*1 Dist., July Two. No. 19582. Fourth Div. 1980.] [Civ. ASSOCIATION,
CALIFORNIA MANUFACTURERS Plaintiff v. Appellant, al., et
INDUSTRIAL WELFARE COMMISSION Defendants and Appellants.
Counsel
Gibson, Crutcher, Dunn Carr, Jr., & Willard Ristau, Z. Kenneth E. Jr., and Dennis A. Gladwell for Plaintiff and Appellant.
Kahn Kahn, Mitchell, & Jan L. Farley, & Richard Silberberg Knupp, Mosk, Brobeck, M. Harrison, Gaskill, & Jean Phleger C. James L. Meeder, Littler, Mendelson, Fastiff & Millman, Tichy, Robert F. Jr., W. Lloyd and Richard Aubry, W. Smith as Amici Curiae on behalf of Plaintiff and Appellant.
Evelle J. Younger General, George Deukmejian, Attorneys Melvin General, R. Segal, Deputy Attorney Defendants Appellants.
Christine C. Curtis and Peter H. Weiner as Amici Curiae on behalf of Defendants and Appellants.
Opinion
MORRIS, J. The CaliforniaManufacturers (association), Association representing more than 500 private from a employers, appeals judgment association’s denying petition for a writ of mandate which it sought (com- invalidate four orders of the Industrial Welfare Commission mission). The hours, orders challenged and con- regulate wages, ditions of employment in the industries: Order following 1-76 regulates the manufacturing order 3-76 industry; regulates canning, freezing, and preserving technical, order 4-76 industry; regulates professional, *8 mechanical, clerical, order 8-76 regulates similar and occupations; and industries after harvest. handling products orders, contending the
The association seeks to invalidate aforesaid (1) investigation required by failed conduct the that: the commission boards; (2) the the wage Labor Code sectiоn 1178 prior establishing as Labor do include statements of basis adequate required orders 1177; the Labor (3) are National Code section the orders preempted law, (4) wages; Relations labor as to minimum except Act federal Safety the Occupational commission failed to consult California and Health as Labor Code required by Standards Board (Cal/OSHA) has regulated section areas in which exclusive Cal/OSHA (5) the with the California jurisdiction; comply commission failed Act; (6) commission’s failure to Environmental Control the Quality treat all constitutes a denial of agreements collective bargaining equally protection of law. equal the Investigation
I. heard, the commission this court held that When this was first appeal Code section Labor required by had failed to conduct the investigation hours, and the boards to consider prior wage wages, to calling conditions, the order and denying and the working judgment upholding granted Court Supreme the was reversed. California petition hearing. Hotel & Motel
Thereafter, the Court decided Supreme California (1979) 25 Assn. Industrial Com. Cal.Rptr. v. Cal.3d 200 [157 Welfare of order 31], validity 599 P.2d in which court considered 5-76, had been is- to the which housekeeping industry, relating public a result of herein and as at the orders considered sued the same time as Cali- its opinion to the issuаnce Subsequent similar proceedings. Assn., this & Court retransferred Hotel Motel Supreme fornia opinion. in the light cause to this court for reconsideration Assn, Motel examined commis- Hotel & court In California of the history of the 1178 in the light sion’s under section duty “In as sum- and concluded follows: commission’s statutory authority commission to authority extended mary, Legislature hours, of all employees, conditions working wages, determine stated. Code otherwise to the Labor unless statutory references are 1 All *9 104 minors,
men as well as women and outside except salesmen. But before extend, amend, commission could update, or change, repeal, orders, rules, othewise its or which modify previous policies, regulations, minors, covered women and only to exercise its extended authority, Legislature required the commission to undertake a full review of such orders, rules, or The an ur- regulations, policies. Legislature perceived commission to do so ‘forthwith.’ These three need for gent commission, legislative pronouncements relieved the in the together instance, present under section meeting any separate requirement hours, 1178 that the commission or ‘investigate wages, find’ working conditions were Order 5-76 is the inadequate prejudicial. of the product 1973-1974 mandate in section Thе 1173.17 commission did not (California the order violation of section 1178.” promulgate Com., Hotel & Motel Assn. v. Industrial 25 Cal.3d supra, Welfare 200, added.) 209. Italics 1-76, 3-76,
Orders 4-76 and 8-76 were adopted also to the pursuant Therefore, 1973-1974 deci- legislative Supreme mandate. Court’s sion resolves the issue before this court in favor of the investigation sufficiency for of these orders. The associ- investigation purposes ation asks this court to issue an on advisory opinion provide guidance the issue of what constitutes a section proper 1178 fu- investigation ture orders. This we decline to do.
