Opposition Brief — County Sanitation District No. 2 v. Los Angeles County Employees Ass'n, Local 660
Supreme Court brief1985
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No. 85-507 OCT 28 1985
JOSEPH F. SPANIOL. JR
In the Supreme Court crx
OF THE
United States
OCTOBER TERM, 1985
CounTy SANITATION DISTRICT No. 2
or Los ANGELES COUNTY
a publie agency,
Petitioner,
vs.
Los ANGELES COUNTY EMPLOYEES
ASSOCIATION, LOCAL 660,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO, ET AL.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
GEFFNER & SATZMAN
LEO GEFFNER*
JEFFREY PAULE
A Professional Corporation
3055 Wilshire Boulevard, Suite 900
Los Angeles, California 90010
(213) 487-1520
Attorneys for Respondents
*Counsel of Record
Bowne of Los Angeles, Inc., Law Printers (213) 742-6600.
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QUESTIONS PRESENTED
1. Whether Petitioner, County Sanitation District No. 2
of Los Angeles County, failed to raise the federal ques-
tion before the California Supreme Court in a timely
manner;
2. Whether the decision of the California Supreme
Court in the instant matter rests upon adequate and
independent state grounds;
Whether the California Supreme Court’s decision in
County Sanitation District No. 2 of Los Angeles County vs.
Los Angeles County Employees Association, Local 660,
granting sanitation district workers the right to strike, is
repugnant and in conflict with the Federal Water Pollu-
tion Control Act and the Federal Resource Conservation
and Recovery Act of 1976.
li
TABLE OF CONTENTS
Questions POMONA 6. 66555.5 Sisin She cs eS Sokeue:
Opinion and Judgment Below ...................
SOT. bs 55a 25 ak ee a te
Statutory Provisions Involved...................
Seana aE Uae Ga Sk oe Oe
Reasons For Denying the Writ..................
I
The Federal Question Urged By Petitioner Was Not
Presented to the Court in a Timely Manner.....
II
The Petition Does Not Raise a Real and Substantial
Foderat Qala. 05 6s cafe eee eee
III
The Decision of the California Supreme Court Rests
On Adequate and Independent State Grounds...
A. The Regulation of Local Public Sector Labor
Relations Is A Matter of State Concern.....
B. Petitioner’s Raising of a New Issue In Its
Petition for Rehearing with the California
Supreme Court Does Not Accord with State
sg BP re een a aa mee
The Standard Adopted by the California Supreme
Court Is Not Repugnant Nor in Conflict with the
FORGES TUNE 6 cs oo oF see oe twee ews
Cena... cs so 0 fk kk eka pas ae ck wees
iE
DoW Oo WO WO e fe
11
11
13
|
ill
INDEX TO AUTHORITIES
Cases
| Page
Abood vs. Detroit Board of Education (1977), 431
OE ES ae 12
Andrews vs. Mokokelumne Hill Company (1857), 7
ee baat ewil gene bbahecddsees 14
Bell vs. Maryland (1964), 378 U.S. 226, 84 S.Ct. 1814 11
Brinkerhoff-Faris Trust Company vs. Hill (1930),
8 Bee a ra a sls be wt Wikia A aKw ate 7,9
Cardinale vs. Louisiana (1969), 394 U. 8. 437, 89
a ey Sl a ba Udon oA a aise sk 7
Chambers vs. Mississippi (1973), 410 U.S. 284, n. 3,
EE ea ee ee 14
City and County of San Francisco vs. Cooper (1975),
eee ain a yc ww d 8
City of Saginaw vs. SE’. Local 446-M (6th Cir.
Ee ee eee eee 12
City of Saratoga vs. Huff (1972), 24 Cal.App.3d 978 14
County Sanitation District No. 2 of Los Angeles
County vs. Los Angeles County Employees’ Asso-
ciation, Local 660 (1983), 147 Cal.App.3d 990, 195
Cal.Rptr. 567 (withdrawn from publication) ..... 5
County Sanitation District No. 2 of Los Angeles
County vs. Los Angeles County Employees’ Asso-
ciation, Loeal 660 (1985), 38 Cal.3d 564, 214
Cal Bote. G26. 7.2 SE0 ..... nc cee ccses 2,4, 10, 15, 16
Crilly vs. Southeastern Pennsylvania Transportation
Authority (8rd Cir. 1976), 529 F.2d 1359 ....... 12
El Rancho Unified School District vs. National Edu-
eation Association (1983), 38 Cal.3d 946........ 9
Esterbrook Company vs. Industrial Accident Com-
mission (1918), 177 Cal. 767 ................. 14, 15
iv
INDEX TO AUTHORITIES
CASES
Page
Glendale City Employees Association vs. City of
Glendale (1975), 15 Cal.3d 328, 124 Cal. Rptr. 513,
P.2d 609, cert. den. 424 U.S. 943 (1976) ........ 3
Green vs. Superior Court (1974), 10 Cal.3d 616 ... 13
Hanson vs. Denckla (1958), 357 U.S. 235, 78 S.Ct.
SENG \c:a 5k <a A CRRA Vie eo oe eas 7, 15
Henry vs. Mississippi (1965), 379 U.S. 443, 85 S.Ct.
364, reh. den. 380 U.S. 926, 85 S.Ct. 878 ........ 13
Herndon vs. Georgia (1935), 295 U.S. 441, 55 S.Ct.
EN ee ee Ore Pep rye ee re ee 8
International Brotherhood of Electrical Workers vs.
City of Gridley (1983), 34 Cal.8d 191 .......... )
Jankovich vs. Indiana Toll Road Commission (1965),
so Bk me OE ee ere 11
Lear, Ine. vs. Adkins (1969), 395 U.S. 653, 89 S.Ct.
a a Sakae oe hn CR ee hc dhs be She eee es 10
Local Union No. 370, ete. vs. Detrick (9th Cir. 1979),
EP aa ME io ek OSS 2. ek he Be les gk ee es 12
Los Angeles Metropolitan Transit Authority vs.
Brotherhood of Railroad Trainmen (1960), 54
FS Pe eerie cy ee ee eee eee 12
Missouri vs. Gehner (1930), 281 U.S. 313......... 7,9
Parker vs. North Carolina (1970), 397 U.S. 790, 90
i ME We chk pees ge eee Renae s & wb ks 13
People vs. Payne (1977), 75 Cal.App.3d 601....... 14
Prince vs. Hill (1915), 170 Cal. 193 .............. 14
Radio Station WOW, Ine. vs. Johnson (1945), 326
ih Be Ee hs ee err ee ns ae 7
Rodriguez vs. Bethlehem Steel (1974), 12 Cal.3d 382 13
Nolo Ns nade tna ch bends
seat oi NOAM allel
Vv
INDEX TO AUTHORITIES
CASES
Page
San Diego Teachers Association vs. Superior Court
of San Diego (1979), 24 Cal3d1.............. 8
Smith vs. Crocker First National Bank (1957), 152
PEE Gc oa Sc asuuakins yb as ease ues 14
Smith vs. Smith (1961), 366 U.S. 210, 81 S.Ct. 1050 11
Southwest Bell Telephone Company vs. Oklahoma
(1938), 303 U.S. 206, 58 S.Ct. 528 ............ 10, 15
State of California vs. City and County of San Fran-
cisco (1979), 94 Cal.App.3d 522 ............... 17
Street vs. New York (1969), 394 U.S. 576, 89 S.Ct.
Summers, In re (1945), 325 U.S. 561, 65 S.Ct. 1307 10
United States vs. Atlas Life Insurance Company
ee 8 Fe Pere cee eee eee ee 7
Statutes
California Government Code §§ 3500, et seq. ...... 3, 12
California Water Code $§ 13370, et seq............ 2,17
Federal Resource Conservation and Recovery Act of
Federal Water Pollution Control Act, 33 U.S.C.
sh on ee yea peek ss a 2,9
National Labor Relations Act (29 U.S.C. §$§ 151 et
NS ais eee Ne eee Oa ei ve ees 11, 12
vi
INDEX TO AUTHORITIES
STATUTES
United States Code, Title 28, See.
United States Code, Title 28, See.
United States Code, Title 33, Sec.
United States Code, Title 33, See. |
United States Code, Title 33, Sec.
United States Code, Title 42, Sec.
United States Code, Title 42, See.
Page
i err 6
ee 2
Ae 2, 16
ad i a. A583 16
1321 See 16
eS err 16
ue SER ERE 16
No. 85-507
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.
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
Respondents, Los Angeles County Employees Associa-
tion, Local 660, Service Employees International Union,
AFL-CIO, Victor N. Hochee, Harry Gluck and Jack
Roberts, oppose the Petition for Writ of Certiorari. Peti-
tioner’s request for this Court’s review is not justified in
that Petitioner failed to preserve the federal question
; below. Further, this Court should not grant review in that
the decision of the California Supreme Court in this
a ee
2
matter rests on substantial and independent state
grounds.
OPINION AND JUDGMENT BELOW
The—deeision of the California Supreme Court is re-
ported as County Sanitation District No. 2 of Los Angeles
County vs. Los Angeles County Employees’ Association,
Local 660 (1985), 38 Cal.3d 564, 214 Cal.Rptr. 424, 699
P.2d 835, and is reprinted in Petitioner’s Brief as Appen-
dix “A”.
JURISDICTION
Petitioner has improperly invoked this Court’s jurisdic-
tion under 28 U.S.C. § 1257(3). The California Supreme
Court’s decision in County Sanitation District No. 2 of Los
Angeles County vs. Los Angeles County Employees’ Associa-
tion, Local 660 (1985), 38 Cal.3d 564, rests on substantial
and independent state grounds, and thus is not review-
able by this Court. Further, the federal question, through
which Petitioner seeks to assert this Court’s jurisdiction,
was first raised below in a Petition for Rehearing to the
California Supreme Court. (Petitioner’s Petition for Re-
hearing is reprinted in its Brief as Appendix “F”’.) Thus,
Petitioner did not preserve the federal question below in
that Petitioner failed to raise the federal question in a
timely manner.
STATUTORY PROVISIONS INVOLVED
In addition to the statutes referred to in the Petition,
Respondents would have this Court take notice of Califor-
nia Water Code §$§ 13370, et seq., which Code sections
implement the Federal Water Pollution Control Act, 33
U.S.C. $§ 1251-1376.
3
STATEMENT OF THE CASE
Los Angeles County Employees Association, Local 660,
Service Employees’ International Union, AFL-CIO (here-
after referred to as “Union” or “Respondent”) is the
certified bargaining representative of the blue collar em-
ployees employed by the County Sanitation District
(hereafter referred to as “District” or “Petitioner’”’). The
District is a local public agency, and its labor relations
are governed by the Meyers-Milias-Brown Act (hereafter
referred to as “MMBA”), California Government Code
§§ 3500, et seq. Pursuant to the provisions of the MMBA,
the District and the Union negotiate on wages, benefits
and other terms and conditions of employment, and if the
parties reach agreement on these subjects of bargaining,
the District and the Union enter into a binding collective
bargaining agreement. See Glendale City Employees Asso-
ciation vs. City of Glendale (1975), 15 Cal.3d 328, 124
Cal.Rptr. 513, 540 P.2d 609, cert. den. 424 U.S. 943
(1976).
In early 1976, the District and the Union commenced
negotiations for a new contract to become effective July 1,
1976. As of June 23, 1976, the major issues separating the
parties involved the District’s proposals for reduced over-
time, salary increases, binding arbitration of grievances,
and shower and change time. Afier rejecting the Dis-
trict’s final offer, the employees voted on July 1, 1976 to
strike the District. On July 5, 1976, the employees of the
District commenced a strike which was in effect until July
16, 1976.
Commencing with the first day of the strike and contin-
uing throughout the work s_ +» age, the District assigned
all management and a substa:.tial number of professional
and supervisory employees to be physically stationed at
most of the facilities of the District so that the District
would be able to maintain plant operations throughout the
5 ee TE
4
period of the strike. Pursuant to this arrangement, the
District was successful in maintaining plant operations
throughout the period of the work stoppage.
On July 6, 1976, the District filed a Complaint for
Injunction and Damages. The District was granted a
Temporary Restraining Order. The strike continued after
the issuance of the Temporary Restraining Order. After
the strike ended, the District proceeded with the prosecu-
tion of its damage claim in this action.
Following a bench trial, the Superior Court held that
the strike was a public employee strike and was, there-
fore, unlawful, and that the Union was liable for damages.
(Conelusion of Law No. 1 of the Superior Court’s Find-
ings of Fact and Conclusions of Law, reprinted as Appen-
dix “C” in Petitioner’s Brief.) Respondents appealed this
judgment to the Court of Appeal of the State of Califor-
nia, asserting, inter alia, that strikes by public employees
in California should no longer be considered unlawfu’
under California common law. Petitioner opposed Re-
spondent’s appeal, arguing that strikes by public employ-
ees in California should continue to be construed as
unlawful.’
In its Opinion, the California Court of Appeal upheld
the liability of Respondents. However, while finding itself
bound by the common law rule that denies public employ-
ees the right to strike, the Court of Appeal noted that
recent decisions of the state Supreme Court had cast
doubt on the continuing validity of this common law rule.
County Sanitation District No. 2: of Los Angeles County vs.
Los Angeles County Employees Association, Local 660
‘Respondents’ Opening Brief in the Court of Appeal of the State of
California is reprinted herein as Appendix “A”. Petitioner’s Brief to
the Court of Appeal is reprinted herein as Appendix “B”.
ee
ee a
eae iia ails eli
5)
(1983), 147 Cal.App.3d 990, 995-997, 195 Cal.Rptr. 567
(withdrawn from publication).
Respondents filed a Petition for Hearing with the
California Supreme Court in November of 1983, seeking
review of the Court of Appeal’s decis:on. In their Petition
for Hearing, Respondents argued, inter alia, that the
California Supreme Court should overturn the California
common law rule outlawing strikes by public sector em-
pioyees.® Petitioner filed an Answer to the Petition for
Hearing in December 1983, asserting that the common
law rule on the illegality of public employee strikes should
be maintained.*
The California Supreme Court grarted a hearing in
January 1984, and on May 13, 1985, the Court issued its
decision.” The California Supreme Court reversed the
Court of Appeal and held that, in the absence of a specific
legislative prohibition, public employees in California
have the right to strike unless the strike creates a “sub-
stantial and imminent threat” to the health or safety of
the public.
On May 24, 1984, the District filed a Petition for
Rehearing before the California Supreme Court raising,
for the first time, the District’s contention that strikes by
District employees violate the Federal Water Pollution
"The Court of Appeal’s decision is reprinted as Appendix “B” in
Petitioner’s Brief.
’Respondents’ Petition for Hearing in the Supreme Court of the
State of California is reprinted herein as Appendix “C”’.
*Petitioner’s Answer to Petition for Hearing in the California
Supreme court is reprinted herein as Exhibit “D”.
‘The California Supreme Court’s decision is reprinted as Appendix
“A” in Petitioner’s Brief.
6
Control Act and the Federal Resource Conservation and
Recovery Act of 1976.°
On June 4, 1985, Respondents filed their Answer to
Petition for Rehearing with the California Supreme
Court, arguing, inter alia, that, pursuant to California
practice and procedure, Petitioner had not raised the
issue of the federal statutes in a timely manner.’
On June 27, 1985, the California Supreme Court denied
the District’s Petition for Rehearing.”
REASONS FOR DENYING THE WRIT
i
THE FEDERAL QUESTION URGED BY PETITIONER
WAS NOT PRESENTED TO THE COURT IN A
TIMELY MANNER.
Petitioner challenges the decision of the California
Supreme Court as being in substantial conflict with the
Federal Water Pollution Control Act (“Pollution Control
Act’’) and the Federal Resource Conservation and Recov-
ery Act of 1976 (“Recovery Act”). However, Petitioner
raised the applicability of the Pollution Control Act and
the Recovery Act to strikes by sanitation workers for the
first time in its Petition for Rehearing, filed: with the
California Supreme Court.
In order to obtain review of a state court decision in
this Court pursuant to 28 U.S.C. § 1257, it must affirma-
Petitioner's Petition for Rehearing in the California Supreme
Court is reprinted as Appendix “F” in Petitioner’s Brief.
"Respondents’ Answer to Petition for Rehearing in the California
Supreme Court is reprinted herein as Appendix “E”’.
“The California Supreme Court's denial of the District’s Petition
for Rehearing is reprinted as Appendix “G” in Petitioner's Brief.
———
7
tively appear that a substantial federal question was
presented to the state court in a timely fashion and was
passed upon by that court. Cardinale vs. Louisiana
(1969), 394 U.S. 437, 439, 89 S.Ct. 1161, 1163. Raising the
federal question for the first time in a petition for rehear-
ing addressed to the highest state court generally is
insufficient to assert the jurisdiction of this Court unless
the state court actually entertained the petition and
expressly decided the question. Hanson vs. Denckla
(1958), 357 U.S. 235, 243-244, 78 S.Ct. 1228, 1234; Radio
Station WOW, Inc. vs. Johnson (1945), 326 U.S. 120, 128;
65 S.Ct. 1475, 1480. It is readily apparent from the
California Supreme Court’s denial of Petitioner’s Petition
for Rehearing that said court did not expressly consider
the federal question which Petitioner now urges upon this
Court. (See Appendix “G” to Petitioner’s Brief.) Peti-
tioner’s failure to raise the federal question, which it now
urges upon this Court, in a timely fashion below, consti-
tutes a waiver of that issue for the purposes of review by
this Court.
Petitioner cites Brinkerhoff-Faris Trust Company vs.
Hill (1930), 281 U.S. 673, and Missouri vs. Gehner (1930),
281 U.S. 318, disapproved on other grounds, United Siates
vs. Atlas Life Insurance Company (1964), 381 U.S. 233, for
the proposition that a federal question may be raised for
the first time in a petition for rehearing when the federal
question is created by an unexpected decision of the state
court which gave petitioner no prior opportunity to antici-
pate or assert the particular federal question. An exami-
nation of the facts of Brinkerhoff-Faris and Missourn
shows, however, that this principle applies only in situa-
tions where the basis of the state court’s decision had not
been suggested nor litigated by any party to the litiga-
tion. This exception to the timeliness rule does not apply
in the instant case.
8
Petitioner disingenuously asserts that it was surprised
by the decision of the California Supreme Court. It is
clear from a reading of all the Briefs filed in the Califor-
nia state courts that the legality of strikes by public
employees was an issue litigated by the parties from the
commencement of this action with the trial court and
throughout the appellate process. Respondents urged to
the state Court of Appeal and the state Supreme Court
that the common law rule outlawing strikes by public
employees in California should be changed. In fact, Re-
spondents specifically argued for the standard which the
California Supreme Court ultimately adopted in its deci-
sion. (See Respondents’ Petition for Hearing filed with
the California Supreme Court, Appendix “C”’ herein.)
