Petition for Writ of Certiorari — Solis v. Bay Area Rapid Transit District
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FILED
AUG 11 1987
JOSEPH F. SPANIOL, JR
IN THE SUPREME COURT OF THE UNITED STATES?
October Term 1987 a
87-264
No.
ROBERT J. SOLIS,
CARMELA DELGADO, DIANE Y. JOHNSON
RICHARD J. OSONNA, BEN BURNETT,
MARTHA A. MUNOZ, GERHARD H. SCHULZ,
WILLIAM X. CHOY, JAMES BOYETTE,
DON GARCIA, REGALADO P. DANIEL,
DAVID A.R. ROBERTS IV, AND
MIGUEL MORENO, on behalf of
themselves and all others similarly
situated,
Petitioners
-\-
BAY AREA RAPID TRANSIT DISTRICT,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF CALIFORNIA,
FIRST APPELLATE DISTRICT
LOUIS A. HIGHMAN
Attorney at Law
870 Market Street, Suite 469
San Francisco, CA 94102
Telephone: (415) 982-5563
Attorney for Petitioners
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1987
No.
ROBERT J. SOLIS,
CARMELA DELGADO, DIANE Y. JOHNSON
RICHARD J. OSONNA, BEN BURNETT,
MARTHA A. MUNOZ, GERHARD H. SCHULZ,
WILLIAM X. CHOY, JAMES BOYETTE,
DON GARCIA, REGALADO P. DANIEL,
DAVID A.R. ROBERTS IV, AND
MIGUEL MORENO, on behalf of
themselves and all others similarly
Situated,
Petitioners
me
BAY AREA RAPID TRANSIT DISTRICT,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF CALIFORNIA,
FIRST APPELLATE DISTRICT
LOUIS A. HIGHMAN
Attorney at Law
870 Market Street, Suite 469
San Francisco, CA 94102
Telephone: (415) 982-5563
Attorney for Petitioners
QUESTIONS PRESENTED FOR REVIEW
1. Can a local governmental agency lock out its union employees
during a labor dispute, and if so, under what circumstances, and
pursuant to what underlying motivation of the governmental em-
ployer is such a lockout legal and not violative of said public em-
ployees’ due process and freedom of association rights under 42
U.S.C. Section 1983?
2. Do the same criteria apply in determining the legality of a
public employer’s locking out its employees as apply in determin-
ing the legality of a private employer’s locking out its employees?
3. Did the First Distvict Court of Appeal of the State of Califor-
nia err in holding that BART did not violate the constitutionai
right of freedom of association in refusing to permit union mem-
bers against whom there were no pending disciplinary charges the
opportunity to work for approximately three months, while per-
mitting non-union members to work, even though there was work
available for the aforesaid union members—said refusal resting
solely upon said union members’ membership in UPE 390 or ATU
1555 rather than on any charge of their participating in any al-
leged misconduct?
4. Can a person be penalized in his employment, and deprived
of his livelihood for almost three months, because of speculation
and fear by a governmental employer that a union of which he
is a member will ask him to do certain illegal acts in the future
and that, in response, he will accede to the union’s request to do
such illegal acts, even though he has not participated in any ille-
gal acts in the past and even though he has no specific intent to
further any allegedly unlawful aims of the union?
5. Can a person be penalized and deprived of his livelihood by
his governmental employer solely because of his membership in
a union, and if so under what circumstances?
6. Is penalization of a governmental employee by refusing to
permit him to work for three months, based on the sole criteri-
on of his being a member of a specified union, a sufficiently se-
vere penalty for said employee’s exercise of his freedom of
association rights to permit him to maintain a cause of action for
damages under 42 U.S.C. Section 1983, or is a more severe pen-
alty such as permanent termination necessary before he has a
cause of action under 42 U.S.C. Section 1983?
PARTIES TO THE PROCEEDING
The named plaintiffs to this class action proceeding were:
Robert J. Solis, Carmela Delgado, Diane Y. Johnson, Richard
J. Osonna, Ben Burnett, Martha A. Munoz, Gerhard H. Schulz,
William X. Choy, James Boyette, Don Garcia, Regalado P.
Daniel, David A. R. Roberts IV, and Miguel Moreno. Said par-
ties represented the class, which was comprised of all employees
of Bay Area Rapid Transit District who were either members of
United Public Employees Local 390 of the Service Employees In-
ternational Union, or of Local 1555 of the Amalgamated Tran-
sit Union, during the period August 31, 1979 to November 23, 1979.
The named defendants to this class action proceeding were Bay
Area Rapid Transit District (BART) and its General Manager,
Keith Bernard. Defendant Bernard was dismissed from the
proceeding as a named defendant prior to judgment.
CONTENTS
Page
Questions Presented for Review ..............cceeeceeee i
Dn cnc beweeeedeveseseauseyen ii
po PPP PREP Er Pry Tre ree fe err eS ili
ES 15553. 52 so o's obo 8500 Gaauassuea uber ned Vv
Gs eS Gab ands ueeene eased eee ieens ]
PE oa crn baa e ran Sane eae e aes eta wee aa eed ]
Statutes and Constitutional Provisions Involved ......... ]
oo sks des) andrea be kas ake eee 2
.. ,& Seer reer rrr eect: 2
B. The Reasons the Supreme Court Should Grant
Ce ee NE HUI 6 ois sin 06k s dewenanoxnamenes 5
GPC oak ah 0 bbs 0's Wad ae eRe ee 7
DACRE STONE 00 LADOT TIMGUEE ccc cas acesnerss 7
Fr ee aa oss ek okey eed dees 7
The July Comcord Yard Dispute .........cccccevavees 8
BART’s Unilateral Changes
in the Terms of Employment .................... 9
The August 27, 1979 Union Bulletin ................. 10
i Fy ft Se rene ey esr nei 1]
ee ee SE bach eeacaead cans b4e ke eee 12
RE, TE Te boos een davadccnar ten caeenie 12
August 3l: BART’s Aggravation of the Problem ....... 13
Pa TE Te ob hk we ee Rea eee 14
September | - November 23: The Continuing Lockout . 17
November 23: The End of the Lockout .............. 18
Argument
The Trial Court Erred In Its First Amendment Anal-
ysis; BART Violated Plaintiffs’ First Amendment
Rights of Freedom of Association; A Lockout Anal-
ysis In a Governmental Employment Situation Must
Take Into Account Certain Constitutional Issues Not
Germane To an Analysis of a Lockout In a Private
INS TD ho von cs dec bdcoe eee veesonuen 19
CRE ihc ek eeckenae del aes era ee ee 30
iil
APPENDIX
COWS Or FEE CI aig od cock cken¥secccoessere A-l
Denial of Petition for Rehearing by Court of Appeal .. A-12
Denial of Petition for Hearing by California Supreme Court A-13
Wee ED ID hg bcd dd éccnnuesecbeeeouwaeeus A-14
PUN GT Dae IE, nk.k 0 0 4 08 5.604044 00046000045 A-14
Relevant Statutes and Constitutional Provisions
rr err A-28
First Amendment, U.S. Constitution ............... A-28
Fourteenth Amendment, U.S. Constitution ......... A-28
TABLE OF AUTHORITIES
Cases Page
Abood vy. Detroit Board of Education
er CnC oa dc heads ues sed 600006 00 6604054 5, 26
American Ship Building Co. v. N.L.R. B
SE I I a a vied ccvessssecscese 3, 5, 26, 27, 28
Castleberry v. Langford
(N.D. Texas 1977) 428 F.Supp. 676 .................... 30
County Sanitation District No. 2 of Los Angeles
County v. Los Angeles County Employees’ Association
ee os cad Vkuvnccwoneceewa 22, 27, 28
Elfbrandt v. Russell
SE co cea es ecb suet nbhobacns 6, 19, 22, 30
Familias Unidas v. Briscoe
cs ba cn ken cao aeeweenan 23
In Re Stolar
Ea ee er ee 6, 19, 22, 25, 30
Keyishian v. Board of Regents
I 6 os 6 a'a Un v0 0 0:00.60 ohcecoe's 6, 19, 22, 25
Lontine v. VanCleave
Gee Gals MP Ge Hue SOO. nonce ccccncncectscvcas 22, 30
Mabey v. Reagan
Cee es PUT BUD iv cccccncccecwsssauacnbaes 27
Madison School District v.
Wisconsin Employment Relations Comm’n
ee IEE SUS Gi ut sk ccancoceccevsscasses 27
Madison School District v.
Wisconsin Employment Relations Comm’n
EE a eae so bea kd ddd d4k ck k bas aie 27
McLaughlin v. Tilendis
(7th Cir. 1968) 398 F.2d 287 ............... isiaekurs 19, 22
NAACP yv. Button
Cee ee uae wateneeee's 30
National Labor Relations Board vy.
GAIU Local 13-B, Graphic Arts International Union
Sp Nd 0 os cs tne adn ku woaede veces 24
Perry v. Sindermann
rr ee I I ln honk Wows wn cash encwecnesaks 6, 30
Pickering v. Board of Education
i Cros Tee ed bndan bee eae enasens 20
San Francisco Bay Area Rapid Transit District v.
Superior Court (1979) 97 Cal.App.3d 153 ............655. )
Schofield v. N.L.R.B.
ae oc eee kaa eee ee 24
Shelton v. Tucker
Me, ov ecuuasansessen ve ee TOPE Ee 30
Thomas v. Collins
Ne ee ee ee ene eecaden 22
Thomas v. Younglove
rr ee os cceeesnsvusbieakeexes 30
Tygrett v. Barry
ee rr Core... 6a cseccncebeberseess 23
United States v. Robel
Se a CO np a a neces cenrees 1. &@ Boa we
Statutes
Neen ee aaa es her ae ]
rr re, 2s. Oe os scsvnunesvawdesuavens 24
re re eo ceeds oesebeuba nes et
U.S. Constitution
NE PF re Pee Tree PO rrr Passim
PPP PEEP POET OP OPP TOC TERS T ]
Other Author‘ties:
Summers, Clyaie W. ‘*Public Sector Bargaining:
Problems of Governmental Decision Making’’
ee ee MD oc aciacudnwuashaakacacbuses 27
vi
Petitioners (the named plaintiffs and the certified class they rep-
resent in the action below) respectfully pray that a writ of cer-
tiorari issue to review the judgment and opinion of the Court of
Appeal of the State of California in and for the First Appellate
District, Division Two, filed February 20, 1987, with rehearing
denied on March 19, 1987, and petition for review to the Califor-
nia Supreme Court denied on May 13, 1987.
OPINION BELOW
The unpubished opinion of the Court of Appeal of the State
of California (dated February 20, 1987), the trial court opinion
it reviewed (first filed on December 27, 1983, as an announcement
of intended decision, and revised by the penned in, initialed cross-
ing out of eight words on page 4 thereof on February 15, 1984),
the trial court judgment it reviewed (filed on February 22, 1984),
the order denying petition for rehearing by the Court of Appeal
(dated March 19, 1987), and the order denying petition for re-
view by the California Supreme Court (dated May 13, 1987) are
attached as Appendices hereto.
JURISDICTION
The opinion of the State Court of Appeal was issued on Febru-
ary 20, 1987. A timely petition for rehearing was denied on March
19, 1987. A timely petition for review to the California Supreme
Ccurt was denied on May 13, 1987. This Court’s jurisdiction is
invoked under 28 U.S.C. Section 1254(i). A state court of last re-
sort has decided a federal question—plaintiffs’ claim for relief
under 42 U.S.C. Section 1983—in a way in conflict with the de-
cisions of a number of federal courts of appeals. Furthermore,
a State court of last resort has decided an important question of
federal law which has not been, but should be, settled by this
Court, and has also decided a federal question in a way in con-
flict with the applicable decisions of this Court.
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
The pertinent statutes and constitutional provisicns involved
are 42 U.S.C. Section 1983, and the First and Fourteenth Amend-
ments to the United States Constitution.
STATEMENT OF THE CASE
A. PRELIMINARY STATEMENT
In the case at bar, a class action tried by the Superior Court
in and for the City and County of San Francisco, State of Califor-
nia without a jury, approximately 2,000 employees, part of whom
were members of Local 390 of the Service Employees Internation-
al Union (SEIU 390) and the other part of whom were members
of Local 1555 of the Amalgamated Transit Union International
(ATU 1555), sought wages for the period of time between Sep-
tember 1, 1979 and November 23, 1979. The trial court certified
the class, and found that said employees were locked out by defen-
dant Bay Area Rapid Transit District (hereinafter referred to as
‘*‘BART’’) during said period of time, and were not permitted to
work on the sole criterion that they were members of one of the
two unions. During said period of time, all employees of BART
other than the members of these two unions were permitted to
work.
For part of the lockout period, BART provided no passenger
service, and for part of the lockout period, BART provided limited
passenger service. Temporary and management personnel sub-
stituted for the locked out employees during the entire period of
time. Many of the locked out employees had jobs for which there
was work available regardless of the extent of passenger service
going on. For example, gardeners, accountants, secretaries,
mechanics, clerks, and maintenance people were not permitted
to work during the entire period if they were members of either
of the two unions, even though there was plenty of work avail-
able for them to do. Employees of BART who were not members
of either of the two unions, such as police (whose duties dealt
with passenger problems), foreworkers, and certain engineers,
might have had no work to do during at least part of the lockout
period (the part of the lockout period in which there was no pas-
senger service) but nonetheless they were permitted to come to
work and draw their paycheck.
BART management conceded the ‘‘vast number’”’ of the locked
out employees were innocent of any suspected wrongdoing, but
nonetheless they were not permitted to work solely on the criterion
they were members of one of the two unions.
The union contracts had expired on June 30, 1979. BART con-
tended that certain members of the two unions had engaged in
certain disruptive tactics after said period of time, the latest of
which was a sick-in by certain train operators on August 31, 1979.
Rather than mete out individual punishments to the individual
wrongdoers, they locked out all members of both unions at 7 p.m.
on August 31, 1979, without meeting and conferring with, or
notifying, the unions beforehand, of their proposed action.
The plaintiffs contended that BART had violated their rights
under 42 U.S.C. Section 1983 (specifically, their freedom of as-
sociation rights—they were penalized solely on the criterion of
their being members of either of the two unions) and further con-
tended that BART had committed a violation of State law. Plain-
tiffs are petitioning the United States Supreme Court herein for
review of the State Court of Appeal’s ruling on the 42 U.S.C. Sec-
tion 1983 cause of action. There was never any dispute in the
proceedings below that plaintiffs had raised the 42 U.S.C. Sec-
tion 1983 cause of action in a proper and timely manner, and the
State Court of Appeal addressed said cause of action on its merits
in Section I of its opinion.