II. Statements of Basis Assn, Hotel & Motel provides also some for the guidance California determination of the statements of basis adequacy pursuant section which provides that “Each order of the commission shall include a statement as to the basis which the order is upon predicated and shall be concurred in a commissioners.” by majority Assn, Hotel & Motel
In the Supreme Court held that the California statements of basis initially the commission re- promulgated by spect to its 1976 orders were under inadequate section 1177. The court outlined the of the statement purposes of basis and defined the standard by which a statement of basis is to be was re- judged. judgment versed with directions trial court to issue a writ of mandate by superior 17 “Anearlier Order 5-74 issued in March of 1974 was invalidated court. (See 71, 159, (1975) Henning (CCH) v. Industrial Commission 76 Lab. Cas. Welfare 639; Ct, (S.F. 674671).)” p. Wage Super. Hour Cases 225 & No. [¶] *10 with the action consistent to take further the commission compelling In order pre- the finality opinion. within 120 opinion, days should remain that order 5-76 serve the status the court ordered quo, in the statement of basis. correction of deficiencies” operative “pending Com., v. Industrial 25 supra, Hotel & Motel Assn. (California Welfare 200, 215-216.) Cal.3d of the instant pro-
With to the orders which are the respect subject were that the statements of basis the trial court held initially ceeding, However, writ mandate invalidating instead of a inadequate. issuing orders, the matter back to the the retained and sent jurisdiction court statements of the with directions to and submit new prepare commission Otherwise, under the as- the trial court denied the relief sought basis.2 sociation’s for writ of mandate. petition
In directive, obedience to the court’s the commission issued new 29, 1977, statements of basis on April with to these orders. The respect trial court determined that the new statements of basis were adequate complied section 16 except section to eleva- (relating tors) of each order. The petition for writ of mandate was denied except as to section as to which petition the wаs and the commis- granted, sion was ordered to vacate and rescind section 16 of each of the four orders. basis,
We now examine the new the standard statements of applying Hotel & Motel Assn. enunciated the by Supreme Court California Assn, that a Hotel & Motel Court noted in Supreme California statement of basis serves several functions. It satisfies the legislative review; mandate; it it facilitates meaningful judicial subjects agency pub- action to more informed scrutiny by Legislature, regulated reasonable, lic, others; it induces action that is rather than agency into predictability it introduces an element arbitrary capricious; confidence by pro- the administrative and it stimulates process; public decision making. rational moting reality appearance Com., Motel Assn. v. Industrial supra, Hotel & (California Welfare 200, 210-211.) Cal.3d anticipated procedure the trial court in effect later procedure 2 The followed Assn., wit, prepara- &
adopted by Supreme Court in Hotel Motel California already support tion of new statements of basis the commission to the orders promulgated. in promulgat- a function legislative exercises Because the commission However, review. orders, a limited the courts exercise its ing this of regularity, a presumption аdministrative actions “Although enjoy action from effective judicial immunize agency does not presumption first, did the will ask three questions: court reviewing A review. second, did the authority; of its scope delegated act within agency third, action reason- was the agency fair procedures; agency employ not substitute its court will third inquiry, reviewing able. Under the basis of an on the agency for that of the independent policy judgment *11 action unless will the uphold agency de novo. A court trial independent support. in lacking evidentiary or capricious, the action is arbitrary, (Id., 212.) at p. [Fns. omitted].” considerations, the stan-
In the Court defined Supreme of these light basis section required by the statement of dard which to evaluate by 1177, as follows: factual, founda-
(1) the and legal, policy The statement should reflect taken; (2) adopted show that the order tions for the action it must the or presented the material reasonably supported by gathered proceed- the board wage its own commission—through investigations, it (3) it must show that is reasona- and the ings, public hearings—and Hotel & (California statute. enabling related to the of bly purposes Com., 200, 213.) 25 Cal.3d supra, Motel Assn. v. Industrial Welfare fact; it is of findings is not the equivalent The statement of basis what it did did. the commission why of how and explanation an simply (Ibid.) issuеs, must dem-
“If turn on factual the statement terms of order for the factual in the administrative record support onstrate reasonable hand, turn If, the terms of the order on determination. on the other alternatives, choices, or predictions an assessment of risks or policy the statement of basis must show how economic or social consequences, interests and how resolution the commission resolved conflicting classes of in- among led If an order differentiates order chosen. must show dustries, the statement of basis employers, employees, the administra- are reasonably supported by that the distinctions drawn of the purposes enabling tive and are related to reasonably record (Id., 214.) p. statute.” at
The association’s attack on the statements of basis is essentially statements, (a) directed at two the state- aspects general namely, ments do not contain an of the commission’s “own investi- analysis gation” conditions 1975 or working including investigation particular of each and problems industry separately; (b) the statements do not show how the orders are “demanded” health and welfare of male employees.
A. The Commission’s “Own Investigation”
The contentions directed at the commission’s failure to set forth find- based ings upon its “own is an investigation” attempt to relitigate Hotel & Motel issue Assn. resolved Court Supreme California held that the effect of the mandate legislative extending authority hours, of the commission to determine the condi- wages, working 1171), tions to men (§ a full review requiring of all rules existing regulations, policies prior (§ 1173) to extensions was relieve *12 commission, the orders, to the respect of meeting any sepa- requirement rate under section 1178 that the commission “investigate and find” that hours or wages, conditions were working inadequate or Hotel & (California Motel Assn. v. Industrial Welfare prejudicial. Com., 200, 209.) 25 Cal.3d supra, commission, been relieved the having of of obligation meeting 1178, under section the “in-
any separate requirement, that commission hours, and find” that were vestigate wages, or conditions working inadequate prejudicial, then be to set forth may required findings based a upon such separate investigation.
B. Orders “Demanded” Health and Male by Employees Welfare of
The association’s contentions directed at the failure the state- of ments to show the how orders are “demanded” the health and by welfare of male the of the employees ignore development historical commission and the of section the commis- provisions extending men, sion’s to include the authority section requiring “rules, full commission to undertake а review and to its update regula- tions, and to the extent found be policies the commission to by hours, to and reasonable and work- necessary provide adequate wages, for all in the modern conditions employees ing appropriate society.” (Italics added.)
It seems obvious the of that the this man- light legislative history imposed date the commission the upon obligation make primary policy protections decision either extend men or eliminate them for women. the
Clearly, legislation preclude did not the commission’s consider- ation of at the produced evidence the affect any hearings might determination, or determination policy change previous regarding However, the factual foundation for the burden of order. factual no em- demonstrating prior protections are for longer appropriate in a modern contends that ployees society should be on who party conditions have changed.
We turn again to standard set forth Court Supreme of the section 1177. required evaluation statement basis Where the terms of turn statement of policy the order on choices the basis would be a statement an or- supporting somewhat different from “If der based on a new factual determination. terms primarily issuеs, turn must reasonable order on factual the statement demonstrate determinations. If, the administrative record for factual support choices, hand, an as- on the other the terms turn on policy order alternatives, or economic or social sessment risks or predictions of how the commission the statement basis must show consequences, resolution led to the order resolved interests and how that conflicting Com., Motel Assn. v. Industrial chosen.” Hotel & (California Welfare *13 200, added.) 214. 25 Cal.3d Italics supra, em- this subject proceeding basis which are the The statements of did turn on the orders the terms of a degree that to substantial phasize to include choice, i.e., protections extend existing a whether to policy found necessary heretofore the protections or to eliminate men women. (42 Act of 1964 Civil Rights so because the
This was necessarily women. men and treatment of 2000e-2) requires equal U.S.C.A. § tra- subjective assumptions was to eliminate purpose congressional do women to ability conceptions regarding stereotyped ditional & Telegraph Bell (See Telephone Weeks v. Southern work. particular 228; v. Southern 1969) F.2d (5th Cir. 408 Company Pacific Rosenfeld be- 1219.) in treatment Difference 1971) 444 F.2d (9th Cir. Company here the type women, protective legislation including tween men and issuе, not based bona fide upon occupational consti- qualifications Moreover, tutes unlawful discrimination. based sex in exceptions upon construed, measuring job are to be capacity narrowly the burden of facts to v. Bor- proving support an is on the proponent. (Bujel exception Stores, man Food (E.D.Mich. 1974) Inc. 141; 384 F.Supp. v. Rosenfeld Southern Company, supra, 1219.) F.2d Pacific law, In view of this fundamental in the the association’s con- change tention that the statements fail to explain the need for the orders in terms of instead, conditions in working 1975 or but rely on what the commission “found” in previous has no merit. With re- years to the spect commission’s use of the that it “continues language to find” certain exist, facts or conditions to the trial court determined that such finding review, consistent with there been a full having that the review well may reflect those facts and conditions have not since changed orders. previous We The mere fact agree.
