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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 995

## Text

7

q) : FILED
oy ie
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
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 also prepared for the strike prior to July 5, 1976.
Roger Beeken, the engineer in charge of the District’s
sewerage department, prepared a written “strike-contin-
gency” plan (Ex. 145) to insure continued operation of
the sewerage treatment plants. This comprehensive plan
provided for 24-hour assignment of the 42 available man-
agement personnel to specific locations and duties for the
duration of the strike. (Ex. 145) It also set forth the
overtime policy for the strike, provided for added security
personnel and delineated arrangements for food and
sleeping accommodations. (Ex. 145) The plan was specifi-
eally designed to rectify deficiencies in the District’s
response to the 1974 strike, in assuring tighter plant
security and a more orderly transition to manageinent
operation. (R.Tr. 257-58; Ex. 145)

Similarly, in anticipation of the ‘ke tentative ar-
rangements were made to staff the la. ills with available
management and professional employees. (R.Tr. 355, 358,
972) Moreover, due to the fact that the District’s landfills
had been vandalized during the 1974 strike, arrangements

‘Local 660’s “hot-line” consisted of pre-recorded telephone
messages concerning the strike and negotiations. (See R.Tr. 420-21;
Ex. 191; C.Tr. 167-72)

16b

were made to upgrade security at the various sites. (R.Tr.
358, 367) In all respects, the District’s primary objective
was to maintain operations at the sewage treatment
plants and landfills (R.Tr. 356)

The strikers’ objective was precisely the opposite. Even
»efore the strike began, employees attempted to sabotage
vital equipment at the JWPCP, the District’s main sew-
age treatment plant. Management personnel replacing
»lue-eollar employees shortly after 10:00 p.m. on July 5,
diseovered a sewage discharge line blocked with a ply-
wood dise. Plant vehicles, their keys hidden in the hub-
eaps, were found blocking the entrance to the standby
generator building. (Ex. 157) The battery cables to the
standby generator had been cut. (Exs. 157, 175, 176).

On July 6, 1976, management discovered a particularly
dangerous condition in the large, sewage “digestion”
tanks at the JWPCP. For two or three days prior to the
strike, employees had deliberately overfed the anaerobic
bacteria in these tanks with sewage. This overfeeding
caused a serious decrease in bacterial production of
methane gas, which is used to power effluent pumps and
other eritieal equipment at the JWPCP. The effluent
pumps are necessary to prevent inflowing sewage from
flooding the JWPCP in a manner that would severely
ineapacitate and damage the plant. Had these sabotage
attempts not been uncovered, a disruption in the primary
souree of power in combination with the incapacitation of
standby generators could have crippled a facility whose
operation is eritical to the health and safety of the
community. (R.Tr. 330-34; Ex. 157)

Efforts to shut down District facilities did not cease
after the strike began, On July 6, 1976, approximately
75% of the District’s 500 blue-collar employees failed to
report to work. (R.Tr. 40, 157; C.Tr. 135) Moreover, on
the morning of the 6th, picketing commenced at virtually

17b

all the District’s treatment plants, landfills and other
facilities. (R.Tr. 383, 833, 948; C.Tr. 136, 158-59, 183,
221) The pickets distributed leaflets and attempted to
dissuade customers from using District facilities. (Exs.
183, 185; C.Tr. 158-59, 162-66) Entrances to District work
sites were routinely strewn with roofing nails and broken

glass; fences, gates and vehicles were damaged. (R.Tr.
325-30; Ex. 157)

Further, significant amounts of debris® were introduced
into the sewer system immediately upstream from the
JWPCP. Unless such debris is quickly removed from the
mechanical rakes and screens, which prevent such flotsam
from entering the JWPCP, the effluent flow would be
dammed, and the rakes damaged. (R.Tr. 262, 327-29)
During the strike, this debris caused precisely such dam-
age. Id.

