# Petition for Writ of Certiorari — County Sanitation District No. 2 v. Los Angeles County Employees Ass'n, Local 660 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0788%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 995 ## Text ie) et a Eee ey 7 * | ~~ Le f im o=s9 a 7S Vy ss . > sy nore “*&£&D 85-5 0¢ | SEP 24 1985 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) 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 of such standards, the land disposal site shall be located, designed, constructed and operated in such a manner as to provide adequate protection to ground and surface waters used as drinking water supplies. § 241.204-2 Recommended procedures: Design. (a) Plans should include: (1) Current and projected use of water resources in the potential zone of influence of the land disposal site. (2) Groundwater elevation and movement and proposed separation between the lowest point of the lowest cell and the predicted maximum water table elevation. (3) Potential interrelationship of the land disposal site, local aquifers, and surface waters based on _ historical records or other sources of information. (4) Background and initial quality of water resources in the potential zone of influence of the land disposal site. (5) Proposed location of observation wells, sampling stations, and testing program planned, when appropriate. (6) Description of soil and other geologic material to a depth adequate to allow evaluation of the water quality protection provided by the soil and other geologic material. pn” ae (7) Provision for surface water runoff control to minimize infiltration and erosion of cover material. (8) Potential of leachate generation and proposed control systems, where necessary, for the protection of ground and surface water resources. (b) If a land disposal site is located in a flood plain, it should be protected against at least the 50-year design flood by impervious dikes and other appropriate means to prevent the floodwaters from contacting municipal solid waste. § 241.204-3 Recommended procedures: Operations. (a) Surface water courses and runoff should be diverted from the land disposal site (especially from the working face) by means such as trenches, conduits, and proper grading. The land disposal site should be constructed and graded so as to promote rapid surface water runoff without excessive erosion. Regrading should be done as required during construction and after completion to avoid ponding of precipitation and to maintain cover material integrity. (b) Siltation or retention basins or other approved methods of retarding runoff should be used where necessary to avoid stream siltation or flooding problems due to excessive runoff. (c) Leachate collection and treatment systems should be used where necessary to protect ground and surface water resources. (d) Municipal solid wastes and leachate therefrom should not be allowed to contact ground or surface water so as to impair the water’s use. _ § 241.205 Air quality. § 241.205-1 Requirement. The design, construction, and operation of the land disposal site shall conform to applicable ambient air quality standards and source control regulations established under the authority of the Clean Air Act, as amended, or State or local standards effective under that Act, if the latter are more stringent. § 241.205-2 Recommended procedures: Design. Plans should include an effective dust control program. § 241.205-3 Recommended procedures: Operations. (a) Open burning of municipal solid waste should be prohibited. (b) Dust control measures should be initiated as necessary to protect the health and safety of facility personnel, nearby residents, and persons using the facility. § 241.206 Gas control. § 241.206-1 Requirement. Decomposition gases generated within the land disposal site shall be controlled on site, as necessary, to avoid posing a hazard to occupants of adjacent property. a § 241.206-2 Recommended procedures: Design. Plans should assess the need for gas control and indicate the location and design of any vents, barriers, or other control measures to be provided. § 241.206-3 Recommended procedures: Operations. (a) Decomposition gases should not be allowed to migrate laterally from the land disposal site to endanger occupants of adjacent properties. They should be vented to the atmosphere directly through the cover material, cutoff trenches, or ventilation systems in such a way that they do not accumulate in explosive or toxic concentrations, especially within structures. (Information on the limits of flammability of gases is available in such references as the “Handbook of Chemistry and Physics,” 44th ed. CRC Press, Inc., Cleveland, 1973.) (b) Decomposition gases should not be allowed to concentrate