Moreover, Petitioner argued, in its Briefs before the state
appellate court and the state Supreme Court, that the
common law rule outlawing strikes by public sector em-
ployees should be maintained. (See Appendices “B” and
“D” herein.)
It is clear that a litigant who raises a federal question
for the first time in a petition for rehearing with a state’s
highest court can only preserve his right to review by this
Court if the litigant can show that the decision of the
state court was a surprise and could not have been
reasonably anticipated from prior decisions. Herndon vs.
Georgia (1935), 295 U.S. 441, 55 S.Ct. 794. There was no
surprise in this case. Prior to the decision of the Califor-
nia Supreme Court in the instant case, the trend of the
recent decisions of that court has been to carve out an
ever-growing number of exceptions to the common law
rule outlawing strikes by public employees. See City and
County of San Francisco vs. Cooper (1975), 13 Cal.3d 898
(California Supreme Court held that a labor agreement
resulting from a strike by public sector workers was valid
and enforceable); San Diego Teachers Association vs. Supe-
rior Court of San Diego (1979), 24 Cal.3d 1 (legality of
ome SR ee BB BOO BI t ne
9
public employees strikes was said to be an open question);
El Rancho Unified School District vs. National Education
Association (1983), 33 Cal.3d 946 (California Supreme
Court divested superior courts of the jurisdiction to
entertain a complaint for damages filed by a school
district against a union which had led a strike of public
school employees); International Brotherhood of Electrical
Workers vs. City of Gridley (1983), 34 Cal.3d 191 (Cali-
fornia Supreme Court held that it was unlawful for the
City to terminate the certification of a union which had
engaged in a strike involving public sector workers).
Indeed, the decision of the Court of Appeal in this
matter, while upholding the trial court’s award of dam-
ages, questioned the vitality of the common law rule
outlawing strikes by public employees. (See the decision
of the appellate court at pp. 4-7, reprinted in Petitioner’s
Brief as Appendix “B”’.)
Thus, the decision of the California Supreme Court was
not unexpected and should have been anticipated by
Petitioner, as this decision was clearly foreshadowed by
prior recent decisions of that court, by the opinion of the
state Court of Appeal, and by the litigants’ Briefs to both
appellate bodies. Accordingly, the cases of Brinkerhoff-
Faris Trust Company vs. Hill, supra, and Missouri vs.
Gehner, supra, are not applicable. Having failed to raise
the federal question in a timely manner before the state
court, Petitioner has, therefore, waived its right to review
by this Court.
II
THE PETITION DOES NOT RAISE A REAL AND
SUBSTANTIAL FEDERAL QUESTION.
The federal question urged by Petitioner is an abstract
issue that does not affect the rights of the litigants in this
proceeding. Petitioner argues in the hypothetical as to
10
how the decision of the California Supreme Court may, in
the future, conflict with the Pollution Control] Act and the
Recovery Act. It is clear from the facts of the instant case
that the District wes able to maintain its facilities and
operations throughout the strike, and thereby avoided the
possibility of violating the Pollution Control Act and the
Reeovery Act. County Sanitation District No. 2 of Los
Angeles County “ie Angeles County Employees’ Associa-
tion, Local 660 (1985), 38 Cal.3d 564, 568. Accordingly,
no actual case or controversy is present in the instant
ease.
Assuming, arguendo, that Petitioner had raised its
federal question below in a timely manner, Petitioner
must show thai a decision on the federal question is
necessary to this Court’s disposition of the case. Lear,
Inc. vs. Adkins (1969), 395 U.S. 653, 89 S.Ct. 1902;
Southwest Bell Telephone Company vs. Oklahoma (1938),
303 U.S. 206, 212-218, 58 S.Ct. 528, 530. In order to
secure the review of this Court, Petitioner must seek a
declaration of rights as they stand, not on rights which
may arise in the future, and there must be an actual
controversy over an issue, not a desire for an abstract
declaration of law. In re Summers (1945), 325 U.S. 561,
567, 65 S.Ct. 1307.
Petitioner can show no violation of the Pollution Con-
trol Act or the Recovery Act arising out of the strike by
the District’s employees in 1976. The District was able to
maintain and operate its plants and facilities throughout
the strike, Thus, the federal question raised by Petitioner
does not arise from or have any application to the facts of
this ease. As the District was able to maintain plant
operations by utilizing management personnel throughout
the strike, there was no discharge of pollutants into the
waterways, and, therefore, no violation of the Pollution
Control Act. Similarly, as the District was able to operate
11
its landfills with management personnel, the possibility of
a violation of the Recovery Act did not arise.
The federal question urged by Petitioner upon this
Court is thus unnecessary to a determination of this case.
It is improper for Petitioner to seek this Court’s review of
a hypothetical question which does not affect the rights of
these litigants.
ill
THE DECISION OF THE CALIFORNIA SUPREME
COURT RESTS ON ADEQUATE AND INDEPEN-
DENT STATE GROUNDS.
It is well accepted that this Court will not review a
decision of a state court resting upon adequate and
independent state grounds. Bell vs. Maryland (1964), 378
U.S. 226, 84 S.Ct. 1814; Smith vs. Smith (1961), 366 U.S.
210, 81 S.Ct. 1050. Even if a judgment of a state court
rests upon two grounds, one federal and the other non-
federal, this Court is without jurisdiction to review the
ease if the non-federal ground is independent of the
federal ground and adequate to support the judgment.
Jankovich v. Indiana Toll Road Commission (1965), 379
U.S. 487, 85 S.Ct. 493. The decision of the California
Supreme Court in this matter to reverse its prior decision
and legalize strikes by public employees within California
rests firmly on independent and adequate state grounds.
A. THE REGULATION OF LOCAL PUBLIC SECTOR
LABOR RELATIONS {S A MATTER OF STATE
CONCERN.
The National Labor Relations Act (29 U.S.C. $§ 151, et
seq.) was enacted by Congress to regulate labor relations
within the United States. The National Labor Relations
Act (“NLRA”’) specifically excludes from NLRA cover-
age state governments and their political subdivisions.
12
(29 U.S.C. § 152(2).) In Abood vs. Detroit Board of Edu-
cation (1977), 431 U.S. 209, 223, 79 S.Ct. 1782, 1793, this
Court interpreted this exclusion as leaving the regulation
of the labor relations of state and local governments to
the state. Accord, City of Saginaw vs. SEIU Local 446-M
(6th Cir. 1983), 720 F.2d 459, 462; Local Union No. 370,
etc. vs. Detrick (9th Cir. 1979), 592 F.2d 1045, 1046; Crilly
vs. Southeastern Pennsylvania Transportation Authority
(3rd Cir. 1976), 529 F.2d 1359. Accordingly, the Califor-
nia Supreme Court’s decision to legalize strikes by public
employees was a proper exercise of that court’s authority
to regulate labor relations within the State of California.
In Los Angeles Metropolitan Transit Authority v. Broth-
erhood of Railroad Trainmen (1960), 54 Cal.2d 684, the
California Supreme Court stated in dicta that in the
absence of specific legislative authorization, ‘strikes by
public employees were considered illegal. Los Angeles
Metropolitan Transit Authority was decided at a time when
public employees in the State of California did not gerer-
ally have the right to organize collectively or to bargain
over their terms of employment. In 1968, the California
State Legislature passed the Meyers-Milias-Brown Act
recognizing the right of public employees to organize and
to bargain collectively. See California Government Code
$§ 3500, et seq. On its face, the MMBA neither denied nor
granted local governmental employees the right to strike.
Over the years in California, the law of public sector labor
relations has continued to develop. It was in the light of
these ongoing changes that the California Supreme Court
decided, in the instant matter, to exercise its authority to
Se eee Pe
On mcs Wy Bre tame
13
change the state common law and make strikes by publie
sector employees legal.
It is well established in California that the California
Supreme Court has the right to redefine, modify or even
abolish a common law rule. Rodriguez v. Bethlehem Steel
(1974), 12 Cal.3d 382, 394; Green vs. Superior Court
(1974), 10 Cal.3d 616, 629. By legalizing strikes by public
sector employees within the State of California, the Cali-
fornia Supreme Court has exercised the power of the
California courts to alter the California common law,
coupled with the power of the state courts to regulate the
labor relations of public employees within this state.
Accordingly, this court should deny Petitioner’s re-
quest to review the California Supreme Court’s decision
in this matter, as that decision rests upon adequate and
independent state grounds.
B. PETITIONER’S RAISING OF A NEW ISSUE IN
ITS PETITION FOR REHEARING WITH THE
CALIFORNIA SUPREME COURT DOES NOT AC-
CORD WITH STATE PRACTICE.
The principle that this Court will not review state court
judgments resting upon independent and adequate state
grounds, even where those judgments also decide federal
questions applies not only in cases involving state sub-
stantive grounds, but also in eases involving state proce-
dural grounds. Henry vs. Mississippi (1965), 379 U.S. 443,
85 S.Ct. 364, reh. den. 380 U.S. 926, 85 S.Ct. 878. Thus,
the failure to timely raise a federal issue in accordance
with state practice can constitute a waiver of that point,
which bars review by this Court. Parker vs. North Carolina
(1970), 397 U.S. 790, 90 S.Ct. 1458.
It is the long-standing practice and procedure within
California that the appellate courts will not grant a
rehearing on points newly urged in a petition for rehear-
14
ing. It is the duty of counsel to see that all points are
properly presented in the original briefs or argument,
before submission. People vs. Payne (1977), 75
Cal.App.3d 601, 605; City of Saratoga vs. Huff (1972), 24
Cal.App.3d 978, 1006; Smith vs. Crocker First National
Bank (1957), 152 Cal.App.2d 832, 836; Esterbrook Com-
pany vs. Industrial Accident Commission (1918), 177 Cal.
767, 771; Prince vs. Hill (1915), 170 Cal. 193, 195; An-
drews vs. Mokokelumne Hill Company (1857), 7 Cal. 330,
333.
Relying on Chambers vs. Mississippi (1973), 410 U.S.
284, 290, n. 3, 93 S.Ct. 1038, and Street vs. New York
(1969), 394 U.S. 576, 681-85, 89 S.Ct. 1354, Petitioner
asserts that it is proper for this Court to review a state
eourt’s decision even if the state court has failed to
articulate its denial of a federal claim raised by one of the
litigants. (Pet., p. 14.) These cases, however, are inappli-
cable to the instant matter.
Both Chambers and Street were criminal cases involving
issues of constitutional law. In Chambers, supra, the
appellant raised as a defense his denial of due process as
early as the trial court, claiming that a state evidentiary
rule barring cross-examination of a witness in certain
eontexts denied him his due process. Appellant raised the
same claim in a motion for a new trial and again on appeal
to the state Supreme Court. In Street, supra, this Court
found that the appellant had sufficiently raised a constitu-
tional objection to a state statute during his trial and
again before the state appellate courts, even though the
state courts had failed to rule on this claim in their
disposition of appellant’s case.
In the instant case, Petitioner raised its federal claim
for the first time in its Petition for Rehearing with the
California Supreme Court. Both this Court and the Cali-
fornia courts have long maintained that, absent extraordi-
NEAL a AE! aan T pinata ect Lila ibe tte abel
ele lt aw. oe ot
15
nary circumstances, a claim raised for the first time in a
petition for rehearing will not be reviewed. Hanson vs.
Denckla (1958), 357 U.S. 235; Esterbrook Company vs.
Industrial Accident Commission (1918), 177 Cal. 767, 771.
Petitioner has made no argument that the California
Supreme Court, in denying a rehearing, applied this
principle in an overly stringent manner in an attempt to
bypass adjudicating the federal claim urged by Peti-
tioner. Thus, Petitioner has not met its burden of affirma-
tively rebutting this Court’s presumption that the state
eourt’s silence on the federal claim was due to Peti-
tioner’s failure to timely present this claim. See Street vs.
New York (1969), 394 U.S. 576. Moreover, Petitioner has
also failed to show that it was necessary for the state
eourt to reach the federal claim in order to decide the
ease. Southwest Bell Telephone Company vs. Oklahoma
(1938), 303 U.S. 206. Absent such an affirmative showing,
this Curt should decline to review Petitioner's claim.
IV
THE STANDARD ADOPTED BY THE CALIFORNIA
SUPREME COURT IS NOT REPUGNANT NOR IN
CONFLICT WITH THE FEDERAL STATUTES.
In its decision, the California Supreme Court declared
that “strikes by public employees are not unlawful at
common law unless or until it is clearly demonstrated
that such a strike creates a substantial imminent threat to
the health or safety of the public.” County Sanitation
District No. 2, supra, 38 Cal.3d at p. 586. Contrary to
Petitioner's assertions, this standard does not conflict
with the Pollution Control Act or the Recovery Act.
It is the purpose of both the Pollution Control Act and
the Recovery Act to regulate open landfills and the
discharge of pollutants so as to protect the environment
16
and the health and safety of the public. 33 U.S.C. § 1251;
42 U.S.C. § 6902. The standard adopted by the California
Supreme Court in legalizing strikes by public sector
workers does not conflict with these purposes.’
The potential environmental catastrophes which Peti-
tioner claims would result from publie sector strikes fall
squarely within the standard enunciated by the California
Supreme Court in this matter. Such catastrophes would
necessarily constitute a “substantial and imminent threat
to the health or safety of the public,” and such a strike
could, therefore, be enjoined. The California Supreme
Court noted in its decision that there was no showing by
the District that the health and safety of the public was at
any time threatened. The Court noted that had such a
showing been made, the trial court would then have had
the authority to declare such a strike illegal and to enjoin
it. County Sanitation District No. 2 of Los Angeles County
vs. Los Angeles County Employees’ Association, Local 660,
supra, 38 Cal.3d at p. 587, n. 35.
Additionally, Petitioner has made no showing that the
decision of the California Supreme Court in this case has
obstructed the remedial and enforcement mechanisms
provided in the Pollution Control Act and the Recovery
Act. The Pollution Control Act and the Recovery Act
contain provisions for injunctiens, fines and criminal
penalties for those persons who violate sections of the
Pollution Control Act and the Recovery Act. See, for
example, 33 U.S.C. $1319, and 42 U.S.C. § 6973. The
decision of the California Supreme Court in this case does
nothing to prevent either state or federal governments
from exercising these remedial and enforcement powers.
It is interesting to note that Section 1321(e) of the Pollution
Control Act, 33 U.S.C. § 1321(e), adopts basically the same standard
for securing judicial relief against an actual or threatened discharge
of hazardous substancés into the nation’s waterways.
17
These remedies have, in fact, been exercised by the state
government in the context of a strike by public sector
sanitation workers. In State of California vs. City and
County of San Francisco (1979), 94 Cal.App.3d 522, both
the employer and the union were subject to a substantial
fine for violations of various provisions of the Pollution
Control Act as implemented by the state Water Code.
(California Water Code § 13370, et seg.) In that case,
unlike the instant matter, the employer had decided not
to run its facilities with management personnel during
the strike by its employees. The shutdown of the sanita-
tion facilities resulted in the discharge of pollutants into
the waterways, which was the ultimate reason for the fine.
Lastly, there is nothing either in the Pollution Control
Act or the Recovery Act to indicate a congressional intent
te outlaw strikes by sanitation workers, be they public or
private sector workers. Absent such a congressional in-
tent, it is difficult to construe how the decision of the
California Supreme Court conflicts with the Pollution
Control Act or the Recovery Act. Accordingly, Petitioners
have improperly sought review of the state court’s deci-
sion in this matter.
18
V
CONCLUSION
For all the foregoing reasons, Respondents respectfully
submit that the Petition for Writ of Certiorari should be
denied.
DATED: October 24, 1985
Respectfully submitted,
LEO GEFFNER and
JEFFREY PAULE, members of
GEFFNER & SATZMAN
A Professional Corporation
By
JEFFREY PAULE
Attorneys for Respondents
Los Angeles County
Employees Association,
Local 660,
Service Employees
International Union,
AFL-CIO, et al.
APPENDIX A
APPENDIX A
2ND CIVIL No.
66088
In the Court of Appeal
SECOND APPELLATE DISTRICT
State of California
COUNTY SANITATION DISTRICT No. 2
oF Los ANGELES COUNTY, a public agency,
Plaintiff and Respondent,
vs.
Los ANGELES COUNTY EMPLOYEES ASSOCIATION,
LOcAL 660,
SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO;
Victor N. HOCHEE, HARRY GLUCK,
JACK ROBERTS, ANTHONY BUTKA, EUGENE MILLER,
GARY SCHALANDER, BILLY MANNING,
Defendants and Appellants.
Appeal from the Superior Court of Los Angeles County.
Hon. Charles H. Older, Judge.
APPELLANT’S OPENING BRIEF.
LEO GEFFNER,
GEFFNER & SATZMAN,
A Professional Corporation,
3055 Wilshire Boulevard,
Suite 900,
Los Angeles, Calif. 90010,
(213) 487-1520,
Attorneys for Appellants.
2a
TOPICAL INDEX
Page
‘.
Preliminary Statement ...............-- eee eeees 9a
II.
Summary of Facts ....... 2.2.2 cc ccc cee eee eenees lla
ITI.
Whether a Public Employees Strike Provides a Tort
Cause of Action for Damages Is an Unresolved
Tneme in. ColiGentin. .....0 ks sc eke ieee ane = l6a
A. A Cause of Action for Damages Would Be
Contrary to the Publie Policy of California
Under the Meyers-Milias-Brown Act (Govern-
ment Code Sections 3500, et al.), Which Is to
Encourage Resolutions of Disputes Between
Publie Agencies and Their Employees...... 18a
B. The Cases Holding. That the Common Law
Prohibits a Public Employees Strike and Sub-
jects the Union and the Employees to Dam-
ages Are Not Consisteut With Modern
Society, and the California Courts Have Con-
sistently Modified or Drastically Changed the
Common Law to Meet the Needs of Our Cur-
rent Society... 0... cscs cece ces ee er esenes 19a
C. The District Did Not Engage in Fair
Bargaining, and Therefore the Employees
Had the Right to Engage in Economie Action
in Order to Obtain a Reasonable Settlement 23a
D. The Claim for Damages for a Peaceful Public
Employees Strike Will Deprive the
Employees and the Unior of Basic
Constitutional Rights Under the California
Conatitetios. «o.oo sc isk de 5555 G4 eee 23a
= a a eee
3a
A
IV.