Despite acts of sabotage and picket line problems,
District operations were not significantly impaired and as
it beeame apparent that the District would not capitulate
to strike pressures, a few employees began drifting back
to work.’ During the second week of the strike, discus-
sions resumed and by Friday, July 16, 1976, the parties
reached a tentative agreement on a new MOU, the terms
of which were the same as the District’s July 1 offer. (See
Exs. 182, 335; R.Tr. 629) On the evening of July 16, 1976,
Local 660 held a meeting at which the membership voted
to aecept the District’s offer. (R.Tr. 1059-60) There has

"Items retrieved from the inflowing sewer system included a mat-
tress, tires, a canvas tarpaulin, upholstered cushions, carpeting and
eabinet doors. (R.Tr. 328-29; Ex. 157, 158, 159) Such articles do not
normally come down the sewer system, and never in such quantity.
(R.Tr. 329)

’Nevertheless, agents of Local 660 continued throughout the strike
to urge non-striking employees to leave their jobs. (R.Tr. 860-62,
1055-56)

18b

been no strike activity by the District’s employees subse-
quent to July 1976. (R.Tr. 1012)

III.
ARGUMENT.

A. The Superior Court’s Finding of Liability for Appel-
lants’ Strike Activity Must Be Affirmed.

Appellants challenge the Superior Court’s award of
damages, caused by Appellants’ strike activity, on the
basis that (1) strikes by public employees are not unlaw-
ful in California, and (2) damages may not be awarded
against Appellants regardless of the legality of the strike
activity. All of Appellants’ various arguments in this
regard are without merit.

1. Appellants’ Strike Activity Was Illegal.

Every California court to address the issue has held
that, in the absence of specific legislative authorization, a
strike by public employees is illegal.® The decision in this

8 See, e.g., International Brotherhood of Electrical Workers, Local
Union 1245 v. City of Gridley, 121 Cal. App. 3d 169, 175 Cal. Rptr. 274
(1981), hearing before the Supreme Court pending; Stationary Engi-
neers v. San Juan Water District, 90 Cal. App. 3d 796, 801, 153 Cal.
Rptr. 666 (1979); Pasadena Unified School District v. Pasadena
Federation of Teachers, 72 Cal. App. 3d 100, 140 Cal. Rptr. 41 (1977);
City and County of San Francisco v. Evankovich, 69 Cal. App. 3d 41,
137 Cal. Rptr. 883 (1977); Los Angeles Unified School District v.
United Teachers, 24 Cal. App. 3d 142, 145, 100 Cal. Rptr. 806 (1972);
Service Employees’ International Union, Local No. 22 v. Roseville
Community Hospital, 24 Cal. App. 3d 400, 408, 101 Cal. Rptr. 69
(1972); Trustees of California State Colleges v. Local 1352, 8.F. State
Etc. Teachers, 13 Cal. App. 3d 863, 867, 92 Cal. Rptr. 134 (1970); City
of San Diego v. American Federation of State Etc. Employees, 8 Cal.
App. 3d 308, 310, 87 Cal. Rptr. 258 (1970); Almond v. County of
Sacramento, 276 Cal. App. 2d 32, 35, 80 Cal. Rptr. 518 (1969); see also

19b

judicial district which elearly disposes of this issue is
Pasadena Unified School Dist. v. Pasadena Federation of
Teachers, supra. The Pasadena ease involved a one-day
work stoppage by publie school teachers allegedly ‘“ad-
vised and induced” by the defendant union, its president
and others. The Superior Court sustained defendants’
demurrer and dismissed the plaintiff school district’s
complaint for damages resulting from the strike. This
Court reversed the Superior Court’s dismissal and re-
manded the case for trial. Quoting extensively from Los
Angeles Unified School Dist. v. United Teachers, supra at
146, and other cases, the Court held:

“TWle...‘ean conceive of no benefit which would
result from our reanalyses of the same issues which
the ... cited opinions have exhaustively treated, with
extensive citation of authority.’ We find these author-
ities persuasive that the strike by plaintiff's employ-
ees was unlawful.”

72 Cal. App. 3d at 107. The several cases decided after
Pasadena, cited above, have not changed the analysis or
the rule. Public employee strikes are still illegal, in the
absence of appropriate legislation.’ |

Appellants cite San Diego Teachers’ Association v. Supe-
rior Court, 24 Cal. 3d 1, 154 Cal. Rptr. 893, 593 P.2d 838
(1979), for the proposition that the legality of public
employee strikes is an unresolved issue in California.

Los Angeles Metropolitan Transit Authority v. Brotherhood of Railroad
Trainmen, 54 Cal. 2d 684, 687, 8 Cal. Rptr. 1, 355 P.2d 785 (1960)
(dictum).

*Labor relations of school districts are now covered by the Educa-
tion Employment Relations Act (““EERA’’). Gov’t Code § 3540 et seq.
(West 1980 & Supp. 1983). The strike in Pasadena occurred over two
years prior to the effective date of EERA, July 1, 1976, so the statute
relevant to the school district’s labor relations was the Meyers- Milias-
Brown Act, as is the case here.

