Petition for Writ of Certiorari — County Sanitation District No. 2 v. Los Angeles County Employees Ass'n, Local 660
Supreme Court brief1985
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No. i YOSEPH F. SPANIOL, up,
' CLERK
IN THE Ne
SUPREME COURT
OF THE UNITED STATES
October Term, 1985
COUNTY SANITATION DISTRICT NO, 2
OF LOS ANGELES COUNTY,
A PUBLIC AGENCY,
Petitioner,
VS.
LOS ANGELES COUNTY EMPLOYEES
ASSOCIATION, LOCAL 660,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO, ET AL.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA
MUSICK, PEELER & GARRETT
STEVEN D. WEINSTEIN*
STUART W. RUDNICK, P.C.
DOUGLAS R. HART
One Wilshire Boulevard
Los Angeles, California 90017
(213) 629-7600
Attorneys for Petitioner
COUNTY SANITATION DISTRICT
NO. 2 OF LOS ANGELES COUNTY
*Counsel of Record
Lawyer's Brief Service, Inc. / Legal Publishers / (213) 383-4457
—- [-—
QUESTION PRESENTED
Whether the California Supreme Court’s decision in
County Sanitation District No. 2 of Los Angeles County v.
Los Angeles County Employees’ Association, Local 660,
granting Sanitation District workers the right to strike is
repugnant and in conflict with the Federal Water Pollution
Control Act! and the Federal Resource Conservation and
Recovery Act of 1976.
! 33 U.S.C. §§ 1251-1376 (West Supp. 1977).
2 42 U.S.C. §§ 6901-6987 (West Supp. 1977).
=
INDEX
CPE IES Fee BED vcenecitnnicsvensnasennsstesnintatcianiesinnnne
TARR OR AUT TICE BI ccsenesccscinsepcatvectonsensanecnapianennens iv
OPINION AND JUDGMENT BELOW ........ eee 2
FUPTA REP le 5 ET inesnvavsansninisnsnapsinnepiabiaipunanetindiainaataaieicnin 2
STATUTORY PROVISIONS INVOLVED ...............0...44. 3
STA TENE OTT CO TURE Ce cesecstecscnsesiscnciensimsncivicsenciasesie 3
REASON FOR GRANTING THE PETITION
POR, WHRLEE COR CIR FUMIE ssssiccnsereescniscsnessnnsseoes 6
I. THE NOVEL AND UNPRECEDENTED
DECISION OF THE CALIFORNIA SU-
PREME COURT PRESENTS AN EX-
TREMELY IMPORTANT FEDERAL
QUESTION WHICH MUST BE RE-
SOE, VEEP BEE TE Pee GORE suiniccnitinesdniahatinasnniccccionss 6
A. THE COURT’S DECISION PRESENTS
A SUBSTANTIAL CONFLICT WITH
THE FEDERAL WATER POLLUTION
COREG E Fels CU ccxsntiiseensdeaniatenaaaseiniaieidaemas 7
B. THE COURT’S DECISION PRESENTS
A SUBSTANTIAL CONFLICT AND
POTENTIAL UNDERMINING' OF
THE FEDERAL RESOURCE CON-
SER VATION AND RECOVERY ACT
I CI GG seninninscssincainsenciianidepemaiealdonaiaaiamaasans
II
III
C. STATE ACTION MUST GIVE WAY
TO FEDERAL LEGISLATION
WHERE A VALID ACT OF CON-
GRESS FAIRLY INTERPRETED IS IN
CONFLICT WITH THE LAW OF THE
THE FEDERAL QUESTION WAS TIME-
LY RAISED BEFORE THE CALIFORNIA
SEE PEATE. scnxsevceceecestersnenvescencncccsanecesssennneces
I TTIITTT cticehccarithisnnsnnntnnninebansenssnnsannidannestannsnnnenes
— | *
TABLE QF AUTHORITIES
Page
Cases
Brinkerhoff-Faris Trust Co. v. Hill,
I I cian 13
Chambers v. Mississippi,
ne Se I MI vc rarhctetetncstseetisenciba seicthideiincrsieness 14
City of Burbank v. Lockheed Air Terminal Inc.,
a Rr ee 12
County Sanitation District No. 2 of Los Angeles
County v. Los Angeles County Employees’
Association, Local 660,
38 Cal.3d 564, 214 Cal.Rptr. 424, 699
Pe, Se IEEE sihaiiceisnsiedh hich raisons chadiibiaeltabdtdisicatmisananes 2
County Sanitation District No. 2 of Los Angeles
County v. Los Angeles County Employees’
Association Local 660,
147 Cal.App.3d 990, 195 Cal.Rptr. 567
(1983) (withdrawn from publication) ............... 2, 6
Gibbons v. Ogden,
ee et SD 0 CI sacisiticnentrenttersincccscenns 12
Glendale City Employees Ass’n v. City of Glendale,
15 Cal.3d 328, 124 Cal.Rptr. 513, 540
P.2d 609 (1975), cert. denied, 424 U.S. 943
REED: seblaliblhadiiiasieusiiahancclnspstieciicinnbidhciiinaibnninaaaens 4
Herndon v. Georgia,
EAR ARER Rrra renee RCO ON ORE “4
Jones v. Rath Packing Co.,
le or ee ee ee TREE EN I 12
Missouri v. Gehner,
BE CER BE CIID cincentnricstsseniserviensitincsnenenmnnnnenes 13
Nash v. Florida Industrial Commission,
SRD WR. Fae CIID wieenstetnicentevernennssirresemeveenses 12
New York ex. rel. Bryant v. Zimmerman,
BPD CED. GS CTI wecnicisncienressenicsitnncnassecssssorsesseinne 14
People v. City of Los Angeles,
83 Cal.App.2d 627, 189 P.2d 489 (1948) ........... 9
Street v. New York,
DOG CFG. SIG CIGD ccnwcseevrerescsnensevenrsrsnrseinenierersrsnees 14
State of California v. City and County of San
Francisco,
94 Cal.App.3d 522, 156 Cal.Rptr. 542
COG crestncenerisersnssintnenenriccsensssnssnsenenaeenavenseqsaasensneneionenns 9
United States v. Amoco Oil,
580 F.Supp. 1042, (D. Mo. 1984) ........::ccceseeeeeees 8
United States v. Ashland Oil and Transportation,
SOG BAd PSUF CGA Coe. TG IG) wvcevecesencsccccecssscveesss. 7
United States v. Bradshaw,
541 F.Supp. 884 (D. Md. 1982) ........cccceeeeeseeeeees 8
United States v. Frezzo Brothers,
602 F.2d 1123 (3d Cir. 1979), cert. denied,
ee Ee 8
United States v. Phelps Dodge Corp.,
391 F.Supp. 1181 (D. Ariz. 1975) ...cccccceeeseeees 8
United States v. Texas Pipeline,
Git PBR SOS CH Coe. WOT) cvsccccetssicsserscereenss g
Federal Statutes and Regulations
Federal Resource Conservation and Recovery Act
of 1976 (the “Recovery Act”),
Se Sirs Ge ID scesstncecasnmniciserseneninininntiinnion 10
Oe Stes Oe IE Setresnainriaieteintadiiettnncinictiitansaisesaniinain 10
Be Eis Wee Ne teteneeitenstceisicancittncesietiniheetnitsantns 11
ee ee te ED dhinsaissinssstisterpisisidniiniatnnsiatuaniieies 11
Se es ND Seta nntniniasaicesiensinhnerintianainnnnnnitaniioniitaihin 10
Federal Water Pollution Control Act,
33 U.S.C. §§ 1251-1376 (the “Act”) 0... 7
BD et CIEE - whnsnihcicinnsnciovssiisctebiiinaintticinatinitianin 7, 8
Se: Bees Te RIED ccercenseerteactuntentncittacsannaeiacaieaennenannniios 8
ES ae SN eR 8
United States Code
Se Tes TUITE wrttnerntstcernsnscesaseenaseetasceintenianticn 2
Code of Federal Regulations
40 C.F.R. §§ 241.100 - 241.212-3 oo. 11
SD Gan Fo OD | titniienrntnitnentsriarcirnsrrnieninsnenne 11
GD GP RR, GT Baek = BEIM ccceinerreesrscecessvenmascarenss 11
ee Se ee Se I -ialinnrcieniictaetisiatseuntsinitinidinanisatininiais 11
California Statutes
California Government Code §§ 3500-3511 (West
ERE RAST ae ws 4
California Health and Safety Code §§ 4700 et seg.
COPIES Sr GN I, CII vnnnstitnesinsccnsertiiseniccicnssinisnns 3
No.
IN THE
SUPREME COURT
OF THE UNITED STATES
October Term, 1985
COUNTY SANITATION DISTRICT NO. 2
OF LOS ANGELES COUNTY,
A PUBLIC AGENCY,
Petitioner,
vs.
LOS ANGELES COUNTY EMPLOYEES
ASSOCIATION, LOCAL 660,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO, ET AL.,”
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA
The Petitioner, County Sanitation District No. 2 of Los
Angeles County, respectfully prays that a writ of certiorari
issue to review the judgment and opinion of the Supreme
Court of the State of California entered in this proceeding
** The other Respondents are Victor N. Hochee, Harry Gluck, and
Jack Roberts.
on May 13, 1985. On June 27, 1985, the Supreme Court of
the State of California denied the timely Petition For
Rehearing filed by the Petitioner in this case.
OPINION AND JUDGMENT BELOW
The opinion of the California Supreme Coart (which
includes the judgment sought to be revieweuw Sy this
Petition), together with the concurring and dissenting
opinions, are reprinted as Appendix A. That decision is
reported as County Sanitation District No. 2 of Los Angeles
County v. Los Angeles County Employees’ Association,
Local 660, 38 Cal.3d 564, 214 Cal.Rptr. 424, 699 P.2d 835
(1985). The California Court of Appeal decision is reprinted
as Appendix B..That decision is reported as County
Sanitation District No. 2 of Los Angeles County v. Los
Angeles County Employees’ Association, Local 660, 147
Cal.App.3d 990, 195 Cal.Rptr 567 (1983) (withdrawn from
publication). The California Court of Appeal’s decision
affirmed the trial court’s finding as to liability and modified
the damage award. The unreported judgment and findings
of fact and conclusions of law of the trial court after trial
are reprinted as Appendix C.
JURISDICTION
The opinion of the California Supreme Court in
Sanitation District was filed on May 13, 1985. A timely
Petition for Rehearing was denied on June 27, 1985. This
Court’s jurisdiction is properly invoked under 28 U.S.C.
§ 1257(3).
STATUTORY PROVISIONS INVOLVED
The Federal Water Pollution Control Act, as amended,
and the Federal Resource Conservation and Recovery Act,
as amended, are reprinted in pertinent part as Appendices
D and E.
STATEMENT OF THE CASE
Petitioner is one of twenty-sever sanitation districts
within Los Angeles County. Each such district is a separate
and autonomous political subdivision of the State of
California, authorized by the California Health and Safety
Code. Cal. Health and Safety Code §§ 4700 et seq. (West
1970 and Supp. 1983). County Sanitation District No. 2 of
Los Angeles County is authorized by a joint powers
agreement to act on behalf of itself and the twenty-six other
districts in numerous matters, including personnel and
labor relations. (These twenty-seven sanitation districts are
hereinafter jointly referred to as “‘the District’’).
The District operates sewage treatment plants and
approximately eleven thousand miles of sewer trunk lines.
In 1976, the eleven sewage treatment plants processed
approximately four hundred fifty million gallons of raw
sewage each day. Most of these plants are upstream
“feeders” to the Joint Water Poilution Control Plant located
in Carson, California (hereinafter referred to as “JWPCP”).
The District also operates sanitary landfills for the disposal
of rubbish which in 1976 received approximately fifteen
thousand tons of refuse each day. In maintaining these
operations, the District served approximately four million
County residents.
The District’s labor relations are governed by the
Meyers-Milias-Brown Act,? and its employee relations
resolution, as authorized under the Act. Respondent Local
660 is a labor organization affiliated with the Service
Employees International Union, AFL-CIO, which has
represented the District’s blue collar employees since 1973.
The District and Local 660 have bargained concerning
the wages, hours and working conditions of the District’s
blue collar employees, under the Meyers-Milias-Brown Act,
since 1973. Each year these negotiations resulted in a
binding labor contract or Memorandum of Understanding
(“MOU”).4 See Glendale City Employees Ass’n v. City of
Glendale, 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609
(1975), cert. denied, 424 U.S. 943 (1976).
Local 660 has struck in support of its collective
bargaining demands on two occasions. In June 1974, Local
660 engaged in a five-day strike supported by virtually all
of the District’s blue collar employees. Local 660’s second
strike, the subject of this case, lasted from July 5 through
July 16, 1976.
The primary objective of both strikes was to shut down
the District’s facilities and to force the District to pump raw
sewage into waterways and the Pacific Ocean. The purpose
of this action was to place economic and political pressure
on the District to settle the strikes and to accede to the
Union’s demands. The Union attempted to accomplish this
purpose by withholding the services of its members. There
was also a concerted and sophisticated attempt to sabotage
critical equipment at the District’s facilities, including vital
3 Cal. Gov’t Code §§ 3500-3511 (West 1980 and Supp. 1983).
4 Prior to 1977, the MOUs were one year in duration.
equipment at the JWPCP.° As explained below, the
consequences of these actions, if successful, would have
been the discharge of raw sewage into waterways and the
ocean in direct violation of federal law.
On July 6, 1976, the District filed a complaint for
injunctive relief and damages based upon the involvement
of Local 660 and the other Respondents in the strike
against the District. On the same date the complaint was
filed, the District sought and obtained a temporary
restraining order prohibiting the strike. However, Local 660
ignored the order. As a result of this failure to obey the
order, Local 660 was adjudged guilty of contempt in
October 1976, and fined $1,500.
Thereafter, the District proceeded with the prosecution
of this action. On August 13, 1981, following a twelve-day
bench trial before the Honorable Charles H. Older,
judgment was entered in favor of the District in the amount
of $246,904, with interest thereon from July 18, 1976, and
costs in the amount of $874.65.
The Respondents appealed from this judgment. The
Court of Appeal, Second Appellat District® affirmed the
trial court’s finding of liability, declaring itself “bound by
the presently well-settled rules that deny public employees
the right to strike and which subject those who do engage in
5 The acts of sabotage discovered during the strike included: (1) the
bacteria in sewage digestion tanks that are used to produce methane gas,
the primary source of power for the JWPCP’s effluent pumps, were
overfed to cause a decrease in methane gas production, (2) a sewage
discharge line was blocked with a plywood disc, (3) the battery cables to
generators had been cut, and (4) debris was thrown into the sewage
system in an attempt to damage the mechanical rakes and screens which
prevent flotsam from entering the JWPCP.
© The Court of Appeal’s decision is reprinted as Appendix B.
such unlawful labor practices to tort actions for damages.”
County Sanitation District No. 2 of Los Angeles County v.
Los Angeles County Employees Ass’n Local 660, 147
Cal.App.3d 990, 997, 195 Cal.Rptr. 567, 540 (1983). The
Court of Appeal also affirmed the trial court’s award of
damages in all respects, with the exception of certain
overtime expenses.
The Respondents sought review of the Court of Appeal’s
decision by filing a Petition for Hearing in November, 1983.
In January, 1984, the California Supreme Court granted the
hearing, and on May 13, 1985 the Court issued its decision.’
The California Supreme Court reversed the Court of
Appeal and held, in a plurality opinion, that public sector
employees have the right to strike unless the strike creates a
“substantial and imminent threat” to the health or safety of
the public. On May 24, 1985, the District filed a Petition for
Rehearing before the California Supreme Court. On
June 27, 1985, the Court denied the District’s Petition.®
REASON FOR GRANTING THE
PETITION FOR WRIT OF CERTIORARI
THE NOVEL AND UNPRECEDENTED DE-
CISION OF THE CALIFORNIA SUPREME
COURT PRESENTS AN EXTREMELY IM-
PORTANT FEDERAL QUESTION WHICH
MUST BE RESOLVED BY THIS COURT
7 The California Supreme Court’s decision is reprinted as Appendix A.
8 The California Supreme Court’s denial of the District’s Petition for
Rehearing is reprinted as Appendix G.
—, in
A. THE COURT’S DECISION PRESENTS A
SUBSTANTIAL CONFLICT WITH THE
FEDERAL WATER POLLUTION CON-
TROL ACT.
The preeminence of protecting the nation’s environment,
especially the nation’s waterways, is demonstrated by the
pervasive nature of the Federal Water Pollution Control
Act (“‘Act”) and the regulations promulgated pursuant to
the Act. See United States vy. Ashland Oil and Transporta-
tion, 504 F.2d 1317 (6th Cir. 1974). The California Supreme
Court’s decision granting sanitation workers the right to
strike is in direct conflict with the declared goals and
policies of the Act,? as well as the enforcement scheme
embodied in the Act. Under the California Supreme Court’s
decision, strikes by sanitation workers are not unlawful
unless they pose a “substantial and imminent” threat to the
health or safety of the public. As a resuit, a California trial
court must proceed on a case-by-case basis to determine the
legality of a strike by sanitation workers. If the trial court
determines that the strike does not meet the new standard,
9 Section 1251 of the Act specifically declares:
1) [I]t is the national goal that the discharge of pollutants
into the navigable waters be eliminated by 1985; 2) it is the
national goal that wherever attainable, an interim goal of
water quality which provides for the protection and
propagation of fish, shell fish, and wild life and provides for
recreation in and on the water be achieved by July 1, 1983;
3) it is the national policy that the discharge of toxic
pollutants in toxic amounts be prohibited; ... 5) it is the
national policy that area wide waste treatment management
planning processes be developed and implemented to assure
adequate control of sources of pollutants in each State... .