The trial court, while conceding that many of the employees
were innocent of any alleged wrongdoing (BART conceded at trial
that the vast number were innocent of any alleged wrongdoing,
and the evidence confirmed that fact), and while conceding that
said employees ‘‘were at all times willing to faithfully perform
their duties’, nonetheless held that BART was justified in its ac-
tions because ‘‘it was not in a position to make an individual as-
sessment of which employees would be loyal in the future’’ and
which ones would not. (CT 134:15 - 135:2.)
The ‘rial court also noted that the ‘‘evidence does suggest...that
there may have been a strong desire on the part of BART to af-
fect the outcome of the stalled negotiations. Thus, aside from the
desire to protect its business from loss, the purpose of the lock-
Out may well have been to bring pressure on the unions to modi-
fy their demands, which eventually they did.’’ The trial court,
however, relying on American Ship Building Co. v. N.L.R.B. (1965)
380 U.S. 300, held that such an economic motivation to put pres-
Sure on the unions was a perfectly legitimate justification for a
lockout of employees, and lengthy deprivation of their livelihoods,
by a governmental employer. (CT 135:20-136:7.)
The Court of Appeal affirmed the trial court’s opinion. It con-
ceded that a ‘‘troubling’’ question was presented as to the propri-
ety of BART’s refusal to allow to work those union members
against whom there were no pending disciplinary charges (the vast
majority), and conceded that it was ‘‘troubling’’ that ‘‘such re-
fusal rested solely upon their membership in UPE 390 or ATU
1555’’. However, the Court of Appeal took the position that such
severe penalization of said members, and deprivation of their
livelihoods, based on their union membership alone was justi-
fied. The Court based said justification on its (the Court’s) specu-
lation that the unions would in the future have imposed unlawful
demands on the members, and that the members at said time
would have been likely to have acceded to these unlawful demands
and in so doing would have adversely affected the efficient oper-
ation of BART. (CA:Section I.)
The Court of Appeal also took the position that the lockout
was justified because ‘‘the potential hazards to the public out-
weighed the injury suffered by the members of the unions for the
period of the lockout.’’ (CA:Section I.) The ‘‘potential hazards
to the public’’ referred to were the possibility that passengers
would be stranded or endangered while traveling. It omitted any
mention from its analysis of the fact that even after the system
was shut down for passengers, there was work to be done by most
of the union members who were locked out—secretarial, custodi-
al, gardening, clerical, etc.—and that there was no potential haz-
ard to passengers from such non-passenger related work.
Nonetheless, the employees were not permitted to work during
the entire lockout period solely based on the criterion of their
union membership.
One of the biggest problems with the Court of Appeal’s deci-
sion was its failure to distinguish between the decision to shut
down passenger service, and the separate, independent decision
to lock out and lay off all members of the two unions while per-
mitting all other employees to continue to work and draw
paychecks. The Court of Appeal’s opinion treated the two sepa-
rate decisions as if they were one, when in fact they were two in-
dependent decisions requiring separate analysis.
It should also be noted that the Court of Appeal glossed over
the trial court’s conclusion that the lockout was also probably
motivated in significant part by BART’s desire to gain econom-
ic bargaining power over the unions in the negotiations—a moti-
vation having nothing to de with concerns about potential hazards
to passengers.
B. THE REASONS THE SUPREME COURT
SHOULD GRANT THE PETITION
FOR WRIT OF CERTIORARI
The Supreme Court should grant this petition for writ of cer-
tiorari, in order to settle important federal questions of law ap-
plicable to labor disputes between public employers and their
employees. Specifically, the Court should address the issue of un-
der what circumstances, if any, a lockout by a public employer
of its union employees (based on their union status) in a labor
dispute does not infringe upon said employees’ freedom of as-
sociation rights and does not constitute arbitrary govermental ac-
tion.
The Supreme Court addressed the issue of criteria to be used
in determining the legality of a lockout by private employers in
American Ship Building Co. v. N.L.R.B. (1965) 380 U.S. 300, but
has never addressed the criteria to be used in determining the le-
gality of a lockout in the public sector. As hinted at by the Su-
preme Court in Abood v. Detroit Board of Education (1977) 431
U.S. 209, 226 fn. 3, 227, 230-231, public employers face certain
constitutional constraints on their conduct (based on First
Amendment freedom of speech and freedom of association ques-
tions) which private employers do not face. Given the huge num-
bers of employees employed by state and local governmental
agencies who are unionized, the severe economic hardship faced
by employees and their families in a lockout, and the strong in-
terest the public has in government’s providing continued serv-
ices during a labor dispute, the Supreme Court’s addressing the
issue of lockouts in the public sector, an issue it has never ad-
dressed (and regarding which there appears to be no published
case law) is both timely and important.
The case also raises important questions applicable in a more
general manner to important Constitutional freedom of associ-
ation issues, and the extent to which one can be penalized in one’s
job and livelihood for being a member of a specified association
which is deemed as being engaged in potentially detrimental ac-
tivity. The Supreme Court has consistently taken the position that
mere knowing membership in an organization without a specif-
ic intent to further the unlawful aims of an organization is not
a constitutionally adequate basis for exclusion of a person from
working at a job. (See, e.g., United States v. Robel (1967) 389 U.S.
258; Elfbrandt v. Russell (1966) 384 U.S. 11; Jn Re Stolar (1971)
401 U.S. 29, 30; Keyishian v. Board of Regents (1967) 385 U.S. 590.)
The State Court of Appeal’s decision is in conflict with this line
of Supreme Court cases. In the instant case, the sole criterion used
to determine whether to deprive approximately 2,000 employees
of their jobs and livelihood for three months was their member-
ship in either of the two unions, without any inquiry into whether
these employees had the specific intent to further any unlawful
aims either of the two unions allegedly had decided to advocate
or might have decided to advocate at some future point in time.
The State Court of Appeal’s opinion, as did the trial court’s
opinion, also raised the question of whether the temporary depri-
vation of employment (of approximately three months), as op-
posed to a permanent deprivation of employment, was a severe
enough penalty to be considered an unconstitutional penaliza-
tion of freedom of association. The Supreme Court should use
this opportunity to clarify what constitutes a severe enough pen-
alty of freedom of association in a job situation to create liabili-
ty under 42 U.S.C. Section 1983, and make clear that its ruling
in Perry v. Sindermann (1972) 408 U.S. 593, 597, applies to tem-
porary deprivation of employment, as well as permanent depri-
vation of employment, coming about because of exercise of First
Amendment rights.
C. MATERIAL FACTS
A correct statement of the underlying facts in this case, sup-
ported by reference to the record, follows hereinafter:
BACKGROUND TO LABOR DISPUTE
The 1976-1979 BART collective bargaining agreements with
SEIU 390 and ATU 1555 expired on June 30, 1979; however, pri-
or to the expiration date, BART and the unions engaged in negoti-
ations which resulted in resolution of most of the issues. (Ex. 21;
Ex. P.) By June 30, 1979, the big issue yet unresolved was the cost
of living allowance (COLA). (RT 10/19, 276:3-7.) In the first week
of July, negotiations continued, and the workers continued work-:
ing on a day-to-day basis under the terms of the expired collec-
tive bargaining agreement. (RT 10/17, 26:16 - 27:5.)
On July 8, 1979, BART offered the negotiating team of the two
unions what it called its ‘‘final’’ offer. Under the terms of this
‘*final’’ offer, COLA was not entirely eliminated, but it was drasti-
cally modified, such that considering the rate of inflation at the
time, the workers would be suffering a sharp reduction in real
wages if they accepted the proposal. (Ex. 3; Ex. T.)
Both unions voted to reject this offer. (RT 10/19, 244:16-18;
10/21, 540:4-15.)
THE CAR COUNT ISSUE
In June and July 1979, a problem had been developing with
‘‘car count’’. Although there were enough train cars to provide
acceptable service to customers on any given day, the number of
cars available for active service was gradually diminishing. (Ex.
A, Ex. C.) BART management expressed concern that certain
maintenance workers might be doing repairs at an unduly slow
pace, thus causing a drop in ‘‘production’’ and accordingly a drop
in the car count. Mr. Maher, chairman of SEIU 390 testified that
the union’s members were consulting maintenance manuals pri-
or to doing work, not with the purpose of slowing down work,
but rather because there was a real concern among the unions that
management would be looking for anything going wrong pertain-
ing to the maintenance of the cars, and ‘‘[s]o we advised our mem- °
bers to take extra precautions and go by the manuals if necessary.’
(RT 10/21, 593:1-8).
After the unions (with BART management’s blessing) formed
a car count committee, the car count situation started to stabi-
lize. (RT 10/18-19, 139:2 - 140:22; Ex. 7).
On July 20, 1979, BART managment notified the unions it was
withdrawing its recognition of the car count committee, and that
the members of the committee would no longer be permitted time
off from work to meet with union members or management to
address the car count problem. (Ex. U.)
Despite BART management’s position that the car count com-
mittee had not done any good, BART management, on July 26,
1979, issued a press release in which Keith Bernard, General Man-
ager of BART, was quoted as saying that the production rate in
the shops had returned to normal, and that the car count had
stabilized somewhere over 200 cars per day for service. (Ex. 7).
The press release did, however, express concern that a ‘‘refus-
al’? of SEIU 390 maintenance personnel to work overtime was
hindering an effort to dea! with the backlog of cars needing
maintenance—that even though production was normal and the
car count had stabilized, an effort to increase the car count back
to its pre-June level still needed to be worked upon. (Ex. 7.)
It should be noted that under the terms of the expired collec-
tive bargaining agreements, overtime was not mandatory, and a
‘*refusal’’ by a maintenance worker to work overtime was per-
fectly acceptable. (Ex. 21, Ex. P; RT 10/20, 400:15 - 401:20; 10/21,
563:4-24.) Furthermore, there is no showing that there was any
less overtime being worked in July 1979 than in previous years.
(Ex. 14; RT 10/17, 83-85.)
THE JULY CONCORD YARD DISPUTE
Despite the fact that production was back to normal and the
car count problem had stabilized, BART, on July 27, 1979, in-
formed Paul Varacalli, the Executive Director of SEIU 390, that
effective July 30, 1979, BART was going to transfer all the main-
tenance workers in the Concord Yard to the Hayward Yard and
Richmond Yard, and put in management and engineering per-
sonnel in the Concord Yard to try to ‘‘perform the necessary main-
tenance and inspection work to accelerate solution of the car
availability problem.’’ (Ex. 8).
In response, Paul Varacalli (Executive Director of SEIU Local
390), John Maher (SEIU Local 390’s chapter chairperson), Jim
Danzy (president of ATU 1555), and some 50 members of Local
390 employed by BART staged a sit-in at the Concord shop fa-
cility on July 30, 1979.
Superior Court Judge Robert Cooney granted injunctive relief
requiring BART to bring back the transferred workers and requir-
ing it to stay the imposition of any discipline upon the approxi-
mately 50 union members involved in the sit-in pending the
outcome of arbitration proceedings. (Ultimately in September
1979, after the lockout complained of in the complaint herein had
happened, the Court of Appeal vacated both the paragraph of
Judge Cooney’s order requiring BART to bring back the trans-
ferred workers and the paragraph of his order staying imposition
of discipline upon the individual participating union members.
San Francisco Bay Area Rapid Transit District v. Superior Court
[1979] 97 Cal.App.3d 153.)
BART’S UNILATERAL CHANGES IN THE TERMS OF
EMPLOYMENT
Meanwhile, on or about July 18, 1979, BART had unilaterally
rescinded the grievance procedure set up by the 1976-1979 collec-
tive bargaining agreement, along with certain other terms con-
tained therein. These changes were instituted without prior
consultation or bargaining with the unions, and without prior
notice to, or opportunity for input by, the unions. (Ex. 5, Ex. 28,
Ex. 30; RT v. 4, 60:1-4.)
Then, on or about August 20, 1979, BART issued a document
entitled ‘“Terms and Conditions of Employment’’, which set forth
in specifics various inilateral changes it was making in the expired
collective bargaining agreement. These changes also were institut-
ed without prior consultation or bargaining with the unions, and
without prior notice to, opportunity for input by, the unions. (Ex.
13, Ex. P, Ex. 21; RT 10/17, 69:25 - 71:14; 10/19, 277:8-17.)
The unilateral changes in terms and conditions of employment
instituted by BART included the following: a) the grievance proce-
dure no longer had any provision in it for an arbitrator or other
neutral party making the final decision on a grievance; rather,
the BART supervisor now made the final unappealable decision
regarding any employee grievance; (b) the COLA was abolished;
(c) overtime was made mandatory; (d) sick leave was eliminated
for the first three days of any absence. (Ex. 13, Ex. P, Ex. 21.)
Pursuant to the new unilateral terms promulgated by BART,
numerous maintenance employees were asked to work manda-
tory overtime, often with little or no advance notice. Unlike un-
der the old terms, they could not refuse a request for mandatory
overtime without facing discipline, and under the new grievance
system, they basically had no effective method of protesting sus-
pension or termination. (RT 399-429; 10/21, 562:18 - 563:24.)
With the new unilaterally-imposed grievance system in effect,
management started handing out short-term suspensions on an
almost willy-nilly basis for a variety of matters, including refus-
al to work overtime, with helpless employees having no effective
means of redress, regardless of the merits of the management ac-
tion. By August 29, management had handed out approximate-
ly 345 suspensions in the month of August, about 20% of the total
work force at BART. Almost 40% of the maintenance work force
had received suspensions in August. Most of the suspensions were
for between 3 to 5 days. 165 of the suspensions were for refusal
to work mandatory overtime, and 121] were for attending a union
meeting. (Ex. 15, 16, 17; RT 10/17, 95:18 - 104:7.)
Thus, even while BART management was complaining about
the car count figures, it was summarily suspending numerous wor-
kers and cutting down or the number of man and woman hours
available to work on ameliorating the car count situation.
THE AUGUST 27, 1979 UNION BULLETIN
The appellate opinion totally misstates the contents of a joint
union bulletin of August 27, 1979 (Ex. 31), a bulletin which ad-
dressed certain comments to, among other issues, BART manage-
ment’s unilateral change in the terms of employment regarding
overtime. The union bulletin did nor instruct union members to
refuse to work overtime, nor did it threaten any disciplinary
proceedings against employees who chose to work overtime. It
stated simply—and the words of the bulletin speak for
themselves—that it was the unions’ ‘‘position’’ that ‘‘no one
should work overtime under these stressful conditions,’’ referring
to the fact that the District was threatening to give three-day sus-
pensions to anyone refusing to work overtime. The unions were
10
attempting to get management to back down from a harsh, in-
flexible, totally inhumane rule, which made no allowance for very
legitimate commitments certain workers might have which would
preclude them from working mandatory overtime on a given day.