commission continued exist, to find a fact or condition to rather than time, it for the finding first does not invalidate the factual basis for the order. Absent a of a bona fide showing basis for between discriminating women, men and or that the health and welfare of women no de- longer mand the standard order, conditions contained in the the commission could resolve the justifiably interests conflicting the terms by extending of the order to apply men.
The association argues that the statements fail to concern themselves with the particular problems of each industry because each separately, of the four statements of basis are identical. As the superior court not- ed, this is because in the particulars in which the statements of basis are identical, so are the orders. The repetitiveness of the orders appears be the result that, of the fact in the distinction, absence of grounds for fairness and equal treatment require same regulations for all indus- tries with respect to basic conditions of In the employment. absence of *14 grounds for treatment, different the material that supports an order in one industry well may an support order in another different in- identical Assn, The dustry. issue under the Hotel & Motel test California whether the statement shows that the order is supported reasonably the material gathered presented commission, to the and that it is related reasonably Moreover, to the statutory purpose. the association has failed to point to any differences in the industries that would re- quire different treatment in any area with respect to which the commission has not diffеrentiated. sections of the statements specific
We now turn to consideration of are which the association contends statements inadequate. as to Section 1—Applicability. 1. is that the to men
The this section order shall apply substance of children, as for listed except exceptions. as well women of the statements on the portion The association this objects that that the health proves that it does describe evidence ground be included in they and welfare of male demand employees in conditions of labor contained the order. standard this be directed The trial stated that should objection court correctly as to than to general applicability. Surely at conditions rather specific for in- to state the general legal necessity it is sufficient applicability (See Act Civil of 1964 Rights men in commission’s order. cluding su- v. Southern (42 Company, 2000e-2); U.S.C.A. § Pacific Rosenfeld 1219.) 444 F.2d pra, conditions,
Moreover, a threshold specific principle in examining 1964, women Civil Act of By Rights must be observed: reason v. Southern Pa- (See on with men. equal are now an footing Rosenfeld Stores, v. Borman Food 1219; Bujel 444 F.2d Company, supra, cific Inc., 141.) this fundamental change Because of supra, F.Supp. law, in the orders without a including for men there is justification re- welfarе of male just employees that the health and finding separate to be continue is to insure women would quire it. That justification that the health the factual basis where the statement reflects protected it. employees require and welfare of women resolved show how the commission are sufficient to statements orders, as op- standards existing conflicting extending interests by found where those orders are or removal of orders posed dilution of women protection employees. for the necessary Work. and Days Section 3—Hours 2. hours work maximum (A) that the provides subsection
Section week, and a half with time 40-hour an 8-hour day, adults shall be *15 circumstances. special time for double for overtime and
111 The a fair association concedes that this section contains expla- nation of the has maximum limitations with why commission set hour to women but the of the state- respect employees, sufficiency attacks ments with In the asserts respect to males. association particular, the offered is that labor has come to consid- only explanation organized er official any extension of the as a retreat and an eight-hour day attack on the of welfare employees.
This is a misstatement. The detail in go statements into great setting of, for, the forth and history and reasons the the reasons eight-hour day, the for requirement for the overtime after payment premiums of eight hours a and day five a days week. The statements include history of congressional action in this field. As to the provision premium for pay overtime, for the statements make it clear that such has provision be- come the device for primary enforcing limitation on maximum of observed, hours work. As the trial court it is legally a approved (See means to a Bunting Oregon (1917) end. v. legally approved 243 830, 426 U.S. 435].) L.Ed. S.Ct. set forth statements [61 wit, reasons it supporting premium to is a maximum hour pay, enforce- device; ment a of means more encouraging a means employment; of furnishing extra money enable the for services employee pay employee (See would otherwise perform. Oregon, Bunting supra, v. 426;
U.S. and see other U.S. Supreme Court cases upholding overtime legislation (1970) collected in 48 Am.Jur.2d Labor and Labor Rela- tions, 1542, 10.) fn. p. §
The provision for premium pay overtime is as reasonably applica- to men ble as to and is women a fair resolution of a policy question. Moreover, the association does not state reason any why factual material does support not extension these to male requirements employees. (B)
Section subsection week of provides fоr work not more 4-day 10 hours than under certain This alternative per day circumstances. available if only agree. two-thirds affected employees
The association an approve seems alternative to eight-hour minimum, week but because orders do day five-day complains alternatives, an permit variety infinite contends “[u]n- less Commission finds that all other alternatives are not expressly these consistent the health welfare alternatives employees, be should available.” equally *16 fact al-
In this the association that making argument, ignores any that the health and exception. ternative is an The basic determination work, hours and that welfare of maximum employees require has requirement week is with that eight-hour day, consistent five-day made, a ex- and the statements of basis sufficient already provide been choice, and demonstrate reasonable planation of the commission’s for It was not necessary in the record for that determination. support alternative was not au- explain every statements to conceivable why thorized; was to demonstrate that it sufficient for the statements was was alternative which selected reasonable. Time 5—Reporting Pay.
3. Section that an exceptions, employee with certain prоvides, This section do, work, a work to day’s for but is half or less of reports who given The state- minimum number hours. paid shall be at least stated taken positions by employers ments to describe the go opposing on boards, basis for the commis- others and the wage on employees opposing positions. sion’s resolution of these no re- the stated basis has on the ground The association objects considerations. lationship to health prop- basis (encouraging that the stated
We with the trial court agree welfare of the related to the reasonably er notice and is scheduling) en- female) (both purpose and thus to male and employees proper for enforcing device It is an appropriate statute. abling minimum pay require- hours and with maximum consistent scheduling ments. 7—Records.