33 U.S.C.§ 1251(a) (emphasis added).
it may not enjoin the strike even though, contrary to federal
law, the strike may cause the District to discharge
pollutants into waterways and the Pacific Ocean.
The goal of the Act is to eliminate the discharge of
pollutants into the nation’s waterways and oceans. 33
U.S.C. § 1251(a). To accomplish this goal, the Act prohibits
the discharge of pollutants into waterways and establishes
strict liability and substantial civil and criminal penalties
for violations.!° 33 U.S.C. §§ 1319, 1321. See also United
State v. Texas Pipeline, 611 F.2d 345 (10th Cir. 1979);
United States v. Amoco Oil, 580 F.Supp. 1042 (D. Mo.
1984); United States v. Bradshaw, 541 F.Supp. 884 (D. Md.
1982). However, a strike by sanitation workers is designed
to force the District to cease operations and pump raw
sewage into the waterways and Pacific Ocean.'! Therefore,
a strike, which is legalized by the California Supreme
Court’s decision, may force the District to violate the
federai Act, and subject the District to substantial civil
and/or criminal penalties. See United States v. Phelps
Dodge Corp. 391 F.Supp. 1181 (D. Ariz. 1975)
(Administrator must act in case of any violations, but has
alternative methods of acting, i.e., either by criminal or civil
proceedings). See also United States v. Frezzo Brothers, 602
'0 The Act directs the Administrator of the Environmental Protection
Agency (“EPA”), the agency charged with enforcing the Act, to bring
suit in United States District Court for any violations of the Act. See
United States v. Phelps Dodge Corp., 391 F.Supp. 1181 (D. Ariz. 1975).
See also United States v. Frezzo Brothers, 602 F.2d 1123 (3d Cir.
1979), cert. denied, 444 U.S. 1074 (1979).
'l As previously discussed, the primary purpose of a strike by
sanitation workers, as evidenced by the attempted sabotage during the
1976 strike, would be to close down the District’s sewage treatment
facilities and cause raw, untreated sewage to flow into the nation’s
waterways, estuaries, and the Pacific Ocean.
F.2d 1123 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1979).
Furthermore, because a trial court may find that the
discharge of pollutants does not pose a “substantial and
imminent” threat to the health or safety of the public and
refuse to enjoin the strike, the District may be unable to
stop the discharge of pollutants.'? As a result, the District
will be forced to violate the federal Act and be subjected to
substantial civil and/or criminal liability by reason of
conduct that the California Supreme Court has legalized.
'2 The horrors which inadequate sewage treatment can inflict upon a
community were amply chronicled in People v. City of Los Angeles, 83
Cal.App.2d 627, 631-632, 189 P.2d 489 (1948):
A large portion of the sewage was not screened and some of
the screen slots were larger than authorized, and frequently
raw sewage was bypassed around the screen and discharged
either into the submarine tube or directly on the beach.
Garbage, fecal matter, solid matter and oily sludge,
recognizable as of sewage origin, was visible on all the
beaches of Santa Monica Bay from State Park Beach located
at the mouth of Santa Monica Canyon south to Malaga
Cove. The quality of water along the beach was not safe and
suitable for bathing purposes as a result of such discharge
and the bacterial count of escherichia coli had exceeded ten
per cubic centimeter in an area extending along the beach for
a distance of approximately ten miles from Brooks Avenue
north of the Venice Pier in Los Angeles to !4th Street, north
of the Hermosa Beach Pier in Hermosa Beach. ... There
was an Objectionable odor condition in the waters and along
the beach used by the public. The operation of the treatment
works and the disposal of screenings had been conducted in
such a manner that it was a menace to public health and had
created an offensive odor nuisance.
See also State of California v. City and County of San Francisco, 94
Cal.App.3d 522, 156 Cal.Rptr. 542 (1979) (graphic illustration of the
effects of pumping raw sewage into the San Francisco Bay).
—
In conclusion, the California Supreme Court’s decision
establishes a new standard that is in direct contravention of
the goals, objectives, and standards embodied in federal law.
B. THE COURT’S DECISION PRESENTS A
SUBSTANTIAL CONFLICT AND PO-
TENTIAL UNDERMINING OF THE
FEDERAL RESOURCE CONSERVA-
TION AND RECOVERY ACT OF 1976.
The Federal Resource Conservation and Recovery Act
of 1976 (“Recovery Act”), and the regulations promulgated
pursuant to the Recovery Act establish a comprehensive
regulatory scheme for the disposal of solid wastes. One of
the declared objectives of the legislation is to “[prohibit]
future open dumping on the land and [to require] the
conversion of existing open dumps to facilities which do not
pose a danger to the environment or to health.” 42 U.S.C.
§ 6902 (emphasis added). As explained below, the
California Supreme Court’s decision is in direct contraven-
tion of that objective and other specific provisions of the
Act and regulations.
Section 6944 of the Recovery Act charged the Adminis-
trator of the EPA, the agency responsible for enforcing the
Recovery Act, to develop regulations containing criteria for
determining whether disposal facilities should be classified
as “sanitary landfills” or ““open dumps” for purposes of the
Recovery Act.
Pursuant to Section 6944, the Administrator developed
comprehensive regulations detailing the recommended
procedures for the disposal of “municipal solid waste.” See
ied am ml oan
—)
40 C.F.R. §§ 241.100 - 241.212-3.'3 These regulations
delineate the “minimum levels of performance required of
any solid waste land disposal site operation.” 40 C.F.R.
§ 241.100(b). Part 257 of the regulations establishes criteria
for the classification of solid waste disposal facilities and
practices. See, e.g., 40 C.F.R. § 257.3-8 regarding limita-
tions on the concentration of explosive gases. If these
regulations are not adhered to, the site will not be classified
as a “sanitary landfill” for purposes of the Recovery Act.
Rather, the site will be considered an ‘‘open dump” and in
violation of the regulations. 40 C.F.R. §§ 257.1 - 257.4.'4
Furthermore, failure to adhere to the regulations could lead
to a violation of Section 6943 of the Recovery Act.!5
Because the purpose of a strike by sanitation workers
would be to curtail operations at the sanitary landfills, such
disruption may cause the District to operate the landfills in
a manner that fails to comply with the EPA’s regulations.
This potential noncompliance could cause the landfills to be
considered open dumps which would be in direct violation
of the purposes and objectives of the Recovery Act. As a
result, the California Supreme Court’s legalization of
strikes by sanitation workers is in direct conflict with this
vital federal law.
'3 These regulations are reprinted as Appendix H.
'4 These regulations are reprinted as Appendix H.
'5 The Recovery Act provides for the establishment of state plans for
the disposal of solid wastes. Section 6943 establishes the minimum
requirements for these state plans. Section 6943 provides that such state
plans must prohibit the establishment of new open dumps and requires
that solid wastes be disposed of in sanitary landfills or in an otherwise
environmentally sound manner. 42 U.S.C. § 6943(2).
=| =
C. STATE ACTION MUST GIVE WAY TO
FEDERAL LEGISLATION WHERE A
VALID ACT OF CONGRESS FAIRLY
INTERPRETED IS IN CONFLICT WITH
THE LAW OF THE STATE,
This Court has long recognized that state laws that
“interfere with, or are contrary to the law of Congress”
must yield to the federal legislation. See Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1 (1824). Indeed, the state and federal
laws need not be contradictory on their face for the federal
laws to supersede. The state law may be struck down if it is
in “actual conflict” with the objectives that underlie the
federal enactments. See Nash v. Florida Industrial
Commission, 389 U.S. 235 (1967).
Furthermore, state action has been held preempted as
interfering with federal legislation if it encourages conduct
whose absence would aid in the effectuation of the federal
scheme as interpreted and applied. See Jones v. Rath
Packing Co., 430 U.S. 519 (1977); City of Burbank vy.
Lockheed Air Terminal Inc., 411 U.S. 624 (1973).
It is obvious that the California Supreme Court adopted
its new standard without regard to any of the public
agencies which are obligated to comply with federal laws
that are inconsistent with the state court’s standard. When
the principles of federal preemption are applied to this case,
this Court can only conclude that the California Supreme
Court’s decision is in conflict with federal law. As
previously discussed, the Federal Water Pollution Control
Act establishes a pervasive regulatory scheme to prevent the
discharge of pollutants into the nation’s waterways. To
effectuate this purpose, the Administrator has promulgated
detailed regulations and has actively prosecuted violators of
_
the Act. However, the California Supreme Court’s decision
directly conflicts with the purpose of the federal legislation
to eliminate discharges of pollutants into the nation’s
waterways because it encourages activity, namely strikes by
sanitation workers, designed to cause the discharge of
pollutants into the state’s waterways. The California
Supreme Court’s decision is also in contravention of the
purposes of the federal Recovery Act and could result in
solid waste disposal which is contrary to the EPA’s
regulations. The state court’s decision thereby encourages
conduct, strikes by sanitation workers, whose absence
would aid in the effectuation of the federal pollution laws
and regulations.
II
THE FEDERAL QUESTION WAS TIMELY
RAISED BEFORE THE CALIFORNIA
SUPREME COURT. ;
The federal question in this case was timely raised in the
District’s Petition for Rehearing.'® It is well established that
the federal question may be raised for the first time in the
Petition for Rehearing when the federal question is created
by an unexpected decision of the state court, giving the
litigant no prior opportunity to anticipate or assert the
particular federal question. See Brinkerhoff-Faris Trust
Co. v. Hill, 281 U.S. 673, 677-78 (1930). See also Missouri v.
Gehner, 281 U.S. 313 (1929).
In this case, the California Supreme Court reversed the
state’s common law and, in an unprecedented decision,
'6 The Petition for Rehearing is reprinted as Appendix F.
aS en
afforded public erployees the right to strike. The
California Supreme Court also articulated a standard to be
used to determine the legality of public employee strikes.
The District had absolutely no forewarning that the
Supreme Court would reverse the common law and
articulate a new standard for determining the legality of
public sector strikes. The state court’s decision was
unprecedented in that no other states had expressly given
public sector employees the right to sirike by judicial
decree.
As a result, the federal question was timely raised in the
state court below and this Court has jurisdiction to review
that decision. The District could not have anticipated in
1976, that the state Supreme Court would reverse the law
and articulate a new standard approximately nine years
later. Indeed, the District should not have been expected to
anticipate the federal question and raise it at that time. A
contrary conclusion would result in a cluttering of federal
issues at the trial level that “may” be decided in the future
and that “may” give rise to a federal question. See Herndon
v. Georgia, 295 U.S. 441 (1935) (Cardozo dissent).
Finally, the California Supreme Court’s failure to address
the federal question in its denial of the Petition for
Rehearing does not prevent this Court from granting
certiorari. It is well-established that a state court’s refusal
or failure to articulate its denial of the federal claims is just
as reviewable as an express decision on point. See Chambers
v. Mississippi, 410 U.S. 284, 290 n.3 (1973); Street v. New
York, 394 U.S. 576, 581-85 (1969); New York ex. rel. Bryant
v. Zimmerman, 278 U.S. 63, 67 (1928).
ee ee EP Pe
Ill,
CONCLUSION
For the reasons stated herein, Petitioner respectfully
requests this Court to grant its Petition For a Writ of
Certiorari to the Supreme Court of the State of California.
Respectfully submitted,
MUSICK, PEELER & GARRETT
Steven D. Weinstein*
Stuart W. Rudnick, P.C.
Douglas R. Hart
Attorneys for County Sanitation
wWistrict No. 2 of Los Angeles County
* Counsel of Record
APPENDIX A
[L.A. No. 31850, May 13, 1985.]
COUNTY SANITATION DISTRICT NO. 2 OF
LOS ANGELES COUNTY, Plaintiff and Re-
spondent, v. LOS ANGELES COUNTY EM-
PLOYEES’ ASSOCIATION, LOCAL 660,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO et al., Defendants and
Appellants.
Summary
The trial court, in a tort action, awarded a county
sanitation district damages and prejudgment interest
against a county employees’ union in connection with the
union’s involvement in a labor strike against the district.
The trial court found the strike to be unlawful and violation
of the public policy of the state. (Superior Court of Los
Angeles County, No. C 166219, Charles H. Older, Judge.)
The Supreme Court reversed, holding the common law
prohibition against public sector strikes should not be
recognized, that strikes by public sector employees as such
are neither illegal nor tortious under California common
law, and that it is not unlawful for public employees to
engage in a concerted work stoppage for the purpose of
improving their wages or conditions of empioyment, unless
it has been determined that the work stoppage poses an
imminent threat to public health or safety. It held that the
right of public employees to strike is not unlimited, and that
the Legislature could conclude that certain categories of
public empioyees perform such essential services that a
strike would invariably result in imminent danger to the
public health and safety, and must therefore be prohibited.
It held the courts must proceed on a case-by-case basis.
(Opinion by Broussard, J., with Mosk and Grodin, JJ.,
concurring. Separate concurring opinion by Kaus, J., with
Reynoso, J., concurring. Separate concurring opinion by
Bird, CJ. Separate concurring opinion by Grodin, J.
Separate dissenting opinion by Lucas, J.)
HEADNOTES
Classified to California Digest of Official Report, 3d Series
(la, 1b) Labor § 47—Labor Disputes—Strikes Against
Public Entity—Fire Fighters—With the exception of fire
fighters (Lab. Code, § 1962), no statutory prohitition
against strikes by public employees exists in the state.
(2a, 2b) Labor § 47—Labor Disputes—Strikes Against
Public Entity—The fact that Gov. Code, § 3509,
specifically precluding the application to public employees
of Lab. Code, § 923, construed to protect the right of
private sector employees to strike, is not to be viewed as a
general prohibition on the right of public employees to
strike.
(3a-3c) Labor § 47—Labor Disputes—Strikes Against
Public Entity — Common Law _ Prohibition —
Rationale—The common law prohibition against public
employee strikes is not supported by the four policy
rationales and justifications advanced in its support, namely
that a strike by public employees is tantamount to a denial
of governmental authority or sovereignty; the terms of
public employment are not subject to bilateral collective
bargaining, as in the private sector, since they are set by the
legislative body through unilateral lawmaking; that
granting public employees the right to strike would afford
them excessive bargaining leverage, since legislative bodies
are responsible for public employment decisionmaking, and
would result in distortion of the political process and an
improper delegation of legislative authority; and that public
employees provide the central public services which, if
interrupted by strikes, would threaten the public welfare.
(4a, 4b) Courts § 32—Decisions and Orders—Power and
Duty of Courts—Rejection of Common’ Law
Doctrine—Public Employee Strikes.—The judiciary, and
not only the Legislature, can reject the common law
doctrine prohibiting public employee strikes. Legislative
silence is not the equivalent of positive legislation and does
not preclude judicial reevaluation of common law doctrine.
Courts may modify, or even zbolish the common law rule
when reason or equity demand it, or when its underlying
principles are no longer justifiable in light of modern
society.
(Sa, 5b) Courts § 32—Decisions and Orders—Power and
Duty of Courts—Legislative Inaction—When the law
governing a subject has been shaped and guided by judicial
decision, legislative inaction does not necessarily constitute
a tacit endorsement of the precise stage in the evolution of
the law extant at the time the Legislature did nothing; it
may signify that the Legislature is willing to entrust the
further evolvtion of legal doctrine to judicial development.
(6a-6c) Labor § 47—Labor Disputes—-Strikes Against
Public Entity—Common Law Prohibition—There is no
cormmon law prohibition against public sector strikes, such
strikes are not tortious under California common law, and it
is not unlawful for public employees to engage in a
concerted work stoppage for the purpose of improving their
wages or conditions of employment, unless it has been
determined that the work stoppage poses an imminent
threat to public health or safety. Accordingly, a county
Sanitation district was not entitled to damages and
prejudgment interest awarded against a public employees
union predicated on the premise its strike against the
district was illegal under the common law prohibition.
[Labor law: Right of public employees to strike or engage
in work stoppage, note, 37 A.L.R.3d 1147; see also
Cal.Jur.3d, Labor, § 191; Am.Jur.2d, Labor and Labor
Relations, § 1734.]
(7a, 7b) Labor § 13—Labor Unions—Fundamental Right
of Workers.—The right to form and be represented by
unions is a fundamental right of American workers that has
been extended to public employees through constitutional
adjudication as well as by statute.
(8a, 8b) Labor § 14—Labor Unions—Nature and
Purpose—Economic Pressure——Workmen may lawfully
combine to exert various forms of economic pressure on an
employer, provided the object sought to be accomplished
thereby has a reasonable relation to the betterment of labor
conditions, and they act peaceably and honestly. This right
is guaranteed by the federal Constitution as an incident of
freedom of speech, press and assemblage, and it is not
dependent on the existence of a labor controversy between
the employer and his employee.
(9a, 9b) Constitutional Law § 61—First Amendment and
Other Fundamental Rights of Citizens—Governmental
Regulation and Restriction of Fundamental Rights —
Necessity for Specificity—Freedom of Association.— Even
where a compelling state purpose is present, restrictions on
the freedom of association protected by U.S. Const., Ist
Amend., and made applicable to the stats by U.S. Const.,
14th Amend., must be drawn with narrow specificity. First
Amendment freedoms are delicate and vulnerable and must
be protected wherever possible. When government seeks to
limit those freedoms on the basis of legitimate and
substantial governmental purposes those purposes cannot be
pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved.
Precision of regulation is required so that the exercise of
precious freedoms will not be unduly curtailed except to the
extent necessitated by the legitimate governmental
objective.
COUNSEL
Geffne. & Satzman, Leo Geffner and Jeffrey Paule for
Defendants and Appellants.
Charles P. Scully, Donald C. Carroll, Charles P. Scully II,
Jennifer Friesen, Fred Okrand, Glenn Rothner, Anthony R.