20b

Appellants’ Brief at 5. A careful reading of the San Diego
Teachers case reveals, however, that the Supreme Court’s
holding was that it had no jurisdiction to decide the
legality of the strike in that case.

In San Diego Teachers the defendant labor union
(“SDTA”) engaged in strike activity against the San
Diego Unified Sekool District (‘‘school district’). The
school district sought and obtained a preliminary injune-
tion. The Supreme Court held, however, that the superior
court had no jurisdiction to issue the injunction, reason-
ing that the Public Employment Relations Board
(“PERB”) established under EERA had exclusive juris-
diction to decide in the first instance whether the SDTA’s
strike activities were unlawful under EERA, and whether
PERB should seek injunctive relief in the superior court.
San Diego Teachers expressly rejected the notion that
PERB and the courts shared, in some instances, jurisdic-
tion to pass on the legality of public employee strike
activities under EERA. Thus, the Court’s statement that
“it is unnecessary here to resolve the question of the
legality of public employee strikes,’ 24 Cal. 3d at 7,
implies at most only that the courts have no power to
decide strike legality issues under EERA.”°

Accordingly, San Diego Teachers is perfectly consistent
with the Supreme Court’s statement in Los Angeles Metro-

For the same reason, the Supreme Court’s recent decision in El
Rancho Unified School District v. National Education Ass’n, L.A. 31581
(May 31, 1983), is completely inapposite here. There, the Court held
that the courts have no jurisdiction to award damages for strik»
activity which is “arguably protected or prohibited” under EERa«,
since such activity, under San Diego Teachers, is within the exclusive
jurisdiction of PERB. As noted, the Legislature has not created an
independent agency to administer the Meyers-Milias-Brown Act. The
trial court in this case, therefore, clearly had jurisdiction to award
damages for Appellants’ illegal conduct.

_

21b

politan Transit Authority v. R.R. Trainmen, 54 Cal. 2d at
687, 8 Cal. Rptr. at 2, that “[i]n the absence of legislative
authorization public employees in general do not have the
right to strike.” In R.R. Trainmen, the Supreme Court
expressly held that the Legislature had given the right to
strike to a particular class of public employees. Similarly,
in Sa» Diego Teachers, the Supreme Court held that the
Legislature had committed the initial determination of
strike legality under EERA to PERB. Neither case is
authority for Appellants’ contention that the right of
publie employees to strike, such as the District’s employ-
ees who are not covered by EERA or by legislation giving
them a right, is somehow undecided in this state. More-
over, even if San Diego Teachers stood for the proposition
that the right of employees subject to the Meyers-Milias-
Brown Act to strike is unresolved by the Supreme Court,
it in no manner diminishes the dispositive, precedeitial
authority of Pasadena in this district.

Appellants also argue that the Supreme Court’s deci-
sion in City and County of San Francisco v. Cooper, 13
Cal. 3d 898, 120 Cal. Rptr. 707, 534 P.2d 403 (1975),
leaves open the question of the legality of public employee
strikes, and is inconsistent with awarding damages
caused by a public employee strike.’ The Cooper case was
a suit by the City and County of San Francisco and the
San Francisco Unified School District to compel the
Controller of San Francisco to implement salary in-
creases reflected in the city and county’s salary standard-
ization ordinance and the school district’s salary schedule
resolution. The Controller had refused to do so because of
a prior taxpayer suit. In both lawsuits, the real party in
interest, the taxpayer, argued that the salary standardiza-
tion ordinance and the salary schedule resolution were

"The latter aspect of Appellants’ argument is discussed in Part III
(A) (3) (a), infra.

22b

invalid “because they were adopted ‘as a result of and
‘under the coercion of,’ an illegal public employee strike.”
13 Cal. 3d at 905. The Supreme Court refused, however, to
invalidate the two “legislative” actions (1.e., the ordi-
nance and resolution) on the basis that the judiciary had
ne authority to investigate the motive behind a legislative
body’s actions because of the principle of separation of
powers. It was therefore unnecessary to rule on the
unions’ contention that the strike in Cooper had been
legislatively authorized.

In any event, even had the Cooper Court expressly
stated the legality of public sector strikes to be un-
resolved in the Supreme Court, it would be seant comfort
to Appellants in the face of uniform Court of Appeal
precedent holding strikes by public employees to be
illegal.