4. Section records, periodi- certain to employers keep requires This section statement. wage an itemized to furnish employees cally required is already the information most of note that The statements to employers that requiring set forth 1174 and section kept by be reasonable and of these records of certain employees copies provide welfare. for the necessary employees’ re- this ground on the object appеars
The association or welfare. health employees’ related is not quirement *17 court “that require The trial found welfare does employee wage data in... with IRS help dealings be furnished... to employee and FTB so and disputes that time employer employee] [and] [between be more this can might resolved.” Since be viewed readily requirement as a for we device and hour that the wage requirements, agree enforcing show statements this to be related to the requirement pur- reasonably of the poses statute. enabling Shortage Breakage.
5. Section 8—Cash and This section states when an charged be for cash short- employee may and age breakage.
The section, statements describe historical of the ex- development plain the basis for special imposing accountability by employees having cash, exclusive personal control of and conclude with the policy statement that the commission found it for inappropriate the employee to be made insurer normal employer’s business losses. again
The association that the reasons do not to objects relate health and welfare considerations. the associ- They clearly Surely do. ation does not it suggest that would be “consistent” with thе employees’
health or welfare to to be for the permit charged normal employee business, shortages breakages employee where the does Moreover, have a to control. reim- special duty respect required bursements affect minimum directly wage provisions. Equipment.
6. Section 9—Uniforms uniforms, This section states when an must tools furnish employer forth equipment sets the historical basis. The association to the extension men on the objects ground been had used to their own they uniforms. furnishing The statements make it clear that this order upon is based the policy choice to extend the to male because a requirement employees, contrary provision would be as women been discriminatory years who have furnished with Subsection B was to permit employ- uniforms. amended tools, ers to crafts their require persons engaged own provide has where that been on condition that their customary, pay adequate. how the resolved conflict- statements show commission adequately interests and how that resolution led to the orders chosen. ing Lodging. Section 10—Meals and 7. *18 and that when the the employer employees
The section states be the part wage, have in that meals and shall of agreed writing lodging shall the meals to be the charged against wage value of the and lodging in this not the amount section. specified exceed section; re- The the that the history statements describe show State is to of a written quirement comply agreement California (1976) 340, Restaurant Assn. Whitlow v. 58 347 Cal.App.3d [129 and conclude “that meals Cal.Rptr. positions state the 824];3 conflicting to may accept and are items of real value which elect employees lodging limits”; in refer the protective finally specific lieu cash within and to in the be imposed. evidence relied on limits to computing the and fac- the reflects both clearly legal This statements portion the and reasonably supported tual taken basis for action material presented.
8. Periods. Section 11—Meal to pro-
This states the circumstances requiring employer section the meal shall be vide at least a 30-minute meal when period, period worked, time when must be eating place pro- included in the and an of the section commencing vided. The statements describe history been the same since substantially provide that it has for under certain circumstances. exemptions this that the basis for on the ground association objects section, been a there had such previously section is the fact that simply to necessary employees’ it is showing rather an independent than health and welfare. thereof, аgent person, or officer or other provides: employer, 450 “No or 3 Section his em- any applicant employment patronize or compel employee,
shall or coerce thing value.” person, purchase any ployer, any other in the Whitlow, 340, 348, supra, Cal.App.3d Assn. v. In State Restaurant California implied of the commission to authorize power that under this section the court held employees a meals employers industry restaurant to take credit for furnished in the against wage due would be limited to situations employees minimum otherwise prior voluntary employ- payment by specific was authorized which such manner of ee consent. found, The trial court that, and we “A lesson agree, taught by exper- ience since 1947 concerning minute thirty period, [lunch] mention the fact that no great in mankind’s change has been makeup noted in the past thirty years would indicate he now needs either more or less time to eat than he did both an thirty years ago provide adequate basis.”
Where the evidence order, clearly supports an existing where the most basic demands of an obvious, health and welfare are employee’s so the statement of basis describing history confirming finding is sufficient to permit meaningful judicial review. When stating ob- vious little detail is required.
9. Section 12(cid:127)—Rest Periods.
This section provides net, a mandatory 10-minute rest for ev- period work, 4 hours ery without wage deductions.
The section, statements trace history in commencing and reaffirm that is reasonable and requirement minimal. They state the views and opposing how the differences were resolved.
Again the association because the objects commission refers to earlier rather than findings to its own recent solely and investigation findings. Employee welfare demands in this area are so obvious that a state- ment to that effect is not needed. Just as the consumption process humankind, essential to so is the process, elimination and these needs have not greatly the last 40 With to the changed years. respect length the rest it is sufficient period, to state that has experience shown that 10 minutes is reasonable. Facilities, and Resting Rooms and
10. Section 13—Change Section 14—Seats.
In both of these sections the statements set forth the past history, and how differences were resolved. note experience, objections They that it is not rare for suffer which a a worker to discomfort temporary brief rest will overcome the worker return to work so that for may further, of both and that humane advantage employer employee, treatment of a sick while unwell or for employee temporаrily waiting home is demanded the welfare of the transportation employee. seats, to find” that hu- to the commission “continues respect
With requires they that be employees mane consideration for the welfare sit their work between operations. allowed to at were reveal employer proposals incorporated The statements this section.
11. Section 15—Temperature. to subject minimum maximum temperatures The orders specify history, trace the the nature of work and weather. The statements standards,” and conclude that accord to recognition “industry-wide to conditions tolerable has a make management responsibility working contempo- were temperatures adapted The employees. specified (60 degrees). rary energy guidelines degrees no on the basis that rea- object solely association seems sons were stated for the particular temperatures. supported and reasonably reasons are stated policy
Both factual and It is material, statutory purpose. related reasonably al- find all other expressly that the statements should necessary *20 of employees. and welfare with the health ternatives are not consistent 12. Section 16—Elevators. invalidated
This sectiоn was found insufficient the order the has cross-appealed. trial court. The commission
The as to this state subject simply commission’s statements basis that three “could” steps more than climbing descending flights The be the health and welfare of trial general employees. detrimental de- court found that this was and not reflective reasoned speculative cision making.
