glomerate and the mass producer. Yet the incidence of such
control hopefully should not endanger the very continuance
of those fundamental protections of the workers that trace
back over a half century and that the Legislature and re-
sponsible administrative officials have determined to be
necessary to the workers’ welfare. The likely chagrin of the
regulated should not obscure the underlying social need that
prompts the regulation.
For the reasons discussed at length above, we conclude
that none of the employers’ challenges to the IWC’s 1980
wage orders has merit.
Let a peremptory writ of mandate issue, directing the
respondent courts (1) to vacate the orders previously issued
staying the operation and effect of the challenged wage
orders and (2) to enter judgment in favor of the commission
in each of the underlying mandate actions.
Clark, J., Richardson, J., Manuel, J., Newman, J., Tay-
lor, J.,* and Racanelli, J.,* concurred.
*Assigned by the Chairperson of the Judicial Council,
APPENDIX B.
Notice of Appeal to the
Supreme Court of the United States
In the Supreme Court of the State of California. Industrial
Welfare Commission, et al., Petitioners, v. Kern County
Superior Court, et al., Respondents, California Hotel &
Motel Association, et al., Real Parties in Interest. No. S.F.
24123.
Filed: Aug. 4, 1980.
NOTICE IS HEREBY GIVEN that American Airlines,
Inc., Sierra Ski Areas Association, California Trucking
Association, California Manufacturers Association, Theatre
Association of California, Theatre Properties, Inc., Hitch-
ceck Transportation Co. and Corcoran Motor Transport,
Real Parties in Interest above-named, hereby appeal to the
Supreme Court of the United States from the final judgment
of the Supreme Court of the State of California, entered on
July 10, 1980, ordering the issuance of a peremptory writ
of mandate directing the Superior Courts above-named to
vacate previously issued orders staying the operation and
effect of challenged wage orders and to enter judgments in
favor of petitioners above-named.
This appeal is taken pursuant to 28 U.S.C. § 1257(2).
DATED: August 4, 1980.
RICHARD M. MOSK
MITCHELL, SILBERBERG & KNUPP
1800 Century Park East
Los Angeles, Ca. 90067
Telephone: (213) 553-5000
Attorneys for Theatre
Properties, Inc. and
Theatre Association of
California.
— =
WILLARD Z. CARR, JR.
KENNETH E. RISTAU, JR.
DENNIS A. GLADWELL
MARK Wm. SHURTLEFF
DONALD B. AYER
GIBSON, DUNN & CRUTCHER
660 Newport Center Drive
Suite 1600
Newport Beach, Ca. 92660
Telephone: (714) 759-3800
Attorneys for California
Manufacturers Association
JAN L. KAHN
KAHN & SOARES
Old Phone Building
217 North Douty Street
Hanford, Ca. 93230
Telephone: (209) 584-3337
RICHARD W. SMITH
1240 Bayshore Highway
Burlingame, Ca. 94010
Telephone: (415) 347-3651
Attorneys for Hitchcock
Transportation Co.,
Corcoran Motor Transport,
Inc. and California
Trucking Association
ao; Hamm
JEAN C. GASKILL
JAMES L. MEEDER
BROBECK, PHLEGER & HARRISON
One Market Plaza
Spear Street Tower
San Francisco, Ca. 94105
Telephone: (415) 442-0900
Attorneys for American
Airlines, Inc. and
Sierra Ski Areas
Association
/s/ JEAN C. GASKILL,
Jean C. Gaskill,
On behalf of all Real Parties
in Interest.
a te
Notice of Appeal to the
Supreme Court of the United States.
In the Supreme Court of the State of California. Industrial
Welfare Commission, et al., Petitioners, v. Kern County
Superior Court, et al., Respondents, California Hotel &
Motel Association, et al., Real Parties in Interest. No. S.F.
24123.
Filed: Aug. 5, 1980.
NOTICE IS HEREBY GIVEN that Real Party In Interest
United Airlines, Inc., hereby appeals to the Supreme Court
of the United States from the final judgment of the Supreme
Court of the State of California, entered on July 10, 1980,
ordering the issuance of a peremptory writ of mandate di-
recting the Superior Courts above-named to vacate previ-
ously issued orders and to enter judgments in favor of pe-
titioners above-named.
This appeal is taken pursuant to 28 U.S.C. § 1257(2).
DATED: August 5, 1980. —
JEAN C. GASKILL
JAMES L. MEEDER
BROBECK, PHLEGER & HARRISON
One Market Plaza
Spear Street Tower
San Francisco, CA 94105
Telephone: (415) 442-0900
By /s/ JAMES L. MEEDER,
JAMES L. MEEDER,
Attorneys for
United Airlines, Inc.
—_
APPENDIX C.
Amended Notice of Appeal to the
Supreme Court of the United States
In the Supreme Court of the State of California. Industrial
Welfare Commission, et al., Petitioners, v. Kern County
Superior Court, et al., Respondents, California Hotel &
Motel Association, et al., Real Parties in Interest. No. S.F.
24123.
NOTICE IS HEREBY GIVEN that United Air Lines,
Inc., American Airlines, Inc., Sierra Ski Areas Association,
California ‘Trucking Association, California Manufacturers
Association, Theatre Association of California, Theatre
Properties, Inc., Hitchcock Transportation Co. and Cor-
coran Motor Transport, Real Parties in Interest above-
named, hereby appeal to the Supreme Court of the United
States from the final judgment of the Supreme Court of the
State of California, entered on August 28, 1980, ordering
the issuance of a peremptory writ of mandate directing the
Superior Courts above-named to vacate previously issued
orders staying the operation and effect of challenged wage
orders to enter judgments in favor of petitioners above-
named. :
This appeal is taken pursuant to 28 U.S.C. § 1257(2).