Appellants also argue that public policy presently dic-
tates the blanket legalization of all public employee
strikes, whether or not the Legislature has spoken, invok-
ing the spectre of labor unrest and the alleged unfairness
of the prohibition of publie sector strikes.

Ccntrary to Appellants’ suggestion, labor peace is not
served by granting public employees the unfettered right
to strike. The 1974 strike was settled with an amnesty
agreement dismissing all court proceedings. Neverthe-
less, despite that “peaceful” resolution, coerced through
strike activity, Appellants struck again just two years
later. Thus, it ean hardly be said that the 1974 strike and
its settlement produced any permanent labor peace.

Conversely, after 12 days, the 1976 strike was resolved
through the execution of a successor MOU (Ex. 355),
embodying the District’s pre-strike offer, despite the fact
that the District refused to agree to an amnesty dropping
all legal and disciplinary actions. There has not been a

23b

strike in the ensuing seven years, during which this
litigation has been pending. (R.Tr. 1012) The position
espoused by Appellants that litigation necessarily exacer-
batzs publie labor disputes, therefore finds no support in
this record.

Nor is the illegality of sanitation worker strikes unfair.
It is axiomatic that the intent of any economic strike is to
pressure the employer by either inhibiting or stopping its
ability to operate. If an employer can continue to operate
during a strike, it has less economic incentfe to come
back to the bargaining table with a better offer. There is
abundant evidence in the record before this Court that
impairing or completely curtailing the District’s ability to
operate was precisely Appellants’ objective. Indeed, the
‘“hot-line’” messages from Local 660 to its members
throughout the strike emphasized the curtailment of Dis-
trict operations. (Ex. 191) Here, however, curtailment of
operations does not merely result in the imposition of
economic pressure. Rather it places at risk the health and
safety of an entire community.

Unquestionably, Local 660 and striking employees
knew of the health and ecological dangers a successful
strike would cause. Had Appellants been successful in
their express intent to shut down the District’s facilities,
over 4 billion gallons of raw sewage could have been
discharged into the Pacific Ocean. The consequences of
such an occurrence would be disastrous. The court in
State of California v. City and County of San Francisco, 94
Cal. App. 3d 522, 156 Cal. Rptr. 542 (1979), a case
involving a six-day sewage worker strike, detailed the
inealeulable harm the discharge of 426 million gallons of
sewage (a mere one tenth of the amount involved here)
into the ocean had caused:

“[V]isible discharge of sewage solids, odors, discol-
oration and turbidity (milkiness) [was evident] at

24b

all sites. Samples of water showed coliform (waste
material from colon of warm-blooded animals) levels
over the permitted limit. Aerial photographs showed
black discharge, floating sheen and numbers of seav-
enger birds.

“Marine life was harmed because chronium ex-
ceeded toxie levels. Testimony in the court below
indicated that the sewage would have caused vari-
eties of harm to fish and benthie organisms (those
living near the bottom of the sea) although specific
injuries were unknown.”

94 Cal. App. 3d at 526; see also Caso v. District Council 37,
American Federation etc. Municipal Employees, 43 App.
Div. 2d 159, 350 N.Y.S. 2d 173 (1973) (Sanitation strike
resulted in discharge of one billion gallons of untreated
sewage into East River). (See, e.g., R.Tr. 330-34, 327, 358;
Ex. 189, Ex. 183)

In short, Appellants’ public policy argument reduces to
the proposition that Local 660 and the employees it
represents have a right to endanger the health of four
million residents of Los Angeles County.

Moreover, even assuming that Appellants’ conclusory
statements concerning the policy justifications for al-
lowing public employees the right to strike were colorable,
Appellants are simply in the wrong forum. The delicate
balances involved in labor relations regulation and the
guarantees of employer and employee rights,” both in the
publie and private sectors, have always been established
through legislation, such as the National Labor Relations
Act (“NLRA”), as amended, 29 U.S.C. $151 et seq.
(1977), the Meyers-Milias-Brown Act, EERA and other

2 4t common law, all strikes were illegal. See, e.g., Walker v. Cronin,
107 Mass. 555 (1871); cf. Loewe v. Lawlor (Danbury Hatter’s), 208
U.S. 274 (1908).