in a manner that will pose an explosion or toxicity hazard. § 241.207 Vectors. § 241.207-1 Requirement. Conditions shall be maintained that are unfavorable for the harboring, feeding, and breeding of vectors. — § 241.207-2 Recommended procedures: Design. Plans should include contingency programs for vector control, and the operator should be prepared at all times to implement those procedures. § 241.207-3 Recommended procedures: Operations. Vector control contingency programs should be imple- mented when necessary to prevent or rectify vector problems. § 241.208 Aesthetics. § 241.208-1 Requirement The land disposal site shall be designed and operated at all times in an aesthetically acceptable manner. § 241.208-2 Recommended procedures: Design. Plans should include an effective litter control program. § 241.208-3 Recommended procedures: Operations. (a) Portable litter fences or other devices should be used in the immediate vicinity of the working face and at other appropriate locations to control blowing litter. At the end of each operating day, or more often as required, litter should be removed from the fences and incorporated into the cell being used. Alternatively, the litter may be containerized for disposal on the next operating day. wan (b) Wastes that are easily moved by wind should be covered, as necessary, to prevent their becom.” airborne and scattered. (c) On-site vegetation should be cleared only as necessary. Natural windbreaks, such as green belts, should be maintained where they will improve the appearance and operation of the land disposal site. Buffer strips should be planted and/or berms constructed as necessary to screen the working force from nearby residences or major roadways. (d) Salvage operations should be conducted in such a manner as to not detract from the appearance of the land disposal site Salvaged material should be removed from the land Gisposal site frequently enough to maintain aesthetic acceptability. § 241.209 Cover material. § 241.209-1 Requirement. Cover material shall be applied as necessary to minimize fire hazards, infiltration of precipitation, odors, and blowing litter; control gas venting and vectors; discourage sca‘ : nn 1.6 TOS 8D TOS sinssemsaina - +S 8 + Sena ! 14 ' Annual average of the maximum daily air temperature. 2. Maximum contaminant levels for organic chemicals. The following are the maximum contaminant levels for organic chemicals: — Level (milligrams per liter) (a) Chlorinated hydrocarbons: Endrin (1,2,3,4,10,10-Hexachloro- 6,7-epoxy- 1,4,4a,5,6,7,8,8a-octahydro-1,4-endo, endo-5,8-dimethano naphthalene) ..............00++ 0.0002 Lindane (1,2,3,4,5,6-Hexachlorocyclo- HEXANE, BAMMA iSOMET .........cccereseeceessreseeseeeerees ; 0.004 Methoxychlor (1,1,1-Trichloro-2,2-bis (p- methoxyphenyl]) ethane) .........ccssssserseesereerseeeved 0.1 Toxaphene (C,,H,,Cl,-Technical chlorinated camphene, 67 to 69 percent chlorine) .......... ; 0.005 (b) Chlorophenoxys: 2,4-D (2,4-Dichlorophenoxy-acetic acid) .......... 0.1 2,4,5-TP Silvex (2,4,5-Trichlorophen- oxy- RATES I siccrcticnccstatndanvitisaeicncreisercemmieres 0.01 3. Maximum microbiological contaminant levels. The maximum contaminant level for coliform bacteria from any one well is as follows: (a) using the membrane filter technique: (1) Four coliform bacteria per 100 milliliters if one sample is taken, or (2) Four coliform bacteria per 100 milliliters in more than one sample of all the samples analyzed in one month. (b) Using the five tube most probable number procedure, (the fermentation tube method) in accordance with the analytical recommendations set forth in “Standard Methods for Examination of Water and Waste Water”, American Public Health Association, 13th Ed. pp. 662-688, and using a Standard sample, each portion being one fifth of the sample: — (1) If the standard portion is 10 milliliters, coliform in any five consecutive samples from a well shall not be present in three or more of the 25 portions, or (2) If the standard portion is 100 milliliters, coliform in any five consecutive samples from a well shall not be present in five portions in any of five samples or in more than fifteen of the 25 portions. 4. Maximum contaminant levels for radium-226, radium-228, and gross alpha particle radioactivity. The following are the maximum contaminant levels for radium- 226, radium-228, and gross alpha particle radioactivity: (a) Combined radium-226 and radium-228 — 5 pCi/]; (b) Gross alpha particle activity (including radium-226 but excluding radon and uranium)—15 pCi/1. Appendix II A. Process to Significantly Reduce Pathogens Aerotic digestion: The process is conducted by agitat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0788%3A1. Public record. Not legal advice.