The Trial Court Committed Prejudicial Error in
Granting Excessive, Unreasonable and Unlawful
Compensatory Damages ...................... 24a
A. The Trial Court Committed Error in Allowing
$18,046.54 as Compensatory Time Based on
Time and a Half for Management Employees 24a
B. The Trial Court Committed Prejudicial Error
in Allowing Compensatory Damages to
Management Employees at Time and One
Half When the Salary Resolution of the
District Provided for Straight Time and the
Board of Directors of the District Did Not at
Any Time Amend the Salary Ordinance or
Authorize the Payment of Time and One Half 26a
C. The Trial Court Committed Prejudicial Error
in Not Requiring Adequate Records and
Verification as to Overtime Worked, and by
Allowing Compensatory Damages on
Overtime for Employees Who Either Did Not
Work or Who Performed Work Unrelated to
a 32a
1. The Maintenance Yards ............... 35a
2. The South Gate Transfer Station....... 37a
D. The Trial Court Committed Prejudicial Error
in Awarding Overtime as Damages at the
Upstream and Desert Treatment Plants .... 38a
E. The Trial Court Allowed Excessive Overtime
Damages at the Joint Water Pollution
Control Plant (JWPCP), Long Beach and
Se a 46a
F. The Trial Court Was in Error in Granting
Damages for All Overtime at the Landfills... 5la
SE Ae Renee pei re ery eer er Ore ya
4a
G. The Trial Court Was in Error in Allowing the
Overtime at Laboratories and Offices of the
District Where No Strike Was in Effect.... 52a
The Trial Court Was in Error in Allowing All
the Items Claimed by the District as Strike-
Related Without Requiring Proof of
Reasonableness or Necessity..........---- 53a
a)”. Chm. UM i ree 53a
2. Meals at the Joint Administrative Offices 54a
The Trial Court Committed Error in Granting
Pre-Judgment Interest ........------+++5: 54a
— —— —
5a
TABLE OF AUTHORITIES CITED
Cases
Page
A. A. Baxter Corp. v. Colt Industries, Ine., 10
RIE BT UD ook os cn eos cckk cawkus 50
Bagley v. Washington Township Hospital District,
vob Re eres 24
Benson Electric Co. v. Hale Bros. Assoc., Inc., 246
Comme. 20 G66 (2008) ... 6.6 ec... 51
Block v. Laboratory Procedures, 8 Cal.App.3d 1042
a EIN aor heb ne ener Mee ee 4 Caen 54, 55, 56
Bullis v. Security Pacifie National Bank, 21 Cal.3d
ca de ee EET OL ET Ee PP ead 57
Butcher v. Superior Court of Orange County
(Forte), 139 Cal.App.3d 58 (1983) ............ 22
City and County of San Francisco v. Cooper, 13
Ce er OD Fa Ss Saul ck eesten. 16, 18
City of Fairmont v. RWDSU, 283 S.E.2d 589
NSS SRM INE ey ee eRe ore arly Shivers (iar acecisertene B. 17,18
Colvin v. John Powell and Co., 163 Neb. 122, 77
PUPP MIG Ns SANSA EEN Ok ON COR eee od NSS 50
Committee to Defend Reproductive Rights v. Cory,
Sp Me We CIOOE oo ic cee cicc cc otteR 23
Conderback, Inc. v. Standard Oil Company, 239
Cat App.3a G64 (1006)... 6 ik cae cccces 55
Elliano v. Assurance Company of America, 45
eS Be nary ete em 55
El Rancho Unified School District v. National Edu-
eation Association, 129 Cal.App.3d 177 (1982) .. 17
E. L. White, Ine. v. City of Huntington Beach, 138
Camm G66 (O08RD% oak oc oe SOR. 57
6a
Page
Esgro Central, Inc. v. General Insurance Company
of America, 20 Cal.App.3d 1054 (1971)......... 56
Frates v. Burnett, 9 Cal.App.3d 53 (1970) ........ 29
Greater Westchester Homeowners Association v.
City of Los Angeles, 26 Cal.3d 86 (1979)....... 57
International Brotherhood of Electrical Workers v.
City of Gridley, 121 Cal.App.3d 169 (1981) ..... 17
Johnston v. Board of Supervisors of Marin County,
Bi Cal.Be GE CIOET) 0. csc wccscscwsesccesess 29
Kitchel v. Acree, 216 Cal.App.2d 119 (1963) ...... 51
Kleinclaus v. Marin Realty, 94 Cal.App.2d 733
rrr rrr ry rere eer Tere 50
Lamphere Schools v. Lamphere Federation of Teach-
ers, 400 Mich. 104, 252 N.W.2d 1818 (1977) .... 18
Leaf v. Phil Rauch, Inc., 47 Cal.App.3d 371 (1971) 54
Levy-Zemper Company v. Southern Pacific Trans-
portation Company, 74 Cal.App.3d 762 (1977)
EE eS erry eee re ere ter eee 55, 56, 57
Li v. Yellow Cab Co., 13 Cal.3d 804 (1975) ....... 19
Lineman v. Schmid, 32 Cal.2d 204 (1948)
LG a ey ee eT ey oe eee we eee ee 54, 55
Longshore v. County of Ventura, 25 Cal.3d 14
PR eck vhs eneeKaetasageebewedeennes 29, 30, 31
Macumber v. State of California, 250 Cal.App.2d 391
SPP reer srt Tr err tes Cee 55
Martin v. Henderson, 40 Cal.2d 583 (1953) ....... 29
Muskopf v. Corning Hospital District, 55 Cal.2d 211
(| Se eeereer eet eee ee eee te eee 19
Page v. Bakersfield Uniform, ete., 239 Cal.App.2d
26) nh nner rene cee 31
ae ee Qe ee
7a
Page
Pasadena Unified School District v. Pasadena
Federation of Teachers, 72 Cal.App.3d 108
as APR ai td ee Walon ee aire SO 16, 17, 19
Rivolich v. Raymond, 20 Cal.App.2d 630.......... 50
Robins v. Pruneyard Shopping Center, 23 Cal.3d 899
(1977), affirmed 100 S.Ct. 2035 (1980)......... 24
Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382
GE tM wre hidckG ie bOEx bb anid Mev ase lena kk 20
San Diego Teachers Association v. Superior Court of
San Diego, 24 Cal.8d 1 (1979) ................ 16
Schwartz-Toriance Inv. Corp. v. Bakery & Confec-
tionery Workers, 51 Cal.2d 766 (1964) ......... 24
Sheffet v. Los Angeles County, 3 Cal.App.3d 720
TE 2 in oe A a BPN R ROT wins te vac ces 50
Southern Pacific Transportation Company v. State
of California, 115 Cal.App.3d 116 (1981) ...... 57, 60
Stafford v. United Farm Workers, 1 Cal. S.Ct.
SE of GEGEN wine aon Us Reale Wali 4 k ka bce 24
Stationary Engineers v. San Juan Suburban Water
District, 90 Cal.App.3d 796 (1979) ............ 23
Steelduct v. Henger-Seltzer Co., 26 Cal.2d 634
SY V2 is AES Re Uae sk cea Mi adbleas Xebie See ee 50
Valencia v. Shell Oil Co., 23 Cal.2d 840 (1944).... 50
Van Riessen v. City of Santa Monica, 63 Cal.App.3d
6 is 9 ahd st waa MM eS ve bab oe oe «a 30, 31
Constitution
California Constitution, Art. IV, See. 17 (formerly
i 31
California Constitution, Art. XI, See. 10(a)....... 31
8a
Page
Miscellaneous
California Public Employee Relations No. 48 (March
Are Cate » eer ha 20
Statutes
Civil Code, See. S287... cc ccc cece eee eees 56
Civil Code, Sec. 3287(a) ... 1... eee eee eee 56
Civil Code, Sec. 3287(b) .. 2.6... eee eee ee eee 56
Civil Code, Sec. 3288 ... 1... ee cee eee eee 56, 57
Government Code, Sees. 3500 et al., ..........-.- 18
Health and Safety Code, See. 6481 ...........--. 27
Textbooks and Treatises
California Jurisprudence 2d, See. 148, p. 290...... 51
25 Corpus Juris Secundum, See. 72, p. 842 ....... 50
4 Witkin on Torts, See. 870, p. 3158 ............. 50
9a
IN THE COURT OF APPEAL
SECOND APPELLATE DISTRICT
STATE OF CALIFORNIA
CouNTY SANITATION District No. 2
OF Los ANGELES COUNTY, a publie agency,
Plaintiff and Respondent,
vs.
Los ANGELES CoUNTY EMPLOYEES ASSOCIATION,
LOcaL 660,
SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO;
Victor N. HocHEE, Harry GLUCK,
JACK ROBERTS, ANTHONY BuTKA, EUGENE MILLER,
GARY SCHALANDER, BILLY MANNING,
Defendants and Appellants.
APPELLANTS’ OPENING BRIEF.
I.
PRELIMINARY STATEMENT.
On July 5, 1976, the employees of the Respondent
County Sanitation District No. 2 of Los Angeles County’
commenced a strike.
The District filed a Complaint in the Superior Court on
July 6, 1976, requesting injunctive relief in the First
Cause of Action. (Clerk’s Transcript pp. 1 and 32.)” The
‘The Plaintiff and Respondent in the action will be referred to as
the “District”. The Plaintiff and Respondent is the administrative
District of the Los Angeles County Sanitation Districts, consisting of
a number of Districts within Los Angeles County which are under a
Joint Administration Agreement. (Exh. 120.) All administrative
functions and labor relations have been delegated to District No. 2.
Reporter's Transcript Vol. I, p. 9. (Hereinafter, any references to the
Reporter's Transcript will be referred to as “Rep. Tr. Vol.”, followed
by the volume and page number.)
*All references to the Clerk’s Transcript will hereinafter be desig-
nated as “Cl. Tr.”, feilowed by the page number.
10a
Superior Court issued a Temporary Restraining Order on
July 6, 1976, restraining the strike. (Cl. Tr. p. 21.) The
Complaint was filed against the Los Angeles County
Employees Association, Local 660, Service Employees
International Union, AFL-CIO® and seven employees of
the Union. An Answer was filed to the Complaint alleging
as an affirmative defense that the District had not en-
gaged in good faith negotiations. (Cl. Tr. p. 142.) The
District filed an Order to Show Cause Re Contempt on
July 10, 1982, which the Superior Court set for hearing on
July 27, 1976. (Cl. Tr. p. 87.)
The strike terminated on July 16, 1976. The District
and the Union, sometime in the fall of 1976, entered into a
stipulation that the strike was in effect on three separate
days, and the Superior Court found only the Union in
contempt and assessed a $1,500.00 fine.*
On June 12, 1979, the District filed an Amended Com-
plaint amending the Second Cause of Action on the
prayer for damages. (Cl. Tr. p. 147.) A trial was held
before the Superior Court from March 18, 1981 and
concluding on April 6, 1981. The Superior Court entered
an Order of Intended Decision finding the Union and
three employees, Hochee, Gluck and Roberts, liable and
assessing compensatory damages in the amount of
$246,904.00, with pre-judgment interest. (Cl. Tr. p. 426.)
The Plaintiff filed Proposed Findings of Fact and Conclu-
sions of Law. (Cl. Tr. p. 431.) The Defendants filed
Objections to the Proposed Findings of Fact and Conclu-
sions of Law and filed a Request for Special Findings.
3Local 660 will hereinafter be referred to as “Union”.
‘The Clerk’s Transcript does not contain the stipulation and the
Order Re Contempt, as such documents have been misplaced. There
is no dispute that there was such a stipulation and order, or that the
Union paid the $1,500.00 fine.
lla
(Cl. Tr. p. 443.) The Plaintiff filed a Response to the
Objections and Request for Special Findings. (Cl. Tr. p.
460.) The Superior Court denied the Request for Special
Findings. (Cl. Tr. p. 478.) The Superior Court signed the
Findings of Fact and Conclusions of Law as submitted by
the Plaintiff, without any changes, on August 13, 1981.
(Cl. Tr. p. 479.) The Trial Court entered judgment
against the Union and the three individuals in the amount
of $246,904.00, plus $87,615.22 as pre-judgment interest
from July 18, 1976 and $874.65 as costs, for the total
amount of $335,393.87. (Cl. Tr. p. 488.) Judgment was
entered. (Cl. Tr. p. 491.) The Union and the three individ-
uals filed a Notice of Appeal from the Judgment. (Cl. Tr.
p. 594.)
II.
SUMMARY OF FACTS.
The Union was certified by the District as the bargain-
ing representative of the blue collar employees, consisting
of approximately 500 employees of the District engaged
in various classifications, such as Treatment Plant Opera-
tors, Sewer Maintenance Workers, and others.” In early
1976, the District and the Union commenced negotiations
for a new Memorandum of Understanding to become
effective July 1, 1976.° The bargaining revolved around
‘The various Memoranda of Understanding between the District
and the Union set forth the classifications of employees, salary
schedules, and other conditions of employment. (Exhs. 123, 355, 356,
and 357.)
*The Union had originally been certified in three bargaining units,
consisting of blue collar, technical and clerical. The technical unit
was later disbanded. The Teamsters filed for decertification elections
in the clerical and blue collar units, and became the certified bargain-
ing representative in the clerical unit. However, the Union retained
bargaining representatio.: rights for the blue collar unit following an
election in 1975.
12a
many issues. As of June 23, 1976, the major issues
separating the parties involved the District’s proposal to
reduce the amount of overtime, salary increases, binding
arbitration of grievances, and shower and change time.
(Rep. Tr. Vol. 1, pp. 141-173; Vol. 3, p. 579.) The employ-
ees voted on July 1, 1976 to strike after rejecting the
Distriet’s final offer. (Rep. Tr. Vol. 3, p. 595.) The
employees remained on strike until July 16, 1976 (Rep.
Tr. Vol. 3, p. 595), and the employees returned to work on
July 17, 1976 (Rep. Tr. Vol. 3, p. 606).
Commencing with the first day of the strike and contin-
uing on through July 17, 1976, the District assigned all
management and a substantial number of professional
and supervisory employees to be physically stationed at
most of the facilities of the District.’ The District as-
signed the management, professional and executive em-
ployees of the District to the Upstream and Desert
Treatment Plants, JWPCP, and the Long Beach and San
Jose Plants on a 24 hour basis, with meals brought into
the JWPCP. The landfills and maintenance yards were
staffed on a 12 hour basis; however, South Gate Transfer
Station was closed. The management, executive and pro-
fessional employees’ were paid time and one half for all
"The facilities of the District, for purposes of assignment and
discussion subsequently in this Brief regarding the payment of
excessive overtime and unnecessary staffing, can be divided into
seven groups: (1) the maintenance yards; (2) the South Gate Trans-
fer Station; (3) the Upstream and Desert Treatment Plants; (1) the
Joint Water Pollution Control Plant (“JWPCP”), Long Beach and
San Jose Plants; (5) the landfills; (6) the laboratories; and (7) the
joint administrative offices.
®Such employees are placed in a separate category from the blue
collar cr clerical employees regarding their salaries and methods of
overtime payment under the Salary Resolution of District. Hereinaf-
ter, for the sake of convenience, such employees will be referred to as
management employees.
13a
hours over 40 hours per week, which included the time
allotted for sleeping, eating, recreation, and driving to
and from restaurants for meals. (Rep. Tr. Vol. 3, pp. 674-
678; Vol. 4, pp. 832, 906, 908, 918, 923, 946-947.) The
employees at the landfills, including the management
employees, were assigned to a 12 hour shift with overtime
paid at rate of time and one half, with a 10% bonus added
to the hours.” (Rep. Tr. Vol. 4, pp. 972-987.)
The District is administered by Joint District 2, which
consists of a Board of Directors that adopts the resolu-
tions concerning the payment of salaries for all District
employees. The Board of Directors of the District annu-
ally adopted a Salary Resolution covering all employees
of the District, including the managment employees. Sel-
ary Resolutions were in effect on July 1, 1975 (Exh. 127)
and July 1, 1976 (Exh. 130). The Salary Resolutions
provide for overtime to management employees on the
basis of a formula depending on the employees’ salaries,
where at a specified level the amount of overtime is equal
to straight time. Unlike the blue collar and clerical em-
ployees, there is no provision for a time and one half
payment of overtime over 40 hours for management em-
ployees. The Salary Resolution did not provide for a 10%
bonus for any employees.
The order to pay time and a half payment to the
management employees was given by Parkhurst, the Chief
Engineer. (Rep. Tr. Vol. 2, pp. 517-523.) The 10% bonus
for the employees working at the landfills was authorized
by Frank Dair, who was in charge of the landfills. (Rep.
Tr. Vol. 4, pp. 987-988.)
*The 10% bonus was not added onto the overtime paid, but was
added onto the number of hours, thereby increasing the amount of
overtime.
l4a
The Board of Directors of the District met frequently
in June, July and August, 1976. (Rep. Tr. Vol. 2, pp. 525-
527; Exhs. 128, 129, 131, and 198.) The Board of Direc-
tors did not at any time approve or adopt any amendment
to the Salary Resolution authorizing time and one half
overtime payment to the management employees, or a 10%
bonus to the employees working at the landfills during the
strike.
The original Complaint filed on July 6, 1976 did not
specify the amount of damages, but alleged compensatory
damages in the amount of $27,000.00 a day and further
damages by proof, and $4,000,000.00 punitive damages.
(Cl. Tr. p. 132.)
On June 12, 1979, the District filed an Amended Com-
plaint as to the Second Cause of Action, and alleged
compensatory damages in the total amount of
$430,841.40, specified as (a) paid overtime in the amount
of $353,796.35, (b) compensatory overtime, $18,046.64,
and (c) related costs at $48,998.41, together with punitive
damages in the amount of $4,000,000.00. (C!. Tr. p. 147.)
The Plaintiff's Pre-Trial Brief stated that the District
was prepared to present evidence as to compensatory
damages in the amount of $400,000.00, and alleged that
there should be no offset on the strikers’ salaries saved by
the District and that the burden of proof on any offset
was on the Defendants. (Cl. Tr. p. 274.) During the
course of the trial, the Plaintiff submitted exhibits with
an itemization of compensatory damages in the amount of
$388,704.50 (Exh. 203.)
In the Answer to Interrogatories filed on October 28,
1978, the District answered that overtime paid was in the
amount of $330,973.75.
Proof was offered at the trial regarding the amount of
overtime for managemént employees in accordance with
15a
the Salary Resolution. (Exh. 196.) There was a dispute as
to the amount of overtime saved regarding the salaries of
the strikers that were not paid during the course of the
strike. (Exhs. 204 and 306.)
The Union offered exhibits regarding the amount of
overtime that would have been reasonable on the basis of
staffing at 8 hours, 12 hours, or 14 hours per day, rather
than paying the management employees on a 24 hour
basis, which included time for sleeping, eating, playing
ecards, and otherwise not working. (Exhs. 366, 367, 368,
and 369.)
The District claimed damages at overtime at time and
one half for management employees where the manage-
ment employees were not paid but were credited with
future time off. (Exh. 364.) The District offered specifics
regarding additional damages referred to as lost produc-
tive time in the amount of $32,341.04, which was not
admitted by the Trial Court. (Exh. 197.)
The Trial Court, in its Intended Decision (Cl. Tr. p.