Segall, Reich, Adell & Crost, Victor J. Van Bourg, Van
Bourg, Allen, Weinberg & Roger, A. Eugene Hugvenun,
Jr., Michael R. White, Raymond L. Hansen, Charles R.
Gustafson, Henry R. Fenton and Levy, Ansell & Goldman
as Amici Curiae on behalf of Defendants and Appellants.
Musick, Peeler & Garrett, Stuart W. Rudnick, Steven D.
Weinstein and Neil O. Andrus for Plaintiff and
Respondent.
George Agnost, City Attorney (San Francisco), Philip 5S.
Ward and Steven A. Diaz, Deputy City Attorneys, H. Jess
Senecal, Jack T. Swafford, Burris, Lagerlof, Swift &
Senecal, Robert E. Murphy, Robin Leslie Stewart, Kronick,
Moskovitz, Tiedemann & Girard, Ronald A. Zumbrun and
Anthony T. Caso as Amici Curiae on behalf of Plaintiff
and Respondent.
OPINION
BROUSSARD, J.—Defendants appeal from a judgment
awarding plaintiff sanitation district damages and prejudg-
ment interest in connection with defendant union’s
involvement in a labor strike against plaintiff. The case
squarely presents issues of great import to public sector
labor-management relations, namely whether all strikes by
public employees are illegal and, if so, whether the striking
union is liable in tort for compensatory damages. After
careful review of a long line of case law and policy
arguments, we conclude that the common law prohibition
against all public employee strikes is no longer supportable.
Therefore, the judgment for the plaintiff finding the strike
to be unlawful and awarding damages, interest and costs
must be reversed.
I. Statement of the Case.
Defendant union (Local 660 or the union) is a labor
organization affiliated with the Service Employees Interna-
tional Union, AFL-CIO, and has been the certified
bargaining representative of the blue collar employees of
the Los Angeles Sanitation District since 1973. Plaintiff is
one of 27 sanitation districts within Los Angeles County!
and is charged with providing, operating and maintaining
1 Each such district is a separate and autonomous political subdivision
of the State of California, authorized by Health and Safety Code
section 4700 et seq. County Sanitation District No. 2 of Los Angeles
County is authorized by a joint powers agreement to act on behalf of
itself and the 26 other districts in numerous matters, including personnel
and labor relations. (These 27 sanitation districts are hereinafter jointly
referred to as the District.)
sewage transport and treatment facilities and landfill
disposal sites throughout the county.? The District employs
some 500 workers who are directly or indirectly responsiole
for the operation and maintenance of its facilities and who
are members of, or represented by, Local 660. Since 1973,
the District and Local 660 have bargained concerning
wages, hours and working conditions pursuant to the
Meyers-Milias-Brown Act (MMBA). (Gov. Code §§ 3500-
3511.) Each year these negotiations have resulted in a
binding labor contract or memorandum of understanding
(MOU). (See Glendale City Employees’ Assn. v. City of
Glendale (1975) 15 Cal.3d 328[124 Cal.Rptr. 513, 540 P.2d
609].)
On July 5, 1976, approximatley 75 percent of the
District’s employees went out on strike after negotiations
between the District and the union for a new wage and
benefit agreement reached an impasse and failed to produce
a new MOU. The District promptly filed a complaint for
injunctive relief and damages and was granted a temporary
restraining order. The strike continued for approximately
11 days, during which time the District was able to
maintain its facilities and operations through the efforts of
management personnel and certain union members who
chose not to strike.? On July 16, the employees voted to
2 in 1976, the facilities operated by the District included 6 sanitary
landfills which together received about 15,000 tons of solid waste each
day, 11 treatment plants processing 450 million gallons of raw sewage
per day, 4 maintenance yards, and 46 pumping stations. In maintaining
these operations, the District served approximately 4 million residents of
the county.
3 The union maintains that the strike settled on July 12, while the trial
court’s findings agreed with the District’s contention that the strike
settled on July 16. In addition, the District maintained that the strike
_ ae
accept a tentative agreement on a new MOU, the terms of
which were identical to the District’s offer prior to the
strike.
The District then proceeded with the instant action for
tort damages. The trial court found the strike to be
unlawful and in violation of the public policy of the State of
California and thus awarded the District $246,904 in
compensatory damages,’ prejudgment interest in the
amount of $87,615.22 and costs of $874.65.
II. The Traditional Prohibition Against Public
Employee Strikes.
Common law decisions in other jurisdictions at one time
held that no employee, whether public or private, had a
right to strike in concert with fellow workers. In fact, such
collective action was generally viewed as a conspiracy and
held subject to both civil and criminal sanctions.> Over the
course of the 20th century, however, courts and legislatures
gradually acted to change these laws as they applied to
private sector employees; today, the right to strike is
was not entirely peaceful and had alleged various acts of vandalism were
committed by the strikers. The union denied these charges in full.
4 This figure represents the following strike-related damages: Wages
and FICA payments: $304,227; earned compensatory time off valued at
$16,040; miscellaneous security, equipment and meal expenses: $55,080;
health care benefits paid to striking employees: $6,000; less a $134,443
set off in wages, FICA and retirement benefits that the District did not
have to pay out on behalf of striking workers.
5 See Commonwealth v. Pullis (Mayor’s Ct. Phil. 91806) reported in 3
Commons, Documentary History of American Industrial Society (1910)
p. 59; Walker v. Cronin (1871) 107 Mass. 555; Vegelahn v. Guntner
(1896) 1 67 Mass. 92 [44 N.E. 1077]; Loewe v. Lawlor (1908) 208 US.
274 [52 L.Ed.488, 28 S.Ct. 301].
generally accepted as indispensable to the system of
collective bargaining and negotiation, which characterizes
labor-management relations in the private sector.®
By contrast, American law continues to regard public
sector strikes in a substantially different manner. A strike
by employees of the United States government may still be
treated as a crime,’ and strikes by state and local employees
have been explicitly allowed by courts or statute in only 10
states.8
© Congress gradually, through a series of legislative enactments, not
only granted private sector employees a right to strike and to engage in
other concerted activities, but also deprived employers of their
traditional remedies of injunction and damage suits. (See 38 Stat. 730
(1914) [Clayton Antitrust Act], codified as amended at 15 U.S.C. §§ 15,
17, 26 (1970), 29 U.S.C. § 52 (1970); 47 Stat. 70 (1930) [Norris-La
Guardia Act], codified at 29 U.S.C. §§ 101-115 (1970); 47 Stat., pt. II
577 (1926) [Railway Labor Act], codified as amended at 45 US.C.
§§ 151-188 (1970); 49 Stat. 449 (1935) [Wagner Act], codified as
amended at 29 U.S.C. §§ 141-197 (1970).
7 Employees of the federal government are statutorily prohibited from
striking under 5 United States Code section 7311 (1976), which prohibits
an individual from holding a federal position if he “‘participates in a
strike, or asserts the right to strike against the Government of the United
Siates ....” In United Federation of Postal Clerks v. Blount (D.D.C.
1971) 325 F.Supp.879, affd., 404 U.S. 802 [30 L.Ed.2d 38, 92 S.Ct. 80]
(1971), the court upheld the constitutionality of the strike prohibitions,
yet declared unconstitutional the “‘wording insofar as it inhibits the
assertion of the right to strike . . . .” (Id. at p. 881 [italics in original].) In
1947, Congress originally denied federal employees the right to strike in
section 305 of the Labor Management Relations Act (Taft-Hartley Act),
chapter 120, 61 Statutes at Large 136 (1947). This act was repealed and
ultimately replaced by section 7311.
8 Those 10 states are Alaska, Hawaii, Idaho, Illinois, Minnesota,
Montana, Oregon, Pennsylvania, Vermont, and Wisconsin. (See further
discussion below.) Interestingly, the United States is virtually alone
among Western industrial nations in upholding a general prohibition of
—_— =
Contrary to the assertions of the plaintiff as well as
various holdings of the Court of Appeal,’ this court has
repeatedly stated that the legality of strikes by public
employees in California has remained an open question. In
Los Angeles Met. Transit Authority v. Brotherhood of
Railroad Trainmen (1960) 54 Cal.2d 684, 687-688 [8
Cal.Rptr. 1, 355 P.2d 905], this court stated in dictum that
“fin the absence of legislative authorization public
employees in general do not have the right to strike. . .” but
proceeded to hold that a statute affording public transit
workers the right “ ‘to engage in other concerted activities
for the purpose of collectively bargaining or other mutual
aid or protection’” granted these employees a right to
strike. However, in our very next opinion on the issue, Jn re
Berry (1968) 68 Cal.2d 137 [65 Cal.Rptr. 273, 436 P.2d
273], we invalidated an injunction against striking public
employees as unconstitutionally overbroad, and expressly
reserved opinion on “the question whether strikes by public
employees can be lawfully enjoined.” (Jd, p. 151.)
public employee strikes. Most European countries have permitted them,
with certain limitations, for quite some time as has Canada. See, e.g.,
Anderson, Strikes and Impasse Resolution in Public Employment
(1969) 67 Mich.L.Rev. 943, 961-964.
9 See, e.g., Stationary Engineers v. San Juan Water Dist. (1979) 90
Cal.App.3d 796, 801[153 Cal.Rptr. 666]; Pasadena Unified Sch. Dist. v.
Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100 [140
Cal.Rptr. 41]; Service Employees’ International Union, Local No. 22 v.
Roseville Community Hosp. (1972) 24 Cal.App.3d 400, 408 [101
Cal.Rptr. 69]; Trustees of Cal. State Colleges v. Local 1352, S.F. State
etc. Teachers (1970) 13 Cal.App.3d 863, 867 [92 Cal.Rptr. 134]; City of
San Diego v. American Federation of State etc. Employees (1970) 8
Cal.App.3d 308, 310 [87 Cal.Rptr. 258]; Almond v. County of
Sacramento (1969) 276 Cal. App.2d 32, 35£80 Cal.Rptr. 518}.
a
In our next opportunity to examine public employee
strikes, City and County of San Francisco v. Cooper (1975)
13 Cal.3d 898 [120 Cal.Rptr. 707, 534 P.2d 403], which
involved a suit challenging the validity of a strike settlement
agreement enacted by the city, we held only that such
settlement agreements are valid. After noting the Court of
Appeal holdings that public employee strikes are illegal and
the employees’ counterargument that such strikes are
impliedly authorized by statute, our unanimous opinion
declared that we had no occasion to resolve that
controversy in that action. (Jd, p. 912.)
In a similar vein, this court has carefully and explicitly
reserved judgment on the issue of the legality of public
employee strikes on at least three other occasions in recent
years.!° Indeed, our reluctance to address the issue head-on
has elicited critical commentary from both dissenting and
concurring opinions, which have urged us to resolve the
question once and for all.!! While we had ample reason for
deciding the aforementioned cases without determining the
broader question of the right of public employees to strike,
the instant case presents us with the proper circumstances
for direct consideration of this fundamental issue.
10 San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1
[154 Cal.Rptr. 893, 593 P.2d 838]; El Rancho Unified School Dist. v.
National Education Assn. (1983) 33 Cal.3d 946[192 Cal.Rptr. 123, 663
P.2d 893]; and International Brotherhood of Electrical Workers vy.
City of Gridley (1983) 34 Cal.3d 191[193 Cal.Rptr. 518, 666 P.2d 960].
11 See, e.g., dissenting opinion of Richardson, J., in San Diego
Teachers Assn. v. Superior Court, supra, 24 Cal.3d 1 and concurring
opinion of Richardson, J., in El Rancho Unified School Dist. v.
National Education Assn., supra, 33 Cal.3d at page 962; where he stated
that “[tJhis court should no longer continue its hesitant, tentative ritual
dance around the perimeter of this central legal principle. . . .”
—
Before commencing our discussion, however, we must
note, that the Legislature has also chosen to reserve
judgment on the general legality of strikes in the public
sector. As Justice Grodin observed in his concurring
opinion in El Rancho Unified School Dist. v. National
Education Assn., supra, 33 Cal.3d 946, 964, “the Legislature
itself has steadfastly refrained from providing clearcut
guidance.”
(la) With the exception of firefighters (Lab. Code,
§ 1962), no statutory prohibition against strikes by public
employees in this state exists.'* The MMBA, the statute
under which the present controversy arose, does not
directly address the question of strikes.
The MMBA sets forth the rights of municipal and county
employees in California.'? (Gov. Code §§ 3500-3511.) The
'2 For just one example, the Winton Act (former Ed. Code § 13080 et
seq.), which governed the relationship between local school boards and
teachers’ unions, neither affirmed nor rejected the teachers’ right to
strike. In 1975 the Legislature repealed the Winton Act and added new
provisions to the Government Code to establish an Education
Employment Relations Board (see Gov. Code, § 3540 et seq.); the new
enactment also does not prohibit strikes by teachers. It also bears
mention that the California Assembly Advisory Council on Public
Employee Relations in its final report of March 15, 1973, concluded
that, “[s]ubject only to [certain specified] restrictions and limitations . . .
public employees should have the right to strike” (p. 24) and proposed a
statute to carry out these goals (appen. A). However, this proposed
statute was never enacted into law, perhaps further reflecting a
legisiative decision to leave the ultimate determination of this thorny
issue to the judiciary.
13 The MMBA revised its predecessor, the Brown Act, in 1968. The
MMBA amendments, however, apply only to local government
employees because the MMBA deleted referen.s to the “State of
California” and explicitly defined “public employee” as one employed
by any political subdivision of the state. (See Gov. Code, § 3501.)
MMBA protects the right of such employees “to form, join,
and participate in the activities of employee organizations
... for the purpose of representation on all matters of
employer-employee relations.” It also requires public
employers to “meet and confer” in good faith with
employee representatives on all issues within the scope of
representation. As explained in its preamble, one of the
MMBA’s main purposes is to improve communications
between public employees and their employers by providing
a reasonable method for resolving disputes. A further stated
purpose is to promote improved personnel relations by
“providing a uniform basis for recognizing the right of
public employees to join organizations of their own
choice.'4
Presently, state employees are governed by the State Employer-
Employee Relations Act (Gov. Code, §§ 3512-3524).
Additional groups of employees were excepted from coverage under
the Brown Act by previous legislation. These employees are
consequently not covered by the MMBA. (See Pub. Util. Code,
§§ 25051-25052, added by Stats. 1955, ch. 1036, § 2 at pp. 1960-1961
[governing bargaining between employees of the Alameda-Contra Costa
Transit District and their employers]; Pub. Util. Code, Appen. 1§ 3.6(b)-
(g) [governing bargaining in the Los Angeles Metropolitan Transit
Authority]; Ed. Code, §§ 13080-13089 [governing educational
employees].)
For a detailed discussion of the scope and purposes of the MMBA, see
Grodin, Public Employees Bargaining in California: The Meyers-
Milias-Brown Act in the Courts (1972) 23 Hastings LJ. 719; Note,
Collective Bargaining Under the Meyers-Milias-Brown Act—Should
Local Employees fiave tie Right to Strike (1984) 35 Hastings LJ. 523.
4 However, the MMBA contains no clear mechanism for resolving
disputes. It merely provides that if the parties fail to reach an agreement,
they may agree to appoint a mediator or use other impasse resolution
procedures agreed upon by the parties. Additionally, the MMBA does
not authorize the establishment of an administrative agency to resolve
a
On its face, the MMBA neither denies nor grants local
employees the right to strike. This omission is noteworthy
since the Legislature has not hesitated to expressly prohibit
strikes for certain classes of public employees. For example,
the above-noted prohibition against strikes by firefighters
was enacted nine years before the passage of the MMBA
and remains in effect today. Moreover, the MMBA includes
firefighters within its provisions. Thus, the absence of any
such limitation on other public employees covered by the
MMBA at the very least implies a lack of legislative intent
to use the MMBA to enact a general strike prohibition.!>
(2a) Plaintiffs have suggested that section 3509 of the
MMBA must be construed as a general prohibition on the
right to strike because it specifically precludes the
controversies arising under its provisions. In contrast, statutes governing
other public employees in California authorize the Public Employee
Relations Board (PERB) to resolve disputes and enforce the provisions
of the legislation. (See Gov. Code, § 3541.3 (setting the powers and
duties of the PERB under the Educational Employment Relations Act
(EERA)); and Gov. Code, § 3513, subd. (g) [making the powers and
duties of the PERB under the EERA applicable to the State Employees
Relations Act].)
'5 Apparently this decision was the result of political compromise
and/or a desire that the courts would take the difficult first step of
unambiguously indicating whether public employees generally have the
right to strike. As one noted commentator explains, ““The entire subject
of strikes and impasse resolution procedures is avoided, except for the
declaration that the parties may elect to engage a mediator. What
emerges is a rather general legislative blessing for collective bargaining at
the local governmental level without clear delineation of policy or means
for its implementation. The courts have, on the whole, done an
admirable job of exegesis, but their decisions cannot help but reflect the
underlying weakness of the text.” (Grodin, op. cit. supra, 23 Hastings
LJ. at p. 761.)
— a
application of Labor Code section 923'® to public
employees. Labor Code section 923 has been construed by
this court to protect the right of private sector employees to
strike (see Petri Cleaners, Inc. v. Automotive Employees, etc.
Local No. 88 (1960) 53 Cal.2d 455 [2 Cal.Rptr. 470, 349
P.2d 76)); yet, an examination of other California statutes
governing public employees makes it perfectly clear that
section 3509 was not included in the MMBA as a means for
prohibiting strikes.
A provision identical to section 3509 is contained in the
statutes governing educational employees and firefighters.