Unlike the appellate opinion totally misstates, there was no threat
made by the unions to discipline workers who chose to work over-
time.
THE AIR BAG INCIDENT
On the morning of August 28, 1979, BART discovered that a
number of airbags had been slashed at the Concord yard on cer-
tain inactive trains awaiting maintenance work. (Ex. 32.) Airbags
are used to make sure the height of the floor of the train is the
same as that of the platform when the train stops, so that a pas-
senger will not have to change levels in stepping out of the train
onto the platform or vice versa. They have nothing to do with
the safety of the actual operation of the train. If there is no air-
bag, a passenger would have to step up or down in exiting a train
onto the passenger platform, and vice versa. (RT 10/17, 90:10-23).
On August 29, 1979, BART suspended all SEIU 390 employees
working in the Concord yard ‘‘pending the District’s investiga-
tion of acts of vandalism on District transit vehicles.’’ (Ex. 32.)
BART management did not, however, request any outside police
help in the investigation, nor did it ask any union help in con-
ducting the investigation, although the unions deplored the in-
cident and were ready and willing to help investigate. No culprit
was ever accused, nor was any person ever identified as a possi-
ble suspect, and further, there was no proof ever put forward that
it was any more likely that it was a union employee that did the
act than that it was a managerial employee (or for that matter
an unauthorized interloper). (RT 10/17, 87:10 - 88:23; 10/18,
147:19 - 148:16; 10/21, 564:15-27, 574:7-16, 690:27 - 610:5.)
Management and engineering personnel were moved into the
Concord yard to take over the maintenance duties of the SEIU
390 union personnel. BART did not notify the unions ahead of
time of its decision in this matter, did not seek the unions’ input
on the matter, did not meet and confer with the unions on the
1]
matter, nor did it bargain with the unions on the matter. (RT
10/17, 88:2 - 89:4; Ex. 32; RT 10/18, 92:1 - 95:2; 10/21 573:18 -
574:6.)
THE SAFETY ISSUE
ATU 1555 expressed a concern to management that a safety
problem for the train operators and the public had been created,
because many of the management and engineering personnel tak-
ing Over maintenance in the Concord yard might not have (or
might no longer have) the required practical day-to-day skills to
maintain the trains safely and properly. The union requested that
an outside person from either the State Public Utilities Commis-
sion, CAL OSHA, or the Rohr Corporation (which had made
the cars), be permitted to come in and inspect the trains coming
out of the Concord shop to make sure the work was being done
pursuant to applicable safety standards. Management refused to
bargain, or even meet and confer, on this issue. (RT 10/19, 251:12 -
252:21; RT v. 4, 91:1 - 92:15; RT v. 6, 306:27 - 307:23.) The safety
concern of ATU 1555 was exacerbated even further on the morn-
ing of August 31, 1979, when a train leaving the Concord yard
started smoking. (RT 10/19, 253:14-25; 10/18, 144:22 - 116:2.)
AUGUST 31: THE SICK-IN
As a result of management’s refusal to even meet and confer
on the safety issue, a sick-in by train operators running from the
Concord yard and to the Concord yard took place on August 31,
1979. (RT 252:25 - 254:26.) Most of the train operators who were
either dispatched from or to the Concord yard dropped sick. None
of the train operators on other lines dropped sick. (RT 10/19,
257:15-28.)
BART did not call all of the train operators who were off duty
at the time, some of whom testified they would have run a train
on the Concord line, if they had been requested to do so. (RT v.
6, 312:15 - 313:10; RT 10/19, 358:11 - 359:19; 10/18, 332:6 - 334:2;
10/21, 495:1 - 498:17; 10/18, 149:5-11.) Additionally, even though
many train operators dropped sick, some personnel did run trains
to or from Concord on August 31, 1979. (RT v. 5, 149:13; RT 10/18,
220:22 - 222:2.) Further, some of the people who dropped sick
12
| -
had well-documented, obviously legitimate excuses. (RT v. 6,
308:9-21; 390:4-12; 311:12-24.)
The total number of train operators who dropped sick either
before reporting to duty on August 31, 1979 or during the day
after reporting to duty appears to most likely to have been in the
neighborhood of 50, with some of those dropping sick after al-
ready putting in an 8-hour day. (See Exhibits M and N.) Defen-
dant, in its respondent’s brief filed in the State Court of Appeal,
at p. 9, indicated that the number of drop-sicks was ‘‘in excess
of thirty-five’’. At least one of the drop-sicks worked an hour of
overtime after putting in his regular 8-hour day before becom-
ing ill. (Exhibit N).
AUGUST 31: BART’S AGGRAVATION
OF THE PROBLEM
BART management did not meet and confer with the leader-
ship of either of the two unions over the problem that had devel-
oped, but instead unilaterally started diverting operators who were
not assigned to the Concord line to work the Concord line, in di-
rect violation of the terms and conditions of their employment
and without any prior notice to them. (RT 10/19, 257:8-12; 257:25
- 259:13; 251:10 - 252:13; RT v. 6, 400:12 - 401:13; v. 5, 221:10-14;
v. 6, 313:11-21; RT 10/20, 392:24 - 394:18; 10/18, 218:2 - 220:2.)
BART management knew that the effect of continuing to divert
operators to the Concord line, instead of meeting and conferring
with the union about the situation, would mean that more and
more operators would drop sick, and indeed hoped that the ex-
pected result of said course of action would justify a shutdown
of the system in its entirety on the excuse there were not enough
train Operators to run it. (RT 10/20, 392:24 - 394:18.)
The Concord Line (C line) was the only line affected by the sick-
in, and it comprises only 12% to 13% of the BART system in terms
of passenger patronage. It runs from Rockridge station to Con-
cord station. (Ex. 36.) There were no problems with sick-ins on
any other part of the BART system on August 31, 1979. Further-
more, there was no reason why the passengers who normally
would use the Concord line could not ride to the MacArthur sta-
tion from San Francisco on BART and then be bussed the rest
of the way to Concord (or vice versa). Indeed, buses were char-
13
tered by BART to run between MacArthur station and points on
the Concord line that day, as well as in the ensuing shutdown
period. (RT v. 4, 135:2-19; v. 4, 93:12-28; v. 5, 271:10-24.)
AUGUST 31: THE LOCKOUT
At or about 2 p.m. on August 31, 1979, Keith Bernard, the
Genera! Manager of BART, made the decision to shut down the
BART system in its entirety at 7:00 p.m., after the evening com-
mute. (RT v. 6, 335:12-18; 448:4-8; v. 4, 86:3-13; Ex. 33.) He also
made the decision that all members of both SEIU 390 and ATU
1555 would be indefinitely laid off and not thereafter be permit-
ted to work, although all other BART employees would be per-
mitted to work. He made this decision without bargaining with,
or even contacting, either of the two unions; without getting any
input from them; and without even notifying them ahead of time
of his decision. Nor did he give any consideration or study to the
possibility of running truncated service, such as by cutting off
the 13% of the system representing the Concord to MacArthur
route, as an alternative to shutting down the system in its entire-
ty. (RT v. 6, 336:5-10.)
BART’s press release on the matter (Ex. 33) claimed that a
**strike’’ by BART employees had forced the ‘‘shutdown”’ of the
BART system. It stated that ‘‘the concerns for public safety, cou-
pled with today’s action of train operators walking off the job,
has brought BART to the regrettable conclusion it is unable to
provide effective service.’’ The press release also stated there was
a negative financial impact of continuing a ‘‘low level’’ of serv-
ice. (Ex. 33).
Evidence was introduced at trial showing the daily number of
BART passengers remained high up through the day of the shut-
down. Thus, BART was not hurting for passenger revenue, and
a decline in passenger revenue could not justify a ‘‘shutdown’”’.
(Ex. 40.)
Furthermore, consumer complaints in the summer of the la-
bor dispute about service were fewer than the previous summer
(when there had been no labor dispute). (Ex. 41, Ex. 42.)
Additionally, vandalism in the fiscal year of the 1979 labor dis-
" pute was considerably less than in the following fiscal year when
there was no labor dispute. (Ex. 1, Ex. 2.) Significantly, no BART
14
employee was ever accused or identified as even being a possible
suspect in any vandalism incident in the summer of 1979. (RT
10/21, 564:11 - 565:5; Ex. 45; RT 10/17, 87:24-26.)
The only incidents of any alleged ‘‘slowdown”’ or ‘‘strike’’ ac-
tivity in the summer of 1979 were: (a) the train operators drop-
ping sick on August 31, 1979; (b) approximately 21 station agents
dropping sick after the decision to shut down the system on Au-
gust 31, 1979 had already been made (Ex. E; RT 10/21, 625:22-25);
(c) a very brief unauthorized sitdown by 7 to 10 clerical workers
in July, which was successfully ordered halted by union officials
immediately after they 'earned it was going on (RT v. 5, 211:18
~ 212:19; 185:13 - 186:12; v. 6, 450:2-14, 254:22-28); and (d) the car
count problem, which management itself attributed more to a fail-
ure by employees to work overtime than to any deliberate slow-
down by the employees. (Ex. 7.) (Additionally, BART claimed that
the system was shut down for 15 minutes on July 11, allegedly
because certain emergency vehicle operators went to a union meet-
ing to vote on BART’s “‘final’’ offer. BART’s claim was disput-
ed at trial, an EVO testifying that in fact the operators had
remained on their posts. [RT 10/19, 294:21 - 298:1]. The trial court
did not make any finding that the EVO’s had been absent from
their posts.)
Neither union had taken the required steps to call for a strike,
and indeed each union had repeatedly admonished its members
not to engage in sabotage, not to engage in any provocative acts,
not to engage in any slowdown or walkout, and to continue to
do their work in an efficient manner. (RT 10/19, 278:17-27; 10/21,
564:11 - 565:5: 566:25 - 567:7; 568:1-20; Ex. 31; RT v. 5, 168:22
- 172:17; 177:11-12; RT 10/18, 140:27 - 141:10; Ex. 44, Ex. 45, Ex.
34.) All summer long, the unions had continued to bargain in
good faith, showed flexibility in their positions, and had indicated
to BART they were amenable to mediation or arbitration of any
disputed matters. BART, in reply, had repeatedly rejected arbitra-
tion or any meaningful mediation, and had tenaciously stood firm
on its basic COLA position, although indicating it would be
amenable to repackaging the COLA position if the total cost were
the same. (RT v. 5, 166:6 - 167:11; 165:12-19; 163:3 - 165:2; RT
10/18, 105:13-25.)
A review of the transcript of an August 29, 1979 press confer-
15
ence (Ex. K) by Paul Varacalli, Executive Director of SEIU 390,
reveals that BART apparently deliberately misquoted him in its
August 31 press release (Ex. 33) announcing the shutdown of the
BART system. Varacalli had stated in his August 29 press con-
ference that the union had, in effect, been on ‘‘strike’’ for two
months, and had been engaging in ‘‘guerilla warfare activity’’,
and that this had been making a ‘‘mess of the transit system.’’
He also stated that BART had been ‘‘overreactive’’. (EX. K.) He
did not state that ‘‘this has posed grave concerns about the sta-
tus of the transit vehicles and wayside equipment,’ as BART
claimed in its press release.
Several things are clear about what Varacalli said at the press
conference on August 29, 1979.
First, BART did not lock out and lay off all members of SEIU
390, and all members of ATU 1555 (of which Paul Varacalli was
not a member or representative, and which is the larger of the two
unions) at the end of the day of August 31, 1979, because of what
Paul Varacalli said in the heat of the moment at a press confer-
ence on August 29, 1979 (two days earlier), nor did BART claim
it did.
At trial, Varacalli testified that what he meant by the term
‘‘guerilla warfare’’ at his August 29 press conference was that both
BART and his union (SEIU 390) were taking ‘‘potshots’’ at each
other, and that BART management had been trying to get the
union to go out on strike for months. Varacalli further testified
that no member of SEIU 390 had gone out on strike against
BART, that a strike had not even been authorized by the union
membership, and that there was a lot of verbal posturing going
on by both sides. (RT v. 5, 177:11 - 180:9; 175:1 - 176:19.) Varacalli
and the other SEIU 390 officials had repeatedly admonished
union members throughout the course of the labor dispute not
to engage in any provocative act, not to engage in any vandalism
or violence or sabotage, and to do their work in a productive, ef-
ficient manner. (RT 10/21, 559:25 - 560:1; 564:i1 - 565:5; 565:25
- 567:7; 568:1-20; Ex. 31; RT 10/21, 576:10 - 578:4; 609:1-26; RT
v. 5, 168:22 - 172:17; Ex. 34.) Indeed, as noted, there was no evi-
dence introduced at trial identifying any member of either union
as having committed any act of vandalism or violence or sabo-
tage.
It is also clear that Varacalli, by his remarks, did not mean that
16
a strike was already in effect (not only because no one was on
strike and because a strike had not been called, but because he
clearly stated in his remarks that the union [SEIU 390] wanted
to reserve the right to determine when a strike would occur). It
is also clear by his remark that BART had been ‘‘overreactive’’
that he did not believe the union or any of its members had, in
actuality, done anything of a very provocative nature.
Very significantly, the appellate opinion failed to reflect there
was a7 1/2 second audio gap in the tape of the August 29 press
conference (Ex. K), where the video showed Varacalli speaking
but the audio did not come out—a gap which could have totally
distorted his remarks.
With regard to the car count situation on August 31, 1979, Wil-
liam Fleisher, Director of Field Services and head of train oper-
ations for BART, testified that he only needed 90 cars to run the
BART system at an acceptable level of service. (RT v. 4, 134:19-25.)
Ninety cars would work out to 9 trains at 10 cars apiece or a few
more trains if there were fewer cars in each one. Trains could be
run under such conditions at 30 minute headways.
In this regard at the close of the day on August 31, 1979, there
were 13 trains in operation. (Ex. I.) Further, there were approxi-
mately 170 cars available for service plus 61 other cars that could
have been made available if needed, because they were out of serv-
ice for preventative maintenance check only. (RT 10/20, 443:11-20;
Ex. 39; Ex. A.) Both Mr. Fleisher and Mr. Bernard testified that
the car count problem was not responsible for the shutting down
of the system. (RT 129:9-14; v. 6, 337:6-8.)
After the shutdown of the system, all union employees were
escorted from the BART premises, in many cases rather abrupt-
ly. (RT 10/19, 320:9 - 323:19.)
SEPTEMBER 1 - NOVEMBER 23:
THE CONTINUING LOCKOUT
Keith Bernard, General Manager of BART, testified that he was
convinced that the ‘‘vast number’”’ of all union employees were
innocent of any wrongdoing. (RT v. 6, 341:2-10.)