426), assessed compensatory damages on the basis of
time and one half overtime to the managment employees,
but disallowed the 10% bonus to the landfill employees,
for a total overtime amount of $375,347.00; and allowed
an offset for saved salaries, FICA payments, retirement
and overtime saved for the strikers in the amount of
$134,443.00, with a deduction of $6,000.00 paid by the
District for health premiums for the month of July,
leaving a total offset in the amount of $128,443.00. The
Trial Court also awarded pre-judgment interest in the
amount of $87,615.00. (Cl. Tr. pp. 440, 448.)
16a
Il.
WHETHER A PUBLIC EMPLOYEES STRIKE PRO-
VIDES A TORT CAUSE OF ACTION FOR DAM-
AGES IS AN UNRESOLVED ISSUE IN
CALIFORNIA.
The Trial Court followed a number of decisions of the
Court of Appeal that have held that public employees in
California do not have the right to strike and that there is
a cause of action for damages arising out of such a strike.
Pasadena Unified School District v. Pasadena Federation of
Teachers, 72 Cal.App.3d 108 (1977). Although the Califor-
nia Supreme Court denied a petition for hearing in the
Pasadena Unified School District ease, the question as to
whether all public employee strikes are illegal was ex-
pressly left open in San Diego Teachers Association v.
Superior Court of San Diego, 24 Cal.3d 1 (1979).”°
The District’s cause of action for damages is inconsis-
tent with City and County of San Francisco v. Cooper, 13
Cal.3d 898 (1975), where the Supreme Court held that a
strike settlement agreement between San Francisco and a
union was valid and enforceable. The basic inconsistency
between Cooper and Pasadena is that an agreement result-
ing from a strike is enforceable, and yet the public agency
can then sue for damages arising out of the very same
strike. In Cooper, San Francisco was coerced, by a strike
of its employees, to increase its offer by many millions of
The Supreme Court vacated the trial court’s injunction against a
teachers strike on the basis of preemption where the primary jurisdic-
tion belonged to the Public Employment Relations Board. Although
the Teachers Unions argued that in the alternative, the common law
should be based on a right to engage in a peaceful strike, the
Supreme Court expressly declined to resolve such an issue. See
specifically that dissent of Justice Richardson, where he criticizes the
majority for leaving the issue open in view of the Supreme Court’s
prior refusal to grant a hearing in Pasadena.
17a
dollars. Clearly, such an added increase in salaries consti-
tutes damages to San Francisco, and under Pasadena,
there would be a cause of action. How can San Francisco,
on one hand, sue for such damages, and on the other
hand, be held liable on the enforceable agreement for the
increased salaries?
In International Brotherhood of Electrical Workers v.
City of Gridley, 121 Cal.App.3d 169 (1981), the Court of
Appeal held that a strike of city employees was illegal and
that the City could discharge the employees and termi-
nate the union’s certification as the bargaining represen-
tative of such employees. The Supreme Court has granted
a hearing.”
In El Rancho Unified School District v. National Educa-
tion Association, 129 Cal.App.3d 177 (1982), the Court of
Appeal in Division Three, Second Appellate District, held
that the school district did not have a cause of action for
injunctive relief based on the primary jurisdiction of the
Public Employee Relations Board, but that the district
did have a cause of action for damages, and stated:
“Tf the well settled rule denying public employees the
right to strike no longer represents the view of our
Supreme Court, it is the province of that Court to say
so. Its declination in San Diego to pass on the
question adds nothing to its earlier decision similarly
declining to resolve the question.”
The Supreme Court has granted a hearing.”
There is a fundamental distinction between a right to
obtain equitable injunctive relief restraining a strike, and
obtaining damages against a union and employees of the
union, as occurred in this case. See City of Fairmont v.
"Oral argument was held on December 6, 1982.
Oral argument was held on February 7, 1983.
18a
RWDSU, 283 S.E.2d 589 (1980), where the West Virginia
Appellate Court held there was no common law right to
damages based on a public employees strike. See also
Lamphere Schools v. Lamphere Federation of Teachers, 400
Mich. 104, 252 N.W.2d 1818 (1977), where the Michigan
Court held that in the absence of specific legislation, there
was no common law right to damages. The Michigan
Supreme Court found a basic distinction between a right
of injunctive relief concerning a strike that is against
publie policy, and the ingredients of a common law tort
action, under the classic requirements of “duty’’, “breach
of duty” and “monetary damages”, constituting the triad
of traditional tort law. The Michigan Supreme Court
stated:
“Furthermore, the ultimate legislative goal is to
achieve a prompt, fair resolution of disputes while
avoiding the disruption of the educational process.
To recognize alternative tort remedies would result
in a substantial negative impact upon such purposes.
It would encourage tne teachers’ and school board’s
inaction. Eventual settlements could be prolonged
pending the resolution of multiple tort claims and
ecounterelaims. The inevitable result would be to cre-
ate labor law logjams in our courts, and, at the same
time, to exacerbate labor-management disputes.”
A. A Cause of Action for Damages Would Be Contrary
to the Public Policy of California Under the Meyers-
Milias-Brown Act (Government Code Sections 3500,
et al.), Which Is to Encourage Resolutions of Dis-
putes Between Public Agencies and Their Employees.
Under Cooper, following a strike, Sen Francisco agreed
to a settlement in the approximate additional amount of
$4,000,000.00 for the fiscal year. Logically. under a cause
of action for damages, the city could sue the union for the
additional $4,000,000.00: It is difficult to reconcile the
19a
validity of the contract calling for the increased salaries
and still allow the city to sue for damages arising out of
the strike. Therefore, the dispute would remain unsettled
while the parties litigated in court.
As a matter of public policy, a cause of action for
damages can only increase the difficulties in the reselu-
tion of the labor dispute. A union and employees in a
strong economic position will remain on strike until the
publie agency agrees, as part of a settlement, to provide
amnesty and a full release as to any damages.
The basis for a common law cause of action on damages
involves itself with the concept of a “conspiracy”, which
has long been disregarded in California.”
To disallow a cause of action for damages would not
displace the right of the District or any public agency to
seek equitable relief, where there is an actual danger to
the health and welfare of the community.
B. The Cases Holding That the Common Law Prohibits
a Public Employees Strike and Subjects the Union
and the Employees to Damages Are Not Consistent
With Modern Society, and the California Courts
Have Consistently Modified or Drastically Changed
the Common Law to Meet the Needs of Our Current
Society.
The Supreme Court, in Muskopf v. Corning Hospital
District, 55 Cal.2d 211 (1961), changed the common law
on sovereign immunity regarding lawsuits; and in li v.
Yeliow Cab Co., 13 Cal.3d 804 (1975), the Supreme Court
'3In Pasadena, the Court found a common law tort claim for
damages based on the holding that there was a contract between the
individual teacher and the school district which the union attempted
to disrupt by a strike. In this case, there was no contract of
employment between the employees and the District when the strike
commenced.
20a
changed the common law on contributory negligence in
torts and applied a modern society concept of allowing
damages on comparative negligence, and in Rodriguez v.
Bethlehem Steel Corp., 12 Cal.3d 382 (1974), changed the
common law on the right to sue for loss of consortium on
a tort action. In Rodriguez, the Supreme Court stated
that:
*“*... whenever an old rule is found unsuited to pres-
ent conditions or unsound it should be set aside and
a rule declared which is in harmony with those
conditions and meets the demands of justice... .”
This case presents, apparently for the first time, a
complete record regarding the nature and history of
negotiatious between the public agency and the union
regarding the realities of public employee bargaining and
strikes.’* The blue collar employees were faced in the 1974
negotiations with the District demand to reduce a sub-
stantial number of employees from a 48 hour week to a 40
hour week, thereby resulting in a substantial net loss of
take-home pay. After a short strike the matter was re-
solved, ad there was a reduction to 44 hours rather than
to 40 hours, with time and one half for overtime. In 1975,
there was a further reduction, which resulted in an agree-
ment where a substantial number of employees were
reclassified and placed on a special rate.’° In the 1976
‘Tt is estimated that there are over 1,000,000 public employees in
the State of California, and in 1979 there were 79 strikes by public
employees against the State and local governments, involving 39,076
employees, resulting in 602,408 idle man-days. In 1980, there were 46
public employee strikes in California, involving 20,045 employees,
resulting in 160,474 idle man-days. (California Public Employee
Relations No. 48, March, 1981.)
Such rate is referred to as the “Y” rate, where the employee's
salary is fixed at a higher rate than the classification salary in the
agreement.
2la
negotiations, the employees were faced with further loss
of take-home pay. Further, the employees in the landfill
(approximately 40% of the unit) did not receive any rest
periods or any time for changes and shower time during
the work day, whereas the other employees did receive
such time, as well as a 15 minute rest break in the
morning and in the afternoon. Also, the District proposed
to remove the provision in the 1975 Agreement for bind-
ing arbitration of terminations and suspensions. On June
23, 1976, the District made a final offer of a general 4.5%
increase and a 2.5% increase for Y rated employees, with
no change in shower, change and rest time for the landfill
employees. On July 1, the District made a new offer,
consisting of a 5.1% increase and a 2.5% increase to the Y
rated employees, with a total of 40 hours in the year of
overtime to the employees who had their overtime elimi-
nated. However, the District negotiator, Thompson, made
this offer only on the condition that the employee negoti-
ating committee recommend the settlement to the mem-
bership, and that if the offer was not recommended, then
the only offer on the table was the June 23 offer of a 4.5%
increase, unless the treatment pliant operators gave up
their change and shower time, and in such event the offer
would be increased to 5.1%. The employee negotiating
committee, consisting of rank and file employees, refused
to make such a recommendation, and therefore presented
the June 23 proposal to the membership, which rejected it
by a secret ballot vote of 280 to 70, and the employees
voted to go out on strike. (Rep. Tr. Vol. 3, pp. 565-595.)
The District’s proposal of June 23 was the only propo-
sal that could be presented to the membership by virtue of
the District’s position that the committee had to make a
recommendation in favor of the second proposal! of July 1.
The result was that a number of the Y rated employees
whose overtime hours would be reduced would end up
with virtually no salary increase for the year, and to
22a
aggravate the matter, many of such employees had re-
ceived no salary increase or a minimal increase in 1975.
(Exh. 354; see also Memoranda of Understanding, Exhs.
355, 356 and 357.) in 1975, a number of such employees
actually took a substantial decrease in take-home pay, and
by the District’s proposal prior to the strike, many of such
employees received as little as a $10.00 a month increase,
and those who were Y rated and also on a 48 hour week
would have received a loss in pay based on a 2.5% offer."®
The present state of confusing inconsistencies on the
question of the common law right to strike should be
changed to reflect the more enlightened view that fairness
dictates that publie employees should not be subjected to
damages when they withhold their services.
'®Por example, a Sewer Maintenance Worker (probably one of the
most difficult jobs due to the inherent nature of the work) received
$1,123.00 per month in 1973, $1,163.00 per month in 1974, and a drop
to $1,113.00 per month in 1975. In 1976, based on a 5.1% increase, he
would reeeive $1,128.00 per month (amounting to a $15.00 per morth
inerease after losing $50.00 per month in 1975). For the period 1973-
1976, he gained 1% in salary increases. The Court can take judicial
notice that this was a period of substantial inflationary fluctuations in
our economy. The question is, under the common law under such
adverse conditions, does the Sewer Maintenance Worker, as a public
employee, have to accept the District’s final offer, which he considers
to be unfair and unjust, or terminate his employment, or can he
engage in a peaceful strike to gain further salary without subjecting
himself, his family, his assets, and his Union to substantial damages
as found by the Trial Court in this case? The principle on modifying
or changing the common law should be applied. See Butcher v.
Superior Court of Orange County (Forte), 139 Cal.App.3d 58 (1983).
In addit on, the Union’s employees were held personally liable fo>
performing their work, which brings back the outmoded theory of
“eonspiravy’, which has no place in the modern common law.
23a
C. The District Did Not Engage in Fair Bargaining, and
Therefore the Employees Had the Right to Engage in
Economic Action in Order to Obtain a Reasonable
Settlement.
The District made an offer on June 23, then increased
its offer on July 1, but only on the condition that the
negotiating committee recommend the July 1 offer. Such
tactics on the part of the District constituted an unfair
labor practice and were not good faith bargair‘ng, and
violated the Meyers-Milias-Brown Act. In Stationary En-
gineers v. San Juan Suburban Water District, 990
Cal.App.3d 796 (1979), the majority of Justices, and
particularly concurring Justice Reynoso, placed a strong
emphasis on the public employer’s bargaining tactics and
whether the employer’s conduct provoked the strike.
D. The Claim for Damages for a Peaceful Public Em-
ployees Strike Will Deprive the Employees and the
Union of Basic Constitutional Rights Under the Cali-
fornia Constitution.
The California Supreme Court has held on numerous
occasions that some constitutional! issues will be decided
under the California Constitution independent of the
United States Constitution. See Committee to Defend Re-
productive Rights v. Cory, 29 Cal.3d 252 (1981).
The California Supreme Court has held that under the
California Constitution, there are rights of association
and equal protection under the law. The right to associate
into a union and to peacefully withdraw services from a
public employer constitutes a basic right of freedom of
assembly and speech, and further, since private sector
employees have the right to strike, such a deprivation
deprives public employees of equal protection under the
24a
law.'’ See Schwartz-Torrance Inv. Corp. v. Bakery & Con-
fectionery Workers, 51 Cal.2d 766 (1964); Bagley v. Wash-
ington Township Hospital Pistrict, 64 Cal.2d 499 (1964);
and Robins v. Pruneyard Shopping Center, 23 Cal.3d 899
(1977), affirmed 100 S.Ct. 2035 (1980).
IV.
THE TRIAL COURT COMMITTED PREJUDICIAL ER-
ROR IN GRANTING EXCESSIVE, UNREASONABLE
AND UNLAWFUL COMPENSATORY DAMAGES.
A. The Trial Court Committed Error in Allowing
$18,046.54 as Compensatory Time Based on Time
and a Half for Management Employees.
The Trial Court allowed $18,046.54 as compensatory
overtime credited to employees based on time and one
half.’* Compensatory time off at time and one half was
‘There is no contention that the strike was other than peaceful.
The Complaint and the Declarations requesting a Temporary Re-
straining Order and the Preliminary Injunction showed that there
were pickets and that the Union was engaged in a strike, but nowhere
was it alleged that there was any violence or blocking on ingress or
egress, or that in any manner the strike was other than peaceful. (Cl.
Tr. pp. 1, 13, 21, 32, 44, 55; see also Order to Show Cause Re
Contempt, Cl. Tr. p. 87.) The testimony of District witnesses clearly
established that the employees, including the management employ-
ees, came and went from the various facilities without any interfer-
ence from the strikers, and that at a number of locations there was no
picketing. A Temporary Restraining Order was issued and the Trial
Court allowed damages as a “clean up” remedy on a violation of the
injunction. There is no precedent or authority for such a unique
damage remedy since there is a different purpose and burden of proof
regarding a violation of an injunction. See Stafford v. United Farm
Workers, 1 Cal.S8.Ct., 1/27/83.
The validity of paying time and one half versus straight time as
set forth in the Salary Resolution will be discussed under a separate
section of this Brief. If the District is required to follow the Salary
25a
established at $15,615.40. The District’s own Exhibit 194
established the value of compensatory hours earned at
time and one half at $16,040.36.
Don Wahle, in charge of Payroll for the District,
testified that there are no records kept by the District
that establish in any way whether any of the employees
actually took time off, and if so, in what amount. (Rep. Tr.
Vol. 5, p. 1134.) Thompson testified that the District had
no knowledge that the time was ever taken by any employ-
ees (Rep. Tr. Vol. 1, p. 249); that there was no compensa-
tion time policy and that there were no records kept as to
whether any of the employees took time off, or whether
there were any replacements; that there would not be any
eost to the District if the employees who took time off
were not replaced.’® (Rep. Tr. Vol. 2, pp. 529-536); and
that it was only on infrequent occasions that there are
replacements, and without replacements there is no addi-
tional pay, and therefore there is no cost to the District if
there are no replacements. (Rep. Tr. Vol. 5, p. 1242,
referring to deposition of Thompson, p. 143, line 21.) The
testimony is uncontradicted that there are no records and
no evidence that any replacements were ever hired at any
time for the employees who were credited with compensa-
tion time off, or that such compensation time was actually
taken, and if so, in what amounts. In the absence of such
evidence there is no showing of any loss to the District in
Resolution, then the amount of compensation time based on the
Salary Resolution would be $11,700.00 (Exh. 364; Rep. Tr. Vol. 3, p.
480.)
In the deposition of Thompson, he testified:
“Q. Right. But unless the District had to hire an extra person
for a replacement, there would not be an additional labor cost to
the District when a person takes comp time off; is that correct?
A. That’s true.”
26a
the amount of $16,040.36; this amount was improperly
awarded by the Trial Court as compensatory damages.
B. The Trial Court Committed Prejudicial Error in Al-
lowing Compensatory Damages to Management Em-
ployees at Time and One Half When the Salary
Resolution of the District Provided for Straight Time
and the Board of Directors of the District Did Not at
Any Time Amend the Salary Ordinance or Authorize
the Payment of Time and One Half.
The District, in its Amended Complaint filed on June
12, 1979 (Cl. Tr. p. 147), alleges that the District paid
overtime in the amount of $363,796.35.
The District’s Exhs. 194 and 203, prepared by an
accountant of the District, show total overtime expense in
the amount of $331,386.00. The Trial Court awarded
overtime paid, excluding the 10% bonus for the landfills,
in the amount of $375,347.00. However, the Trial Court
apparently included the $55,080.00 as out-of-pocket ex-
penses in this total amount. Although the Trial Court did
not specify the basis of his calculations, it is clear that he
awarded overtime, including compensatory time off and
including FICA expenses, based on time and one half.
The only amount that the District could pay on overtime
under its Salary Resolution that would constitute a lawful
expenditure would have been in the amount of $241,174.00
instead of $320,267.00.
There should be a reduction from the overtime assessed
in the amount of $90,793.00. With this reduction only, the
maximum judgment should be $156,111.00. (The amount
of overtime legally allowed under the Salary Resolution
less the amount of compensatory time erroneously in-
eluded by the Trial Court, less the offsets.)
The testimony is uncontradicted that the authority for
authorizing salaries fot any District employees is exclu-
27a
sively vested in the Board of Directors of the District. All
District personnel, including Parkhurst, Wahle, and
Thompson, were required to follow the Salary Resolution
on salaries. (Rep. Tr. Vol. 5, p. 1125; testimony of Thomp-
son, Rep. Tr. Vol. 2, pp. 541-542; deposition of Thompson,
p. 114.) The Board of Directors has the exclusive author-
ity to determine the amount of salaries paid to its employ-
ees. Specifically, Health and Safety Code Section 6481
provides that: “The Board is the governing power of the
District, and exercises all District powers, except the
making of an assessment roll in the first instance.”