However, an explicit strike prohibition is included in the
firefighters statute in addition to this provision. The fact
that the Legislature felt it necessary to include this express
strike prohibition clearly indicates that it neither intended
nor expected its preclusion of section 923 to serve as a
blanket prohibition against strikes. Furthermore, in San
Diego Teachers Assn. v. Superior Court, supra, 24 Cal.3d at
page 13, this court interpreted section 3549 of the EERA, a
provision identical to section 3509 of the MMBA, as
specifically not prohibiting strikes. Therefore, plaintiff’s
assertion that section 3509 must be read as a legislative
prohibition of public employee strikes cannot be
sustained.!7
16 Section 923 provides in pertinent part: “. . . the individual workman
[shall] have full freedom of association, self-organization, and
designation of representatives of his own choosing, to negotiate the
terms and conditions of his employment, and that he shall be free from
the interference ... of employers ... in the designation of such
representatives or in self -organization or in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.”
'7 Since the present case involves employees subject to the MMBA, we
do not consider whether provisions of statutes governing other
a =e
In sum, the MMBA establishes a system of rights and
protections for public employees which closely mirrors
those enjoyed by workers in the private sector. The
Legislature, however, intentionally avoided the inclusion of
any provision which could be construed as either a blanket
grant or prohibition of a right to strike, thus leaving the
issue shrouded in ambiguity. In the absence of clear
legislative directive on this crucial matter, it becomes the
task of the judiciary to determine whether, under the law,
strikes by public employees should be viewed as a prohibited
tort.
Ill. The Common Law Prohibition Against
Public Employee Strikes.
(3a) As noted above, the Court of Appeal and various
lower courts in this and other jurisdictions have repeatedly
stated that, absent a specific statutory grant, all strikes by
public employees are per se illegal. A variety of policy
rationales and legal justifications have traditionally been
advanced in support of this common law “rule,” and
numerous articles and scholarly treatises have been devoted
to debating their respective merits.'® The various
employees could be interpreted to limit the right of such employees to
strike.
18 Among the more notable works to appear recently on the subject of
labor relations in the public sector are: Hanslowe & Acierno, The Law
and Theory of Strikes By Government Employees (1982) 67 Corne!l
L.Rev. 1055; Comment, Public Employee Legislation: An Emerging
Paradox, Impact, and Opportunity (1976) 13 San Diego L.Rev. 931;
Comment, California Assembly Advisory Council’s Recommendations
on Impasse Resolution Procedures and Public Employee Strikes
(1974) 11 San Diego L.Rev. 473; Comment, The Collective Bargaining
Process at the Municipal Level Lingers in Its Chrysalis Stage (1974)
<a, ae
justifications for the common law prohibition can be
summarized into four basic arguments. First—the tradition-
al justification—that a strike by public employees is
tantamount to a denial of governmental
authority/sovereignty. Second, the terms of public employ-
ment are not subject to bilateral collective bargaining, as in
the private sector, because they are set by the legislative
body through unilateral lawmaking. Third, since legislative
bodies are responsible for public employment decision-
making, granting public employees the right to strike would
afford them excessive bargaining leverage, resulting in a
distortion of the political process and an improper
delegation of legislative authority. Finally, public employees
provide essential public services which, if interrupted by
strikes, would threaten the public welfare.
14 Santa Clara Law. 397; Grodin, Public Employee Bargaining in
California: The Meyers-Milias-Brown Act in the Courts (1972) 23
Hastings LJ. 719; Shaw & Clark, The Practical Differences Between
Public and Private Sector Collective Bargaining (1972) 19 UCLA
L.Rev. 867; Lev, Strikes by Government Employees: Problems and
Solutions (1971) 57 A.B.AJ. 771; Witt, The Public Sector Strike:
Dilemma of the Seventies (1971) 8 Cal. Western L.Rev. 102; Bernstein,
Alternatives to the Strike in Public Labor Relations (1971) 85
Harv.L.Rev. 459; Burton & Krider, The Role and Consequences of
Strikes by Public Employees (1970) 79 Yale LJ. 418; Wellington &
Winter, More on Strikes by Public Employees (1970) 79 Yale LJ. 441;
Kheel, Strikes and Public Employment (1969) 67 Mich.L.Rev. 931;
Anderson, Strikes and Impasse Resolution in Public Employment
(1969) 67 Mich.L.Rev. 943; Wellington & Winter, The Limits of
Collective Bargaining in Public Employment (1969) 78 Yale LJ. 1107;
Thorne, The Government Employee and Organized Labor (1962) 2
Santa Clara Law. 147; Note, Labor Relations in the Public Service
(1961) 75 Harv.L.Rev. 391; Annot., Labor Law: Right of Public
Employees to Strike or Engage in Work Stoppage (1971) 37 A.L.R.3d
1147.
= ae
Our determination of the legality of st~*-es by public
employees necessarily involves an analysis of the reasoning
and current viability of each of these arguments. The first
of these justifications, the sovereignty argument, asserts
that government is the embodiment of the people, and
hence those entrusted to carry out its function may not
impede it.'? This argument was particularly popular in the
first half of the 20th century, when it received support from
several American Presidents.”°
19 For example, in City of Cleveland v. Division 268 of Amal. Ass’n
(1949) 41 Ohio Ops. 236, 239 [90 N.E.2d 711,715], the court stated that
“ijt is clear that in our system of government, the government is a
servant of all of the people. And a strike against the public, a strike of
public employees, has been denominated ... as a rebellion against
government. The right to strike, if accorded to public employees .. . is
one means of destroying government. And if they desiroy government,
we have anarchy, we have chaos.” A California case which relied on this
sovereignty argument is Nutter v. City of Santa Monica (1946) 74
Cal.App.2d 292[168 Cal.Rptr. 741].
20 Commenting on the Boston police strike, Calvin Coolidge asserted
that “[tJhere is no right to strike against public safety by anybody,
anywhere, at any time” (quoted in Norwalk Teachers Ass’n v. Bo: rd of
Education (1951) 138 Conn. 269, 273 [83 A.2d 482, 484, 31 A.L.R.2d
1133]). Woodrow Wilson, commenting on the same strike, stated that
the strike is ‘‘ ‘an intolerable crime against civilization’ ’’ (quoted in
id., at p. 273[83 A.2d at p. 484)).
In another famous pronouncement of the sovereignty argument,
President Franklin Roosevelt stated: ‘“ ‘[Mlilitant tactics have no place
in the functions of any organization of Government employees. . . . [A]
strike of public employees manifests nothing less than an intent on their
part to prevent or obstruct the operations of Government until their
demands are satisfied. Such action, looking toward the paralysis of
Government by those who have sworn to support it, is unthinkable and
intolerable.’ ” (Id., at pp. 273-274 [83 A.2d at p. 484] [quoting a letter
from President Roosevelt to the president of the National Federation of
Federal Employees (Aug. 16, 1937)].)
a
The sovereignty concept, however, has often been
criticized in recent years as a vague and outdated theory
based on the assumption that “the King can do no wrong.”
As Judge Harry T. Edwards has cogently observed, “the
application of the strict sovereignty notion—that govern-
mental power can never be opposed by employee
organizations—is clearly a vestige from another era, an era
of unexpanded government. ... With the rapid growth of
the government, both in sheer size as well as in terms of
assuming services not traditionally associated with the
‘sovereign,’ government employees understandably no
longer feel constrained by a notion that ‘The King can do
no wrong.’ The distraught cries by public unions of
disparate treatment merely reflect the fact that, for all
intents and purposes, public employees occupy essentially
the same position vis a vis the employer as their private
counterparts.” (Edwards, The Developing Labor Relations
Law in the Public Sector (1972) 10 Dug.L.Rev. 357, 359-
360.)?!
In recent years, courts have rejected the very same
concept of sovereignty as a justification for governmental
immunity from tort liability. In California, the death knell
2! See also Anderson Fed. of Teach. v. School City of Anderson
(1969) 252 Ind. 588[251 N_E. 2d 15, 20, 37 A.L.R.3d 1131] (dis. opn. of
DeBruler, CJ.). (“[Sovereign immunity] is not a rational argument at all
but a technique for avoiding dealing with the merits of the issue [of
whether public employees may strike]. ... The conflict of real social
forces cannot be solved by the invocation of magical phrases like
‘sovereignty.’ ””)
Chief Justice DeBruler also notes that where the government has
discretion over the terms and conditions of employment, “[a}ny decision
within this discretionary area is authorized by the government, and
therefore, obviously does not deny the authority of government.” (/d., at
p. 20.)
— ee
came in Muskopf v. Corning Hospital Dist. (1961) 55
Cal.2d 211[11 Cal.Rptr. 89, 359 P.2d 457], where this court
stated that, “(t]he rule of governmental immunity for tort is
an anachronism, without rational basis, and has existed only
by the force of inertia.” (55 Cal.2d at p. 216.) As noted by
this court in Muskopf, perpetuation of the doctrine of
sovereign immunity in tort law led to many inequities, and
its application effected many incongruous results. Similarly,
the use of this archaic concept to justify a per se prohibition
against public employee strikes is inconsistent with modern
social reality and should be hereafter laid to rest.
The second basic argument underlying the common law
prohibition of public employee strikes holds that since the
terms of public employment are fixed by the Legislature,
public employers are virtually powerless to respond to strike
pressure, or alternatively that allowing such strikes would
result in “government by contract” instead of “government
by law.” (See City of LA. v. Los Angeles etc. Council (1949)
94 Cal.App.2d 36, 46[210 P.2d 305].) This justification may
have had some merit before the California Legislature gave
extensive bargaining rights to public employees. However,
at present, most terms and conditions of public employment
are arrived at through collective bargaining under such
statutes as the MMBA.
We have already seen that the MMBA establishes a
variety of rights and_ protections for public
employees—including the right to join and participate in
union activities and to meet and confer with employer
representatives for the purpose of resolving disputed labor-
management issues. The importance of mandating these
rights, particularly the meet and confer requirement, cannot
be ignored. The overall framework of the MMBA
represents a nearly exact parallel to the private sector
system of collective bargaining—a system which sets forth
the guidelines for labor-management relations in the private
sphere and which protects the right of private employees to
strike. By enacting these significant and parallel protections
for public employees through the MMBA, the Legislature
effectively removed many of the underpinnings of the
common law per se ban against public employee strikes.
While the MMBA does not directly address the issue of
such strikes, its implications regarding the traditional
common law prohibition are significant.
This argument was eloquently explained by Justice
Grodin in his concurring opinion in El] Rancho Unified Sch.
Dist. v. National Education Assn., supra, 33 Cal.3d at page
963, where he pointed out that “(t}he premise underlying
the court’s opinion in City of L.A.[94 Cal.App.2d 36} that
it is necessarily contrary to public policy to establish terms
and conditions of employment for public employees
through the bilateral process of collective bargaining rather
than through unilateral lawmaking—has since been
re’. ied by the Legislature. The heart of the statute under
consideration in this case [the Educational Employment
Relations Act], for example, contemplates that matters
relating to wages, hours, and certain other terms and
conditions of employment for teachers will be the subject of
negotiation and agreement between a public school
employer and organizations representing its employees.
(Gov. Code, §§ 3543.2, 3543.3, 3543.7.) Thus, the original
policy foundation for the ‘rule’ that public employee strikes
are illegal in this state has been substantially undermined, if
not obliterated.”
The remaining two arguments have not served in this
State as grounds for asserting a ban on public employee
strikes but have been advanced by commentators and by
— os
courts of other states. With the traditional reasons for
prohibiting such strikes debunked, these additional reasons
do not convince us of the necessity of a judicial ukase
prohibiting all such strikes.
The first of these arguments draws upon the different
roles of market forces in the private and public spheres.
This rationale suggests that because government services
are essential and demand is generally inelastic, public
employees would wield excessive bargaining power if
allowed to strike. Proponents of this argument assume that
economic constraints are not present to any meaningful
degree in the public sector. Consequently, in the absence of
such constraints, public employers will be forced to make
abnormally large concessions to workers, which in turn will
distort our political process by forcing either higher taxes or
a redistribution of resources between government services.”?
There are, however, several fundamental problems with
this “‘distortion of the political process” argument. For one,
as will be discussed more fully below, a key assumption
underlying the argument—that all government services are
essential—is factually unsupportable. Modern governments
engage in an enormous number and variety of functions,
which clearly vary as to their degree of essentiality. As
such, the absence of an unavoidable nexus between most
22 See e.g., United Federation of Postal Clerks v. Blount, supra, 325
F.Supp. 879, 884. (“In the private sphere, the strike is used to equalize
bargaining power, but this has universally been held not to be
appropriate when its object and purpose can only be to influence the
essentially political decisions of Government in the allocation of its
resources.”’)
For an even more extensive elaboration of this “distortion of the
political process” argument, see Wellington & Winter, The Limits of
Collective Bargaining in Public Employment, supra, 78 Yale LJ. 1107.
a, |. Con
public services and essentially necessarily undercuts the
notion that public officials will be forced to settle strikes
quickly and at any cost. The recent case of the air-traffic
controllers’ strike? is yet another example that govern-
ments have the ability to hold firm against a strike for a
considerable period, even in the face of substantial
inconvenience. As this court concluded in Los Angeles Met.
Transit Authority v. Brotherhood of Railroad Trainmen,
supra, “Permitting employees to strike does not delegate to
them authority to fix their own wages to the exclusion of
the employer’s discretion. In collective bargaining negotia-
tions, whether or not the employees strike, the employer is
free to reject demands if he determines that they are
unacceptable.” (54 Cal.2d at p. 693, italics added.)
Other factors also serve to temper the potential
bargaining power of striking public employees and thus
enable public officials to resist excessive demands: First,
wages lost due to strikes are as important to public
employees as they are to private employees. Second, the
public’s concern over increasing tax rates will serve to
prevent the decisionmaking process from being dominated
23 In August 1981, the Professional Air Traffic Controllers
Organization (PATCO) launched a nationwide strike against the federal
government. President Ronald Reagan ordered the discharge of 11,000
striking controllers who had not returned to work within a two-day
grace period. Up to the time of this writing, the Administration has
rejected all suggestions for a general amnesty, its position being that the
strikers, by violating the federal government’s prohibition on strikes and
their own “no strike” oath, have forfeited their jobs with the Federal
Aviation Administration forever. Federal courts upheld the
government’s position in PATCO vy. Federal Labor Relations Authority
(D.C. Cir. 1982) 685 F.2d 547. For a more detailed analysis of the strike,
see Meltzer & Sunstein, Public Employee Strikes, Executive Discretion,
and the Air Traffic Controllers (1983) 50 U.Chi.L.Rev. 731.
—_24—
by political instead of economic considerations. A third and
related economic constraint arises in such areas as water,
sewage and, in some instances, sanitation services, where
explicit prices are charged. Even if representatives of
groups other than employees and the employer do not
formally enter the bargaining process, both union and local
government representatives are aware of the economic
implications of bargaining which leads to higher prices
which are clearly visible to the public. A fourth economic
constraint on public employees exists in those services
where subcontracting to the private sector is a realistic
alternative. For example, Warren, Michigan resolved a
bargaining impasse with an American Federation of State,
County and Municipal Employees (AFSCME) local by
subcontracting its entire sanitation service; Santa Monica,
California, ended a strike of city employees by threatening
to subcontract its sanitation operations; in fact, San
Francisco has chosen to subcontract its entire sanitation
system to private firms. If this subcontract option is
preserved, wages in the public sector clearly need not
exceed the rate at which subcontracting becomes a realistic
alternative.”4
The proponents of a flat ban on public employee strikes
not only ignore such factors as the availability of
subcontracting, but also fail to adequately consider public
sentiment towards most strikes and assume that the public
will push blindly for an early resolution at any cost. In fact,
public sentiment toward a strike often limits the pressure
felt by political leaders, thereby reducing the strike’s
24 See further discussion in Burton & Krider, The Role and
Consequences of Strikes by Public Employees, supra, 79 Yale LJ. 418,
425-427.
~~ sae ee
a
effectiveness. A Pennsylvania Governor’s Commission
Report stressed just such public sentiment as an important
reason to grant a limited right to strike: “T]he limitations
on the right to strike which we propose .. . will appeal to
the general public as so much fairer than a general ban on
strikes that the public will be less likely to tolerate strikes
beyond these boundaries. Strikes can only be effective so
long as they have public support. Jn short, we look upon the
limited and carefully defined right to strike as a safety
valve that will in fact prevent strikes.’"25 (Italics in
original.)
In sum, there is little, if any empirical evidence which
demonstrates that governments generally capitulate to
unreasonable demands by public employers in order to
resolve strikes. The result of the strike in the instant case
clearly suggests the opposite. During the 11-day strike,
negotiations resumed, and the parties subsequently reached
an agreement on a new MOU, the terms of which were
precisely the same as the District’s last offer prior to the
commencement of the strike. Such results certainly do not
illustrate a situation where public employees wielded
excessive bargaining power and thereby caused a distortion
of our political process.
The fourth and final justification for the common law
prohibition is that interruption of government services is
unacceptable because they are essential. As noted above, in
our contemporary industrial society the presumption of
essentiality of most government services is questionable at
23 Governor’s Commission to Revise the Public Employee Law of
Pennsylvania, Report and Recommendations, reprinted in 251 Govt.
Empl. Rel. Rep. (BNA) E-1, E-3 (1968). This report is discussed in detail
in Hanslowe & Acierno, The Law and Theory of Strikes by
Government Employees, supra, 67 Cornell L.Rev. 1055.
— om
best. In addition, we tolerate strikes by private employees in
many of the same areas in which government is engaged,
such as transportation, health, education, and utilities; in
many employment fields, public and private activity largely
overiap.
In a dissenting opinion in Anderson Fed. of Teach. y.