Nonetheless, upon reporting to work on September 1, 1979,
all union employees were told that they would not be permitted
17
to enter the premises. All BART employees who were not mem-
bers of the two unions were permitted to work. (RT v. 4, 105:2-8.)
BART informed the union employees that it would continue
to refuse to permit them to work until such time as a collective
bargaining agreement would be signed with both unions, despite
the employees’ statements individually and through their unions
that they were unconditionally ready and available to work if only
BART would let them. (Ex. 19, Ex. 56; RT v. 6, 221:1-19; 226:12
- 228:3; 341:26 - 342:9; v. 4, 104:6 - 105:8.)
Most of the members of the unions had jobs which needed to
be done even if the trains were not running and the stations were
not open, such as maintenance, gardening, secretarial work, tech-
nical work, accounting work, electrical work, janitorial work, and
clerical work. (RT 10/19:8-19, 196:1 - 212:27.) The duties they
would have performed were assigned to management personnel
and temporary personnel. (RT 10/18, 132:13-28; RT v. 6, 104:5-6.)
On October 4, 1979, BART started limited train service between
Lafayette and 24th Street stations, using management and super-
visory personnel. Thereafter, it expanded the service. At first, eight
trains were used, much less than had been running at the close
of the day on August 31, 1979. Keith Bernard had refused to even
explore the alternative of a truncated service, leaving off 13% of
the total system (the Concord line), on August 31, 1979, but ap-
parently had no problem authorizing a much more truncated and
limited service on October 4, 1979. (RT v. 5, 271:10 - 272:18; v.
4, 102:18 - 104:6.)
NOVEMBER 23: THE END OF THE LOCKOUT
On November 22, 1979, the collective bargaining agreements
with both unions were signed, in which the unions essentially
capitulated on the hotly disputed COLA issue. The next day,
November 23, the union members were permitted to go back to
work for the first time since August 31. (RT v. 5, 183:7-15.)
18
ARGUMENT
THE TRIAL COURT ERRED IN ITS FIRST AMEND-
MENT ANALYSIS; BART VIOLATED PLAINTIFFS’
FIRST AMENDMENT RIGHTS OF FREEDOM OF AS-
SOCIATION; A LOCKOUT ANALYSIS IN A GOVERN-
MENTAL EMPLOYMENT SITUATION MUST TAKE
INTO ACCOUNT CERTAIN CONSTITUTIONAL IS-
SUES NOT GERMANE TO AN ANALYSIS OF A LOCK-
OUT IN A PRIVATE EMPLOYMENT SITUATION.
The Court of Appeal conceded that ‘‘the propriety of BART’s
refusal to allow to work those union members against whom there
were no pending charges’’ was a ‘‘troubling question’’. It noted
that ‘‘to the extent they were refused to work, such refusal rest-
ed solely upon their membership in UPE 390 or ATU 1555.’’ (Em-
phasis added). (CA:Section I.)
It should be noted that by BART’s own admission, the ‘‘vast
number”’ of all employees were innocent of any wrongdoing—
and the Court of Appeal did not dispute this undisputed fact.
Nonetheless, these working men and women (and their families)
were penalized and deprived of their livelihood and caused great
economic hardship for almost three months based solely on their
mere membership in ATU 1555 or SEIU 390.
Despite the fact that the Court of Appeal was apparently trou-
bled by this fact of concededly innocent people being penalized
for acts they did not participate in, it for some reason chose to
totally disregard the correct framework of analysis for determining
whether there has been a violation of freedom of association
rights applicable to the instant case, a framework of analysis which
has been established by a long line federal cases. See, e.g., Unit-
ed States v. Robel (1967) 389 U.S. 258; Elfbranat v. Russell (1966)
384 U.S. 11; Jn Re Stolar (1971) 401 U.S. 29, 30; Keyishian v. Board
of Regents (1967) 385 U.S. 590; McLaughlin v. Tilendis (7th Cir.
1968) 398 F.2d 287.
Instead of relying on the aforesaid and similar freedom of as-
sociation cases, which it should have done since the issue herein
is penalization of 2000 members of the class (and their families)
based solely on their being members of either of two unions, the
Court of Appeal for some unknown reason relied on a freedom
19
of speech case, Pickering v. Board of Education (1968) 391 U.S.
563, 572-573, for its analysis of the issue.
However, in Pickering, the Supreme Court, at p. 569, clearly
indicated that its analysis in said case was only relevant to analyz-
ing freedom of speech cases in the context of the factual circum-
stances discussed in the case (which related to the issue of whether
critical statements made by teachers and other public employees
regarding their superiors should be grounds for dismissal), and
was not attempting to lay down any general standard beyond said
context of the case (and certainly not for freedom of association
cases). Thus, the use of the Pickering case by the Court of Ap-
peal to deal with freedom of association issues in the context here-
in was totally inapposite.
Furthermore, the Court of Appeal did not even distill the Pick-
ering standard correctly. The Court of Appeal somehow distilled
from Pickering that if the First Amendment activity ‘‘interfered
with the efficient operation of BART or with their own ability
to do their jobs’’, dismissal or suspension would be appropriate.
(CA:Section I.) However, Pickering recognized that in First
Amendmient issues, one always has a balancing test between the
interest of the individual to engage in First Amendment activity
and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.
Pickering refers to ‘‘the conflicting claims of First Amendment
protection and the need for orderly school administration’’, in-
dicating that almost all First Amendment activity can in some
manner interfere with the efficient operation of a public entity.
The mere fact that there is some interference with the efficient
operation of the public entity would not justify, by itself, penaliz-
ing or prohibiting the First Amendment activity. Rather, Pick-
ering appears to indicate that a balancing test should be engaged
in to determine if a legitimate state interest manifestly outweighs
the importance of permitting the First Amendment activity in the
context of the case.
In a long line of cases, federal courts have considered the
balancing of the importance of a person’s first amendment right
of association on the one hand, and a legitimate state interest be-
ing adversely affected on the other hand, and have distilled cer-
tain principles directly applicable to this case. What is incredible
20
about the Court of Appeal’s opinion is the total omission from
said opinion of any discussion of these directly applicable cases
and the principles they have established. These cases clearly dis-
allow guilt by association—where one member of an association
is penalized for arguably unlawful conduct engaged in by another
member of the association. The cases make clear that if a gov-
ernmental employer cannot prove that a member of an associa-
tion has participated in wrongdoing himself or that he has the
specific intent to further the unlawful aims of the group, the gov-
ernmental employer cannot penalize said person based on his
membership in the association (even if the association, or other
members in it, have committed misdeeds, or even if the associa-
tion advocates unlawful aims).
In United States v. Robel (1967) 389 U.S. 258, the Court ruled
that a law which prohibited members of certain Communist-
action organizations from engaging in any employment in any
defense facility was unconstitutional in that it improperly ‘‘es-
tablishes guilt by association alone, without any need to estab-
lish that an individual’s association poses the threat feared by the
Government in proscribing it.’’
The Government in its argument to the Court in Robe/ empha-
sized that its purpose in passing the statute was to reduce the threat
of sabotage and espionage in the Nation’s defense plants, and
the Court acknowledged that ‘‘such a prophylactic measure is not
insubstantial.’ But the Court noted that when First Amendment
rights are involved, ‘‘[i]t has become axiomatic that ‘[p]recision
of regulation must be the touchstone in an area so closely touching
our most precious freedoms’.”’ The Court noted that people be-
come members of an organization for a variety of reasons, and
they may be unaware of the organization’s unlawful aims or may
disagree with the organization’s unlawful aims, and they should
not be penalized in their employment by a public entity because
of the fact of their membership in a particular organization.
The Court further held that there were other ways the Govern-
ment could safeguard its vital interest, such as by prescribing
criminal penalties for those who would engage in espionage and
sabotage, and by instituting an individualized, industrial securi-
ty screening program. In response to the Government’s argument
that such an individualized industrial screening program would
21
be inadequate and ineffective, the Court stated that when govern-
ment action “‘...imposes a substantial burden on protected First
Amendment activities, Congress must achieve its goal by means
which have a ‘less drastic’ impact on the continued vitality of First
Amendment freedoms.’’ (Emphasis added.)
In Elfbrandt v. Russell (1966) 384.U.S. 11, the Supreme Court held
that, ‘“Those who join an organization but do not share its unlawful
purposes and who do not participate in its unlawful activities sure-
ly pose no threat, either as citizens or as public employees.’’
In Jn Re Stolar (1971) 401 U.S. 29, 30, the Court stated that ‘‘the
First Amendment prohibits [a state] from penalizing a man solely
because he is a member of a particular organization.’
In Keyishian v. Board of Regents (1967) 385 U.S. 590, the Court
stated that, ‘‘Mere knowing membership without a specific in-
tent to further the unlawful aims of an organization is not a con-
stitutionally adequate basis for exclusion from such positions as
those held by appellants.’’
In accordance with the principles set forth in the aforesaid
cases, membership in a labor union is protected by the right of
association under the First and Fourteenth Amendments. Tho-
mas v. Collins (1945) 323 U.S. 516; McLaughlin v, Tilendis (7th
Cir. 1968) 398 F.2d 287; Lontine v. VanCleave (10th Cir. 1973) 438
F.2d 966; County Sanitation District No. 2 of Los Angeles Coun-
ty v. Los Angeles County Employees’ Association (1985) 38 Cal.3d
564.
In McLaughlin y. Tilendis, supra, the Court held that a com-
plaint stating thet a public employee was discharged solely be-
cause of his membership in a union stated a cause of action under
42 U.S.C. Section 1983. The Court stated, ‘‘Even if this record
disclosed that the union was connected with unlawful activity,
the bare fact [of] that membership does not justify charging mem-
bers with their organization’s misdeeds. Idem. A contrary rule
would bite more deeply into associational freedom than is neces-
sary to achieve legitimate state interests, thereby violating the First
Amendment.’’
The Court in McLaughlin indicated that it would be necessary
for the State to show that the individual plaintiffs themselves had
engaged in any illegal strikes or picketing to justify their dismissal;
the fact that other members of the same union might have engaged
22
in disruptive or illegal activity would not justify the taking of ad-
verse employment action against union members who did not en-
gage in disruptive or illegal activity.
In Tygrett v. Barry (D.C. Cir. 1980) 627 F.2d 1279, the Court
stated that, ‘“When confronted with firings that implicate a public
employee’s First Amendment rights, the courts are required to
conduct an individualized and searching review of the factors as-
serted by the employer to justify the discharge.’ (Emphasis ad-
ded.)
In Familias Unidas v. Briscoe (5th Cir. 1980) 619 F.2d 391, 402
(fn. 10), the Court stated, ‘“The decision of certain members, per-
haps a majority, of the organization then to sponsor, aid, and par-
ticipate in an unlawful boycott in the name of the organization
should not be imputed to those who never anticipated joining in
or supporting such an effort.’’
The Court of Appeal in its opinion did not attempt to point
to any evidence that the members of plaintiffs’ class shared any
unlawful purposes it might ascribe to the union leadership, or that
the members of plaintiffs’ class had any specific intent to further
any allegedly unlawful aims of the unions or to participate in any
unlawful activities of the unions. Rather, it attempted to supply
a substitute for the necessary mens rea by implying the unions
were in a position to coerce the members of the union (and of
plaintiffs’ class) into doing unlawful acts or furthering unlaw-
ful aims regardless of whether said members would want to or
not.
In this regard, the Court of Appeal noted that, ‘‘In order to
retain their jobs thie employees had to belong to the union.’’ It
then went on to state that ‘‘the union was threatening discipline
if employees complied with management requests for overtime
or reassignment’’, and that accordingly, ‘‘[m]embers of these un-
ions were in the untenable situation of being subject to union dis-
cipline if they did work and employer discipline if they did not.”’
The Court of Appeal concluded that therefore, ‘‘[t]heir union
membership imposed demands upon them which directly affected
the efficient operation of the transit system.’’ (CA:Section I.)
In engaging in the aforesaid analysis, the Court of Appeal failed
to realize that it is against the law for a union to discipline mem-
bers for refusing to engage in unprotected concerted activities,
23
or for refusing to engage in concerted activities which jeopard-
ize their jobs and employment relationship, or for refusing to en-
gage in concerted activities which do not reflect a legitimate union
interest, or for refusing to engage in concerted activities which
are against national labor policy and public policy, or for refus-
ing to engage in any activity which would expose them to risk of
being lawfully discharged by the employer or subjected to law-
ful imposition of disciplinary measures by the employer. National
Labor Relations Board v. GAIU Local 13-B, Graphic Arts Inter-
national Union, 682 F.2d 304 (1982); Schofield v. NLRB, 394 U.S.
423 (1969). Indeed, in National Labor Relations Board v. GAIU
Local 13-B, Graphic Arts International Union, supra, which con-
tains an excellent discussion and review of case law on the entire
subject, the union had disciplined some of its members for dis-
regarding its orders not to work overtime after the employer in-
stituted a mandatory overtime policy (a situation which the Court
of Appeal seems to feel in its opinion might have developed in
the instant case). The Court in GAJU ruled that said discipline
had to be rescinded and the employees compensated for damages
suffered because of it. See also, 29 U.S.C. Sections 152, 157, 158.
Thus, members of the class were not being put in ‘‘the untena-
ble situation of being subject to union discipline if they did work
and employer discipline if they did not’’ (as the Court of Appeal
opinion, Section I, asserts), because the union could not have law-
fully disciplined them for refusing to do something which would
have subjected them to discipline by the employer.
Additionally, it is pure speculation that the unions would have
carried out anv discipline, since there is no evidence in the rec-
ord that they did. The only threat to discipline made by any union
official was by a leader of ATU 1555 pertaining to any employee
thinking of replacing one of the train operators who dropped sick
on the Concord line. Such a threat was an idle threat, since a slow-
down is not a lawful concerted activity, and discipline for refus-
ing to participate in it would have been unlawful. No actual
discipline was carried out against any persons who went ahead
and served as a replacement. As noted earlier, unlike the Court
of Appeal implies in its opinion, there was no threat ever made
to discipline anyone for working overtime. As seen by the GAJU
and Schofield rulings, such a threat would have been an idle threat,
24
as well, since if mandatory overtime was a lawful term of employ-
ment (as BART management contends), it would have been
against the law for the unions to have disciplined anyone for work-
ing it. If mandatory overtime was not a lawful term of employ-
ment, then it would have been against the law for BART to
discipline anyone for not working it.
Thus, the requirement of specific intent of participating in un-
lawful activity of an organization is not met in the instant case.