The Salary Resolution effective July 1, 1976 (Exh.
130), Section 5.1B, specifies the amount and the formula
to be used in paying overtime to management:
“Tf such employee’s basis salary is $1,754.00 per
month or more, the rate for compensation for over-
time shall be the straight time rate.”
The Salary Resolution, Section 5.1B, effective July 1,
1975 (Exh. 127), in Section 5.1B, contained the same
provision as to straight time for overtime.
An employee earning less than the specified amount is
paid on a formula. There was no provision in the Salary
Resolutions effective July 1, 1975 or July 1, 1976 that
authorized the payment of time and one half to the
management employees. In fact, the Salary Resolutions in
effect specifically set forth a formula and provide that for
employees over a certain rate, the amount of compensa-
tion for overtime shall be straight time. In spite of the
clear language of the Salary Resolution, the Trial Court
awarded compensatory damages based on time and one
half overtime paid to the management employees. Dair, in
charge of the landfulls, testified that he was aware of the
Salary Resolution regarding overtime, but he was in-
structed to tell the employees that they would be paid at
28a
time and one half for time worked in excess of 40 hours
although normally no overtime is paid to managerial
employees. (Rep. Tr. Vol. 4, pp. 979-982.) Don Wahle, in
charge of Payroll, testified that he knew that he was
required to follow the Salary Resolution on overtime; that
there was no authority in the Salary Resolution to pay the
time and one half to the management employees; and that
the Board of Directors had not given him such authority.
Hewever, he authorized the time and one half and had the
checks issued based on instructions from Thompson and
Parkhurst. Although he knew it was contrary to the
Salary Resolutions, he followed orders. (Rep. Tr. Vol. 5,
pp. 1125-1129.) Thompson, in charge of Personnel, testi-
fied that he was given an order by Parkhurst during the
first week of the strike that all of the management
employees were to receive time and one half. Thompson
knew of the overtime provisions of the Salary Resolutions,
and discussed the matter with Parkhurst. He then in-
structed Wahle upon the orders from Parkhurst. (Rep.
Tr. Vol. 2, pp. 517-523.) There was no explanation as to
why Parkhurst did not obtain such authority from the
Board of Directors. Whether such an action paying retro-
actively for services already performed would have been
legal is not in issue. The point is that the Board of
Directors did not, at any time, adopt any resolution or
amendment to the existing Salary Resolution to authorize
time and one half overtime pay. In fact, the Board of
Directors, on July 22, 1976, adopted the July 1, 1976
Salary Resolution containing the specific provision calling
for straight time pay.
The Board was advised of the overtime, according to
Thompson (Rep. Tr. Vol. 2, p. 525), and on the same day
adopted the Salary Resolution of July 22, 1976 retroac-
tive to July 1, 1976, which specifically provided for
straight time pay on overtime for the management em-
ployees. The checks were issued on August 10, 1976. The
29a
record is clear that the Board of Directors, as the exclu-
sive authority as established by law to provide for sala-
ries, did not take any action to approve the time and one
half overtime, but on the contrary, took express action to
provide for straight time pay only. Parkhurst was legally
required to follow the Salary Resolutions, and any excess
amounts paid were illegal.
In Johnston v. Board of Supervisors of Marin County, 31
Cal.2d 55 (1947), the Court held that: “When a Board of
Supervisors acts in an administrative capacity, as in
granting permits in a rezoning ordinance, it is bound by
the terms of the ordinance until the ordinance is amended
through proper legislative procedures.”
In Frates v. Burnett, 9 Cal.App.3d 53 (1970), the Court
held that: “Failure to follow the Civil Service procedures
will result in an invalid discharge ... and an administra-
tive agency may not act in excess of its powers. Any act so
done is void.” (Emphasis added.)
In Martin v. Henderson, 40 Cal.2d 583 (1953), the
Supreme Court held that the State could not pay overtime
demanded by two State Highway Patrol officers that was
in excess of the authorizing statute providing for compen-
sation. The Supreme Court stated:
“That a person accepting a public office with a fixed
salary is bound to perform the duties of the office for
the salary. He cannot legally claim additional com-
pensation for the discharge of these duties, even
though the salary may be a very inadequate remuner-
ation for the services, nor does it alter the case that
by subsequent statutes or ordinances his duties are
increased, and not his salary.”
In Longshore v. County of Ventura, 25 Cal.3d 14 (1979),
the California Supreme Court stated:
30a
“In a similar vein, article XI, section 10, subdivision
(a), added June 2, 1970, and applicable to local
entities, provides: ‘A local government body may not
grant extra compensation or extra allowance to a
publie officer, [or] public employee ... after service
has been rendered ... or pay a claim under an agree-
ment made without authority of law.’ Thus, where
statutes or ordinances in effect when overtime hours
were logged provided no right to compensation there-
for, the public entity may not subsequently grant it.”
The Supreme Court further stated as follows:
‘“‘We have cautioned that “The fact that normal hours
of work are established and compensating time off is
provided for work beyond those hours does not, of
itself, give the employee a right to payment for
overtime.’ (Martin v. Henderson, supra....) A lump
sum payment for unused time may not be made ‘in
the absence of specific statutory authority.’ ”’
The Supreme Court concluded after a certain period of
time that the claimant was not entitled to overtime pay
sinee the authorizing ordinance did not provide for such
pay.
In Van Riessen v. City of Santa Monica, 63 Cal.App.3d
193 (1976), the Court denied a claim by firemen for
unused sick leave which had not been authorized by the
salary resolution. The Court specifically noted that the
firemen had failed to show the existence of any provision,
ordinance or resolution which would grant them the
money for unused sick leave. The Court, at page 199,
upheld the basic rule that was established by Martin, and
stated...
“A publie employee is entitled only to such compen-
sation as is expressly provided by statute or ordi-
3la
nance regardless of the extent of services actually
rendered.”
The Supreme Court, in the Longshore case, specifically
referred to the California Constitution, Article IV, Sec-
tion 17 (formerly Article IV, Section 32) and Article XI,
Section 10(a), which provide that:
“A local government body may not grant extra com-
pensation or extra allowance to a public officer or
public employee ...after service has been rendered
. ++, Or pay a claim under an agreement made without
authority of law.” (Emphasis added.)
Parkhurst, who acted on his own and without authority
from the Board of Directors, was responsible for violating
the District’s own Salary Resolution. The law is clear that
damages cannot be awarded based on a plaintiff's own
violation of a law or statute. See Page v. Bakersfield
Uniform, etc., 239 Cal.App.2d 762 (1966). The Trial Court
was in error when it allowed damages based on time and
one half ove. ciiae when the District was in violation of its
own Salary Resolution.
Dair, in charge of the landfills, testified that he person-
ally authorized a 10% extra bonus on all overtime hours.
(Rep. Tr. Vol. 4, p. 987.) Thompson testified that there
was no authority under the Salary Resolution to allow the
10% bonus. (Rep. Tr. Vol. 1, pp. 206-208.) The Trial Court
accepted the Union’s arguments that the 10% was not
authorized by the Salary Resolution and should not be
included as compensatory damages. The 10% bonus is in
exactly the same category as the time and one half
overtime. If Dair did not have authority to pay the 10%
bonus, then Parkhurst did not have the authority to pay
time and one half overtime, as both items were not
authorized by the Board of Directors and the Salary
Resolution.
32a
C. The Trial Court Committed Prejudicial Error in Not
Requiring Adequate Records and Verification as to
Overtime Worked, and by Allowing Compensatory
Damages on Overtime for Employees Who Either
Did Not Work or Who Performed Work Unrelated to
the Strike.
The Trial Court did not exclude any amount of overtime
that was paid to employees who did not work, nor did it
exclude other items based on insufficient and inadequate
records. The Trial Court committed error in not requiring
a more detailed accounting with adequate records that
would properly exclude a number of expenses that are not
properly considered as compensatory damages. District
Exhibits 194 and 196 set forth the amount of overtime
expense at the time and one half rate and at the Salary
Resolution rate, listing the amount of overtime paid to
each individual. The amounts include the 10% bonus for
the employees working in the landfills. However, the Trial
Court excluded the 10% and set forth that the overtime
paid, excluding the 10%, was $375,347.00. (Cl. Tr. p. 426.)
In this amount, the Trial Judge apparently was including
the $55,080.00 in claim out-of-pocket expenses and includ-
ing the compensatory time off at $16,040.00 at time and
one half. (See Exh. 203.)
An accountant, Carlene Tannere, testified that she
prepared the exhibits showing the overtime paid at time
and one half based only on special pay reports and the
back-up sheets, and no further checks were made on
whether the overtime was actually worked or not, nor
were other records reviewed by her. (Rep. Tr. Vol. 2, pp.
448, 466.)
The only documents used by the accountant in ob-
taining the amount of overtime paid on landfills were
introduced into evidence as: landfills, Exhibit 138;
Compton Yard, Exhibit 137; San Gabriel Field Office,
33a
Exhibit 136; the Upstream and Desert Treatment Plants,
Exhibit 135; JWPCP, Exhibit 134; and laboratories, Ex-
hibit 137.
The timekeeping records for J/WPCP (Exh. 134) sim-
ply have the name of the employee and, with very few
exceptions, indicate 24 hours per day.
Exhibit 135, for the Upstream and Desert Treatment
Plants, shows the number of hours per day as 16 hours or
24 hours worked, with very few exceptions. The same is
true of the other exhibits, simply noting written refer-
ences that the employee claimed 24, 16 or 12 hours of
work each day.
The records were inherently untrustworthy, as they
were based on information given by employees who them-
selves had a personal interest in exaggerating the amount
of overtime. The back-up sheets (Exhs. 134-139) were
obtained by verbal information in the field. The special
pay reports (Exh. 133) that were used by the accountant
for the most part stated the number of hours in a weekly
summary form as a total amount of hours, without speci-
fying the days and hours worked per day. (Exhs. 169-
174.) As a matter of self-interest, such records are inade-
quate to support compensatory damages. For example, in
the back-up sheet for the laboratories (Exh. 139), the two
management employees who completed the back-up sheets
were Dwayne Fisher and James Lahner. Fisher credited
26% hours overtime to himself, and Lahner credited 91
hours overtime, and obtained overtime pay in the amount
of $1,632.00.
Art Bunnell, the supervisor who has lived in a trailer 24
hours a day at the Puente Hills landfill prior to and since
the strike, credited himself with 78 hours of overtime.
Deering, who recorded the overtime hours, credited him-
self with 60 hours of overtime. (Exh. 137.) Krever, who
34a
recorded the maintenance overtime at the San Gabriel
Yard (Exh. 136), credited himself with 88 hours of
overtime and collected $2,172.00. Willie Mendoza, the
timekeeper at the same location, gave himself 57 hours of
overtime.
Wahle, who was in charge of Payroll, gave himself 36
hours of overtime. Merck, the check managment person at
JWPCP, who kept the records of overtime and phoned
them in to the timekeeper, gave himself 201% hours of
overtime and collected $4,975.00. Sheila Smith, a clerical
employee who kept time records, credited herself with 16
hours of overtime. Nagel, a management employee at the
Upstream and Desert Treatment Plants, gave himself 200
hours of overtime and collected $4,938.00. Van Huit, in
charge of the landfills, gave himself 52% hours of over-
time, although he had worked many days of overtime prior
to the strike and never received overtime pay. (Rep. Tr.
Vol. 2, pp. 404-405.)
A review of the back-up sheets, special pay reports and
the overtime paid (Exh. 194) shows the excessive amount
of overtime that was received by the high-paid manage-
ment employees. For a period from July 5 to July 17,
some of these employees received extra pay exceeding
$4,500.00. (Avakien, $4,071.00; Bohlier, $3,066.00; Byers,
$3,318.00; Chen, $3,139.00; Ekman, $3,575.00; Fuller,
$4,515.00; ete.)
The Trial Court allowed compensatory damages for
overtime that was not properly incurred due to the strike.
For example, at the South Gate Transfer Station, two
employees, Flaker and Guerrero, were given an assign-
ment to drive a truck on a research project to San
Francisco. They were paid 57% hours of overtime, which
was included in the damage award. (Rep. Tr. Vol. 2, p.
399; Exh. 188.)
35a
McCool testified that he was on strike on only the first
day. He took off the Friday, Saturday and Sunday during
the strike to attend car races at Barstow. The Trial Court
allowed 19 hours of overtime for the days McCool was
attending the car races. (Exh. 194.)
Another example is Art Bunnell, who worked and lived
at the Puente Hills landfill. (Rep. Tr. Vol. 4, p. 974.)
Bunnell kept the records of the employees at the Puente
Hill landfill, and he gave himself 78 hours of overtime,
although he lives in a trailer at the landfill.
Valerie Hall was credited with 25 hours of overtime.
(Exh. 194.) Valerie Hall was Thompson’s assistant, and
she took notes during negotiations. The Trial Court in-
eluded the overtime of Hall without any evidence as to
why or what she did to claim 25 hours overtime when
there were no negotiation: and therefore no notes to take
during the strike.
The Trial Court allowed damages for overtime of labo-
ratory employees. (Exhs. 137 and 194.) There was no
showing as to why laboratory employees were required to
or did work ecvertime due to the strike. There was no
strike or pickets at the laboratory, and all of the labora-
tory employees reported to work.
1. The Maintenance Yards.
Beeken assigned the employees, including management
employees, to work on a 12 hour basis at each mainte-
nance yard. There was no evidence provided by the Dis-
trict as to what such employees did during the additional
4 hours of overtime, as the regular schedule at the
maintenance yards was 8 hours per day. The Trial Court
included all of the overtime, consisting of 4 hours per day
at time and one half, at the maintenance yards. Exhibits
350, 351 and 352 show the normal staffing and that the
36a
number of employees assigned during the strike was
excessive and unnecessary.
At the San Gabriel Maintenance Yard, there were
normally 16 blue collar workers who worked 8 hours a
day. Only one employee went out on strike for one day.
However, the District paid overtime at the San Gabriel
Maintenance Yard for 725 hours.
The witness who testified as to what actually oecurred
at the maintenance yard during the strike was Mark
Christopherson. (Rep. Tr. Vol. 3, pp. 684-714.) Chris-
topherson testifed that he worked the regular shift, from
7:00 a.m. to 3:30 p.m., at the Palmdale yard; there was
normally no one present at the yard after 3:30 p.m. He
worked the entire period during the strike, as did the
entire crew. There were a few pickets for only 15 minutes
on the first. day of the strike. He was told by management
to work 12 hours at the yard and then take 12 hours off.
During the time he was there, he was instructed to report
to work at noon and work until midnight, and that he
would receive 4 hours overtime each day. During the
entire 11 days of the strike, he left the Paimdale Mainte-
nance Yard only once, to go to Lancaster to do some
maintenance work for approximately 4 hours. He testified
that for the balance of the time, along with the other
employees at the maintenance yard, all he did was sit
around, talk, and watch television, and that all of the
other employees did exactly the same thing. He did spend
3 or 4 hours at a time constructing a sheet metal building,
but he testified that the construction of the 9 X 7 foot
building had nothing to do with the strike. Further, he
and other employees barbecued, brought their girlfriends
and families to the barbecues, and generaly had a social
time.
Hawkins, the supervisor who told Christopherson to
remain 12 hours, credited himself with 60 hours of over-
37a
time. (Exh. 194.) Ferguson, another management em-
ployee, told Christopherson that if there was no work to
do, he should “just hang loose”. Ferguson credited him-
seif with 60 hours of overtime.
The Union submitted Exhibit 352 for the Compton
Maintenance Yard, where there are normally 60 blue
collar employees. Three employees went out for two days,
three employees for one day, and one employee for four
days. Although there was almost a complete crew working
at Compton during the strike, the District credited 3,723
hours of overtime at the Compton location.
The District paid each employee an additional $5.00 a
day for a meal allowance, as they were assigned to be at
the yards for 12 hours. The Trial Court allowed the $5.00
meal allowance, as it did the time and one half for the
extra 4 hours. If the extra 4 hours per day was unneces-
sary and was unreasonable, then the $5.00 meal allowance
should also be disallowed.
2. The South Gate Transfer Station.
Van Huit, the management person responsible for the
South Gate Transfer Station, testified that the transfer
station was closed down completely. Exhibit 343 shows
that only a few of the blue collar employees normally
assigr2d to South Gate went on strike. However, even
though the South Gate Transfer Station was closed, the
District assigned a number of construction employees to
do work unrelated to the strike. The District paid, and the
Trial Court granted, 128 hours of overtime for the work at
the South Gate Transfer Station. In the initial claim
during the trial, the District claimed overtime for Brian
Stirrat on the basis of 65 hours of overtime. (Exh. 138.)
However, the evidence established that Stirrat was as-
signed to oversee the coxstruction project which had been
planned long before the strike. The District then excluded
38a
Stirrat’s amount from the claim. However, the District
claimed overtime paid to Jay Flake, who was paid for 41
hours, and A. Guerrero, for 52 hours of overtime (Exh.
194), although the testimony was uncontradicted that
these two employees were given a special assignment of
driving a truck and delivering materials to San Francisco
on a research project that had nothing to do with the
strike. (Rep. Tr. Vol. 2, p. 399.) The Trial Court gave full
credit for this overtime.
D. The Trial Court Committed Prejudicial Error in
Awarding Overtime as Damages at the Upstream and
Desert Treatment Plants.
The Lancaster, Pomona, Valencia, Saugus, Whittier
Narrows, Los Coyotes, Palmdale and La Canada plants
operated on the same system and schedule.”
The upstream plants operate on an eight hour shift,
7:00 a.m. to 3:30 p.m. seven days a week, with a crew
varying from two to four treatment plant operators. There
are usually one or two lab employees also assigned to the
treatment plants. All of the personnel leave at 3:30 p.m.
each day. Each plant is surrounded by a six foot gate with
a padlock. After 3:30 p.m., the plants are on an ADT
alarm system. (Rep. Tr. Vol. 2, pp. 915-923; Vol. 3, pp.
716-724; Vol. 4, pp. 840-847, 874-879.)
During the strike, Beeken assigned the non-striking
blue collar employees to work 12 hours a day, with four
hours overtime.”’ He also assigned two or more manage-
*1.a Canada was in a different situation, as no employees were
normally assigned to La Canada. One person would check La Canada
for two or three hours per day, and there was a regular inspection by
Cochran as the supervisor.
“Virtually all of the blue collar employees worked at the upstream
plants during the strike.
39a
ment personnel to each of the upstream plants on a 24
hour basis. The blue collar employees received a $5.00
meal allowance on the 12 hour shift. The management
employees were given $11.00 per day based on the Dis-
triet’s policy on per diem expenses. Cots were brought
into the plants, and the management personnel slept at
each of the plants. However, no meals were brought in,
and they went out three times a day by driving to a
restaurant, eating their meals, and returning to the plant.