School City of Anderson, supra, Chief Justice DeBruler of
Indiana observed that the source and management of most
service enterprises is irrelevant to the relative essentiality of
the services: “There is no difference in impact on the
community between a strike by employees of a public utility
and employees of a private utility; nor between employees
of a municipal bus company and a privately owned bus
company; nor between public school teachers and parochial
school teachers. The form of ownership and management
of the enterprise does not determine the amount of
destruction caused by a strike of the employees of that
enterprise. In addition, the form of ownership that is
actually employed is often a political and _ historical
accident, subject to future change by political forces.
Services that were once reridered by public enterprise may
be contracted out to private enterprise, and then by another
administration returned to the public sector.” (251 N.E.2d
at p. 21.)
Recently, the United States Supreme Court also
eschewed the classic equation of public ownership of an
industry with the essentiality of that industry. In an earlier
case which reflected the traditional reasoning, United
States v. Mineworkers (1947) 330 U.S. 258[91 L.Ed. 884, 67
S.Ct. 677], the Supreme Court had held that the
government’s wartime seizure of private coal mines
rendered those mining operations public services and
changed the rights of the miners, though the function of the
= =
mines remained exactly the same. The court then approved
the issuance of an injunction against striking workers, a
remedy that would not have been available had the mines
still been considered a private enterprise.
In the recent case cf Transportation Union v. Long
Island R. Co. (1982) 455 U.S. 678[71 L.Ed.2d 547, 102 S.Ct.
1349], however, the court held that employees of a formerly
private railroad, which had recently been acquired by a
governmental entity, retained their right to strike under the
Railway Labor Act. In this latter instance, the Supreme
Court clearly recognized that the public takeover of the
railroad did not necessarily change the rights of the
employees; the court therefore suggested that the railroad
became no more essential after its public acquisition.
Although the decision’s basis in the supremacy clause limits
its direct precedential value on labor law, the ruling
nevertheless signifies a major departure from the court’s
earlier holding in United Mineworkers, supra—that a
service becomes essential once it comes under government
control. The United Transportation Union case thus
underscores the conclusion that it is the nature of the
service provided which determines its essentiality and the
impact of its disruption on the public welfare, as opposed to
a simplistic determination of whether the service is
provided by public or private employees. Indeed, strikes by
private workers often pose a more serious threat to the
public interest than would many of those which involve
public employees.
We of course recognize that there are certain “essential”
public services, the disruption of which would seriously
threaten the public health or safety. In fact, defendant union
itself concedes that the law should stil! act to render illegal
any strikes in truly essential services which would constitute
_)
a genuine threat to the public welfare. Therefore, to the
extent that the “excessive bargaining power” and
‘interruption of essential services” arguments still have
merit, specific health and safety limitations on the right to
strike should suffice to answer the concerns underlying
those arguments.
In addition to the various legal arguments advanced to
persuade the courts to impose a judicial ban on public
employee strikes—arguments which, as we have seen, are
decidedly unpersuasive in the context of modern jurispru-
dence and experience—there is the broader concern that
permitting public employees to strike may be, on balance,
harmful to labor-management relations in the public sector.
This is essentially a political argument, best addressed to the
Legislature. We review the matter only to point out that the
issue is not so clear cut as to justify judicial intervention,
since the Legislature could reasonably conclude that
recognizing public employees’ right to strike may actually
enhance labor-management relations.
At least 10 states have granted most of their public
employees a right to strike;2® and the policy rationale
behind this statutory recognition further undercuts several
of the basic premises relied upon by strike-ban advocates.
As the aforementioned Pennsyivania Governor’s Commis-
sion Report concluded: “The collective bargaining process
26 See footnote 8, ante, for a list of the 10 states. Typically these
statutes permit public sector strikes, unless such strikes endanger the
public health, safety, or welfare. The statutes generally prohibit strikes by
police and fire-protection employees, employees in correctional facilities,
and those in health-care institutions. In some instances, statutes provide
binding arbitration to resolve certain disputes for which strikes are
proscribed. Thus, the public sector strike has begun to achieve some
degree of legitimacy, despite the strong opposition of critics.
—
will be strengthened if this qualified right to strike is
recognized. It will be some curb on the possible
intransigence of an employer; and the limitations on the
right to strike will serve notice on the employee that there
are limits to the hardships that he can impose.” (251 Govt.
Empl. Rel. Rep., supra, at p. E-3.)
It is unrealistic to assume that disputes among public
employees and their employers will not occur; in fact,
strikes by public employees are relatively frequent events in
California. For example, 46 strikes occurred during 1981-
1983, which actually marks a significant decline when
compared to the number during the 5 previous years.”’
Although the circumstances behind each individual strike
may vary somewhat, commentators repeatedly note that
much of the reason for their occurrence lies in the fact that
without the right to strike, or at least a credible strike
threat, public employees have little negotiating strength.
This, in turn, produces frustrations which exacerbate labor-
management conflicts and often provoke “illegal” strikes.
27 Public employee strikes in California, 1970-1983:*
1970 1971 1972 1973 1974 1975 1976
20 14 18 15 45 ae 23
1977 1978 1979 1980 1981 1982 1983
59 29 87 35 20 6 20
*Source: An Analysis of 1981-1983 Strikes in California’s Public
Sector (1984) (Mar. 1984 Inst. Of Ind. Rel., U.C. Berkeley) 60 Cal. Pub.
Empl. Rel. 7, 9. Public employees include all workers in public agencies
in California, excluding federal service and public utilities.
The noted labor mediator, Theodore W. Kheel, aptly
described this process when analyzing New York’s Taylor
Law (which makes all public employee strikes illegal) and
its resultant effect on labor relations in that state: “It would
be unfair to place upon the legal machinery sole
responsibility for these interruptions of critical services on
which the welfare of New York depends. But the fact
remains that the machinery—including the prohibition on
strikes with attenuant penalties and the fact-finding boards
with their power to make recommendations—did not work
to settle these disputes or stop the strikes, slowdowns, or
threats. In fact it is probable that the Taylor Law
exacerbated these conflicts. For one thing, it made
subversive a form of conduct society endorsed for private
workers. It encouraged unions to threaten to strike to
achieve the bargaining position participants in collective
bargaining must possess. It made the march to jail a
martyr’s procession and a badge of honor for union leaders.
....In simple point of fact, it did not and is not likely to
work as a mechanism for resolving conflicts in public
employment relations through joint determination, whether
called collective bargaining or collective negotiations.”
(Kheel, Strikes and Public Employment, supra, 67
Mich.L.Rev. 931, 936.)?8
28 Indeed the per se prohibition is notoriously ineffective. See
Comment, California Assembly Advisory Council’s Recommendations
on Impasse Resolution Procedures and Public Employee Strikes,
supra, 11 San Diego L.Rev. 473, 480. The council’s study found that the
“present laws do not deter strikes, and furthermore, that once an illegal
strike is instituted the law has very little effect in compelling the strikers
to return to work. Part of the reason for this is that many public
employers hesitate to request an injunction because they believe that the
employees would continue to strike, thereby forcing the employer to
either initiate contempt proceedings and subject his employees to quasi-
= a
It is universally recognized that in the private sector, the
bilateral determination of wages and working conditions
through a collective bargaining process, in which both sides
possess relatively equal strength, facilitates understanding
and more harmonious relations between employers and
their employees. In the abser-e of some means of
equalizing the parties’ respective bargaining positions, such
as credible strike threat, both sides are less likely to bargain
in good faith;?? this in turn leads to unsatisfactory and
acrimonious labor relations and ironically to more and
longer strikes. Equally as important, the possibility of a
strike often provides the best impetus for parties to reach an
agreement at the bargaining table, because buth parties lose
if a strike actually comes to pass. Thus by providing a clear
incentive for resolving disputes, a credible strike threat may
serve to avert, rather than to encourage, work stoppages.
criminal penalties, or stand idly and ineffectually by as the illegal strike
continues. Either of these alternatives, if pursued, would have a
deleterious effect on future employee-management relations once the
strike is settled.”
See also statement of Professor Reginald Alleyne, UCLA Law School,
in the Transcript of Proceedings, MMBA Hearing, California
Legislative Assembly, Interim Public Employment and Retirement
Committee, page 20. Professor Alleyne cited statistics hich supported
his view that “In 99 and 9/10 of the cases in the private sector they
succeed and reach an agreement.”
See also Cebulski, An Analysis of 22 Illegal Strikes and California
Law (1973) 18 Cal. Pub. Empl. Rel. 2, 9 (chart showing that strikes in
which public sector employers imposed legal sanctions lasted twice as
long as strikes in which the employers did not attempt to impose
sanctions).
29 See, e.g., Timberlane Reg. Sch. Dist. v. Timberlane Reg. Ed. Ass’n
(1974) 114 N.H. 245[317 A.2d 555, 557].
— Yow
Theodore Kheel has explained this argument very well:
“(W]e should acknowledge the failure of unilateral
determination, and turn instead to true collective
bargaining, even though this must include the possibility of
a strike. We would then clearly understand that we must
seek to improve the bargaining process and the skill of the
negotiators to prevent strikes.... With skillful and
responsible negotiators, no machinery, no outsiders, and no
fixed rules are needed to settle disputes. For too long our
attention has beer directed to the mechanics and penalties
rather than to the participants in the process. It is now time
to change that, to seek to prevent strikes by encouraging
collective bargaining to the fullest extent possible.”
A final policy consideration in our analysis addresses a
more philosophical issue—the perception that the right to
strike, in the public sector as well as in the private sector,
represents a basic civil liberty.3! The widespread acceptance
% Kheel, op. cit. supra, 67 Mich.L.Rev. at pages 940-941.
31 Another interesting and related policy argument in support of
granting a right to strike to public employees rests on a recognition of
the changing shape and values of the American economic system itself.
In essence, it focuses on the fact that our market economy has evolved
from its classical model into an increasingly mixed and pluralistic form.
In this process of increased government intervention, the line between
public and private enterprise has become increasingly blurred. At the
same time, a concomitant blurring has occurred between traditional
political and economic activity, and it is this latter overlap which renders
a flat ban on all public sector strikes so difficult to defend.
The argument then analogizes the deviation of the American system
from classical economic models and the corresponding reevaluation of
public strike prohibitions to the Solidarity-inspired developments in
Poland prior to the latest military crackdown. Ironically, the traditional
common law argument that public sector bargaining and striking is anti-
democratic and inimical to our political process, closely mirrors the
Polish government’s view that unions and strikes are antisocial—indeed
of that perception leads logically to the conclusion that the
right to strike, as an important symbol of a free society,
should not be denied unless such a strike would
substantially injure paramount interests of the larger
community.
(4a) Plaintiff’s argument that only the Legislature can
reject the common law doctrine prohibiting public employee
strikes flies squarely in the face of both logic and past
precedent. Legislative silence is not the equivalent of
positive legislation and does not preclude judicial reevalua-
tion of common law doctrine. If the courts have created a
bad rule or an outmoded one, the courts can change it.
This court has long recognized the need to redefine,
modify or even abolish a common law rule “‘when reason or
equity demand it” or when its underlying principles are no
longer justifiable in light of modern society. (See Rodriguez
v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394 [115
Cal.Rptr. 765, 525 P.2d 669]; Muskopf v. Corning Hospital
Dist. (1961) 55 Cal.2d 211, 216[11 Cal.Rptr. 89, 359 P.2d
457]; Green v. Superior Court (1974) 10 Cal.3d 616, 629[111
Cal.Rptr. 704, 517 P.2d 1168]; Li v. Yellow Cab Co. (1975)
13 Cal.3d 804, 808 [119 Cal.Rptr. 85%, 532 P.2d 1226, 78
A.L.R.3d 393].)
revisionist and reactionary—conduct in a system operated purportedly
for the benefit of all. Deviations from classical models and beliefs thus
confront both ideological viewpoints. The argument for a right to strike
for public employees in a capitalist system clearly gains strength as
society evolves away from the classical ideal of a pure market economy
where the public and private sectors are clearly separated. Similarly, the
case for a right to strike in a socialist system grows stronger as that
society deviates from the classical ideals of the socialist model. For a
more detailed analysis of this theory, see Hanslowe & Acierno, supra, 67
Cornell L.Rev. at pages 1072-1073.
This court’s history provides numerous examples of this
principle. In Li v. Yellow Cab Co., supra, 13 Cal.3d at page
812, when this court first adopted a rule of comparative
negligence, we expressly rejected the contention that any
change in the law of contributory negligence was
exclusively a matter for the Legislature, and overturned
more than a century of precedent. In Rodriguez v.
Bethlehem Steel Corp. supra, 12 Cal.3d 382, we directly
repudiated the assertion that recognition of a spousal action
for loss of consortium required legislative action (see
pp. 393-395) and reversed numerous prior decisions in
endorsing that cause of action.
(5a) Furthermore, “[w]hen the law governing a subject
has been shaped and guided by judicial decision, legislative
inaction does not necessarily constitute a tacit endorsement
of the precise stage in the evolution of the law extant at the
time when the Legislature did nothing; it may signify that
the Legislature is willing to entrust the further evolution of
legal doctrine to judicial development.” (People v. Drew
(1978) 22 Cal.3d 333, 347, fn. 11 [149 Cal.Rptr. 275, 583
P.2d 1318}.)
(6a) For the reasons stated above, we conclude that the
common law prohibition against public sector strikes should
not be recognized in this state. Consequently, strikes by
public sector employees in this state as such are neither
illegal nor tortious under California common law. We must
immediately caution, however, that the right of public
employees to strike is by no means unlimited. Prudence and
concern for the general public welfare require certain
restrictions.
The Legislature has already prohibited strikes by
firefighters under any circumstance. It may conclude that
other categories of public employees perform such essential
ee
— =
services that a strike would invariably result in imminent
danger to public health and safety, and must therefore be
prohibited .*2
While the Legislature may enact such _ specific
restrictions, the courts must proceed on a case-by-case basis.
Certain existing statutory standards may properly guide
them in this task. As noted above, a number of states have
granted public employees a limited right to strike, and such
legislation typically prohibits strikes by a limited number of
employees involved in clearly essential services. In addition,
several statutes provide for injunctive relief against other
types of striking public employees when the state clearly
demonstrates that the continuation of such strikes will
constitute an imminent threat or “clear and present
danger” to public health and safety? Such an approach
32 See, e.g., Minnesota Statutes Annoted section 179.63(11) (1981)
(firefighters, peace officers, guards at correctional facilities), Oregon
Revised Statutes section 243.736 (1979) (firefighters, police officers and
guards at correctional or mental health institutions); Pennsylvania
Statutes Annotated title 43, section 1101.1001 (guards at correctional or
mental health institutions and employees necessary to the functioning of
the courts). For a further discussion of these provisions, see Hanslowe &
Acierno, The Law and Theory of Strike by Government Employees,
supra, 67 Cornell L.Rev. 1055, 1079-1083.
See also Burton & Kinder, supra, 79 Yale LJ. at page 437 (advocating
a presumption of illegality in strikes involving truly essential services,
thereby relieving the state of the burden to demonstrate the elements
necessary for an injunction).
33 See, e.g., Alaska Statutes section 23.40.200(c) (strikes by most public
employees may not be enjoined unless it can be shown that it has begun
to threaten the health, safety and welfare of the public); Oregon Revised
Statutes section 243.726(3)(a) (injunctive relief available when strike
creates a clear and present danger or threat to the health, safety or
welfare of the public); Pennsylvania Statutes Annotated title 43, section
1101.1003 (injunctive relief available when strike creates a clear and
= os
guarantees that essential public services will not be
disrupted so as to genuinely threaten public health and
safety, while also preserving the basic rights of public
employees.
After consideration of the various alternatives before us,
we believe the following standard may properly guide
courts in the resolution of future disputes in this area:
strikes by public employees are not unlawful at common
law unless or until it is clearly demonstrated that such a
strike creates a substantial and imminent threat to the
health or safety of the public. This standard allows
exceptions in certain essential areas of public employment
(e.g., the prohibition against firefighters and law
enforcement personnel) and also requires the courts to
determine on a case-by-case basis whether the public
interest overrides the basic right to strike.
present danger or threats to the health, safety or welfare of the public);
Wisconsin Statutes Annotated section 111.70(7m)(b) (injunctive relief
available if strike poses an imminent threat to the public health or
safety). See also School District for City of Holland v. Holland Educ.
Ass’n (1968) 348 Mich. 314[157 N.W.2d 206, 210] (Mich. Supreme Ct.,
in teachers strike cases, declaring state’s policy is not “to issue
injunctions in labor disputes absent a showing of violence, irreparable
injury, or breach of the peace”); Timberlane Reg. Sch. Dist. v.
Timberlane Reg. Ed. Ass’n (1974) 114 N.H. 245 [317 A.2d 555, 559]
(N.H. Supreme Ct. refused to rule on the legality of teachers’ strikes but
stated that in determining whether to issue a strike injunction, a court
should consider “‘whether the public health, safety and welfare will be
substantially harmed if the strike is allowed to continue.”). The Federal
Labor Management Relations Act of 1947 [29 U.S.C. §§ 141-187],
follows a similar approach with respect to private sector strikes. It
empowers the President to direct the Attorney General to enjoin a
threatened or actual strike if it affects an industry involved in interstate
commerce and if permitted to occur or continue would imperil the
national health or safety. (29 U.S.C. §§ 176-180.)
—
Although we recognize that this balancing process may
impose an additional burden on the judiciary, it is neither a
novel nor unmanageable task. Indeed, an examination of
the strike in the instant case affords a good example of how
this new standard should be applied. The 11-day strike did
not involve public employees, such as firefighters or law
enforcement personnel, whose absence from their duties
would clearly endanger the public health and safety.