Nor was it appropriate for the State Court of Appeal to create
an unprecedented substitute for the element of specific intent on
the employee’s part, to wit, a speculative conclusion that the vast
majority of indisputably innocent and loyal employees would have
somehow been coerced into participating in unlawful activity
regardless of their lack of intent or desire to do so, since a guess
that such discipline would have occurred is pure speculation and
not supported by past performance or conduct, since discipline
for refusing to engage in any alleged unlawful activity did not in
fact occur, since any discipline the unions would have tried to mete
out to an employee for refusing to engage in any wrongful activity
would have been unlawful and impossible to enforce and effec-
tuate, and since there is no evidence that the vast number of in-
nocent, loyal employees would have submitted to any coercion
by the unions to engage in wrongful activity (even assuming ar-
guendo any such coercion would have been applied).
The State Court of Appeal’s attempt to substitute a vague
speculative coercion standard in place of a requirement of specific
intent to further an organization’s allegedly unlawful goals
represents a dangerous deviation from the Robel-Stolar-Keyishian
line of cases, and a dangerous incursion into the doctrine that
guilt by association is not to be countenanced by the law in pub-
lic employment situations. The Supreme Court should grant the
petition for writ of certiorari herein to discuss the application of
the principles developed in the Robel-Stolar-Keyishian line of cases
to public employee lockout situations—a certain strict standard
needs to be followed before a public employee can be deprived
of his employment and livelihood, even for a period of three
months, because of his membership in an organization (labor
union in this case).
The trial court clearly found there was a lockout. (See CT
25
132:15 - 133:11.) The Court of Appeal opinion, after hedging a
little bit, proceeded to aszume that the trial court concluded a
lockout occurred, and analyzed the legality of a lockout by a gov-
ernmental employer under the facts and circumstances of the case.
(CA:Section I.)
The Supreme Court has never addressed the issue of the legal-
ity of a lockout of union employees by a governmental employ-
er; nor are petitioners aware of any published case law by any other
court dealing directly with said issue. Given the large number of
local and state governmental employees who are unionized, the
serious economic hardship visited upon employees and their fam-
ilies in a lockout, and the strong interest of the public in continued
goverment services during the period of a labor dispute, the case
herein presents a timely and highly important federal question
which needs to be settled by this Court—under what circum-
stances, if any, is a public lockout legal and not violative of pub-
lic employees’ First Amendment right of freedom of association,
right of due process, and right to be free of arbitrary governmental
action.
In American Ship Building v. Labor Board (1965) 380 U.S.300,
the Supreme Court indicated that a lockout or ‘‘temporary lay-
off of employees’’ would be legal by a private employer if it was
used solely as a means to bring economic pressure to bear in supp-
port of the employer’s bargaining position, after an impasse had
been reached.
However, in the instant case, we have a public employer engag-
ing in a lockout, and, accordingly, certain constitutional limita-
tions apply which would not apply to a private employer.
In Abood v. Detroit Board of Education (1977) 431 U.S. 209,
the Court noted on p. 226, fn. 3, that ‘‘Nothing in our opinion
embraces the ‘premise that public employers are under no great-
er constitutional constraints than their counterparts in the pri-
vate sector,’ post, at 245 (Powell, J., concurring in judgment), or
indicates that private collective-bargaining agreements are, with-
Out more, subject to constitutional constraints, see post, at 252.”’
The Court in Abood went on to note the ‘‘often-noted differ-
ences in the nature of collective bargaining in the public and pri-
vate sectors.’’ (At 227.) The Court then stated that in this regard,
**The uniqueness of public employment is not in the employees
we
nor in the work performed; the uniqueness is in the special charac-
: ter of the employer.’’ (Emphasis supplied by the Court.) (pp.
230-231.) The Court stated that with some exceptions a public em-
ployee should not have less First Amendment rights than a pri-
vate employee (an argument which might also be applicable to
the recent case of County Sanitation District No. 2 of Los Angeles
County v. Los Angeles County Employees’ Association (1985) 38
Cal.3d 564, in which the California Supreme Court legalized
strikes by public employees in the State of California). However,
the U.S. Supreme Court noted in Abood that the constraints on
governmental employer conduct might indeed be significantly
greater than on private employer conduct, indicating that among
other constraints there might be constitutional constraints on a
public employer which would not apply to a private employer.
In ‘‘Public Sector Bargaining: Problems of Governmental De-
cision Making’ (1979) 44 U.Cin.L.Rev. 669, which article the Court
in Abood referred to, Professor Clyde W. Summers took note of
the different policy, legal, and constitutional constraints on a pub-
lic employer as opposed to a private employer, and indicated that
certain constitutional issues, such as the First Amendment, might
apply to the resolution of questions in public employer-employee
disputes. A case cited in the article which contained a First
Amendment issue, Madison School District v. Wisconsin Employ-
ment Relations Comm’n (Wis. 1975) 231 N.W.2d 706, was later
reversed by the Supreme Court in Madison School Dist. v. Wis-
consin Employment Relations Comm’n (1976) 429 U.S. 167, ina
way which emphasized the relevance and importance of First
Amendment issues in the public labor law area.
It is noteworthy that in American Ship Building Co. v. N.L.R.B,
supra, the Supreme Court uses the term ‘“‘temporary layoff’’ to
describe a lockout, because in the public employment arena, un-
like in the private employment arena, a “‘layoff’’ is a personnel
action which might very well be subject to various due process
considerations, if not properly implemented, and definitely would
be subject to redress if it were implemented in violation of First
Amendment rights. (See, e.g., Mabey v. Reagan [9th Cir. 1976]
537 F.2d 1036.)
The fact that strikes by government employees are in certain
27
-
é
*
instances legal does not mean that lockouts of government employees
by government employers must also be considered legal. Indeed, in
the case legalizing public employee strikes in the State of Califor-
nia, County Sanitation District No. 2, supra, the California Supreme
Court, in reviewing the weapons at the public employer’s disposal
which would act to counteract a settling of a strike at any cost, con-
spicuously omitted any reference to a lockout. (Supra, at pp. 577-579.)
Furthermore, there is no showing that a lockout is a necessary bar-
gaining equalizer to a strike. For example, in American Ship Build-
ing Co. v. Labor Board, supra, the National Labor Relations Board
had decided that giving the right to a private employer to lock out
its employees would tilt the bargaining balance unfairly to the pri-
vate employer. The United States Supreme Court overruled the
Board’s decision and ruled that it was not appropriate to try to re-
solve labor law questions based on considerations of trying to equalize
bargaining power. Thus, a lockout has never been justified by the
United States Supreme Court as some kind of bargaining power
equalizer; and indeed, the National Labor Relations Board had taken
the position that permitting a lockout would tilt the balance to the
employer.
Thus, it simply does not follow from the fact that a strike by public
employees is legal under certain circumstances, that a lockout by a
public employer is necessarily legal under certain circumstances; nor,
does it follow that assuming there are certain circumstances under
which a public employer lockout would be lawful, that a test paral-
lel and analogous to that used in determining the lawfulness of a
public employee strike would be applicable.
In the instant case, approximately 2,000 members of plaintiffs’ class
were locked out or laid off—were penalized—for almost three months
and lost their livelihoods during said time, based solely on their be-
ing members of either of the two unions. Since the governmental
employer did not show that the members of the class participated
in individual acts of wrongdoing or had the specific intent to fur-
ther any alleged unlawful aims of either of the two unions, it vio-
lated plaintiffs’ freedom of association rights when it refused to
permit plaintiffs’ class to work between September 1 and Novem-
ber 23, 1979, solely on the basis that said employees were members
of one of the two unions.
The Court of Appeal in its analysis also confused the decision to
28
asian eel
oo . nae
shut down passenger service with the separate decision to lay off (or
lock out) the members of plaintiffs’ class (and the implementation
of said latter decision). Even after passenger service was shut down,
employees who were not members of plaintiffs’ class were permit-
ted to work while members of plaintiffs’ class were not. There were
many jobs which needed to be done even in the absence of passenger
service going On, é.g., maintenance, clerical work, electrical work,
custodial work, secretarial work, gardening work, but members of
plaintiffs’ class were not allowed to work at said ongoing jobs, and
temporary and management workers replaced them at said tasks.
When limited train service resumed in October, members of plain-
tiffs’ class were still not permitted to work. Thus, even though deferi-
dant BART undoubtedly had legal discretionary authority to decide
to suspend operation of the trains, it does not follow that it had le-
gal authority to lock out union workers thereafter while at the same
time permitting non-union workers to continue to report to work and
draw a paycheck.
There were any number of alternative approaches the General
Manager of BART could have used if he truly felt there was a prob-
len in providing adequate passenger service to the public rather than
locking out all the union workers. He could have shut down part
or all of passenger train service on a temporary basis, and permit-
ted the union workers to continue to work just as he was permitting
non-union workers to continue to work; he could have closed the
13% of the system affected by the sick-in, provided bus service to
that part of the system, and kept the rest of the systern open; he could
have disciplined the offending train operators who had reported in
sick on August 31 if they had really engaged in improper conduct;
he could have met with representatives of the unions to see if some
resolution of the immediate problem which had arisen on August
31, 1979 could have been worked out (such as having a neutral safe-
ty inspector certify the trains in question were safe). However, he did
not even consider these or any other alternatives. Rather, apparent-
ly hoping to use economic leverage on the unions to bring an end
to the labor dispute (as recognized by the trial court opinion as a
probable motive of the lock-out), he took the elephant gun approach
of rushing in and locking out (or laying off) all employees who were
members of the two unions, even though he conceded the vast majori-
ty were undoubtedly loyal and totally innocent of any wrongdoing.
29
By taking this approach, BART violated another principle applica-
ble to an analysis of First Amendment issues which the Court of
Appeal ignored in its analysis, to wit: Even when a compelling state
purpose is involved, state actions must be constructed with narrow
specificity so as not to impinge upon ‘‘our most precious freedoms’”’.
NAACP vy. Button (1963) 371 U.S. 415; Elfbrandt v. Russell, supra;
Shelton v. Tucker (1960) 364 U.S. 480; Jn Re Stolar, supra, at 90.
The Court of Appeal’s opinion also suggests that a 42 U.S.C. Sec-
tion 1983 claim might be barred in the instant case because the
punishment imposed on the members of plaintiffs’ class solely for
their being members of either of the two unions was not dismissal,
but rather the somewhat lesser sanction of being denied work and
pay for approximately three months. Numerous cases stand for the
proposition that a penalization of First Amendment rights in any
form is actionable under 42 U.S.C. Section 1983, and sanctions far
less than dismissal are actionable in this regard. See Perry v. Sinder-
mann (1972) 408 U.S. 593; Castleberry v. Langford (N.D. Texas 1977)
428 F.Supp. 676 (suspension for four months); Thomas v. Younglove
(9th Cir. 1976) 545 F.2d 1171 (lower salaries and harassment); Lon-
tine v. Van Cleave (10th Cir. 1973) 438 F.2d 966 (suspension or dis-
missal). Being deprived of work and pay for almost three months
was a severe penalty and severe hardship for the 2,000 members of
the class (and their families), was a penalization of their exercise of
their First Amendment right of freedom of association, and is ac-
tionable under 42 U.S.C. Section 1983. The Supreme Court should
grant this petition for writ of certiorari and amplify upon the prin-
ciples set forth in Perry v. Sindermann, supra, and make it clear that
a three month deprivation of employment based on an employee’s
mere membership in a union without specific intent to further any
alleged unlawful aims of the union is a sufficient penalization of the
exercise Of First Amendment rights to be actionable under 42 U.S.C.
Section 1983.
CONCLUSION
The petition for writ of certiorari should be granted for all of the
reasons set forth previously herein. DATED: August 11, 1987.
LOUIS A. HIGHMAN
By
Attorney for Plaintiffs
30
[Not to be published in official reports]
[Filed Feb. 20, 1987]
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ROBERT J. SOLIS et al.,
Plaintiffs and Appellants,
v. BAY AREA RAPID TRANSIT
DISTRICT et al.,
Defendants and Respondents.
A026629
(San Francisco Super.Ct.No.
779391)
Plaintiffs, members of a certified class’ consisting of transit
employees who in 1979 were members of two unions, appeal a
judgment denying them relief after court trial on causes of ac-
tion brought pursuant to 42 United States Code section 1983 and
Public Utilities Code section 28850, for wages lost during a labor
dispute with defendant Bay Area Rapid Transit District (BART).
Facts and Procedural History
In March 1979 negotiations on a new contract of employment
began between BART and two unions, Service Employees Inter-
national Union or, as it was otherwise known, United Public Em-
ployees Local 390 (UPE 390) which represented all train
maintenance employees, and Amalgamated Transit Union Inter-
national Division 1555 (ATU 1555) which represented train oper-
ators, station agents and various clerical workers. BART is an
agency shop and anyone who occupies a certain job classifica-
tion must belong to the appropriate union. (See Rae v. Bay Area
Rapid Transit Supervisory etc. Assn. (1980) 114 Cal.App.3d 147,
A-1
152-154 [holding Pub. Util. Code Sections 28500-29757 implicit-
ly permit an agency shop agreement].) The two unions, UPE 390
and ATU 1555, pursuant to a determination by the State Concili-
ation Service, jointly bargained with BART for the general pro-
visions of each union’s contract. (Pub. Util. Code, Sec. 28851.)
At the time the negotiations began members of both unions were
working under a contract due to expire June 30, 1979.
That contract did expire without the unions and BART hav-
ing reached a new agreement, but with both sides agreeing to con-
tinue negotiations under an indefinite extension of the old
contract terms. A substantial area of dispute between the parties
was retention of a cost-of-living adjustment. On July 8, 1979,
BART made what it termed its final offer to the unions which
it required they accept within two days, otherwise BART an-
nounced that, beginning July ll, it would no longer continue to
abide by the terms of the expired contract.
During June and July BART began having difficulty getting
an adequate number of train cars maintained so that they could
be put into service. This difficulty with car count led to the for-
mation of a committee, with union representation which was
briefly in existence in mid-July until BART disbanded it. Accord-
ing to the trial testimony of BART’s general manager an ‘‘ide-
al’’ number of cars in service would be 280, but during the period
from July 19 through August 20 the system was averaging only
204 cars in service. The slowdown in car maintenance work ap-
parently resulted directly from instructions by UPE 390 to its
members to perform all repair jobs ‘‘by the book’’ — that is, the
mechanics were advised to consult their repair manuals for ev-
ery procedure. The slowed maintenance work was especially pro-
nounced at the Concord shop, and in response BART announced
its intention to transfer all the Concord maintenance staff to other
maii..enance yards and install management personnel at the Con-
cord shop. Around midnight on July 28, various Concord em-
ployees, joined by representatives of UPE 390 and ATU 1555, took
over the Concord shop and occupied it for some five days. They
eventually relinquished the facility under acourt order.2, Mean-
while, in July, there had been other instances of unrest. On July
ll, the system was shut down for 15 minutes, allegedly in response
to the absence of operators for emergency vehicles which must
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be manned at all times during passenger service. At trial there was
testimony disputing BART’s claim that these operators had in fact
absented themselves from their posts. There was also a brief sit-
in by various clerical employees sometime in mid-July.