There was virtually no picketing at any of the plants
except possibly for the first 15 minutes on the first day of
the strike. The management people came and went when-
ever they wished to do so, and, in fact, they did leave at
least three times a day in order to obtain their meals.
There were few strikers and no problems during the
strike; nor was there any emergency, and the plants
operated in a normal manner. (Rep. Tr. Vol. 3, pp. 670-
678; Vol. 4, pp. 916-929.)
Beeken testified that he did not visit the upstream
plants during the strike, and therefore he could not
testify as to what work was needed or performed at such
locations. He merely stated a conclusion that because of
the strike, he assigned management people to remain at
the plants on a 24 hour basis for security reasons as well
as to be present in case any problems developed.”
“There was an inference by Beeken that the management persons
were assigned on a 24 hour basis in case the blue collar employees
who did not strike decided to leave their work during the course of
the strike. Such an argument is without merit, as it cannot be
assumed that an employee who decided not to go on strike would
then, during the course of the strike, leave his work. Further, there is
no evidence of this occurring; in fact, no employee who decided to
work failed to show up during the strike. Also, on a normal schedule,
there were no employees assigned after 3:30 p.m.
40a
As to security, there is no explanation as to why the
District did not simply hire one guard for each plant, as
they did hire guards at the landfills and at the JWPCP.
Further, the plants are in self-enclosed areas surrounded
by padlocked six foot fences. Further, it is difficult to
justify that there were legitimate security concerns when
the management people slept, barbecued and entertained
their girlfriends and families »t the plants.
Regarding any possible breakdown of the equipment,
the plants were on the ADT system as they had been for
many years, and there was no reason why, if a problem
developed, supervisory and management people would not
be available. For example, Horace Cochran, a supervisor
who was available, was never called during the strike.
(Rep. Tr. Vol. 3, pp. 647-658.)
Cochran testified that he had been work.ng for the
District for over 26 years. In 1976 he was a supervisor of
operations for the plants at Saugus, Valencia and La
Canada. His normal duties were to visit all three plants,
give assignments and check the work. He said that nor-
mally he puts in 10 to 12 hours per day, but has never
claimed overtime pay. During the strike, he continued to
work and performed his normal duties, working 10 to 12
hours per day, and he did not claim any overtime pay.”
Cochran testified that after 3:30 p.m., there are no em-
ployees assigned to the plant and the plant is on a ADT
system, and that he, himself, as a supervisor, would be
ealled from time to time. He said that during the strike,
he made daily trips to each of the three plants; that none
of the treatment plant operators went out on strike at
*Cochran’s approach to his work and his responsibilities as a
supervisor must be contrasted to the other management employees
who, when given carte blanche, went into a virtual orgy of overtime
and received huge amounts of money for the 11 day period, with the
complete blessings of the District manager, Parkhurst.
4la
Saugus; also, that the lab technicians worked during the
strike; that maintenance was done in a normal manner;
and that there was no difficulty in getting maintenance
people to respond. He testified that treatment plant
operators were given assignments to work longer than
their regular shift, and as a supervisor, he did not know of
any need for personnel to be assigned after 3:30 p.m. He
visited Saugus, Valencia and La Canada, and there was
never any trouble on coming and going.
He testified that he saw some management persons at
the plant and he did not know what work there was for
them to do. He did not observe any of the management
people doing any work that was necessary, as the plants
were fully manned by the regular blue collar employees.
(Rep. Tr. Vol. 3, pp. 638-662.)
Gilbert Lechuga testified that he was assigned to the
Palmdale plant prior to the strike. He normally worked
eight hours a day, from 7:00 a.m. to 3:30 p.m. On a normal
assignment, there were two treatment plant operators
working with C. B. Price as the supervisor. On a special
need, he was called possibly once or twice a month by the
ADT alarm system. Normally, when one treatment plant
operator was on vacation, the other treatment plant oper-
ator did the work by himself to cover the shift, along with
the supervisor.
Lechuga, as a member of the Union, attended the Union
meeting on July 1, 1976, but voted not to strike and did
not participate in the strike. He reported to work and was
assigned to work 12 hours, seven days a week. He ob-
served one picket for 15 or 20 minutes the first day of the
strike, and did not see any pickets for the balance of the
strike.
During the strike, Lechuga testified that a management
employee, Payne, was present 24 hours a day, and had a
42a
cot, blankets and pillows. Lechuga said that during the
strike he did his normal work, but did it in 12 instead of 8
hours; and that he could have done his work during his
normal 8 hour shift.
He testified that Payne did not know anything about
the plant and that during the entire period, Payne was
reading books and would take walks around the plant.
Payne also would talk to him at length about baseball and
football. On one oeeasion, Payne attended a barbecue with
the maintenance crew, accompanied by his girlfriend and
her daughter. (Rep. Tr. Vol. 3, pp. 716-736.) See also the
testimony of Mark Christopherson as to the non-work
activities at Palmdale during the strike. (Rep. Tr. Vol. 3,
pp. 684-714.)
Western testified that he was a treatment plant opera-
tor at the Pomona plant. He worked normally on a
rotating basis with the foreman and one other treatment
plant operator. On many days, the plant was manned by
one person.
Western was a member of the Union and attended the
meeting on July 1, but voted not to strike and did not
participate in the strike. On the first day of the strike, one
treatment plant operator was off for one day and then
returned to work. There were no pickets at any time
during the strike at Pomona. He worked his normal
schedule and the overtime, and performed his regular
duties.
He testified that three professional employees, Dr. C.
Chen, Joe Haworth, and Keith Lewinger, were at the
Pomona plant, two at a time, on the basis of 24 hours a
day. C. Chen was an engineer, and Haworth and Lewinger
were public relations personnel. He said that they slept at
the plant and spent most of their time reading and
engaging in social conversation. There was no work for
43a
them to perform as the plant was fully manned by the
regular blue collar employees. (Rep. Tr. Vol. 4, pp. 840-
855.)
For sleeping, eating, reading, and social conversations,
Chen received 145 hours of overtime and was paid
$3,139.25; Haworth received 105 hours and was paid
$2,294.90; and Lewinger received 126 hours and was paid
$1,934.10. (Exh. 194.)
At the Valencia plant (Exh. 333), management employ-
ees accumulated 376% hours.
At Palmdale, Payne read books, walked, and brought
his girlfriend to the barbecue, and was given 81% hours of
overtime. (Exh. 194.) At Palmdale, there were two em-
ployees normally assigned, and none went on strike.
(Exh. 334.) At Lancaster, there were two blue collar
employees normally assigned, and none went on strike.
However, the District allowed 477% hours of overtime.
(Exh. 335.)
At Saugus, there were four blue collar employees nor-
mally assigned, and none of the treatment plant operators
went out on strike. However, at that facility, 777% hours
of overtime was credited. (Exh. 336.)
Exhibits 333-340 show the amount of overtime paid at
the upstream and desert plants. There is no factual
dispute that the District paid such amounts for manage-
ment employees to sleep, read books, watch television,
walk around, engage in conversations, attend barbecues
with girlfriends, and to drive in and out of the plant three
times a day and enjoy meals at a restaurant. The Trial
Court allowed the full amount of time and one half to be
included as damages.
Exhibit 368 sets forth the amount of savings, based on
time and one half for overtime, if the District had fol-
lowed reasonable assignments at the upstream plants.
44a
There were very few employees on strike; there was
virtually no picketing; and work was normal in every
respect. The plants were on an alarm system after 3:30
p.m., and were enclosed by a six-foot gate which was
padlocked. Any need for security could have been covered
by one guard, and any problems during the course of the
hours after 3:30 p.m. would have been handled through
the alarm system. There was no work or need for extra
persons to be assigned to sleep at the upstream plants.
Instead, the District accumulated $87,269.66 of overtime
expense at the upstream plants. The Union contends that
this amount is unreasonable and should have been disal-
lowed by the Trial Court. There was some overtime ex-
pense that was proper, such as for employees working on
a sixth or seventh day (Saturday and Sunday), and for
this amount of overtime the District would have incurred
a cost of $7,687.34.
In the event such overtime is not completely disallowed,
then at the most the District was justified in assigning the
employees on a 12 hour day (which in fact it did for the
blue collar employees who did not engage in the strike).
The management employees could have been assigned to
12 hour shifts, and for the other 12 hours, they could have
gone home, slept, and had their meals. There was no
reasonable basis for the District to pay such persons for
sleeping, reading, and not performing any work. There-
fore, at a minimum, the amount of $56,388.02 must be
deducted from the overtime claim (based on a 12 hour a
day assignment). Exhibit 368 shows overtime on alterna-
tive reasonable assignments rather than 24 hours a day.
45a
Savings based on
time and one-half
overtime
10 hours a day assignment $67,853.43
12 hours a day assignment $56,388.02
14 hours a day assignment $45,792.89
On the amount of overtime pay that should properly
have been paid under the Salary Resolution, the amounts
are less. (Exh. 369.) The total amount of the Salary
Resolution expense at the upstream plants was
$65,807.24. Again, only allowing for proper overtime on
Saturday and Sunday, the amount of overtime should be
disallowed by the amount of $60,259.72. However, the
management employees should have been assigned at the
most to a 12 hour day, allowing them to go home and
sleep, have their meals and then return. On this basis, the
District would have avoided paying $43,470.69.
The Union contends that at most, a 12 hour day would
have been reasonable, but even giving the extreme benefit
of the doubt to the District, it would be entirely without
reason to pay overtime beyond a 14 hour day.
Savings based on
Salary Resolution
10 hours a day assignment $51,753.87
12 hours a day assignment $43,470.69
14 hours a day assignment $35,897.90
In addition, at the upstream plants, since operations
were almost completely normal, there was no justification
to assign management employees to sleep on the premises
and accumulate overtime on Saturday, July 17 and Sun-
day, July 18. The employees voted on July 16 to terminate
the strike. Roberts called Thompson on July 16 and told
him that the strike was over, and that the employees who
were normally assigned to work on Saturday, July 17,
46a
would report to work. (Rep. Tr. Vol. 3, pp. 595-606.) Even
assuming there were problems in contacting the strikers,
it made no practical difference at the upstream plants,
since all of the employees were already working during
the strike. Therefore, the District cannot justify overtime
for Saturday and Sunday, July 17 and 18. The amount of
overtime for the two days, based on time and one half, was
$4,870.94, and based on the Salary Resolution, $3,337.62.
(Exhs. 368 and 369.)
E. The Trial Court Allowed Excessive Overtime Dam-
ages at the Joint Water Pollution Control Plant
(JWPCP), Long Beach and San Jose Plants.
The JWPCP and the two other plants with 24 hour
operations present a different situation than the upstream
and desert plants. At such plants, a substantial number of
the blue collar employees did go out on strike.
The Union does not contend that the District did not
have the right to assign management employees to oper-
ate JWPCP during the strike. The issue is whether it was
reasonable to assign such personnel to remain on the
premises 24 hours a day and to pay time and one half for
sleeping, eating, reading, or in general, not performing
any work.
Beeken gave, as the reasons for this unusual assign-
ment, the security of the plant and the need to be
available for work and any emergencies. For this reason,
he allowed overtime for the employees when they slept,
ate, played cards, and enjoyed other leisure activities.
(Rep. Tr. Vol. 3, pp. 664-678.) Regarding security, it is
difficult to understand how management personnel could
further secure the plant, since the District expended over
$10,000 for professional extra security at JWPCP. (Exh.
161.)
47a
On the need to perform work, the evidence was that the
plant operates on the basis of three rotating shifts of
treatment plant operators, consisting of 12 to 15 per crew.
On the day shift, there is an additional crew of 12 to 15
persons who fill in and engage in training and mainte-
nance work. During the swing shift or second shift, there
is one crew of 12 to 15 treatment plant operators and
several custodians. There are no other employees at the
plant during this second shift. The same situation exists
on the third shift, except no custodian employees are
present. The large support group, consisting of mainte-
nance employees, including craftsmen such as plumbers
and electricians, are all assigned to the day shift. (Rep.
Tr. Vol. 3, pp. 783-796, 818-824; Vol. 4, pp. 956-958.)
Any problems regarding maintenance or malfunctions
of equipment would have been handled by assigning or
calling maintenance persons to JWPCP from the mainte-
nance yards. In fact, all of the maintenance employees at
the maintenance yards were sitting around barbecuing,
watching TV and reading, and there was no reason why
such persons could not have been assigned to JWPCP er
at least have been on call.
The District did not have any supervisor or manage-
ment person testify as to exactly what the management
persons did at JWPCP during the 24 hours. The failure of
the District to present any evidence as to what work was
performed in the plant is a substantial failure to sustain
their burden of proof for such excessive overtime dam-
ages at JWPCP.
On the second and third shifts (swing and graveyard),
the District reasonably should have assigned 15 manage-
ment persons that would have replaced the blue collar
workers that were on strike. Instead, the District used 36
to 42 management persons during the second and third
shifts. (Rep. Tr. Vol. 3, p. 676.)
48a
There were no problems of coming and going, as
Beeken testified that any person could leave JWPCP
whenever he wanted to for personal reasons, and in fact
many did leave and return. (Rep. Tr. Vol. 2, p. 344.)
There was no record kept as to the hours the management
people were gone, since the records show only 24 hours
pay for each day of the strike.
The Union witnesses, who were long-time experienced
treatment plant operators at JWPCP, Sullivan and City,
testified that on the second and third shifts there was no
work to be performed by anyone outside of the regular 12
to 15 treatment plant operating crew. (Rep. Tr. Vol. 3, pp.
786-796; Vol. 4, p. 956-958.) The adding of 15 to 20
management people to sit around and sleep provided no
justifiable basis to pay them overtime. There simply was
no work for them to perform.
There was no evidence of any unusual or abnormal
conditions at JWPCP during the strike. The only evi-
dence presented was that some debris was found on July
6 and again on July 16. However, City, who has been
working at JWPCP for 15 years as a senior treatment
plant operator, testified that it was normal to have debris
come through the system, and that it was to be expected
on a regular operating basis. There was no emergency if
debris did come through, as most of the time it was
cleaned up by the treatment plant operater crew, and if
there was any substantial or heavy debris, then a crane
operator would be called in to assist in removing the
debris. He testified that a number of things come through
the plant, such as rolls of wire, tires, ete., and that it was
the responsibility of the treatment plant operators to
remove the debris. (Rep. Tr. Vol. 3, pp. 955-958.)
The Union does not question that the District could
have reasonably assigned management persons to work
longer than eight hours at JWPCP. However, the Union
49a
submits that a 24 hour pay period was not reasonasie or
justified. A reasonable basis on which to fully operate the
plant was on 12 hour shift assignments. On this scheduie,
the management persons would have worked 12 hours,
and for the other 12 hours they could have gone home.
The District at JWPCP paid overtime at time and one-
half in the amount of $129,824.26. (Exh. 367.)
The Union submits that 12 hours a day was more than
reasonable. However, assuming that under extraordinary
circumstances an employee could and did work 14 hours a
day for 11 days, then the District acted unreasonably in
not assigning the management employees to a 14 hour
day.
Exhibits 366, 367, 368 and 369 set forth the amount of
overtime that the Trial Court should have considered as
reasonable, not the 24 hours that it allowed as damages.
For example, the savings at JWPCP would have been as
follows (Exhs. 366 and 367):
Salary
Savings at: 1% time Resolution
12 hours a day assignment $87,145.03 $61,545.42
14 hours a day assignment $72,645.74 $51,547.81
Since the strike ended on July 16, and even conceding
there were problems of communications and the District
did not know how many employees would return to work
on Saturday, July 17, there was no basis for accumulating
additional overtime on July 17. The testimony is clear
that as of the evening of July 17, employees who were on
strike had been notified, and those who were on the July
17 Saturday night shift did report to work. There was no
reason to keep management employees at the plant for 24
hours on July 17. The savings on the overtime, based on
time and one half, for Saturday, July 17 are $6,777.74,
and on the Salary Resolution are $4,797.99.
50a
There does not appear to be any authority in California
on this unusual claim of the District that it can collect
damages on payments to high-salaried management em-
ployees for sleeping, eating, playing cards, ete.
Witkin, Torts, Vol. 4, Section 870, at page 3158 — duty
to use reasonable care and minimize the loss. Valencia v.
Shell Oil Co., 23 Cal.2d 840 (1944) — person bound to
exercise reasonable care and diligence to avoid loss or
minimize the resulting damages and cannot recover for
losses which might have been prevented by reasonable
efforts. See also Steelduct v. Henger-Seltzer Co., 26 Cal.2d
634 (1945); Kleinclaus v. Marin Realty, 94 Cal.App.2d 733
(1949); Sheffet v. Los Angeles County, 3 Cal.App.3d 720
(1970).
In A. A. Baxter Corp. v. Colt Industries, Inc., 10
Cal.App.3d 144 (1970), the Court of Appeal disapproved
of a rate schedule “arbitrarily selected by plaintiff as the
measure of its damages” (id., at 155) and improperly
used by the trial court as a measure of damages. The
Court of Appeals, in reversing the Trial Court on dam-
ages, held at page 60:
“Where there is more than one method of ascertain-
ing damages, that method which is most definite and
certain should be adopted. No one method is exclu-
sive, where several exist, but that one should be
chosen which best achieves the fundamental purpose
of compensation to the injured person for his loss;
and if the facts show that either of two measures of
damages will fully compensate plaintiff for his loss,
that measure must be adopted which is less expensive to
defendant.” (Emphasis added.)
The Court cited Rivolich v. Raymond, 20 Cal.App.2d 630,
644, and Colvin v. John Powell and Co., 163 Neb. 122 [77
N.W.2d 900]; 25 C.J:S. Section 72, p. 842. The Court
5la
refers to the “fully compensated” plaintiff. In this case,
the District was compensated for damages which were not
eaused by the Union, damages whick the District unlaw-
fully helped itself to on the expectation that that Union
eould pay for this “windfall”’.
* + *
If the figure used by the trial court in determining
damages cannot be supported under any reasonable inter-
pretation of the record, a reviewing court may reverse or
remand. See Cal.Jur.2d Damages Section 148, p. 290;
Benson Electric Co. v. Hale Bros. Assoc., Inc., 246
Cal.App.2d 686 (1966); and Kitchel v. Acree, 216
Cal.App.2d 119 (1963) (where the Court of Appeal re-
manded two items of damages to the trial court).
F. The Trial Court Was in Error in Granting Damages
for All Overtime at the Landfills.
The Union does not contend that at some Jandfills it
was unreasonable for the District to have non-striking
blue collar employees or management employees report
early and stay some extra time after closing. However, the
District allocated overtime not based on one-half hour
before the landfills normally opened, but assigned people
to come in at least two hours before the landfills opened.