|

25b

legislative schemes. In these enactments, the Congress
and the California Legislature have recognized the need
for individualized treatment for particular industries. In
the NLRA, for example, Congress fashioned special rules
for the construction industry, the garment industry, 29
U.S.C. §158(e) & (f), and the health care industry. 29
U.S.C. §158(g). California has a different statutory
scheme for the public school systems (EERA), than for
institutions of higher education. Gov’t Code § 3560 et seq.
(West 1980 & Supp. 1983) (Higher Education Employer-
Employee Relations Act) (“HEERA’’). The Meyers-
Milias-Brown Act, the relevant statute in this case, is in
turn distinct from EERA and HEERA. Given the subtle,
earefully-crafted legislative distinctions not only between
public and private sector employees, but also among
various classes of such employees,”® Appellants’ demand
for a right to strike must be directed to the legislature.
See Stationary Engineers, Local No. 39 v. San Juan Subur-
ban Water District, supra; Almond v. County of Sacra-
mento, supra; Newmarker v. Regents of the University of
Califorma, 160 Cal. App. 2d 640, 646, 325 P.2d 558
(1958). Even the court in City of Fairmont v. Retail etc.
Union, 283 S.E. 2d 589 (W.Va. 1981), a ease relied upon
by Appellants, recognized:

“TI]n most other states the legislature has made an
effort to make some statutory accommodations to the
labor relation problems that exist in the public sec-
tor. Indeed, it was the initial inability of the courts to
judicially resolve [sic] the competing interests of

“The basis for distinctions among classes of public employees is
readily apparent. For example, the potential for immediate, devastat-
ing harm to public health and safety is obviously much less in a strike
by publie school teachers than it is in a strike by sanitation workers,
police or firemen. Thus, the Legislature has enacted differing
schemes for regulating the labor relations of these distinct classes.

26b

private employees and private employers that led to
federal legislation in the labor law field. Most if not
all commentators in the labor law area agree that the
complex issues in this field are ill suited to any
comprehensive judicial solution.”

283 S.E. 2d at 595.

In sum, the Legislature is the appropriate forum in
which the common law illegality of public employee
strikes is to be weighed. Moreover, even were Appellants’
arguments properly addressed to the courts, they are
little more than an unsupported and conclusory recita-
tion, at odds with the evidence in this case and inimical to
the public health and safety.

2. Appellants’ Contentions Concerning the District's
Good Faith During Negotiations and an Alleged
Constitutional Right to Strike Are Neither Legally
Sufficient as Alleged, Nor Supported in the Record.

Appellants raise two other broad claims in an effort to
legitimate their strike. First, they contend that their
actions are justified by the District’s alleged failure to
bargain in good faith. Second, Appellants claim that
depriving public employees of the right to strike denies
them constitutional equal protection and freedom of as-
sembly and speech guarantees. These claims are notewcr-
thy only in the frequency and consistency with which the
eourts have rejected them.

With reference to the first of these arguments, the
District notes that wholly apart from the fact that it
bargained in good faith, courts have uniformly rejected
the notion that a public agency’s lack of good faith
bargaining justifies illega) strike activity under the Mey-
ers-Milias-Brown Act. In Stationary Engineers Local No.
39 v. San Juan Suburban Water District, supra, the lone
ease cited by Appellants, the court categorically stated:

27b

“(U]nder California law public employees have no
right to strike whether their employer violates the
Meyers-Milias-Brown Act or not.”

90 Cal. App. 3d at 801 (citation omitted). The court noted
that had the employees in that case had a legitimate
grievance concerning the lack of good faith by the employ-
ing agency, their remedy was judicial. See Placentia Fire
Fighters, Local 2147 v. City of Placentia, 57 Cal. App. 3d 9,
126 Cal. Rptr. 126 (1976). The court in Stationary Engi-
neers discussed whether there was merit to the employees’
allegations of lack of good faith bargaining, but contrary
to Appellants’ suggestion, there is no implication in the
decision whatsoever that a lack of good faith by a public
agency under the Meyers-Milias-Brown Act justifies or
legitimates public employee strike activity.’*

Moreover, the record in the instant case conclusively
demonstrates the District’s good faith bargaining. There
is no evidence that the District ever failed or refused to
“meet and confer in good faith regarding wages, hours,
[or] other terms and conditions of employment.” Gov't
Code § 3505 (West 1980). There is no evidence that the
District was not seriously trying to reach an agreement.
The evidence affirmatively demonstrates that the District
made economic concessions in its June 23 offer, which
Local 660 rejected. (R.Tr. 163-66) On July 1, 1976, the
District offered a package of economic and other conces-

"For other cases rejecting such a justification for public employee
strikes, see Los Angeles Unified School Dist. v. United Teachers, supra;
Trustees of Cal. State Colleges v. Local 1352, 8. F. State etc. Teachers,
supra; City of San Diego v. American Federation of State etc. Employ-
ees, supra; Almond v. County of Sacramento, supra; see generally, City
and County of San Francisc v. Evankovich, supra, 69 Cal. App. 3d at
47-48, and cases cited there; Gov't Code § 3509 (West 1980).