The commission contends that since this section has existed since women, that as to and since no evidence the structure of physical the not women has should be abandoned. changed, protection is This is an area which health or welfare interest obvious least, it is that has occurred. At medical change where clear no benefits exercise has respect undergone change. thought We the statement is and not reflective of rea- agree speculative that soned decision making.
13. Section 17—Lifting. The are history conflicting posi- statements complete, relating tions, and forth for the taken. setting reasons action is to association’s of the commis objection jurisdiction sion. The association claims this is that a matter within the solely jurisdiction Occupational and Health Standards Board Safety A). (Cal/OSH
The statements of basis reflect the commission asked Cal/ OSHA and told was thаt the board has no this plans area. regulate There no defect in the statements of basis as to this provision. The ju- risdictional will issue be considered separately.
14. Summary. We conclude that as to section except 16 the statements of basis ade- factual, reflect the quately legal foundations for the actions policy taken. The statements show orders are adopted support- reasonably ed orders, material gathered, including previous material evidence at presented wage board and the proceedings, public hearings.
In those issues, instances where the order turned factual on state- record; ments demonstrate in the support and where the order depended choices, risks, alternatives, on policy statements discuss the econom- *21 ic and social where and the consequences, appropriate, show how com- mission the Hotel resolved conflicts in the (California adopting orders. Com., Motel & Assn. v. Industrial 200, 25 Cal.3d supra, Welfare 213-214.)
Certain sections of the statements differentiate the different among industries covered. For order 3-76 example, applying the canning, and freezing preserving industry, provides for conditions when an em- in work to 72 hours 7 In case ployee may up consecutive each the days. statements show “the distinctions drawn supported are reasonably by the administrative record are and related to the reasonably purposes (Id., 214.) at Since the association has not statute.” p. enabling will a it are we not undertake inadequate,
cited areas contends specific detailed discussion of the differences. Preemption
III. Federal The contends that the orders are the preempted by association Labor Act federal labor policy. National Relations In ap- of this contention the association cites numerous cases support the doctrine to frustrate state laws preemption affecting plying at unions or collective collective and directed bargaining, regulating cites, as best the expression activities. The association the of bargaining context, within the labor law the of federal federal policy preemption Cox, (1972) Law Revisited statement from Labor following Preemption clearly L. 1352: “These decisions estab- Harv. Rev. lished alone procedures govern law federal federal activities organizational in relation obligations employers of of in collec- employer employee representatives employees, of tive bargaining,... labor poliсy An the true character of the national appreciation
“...
of
a
in providing
legal
in
NLRA and LMRA indicates that
expressed
and the con-
bargaining,
framework for union
collective
organization,
a
protection,
struck
balance of
Congress
duct
labor disputes,
in
to union
collective
respect
organization,
and laissez faire
prohibition,
be
state could also
upset
and labor
that would
bargaining,
disputes
if
views concerning
its
resting upon
statutes or rules
decision
enforce
(Italics added.)
interests.”
accommodation
same
There is
question.
The
the orders here
authorities are
inapposite
of em-
activities
orders to regulate organizational
no
these
attempt
activities.
collective bargaining
or of
ployees
employer-employee
(NLRA)
Act
which
Labor Relations
National
provision
in 29 United
is contained
created
act
describes
entitlement
*22
“Employ-
which
as follows:
provides
Annotated section 157
States Code
form,
to
or assist labor
join,
right
self-organization,
ees
have the
to
shall
of their
bargain collectively through representatives
to
organizations,
pur-
activities for the
to
in other concerted
choosing,
engage
own
119
aid or
or other mutual
pose
protection,
of collective bargaining
all of such activities ex-
to refrain from
or
shall also have
right
any
be affected
an
agreement
to the extent
that such
cept
right may
as a condition of
organization
employ-
in a labor
requiring membership
158(a)(3)
this title.”
ment as authorized in section
of
en-
section
to
employees
right
One basic
of this
purpose
giving
was
for the
of collective
purpose
bargaining
in concerted activities
gage
states,
to
which affect interstate
employment
as to
relations
prevent
commerce,
from
otherwise lawful activities
aid unionization
treating
were undertaken by many
as an
because
illegal conspiracy merely
they
(Auto.
Workers v. Wis. Board
(1949) 336
in
persons acting
concert.
245,
651, 665,
other
516],
258
S.Ct.
overruled on
U.S.
L.Ed.
69
[93
Rel.
(1976)
grounds Machinists v. Wisconsin
Comm’n.
Emp.
U.S. 132
L.Ed.2d
However, it there is in the act to that was intended to suggest nothing the states minimum divest of set condition authority working requirements.
In a In- granting writ of mandate to the State of compel Department dustrial Relations to enforce certain orders minimum regulating wages, maximum hours and of women and minor working agricul- conditions workers, the argument tural Court of an of federal Appeal considering had this regulation “State of hours and work- preemption say: wages, conditions, minors, such ing affecting women and has been particulаrly a life feature American that this widely long-established argu- of a ment comes as distinct Doubtless it would arouse surprise. equal in the halls a surprise Preemption of the federal Congress. primarily matter of intent. all the congressional components While not clauses, contain or ‘comprehensive’ federal noninterference plan saving several such clauses are so as to foreclose prominent any possibility clause, intent. One such which misapprehensions congressional touching Labor Act ever its enact- part has been a the Fair Standards since (29 U.S.C.A., 218): ‘No of this provision ment declares § noncompliance any or thereunder excuse any order shall chapter a minimum or State ordinance municipal establishing Federal law or under this wage chapter than the minimum established higher wage workweek established lower than the maximum maximum workweek ’ Rights was as the Civil part this Another enacted chapter. under . .. U.S.C.A., 2000e (Public Law 88-352 Stat. Act of 1964. § [78 253] employers indulg- law from et A basic of that provision prohibits seq.) *23 120 in ‘unlawful practices’ by discriminating against
ing
employment
race, color,
(42
sex or national origin.
because of
employees
religion,
U.S.C.A.,
2000e-2.) It
a
to shelter
purpose
carries a clause evincing
§
(42 U.S.C.A.,
2000e-7):
consistent
owed under state law
obligations
§
to
or relieve
exempt
any
in this
shall be deemed
‘Nothing
subchapter
or punishment provided by any
from
person
any liability, duty, penalty,
State,
subdivision of a
political
or future law of
State or
present
any
permit
doing
law which
to
purports
require
other than
such
any
this
under
employment practice
of
act which would be an unlawful
any
(Rivera v. Division
Industrial
subchapter.’
omitted.]”