Exhibits 194 and 196 do not specify the amount of
overtime pay allocated to the landfills. The Union intro-
duced evidence as to the amount of normal staffing and
the unreasonable overtime paid at the landfills during the
strike. (Exhs. 344, 345, 346, 347, 348, and 349.) At
Calabasas, there were nine blue collar employees normally
assigned to that landfill. MeCool was on strike for several
days, returned to work, and then went to Barstow to
attend ear races, and returned to work the following
Monday. (Rep. Tr. Vol. 3, pp. 740-757.) A few of the other
blue collar employees were off for one day, but by the
52a
second or third day of the strike all of such employees
were back to work. However, the District accumulated 365
hours of overtime at the Calabasas landfill, where condi-
tions were almost completely normal. (Exh. 344.)
Johnson complained to MeCool on numerous occasions
that as a supervisor, he always reported to work at 7:30
a.m. and did not leave until after 5:00 p.m., but yet was
not paid overtime. However, during the strike, when he
worked almost the same hours that he worked normally,
he was credited with 53% hours of overtime. (Exh. 194.)
McCool, who was at the races in Barstow, was given 19
hours of overtime credit for such days. (Rep. Tr. Vol. 3,
pp. 740-757; Exh. 194.)
Bonnell regularly lived at the Puente landfill and was
normally there 24 hours of the day; he had never received
overtime, but was given 78 hours of overtime during the
strike. (Rep. Tr. Vol. 4, pp. 974-979; Exh. 194.)
Sharp lived in a trailer at Scholl Canyon landfill on a 24
hour basis, and did not receive overtime either before or
after the strike. Sharp was assigned on a regular basis to
live at the landfill on a 24-hour basis to act as a “watch-
dog.” During the strike, Sharp received 72% hours of
overtime. (Rep. Tr. Vol. 4, pp. 993-996; Exh. 194.)
G. The Trial Court Was in Error in Allowing the Over-
time at Laboratories and Offices of the District
Where No Strike Was in Effect.
There was no evidence as to why any laboratory or
clerical employees were entitled ic overtime. The overtime
at the laboratories, where no strike existed and no strik-
ing employees were involved, should not have been al-
lowed by the Trial Court at $6,309.97 for time and one
half, or $4,252.24 under the Salary Resolution. (Exhs.
139, 194 and 196.)
53a
There was no evidence why clerical employees should
have received overtime. Wahle was the executive in charge
of payroll, worked in the office, and gave himself 36 hours
of overtime at time and one half. Hall, who was the
secretary to Thompson and took notes during the negotia-
tions, was given 25 hours of overtime. Since there were no
negotiations during the strike, there is a total lack of
evidence as to what work she performed and why the Trial
Court allowed her overtime as part of the damage award.
H. The Trial Court Was in Error in Allowing All the
Items Claimed by the District as Strike-Related
Without Requiring Proof of Reasonableness or
Necessity.
The District introduced numerous bills and vouchers as
“strike-related” expenses. (Exhs. 160 and 180). However,
no evidence was presented on many of the items as to the
causation between the strike and the expenses. Further,
many of the following expenses were not reasonable or
justified, but were still allowed by the Trial Court.
1. Meals at JWPCP.
The District catered meals to the employees who were
on the premises 24 hours a day for 11 days. Such meal
allowances were unnecessary, as based on a 12 or 14 hour
day assignment, the employees could have gone home to
eat at least one or two meals a day. However, even if such
meals were proper, the District had a policy of paying
management employees $11.00 per diem. At $11.00 per
day, the cost of meals for the management employees at
JWPCP, which is based on 40 persons for 11 days, would
have amounted to $5,280.00. The District catered meals at
a cost to the District of $9,105.00. Therefore, the differ-
ence of $3,825.00 should have been disallowed by the Trial
Court.
54a
2. Meals at the Joint Administrative Offices.
Exhibits 164-167 constituted the meal expenses at the
Joint Administrative Office in the amount of $3,707.00.
There was no evidence as to why any employees working
in the administrative office, who were not on strike, were
required to work overtime or if they did work overtime,
and if so, for how many hours. Normally, the District does
not provide meals to such employees. In view of the
failure to produce evidence of reasonableness, justifica-
tion or need, such meal payments should have been
disallowed by the Trial Court.
I. The Trial Court Committed Error in Granting Pre-
Judgment Interest.
The Trial Court awarded pre-judgment interest dated
back to July 18, 1976.
The Union filed Objections to the Proposed Findings of
Fact and Conclusions of Law as to the granting of pre-
judgment interest in the amount of $87,615.22. The Objec-
tions were denied by the Trial Court. (Cl. Tr. p. 451.)
in order to be entitled to pre-judgment interest, the
amount of damages must be certain or capable of being
made certain by calculations, and must be subject to
readily available standards such as market values. Block
v. Laboratory Procedures, 8 Cal.App.3d 1042 (1970).
Pre-judgment interest is not allowable where the
amount of damages is in dispute and depends upon a
judicial determination based upon conflicting evidence
without being ascertainable from the established market
places or values. Lineman v. Schmid, 32 Cal.2d 204
(1948); Leaf v. Phil Rauch, Inc., 47 Cal.App.3d 371
(1971).
55a
In Elliano v. Assurance Company of America, 45
Cal.App.3d 170 (1975), pre-judgment interest was denied
in an award for the market value of a damaged structure.
The Court held that there was a dispute as to the measure
of damages. The plaintiff and the defendant had each
urged a different value and standard as to the amount of
damages. The Court held that the amount depended upon
the judicial determination, which was not ascertainable
without a trial, and therefore pre-judgment interest was
denied. :
The law in California is that pre-judgment interest will
be denied where there is a dispute as to the actual amount
owed as well as to the liability. If the amount that is
subject to damages is uncertain or cannot be determined
by reference to well-established market values, pre-judg-
ment interest will be denied. Lineman v. Schmid, supra;
Block v. Laboratory Procedures, supra; and Macumber v.
State of California, 250 Cal.App.2d 391 (1967).
Further, the law in California is that even where the
amount of damages is of a nature that is certain or
capable of being certain by calculation, there is still an
obligation by the plaintiff to make the exact sum due to
the defendant in order to justify pre-judgment interest.
Conderback, Inc. v. Standard Oil Company, 239
Cal.App.2d 654 (1966). If a defendant does not know or
cannot readily ascertain damages where they are uncer-
tain, it is incumbent on the plaintiff to provide the
defendant with a statement and supporting data from
which the defendant could have made the necessary deter-
minations. See Conderback, supra, at page 690. If a
defendant does not know what amount was owed and
could not ascertain it except by stipulation or by the
judicial process, then the defendant is not liable for pre-
judgment interest. Levy-Zemper Company v. Southern Pa-
cific Transportation Company, 74 Cal.App.3d 762 (1977).
56a
Where a party that may be liable for damages does not
know what sum is owed and where damages can be
arrived at only by a judicial determination based on
conflicting evidence, then the damages are uncertain and
there is no basis for an award for pre-judgment interest.
See Block, supra, at pages 1046-1047.
There has been some confusion in California regarding
pre-judgment interest under Civil Code Sections 3287 and
3288. Some courts have held that Section 3287 applies to
contract actions, and that Section 3288 applies to tort
actions or actions involving fraud, malice, ete. However,
under Section 3287(a), where under appropriate circum-
stances, tort claims may provide the basis for pre-judg-
ment interest, there still is a requirement of certainty.
See Levy-Zemper, supra. The law is clear that under
Sections 3287 and 3288, a plaintiff cannot recover pre-
judgment interest as damages unless they are “certain or
capable of being certain by calculation”. In Esgro Central,
Inc. v. General Insurance Company of America, 20
Cal.App.3d 1054 (1971), the Court stated that Section
3287(a) applies to situations:
“where there is essentially no dispute between the
parties concerning the basis of computation of dam-
ages if any are recoverable but where the dispute
centers on the issue of liability giving rise to the
damage.”
The Court held that until the verdict and the damage trial
was held, there was considerable “dispute between the
parties concerning the basis of computation of damages”.
See page 1063.
In this case, the Trial Court did not specify whether it
was awarding pre-judgment interest under Section
3287(a) or (b), or Seetion 3288.
57a
The California Supreme has reviewed the law on pre-
judgment interest in Bullis v. Security Pacific National
Bank, 21 Cal.3d 801 (1978) and Greater Westchester Home-
owners Association v. City of Los Angeles, 26 Cal.3d 86
(1979). In Greater Westchester, the Supreme Court held
that pre-judgment interest on damages for mental and
emotional injury and a nuisance action was improper. In
denying pre-judgment interest, the Supreme Court ex-
plained Bullis and provided a test for determining
whether pre-judgment interest is recoverable under Sec-
tion 3288 on the basis that there must be certainty or that
the damages were capable of being made certain by
calculation.
Although in a limited type of tort action pre-judgment
interest is allowed, there are still the basic requirements
that the amount of damages must be certain or capable of
calculation and not the subject of litigation between the
parties. Levy-Zemper, applying such a basic rule of cer-
tainty or capability of being certain and not subject to
judicial determination, is still the applicable law in Cali-
fornia on pre-judgment interest.
In E. L. White, Inc. v. City of Huntington Beach, 138
Cal.App.3d 366 (1982), the Court cited Levy-Zemper as
being the applicable law in California.
In Southern Pacific Transportation Company v. State of
California, 115 Cal.App.3d 116 (1981), the Court held
that an award of pre-judgment interest was invalid in a
tort action as there was no finding of oppression, malice
or fraud under Section 3288. A petition for hearing was
denied on March 25, 1981. The Trial Court in this case
made no finding of oppression, malice or fraud.
The trial established that there was substantial dispute
as to the amount of damages. Further, the following items
58a
show that not even the District knew the amount it was
claiming until the end of the trial.
1. The Complaint for Damages was filed on July 6,
1976 and alleged compensatory damages in the amount of
$27,000.00 a day for each day of the strike, and alleged
that the amount of damages was not ascertainable at that
time and that there would be further damages established
by proof at trial. (Cl. Tr. pp. 1, 32.)
2. There was no demand or notice given to the Union
regarding the amount of damages claimed until the filing
of the Amended Complaint on June 12, 1979. (Cl. Tr.
p. 147.) The Amended Complaint, in the Second Cause of
Action, alleged total expenditures due to the strike over
normal expenditures in the amount of $430,841.40. This
amount was then broken into three separate divisions,
consisting of: (a) paid overtime in the amount of
$363,796.35; (b) compensatory overtime, $18,046.64; and
(ec) related costs in the amount of $48,999.41. The
Amended Complaint also prayed for punitive damages in
the amount of $4,000,000.00.
3. The District’s Pre-Trial Brief stated that the Dis-
trict was prepared to present evidence as to compensatory
damages in excess of $400,000.00, and further that there
should be no offset from the damages on salaries saved
that were not paid to the strikers, and that the burden of
proof was on the Defendants regarding any offset on the
salaries of strikers. (Cl. Tr. pp. 274, 305.)
4. During the trial, the District introdu ed Exhibit
203 as to itemization of damages, requesting damages in
the amount of $388,704.00.
5. The amount of compensatory time off claimed by the
District varied even during the trial. In Exhibit 203, the
District claimed compensatory time off damages in the
ra
59a
amount of $16,040.00, whereas in Exhibit 364, the District
elaimed $15,615.40.
6. On overtime paid at time and one half, the District,
in Exhibit 194, claimed a total expense in the amount of
$331,386.00 and compensatory hours in the amount of
$16,040.00.
7. The District disputed that there was any offset on
overtime saved that would have been paid to strikers
(Exh. 363), which was allowed by the Trial Court.
8. The strikers’ salaries that were withheld was a
matter in dispute. In Exhibit 204, the District showed the
amount of salaries withheld as $112,649.00, whereas in
Exhibit 306, it showed the amount of $118,793.46. The
Trial Court allowed an offset in the amount of
$112,649.00. (Cl. Tr. p. 426.)
9. The Union claimed as an offset the amount of
retirement pay that would have been paid to strikers,
which was disputed by the District. The Trial Court
granted such offset in the amount of $8,312.00.(Cl. Tr. p.
426.)
10. The Union claimed as an offset the overtime saved
in an amount of $8,992.00, which was disputed by the
District and allowed by the Trial Court. (Cl. Tr. p. 426.)
11. The District, during the course of the trial,
claimed additional damages as lost productive time in the
amount of $32,341.04. (Exhibit 197.) The Trial Court
excluded the exhibit as an item of damages. “he District
persisted throughout the trial in attempting to claim the
additional damages of $32,341.04. (Rep. Tr. Vol. 3, p.
507.)
12. The District, during the course of the trial, re-
duced its claim for guard service since the original claim
60a
included costs ineurred after the strike had been termi-
nated. (Exh. 180; Rep. Tr. Vol. 3, p. 487.)
13. The accountant for the District testified that the
audit for the District on the amounts paid was not
completed until a week before the trial. (Rep. Tr. Vol. 3,
p. 487.)
14. The District made a motion to amend the Com-
plaint to conform to Exhibit 203, to show the amount of
damages claimed as well as the lost production time. The
motion was granted to amend the Complaint to conform
to Exhibit 203, and the Court denied the motion to allow
damages on lost productive time. (Rep. Tr. Vol. 3, pp.
504-507.)
In addition to the above, which establishes clearly that
there was no certainty as to damages and clearly no
notice to the Union as to the amount of damages claimed
to be certain or capable of being made certain by ecalcula-
tion, there are all of the items that are in dispute as set
forth in this appeal.
The Union submits that under the applicable law in
California, there was a substantial amount of uncertainty
as to the amount of damages. which could only be re-
solved by a trier of fact and upon review for error by the
Appellate Court. Further, the District itself did not know
the amount of its claim, as it did not complete its audit
until one week before the trial and in fact could not give
the Union sufficient or reasonable notice as to the specific
amount of damages claimed. In addition, the law is clear
that since the Trial Court did not make a finding of
malice, oppression or fraud, then pre-judgment interest in
this tort action cannot be allowed. Southern Pacific Trans-
portation Company v..State of California, supra.
6la
We
CONCLUSION.
For the reasons set forth in this Brief, the judgment
should be vacated in its entirety.
In the event there is liability, the judgment should be
reduced in amounts to allow only overtime under the
Salary Resolution and to eliminate: (1) compensation
time where no loss was shown; (2) unreasonable hours of
overtime; (3) overtime where no work was performed due
to the strike; and (4) unreasonable assignments of over-
time beyond 12 or 14 hours a day. Specifically, the
Appellants specified the proper summary of damages in
their Post-Trial Brief. (Cl. Tr. pp. 421-424.) In the alter-
native, the case should be remanded to the Superior Court
on damages in accordance with direction from this Court
as to the proper amount of damages to be allowed.
Further, the award of pre-judgment interest should not
be allowed.
DATED: March 28, 1983.
Respectfully submitted,
GEFFNER & SATZMAN,
A Professional Corporation,
By LEO GEFFNER,
Attorneys for Appellants.
APPENDIX B
2ND CIVIL No.
660838
In the Court of Appeal
SECOND APPELLATE DISTRICT
State of California
CouUNTY SANITATION DIsTRICT No. 2 OF
Los ANGELES COUNTY, a public agency,
Plaintiff and Respondent,
Vs,
Los ANGELES COUNTY EMPLOYEES ASSOCIATION, Lo-
CAL 660, SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO; Victor N. HocHER, Harry GLUCK, JACK
ROBERTS, ANTHONY BuTKA, EUGENE MILLER, GARY
SCHALANDER, BILLY MANNING,
Defendants and Appellants.
Appeal from the Superior Court of Los Angeles County.
Hon. Charles H. Older, Judge.
RESPONDENT'S BRIEF
Musick, PEELER & GARRETT,
Stuart W. RUDNICK,
STEVEN D. WEINSTEIN,
NEIL QO. ANDRUS,
One Wilshire Boulevard, °
Los Angeles, Calif. 90017,
(213) 629-7600,
Attorneys for Respondent.
2b
TOPICAL INDEX
Page
%
Py TI og 5 io ts beds kn ded eeosaese 1lb
II.
ed Ee Pere mre ae 12b
ITI.
pO SPP ee ere Te Tere Tre TET Tee eer 18b
A. The Superior Court’s Finding of Liability for
Appellants’ Strike Activity Must Be Affirmed 18b
1. Appellants’ Strike Activity Was Illegal.. 18b
2. Appellants’ Contentions Concerning the
District’s Good Faith During Negotia-
tions and an Alleged Constitutional Right
to Strike Are Neither Legally Sufficient as
Alleged, Nor Supported in the Record .. 26b
3. The Award of Damages Is an Appropriate
Remedy for Appellants’ Illegal Strike
FT NE. PPT COL TIL ER eT tere 31b
Fe I op soe pw eee cteere ces 31b
b. Damages Under Equity “Clean Up”
PEs cvcskiuavsckieupeet se 33b
B. The Superior Court’s Damage Award Must
Be Affirmed in All Respects .............. 34b
1. The “Reasonableness” of the District’s
Response to Appellants’ Illegal Strike
Must Be Reviewed as a Finding of Fact. 35b
a. Appellate Standard of Review....... 35b
b. The District's Entitlement to Damages
for Various Expenditures Is a
FUE bic oh ecespicccseérds 36b
3b
2. The Record Contains Substantial
Evidence Supporting the Judgment and
Underlying Findings of Fact and Must Be
Ns F505 15s ea ais ees ke
a. The District’s Staffing and Other
Expenses During the Strike Were
Reasonable and Necessary..........
b. The Superior Court’s Award of
Damages for Compensatory Time-Off
Is Supported by Substantial Evidence
ce. Substantial Evidence Supports the
Superior Court’s Reliance on the
District’s Payroll Records ..........
d. The Superior Court Correctly
Concluded That Overtime Rates
During the Strike Were Proper .....
C. The Superior Court’s Award of Prejudgment
Interest Must Be Affirmed................
1. The Superior Court Properly Exercised
Its Diseretion to Award Prejudgment
SING o's bab os A eels = aieee os fons
2. The Damages Awarded by the Superior
Court Were Capable of Being Made
Certain by Caleulation ................
IV.
ce ee ee er
37b
37b
45b
46b
48b
50b
51b
4b
TABLE OF AUTHORITIES CITED
Cases
Page
Adams v. City of Modesto, 53 Cal. 2d 833, 3 Cal.
Rptr. 561, 350 P.2d 529 (1960) ............... 49b
Almond v. County of Sacramento, 276 Cal. App. 2d
32, 80 Cal. Rptr. 518 (1969) .......... 18b, 25b, 27b
Armour & Co. v. Wantock, 323 U.S. 126 (1944)
PTEUECCTUTT ECCT TTT OCC rer re ee 43b, 44b
Bagley v. Washington Township Hospital District,
65 Cal. 2d 499, 55 Cal. Rptr. 401, 421 P.2d 409
(TBR). ea Fi. i ease HO FATS eee 30b
Bank of America v. Ryan, 207 Cal. App. 2d 698, 24
Geb, TE Pee CD divcc cb cdasscecdeawnessee 51b
Barnes v. Berendes, 139 Cal. 32, 72 Pac. 406
(1903), modifying on other grounds, 139 Cal. 39,
2 BRR oe rr rrr 36b, 40b
Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal. App.