On August 20, BART issued ‘‘Interim Terms and Conditions
of Employment.”’ These terms and conditions abolished the griev-
ance procedure which had been in effect under the contract, re-
quired employees to work overtime, and eliminated sick leave for
the first three days of any absence.
Damage to tools and vehicles, which BART believed was the
result of sabotage, became commonplace. A train door was tam-
pered with and damaged so that it might suddenly come open
when the train was in motion. On August 27, at the Concord yard,
a morning inspection revealed that some 30 cars had been van-
dalized; the air bags which regulate the car’s height with respect
to the train platform had been slashed. BART transferred all its
employees out of the Concord yard immediately. Managerial staff
took over the Concord shop.
At a press conference on August 29, the executive director of
UPE 390 opined, ‘‘We still think that a strike is inevitable....We
are engaged, if anyone doesn’t know it by now, in a gorilla [sic]
warfare activity against BART....In effect, we have been on strike
for 2 months.’
On Friday morning, August 31, at 8 a.m., BART had only 21
trains instead of a normal number of 32 in service. Those trains
were running 13 minutes behind schedule. Because many train
operators were not reporting or were leaving work, ‘‘dropping
sick,’’ two of the rush-hour trains were driven by management
staff. As the day progressed the number of train operators
declined even further with many operators refusing overtime or
refusing to accept transfers to Concord line trains. ATU !555 had
advised the train operators to ‘‘drop sick’’ if they were sent to
Concord. According to ATU’s president and business agent,
James Danzy, he advised the train operators to ‘‘drop sick’’ be-
cause BART was threatening to fire anyone who refused to work
overtime. A bulletin from ATU dated August 31, but apparently
not circulated until late that day, repeated the recommendation
that operators assigned to the Concord line develop ‘‘BART Flu’’
and warned that ‘‘Any member who replaces a brother or sister
A-3
that is ill with BART Flu will be brought up on charges before
a trial committee by the Union.’’
Between two and four o’clock in the afternoon BART’s general
manager decided to close the system. From the time of the shut-
down at 5 p.m. BART police were ordered not to allow members
of either union onto the premises. Members of both unions were
not permitted to return to work until November 23, after the un-
ions and BART had agreed io a new contract.
This action was brought as a class action on behalf of all em-
ployees of BART who were unable to work from August 31
through November 22, 1979. The class was certified by an order
filed October 25, 1982. On February 22, 1984, after trial to the
court, judgment was entered in favor of defendants. Plaintiffs
bring a timely appeal from that judgment.
I.
Plaintiffs contend that the trial court erred by declining to al-
low them to recover on their claim made under 42 United States
Code section 1983.
Section 1983 Claim
Although the trial court found that plaintiffs could state a cause
of action against BART as a state actor for its alleged depriva-
tion of their First Amendment rights under 42 United States Code
section 1983, the trial court declined plaintiffs any recovery on
that claim. The trial court concluded that the activities in which
plaintiffs were engaged were not protected by the First Amend-
ment.
Plaintiffs argue that their rights of association were abridged
by BART when it shut down the system and refused to permit
them to return to work until a new contract was signed. They con-
tend that the mere fact of their membership in one of the two
unions is not a proper basis upon which to deny them, even tem-
porarily, their jobs as public employees.
Liberty of speech and association, guaranteed by the First
Amendment and made applicable to the states under the Four-
teenth Amendment to our federal Constitution, extends to speech
about unions and membership in them. (Thomas v. Collins(1945)
323 U.S. 516, 531.) Thus a state employer may not fire public em-
ployees solely for exercising their First Amendment rights, regard-
A-4
;
4
;
2
less of whether the employees have a contractual right to their
jobs. (Perry v. Sindermann (1972) 408 U.S. 593, 597-598.)
Plaintiffs rely upon decisions in which public employees were
discharged, in whole or in part, because they had exercised their
First Amendment rights. The validity ef such discharges depends
upon whether the conduct which gives rise to them was wholly
protected under the First Amendment or partly protected and
partly unprotected. (7ygrett v. Barry (D.C. Cir. 1980) 627 F.2d 1279,
1287, fn. 9.) If the conduct is part protected and part not, then
the employer must show, by a preponderance of the evidence, that
it would have reached the same decision to discharge even in the
absence of the protected conduct. (Mt. Healthy City Board Ed.
v. Doyle (1977) 429 U.S. 274, reaff’d. in Givhan v. Western Line
Consol. School Dist. (1979) 439 U.S. 410, 416-417.) When the con-
duct forming the basis for the discharge is wholly protected by
the First Amendment, the firing can only be sustained if the em-
ployer can show that the conduct impaired the employee’s abili-
ty to perform on the job or interfered with the efficient operation
of the agency. (Pickering v. Board of Education (1968) 391 U.S.
563, 572-573.)
Both tests are relevant here because there were two groups of
employees involved. The first group consisted of those members
of the two unions who had participated in sabotage, refused to
work overtime, or left their posts without permission. Such con-
duct rendered them subject to discipline, at least from the insti-
tution of the August 20 Interim Terms and Conditions of
Employment, if not before. Thus, had BART given individual-
ized layoff notices, for some of the union members their layoff
might have been justified by conduct which was unprotected un-
der the First Amendment. In fact, no such individualized dis-
cipline was imposed, except in a very few cases.
The more troubling question is the propriety of BART’s refusal
to allow to work those union members against whom there were
no pending disciplinary charges. The trial court found, on am-
ple evidence, that, to the extent they were refused the opportunity
to work, such refusal rested solely upon their membership in UPE
390 or ATU 1555.
Under the Pickering test, however, even their dismissal would
be appropriate if their membership in the union interfered with
the efficient operation of BART or with their own ability to do
their jobs. (Pickering v. Board of Education, supra, 391 U.S. 563,
572-573.) Membership in the two unions had indeed come to
threaten the efficient operation of BART on August 31. ATU 1555
prepared a bulletin dated August 31 which threatened that any
member who replaced a member who had dropped sick would
be subject to union charges. A similar call for ‘‘discipline’’ in the
face of management calls for overtime was made on behalf of
both unions on August 27. After the president of ATU 1555 was
told on August 31 at about 5:15 p.m. that there would be a manage-
ment press conference, station agents throughout downtown San
Francisco dropped sick. In order to retain their jobs the employees
had to belong to the union. Yet the union was now threatening
discipline if the employees complied with management requests
for overtime or reassignment. Under the Interim Terms and Con-
ditions of Employment adopted unilaterally by BART on August
20, acceptance of overtime was mandatory. Members of these un-
ions were in the untenable situation of being subject to union dis-
cipline if they did work and employer discipline if they did not.
Their union membership imposed demands upon them which
directly affected the efficient operation of the transit system.
In discussing the First Amendment cases above we have as-
sumed, for the sake of argument, that those cases which involve
employee firings are the appropriate precedent to apply where em-
ployees are not permanently discharged but temporarily denied
their right to work. At oral argument plaintiffs contended that,
in substance, those employees who were guilty only of union mem-
bership were, in effect, subjected to a three-month suspension.
As we suggest above, even were they correct, the trial court could
appropriately have reached the same result which it did under an
alternative analysis.
Lockout or Strike
Plaintiffs contend that the trial court made a finding of fact
that BART had locked them out.’ The court’s statement of deci-
sion is equivocal on this point. In the portion entitled ‘‘Discus-
sion and Factual Determination,’’ the court never characterizes
the system shutdown as a ‘‘lockout.’’ Only later in its discussion
of the issues does the trial court use the term at least twice in a
BS ORS ce at KEE AALS Air bate
way suggesting that it was making a finding that a lockout had
occurred. ,
Assuming that the trial court did conclude that BART had
locked out the members of UPE 390 and ATU 1555, what legal
consequences flow from that factual determination?
At the time the transit system was shut down on August 3],
plaintiffs were no longer working under a contract which pro-
hibited strikes and lockouts; that provision was deleted from the
Interim Terms and Conditions of Employment set out by BART
on August 20. Therefore, there was no contractual prohibition
against a management lockout. Nor do plaintiffs establish any
ground in law for finding the lockout to be illegal. BART as a state
subdivision of government is not subject to the National Labor
Relations Act (NLRA). (29 U.S.C. Sec. 152(2); San Francisco Bay
Area Rapid Transit Dist. v. Superior Court, supra, 97 Cal.App.3d
153, 161.) Even if it were, we are not persuaded that, under the fed-
eral cases applying the NLRA, this lockout would constitute an
unfair labor practice. (29 U.S.C. Sec. 158(a).) Under the NLRA,
once a bargaining impasse has been reached, a lockout is a per-
missible form of economic leverage for management to use, so
long as the employer is not motivated by the purpose of impair-
ing the empioyee’s right to strike or to bargain collectively. (Ameri-
can Ship Bldg. v. Labor Board (1965) 380 U.S. 300, 308-309; see
Lane v. N.L.R.B. (D.C. Cir. 1969) 418 F.2d 1208, 1210-1212.)
Here the parties agreed that a bargaining impasse had been
reached long before the system was shut down. No substantive
offers or counteroffers by either side are reflected in the record
after the unions rejected BART’s ‘‘final offer’’ of July 8. In this
case the trial court expressly found that the lockout was not the
result of BART’s desire to ‘‘discriminate’’ or ‘‘retaliate’’ against
the unions. This is a factual finding to which plaintiffs do not
take exception. Applying the rationale underlying the federal rule
to this wholly state context, we cannot say that BART’s lockout
of the employees was illegal because it was motivated by antiun-
ion animus.
Furthermore, the trial court found that the lockout here was
justified by ‘‘legitimate business necessity.’’ In the context of a
public transit system where the ‘‘business’’ of the system is pub-
lic service there was ample factual support in the record for the
trial court’s implicit finding that BART could no longer ensure
normal or safe operation of the entire system as of August 3].
We do not suggest that a lockout by a public employer would
be permissible in every case once a bargaining impasse has been
reached. Quite to the contrary, we merely find, on the facts of
this case where such a situation pertained, and where there was
a serious threat to the continued safe operation of a mass transit
system whose thousands of passengers might otherwise be strand-
ed or endangered while traveling through the Transbay tube or
the East Bay Tunnel or on some elevated portion of the system,
that the potential hazards to the public outweighed the injury
suffered by the members of the umions for the period of the lock-
out.
For the foregoing reasons we conclude that the trial court did
not err in refusing to permit recovery to plaintiffs on their sec-
tion 1983 claim.
II.
Plaintiffs also argue that the trial court erred when it declined
to find that BART’s lockout was not an abridgement of its duty,
imposed by Public Utilities Code section 28850, to bargain in good
faith with the unions.‘
As a threshold matter we address BART’s contention that plain-
tiff’s section 28850 claim was barred by their failure to file a claim
with BART, under Government Code section 910 et seq., for
damages in the form of their lost wages. The short answer to this
contention is that Government Code section 905, subdivision (c),
expressly exempts claims for wages from the claims procedure.
The trial court did not err in finding that plaintiffs’ section 28850
claim was not barred.
Public Utilities Code section 28850 imposes a mandatory duty
upon BART and upon the unions representing its workers to ‘‘bar-
gain in good faith and make all reasonable efforts to reach agree-
ment on the terms of a written contract....’’ (San Francisco Bay
Arec: Rapid Transit Dist. v. Superior Court, supra, 97 Cal.App.3d
153, 160.) What constitutes good faith bargaining under this sec-
tion has never been judicially defined.
Plaintiffs ask us to impose the ‘‘meet and confer’’ requirements
of Government Code section 3505 upon BART. As we have previ-
A-8
er
Do 5 Ay Werrhsal vitae % #2
ously held, BART is not subject to that provision of the Govern-
ment Code because it has ‘‘its own statutorily prescribed meth-
od of administering employer-employee relations (see Gov. Code,
Sec. 3500).’’ (San Francisco Bay Area Rapid Transit Dist. v. Su-
perior Court, supra, 97 Cal.App.3d 153, 161, fn. 5.) Nor is the
NLRA prohibition of refusals to engage in collective bargaining
as unfair labor practices (29 U.S.C. Sec. 158(a)(5)) especially help-
ful to our inquiry. That act defines collective bargaining as ‘‘the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in good faith....’’ (29 U.S.C. Sec. 158(d).)
Admittedly where the language of a California statute parallels
that of a federal statute federal case law may be of guidance in
interpreting the meaning of the state law. (Lipow v. Regents of
University of California (1975) 54 Cal.App.3d 215, 225-226.) How-
ever, we do not have parallel language here. Nowhere in Public
Utilities Code section 28850 is there any reference to ‘‘meet and
confer.’ Accordingly, we decline to adopt federal precedent in-
terpreting the duty to ‘‘meet and confer’’ as defining the duty
to ‘‘bargain in good faith’’ under Public Utilities Code section
28850.
The duty to bargain in good faith is not a duty to come to a
resolution of the dispute, but a duty imposed on how bargain-
ing is conducted. Are the parties showing a serious desire to re-
solve their differences? (Labor Board v. Insurance Agents (1960)
361 U.S. 477, 488.) Such an inquiry is obviously a subjective one.
Plaintiffs argue that BART refused to ‘‘bargain in good faith’’
by unilaterally changing the conditions of employment first on
July 18 and again on August 20 when it issued its Interim Terms
and Conditions of Employment. Likewise, they contend it was
not good faith bargaining for BART to lock out the employees
without giving the unions prior notice of the lockout to permit
them to offer proposals for an alternative action.
When the contract between B.\RT and the two unions expired
on June 30, the parties agreed to continue to proceed under the
provisions of that contract. BART’s final offer of July 8 was made
contingent upon its willingness to extend the expired contract only
through midnight July 10. By rejecting that ‘‘final offer’’ the
unions also brought to an end the extension of the old contract.
Only some seven days later did BART first modify its conditions
of employment. There was evidence at trial that some of the new
terms and conditions imposed by BART were implemented in re-
sponse to union moves. For example, a new sick leave policy in-
stituted on August 20 provided that the first three days of each
absence for sickness would be without pay. This change from the
sick leave policy pertaining under the old contract was, accord-
ing to the testimony of BART’s manager of employee relations,
made in response to union calls for selective strikes accomplished
by mass ‘‘drop sicks.’’ Likewise, the provisions for mandatory
overtime was, according to BART, a response to the unions’ calls
for employees to refuse overtime work.