[Fns.
of
Welfare
576,
(1968)
Cal.Rptr. 739].)
265
602-603
Cal.App.2d
[71
Moreover,
the NLRA forms a
of a
part
compre-
argument
states of all
to
power
regulate
hensive
to divest
plan designed
(See
Diego
decisions.
San
conditions of labor is
contrary
judicial
236, 239-241
L.Ed.2d
(1959) 359 U.S.
Unions v. Garmon
[3
779-781,
While a specific regulation reserved federal leg- of regulation the area overlap may conceivably (see United Air with such regulation conflict may actually islation Lines, (1963) 211 729 Cal.App.2d Com. Industrial Inc. v. [28 Welfare reason of automatically simply does not occur 238]), this Cal.Rptr applicable previously of employees regulations an extension to male women and minors. Act to suggest federal Civil Rights in the nothing
There is certainly wages, minimum fixing state abrogate legislation intent to congressional (Rivera Division Indus- v. for women. conditions working hours and 576, 604.) Cal.App.2d Welfare, supra, trial and unfair activities of union state regulation Even in the sphere the exis- because of merely does not result preemption labor practices, v. Carpenters In Farmer laws. other federal the NLRA and tence of 338, 348, 1056], S.Ct. L.Ed.2d 296-297 (1977) 430 U.S. [51 the pre-emption stated, apply have refused “We Court Supreme Gar- scope fall within would that otherwise to activity doctrine Labor of the concern a merely peripheral ‘was if that activity mon so rooted deeply touched interests Act... Relations Management [or] con- that, compelling in the absence responsibility local feeling deprived had direction, Congress not infer we could gressional to act.’” power States
121 which are the in the orders contained It that the regulation is clear state regula- of scope permissible are within of this lawsuit subject to regulate state’s power in on the Court Supreme passing tion. under broad authority “States possess had this to say: alien laborers relationship protect the employment to regulate their police powers laws, and other wage minimum the State. Child labor workers within and workmen’s laws, safety, health and affecting occupational laws attempt California’s a few examples. laws are compensation only California employers 2805(a) knowing employment by prohibit § States, let alone in the lawful residence United not entitled to рersons here, power of such police within the mainstream to work certainly times high unemployment aliens in illegal regulation. Employment il- acceptance aliens of jobs; by citizens and admitted deprives legally and working terms as to wages aliens of on substandard legal jobs conditions of can scales and depress wage working conditions seriously aliens; aliens employment illegal citizens and admitted legally the effectiveness of labor unions.” under such conditions can diminish 49, (De (1976) 424 U.S. 356-357 L.Ed.2d Canas v. Bica [47 933].) 96 S.Ct.
We conclude that these orders are not automatically preempted by Moreover, the existence of of the federal laws or cited. any regulations the association failed to that there demonstrate the trial court is any in the orders in conflict with federal specific provision regulation. Judg- court, from the set forth in the brief filed in this ing argument association’s contention is that the mere existence of the federal statutes that, state the next line of attack seems to preempts regulation. Failing be that the mere existence of collective between bargaining agreements some the association and their em- employers represented by ousts ployees the state of minimum jurisdiction regulate wages conditions of for the covered such employment, only employees by thousands, collective but for the mil- bargaining agreements perhaps lions of workers not such covered by agreements.
The association cites no such a authority divestiture and sweeping with, none exists. If it is contended that is in conflict any provision law, therefore preempted federal by by bargaining agreement pro- law, tected federal it by is incumbent the association to upon demonstrate this evidence in the trial court and citation to such material in this court. This the association has failed to do. Overlapping
IV. Jurisdiction With Cal/OSHA meet The association contends commission failed to *25 (1) in to consult the of section 1173 that it failed requirements properly orders; (2) its its stat- delegated with to prior implementing Cal/OSHA staff; (3) its in areas in which regulated to utory responsibility has exclusive jurisdiction. Cal/OSHA in as follows: “Before pertinent part adopting any
Section states commission, rules, or the shall consult with the policies, new regulations, and Health Standards [Occupational Safety Industrial Board Safety matters where the subject respec- to determine those areas Board] the and the Industrial Board Safety tive commission jurisdiction Industrial In case of such the overlap. overlapping jurisdiction, rules, or shall have exclusive jurisdiction, regulations, Board Safety of the commission on the same have no force effect.” policies subject with was the association contends that consultation First, Cal/OSHA of the board and because there was one inadequate only joint meeting mem- the commission. Additional consultation was carried on between bers the two The association that this argues staffs of agencies. of the section as requirements interpreted by does not satisfy v. Industrial Commission the State Henning court Welfare 53,639. (1975) (CCH) ¶ In the court Henning 76 Lab. Cas. California its staff the responsibil- held the commission could not to delegate that it could not its delegate it under section 1173. We that agree ities had However, advice the commis- given we with the responsibilities. agree what that the statute does not prescribe General Attorney sion by mandate any specific procedure. consultation should take or form held one meeting commission and board The evidence is that the written communication. staff and thereafter consulted through As the nature of the case required. have been all that That appears see, ju- to direct our attention any the association has failed we will frequent overlapping jurisdiction, Absent risdictional conflict. waste of time. Confirmation session could be a consultation formal or staff contact. written communication could be made easily through were Moreover, reviewed and extended since the regulations being areas not previously subject in the sense of regulating not “new” to extension of regulations (except respect commission regulation was simply required. consultation to male extensive employees), man- with the complied statutory the commission trial court found that that finding. to support date and there is evidence ample acted incorrectly next the commission argues The association area not specifically it in any could assumption legislate upon whereas, that in the statute provides covered the board’s regulations, have exclusive board shall case of overlapping jurisdiction jurisdiction. limit the section 1173 to commis- interprets the commission
Clearly asserted in cases where the board has sion’s jurisdiction only *26 cleared certain regulations The fact that the commission jurisdiction. similar with the board determine that the board did not have a regu- to section 1173 nullifies lation the commission’s view that emphasizes with the rules when conflict regulations they commission only board’s regulations. contends. The California
This is not an erroneous view as association
the commission’s interpretation
Court has
Supreme
recently adopted
“IWC retains
jurisdiction
regulate
section 1173 and concluded that
in the
employees
related to the health and
working
safety
conditions
or
with existing
regulations
absence of
actual conflict
any
Cal/OSHA
(1980)
(Industrial
27 Cal.3d
Com. v.