EB be & Fi | Beer rr 36b
Brennan v. Western Union Telegraph Co., 561 F.2d
477 (3d Cir. 1977) cert. denied, Western Union
Telegraph Co. v. Marshall, 434 U.S. 1063 (1978) 49b
Bullis v. Security Pacifie Nat’] Bank, 21 Cal. 3d
801, 148 Cal. Rptr. 22, 582 P.2d 109 (1978)
baw oobgha ahich ocditslaas elses ean 52b, 53b, 54b
Canavin v. Pacifie Southwest Airlines, 141 Cal. App.
3d 577, Cal. Rptr. _._ (1983), reh’g
granted (rejecting Southern Pacific) .......... 54b
Caso v. District Council 37, American Federation
ete. Municipal Employees, 43 App. Div. 2d 159,
eRe & Ff | errr 24b, 32b
5b
Page
City and County of San Francisco v. Cooper, 13 Cal.
3d 898, 120 Cal. Rptr. 707, 534 P.2d 403 (1975)
» as 9a Rae Penn Oke Aree a .0 05. « 21b, 22b, 32b, 33b
City and County of San Francisco v. Evankovich,
69 Cal. App. 3d 41, 137 Cal. Rptr. 883 (1977)
ee ee ee re 18b, 27b, 29b, 30b
Ci:y of Fairmont v. Retail ete. Union, 283 S.E. 2d
ON IEE EEE 25b, 26b
City of San Diego v. American Federation of State
ete. Employees, 8 Cal. App. 3d 308, 87 Cal. Rptr.
Re is df didc Wh eis e>s 18b, 27b, 29b, 30b, 31b
Coleman Engineering Co. v. North American
Aviation, 65 Cal. 2d 396, 55 Cal. Rptr. 1, 420 P.2d
ES 56b
D’India, Estate of, 63 Cal. App. 3d 942, 134 Cal.
SS AE 35b
El Rancho Unified School District v. National
Edueation Ass’n, L.A. 31581 (May 31, 1983) ... 20b
Executive Aviation, Ine. v. National Insurance
Underwriters, 16 Cal. App. 3d 799, 94 Cal. Rptr.
ER 56b
General Electric Co. v. Porter, 208 F.2d 805 (9th
Cir. 1953), cert. denied, 347 U.S. 951 (1954)... 43b
Gherman v. Colburn, 72 Cal. App. 3d 544, 140 Cal.
EO Ee 51b
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) ...... 14b
Greater Westchester Homeowner’s Ass’n v. City of
Los Angeles, 26 Cal. 3d 86, 160 Cal. Rptr. 733,
603 P.2d 1329 (1979), cert. denied, 449 U.S. 820
I ee 53b
6b
: Page
Green v. Smith, 261 Cal. App. 2d 392, 67 Cal. Rptr.
Fee is a be RE oes ets 36b, 37b, 42b
Huntington Beach Union High School District v.
Continental Information Systems Corp., 621 F.2d
Se Cae GN es 6nd Fb kc oes bs ree Se kee 36b
International Brotherhood of Electrical Workers,
Local Union 1245 v. City of Gridley, 121 Cal. App.
3d 169, 175 Cal. Rptr. 274 (1981)............. 18b
Kitchel v. Acree, 216 Cal. App. 2d 119, 30 Cal. Rptr.
TiO GE ek choc 6 a Deda) Rie cele dbbaanes 47b
Leaf v. Phil Rauch, Inc., 47 Cal. App. 3d 371, 120
Ce, ts. Pe ks) ichacas vunwa pe bcewes 56b
Leff v. Gunther, 33 Cal. 3d 508, 189 Cal. Rptr. 377,
gS GR, earn arene 55b, 56b
Levy-Zentner Co. _ v. Southern Pacific
Transportation Co., 74 Cal. App. 3d 762, 142 Cal.
OEE, 0 SSE oe hic css eck eee 53b, 55b
Lineman v. Schmid, 32 Cal. 2d 204, 195 P.2d 408
£ BRAR Par err pe ye ey re ope ye 56b
Loewe v. Lawlor (Danbury Hatter’s), 208 U.S. 274
CEOE uch woman temneterebeeesiaeranir 24b
Longshore v. County of Ventura, 25 Cal. 3d 14, 157
Cal. Rptr. 706, 598 P.2d 866 (1979)........... 45b
Los Angeles Metropolitan Transit Authority v.
Brotherhood of Railroad Trainmen, 54 Cal. 2d
684, 8 Cal. Rptr. 1, 355 P.2d 785 (1960) .......
Los Angeles Unified School District v. United
Teachers, 24 Cal. App. 3d 142, 100 Cal. Rptr. 806
CT Sib os ks eed ond ee 18b, 19b, 27b, 29b
MecCowen v. Pew, 18 Cal. App. 482, 123 Pac. 354
ko) gape rR rea ee CEG AG hed wks 5. cons ee 51b
7b
Mix, In re Marriage of, 14 Cal. 3d 604, 122 Cal.
Rptr. 79, 586 P.2d 479 (1975) ............00.. 35b
Nestle v. City of Santa Monica, 6 Cal. 3d 920, 101
Cal. Rptr. 568, 496 P.2d 480 (1972)........... 35b
Newmarker v. Regents of the University of
California, 160 Cal. App. 2d 640, 325 P.2d 558
ES eos ooo san uae oe ae Saw ES ee ee eS e 25b
NLRB v. General Electrie Co., 418 F.2d 736 (2d
Cir. 1969), cert. denied, 397 U.S. 965 (1970)... 28b
Overton v. Vita-Food Corp., 94 Cal. App. 2d 367,
Sa, ee Pe A Gs foee sh vhs cee easctaeaves 37b
Pacific Telephone & Telegraph Co. v. Granite
Construction Co., 225 Cal. App. 2d 765, 37 Cal.
fo oe a sy Swi as pean Dey de a kere 36b
Pasadena Unified School District v. Pasadena
Federation of Teachers, 72 Cal. App. 3d 100, 140
Sees es Ue REED si 6h Uh a db airret es ead os
Placentia Fire Fighters, Local 2147 v. City of
Placentia, 57 Cal. App. 3d 9, 126 Cal. Rptr. 126
GREE sort ty heka these ee ei ea eee es hoes 27b, 28b
Redke v. Silvertrust, 6 Cal. 3d 94, 98 Cal. Rptr. 293,
490 P.2d 805 (1971), cert. denied, 405 U.S. 1041
DEE ioe scr yceruaca sudo Mee he o Yeah ews 52b
Robins v. Pruneyard Shopping Center, 23 Cal. 3d
899, 153 Cal. Rptr. 854, 592 P.2d 341 (1979),
og ee ee 31b
Sackett v. Spindler, 248 Cal. App. 2d 220, 56 Cal.
SS I og oa cei Poca ees oe roe ees 36b
San Diego Teachers’ Association v. Superior Court,
24 Cal. 3d 1, 154 Cal. Rptr. 893, 593 P.2d 838
Ce ei ee ov a> een ke 19b, 20b, 21b
8b
Page
Sapiro v. Frisbee, 93 Cal. App. 299, 270 Pace. 280
(BOGE 56 cdr ceves upd bieeecee eee eeeeee 34b
Schwartz-Torrance Investment Corp. v. Bakery &
Confectionery Workers’ Union, 61 Cal.2d 766, 40
Cal. Rptr. 233, 394 P.2d 921 (1964), cert denied,
BOG UE, GOR Ce ood n03 nce in adler 30b
Service Employees’ International Union, Local No.
22 v. Roseville Community Hospital, 24 Cal. App.
3d 400, 101 Cal. Rptr. 69 (1972) .............. 18b
Skidmore v. Swift, 323 U.S. 134 (1944).......... 44b
Smith v. Rickards, 149 Cal. App. 2d 648, 308 P.2d
Pee Cee bi iek ck sc eee 51b
Southern Pacific Transportation Co. v. State, 115
Cal. App. 3d 116, 171 Cal. Rptr. 187 (1981).... 54b
Stafford v. United Farm Workers, 33 Cal. 3d 319,
188 Cal. Rptr. 600, 656 P.2d 564 (1983) ....... 34b
State of California v. City and County of San
Francisco, 94 Cal. App. 3d 522, 156 Cal. Rptr. 542
CRI a 6s ss decks cates ne eee 23b, 24b, 32b
Stationary Engineers v. San Juan Water District,
90 Cal. App. 3d 796, 153 Cal. Rptr. 666 (1979)
+p hinbh skeet ae meme é ae 18b, 25b, 26b, 27b
Steiner v. Long Beach Local No. 128, 19 Cal. 2d
oe BA OS | eer ee rey 33b, 34b
Sutton v. Engineered Systems, Inc., 598 F.2d 1134
(Rep Gilet Hi oh 65 itso e Gace oan cces eases 48b
Trustees of California State College v. Local 1352,
S. F. State ete. Teachers, 13 Cal. App. 3d 863, 92
+ > 3%. Fs... BepreveevereT se oe 18b, 27b
Universal Camera Corp. v. NLRB, 340 U.S. 474
CORO? & niece canes sd iced eee eedas aes 35b
Walker v. Cronin, 107 Mass. 555 (1871) ......... 24b
9b
Federal Regulations
Code of Federal Regulations, Title 29, See. 541.3 .
Code of Federal Regulations, Title 29, Sees.
eg k'S ng win ose 0 0.4 0-8
Code of Federal Regulations, Title 29, See. 785.11
Code of Federal Regulations, Title 29, See. 785.12
Code of Federal Regulations, Title 29, See. 785.15
Code of Federal Regulations, Title 29, See. 785.18
Code of Federal Regulations, Title 29, See. 785.19
Code of Federal Regulations, Title 29, See. 785.20
Code of Federal Regulations, Title 29, See. 785.22
49b
48b
43b
44b
43b
44b
44b
43b
43b
Civil Code, See. 3287........... rae Views 54b, 55b
Civil Code, See. 3287(a) ........ dub, 51b, 52b, 55b, 56b
Civil Code, Sec. 3288 (West 1970) ...............
ee a ee ee 50b, 51b, 52b, 53b, 54b, 55b, 56b
Caves Coa, Bee. Geeeie) ...... wwe ee eee
eee
Civil Code, See. 3294(a) (West Supp. 1982) .....
Government Code, Sees. 3500-3511 (West 1980 &
Nk pk see es
Government Code, See. 3505 (West 1980) .......
Government Code, See. 3509 (West 1980) .......
Government Code, See. 3540 et seq. (West 1980 &
gS i a
Government Code, Sec. 3560 et seq. (West 1980 &
GI PR ee
Government Code, Sec. 6500 et seq. (West 1980 &
ee aa oe Sg wh Aus 006 sw 808
Health & Safety Code, Sec. 6400 et seq. (West 1970
NE ek gh ea uae anaes
Health & Safety Code, Sec. 6522................
10b
Page
United States Code, Title 29, Sec. 151 et seq. (1977) 24b
United States Code, Title 29, See. 158(e) ........ 25b
United States Code, Title 29, See. 158(f) ........ 25b
United States Code, Title 29, See. 158(g)........ 25b
United States Code, Title 29, See. 201 et seq. .... 42b
United States Code, Title 29, See. 213........... 48b
Textbooks and Treatises
23 California Jurisprudence 3d, Damages, Sees.
ES _, BR epee re es re rae eae 36b
38 California Jurisprudence 3d, Injunctions, See. 91
SS ree ere iy eee eee . 83b
6 Witkin, B., California Procedure, Appeal, Sec. 245
We Ae Bee Os SUED was Chew ce kek 5 ceeva- 35b
6 Witkin, B., California Procedure, Appeal, Sec. 249
Sg ee | Sr ee eee 35b
6 Witkin, B., California Procedure, Appeal, Sec. 254
wt: GIS Tae Ge. BPE 8 wo ks AK ene, 35b
11b
IN THE COURT OF APPEAL
SECOND APPELLATE DISTRICT
STATE OF CALIFORNIA
COUNTY SANITATION DISTRICT No. 2 oF
Los ANGELES COUNTY, a publie agency,
Plaintiff and Respondent,
VS.
Los ANGELES COUNTY EMPLOYEES ASSOCIATION, Lo-
CAL 660, SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO; Victor N. HocHEE, Harry GLucK, JACK
ROBERTS, ANTHONY BuTKA, EUGENE MILLER, GARY
SCHALANDER, BILLY MANNING,
Defendants and Appellants.
RESPONDENT’S BRIEF
I.
: PRELIMINARY STATEMENT.
Appellants Service Employees International Union, Lo-
eal No. 660 (“Local 660’), Victor N. Hochee, Harry
Gluck and Jack Roberts (jointly referred to hereinafter
as “Appellants’”) appeal from a judgment entered in
the Los Angeles County Superior Court in favor of Re-
spondent County Sanitation District No. 2 of Los Angeles
County. The judgment was predicated on a complaint for
injunctive relief and damages filed on July 6, 1976 (and
subsequently amended on June 12, 1979), in connection
with Appellants’ involvement in a labor strike against
Respondent. (C.Tr. 1, 147)?
The strike, which was the subject of the complaint,
began on July 5, 1976 and lasted until on or about July 16,
‘The Reporter's Transcript is hereinafter referred to as “(R.Tr.
).” The Clerk’s Transcript is referrred to as “(C.Tr. iy
Trial Exhibits are referred to as “(Ex.
12b
1976. On the same date the complaint was filed, a tempo-
rary restraining oruer was sought and obtained. Appel-
lants’ Brief at 1-2. Although the temporary restraining
order prohibited Appellants from engaging in a strike, it
was ignored. As a result of this failure to obey said order,
Local 660 was adjudged guilty of contempt in October of
1976 and fined $1,500. Appellants’ Brief at 1-2.
Inasmuch as the payment ofthe above-referenced fine
did not in any manner serve to make Respondent whole
for the harm suffered as a result of the strike, it pro-
ceeded with the prosecution of its action. On August 13,
1981, following a 12-day bench trial before the Honorable
Charles H. Older, judgment was entered in the amount of
$246,904.00, with interest thereon from July 18, 1976 in
the sum of $87,615.22, and costs in the amount of $874.65.
(C.Tr. 488)
Il.
STATEMENT OF FACTS.
Los Angeles County Sanitation District No. 2 is one of
27 sanitation districts within Los Angeles County. Each
such district is a separate and autonomous political sub-
division of the State of California, authorized by Health &
Safety Code § 6400 et seg. (West 1970 & Supp. 1983).
(R.Tr. 11-13) Los Angeles County Sanitation District No.
2 is authorized by a joint powers agreement (Ex. 120; see
Gov’t Code § 6500 et seq. (West 1980 & Supp. 1983)), to
act on behalf of itself and the 26 other districts, in
numerous matters, including personnel and labor rela-
tions. (These 27 sanitation districts are hereinafter
jointly referred to as “the District”).
The District operates sanitary landfills for the disposal
of rubbish, sewage treatment plants and approximately
11,000 miles of sewer trunk lines. (R.Tr. 11-12, 260) The
landfills in use in 1976 included the Palos Verdes, Puente
13b
Hills, Mission Canyon, Scholl Canyon, Spadra and
Calabasas facilities, which together received about 15,000
tons of refuse each day. (R.Tr. 350) The 11 sewage
treatment plants, which include the Long Beach, Los
Coyotes, Whittier Narrows, San Jose Creek, Pomona,
Saugus, Valencia, Palmdale, Lancaster and La Canada
water renovation plants, were processing 450 million
gallons of raw sewage each day. (R.Tr. 261; Ex. 102
through Ex. 119) Most of these plants are upstream
“feeders” to the Joint Water Pollution Control Plant
(“JWPCP”) located in Carson.” (R.Tr. 261) In
maintaining these operations, the District served
approximately four million County residents. (R.Tr. 12)
The District’s labor relations are governed by the
Meyers-Milias-Brown Act, Gov’t Code §§ 3500-3511 (West
1980 & Supp. 1983), and its Employee Relations
Resolution (Ex. 122), as authorized under that Act. 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. At all times pertinent hereto Victor N. Hochee was
the general manager of Local 660 (R.Tr. 23, 421), Harry
Gluck was Local 660’s manager of representational
services (R.Tr. 618, 622), and Jack Roberts was one of its
field business representatives. (R.Tr. 412)
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. (R.Tr. 24-25) Each year’ these
“The District maintained other facilities, such as maintenance
yards in Palmdale, Compton and San Gabriel, the South Gate
Transfer Station and 46 pumping stations, as well as a Joint
Administrative Office (“JAO”). (R.Tr 260-62)
‘Prior to 1977, MOUs were one year in duration.
14b
negotiations resulted in a binding labor contract, or
Memorandum of Understanding (‘““MOU”’), 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).
. Loeal 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 the District’s blue-collar employees. (R.Tr.
711, 936) The District responded to the strike by filing a
legal action not unlike that which is the basis of this
proceeding and by obtaining a restraining order. (Los
Angeles Superior Court Case No. C-92480) In spite of the
existence of the restraining order, the strike continued
for several days following its issuance. The matter,
however, was not pursued in court in that the action was
dismissed as part of a strike settlement. (R.Tr. 25, 570)
Local 660’s second strike, the subject of this lawsuit,
lasted from July 5 through July 16, 1976. (R.Tr. 419-20)
Despite approximately 19 negotiation meetings over a 3%
month period prior to the strike, and the District’s
comprehensive, compromise proposals on June 23 and
July 1, 1976, the parties were unable to reach agreement
on the terms of a new MOU. (R.Tr. 29) On the evening of
July 1, 1976, Loeal 660’s membership rejected the
District’s last offer and voted to strike. (R.Tr. 590-95)
The work stoppage did not begin, however, until 10:00
p.m., Monday, July 5, so employees could receive holiday
pay for that day.‘
It is clear that Local 660 prepared for the 1976 strike
well in advance of July 5, 1976. Such preparations
ineluded the hiring of a media consultant; the purchase of
*As July 4 fell on a Sunday in 1976, the following Monday was
observed as a paid holiday: (R.Tr. 240, 967-68)
15b
newspaper ads; the preparation, stockpiling and distribu-
tion of pieket signs; the written request to the Service
Employees International Union and the Los Angeles
County Federation of Labor for strike sanctions; the
printing of brochures; the renting and equipping of local
strike headquarters; the appointment of picket “cap-
tains”; the preparation of “hot-line” telephone messages,”
and other strike-related activities. (R.Tr..35-36, 420, 423-
26, 598, 617; Exs. 126, 184, 187, 191, 192; C.Tr. 138-40,
158, 209-14)
In order to keep critical facilities operating, the Dis-
trict a
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