On the day of the shutdown BART management did make one
unsuccessful attempt to contact the president of ATU 1555. The
union president never returned the call. Apparently that abortive
attempt was the only effort BART management made to discuss
the events of August 31 with the unions. From this vantage point
it is impossible to say whether contact between BART and the
unions might have avoided the shutdown or accelerated it. By 3:30
in the afternoon of August 31 BART was having to curtail serv-
ice on both the Concord and Richmond lines by stopping trains
at MacArthur station in Oakland. It would not have been implau-
sible for BART management to fear that all service would come
to a stop before the evening commute was over were they to give
the unions advance warning of a possible shutdown at the end
of the day.
Plaintiffs do not point to evidence in the record showing that
BART had refused to engage in collective bargaining prior to the
shutdown. Thus, we may presume that negotiations were ongo-
ing. To the extent that the shutdown on August 31 was the final
episode in what had become an ever-escalating ‘‘guerrilla’’ war
waged by the unions to which management responded with sor-
ties of its own, we cannot say that either BART’s failure to give
the unions advance warning of the shutdown or its institution of
new terms and conditions of employment were acts indicating its
subjective intent to undermine the collective bargaining process.
As the trial court pointed out, BART and the unions continued
to bargain during the lockout and did eventually negotiate a con-
A-10
eee t
tract. Accordingly, we find the trial court did not err in finding
that BART had not violated its duty to bargain in good faith un-
der Public Utilities Code section 28850.
The judgment is affirmed.
ROUSE, Acting P.J. WE CONCUR: SMITH, J. BENSON, J.
Footnotes:
1. The exact number of affected workers is not clear from the record. Plaintiffs
contend there were some 2,000 members in the two unions.
2. That case eventually led to the opinion of this court in Sar Francisco Bay
Area Rapid Transit Dist. v. Superior Court (1979) 97 Cal.App.3d 153.
3. This case does not present the issue of whether the employees conducted an
illegal strike. Since it was decided the California Supreme Court had clarified
the law on strikes by public employees. (County Sanitation Dist. No. 2 v. Los
Angeles County Employees’ Assn. (1985) 38 Cal.3d 564, 585.) The Supreme
Court had now made it clear that, in this state, public employees have a com-
mon law right to strike absent statutory prohibition or a judicial finding that
continuance of a particular strike will constitute an imminent threat to public
health and safety.
In the case before us the trial court did not reach the question of whether
the concerted actions by members of the two unions amounted to a strike.
4. Respondents suggest that at least the members of UPE 390 were barred from
asserting this claim because a prior suit by their union on their behalf was dis-
missed with prejudice. In light of our affirmance of the trial court’s denial of
recovery on the section 28850 claim, we do not reach the merits of this conten-
tion.
A-ll
[Filed
Mar. 19, 1987
Court of Appeal - First Dist.
Ron D. Barrow, Clerk]
COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE
FIRST APPELLATE DISTRICT
DIVISION: 2
SOLIS, ROBERT J., ET AL.
VS.
BAY AREA RAPID TRANSIT
DISTRICT, ET AL.
A026629
San Francisco County No. 77939]
BY THE COURT:
The petition for rehearing is denied.
Dated: Mar. 19, 1987
ROUSE, J.
Acting P.J.
A-12
[Supreme Court
FILED
May 13, 1987]
ORDER DENYING REVIEW
AFTER JUDGMENT BY THE COURT OF APPEAL
Ist District, Division 2, No. A026629
$000479
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
IN BANK
SOLIS et al.
Vv
BAY AREA RAPID TRANSIT et al.
Appellants’ petition for review DENIED.
LUCAS
Chief Justice
A-13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
ROBERT J. SOLIS, ET AL.,
Plaintiffs,
WV
BAY AREA RAPID TRANSIT DISTRICT,
KEITH BERNARD, individually and in
his capacity as General Manager of
Bay Area Rapid Transit District,
Defendants.
New Nee ee”
No. 77939]
Announcement of Intended Decision
The court intends to order judgment in favor of the defendants
and against the plaintiffs in the above-entitled action. Further-
more, pursuant to 42 U.S.C. 1988, the court intends, in its discre-
tion, not to allow the defendants an award of attorney’s fees. They
should, however, recover their costs.
Discussion and Factual Determination
This is a class action on behalf of a group of approximately
1500 employees of the defendant San Francisco Bay Area Rapid
Transit District (hereafter referred to as ‘‘BART’’). By orders dated
September 30, 1982 and October 25, 1982, Judge Pfotenhauer de-
termined that ‘‘the class be comprised of all employees of BART
who were employed by BART on August 30, 1979, and who there-
after were unable to work for BART from August 31, 1979 to
November 23, 1979.’” No member of this class has requested to
be excluded within the time allowed by the Notice of Pendency
of Class Action which was mailed on November 3, 1982. There
are letters in the file from attorney Justin Dwinell, dated Janu-
A-14
ary 27, 1982, and April 7, 1982, stating that certain employees
wished to file their own lawsuit and be excluded from this case.
These letters are premature and do not comply with the court rules
for requesting exclusion. (See Rule 23, Federal Rules of Civil
Procedure, 28 U.S.C.)
This lawsuit, proceeding on the first amended complaint, seeks
to recover wages lost by the class members during a period from
September |, 1979 through November 24, 1979. During that period
the BART system’s normal operations were shut down.
BART is a public agency created by the California Legislature.
(Pub.Util.Code, Sections 28500 et seq.) Since 1974, BART’s
governing body has been ‘‘a board of directors consisting of nine
members elected by election districts...’ (Pub.Util.Code, Sec.
28745). The board of directors is the legislative body of BART
and determines questions of District policy. (Pub.Util.Code, Sec.
28762.) The officers of BART include the general manager, who
at all relevant times was the defendant Keith Bernard.
The BART Act also provides for determination of collective
bargaining units for employees. (Pub.Util.Code, Sec. 28851.) Since
1972, BART has recognized and bargained with United Public Em-
ployees Local 390 of the Service Employees International Union,
(hereafter referred to as SEIU 390), and Local 1555 of the Amal-
gamated Transit Union International (ATU 1555). In 1979, Pau!
Varacalli was the executive director of SEIU 390, and James S.
Danzy was the president and business agent of ATU 1555. Union
membership is a requisite for employment by BART.
The BART collective bargaining agreement with the two unions
expired on June 30, 1979; however, prior to the expiration date,
BART and the unions engaged in negotiations which resulted in
resolution of many issues. By June 30th, the big issue yet un-
resolved was the cost of living allowance (COLA). Negotiations
continued and the workers continued working under the old col-
lective bargaining agreement. In the meantime, a slow-down by
the maintenance workers (SEIU 390) was accelerated, and hostil-
ities surfaced in the face of a BART offer which provided for a
different and more austere form of pay increases. Under this of-
fer COLA was not entirely eliminated, but it was drastically modi-
fied to bring BART wages in line with other public transit systems,
such as the San Francisco Municipal Railway.
A-15
At a negotiating meeting on July 8, 1979, the offer was presented
to the negotiating team and a recommendation of non-acceptance
was made by the union officials. Shortly thereafter, on July 18,
the unions were notified that the District was no longer willing
to be guided by certain specific provisions of the old agreement,
including the discipline of workers. The slow-down grew in in-
tensity with the result that insufficient cars were kept running to
deliver necessary service to BART riders.
Acts of senseless vandalism occurred, such as broken car win-
dows, broken switches which caused doors to open suddenly,
slashing of air bags at the Concord yard, etc...... all acts that
presented a danger to the public as well as a huge expense to BART.
On July 27, 1979, Mr. Varacalli was notified by Larry Williams
(negotiator for BART) that BART was transferring maintenance
workers out of the Concord yard where most of the slow-down
was suspected [and where the air bag slashing had occurred].
[Deleted from decision, 2/15/84.] These workers were replaced
with management personnel, all of whom were engineers and in-
structors and were well-qualified to safely maintain the cars. After
this, the situation deteriorated even more, and ultimately the union
maintenance workers forceably took over the Concord yard and
refused to leave. BART suspended several workers and fired others.
The SEIU union filed suit in Contra Costa County seeking an
order requiring BART to bargain in good faith, requiring it to
bring back the transferred workers, and to reinstate the suspended
workers. BART, on the other hand, sought an order to remove
the workers from the Concord yard. Superior Court Judge Robert
J. Cooney granted the relief requested by the union, and denied
BART’s request.
However, the Court of Appeal decided that Judge Cooney had
acted in excess of his jurisdiction, and accordingly ordered the
workers out of the Concord yard. The Court of Appeal further
held that Judge Cooney should not have ordered the re-transfer
of the maintenance workers back to Concord, and that BART had
a right to discipline the workers. (San Franciso Bay Area Rapid
Transit Dist. v. Superior Court, [1979] 97 Cal.App.3d 153.)
Upon the decision of the Court of Appeal becoming final, the
union removed its workers from the Concord yard and the
management employees again took over; however, the union offi-
A-16
a
1a
cials began expressing concern about safety, contending that the
management employees were not qualified. There was a union
demand that there be an inspector in the yard (from the Public
Utilities Commission, for example), to certify that the cars were
safe. BART did not comply with this request.
On August 29, 1979, Mr. Varacalli appeared on KGO-TV at
SEIU 390 headquarters, and stated:
**We still think that a strike is inevitable. It’s just a question
of time, and we want to reserve the right to determine when
that strike will occur. We are engaged, if anybody didn’t know
it by now, in a guerilla warfare activity against BART.
REPORTER: What does that mean?
VARACALLI: What does that mean?...In effect, we’ve been
on strike for two months. It is a guerilla warfare type of
strike. It is unfortunate. /t’s making a mess of the transit sys-
tem. Uh, BART has been, uh, rather overreactive, if I can
say that, to what we do.”’
Thereafter, on August 30th, the union officials gave orders that
the operators were not to take cars in or out of the Concord sta-
tion. Also, all operators were to refuse overtime requests by
management, and were admonished to ‘‘drop-sick’’ when asked
to work overtime. On August 31, Mr. Danzy promulgated the fol-
lowing announcement:
‘*Dear Brothers and Sisters: The recent illness that has fallen
upon the train operators in the Concord yard and upon oper-
ators who are dispatched to Concord, is unfortunate and
could not be prevented. Such disease will continue to get
worse until scabs are removed from the property.
*‘Any member who replaces a brother or sister that is ill with
the BART Flu will be brought up on charges before a trial!
committee by the Union. I hope that we will stick together
during this crisis, and each of you remember that each of
us is subject to catching the BART Flu when ordered to the
‘Concord Yard.’ No member should refuse a direct order,
or refuse to take a train, but if you are sick, you cannot be
compelled to work.
‘*l am urging that you also refuse to work any overtime be-
cause overtime can also bring on this contagious disease
called the ‘BART Flu’.”’
A-17
BART Manager, Keith Bernard, determined in the afternoon
of August 3lst that the system could not be operated in view of
the mass drop-sicks. The system was, therefore, closed down.
In spite of the fact that ‘‘selective strikes’’ were planned (with-
out notice to BART), on the first working day after August 3lst,
the workers were instructed by their unions to report back to work,
which most of them did, including gardeners, parking lot atten-
dants, station managers, clerical workers, secretaries, accountants
etc. By this time, however, the BART police had taken over all of
the facilities, and any employee seeking access to the various
BART premises in Concord, Hayward, Fremont and San Fran-
ciscO was not permitted to go to work.
In October, BART began operating the trains on a very trun-
cated basis, using management operators and maintenance per-
sons. In the offices, temporary employees were hired, and some
relatives of management employees were doing replacement work
as well. Finally, around November 22, 1979, a new contract was
entered into which was basically in the form desired by BART in
August.
After the signing of the new contract, the employees made
claims for unemployment compensation, which was ultimately
granted to most of the applicants.
The Issues
1. The action is not barred by an alleged release.
In view of the court’s decision in this case, it is not necessary
to address, at length, the question of whether or not the new con-
tract provided for release of all claims against BART. Initially,
there was a release of ‘‘members, agents, employees’’ of BART,
but this was later deleted. It would seem, therefore, that the
November 22nd contract does not bar this action by the em-
ployees.
2. Claim by the Employees under Section 28850 of
the Public Utilities Code.
Plaintiff employees contend that the lockout was a violation
of section 28850 of the Public Utilities Code, the statutory duty
to bargain in good faith. In other words, plaintiffs argue that the
lockout amounted to the use of an economic weapon during col-
lective bargaining which so interfered with the bargaining proc-
ess as to warrant finding a refusal to bargain in good faith. They
A-18
rely on San Francisco Bay Area Rapid Transit Dist. v. Superior
Court, supra, 97 Cal.App.3d 153, for the proposition that certain
adverse personnel decisions can constitute a violation of section
28850. In that case, the appellate court acknowledged that there
were no reported cases interpreting the duty in section 28850 (id.
at p. 161) and never decided whether a breach had occurred. It
found that that the statutory duty did not provide authority for
the trial court’s restraining BART in the transfer and discipline
of its employees. The union conduct amounted to unprotected
activities under federal law, and the employer’s response was thus
justified. (Id. at p. 163.)
Here the statutory duty is directly in issue, and the court de-
termines that there was no breach. Looking to federal cases, it
is true that an employer’s unilateral change in conditions of em-
ployment under negotiation can be a violation of the National
Labor Relations Act, section 8(a)(5) and 8(d) duty to bargain col-
lectively in good faith. (Labor Board v. Katz, (1962) 369 U.S. 736.)
However, the duty and change of conditions generally refer to
meeting and conferring with respect to wages and hours, etc.' not
to shutdowns following slowdowns. Further, the unions and
BART continued to negotiate after the lockout, and eventually
entered into a new contract. These facts are inconsistent with a
finding of a breach of the duty to bargain in good faith.
3. Plaintiffs’ First Amendment Claim under
42 U.S.C. 1983.
Plaintiffs assert that their federal constitutional! rights of speech
and association were violated by the BART lockout and, under
section 1983, they seek a remedy. Section 1983 redresses depriva-
tion of federal! rights by state action. BART, as a public agency
(Pub.Util. Code, Sections 28500 et seq.) is a state actor, and speech
and association are federal constitutional rights properly protected
by 1983 actions. (Antieau, Federal Civil Rights Acts, Civil Prac-
tice [2d ed. 1980] sections 121, 123.)
But, not a// speech and conduct are protected by the First
Amendment. Constitutional rights are subject to reasonable re-
straint, and if the union activities here are unprotected, they are
not redressible in a 1983 action. (See Mabey v. Reagan [9th Cir.
1976] 537 F.2d 1036, 1048-49, citing Gray and Adamian; Bullock
A-19
v. Mumford, [D.C. Cir. 1974] 509 F.2d 384, 387.)