Court
Superior
policy.”
Welfare
690,
331,
V. With the California Act Quality
Environmental the commission failed to next contends that The association (EIR) conduct an Impact Report or file an Environmental prepare Code, title Administrative as California investigation required by initial 15083,4 a declaration. filing negative section prior Code, “(c) provides: also Contents. title section 15083 Administrative 4 California Negative Declaration shall include: pro- including commonly used name for the a “(1) description project; of the A brief ject any; if project proponent; the name of the “(2) project The location of environment; significant effect on the a finding project will not have “(3) that the A documenting support reasons to Study “(4) copy of the Initial An attached finding. failed to The association also commission argues comply Public Resources Code section 21108 filing with the requirement of the prior promulgation its notice of determination one only day orders. held that these contentions were barred superior court Resources Code section
statute of limitations contained in Public 21167. We agree. as pertinent part
Public Code section 21167 provides Resources that a “(a) public agency An or proceeding alleging follows: action ef- have a significant which approved project may out or has carrying the project determined whether fect on the environment without having shall be commenced effect on the environment have a may significant out or approve decision to carry within 180 days public agency’s formal decision or, without a if a is undertaken project project, of the project. within 180 after commencement days the public agency, has im- that a “(b) public agency proceeding alleging action or Any effect on have a significant whether a project may determined properly *27 the of filing within 30 after days be commenced the environment shall 21108 or subdivision (a) of Section the notice subdivision required by (a) of Section 21152. omission other act or that
“(e) any proceeding alleging action or Any division this of provisions with the does not сomply public agency of a the notice re- filing after the within 30 days shall be commenced (a) of Section 21108 or subdivision (a) of Section subdivision quired by 21152.” (e) (b) appli- are not and subdivisions contends that
The association negative nor the determination notice of the neither cable because limita- those statutes that valid; nullity; one is a is each declaration has determination made the has if the agency apply only tions required by investigation the undertaken law._ signifi- measures, potentially project to avoid included in the any, if “(5) Mitigation cant effects. public to the be made available Negative shall Declaration “(e) Public Review. for mem- opportunity an approved provide to is project time before with sufficient finding to the respond public bers of con- amounts to a noted, argument trial court the association’s As the of determination has filed notices if the valid only agency tention that This flies in statute apply. will 30-day declarations negative apply which that provide they clear of the statutes face of the language determined” “improperly is has (b), in where it that alleged agency (e), where it is alleged in impact there will be a significant whether statutory comply” action omission “does not that agency requirements. has this case. precisely alleged
That is what association statute, (a), the ap- It seems rather obvious that subdivision 180-day at any attempt compliance, where the without plies agency proceeds (e) be This (b) and defective. compliance alleged where apply sense, that, without proceeds also if an interpretation agency makes effort to less receive parties likely early interested are any comply, notice of the where there even an insufficient ef- action than has been fort to comply.
The trial court from held the association was barred correctly limitations. these asserting defects statute alleged 30-day determination, In view of this it is to consider whether unnecessary of commission’s orders within promulgation is a project meaning or, is, the Environmental Act if it whether the commission Quality determined the orders have a effect. properly significant would not *28 Existing
VI. Collective Treatment Bargaining Agreements treat that commission’s failure to
The association contends is and arbitrary agreements equally all collective existing bargaining be and for reason the orders should unreasonable this argues invalidated. (cover- 1-76 and 4-76 manufacturing industry)
Orders (covering technical, clerical, mechanical and similаr ing professional, Days “3. each following provision: contain occupations) Hours of Work (C), (D), (F) above,
“... as subsections this Except provided where the obligated provide pre- section shall apply employer mium rates for overtime work and to the number of wage regulate a written pursuant hours of work collective bargaining agreement who would otherwise be pro- where such covers agreement employees tected this Order.” by
A is not included in 3-76 exemption (covering freezing similar orders (industries after and 8-76 preserving industry), handling products harvest). this The stated reason for distinction is that collective bargain- (and in industries covered orders 1-76 and 4-76 ing agreements us) others while not before for provide necessary protection employees in other industries did not. A more statement of agreements complete the commission’s in this is as follows: “The Commission findings regard find, decades, continues to as it has for that certain overwork employers hours, who are in a weak to refuse to work employees position long for overtime is a means of such premium pay deterring practices, when work loads peak require while occasional permitting longer days them.
“At the same it impact imposing time is mindful of economic made other arrangements overtime on industries which have regulations The Commission is bargaining. their collective employees through represent bargaining aware that such do not agreements always strong cannot provisions and that minimal overtime power by employees It has be a trade-off for other benefits. presumed represent always its responsibility protecting employees against found that primary pro- extends to those without collective adequate bargaining overwork collective bargaining, tection. Based on the adequacy 1, 4, 6, 7, 9, 11, and 12 a provision Commission has included in Orders of collective bar- and hours premium provisions that the directing pay of basic I.W.C. provisions shall over gaining prevail agreements This served to ameliorate on Hours and Work. regulations Days were bal- in which work schedules non-conforming on industries impact the welfare of improving employees anced contract provisions this did not deem it to include necessary other The Commission ways. *29 in the 3, contracts bargaining in Order since the collective provision to the have conformed industry long canning, freezing preserving in agree- board for the was industry general I.W.C. the pattern, wage hours, who are not covered and the small number of employees ment on need the protection continue to agreements collective by bargaining the order.” are not findings sup- that these
The association fails to demonstrate fact, dods not In the association record. the administrative ported by in the form of employ- the commission discuss the evidence before even in the industries bargaining ment or collective history agreements federal out, in its As the itself points argument involved. association (25 in one agreements the bargaining numerous collective preemption, members, in evi- were admitted the which industry) of association’s are the as unique complex dence in the court “are as trial Never- his employees.” between a relationships particular employer theless, from the evidence the the association fails to demonstrate the the adequacy do not describe accurately commission’s findings in orders. by the industries covered these agreements is reasons, the court af- superior For the the judgment foregoing of Industrial court enforcement staying firmed. The order of this 3-76, 1-76, hereby and 8-76 is orders 4-76 Welfare Commission vacated.
