Opposition Brief — County Sanitation District No. 2 v. Los Angeles County Employees Ass'n, Local 660

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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

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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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Opposition Brief — County Sanitation District No. 2 v. Los Angeles County Employees Ass'n, Local 660 · 474 U.S. 995 | Frix