DATED: September 3, 1980.
RICHARD M. MOSK
MITCHELL, SILBERBERG & KNUPP
1800 Century Park East
Los Angeles, CA 90067
Telephone: (213) 553-5000
Attorneys for Theatre
Properties, Inc. and
Theatre Association of
California.
ot eRe
WILLARD Z. CARR, JR.
KENNETH E. RISTAU, JR.
DENNIS A. GLADWELL
MARK Wm. SHURTLEFF
DONALD B. AYER
GIBSON, DUNN & CRUTCHER
660 Newport Center Drive
Suite 1600
Newport Beach, CA 92660
Telephone: (714) 759-3800
Attorneys for California
Manufacturers Association
JAN L. KAHN
KAHN & SOARES
Old Phone Building
217 North Douty Street
Hanford, CA 93230
Telephone: (209) 584-3337
RICHARD W. SMITH
1240 Bayshore Highway
Burlingame, CA 94010
Telephone: (415) 579-3538
Attorneys for Hitchcock
Transportation Co.,
Corcoran Motor Transport,
Inc. and California
Trucking Association
a
JEAN C. GASKILL
JAMES L. MEEDER
BROBECK, PHLEGER & HARRISON
Spear Street Tower
One Market Plaza
San Francisco, CA 94105
Telephone: (415) 442-0900
Attorneys for United Air
Lines, Inc., American Airlines,
Inc. and Sierra Ski Areas
Association
/s/ JEAN C. GASKILL
Jean C. Gaskill
On behalf of all Real Parties in
Interest
—_.,
APPENDIX D.
Order 1-80.
Article 7. Manufacturing Industry
(Order No. 1-80, Effective January 1, 1980)
11180. Order Governing Wages, Hours, and Working
Conditions in the Manufacturing Industry.
1. Applicability of Order. This Order shall apply to
all persons employed in the manufacturing industry whether
paid on a time, piece rate, commission, or other basis,
except that:
(A) Provisions of Section 3 through 12 shall not apply
to persons employed in administrative, executive, or profes-
sional capacities. No person shall be considered to be em-
ployed in an administrative, executive, or professional ca-
pacity unless one of the following conditions prevails:
(1) The employee is engaged in work which is primarily
intellectual, managerial, or creative, and which requires
exercise of discretion and independent judgment, and for
which the remuneration is not less than $900.00 per month;
or
(2) The employee is licensed or certified by the State
of California and is engaged in the practice of one of the
following recognized professions: law, medicine, dentistry ,
pharmacy, optometry, architecture, engineering, teaching,
or accounting.
(B) The provisions of this Order shall not apply to em-
ployees directly employed by the State or any county, in-
corporated city or town or other municipal corporation, or
to outside salespersons.
(C) Provisions of this Order shall not apply to any in-
dividual who is the parent, spouse, child, or legally adopted
child of the employer.
=
2. Definitions.
(A) ‘‘Commission’’ means the Industrial Welfare Com-
mission of the State of California.
(B) ‘‘Division’’ means the Division of Labor Standards
Enforcement of the State of California.
(C) ‘*Manutacturing Industry’’ means any industry,
business, or establishment operated for the purpose of pre-
paring, producing, making, altering, repairing, finishing,
processing, inspecting, handling, assembling, wrapping,
bottling, or packaging goods, articles, or commodities, in
whole or in part; EXCEPT when such activities are covered
by Orders in the: Canning, Preserving, and Freezing In-
dustry; Industries Handling Products After Harvest; Indus-
tries Preparing Agricultural Products for Market, on the
Farm; or Motion Picture Industry.
(D) ‘‘Employ’’ means to engage, suffer, or permit to
work.
(E) ‘‘Employee’’ means any person employed by an
employer.
(F) ‘‘Employer’’ means any person as defined in Sec-
tion 18 of the Labor Code, who directly or indirectly, or
through an agent or any other person, employs or exercises
control over the wages, hours, or working conditions of any
person.
(G) ‘‘Hours worked’ means the time during which an
employee is subject to the control of an employer, and
includes all the time the employee is suffered or permitted
to work, whether or not required to do so.
(H) ‘*Minor’’ means, for the purpose of this Order, any
person under the age of eighteen (18) years.
(1) ‘‘Qutside Salesperson’’ means any person, 18 years
of age or over, who customarily and regularly works more
than half the working time away from the employer's place
ee.
of business selling tangible or intangible items or obtaining
orders or contracts for products, services or use of facilities.
(J) ‘*Primarily’’ as used in Section 1, Applicability,
means more than one-half the employee’s work time.
(K) ‘‘Split shift’? means a work schedule which is in-
terrupted by non-paid non-working periods established by
the employer, other than bona fide rest or meal periods.
(L) **Teaching’’ means, for the purpose of Section |
of this Order, the profession of teaching under a certificate
from the Commission for Teaching Preparation and Licen-
sing or teaching in an accredited college or university.
(M) ‘‘Wages’’ means all amounts paid for labor per-
formed by employees of every description, whether the
amount is fixed or ascertained by the standard of time, task,
piece, commission basis or other method of calculation.
(N) ‘*Workday’’ means any consecutive 24 hours be-
ginning at the same time each calendar day.
(O) ‘‘Workweek’’ means any seven (7) consecutive
days, starting with the same calendar day each week.
‘*Workweek”’ is a fixed and regularly recurring period of
168 hours, seven (7) consecutive 24-hour periods.
3. Hours and Days of Work.
(A) Noemployee eighteen (18) years of age or over nor
any minor permitted to work as an adult as provided in
(C) (1) shall be employed more than eight (8) hours in any
one workday or more than forty (40) hours in any workweek
unless the employee receives one and one-half (
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