(a) Was plaintiffs’ conduct constitutionally protected?
The evidence showed that plaintiffs were involved in various
types of conduct prior to the August 3lst shutdown, the most
devastating of which was, of course, the so-called BART flu. Mr.
Bernard determined — and the court agrees — that the system
could not be operated under the circumstances. Looking back
from our present-day vantage point, it is, of course, possible that
BART could have successfully continued to operate when all of
the workers showed up for work on the next working day. How-
ever, hind-sight cannot help the plaintiffs at this time. Because
of the hostile atmosphere which existed in September of 1979, it
is reasonable to conclude that the drop-sick practice would like-
ly reoccur and that selective strikes would be a part of the guerilla
warfare which Mr. Varacalli declared a few days earlier. In other
words, the lockout was supported by legitimate and substantial
business reasons.
(i) Disruptive Conduct.
Whether plaintiffs’ conduct is protected is a question of law.
(Greminger v. Seaborne, [8th Cir. 1978} 584 F.2d 275, 278; Mabey
v. Reagan, [1974] 376 F.Supp. 216, 22] revd. on other grounds in
537 F.2d 1036.) Plaintiffs’ membership in a union, and advocacy
of wage and benefit provisions are protected activities.’
(McLaughlin v. Tilendis { 7th Cir. 1968] 398 F.2d 287; Greminger
v. Seaborne, supra.) However, refusal to operate cars to the Con-
cord yard or work overtime by dropping sick is the type of
premeditated, disruptive behavior that steps outside the protec-
tion of the First Amendment. The court does not find that the
workers’ safety concerns are a credible justification.
In Bullock v. Mumford [D.C. Cir. 1974] 509 F.2d 384, Library
of Congress employees staged a sit-down strike in the main reading
room. The court there held that ‘‘[{i]f management reasonably
believed the [employees’] acts were disruptive, it had a right to
order them to vacate the main reading room, and penalize them
for refusing to do so, notwithstanding the First Amendment.”’
(pp. 387, 388.)
School First Amendment cases, an analogous situation, are in
accord. The court there looks to see whether there was ‘‘materi-
al and substantial’’ disruption, and balances the negative facts
A-20
to the school against complainants’ interest in free expression.
(Mabey v. Reagan, supra, 537 F.2d at pp. 1049-50, citing Tinker
and Pickering.) Application of this test and the Bullock test bring
plaintiffs’ activities here outside of constitutional protection.
In sum, an employer must not stifle free expression merely be-
cause controversial ideas may lead to disharmony (Mabey, supra,
at p. 1047). However, the First Amendment does not entitle an
employee ‘‘to try to force his ideas and opinions upon others
through harassment or other means.”’ (Gray v. Union County In-
termediate Education District [9th Cir. 1975] 520 F.2d 803, 807.)
Therefore, even if the drop-sicks were a means of expressing a
negotiation position to BART, such expression, through its dis-
ruption of train service, stepped beyond the reach of the First
Amendment’s protection.
(ii) Slowdown and/or Strike.
Further, the First Amendment does not protect unlawful ac-
tivities, (Bullock v. Mumford, supra, 509 F.2d at p. 387) and the
slowdown was unlawful. The California Court of Appeal, look-
ing to National Labor Relations Act cases for guidance, stated
** ..Slowdowns...are not protected activities under federal law.
‘deliberate ‘‘slowdowns’’ and ‘‘walkouts’’ by the em-
ployees to exert pressure on the employer to accept the un-
ion’s bargaining demands [are] unprotected concerted
activities, and the employer [is] free to discharge the par-
ticipating employees for their unlawful, disloyal tactics’.”’
(San Francisco Bay Area Rapid Transit Dist. v. Superior
Court [1979] 97 Cal.App.3d 153, 161-62, citing N.L.R.B v.
Blades Manufacturing Corp. [8th Cir. 1965] 344 F.2d 998,
1005.)
Mr. Varacalli’s announcement notwithstanding, this court need
not decide whether the unions’ conduct amounted to a strike,
since the same result would follow. Government employees do not
have the same right to strike in the absence of a statute allowing
it (United Federation of Postal Clerks v. Blount [1971] 325 F.Supp.
879), and the San Francisco Bay Area Rapid Transit District Act
(Pub.Util.Code, Sec. 28500 et seq.) does not provide the right in
favor of BART employees.’
(b) If plaintiffs’ conduct were protected, was
defendants’ motive to shut down permissible?
A-21
BART’s motive for the lockout is a question of fact: ‘‘the only
way to erect adequate barriers around First Amendment freedoms
is for the trier of fact to delve into the motives of the decision-
maker.’’ (Mabey v. Reagan, supra, 537 F.2d at p. 1045; see also
Greminger v. Seaborne, supra, 584 F.2d at p. 278.)
It is impossible to escape the conclusion that the lockout was
triggered by the slowdown and the drop-sicks on August 3ist. It
is likewise impossible to ignore Mr. Varacalli’s declaration to the
entire world that a state of guerilla warfare was being waged
against BART, and that such activity was admittedly making a
‘*mess of the transit system.’* A situation, therefore, existed where
BART could not keep enough cars running to serve the public.
Due to this legitimate business necessity, the shutdown of its oper-
ations was justified until a new contract appeared on the hori-
zon. Lockouts are not per se unlawful (Labor Law for General
Practitioners, Cont.Ed. of the Bar 1960, section 3.83, p. 104) and
are in fact lawful if they serve a legitimate business end without
intent to discriminate against the union. (American Ship Build-
ing Co. v. N.L.R.B., [1965] 380 U.S. 300.) In this regard, the court
determines that BART’s actions were not for the purpose of dis-
criminating against the unions; nor were they capricious and ar-
bitrary. They likewise were not for the purpose of retaliation.
4. 42 US.C. 1983: Due Process Claim
Plaintiffs argue in their trial brief that an employer violates the
Due Process Clause and 42 U.S.C. 1983 when it takes adverse ac-
tion against its employees in violation of state or local statutes,
rules, or regulations governing personnel decisions. Here, plain-
tiffs continue, defendants’ lockout violated BART’s duty to bar-
gain in good faith under Section 28850 of the Public Utilities
Code, and therefore violated due process.
Since plaintiffs were serving at the pleasure of the general man-
ager, they had no liberty or property interest in their position re-
quiring a constitutional right to notice and a hearing. (Board of
Regents v. Poth [1972] 408 U.S. 564; c.f. San Francisco Bay Area
Rapid Transit Dist. v. Superior Court, supra, 97 Cal.App.3d 153,
164.) Notwithstanding the Roth rule, an agency must follow its
own local rules or regulations regarding personnel decisions to
comply with due process. (Mabey v. Reagan, supra, at p. 1042.)
The cases cited by plaintiffs concern nonrenewal of contracts or
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BEST AVAILABLE COPY
termination procedures. The present case, of course, deals with
a situation where the employees were temporarily locked out.
(Plaintiffs cite Mabey, supra; Sherman v. Yakahi, 549 F.2d 1287;
Burnaman v. Bay City Independent School Dist., 445 F.Supp. 927;
Jacobs v. College of William and Mary, 495 F.Supp. 183.)
Section 28850 does not deal with personnel decisions; it ad-
dresses the BART board’s duty to bargain in good faith with the
“taccredited representative’ of the labor organization. Plaintiffs
have, therefore, not made out a due process violation.
The court is mindful of evidence which showed that many of
the plaintiffs did not want to be part of the guerilla warfare which
was being waged against BART. It was also clear to the court that
many of the plaintiffs had absolutely nothing to do with the ille-
gal and disruptive acts of the two unions and some of the mem-
bers. These employees were at all times willing to faithfully
perform their duties, and it is the court’s opinion that they were
correctly awarded unemployment benefits. However, because of
the potentially dangerous situation with which BART was faced
in September of 1979, it was not in a position to make an individual
assessment of which employees would be loyal in the future and
which ones would create a likelihood of vandalism, selective
strikes, slow-downs and other types of ‘‘warfare’’ which would
make ‘‘a mess of the system.’’ Unlike the cases cited by plaintiffs
(McLaughlin v. Tilendis, supra, 308 F.2d 287, for example), the
present case involves a temporary lockout which was clearly priv-
ileged because of the already flagrantly illegal acts of the unions.
It is to be remembered also that Mr. Danzy proclaimed to the
union members that they ‘‘would be brought up on charges be-
fore a trial committee of the union’’ if they refused to go along
with the epidemic of BART flu. This past conduct, plus the strong
possibility that it would accelerate rapidly in the future, supported
the necessity for the lockout.
Moreover, though many of the plaintiffs are undoubtedly in-
nocent by-standers (and the court is deeply sympathetic with their
plight), it is obvious that their economic loss occurred because
of their unions’ insistence on demands unacceptable to BART,
and not directly because of any unlawful activity by BART. There
was no evidence that BART was actuated by malice, or by a de-
sire to discourage membership in the unions, or to discriminate
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A
against union members as such, or to retaliate, or to destroy col-
lective bargaining. The evidence does suggest, however, that there
may have been a strong desire on the part of BART to affect the
outcome of the stalled negotiations. Thus, aside from the desire
to protect its business from loss, the purpose of the lockout may
well have been to bring pressure on the unions to modify their
demands, which eventually they did. There is nothing in the law
which gives employees the right to insist on their contract de-
mands, free from the sort of economic disadvantage which fre-
quently attends a bargaining dispute such as this one. There is
likewise nothing in the law which prevents the use of a temporary
layoff of employees solely as a means to bring economic pressure
to bear in support of the employer’s bargaining position after an
impasse has been reached. (Cf. American Ship Building v. Labor
Board, supra, [1964] 380 U.S. 300, 308 et seq.)
The foregoing shall stand as the court’s statement of decision,
unless within 10 days, either party makes additional proposals as
to the content of the said statement of decision. If additional
proposals are received, the attorneys for BART are directed to pre-
pare the same.
In the absence of additional proposals, then the attorney for
BART shall prepare an appropriate judgment for presentation to
the court for signature.
OLLIE MARIE-VICTORE
Judge of the Superior Court
DATED: December 22, 1983
Footnotes:
(1) National Labor Relations Act, section 8(a)(5), 49 Stat. 452-453, as amend-
ed 29 U.S.C., section 158(a)(5} reads, in part:
‘*It shall be an unfair labor practice for an employer...to refuse to bargain col-
lectively with the representatives of his employees, subject to the provisions of
Section 159(a) of this title.’’
National Labor Relations Act, Section 8(d), added by 61 Stat. 142, 29 U.S.C.,
Section 158(d) reads:
‘*For the purposes of this section, to bargain collectively is the performance
of the mutual obligation of the employer and the representative of the employees
to meet at reasonable times and confer in good faith with respect to wages, hours,
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and other terms and conditions of employment...’’
(2) Although plaintiffs’ contract had expired before the facts at issue here, and
they were therefore serving at the pleasure of the general manager
(Pub.Util.Code, Sec. 28811; 97 Cal.App.3d 158, 163), a person’s contractual or
tenure status is irrelevant to the First Amendment inquiry. (Perry v. Sindermann
[1972] 408 U.S. 593, 597-98.)
(3) Although the California Supreme Court considers the right of public em-
ployees to strike an open question (E/ Rancho Unified School Dist. v. National
Education Asn., 33 Cal.3d 946, 962 (concurring opn. of Justice Grodin)), this
court is bound by numerous Court of Appeal decisions denying the right. (4
Witkin, Summary Cal. Law [1982 Supp.] Torts Section 408, p. 191.)
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[FILED
San Francisco County Superior Court
Feb. 22, 1984
Donald W. Dickinson, Clerk]
MALCOLM BARRETT
General Counsel
THOMAS JACKSON
Associate General Counsel
JAMES W. ROSENQUIST
Attorney 800 Madison Street
Oakland, CA 94607
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
ROBERT J. SOLIS, et al., etc.,
Plaintiffs, ~
V.
BAY AREA RAPID TRANSIT DISTRICT,
et ai.,
Defendants.
CASE NO. 779391
JUDGMENT AFTER TRIAL BY COURT
This cause came on regularly for trial on October 17, 1983 in
Department 2 of the above-entitled Court, the Honorable Ollie
Marie-Victoire, Judge, presiding, sitting without a jury, the jury
having been duly waived.
Thomas J. Williams, Esq., Thomas V. Wearing, Esq., Louis
A. Highman, Esq., and Beverly M. Lyon, Esq. appeared as at-
torneys for plaintiffs. James W. Rosenquist, Esq. appeared as at-
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torney for defendant. The case was tried on regular court days
from October 17, 1983 through October 26, 1983, and evidence,
both oral and documentary, was presented by both parties. The
cause having been argued and submitted for decision, and the
court having mailed and filed herein its Announcement of Intend-
ed Decision;
IT IS ORDERED ADJUDGED AND DECREED that:
1. The above-entitled action be and it is hereby dismissed, plain-
tiffs to take nothing by their complaint; and
2. Defendant is awarded its costs of suit herein in the amount
of
Dated: February 21, 1984.
OLLIE MARIE-VICTOIRE
JUDGE OF THE SUPERIOR COURT
Approved as to form:
Thomas V. Wearing
Attorneys for Plaintiffs
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42 U.S.C. Section 1983
Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regu-
lation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for
redress. For the purposes of this section, any Act of Congress ap-
plicable exclusively to the District of Columbia shall be consid-
ered to be a statute of the District of Columbia.
United States Constitution, Amendment I
Congress shall make no law respecting an establishment of re-
ligion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a re-
dress of grievances.
United States Constitution, Amendment XIV, Section |
All persons born or naturalized in the United States, and sub-
ject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or en-
force any law which shall abridge the privileges or immunities of
citizens of the United States; nor shali any State deprive any per-
son of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of
the laws.
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CERTIFICATE OF SERVICE
I certify that I am over the age of 18 years, a citizen of the United
States, a member of the Bar of this Court, and not a party to the
within cause. My business address is 870 Market Street, Suite 469,
San Francisco, CA 94102. On August Il, 1987, I served the within
PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF APPEAL OF CALIFORNIA, FIRST APPELLATE DIS-
TRICT on the respondent in said cause, by placing three true
copies thereof, enclosed in a sealed envelope with first-class post-
age thereon fully prepaid, in the United States mail at San Fran-
cisco, California, addressed to respondent BART’s counsel as
follows:
MALCOLM BARRETT, ESQ.
THOMAS JACKSON, ESQ.
JAMES W. ROSENQUIST, ESQ.
BAY AREA RAPID TRANSIT DISTRICT
Legal Department
800 Madison Street
Oakland, CA 94607
I declare under penalty of perjury that the foregoing is true and
correct, and was executed on August Il, 1987, at San Francisco,
California.
Louis A. Highman
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.