* Legislation in several siates already requires the courts to make this
precise determination. (See, e.g., the relevant statutory provisions in
Alaska, Ore., Pa. and Wis.) For just one example, under the
Pennsylvania Public Employee Relations Act, public employees are not
prohibited from striking after they have submitted to mediation and fact
finding, unless or until such a strike creates a clear and present danger or
threat to the health, safety and welfare of the public. (Pa. Stat. Ann.., tit.
43, § 1101.1003.) In such cases, the employer may petition for equitable
relief, including injunctions, and is entitled to relief if the court finds
that the strike creates the danger or threat. (Jd.) The Pennsylvania
courts have applied this standard to several classes of public employees.
(See, e.g., Bethel Park Sch. v. Bethel Park Fed. of Tchrs. 1607 Am.
Fed’n of Teachers (1980) 54 P. Commw. 49, 52 [420 A.2d 18]
(teacher’s strike constituted a clear and present danger to the public’s
health, safety and welfare and school district entitled to back-to-work
order in view of potential losses of state subsidies, instructional days
vocational job, higher education opportunities, counseling, social and
health services, extracurricular enrichment programs and employees’
work opportunities and wages); Bristol Township Education Ass’n v.
School District (1974) 14 Pa. Commw. 463, 468-470 [322 A.2d 767]
(school district entitled to injunction against teacher’s strike under
similar circumstances); Highland Sewer and Water Auth. v. Local
Union 459, I.B.E.W. (1973) 67 Pa. D. & C.2d 564, 565-567 (sewer and
water authority not entitled to injunction forcing striking employees
back to work since there was no clear and present danger in view of the
fact that the services provided by the authority could still be performed
during the strike, apparently by supervisors, with relatively little
inconvenience).
=
Moreover, there was no showing by the District that the
health and safety of the public was at any time imminently
threatened. That is not to say that had the strike continued
indefinitely, or had the availability of replacement
personnel been insufficient to maintain a reasonable
sanitation system, there could not have been at some point a
clear showing of a substantial threat to the public health
and welfare.*> However, such was not the case here, and the
legality of the strike would have been upheld under our
newly adopted standard.*©
Defendant union has also urged this court to find that a
per se prohibition of all public employee strikes violates the
California Constitution’s guarantees of freedom of associa-
35 Had such a showing been made, the trial court would then heve had
the authority to issue an injunction and declare the strike illegal. In cases
involving sanitation strikes, it is often the /ength of the strike which will
ultimately require issuance of an injunction. (See, e.g., Highland Sewer
and Water Auth. v. Local Union 459, I.B.E.W., supra, 67 Pa. D & C.2d
564, 565-567.) In addition, if particular jobs performed by striking
sanitation or other public employees require unique skills and training, it
is conceivable that a public agency might be unable to find adequate
replacements. In the instant matter, however, replacement personnel
adequately maintained needed sanitation services without any
significant threat of harm to the public. Further, the District's
allegations of vandalism by the strikers (see fn. 4, ante), while perhaps
citing individual illegal acts, were by no means enough to render the
entire strike illegal or even a substantial public threat.
3% The trial court in this matter hac no reason to make a finding
regarding the threat to public health and safety posed by the strike. The
court merely relied on prior Court of Appeal opinions, which had held
that public employee strikes were per se illegal in the absence of a
specific statutory grant. In the future, trial courts will clearly be required
to make such a finding. In these cases, the scope of appellate review will
ordinarily be limited to determining whether reasonable grounds existed
for the trial court's decision.
—_
tion, free speech, and equal protection. Tic i: not contend
that such a constitutional infringement is present when a
court exercises its equitable authority to enjoin a strike
based on a showing that the strike represents a substantial
and imminent danger to the public health or safety. Instead,
the union argues that in the absence of such a showing, per
se prohibition is constitutionally unsupportable.
(7a) The right to form and be represented by unions is a
fundamental right of American workers that has been
extended to public employees through constitutional
adjudication®” as well as by statute; in this case, it is
37 In upholding the National Labor Relations Act against
constitutional attack, the United States Supreme Court recognized that
the right of employees to organize for the purpose of collective
bargaining is fundamental. (Labor Board v. Jones & Laughlin (1937)
301 US. 1, 33[81 L.Ed. 893, 909, 57 S.Ct. 615, 108 A.L.R. 1352].
It is also axiomatic that employees form and join labor organizations
to protect their interests in labor disputes, and the United States Supreme
Court has long recognized that “[iJn the circumstances of our times the
dissemination of information concerning the facts of a labor dispute
must be regarded as within that area of free discussion that is
guaranteed by the Constitution. [Citations.]” (Thornhill v. Alabama
(1940) 310 US. 88, 102 [84 L.Ed. 1093, 1102, 60 S.Ct. 736].) In addition,
whenever a labor organization undertakes a concerted activity, its
members exercise their right to assemble, and organizational activity has
been held to be a lawful exercise of that right. (Thomas v. Collins (1945)
323 U.S. 516[89 L.Ed. 430, 65 S.Ct. 315].)
The freedoms of speech and assembly are applicable to the states
through the Fourteenth Amendment (Hague v. C.J.O. (1939) 307 US.
496 [83 L.Ed. 1493, 59 S.Ct. 954], and may be exercised in an economic
context. As explained by the United States Supreme Court in N.AA.C.P.
v. Alabama: “Effective advocacy of both public and private points of
view, particularly controversial ones, is undeniably enhanced by group
association, as this Court has more than once recognized by remarking
upon the close nexus between the freedoms of speech and assembly.
[Citations.] It is beyond debate that freedom to engage in association for
specifically mandated by the provisions of the MMBA
itself. (8a) In addition, “ ‘i]t is now settled law that
workmen may lawfully combine to exert various forms of
economic pressure upon an employer, provided the object
sought to be accomplished thereby has a reasonable relation
to the betterment of labor conditions, and they act
peaceably and honestly. (Citations) This right is guaranteed
by the federal Constitution as an incident of freedom of
speech, press and assemblage, (citations) and it is not
dependent upon the existence of a labor controversy
between the employer and his employee.’” (Jn re Blaney
(1947) 30 Cal.2d 643, 648[184 P.2d 892], quoting Steiner v.
Long Beach Local No. 128 (1942) 19 Cal.2d 676, 682 [123
P.2d 20].)
As the union contends, however, the right to unionize
means little unless it is accorded some degree of protection
regarding its principal aim—effective collective bargaining.
For such bargaining to be meaningful, employee groups
must maintain the ability to apply pressure or at least
threaten its application. A creditable right to strike is one
means of doing so. As yet, however, the right to strike has
not been accorded full constitutional protection, the
prevailing view being that “([t}he right to strike, because of
its more serious impact upon the public interest, is more
vulnerable to regulation than the right to organize and
the advancement of beliefs and ideas is an inseparable aspect of the
‘liberty’ assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech. [Citations.] Of course,
it is immaterial whether the beliefs sought to be advanced by association
pertain to political, economic, religious or cultural matters, and state
action which may have the effect of curtailing the freedom to associate
is subject to the closest scrutiny.” (N.A.A.C.P. v. Alabama, supra, 357 U.S.
449, 460[2 L.Ed.2d 1488, 1498, 78 S.Ct. 1163].
—
select representatives for lawful purposes of collective
bargaining which this Court has characterized as a
fundamental right....°” (Auto. Workers v. Wis. Board
(1949) 336 U.S. 245, 259[93 L.Ed. 651, 666, 69 S.Ct. 516].)
Further, the federal ban on public employee strikes has
been specifically upheld as constitutionally permissible. (See
United Federation of Postal Clerks v. Blount, supra, 325
F.Supp. 879, 884; affd. (1971) 404 U.S. 802 [30 L.Ed.2d 38,
92 S.Ct. 80].) In the absence of any explicit constitutional
protection of the right to strike, the Blount court reasoned
that the law prohibiting only public employees from striking
need only have a rational basis to avoid offending
constitutional guarantees. The court then easily found that
the common law policy justifications (discussed in detail
above) did indeed provide a rational basis for the per se
prohibition. (See, United Federation of Postal Clerks v.
Blount, supra, at p. 883.)
Thoughtful judges and commentators, however, have
questioned the wisdom of upholding a per se prohibition of
public employee strikes. They have persuasively argued that
because the right to strike is so inextricably intertwined with
the recognized fundamental right to organize and
collectively bargain, some degree of constitutional protec-
tion should be extended to the act of striking in both the
public and private sectors.
As Judge J. Skelly Wright declared in his concurrence in
United Federation of Postal Clerks v. Blount, supra, “{ilf
the inherent purpose of a labor organization is to bring the
workers’ interests to bear on management, the right to
strike is, historically and practically, an important means of
effectuating that purpose. A union that never strikes, or
which can make no credible threat to strike, may wither
away in ineffectiveness. That fact is not irrelevant to the
— =
constitutional calculations. Indeed, in several decisions, the
Supreme Court has held that the First Amendment right of
association is at least concerned with essential organization-
al activities which give the particular association life and
promote its fundamental purposes. . . . [Citations.] I do not
suggest that the right to strike is co-equal with the right to
form labor organizations. . . . But I do believe that the right
to strike is, at least, within constitutional concern and
should not be discriminatorily abridged without substantial
or ‘compelling’ justification.” (325 F.Supp. 879, 885.)
Chief Justice Roberts of the Rhode Island Supreme
Court offered similar sentiments in a case involving a
teachers’ strike in that state: “Obviously, the right to strike
is essential to the viability of a labor union, and a union
which can make no credible threat of strike cannot survive
the pressures in the present-day industrial world. If the
right to strike is fundamental to the existence of a labor
union, that right must be subsumed in the right to organize
and bargain collectively. ... The collective bargaining
process, if it does not include a constitutionally protected
right to strike, would be little more than an exercise in
sterile ritualism.... I cannot agree that every strike by
public employees necessarily threatens the public welfare
and governmental paralysis. ... The fact is that in many
instances strikes by private employees pose the far more
serious threat to the public interest than would many of
those engaged in by public employees.... In short, it
appears to me that to deny all public employees the right to
strike because they are employed in the public sector would
be arbitrary and unreasonable.” (School Committee v.
Westerly Teachers Ass’n (1973) Ill R.I. 96 [299 A.2d 441,
447-449], dis. opr.)
on
We are not persuaded that the personal freedoms
guaranteed by the United States and California Constitu-
tions confer an absolute right to strike,** but the arguments
above may merit consideration at some future date. If the
right to strike is afforded some constitutional protection as
derivative of the fundamental right of freedom of
association, then this right cannot be abridged absent a
substantial or compelling justification.
(9a) As this court stated in Vogel v. County of Los
Angeles (1967) 68 Cal.2d 18, 22 [64 Cal.Rptr. 409, 434 P.2d
961], which invalidated a loyalty oath requirement for
public employees in this state, “even where a compelling
state purpose is present, restrictions on the cherished
freedom of association protected by the First Amendment
and made applicable to the states by the Fourteenth
Amendment must be drawn with narrow specificity. First
Amendment freedoms are delicate and vulnerable and must
be protected wherever possible. When government seeks to
limit those freedoms on the basis of legitimate and
substantial governmental purposes ... those purposes
cannot be pursued by means that broadly stifle funda-
mental personal liberties when the end can be more
narrowly achieved. Precision of regulation is required so
that the exercise of our most precious freedoms will not be
unduly curtailed except to the extent necessitated by the
legitimate governmental objective. (Keyishian v. Board of
36 As stated in the United States Supreme Court in Dorchy v. Kansas:
“Neither the common law nor the Fourteenth Amendment confers the
absolute right to strike.” (Dorchy v. Kansas (1926) 272 US. 306, 311[71
L.Ed. 248, 269, 47 S.Ct. 86].) Similarly, we do not find that the
comparable personal freedoms guaranteed by the California Constitu-
tion confer an absolute right to strike. (See, e.g., In re Porterfield (1946)
28 Cal.2d 91, 114[168 P.2d 706, 167 A.L.R. 675].)
Regents, supra, 385 U.S. 589, 602-603; Elfbrandt v. Russell,
384 US. 11, 15, et seg.; NAA.C.P. vy. Button, 371 US. 415,
432-433; Shelton v. Tucker, 364 U.S. 479, 488; Bagley v.
Washington Township Hospital Dist., supra, 65 Cal.2d 499,
506-509; Fort v. Civil Service Com., supra, 61 Cal.2d 331,
337-338.)”
(3b) As discussed at length above, the traditional
justifications espoused in favor of a per se prohibition
cannot withstand a significant degree of judicial scrutiny.
Indeed, since not all public employee services are essential
and many private employees perform services more vital to
the public health and safety than do their counterparts in
the public sector, the simplistic public/private dichotomy
does not constitute a “compelling” justification for a per se
prohibition of public employee strikes. Thus the constitu-
tional arguments of defendant union and several amici
cannot easily be dismissed, particularly since we will retain
the limitation that public strikes may be prohibited when
they threaten the public health or safety.*?
Contrary to the characterization of our dissenting colleague, we
neither applaud nor disapprove of strikes by public employees as a
matter of social policy, for in the present state of the law that is not our
function. The old rule in this state, to the effect tha. strikes by public
employees are unlawful, rested expressly upon the premise that wages
and conditions of employment for public employees may only be set by
unilateral action of the public employer, and that collective bargaining
for such employees in itself was contrary to public policy. It is the
Legislature which has removed the underpinnings from the old rule, by
sanctioning a system of collective bargaining for local government
employees. At the same time, the Legislature has maintained a stony
silence regarding the status of public employee strikes under the new
statutory scheme. To the extent that we examine alternative
justifications which have been asserted in support of a ban on such
strikes, we do so only to determine whether there are any such
por: ae
Since we have already concluded that the traditional per
se prohibition against public employee strikes can no longer
be upheld on common law grounds, we do not find it
necessary to reach the issue in constitutional terms.
Although we are not inclined to hold that the right to strike
rises to the magnitude of a fundamental right, it does
appear that associational rights are implicated to a
substantial degree. As such, the close connection between
justifications which are so compelling as to require acceptance by the
courts even in the absence of legislative action. We find an affirmative
answer only as regards those strikes which imperil public health or
safety. As to other strikes, we conclude that the policy questions involved
are highly debatable, and best left to the legislative branch in the first
instance.
We find nothing in the dissenting opinion which detracts from this
logic. The “cogent analysis” upon which the dissent relies for “the
various rationales underlying the ‘no strike’ rule” (post, p. 610) refers
nakedly to “differences in the employment relationship” between public
and private sectors, and to “the preservation of a system of government
in the ambit of public employment and the proscription of practices not
compatible with the public employer-employee relationship.” (Jd., at
p. 611.) What the significant differences are which require a different
rule, or why strikes are incompatible with the employer-employee
relationship in the public sector, we are not told. Surely judicial
intervention in so complex an arena requires greater justification than
that. ;
The dissent decries also what it perceives to be the ambiguity in our
rule prohibiting strikes which threaten public safety or health, and states
a preference for those statutes which clearly define classes of employees
who may or may not strike. The formulation we have adopted, however,
is in accord with the rule in several states (ante, p. 585), and the dissent
points to no evidence that such a rule is incapable of effective judicial
administration. On the contrary, such a rule, which depends upon an
assessment of public detriment from a particular strike, is entirely in
accord with the traditional role of courts in equity. If the Legislature
wishes to adopt a different rule, of course it may do so.
a ae
striking and other constitutionally protected activity adds
further weight to our rejection of the traditional common
law rationales underlying the per se prohibition. (Cf.
Environmental Planning & Information Council v. Superior
Court (1984) 36 Cal.3d 188, 195 [203 Cal.Rptr. 127, 680
P.2d 1086].)
(6b) We conclude that it is not unlawful! for public
employees to engage in a concerted work stoppage for the
purpose of improving their wages or conditions of
employment, unless it has been determined that the work
stoppage poses an imminent threat to public health or
safety. Since the trial court’s judgment for damage in this
case was predicated upon an erroneous determination that
defendants’ strike was unlawful, the judgment for damages
cannot be sustained.”
The judgment is reversed.
Mosk, J., and Grodin, J., concurred.
KAUS, J.—I concur in the judgment insofar as it holds that
a peaceful strike by public employees does not give rise to a
tort action for damages against the union. I am aware of
nothing in the Meyers-Milias-Brown Act which suggests
that the Legislature intended that common law tort
remedies should be applied in this context, and without such
legislative endorsement I believe it is improper to import
tort remedies that were devised for different situations into
this sensitive labor relations arena. As this court noted in
40 The trial court relied upon Pasadena Unified Sch. Dist. v.
Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100 [140
Cal.Rptr. 41], which held that the conduct of an illegal strike was a tort
for which damages may be recovered. Since we have held that the strike
in this case was not illegal, we need not consider the correctness of that
decision.
City and County of San Francisco v. Cooper (1975) 13
Cal.3d 898, 917 [120 Cal.Rptr. 707, 534 P.2d 403]: “The
question as to what sanctions should appropriately be
imposed on public employees who engage in illegal strike
activity is a complex one which, in itself, raises significant
issues of public policy. in the past, several states have
attempted to deter public employee strikes by imposing
mandatory draconian statutory sanctions on _ striking
employees; experience has all too frequently demonstrated,
however, that such harsh, automatic sanctions do not
prevent strikes but instead are counterproductive, exacer-
bating employer-employee friction and prolonging work
stoppages.” In the absence of a determination by the
Legislature that a tort action, resulting in a money damage
award determined by a jury many years after the strike, is
the appropriate method for dealing with public employee
strikes, I do not believe the judiciary should, on its own,
embrace this “solution” to the problem. (See, e.g., Lamphere
Sch. v. Lamphere Fed. of Teachers (1977) 400 Mich. 104
[252 N.W.2d 818, 827-832, 84 A.L.R.3d 314]; City of
Fairmont v. Retail, Wholesale, etc. (W.Va. 1980) 283 S.E.2d
589, 592-595; contra State v. Kansas City Firefighting
Local 42 (Mo.App. 1984) 672 S.W.2d 99, 107-116.) I would
therefore disapprove the contrary holding in the Pasadena
Unified Sch. Dist. v. Pasadena Federation of Teachers
(1977) 72 Cal.App.3d 100, 111-114[140 Cal.Rptr. 41].