Tamura, J., concurred. P. Acting
KAUFMAN, J. I dissent. of which invali-
I contentions each agree appellant’s several of dates the commission’s orders. Basis
Statement of the “Each order of commission Labor Code section 1177 mandates: the order is predi- basis which upon shall include statement as ” note, Court Supreme cated . . . . As the majority California (1979) 25 Cal.3d Com. Hotel & Motel Assn. Industrial Welfare v. several functions 31], 599 P.2d out pointed 210-211 Cal.Rptr. [157 basis, meaningful facilitating including be served the statement action; scrutiny by more informed enabling agency review of judicial proc- its decision-making of the agency, Legislature public reasonable, decisions; is action that its and inducing agency esses and To evidentiary support. or lacking rather than arbitrary, capricious “must show that or- statement of basis functions the these perform material gathered supported by adopted reasonably der investigations, wage its own commission—through presented *30 128
board and the proceedings, public hearings—and is related reasonably to the purposes of the (California Hotel & Motel statute.” enabling Com., Assn. v. Industrial 25 supra, Cal.3d at fn. omit- p. Welfare ted.) Statements such as have been made in the case at bench consisting primarily of unsupported conclusions and made post generalizations serve none of these purposes. been made after the Having fact facto such statements of basis had to do with nothing reasonable promoting action, agency and inasmuch as constitute they rationalizations for actions agency decision, rather than the true bases of such statements are of little value to a court nor do reviewing they promote informed scrutiny action agency and the Legislature public. The answer of the that the state- contention majority appellant’s commission, ments of basis lack reference to the facts is that “[t]he been relieved of the having meeting any separate require- obligation ment, under section that the commission ‘investigate [Lab. Code] hours, and find’ or inadequate conditions were wages, working Hotel & Motel Assn. Court in prejudicial [by Supreme California Com., v. Industrial then 209], 25 Cal.3d at supra, p. may Welfare be a separate investiga- to set forth based such required findings upon (Ante, so, however, —.) Even if that the statements of basis p. tion.” be is reason- adopted were nevertheless to “show that the order required to the commission... the material... ably supported by presented ..” and the proceedings, public hearings.. .the board through.. wage Com., Assn. v. Industrial supra, Hotel & Motel (California Welfare Motel Assn. v. In- Hotel & 213.) in Cal.3d at The court p. California Com., intended to eliminate dustrial could not have supra, Welfare ba- in the statement of to the facts requirement pertinent for reference sis, together legislative pronouncements it held that “three although instance, commission, sepa- of meeting any relieved the in the present ‘investigate 1178 that the commission rate under section requirement in- of basis was find,’” held that the statement it nevertheless also with the and deal its failure to include because of adequate, part did not (See “The commission at p. [e.g., facts. 25 Cal.3d pertinent bar- collective inadequate from adequate how it explain distinguished gaining agreements.”]) to serve inadequate pur-
In view the statements of basis are my set meet the standards forth enumerated and to poses California Com., 3d v. Industrial 25 Cal. supra, Hotel & Motel Assn. Welfare 200.
129 Code Section 1173— Labor With Consultation Cal/OSHA in “Before part: provides pertinent the Code Section 1173 of Labor shall the commission rules, policies, or regulations, new adopting any areas and determine those Board to Safety with the Industrial consult the commission respective jurisdiction where the matters subject of case such overlapping In the overlap. Board Safety the Industrial of have jurisdic- shall exclusive the Industrial Board Safety jurisdiction, the tion, the commission on same rules, or policies regulations, (Italics added.) no force or effect.” subject have the Occupa- to consult with California duty The of the commission Board) to determine (Safety and Health Board tional Standards Safеty which, therefore, to the with respect areas in which there is overlap Code, 142.3, (Lab. of the Board exclusive jurisdiction Safety §§ v. (Henning the to staff. 1173), not be commission its may delegated by (1975) 76 Lab. Industrial Commission State California Welfare (CCH) 53,639, 227.) ¶ Cas. Hour Cas. Wage The record in the bench contradiction that case at discloses without there was the and the Board meeting Safety one between commission were on December 1975. the meeting consulting parties given At advice could to their staffs func- misguided they delegate tion of in there was a ascertaining defining those areas which made no conflict The commission and the board deter- jurisdiction. mination that statutory of the areas of potential conflicting jurisdiction; was left to staffs. duty entirely
Even if it could be said that the commission and the board attempted conflict, define potential improper to the areas of an stan- jurisdictional dard was that it abundantly minutes make clear was employed. commission’s view that it was free promulgate any to regulations yet area not of whether regulated by Safety regardless Board or area within the fell Board’s After Decem- Safety jurisdiction. 9, 1975, ber conflict issues were resolved meeting jurisdictional commission’s staff orders the staff forwarding proposed Safety Board. If the stаff had no to the or- Safety objection proposed Board’s der, the commission it. A memorandum dated implement was free 8, 1976, March IWC outlines the “In area where feels procedure: any that a regulation may overlap conditions proposed covering working with the IWC should sim- safety health jurisdiction Cal/OSHA, send a draft
ply of the proposed *32 regulation Mr. Rinaldi. He will promptly IWC if their notify is in proposal conflict with an existing standard or a standard which is in process of development. . .The [¶]. IWC should feel free to promulgate where regulations has Cal/OSHA ” no proposed or existing standards. . . .
The “construction” of Labor Code section 1173 in Industrial Welfare Com. v. Court Superior (1980) 27 Cal.3d 719-725 Cal.Rptr. [166 331, 613 P.2d 579], mean that the Industrial Welfare Commission can regulate where has not promulgated conflicting regula- Cal/OSHA final, tion and, is not yet will be hopefully, before changed It finality. flies in the face of the very plain language statute and constitutes a blatant legislative revision court. At the time of the September 9, 1975, Board meeting, Safety had already regulations rest covering periods, rooms, dressing facilities, drinking washing venti- lighting, lators and elevators. Although admittedly problem a perplexing one, in view my there is no question but that many provisions commission’s orders relate to matters within the exclusive jurisdiction of the Safety Board. The problem was created and I Legislature, think it should be left Legislature resolve.
Conclusion I would reverse the judgment.
A petition for a was denied rehearing 1980. August