28b

sions beyond those of June 23. (R.Tr. 246-47) Local 660
in turn rejected the terms of this July 1 offer.’

Appellants spent a great deal of time and effort at trial
attempting to prove that the District’s bargaining propos-
als would have resulted in a net decrease in pay for some
employees.’® Yet, even if this had been shown, it would not
establish bad faith. In Placentia Fire Fighters, Local 2147
v. City of Placentia, supra, for example, the plaintiff labor
union sought to show the defendant city’s bad faith based,
inter alia, on its proposed reduction of hours from 67 to
40 per week and elimination of certain fringe be: ‘its. The
court rejected this argument, reasoning that the weyers-
Milias-Brown Act contains “the right to remain firm.” 57
Cal. App. 3d at 22. Appellants’ apparent contention that
proposing a pay cut is per se in bad faith under the
Meyers-Milias-Brown Act is, therefore, frivolous.

Appellants’ explicit contention that conditioning the
euly 1 offer upon recommendation of acceptance by Local
660’s negotiating committee constituted bad faith bar-
gaining is nothing more than a conclusory, unsupported
statement. Appellants cite no authority, nor is there any,
for the novel proposition that this condition constituted a
failure to meet and confer in good faith under the Meyers-
Milias-Brown Act. In short, the record clearly demon-
strates the District’s good faith, even were such relevant.
See generally NLRB v. General Electric Co., 418 F.2d 736
(2d Cir. 1969), cert. denied, 397 U.S. 965 (1970).

Indeed, because Local 660’s negotiating committee refused to
recommend acceptance of the July 1 offer, the offer which Local 660
ultimately accepted on July 16, it was not even presented to the
membership of Local 660 prior to the strike. (R.Tr. 169-73, 593, 625-
26)

6The record is clear that neither the District's June 23 offer nor its
July 1 offer would have resulted in a pay cut. (R.Tr. 148-49, 240-42,
619, 628-29, 1049; see Ex. 182, Ex. 355)

29b

Appellants also contend that the purported right peace-
fully to withdraw services from a public sector employer
is of constitutional dimensions, apparently predicated on
freedom of speech.’ They further argue that “since pri-
vate sector employees have the right to strike,’ Appel-
lants’ Brief at 9, the prohibition against public employee
strikes contravenes constitutional equal protection guar-
antees. California courts have rejected both these conten-
tions on numerous occasions.

In the Pasadena case, the Court, after extensive discus-
sion of the relevant case law, concluded:

“The foregoing authorities support the constitution-
ality of even prior restraint upon speech advocating
an illegal strike by public employees. If such prior
restraint is permissible, a fortiori the restraining
effect of subsequent liability for damages which
plaintiff here seeks to impose does not violate de-
fendants’ free speech rights.”

72 Cal. App. 3d at 110; see also, City and County of San
Francisco v. Evankovich, supra; Los Angeles Unified School
District v. United Teachers, supra.

Regarding Appellants’ equal protection argument, the
eourt in City of San Diego v. American Federation of State
etc. Employees Local No. 127, supra, after assuming that
the right to strike was a “fundamental interest” under
traditional equal protection analysis, unequivocally re-
jected that argument. The court noted:

“(The Union] argues the rule of law denying a
gardener on a publie golf course the right to strike

‘7 Appellants also refer to freedom of assembly in apparent connec-
tion with the “right to associate into a union.” Appellants’ Brief at 9.
The right of employees to join and participate in labor organizations
per se is not, however, in any way relevant to this case.

30b

while affording a gardener on a private golf course
that right, does not serve a compelling state interest.
The reasons for the law denying publie employees the
right to strike while affording such right to private
employees are not premised on differences in types of
jobs held by these two classes of employees but upon
differences in the employment relationship to which
they are parties. The legitimate and compelling state
interest accomplished and promoted by the law deny-
ing public employees the right to strike is not solely the
need of a particular governmental service but the
preservation of a system of government in the ambit of
public employment and the proscription of practices
not compatible with the public employer-employee
relationship.”

8 Cal. App. 3d at 315 (citation omitted) (emphasis
added). Of c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0788%3A2. Public record. Not legal advice.