In concluding that a common law tort action does not lie
in these circumstances, it is not necessary to determine
whether such a strike is “legal” or “illegal” in an abstract
sense, or whether, and under what circumstances, such a
strike could properly be enjoined. The question of
injunctive relief presents significantly different consider-
ations than the propriety of a tort action, and it is not before
Sl
a
us in this case. We should await the facts of a concrete
dispute before we attempt to resolve it.
Finally, I believe it is equally unwise to venture an
opinion on potential constitutional challenges to future
legislative action in this field. In my view, we should—if
anything—be encouraging the Legislature to attempt to
deal with the difficult public policy questions in this area,
not frightening it away with premature warnings of possible
constitutional minefields.
Reynoso, J., concurred
_— om
BIRD, C.J., Concurring.-(ib), (2b), (3c), (4b), (5b), (6c),
(7b), (8b), (9b) I write separately because I believe it is only
fair to give the Legislature some guidance in an area filled
with constitutional problems. To prompt the Legislature to
enter this field without such guidance! not only invites error
but encourages it. Such a practice is not only disingenuous,
it is disrespectful to the litigants and knowingly misleads
the public.
Today’s decision brings the law of public employee
strikes into the 20th century and makes the common law
contemporary. As the court has explained, the flat
prohibition against such strikes was grounded in outmoded
notions of sovereignty and unreasoned fears of free labor
organization.
It is appropriate that today’s affirmation of the right to
strike should come so soon after the tragic events
surrounding the strike of Solidarity, the Polish labor union.
The Solidarity strikers proclaimed that the rights to
organize collectively and to strike for dignity and better
treatment on the job were fundamental human freedoms.
When the Polish government declared martial law and
supressed the union in December 1981, Americans
especially mourned the loss of these basic liberties.
The public reaction to the Solidarity strike revealed the
strength of the American people’s belief that the right to
strike is an essential feature of a free society. In an economy
increasingly dominated by large-scale business and govern-
! See concurring opinions of Grodin, J. and Kaus, J. See also In re
Misener (1985) ante, page 543 [__ Cal Rptr. —_, _— P.2d —_] and its
antecedent, People v. Collie (1981) 30 Cal.3d 43[177 Cal.Rptr. 458, 634
P.2d 534, 23 A.L.R4th 776), which graphically illustrate this very
problem.
mental organizations, the right of employees to withhold
their labor as a group is an essential protection against
abuses of employer power. (See, e.g., Amer. Foundries v. Tri-
City Council (1921) 257 U.S. 184, 209[66 L.Ed. 189, 199, 42
S.Ct. 72, 27 A.L.R. 360].) Hence, it is widely presumed that
“we have the right as free men to refuse to work for just
grievances: the strike is an unalienable weapon of any
citizen.” (Reagan & Hubler, Where’s the Rest of Me?
(1965) p. 138.)
The majority opinion suggests that the right to strike may
have constitutional dimensions. (Maj. opn., ante, at pp. 589-
591.) I write separately to elaborate on this point. Although
the right to strike has a long history in American
jurisprudence, its textual and theoretical foundations have
eluded a comprehensive analysis. Instead, the courts have
danced a minuet around the issue. The time has come to
make explicit that which has so frequently been presumed.
If the right to strike does indeed differentiate this country
from those that are not free, then it must be given substance
and enforced.
The constitutional right to strike rests on a number of
bedrock principles: (1) the basic personal liberty to pursue
happiness and economic security through productive labor
(U.S. Const., Sth and 14th Amends.; Cal. Const., art.I, §§ 1,
7, subd. (a)); (2) the absolute prohibition against involuntary
servitude (U S. Const., 13th Amend.; Cal. Const., art. I, § 6;
and (3) the fundamental freedoms of association and
expression (U.S. Const., Ist Amend.; Cal. Const., art. I,
§§ 2, subd. (a), 3).
It is beyond dispute that the individual’s freedom to
withhold personal service is basic to the constitutional
concept of “liberty.” Without this freedom, working people
would be at the total mercy of their employers, unable
ecco
en
either to bargain effectively or to extricate themselves from
an intolerable situation. Such a condition would make a
mockery of the fundamental right to pursue life, liberty and
happiness by engaging in the common occupations of the
community. (See Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d
1, 17[95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]; see
also Nash v City of Santa Monica (1984) 37 Cal.3d 97, 110
[207 Cal.Rptr. 285, 688 P.2d 894] (conc. and dis. opn. of
Bird, C.J.) [right to withhold personal service as a landlord
is constitutionally protected liberty interest]; id., at p. 114
(dis. opn. of Mosk, J.) [same]; cf. U.S. Const., 13th Amend.
[prohibiting involuntary servitude]; Cal. Const., art. I, § 6
[same].)
Nevertheless, in the early years of this country, the
concerted withholding of labor was outlawed under the
doctrine of “criminal conspiracy.” (See Frankfurter &
Greene, The Labor Injunction (1930) pp. 2-3, and cases
cited.) Although workers—with the exception of chattel
slaves—enjoyed the right to leave employment as
individuals, they were prohibited from doing so as a group.
([bid.) Apparently, the courts assumed that working people
could adequately protect their liberty interests by exercising
their personal right to terminate employment and compete
as individuals in the labor market.
As Archibald Cox has written, “[slome of the major
problems of constitutional law ... arise from the necessity
of shaping guarantees born of an individualistic society to
the conditions resulting from the solidarity of organized
groups.” (Cox, Strikes, Picketing and the Constitution
(1951) 4 Vand.L.Rev.574, 579 [hereafter Cox].) The
recognition of group rights for laborers trailed behind the
— Se
legal acceptance of the modern business corporation, a
group form of property ownership.2
The right to strike was initially regarded as labor’s
counterpart to the massive economic power concentrated in
the corporation. With the rise of monolithic business
enterprises, it could no longer be maintained that
employees’ freedom to compete in the labor market as
individuals would be sufficient to protect their liberty
interests. In a famous dissenting opinion, Justice Oliver
Wendell Holmes observed: ‘One of the eternal conflicts out
of which life is made up is that between the effort of every
man to get the most he can for his services, and that of
society, disguised under the name of capital, to get his
services for the least possible return. Combination on the
one side is patent and powerful. Combination on the other is
the necessary and desirable counterpart, if the battle is to be
carried on in a fair and equal way.” (Vegelahn v. Guntner
(Mass. 1896) 44 N.E. 1077, 1081 (dis. opn. of Holmes, J.).)
In Holmes’s view, the right to strike was integral to this
latter combination: “If it be true that wovkingmen may
combine with a view, among other things, to getting as
much as they can for their labor, just as capital may
combine with a view to getting the greatest possible return,
it must be true that, when combined, they have the same
2 The modern form of corporate organization, which grants the
corporate management broad powers to act on behalf of shareholders,
emerged in the latter part of the 19th century. (See generally, Berle &
Means, The Modern Corporation and Private Property (1939) pp. 127-
152.) During the 1890's, the United States Supreme Court ruled that
corporations possess constitutional rights. (See, e.g., Chicago, &c.
Railway Co. v Minnesota (1890) 134 U.S. 418 [33 L.Ed. 970, 10 S.Ct.
462] [“‘liberty”]; Smyth v. Ames (1898) 169 U.S. 466 [42 L.Ed. 819, 18
S.Ct. 418] [“property”].)
rae
liberty that combined capital has, to support their interests
by argument, persuasion, and the bestowal or refusal of
those advantages which they otherwise lawfully control.”
(Vegelahn v. Guntner, supra, 44 N.E. at p 1081.)
This theoretical foundation was later adopted by the
United States Supreme Court. In an opinion by Chief
Justice Taft, the court declared: “{Unions] were organized
out of the necessities of the situation. A single employee
was helpless in dealing with an employer. He was
dependent ordinaril. ox his daily wage for the maintenance
of himself and family. If the employer refused to pay him
the wages that he thought fair, he was nevertheless unable
to leave the employ and to resist arbitrary and unfair
treatment. Union was essential to give laborers opportunity
to deal on equality with their employer. They united to
exert influence upon him and leave him in a body, in order,
by this inconvenience, to induce him to make better terms
with them. They were withholding their labor of economic
value to make him pay what they thought it was worth. The
right to combine for such a lawful purpose has, in many
years, not been denied by any court.” (Amer. Foundries v.
Tri-City Council, supra, 257 U.S. at p. 209 [66 L.Ed. at
p. 199].)
A few years later the high court, with Chief Justice
Hughes writing, asserted that the right of employees to
engage in “collective action” was “not to be disputed.”
(Texas & N.O.R. Co. v. Ry. Clerks (1930) 281 U.S. 548, 570
[74 L.Ed. 1034, 1046, 50 S.Ct. 427].) Finally, the court
proclaimed that employees’ rights of self-organization were
“fundamental” in nature. (Labor Board v. Jones &
Laughlin (1937) 301 U.S. 1, 33[81 L.Ed. 893, 909, 57 S.Ct.
615, 108 A.L.R. 1352].)
Though these forceful statements suggest that the
Supreme Court included the right to strike among those
liberties protected by the Constitution, that proposition was
never squarely asserted. Instead, a federal district court was
the first to define the right in unambiguous terms: “The
right to peaceably strike or to participate in one, to work or
refuse to work, and to choose the terms and conditions
under which one will work, like the right to make a speech,
are fundamental human liberties which the state may not
condition or abridge in the absence of grave and immediate
danger to the community.” (Stapleton v. Mitchell (D.K “)».
1945) 60 F.Supp. 51, 61, app. dism. by stip., 326 U.S. 690
L.Ed. 406, 66 S.Ct. 172] [invalidating a Kansas law ‘hat
prohibited various labor activities, including strikes!: see
also Alabama State Federation of Labor v. McAdory (1944)
246 Ala. 1[18 So.2d 810, 827-828] [striking down Alabama
law that prohibited all strikes not endorsed by a majority of
the struck employer’s employees].)
The status of the right to strike as a constitutionally
protected “liberty” arises not only from the considerations
of fairness set forth by Justice Holmes and Chief Justices
Taft and Hughes, but also from the inherent nature of
work. In the words of Justice Felix Frankfurter, “[tJhe
coming of the machine age tended to despoil human
personality. It turned men and women into ‘hands.’ The
industrial history of the early Nineteenth Century
demonstrated the helplessness of the individual employee to
achieve human dignity in a society so largely affected by
technological advances. Hence the trade union made itself
increasingly felt, not only as an indispensable weapon of
self-defense on the part of workers but as an aid to the well-
being of a society in which work is an expression of life and
not merely the means of earning subsistence.” (A.F. of L. v.
American Sash Co. (1949) 335 U.S. 538, 542-543[93 L.Ed.
—
222, 225, 69 S.Ct. 258, 6 AL.R2d 481] (conc. opn. of
Frankfurter, J.).)
Perhaps in response to this concern, some
courts—including a California Court of Appeal—adopted
an absolutist position, recognizing no distinctio whatever
between the rights of employees to quit work a_ individuals
or in a group: “It is the right of every man ‘o engage to
work for or to deal with, or to refuse to work for or to deal
with, any man or class of men as he sees fit, whatever his
motive or whatever the resulting injury, without being held
in any way accountable therefor. [Citations.] These rights
may be exercised in association with others so long as they
have no unlawful object in view.” (Overland P. Co. v. Union
L. Co. (1922) 37 Cal.App. 366 370-371 [207 P. 412]; see also
Tobriner, The Organizational Picket Line: Lawful Econ-
omic Pressure (1951) 3 Stan.L.Rev. 423, 426, fn. 16[in spite
of four separate opinions, the decision of this court in
Parkinson Co. v. Bldg. Trades Council (1908) 154 Cal. 581
[98 P. 1027] rests on the absolute right of a labor union to
strike].)
It has been argued that constitutional protection for
strike activities would intrude on the legislative function.
The courts have exercised restraint in applying the
constitutional guarantee of “‘liberty” to legislative determi-
nations of economic policy. This restraint reflects the fear
that the diffuse concept of liberty could be einployed as a
device for the imposition of judicia! policy judgments. (See
Lochner v. New York (1905) 198 U.S. 45, 74-76 [49 L.Ed.
937, 948-949, 25 S.Ct. 539] (dis. opn. of Holmes, J.).)
Nevertheless, the mere fact that an enactment covers
economic matters does not insulate it from scrutiny where
an important constitutional guarantee is implicated. The
Constitution expressly protects certain rights of “property.”
—
(U.S. Const., 5th and 14th Amends.; Cal. Const., art. I §§ 1,
7, subd(a).) As Professor Cox has observed, “{a]
constitution which assures the owner of property an
opportunity to obtain a reasonable return on his capital
must recognize the worker’s interest in the conditions under
which he labors and the price he receives for his work.”
(Cox, supra, 4 Vand.L.Rev.at p. 580.)
Furthermore, recognition of the right to strike does not
require an unconstrained judicial construction of the term
“liberty.” The courts can find constitutional guidance in the
close nexus between the right to strike and a specific
constitutional provision: the ban on involuntary servitude.
(U.S. Const., 13th Amend.; Cal. Const., art. I, § 6.) Though
this provision might not by itself guarantee the right to
strike, it does provide clear support for the proposition that
the strike is an exercise of constitutionally protected liberty.
Justice Brandeis once declared, in a case involving a
peaceful, concerted refusal to work: “If, on the undisputed
facts of this case, refusa] to work can be enjoined, Congress
[has] created . . . an instrument for imposing restraints upon
labor which reminds of involuntary servitude.” (Bedford
Co. v. Stone Cutters Assn. (1927) 274 US. 37, 65[71 L.Ed.
916, 928, 47 S.Ct. 522, 54 A.L.R. 791] (dis. opn. of Brandeis,
J., joined by Holmes, J.); see also France Packing Co. v.
Dailey (3d Cir. 1948) 166 F.2d 751, 758 (dis. opn. of
O’Connell, J.) [construing War Labor Disputes Act to
permit voluntary strikes in view of the constitutional ban on
involuntary servitude].) Some courts have invalidated
antistrike restrictions as inconsistent with the ban on
involuntary servitude. (See e.g., Henderson v. Coleman
(1942) 150 Fla. 185 [7 So.2d 117, 121]; United States y.
=
Petrillo (N.D.111. 1946) 68 F.Supp. 845, 849, revd. (1947)
332 U.S. 1[91 L.Ed. 1877, 67 S.Ct. 1538].)
The close connection between the right to strike and the
prohibition against involuntary servitude derives from the
purposes of the 13th Amendment. That amendment
guarantees the freedom to terminate employment not for its
own sake, but in order to “prohibit{ ] that control by which
the personal service of one man is disposed of or coerced
for another’s benefit which is the essence of involuntary
servitude.” (Bailey v. Alabama (1911) 219 U.S. 219, 241[55
L.Ed. 191, 201, 31 S.Ct. 145].)
Accordingly, the amendment is concerned not merely
with the formal right to quit, but also with the practical
ability of working people to protect their interests in the
workplace: “[I]n general the defense against oppressive
hours, pay, working conditions, or treatment is the right to
change employers. When the master can compel and the
laborer cannot escape the obligation to go on, there is no
power below to redress and no incentive above to relieve a
harsh overlordship or unwholesome conditions of work.”
(Pollock y. Williams (1944) 322 U.S. 4, 18[88 L.Ed. 1095,
1104, 64 S.Ct. 792]; see generally, Cox, supra, 4
Vand.L.Rev. at p. 576.)
As courts and commentators universally acknowledge,
the group right to strike has replaced the individual right to
“change employers” as the principal defense of working
people against oppressive conditions. The rise of multina-
tional corporations and large-scale government has
3 In Petrillo, the Supreme Court reversed the district court’s holding
as to involuntary servitude solely on the ground that the restriction at
issue did not—on its face—prohibit strike activities. (United States v.
Petrillo, supra, 332 US. at pp. 12-13[91 L.Ed. at pp. 1885-1886].)
~~ =
produced a corresponding decrease in the practical
significance of the right to quit for the individual. To
withdraw the right to strike is to deprive the worker of his
or her only effective bargaining power. (See maj. opn., ante,
at pp. 589-590; see also Burton & Krider, The Role and
Consequences of Strikes by Public Employees (1970) 79
Yale LJ. 418, 419-420, and sources cited.) This undeniable
fact is reflected in the intensity of the public reaction to the
suppression of the Solidarity strike.
Over 30 years ago, the question of whether the 13th
Amendment protects the right to strike was termed
“momentous” by two justices of the United States Supreme
Court. (A.F. of L. v. American Sash Co. supra, 335 US. at
p. 559[93 L.Ed. at p. 234] (conc. opn. of Rutledge, J., joined
by Murphy, J.) [expressly reserving judgment on the
question].) Yet, that court has never squarely addressed the
issue.*
The notion of a 13th Amendment right to strike has been
rejected by some lower federal courts and state courts.
* The court came closest to confronting the issue in Auto. Workers v.
Wis. Board (1949) 336 U.S. 245 [93 L.Ed. 651, 69 S.Ct. 516]. In that
case, a union had conducted a series of “union meetings” at irregular
times during work hours. The Wisconsin Employment Relations Board
issued an order prohibiting any “concerted effort to interfere with
production of the complainant except by leaving the premises in an
orderly manner for the purpose of going on strike.”’ (Id., at p. 20 [93
L.Ed. at p. 661], italics added.) The court sustained the order against a
13h Amendment challenge. Whatever the merits of this conclusion (see
id., at p. 269[93 L.Ed. at p. 671] (dis. opn. of Murphy, J.) [the majority
find the union’s tactic objectionable only because it is effective), it is
clear that the court did not decide the general question of whether the
13h Amendment guaranteed the right to strike: “Our only question is
... whether it is beyond the power of the State to prohibit the particular
course of conduct described.” (/d., at p. 251[93 L.Ed. at p. 661).)
—_—
These courts have relied on two lines of reasoning. First,
some have suggested that the prohibition against involun-
tary servitude protects only the right of employees to
withhold personal services as individuals. (See, e.g., Western
Union Tel. Co. v. International B. of E. Workers (N.D.IIl.
1924) 2 F.2d 993, 994-995, affd. (7th Cir. 1925) 6 F.2d 444
[46 A.L.R. 1538].) However, as explained above, this line of
argument cannot justify the total nonprotection of strike
activities in an economy dominated by large and powerful
employers. (See ante, at p. 598-599.)
Other courts have held that the 13th Amendment does
not protect a temporary withholding of labor. (See, e.z.,
Dayton Co. v. Carpet, Linoleum and Resilient FI. D., etc.
(1949) 229 Minn. 87 [39 N.W.2d 183, 197-198], app. dism.,
(1950) 339 U.S. 906[94 L.Ed. 1334, 70 S.Ct. 570].) However,
in view of the purposes of the prohibition on involuntary
servitude, “can it matter whether the worker quits
permanently or merely leaves the establishment until
conditions are changed? In the former case he may be said
to be exercising the right to sell his services to the highest
bidder, leaving others to take his former job, while in the
latter case he is seeking to injure the employer by cutting
off the supply of labor. But this reasoning scarcely justifies
a constitutional distinction, for in either case the
improvement of employment conditions ultimately depends
upon a withholding of labor from marginal employers until
they offer more .... [T]he temporary or permanent
character of the quitting seems irrelevant.” (Cox, supra, 4
Vand.L.Rev. at pp. 576-577.)
More fundamentally, it is not suggested here that the
prohibition on involuntary servitude standing alone
necessarily guarantees the right to strike. That provision
does, however, provide ample support for the proposition
that the right to strike must be counted among those
constitutionally protected ‘“‘liberties” that are essential to
human freedom.
The concerted withholding of labor warrants protection
not only as an exercise of personal liberty, but also as an
incident of the fundamental freedoms of association and
expression. (U.S. Const., Ist Amend.; Cal. Const., art. I,
§§ 2, 3.) As the majority point out, the right of workers to
combine and exert “ ‘various forms of economic pressure’ ”
on employers is constitutionally protected. (Maj. opn., ante,
at p. 588, quoting In re Blaney (1947) 30 Cal.2d 643, 647-
648[184 P.2d 892].)
Working people enjoy the constitutional right to form
and join unions. (See, e.g., Orr v. Thorpe (Sth Cir. 1970) 427
F.2d 1129, 1131; American Federation of State, Co, &
Mun. Emp. v. Woodward (8th Cir. 1969) 406 F.2d 137, 139-
140.) Without a constitutionally protected right to strike,
the use of these freedoms would be “‘little more than an
exercise in sterile ritualism.” (School Committee v. Westerly
Teachers Ass’n (1973) 111 R.I. 96[299 A.2d 441, 448] (dis.
opn. of Roberts, C.J.); see also United Federation of Postal
Clerks v. Blount (D.D.C. 1971) 325 F.Supp. 879, 885 (conc.
opn. of Wright, J.), affd. mem. 404 U.S. 802 [30 L.Ed.2d 38,
92 S.Ct. 80].)
Recent decisions concerning consumer boycotts provide
persuasive authority for the protection of strikes under the
guarantees of free association and expression.’ Consumer
boycotts were, like strikes, originally prohibited at common
5 A boycott is an organized refusal to deal. (See Note, Political
Boycott Activity and the First Amendment (1978) 91 Harv.L.Rev. 659.)
A strike is one form of boycott—i.e., an organized refusal by workers to
provide labor.
=
law. (See generally, Note, Political Boycott Activity and the
First Amendment, supra, 91 Harv.L.Rev. at pp. 676-677.)
However, in a series of cases involving consumer boycotts
by civil rights advocates, the courts began to recognize that
such boycotts, like strikes, provide a necessary counter-
weight to entrenched economic power. In 1948, Justice
Roger Traynor observed that “{iln their struggle for
equality the only effective economic weapon Negroes have
is the purchasing power they are able to mobilize to induce
employers to open jobs to them .. .. Only a clear danger to
the community would justify judicial rules that restrict the
peaceful mobilization of a group’s economic power to
secure economic equality.” (Hughes v. Superior Court
(1948) 32 Cal.2d 850, 868 [198 P.2d 885] (dis. opn. of
Traynor, J.), affd. (1950) 339 U.S. 460 [94 L.Ed. 985, 70
S.Ct. 718]; see also Garner v. Louisiana (1961) 368 U.S. 157,
201[7 L.Ed.2d 207, 239, 82 S.Ct. 248] (conc. opn. of Harlan,
J.) [the First and Fourteenth Amendments protect sit-ins
called to protest the racial practices of private businesses].)
In NAACP y. Claiborne Hardware Co. (1982) 458 USS.
886, 907-915 [73 L.Ed.2d 1215, 1232-1238, 102 S.Ct. 3409]
(hereafter Claiborne Hardware), the United States Supreme
Court held that a peaceful, politically motivated boycott
constituted an exercise of the constitutional freedoms of
association and expression. In that case, black citizens of
Port Gibson, Mississippi, boycotted white-owned businesses
to pressure those businesses and elected public officials to
implement policies of racial equality. (Id., at pp. 898-900[73
L.Ed.2d at pp. 1226-1228]; N.AA.C.P. v. Claiborne Hard-
ware Co. (Miss. 1980) 393 So.2d 1290, 1295-1297.) The
Mississippi Supreme Court affirmed the trial court’s
holding that the boycotted businesses were entitled to
injunctive and monetary relief. (Jd., at pp. 1293,1302.)
—
The United States Supreme Court reversed. (Claiborne
Hardware, supra, 458 U.S. at p.934 [73 L.Ed.2d at
p. 1249].) The court rejected the common law view that
boycotts were devoid of constitutional value by virtue of
their coercive nature. “Speech does not lose its protected
character ... simply because it may embarrass others or
coerce them into action.” (Jd. at p. 910 [73 L.Ed.2d at
p. 1234].) On the contrary, the boycott was entitled to
protection as an effective and nonviolent means of bringing
about political, social, and economic change. (Jd., at
pp. 907-915 [73 L.Ed.2d at pp. 1232-1238].) Accordingly,
“(t]he right of the States to regulate economic activity could
not justify a complete prohibition” against the boycott. (/d.,
at p. 914[73 L.Ed.2d at p. 1237].)®
This court has recently had occasion to apply the
principles announced in Claiborne Hardware. In Environ-
tal Planning & Information Council v. Superior Court
6 The court’s analysis covered both the boycott itself and the
expressive activities used to sustain and expand it. (Claiborne
Hardware, supra, 458 US. at pp. 907-912 [73 L.Ed.2d at pp. 1232-
1236].) A boycott is at once a form of association and a means of
expression. The decision to boycott results from processes of assembly
and debate. (See, e.g., id., at p. 907 [73 L.Ed.2d at p. 1232].) Once
commenced, the boycott is a form of symbolic expression. Most
obviously, it forcefully communicates the participants’ views to the
target. Further, as a newsworthy event, the boycott provides the
participants with a platform for explaining and advocating their views to
the public. They pay for this platform by foregoing the benefits of trade
or employment. (Compare Citizens Against Rent Control v. Berkeley
(1981) 454 U.S. 290, 296 [70 L.Ed.2d 492, 498-499, 102 S.Ct. 434] [the
contribution and expenditure of money are essential to effective
advocacy since the means for communicating with the public are
costly].) In short, the boycott is a nonviolent method of conveying not
only the content but also the intensity of the participants’ views.
— |
(1984) 36 Cal.3d 188 [203 Cal.Rptr. 127, 680 P.2d 1086]
(hereafter Environmental Planning), an environmental
group sought to influence a newspaper’s editorial policies
by boycotting businesses that advertised in the newspaper.
The newspaper’s publisher brought suit claiming tortious
interference with an economic relationship.
This court rejected the publisher’s argument that only
civil rights boycotts should be accorded constitutional
protection: “As in Claiborne Hardware, . . .[the boycotters’]
activities constitute a ‘politically motivated boycott designed
to force governmental and economic change’ (458 U'S. at
p. 914 []), and the fact that the change which they seek
bears upon environmental quality rather than racial
equality, can hardly support a different result.”
(Environmental Planning, supra, 6 Cal.3d at p. 197.)
Applying common law principles in light of federal and
state constitutional guarantees, the court held that the
environmental group was engaging in lawful activity. (/d.,
at pp. 197-198.)
I see no principled basis for granting protection to
“politically motivated” consumer boycotts while withdraw-
ing protection from labor boycotts. In Environmental
Planning, this court expressly reserved the question
whether Claiborne Hardware’s apparent distinction be-
tween political and labor boycotts reflects the dictates of the
California Constitution. (36 Cal.3d at p. 198, fn. 9.) The
prior decisions both of this court and of the United States
Supreme Court indicate that labor boycotts should be
entitled to full constitutional protection.
Differential treatment of political and labor activity runs
afoul of the well-established principle of judicial impartial-
ity among speakers and messages. “Of course, it is
immaterial whether the beliefs sought to be advanced by
association pertain to political, economic, religious or
cultural matters, and state action which may have the effect
of curtailing the freedom to associate is subject to the
closest scrutiny.” (N.AA.C.P. vy. Alabama (1958) 357 US.
449, 460-461 [2 L.Ed.2d 1488, 1498-1499, 78 S.Ct. 1163],
quoted by the majority, ante, at p. 587, fn. 37; see also
Environmental Planning, supra, 36 Cal.3d at p. 197).
Similarly, labor unions are entitled to no less protection
than civil rights organizations and environmental groups.
“The inherent worth of the speech in terms of its capacity
for informing the public does not depend upon the identity
of its source, whether corporation, association, union, or
individual.” (First National Bank of Boston v. Bellotti
(1978) 435 U.S. 765, 777 [55 L.Ed.2d 707, 718, 98 S.Ct.
1407].)
If these principles of judicial neutrality held sway
without qualification, the political-labor distinction could be
rejected without further discussion. However, as this court
has recognized, “‘commercial” expression is accorded a
lowered level of protection. (See Environmental Planning,
supra, 36 Cal.3d at p. 197; accord Bolger v. Youngs Drug
Products Corp. (1983) 463 U.S. 60, 64[77 L.Ed.2d 469, 476,
103 S.Ct. 2875, 2879].)
The United States Supreme Court has defined commer-
cial speech alternately as “speech which does ‘no more than
propose a commercial transaction’ ” (Va. Pharmacy Bd. v.
Va. Consumer Council (1976) 425 U.S.748, 762 [48 L.Ed.2d
346, 358, 96 S.Ct. 1817] or “expression related solely to the
economic interests of the speaker and its audience”
(Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980)
447 U.S. 557, 561 [65 L.Ed.2d 341,348, 100 S.Ct. 2343)).
Labor expression cannot be reduced to such narrow
iil,
concerns. It should not be relegated to the lowered
protection accorded commercial expression.
Labor disputes cover a broad range of issues, many of
which involve basic concerns of liberty. “A collective
bargaining agreement is an effort to erect a system of
industrial self-government.” (Steelworkers v. Warrior &
Gulf Co. (1960) 363 U.S. 574, 580[4 L.Ed.2d 1409, 1416, 80
S.Ct. 1347].) For the bulk of each day, working people are
subject to the codes of conduct that govern their
workplaces. Those codes—whether embodied in collective
bargaining agreements, employer rule books, or informal
practices—govern matters ranging from race relations to
permission to use the bathroom. (See generally, Shulman,
Reason, Contract, and Law in Labor Relations (1955) 68
Harv.L.Rev. 999, 1002-1008 [hereafter Shulman]; Cox,
Reflections Upon Labor Arbitration (1959) 72 Harv.L.Rev.
1482, 1490.) While on the job, working people feel the force
of these rules more immediately and directly than those of
the government.
Herein lies the link between the guarantee of personal
liberty, as informed by the ban on involuntary servitude, and
the freedoms of association and expression. The issues that
arise in the workplace rival those addressed in the political
process in their actual impact on the breadth of liberty
enjoyed by working people. The strike is an essential
weapon in the worker’s defense against “that control by
which the personal service of one man is disposed of or
coerced for another’s benefit ....” (Bailey v. Alabama,
supra, 219 US. at p. 241 [55 L.Ed. at p. 201]; see ante, at
pp. 598-599. And, it is a weapon that employs the
constitutionally favored methods for promoting change:
peaceful association and expression. (See ante, at p. 602 &
fn. 6.) Surely, the Constitution protects the efforts of
oe
working people to preserve and expand their liberties by
means ©: nonviolent—albeit outspoken and impolite—
forms of association and expression. (Cf. Claiborne
Hardware, supra, 458 U.S. at pp. 907-912 [73 L.Ed.2d at
pp. 1232-1236].
As the Polish strikers discovered, a free labor
organization cannot coexist with political tyranny. The
converse is no less true: “‘Collective bargaining is today, as
Brandeis pointed out, the means of establishing industrial
democracy as the essential condition of political democracy,
the means <f providing for the workers’ lives in industry the
sense of worth, of freedom, and of participation that
democratic government promises them as _ citizens.”
(Shulman, supra, 68 Harv.L.Rev. at p. 1002.)’
The fact that unions and their members seek increased
compensation as well as greater liberty does not lower the
expression of their grievances to the level of commercial
speech. In the words of Congress, “(t]he labor of a human
being is not a commodity or article of commerce.” (15
U.S.C. § 17.) Unlike the sale of a commodity, the sale of
labor gives rise to rights of control over a person’s time and
activity. The employer obtains not only the product of the
employee’s labor, but also considerable power to dictate
when and how the work will be performed. (See generally,
Dept. of Health, Ed. & Welf., Work in America (1973)
[hereafter HEW Report].) The amount of compensation is,
in part, a tradeoff for personal subordination. This feature
of wages and benefits explains why the 13th Amendment, a
guarantee of personal liberty, is concerned with ‘“‘the
7 The Constitution does not mendate collective bargaining. Whatever
the particular system of labor relations, a degree of liberty in the
employment relationship is essential to democracy.
— =
defense against oppressive hours, pay [and] working
conditions.” (Pollock v. Williams, supra ,322 U.S. at p. 18
[88 L.Ed. at p. 1104])8
In short, the asserted political-labor distinction provides
no basis for denying to working people and unions the
protection afforded civil rights activists and environmen-
talists. Accordingly, a restraint on the right to strike should
be upheld under the California Constitution only if it serves
a compelling state interest by the least restrictive means.”
8 Over a century ago, John Stuart Mill eloquently expressed a view of
liberty in the employment relation: ‘‘Human nature is not a machine to
be built after a model, and set to do exactly the work prescribed for it,
but a tree, which requires to grow and develop itself on all sides,
according to the tendency of the inward forces which make it a living
thing.” (Mill, On Liberty (Shields edit. 1956) p. 72.) More recently, it has
been widely recognized that issues relating to authority and work
content are of central importance in labor relations. (See, e.g., HEW
Report; Hill, Competition and Control at Work (1982) pp. 16-44;
Hirszowicz, Industrial Sociology (1982); Work in America: The Decade
Ahead (Kerr & Rosow edits. 1979); Martin, Contemporary Labor
Relations (1979) pp. 125-129; Tepperman, Not Servants Not Machines:
Office Workers Speak Out (1976); Case Studies on the Labor Process
(Zimbalist edit. 1979).) Whatever one’s views on the question of personal
liberty in the workplace, it is clear that debate and controversy over that
issue cannot be reduced to the status of purely ‘“‘commercial” speech.
° The notion that the United States Constitution protects the right to
strike was rejected by a two-judge majority in United Federation of
Postal Clerks v. Blount, supra, 325 F.Supp. 879, affd. mem. 404 U:S.
802 [30 L.Ed.2d 38, 92 S.Ct. 80] (hereafter Blount). However, the
California Constitution possesses independent vitality. (See, e.g., Serrano
y. Priest (1976) 18 Cal.3d 728, 764-766 [135 Cal.Rptr. 345, 557 P.2d
929].) Hence, Blount is not binding authority as to the state
constitutional claim. Nor did the Blount court provide any persuasive
reasoning in support of its holding.
First, the Blount court erroneously suggested that since the common
law provided no protection for strikes, neither did the United States
_
Constitution. (Blount, supra, 325 F.Supp. at p. 882.) The court did not
have the benefit of the Claiborne Hardware decision, which held that a
consumer boycott was constitutionally protected in spite of the fact that
such boycotts had been prohibited under the common law, (458 U:S. at
pp. 907-915 [73 L.Ed.2d at pp. 1232-1238].) Moreover, this court today
overturns the common law ban on public employee strikes in this state.
Neat, the court asserted thai the right to strike was fully protected for
the first time by section 7 of the National Labor Relations Act (NLRA).
(Blount, supra, 325 F Supp. at p. 882.) However, as the Chief Justice of
the Rhode Island Supreme Court has explained, the NLRA presumed
that working people already possessed the right to strike: “The fact is
that § 7 of that act makes no mention of the right to strike. In § 13
thereof reference is made to the right to strike as follows: ‘Nothing in
this Act, except as specifically provided for herein, shall be construed so
as either to interfere with or impede or diminish in ary way the right to
strike, or to affect the limitations or qualifications on that right.’
Obviously, § 13 is a rule of construct
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