CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 38, Defendant and Appellant.
S.F. No. 24946
Supreme Court of California
Oct. 27, 1986.
42 Cal. 3d 810 | 230 Cal. Rptr. 856 | 726 P.2d 538
Joseph L. Alioto and Lawrence Alioto for Defendant and Appellant.
George Agnost, City Attorney, Philip S. Ward, Chief Deputy City Attorney, and Steven A. Diaz, Deputy City Attorney, for Plaintiff and Respondent.
OPINION
BROUSSARD, J.—In County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564 [214 Cal.Rptr. 424, 699 P.2d 835], certiorari denied, — U.S. — [88 L.Ed.2d 359], (hereafter County Sanitation), we held that a public employees’ strike is illegal only if it poses an imminent threat to public health or safety. (P. 592.) Our opinion specifically reserved the question whether an employer could recover damages
On March 11, 1976, defendant, Local 38 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and every other San Francisco building trades union went on strike against plaintiff city. About two weeks after the strike began, the city successfully moved for a preliminary injunction against the striking unions and their leaders. The unions appealed from this order. Before the appeal was decided, the strike settled. The Court of Appeal nevertheless retained the case as one presenting recurrent issues of public importance. (City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41, 45, fn. 2 [137 Cal.Rptr. 883] (hereafter Evankovich).)
The principal issue argued in the Evankovich appeal was whether the injunction was affected by the enactment of
Shortly before the Court of Appeal decision came down, the city filed the present action for tort damages allegedly suffered as a result of the strike. All of the unions except defendant signed consent decrees, agreeing to refrain from engaging in a strike for five years in return for dismissal from the city‘s tort action.
Defendant appealed. Before the appeal was decided, we held in County Sanitation that public employee strikes were illegal only if they endangered the public health or safety. The Court of Appeal, however, found the union collaterally estopped by the Evankovich decision from challenging the finding that the San Francisco strike was illegal. The court then relied on Pasadena to uphold the damage award, rejecting the claimed deduction for wages and salaries saved as “inequitable.”2
The petition for review presented three issues: (1) whether the union is collaterally estopped to deny the asserted illegality of the strike, (2) the availability of damages as a remedy for an illegal strike, and (3) the measure of damages. Our conclusion as to the second issue—that an illegal strike is not, in itself, a sufficient basis for the award of tort damages—is conclusive of the case. We therefore do not decide the issues of collateral estoppel or the measure of damages.
Although many states prohibit public employee strikes generally, and virtually all states prohibit such strikes under certain circumstances (see County Sanitation, 38 Cal.3d 564, 569), very few decisions discuss whether such a strike gives rise to a cause of action for damages. Pasadena appears to be the only reported appellate decision in the country upholding a damage award to a public employer in the absence of specific legislation authorizing such an award.3 We therefore begin our discussion with an analysis of that opinion.
The Pasadena Unified School District sought damages against a local teachers’ union for loss occasioned by a one-day work stoppage. The trial
With regard to the first theory, the Court of Appeal noted that all of the teachers were certificated employees working under contract. Although the contracts contained no explicit prohibition against strikes, the court reasoned that because (in its view) all such strikes would be illegal, the obligation not to strike was an implicit term of the contract. Consequently, it concluded, the allegation that the union induced the teachers to breach this term of their contracts stated a cause of action for damages.
Pasadena‘s second theory was based upon the principle that ““[t]he law of this state imposes upon everyone the duty “to abstain from injuring the person or property of another, or infringing upon any of his rights.” (
In the present case, the city does not allege a contractual relationship with the striking workers, or assert a cause of action for tortious interference with contract. The case went to the jury solely on the theory that an illegal strike was tortious per se, and that a union which conspired to strike or aided a strike was a joint tortfeasor liable for damage caused by the strike.
This theory (which cases refer to as a theory of prima facie tort), has been rejected by other jurisdictions. In Lamphere Sch. v. Lamphere Fed. of Teachers (1977) 400 Mich. 104 [252 N.W.2d 818], the Michigan Supreme
The cases involving suits by third parties injured by a strike also reject the theory of prima facie tort. Three decisions have rejected damage suits by businesses harmed by transportation workers’ strikes. (Jamur Productions Corporation v. Quill (1966) 51 Misc.2d 501 [273 N.Y.S.2d 348]; Burns Jackson Miller etc. v. Lindner (1983) 59 N.Y.2d 314 [451 N.E.2d 459]; Burke & Thomas, Inc. v. Intern. Organization of Masters (1977) 92 Wn.2d 762 [600 P.2d 1282].) The latter two cases discuss the issue in terms which suggest that the courts would equally reject a suit by the employer. In contrast, the two decisions which have supported recovery rest their reasoning on specific statutes prohibiting the strike in question. State v. Kansas City Firefighters Local 42 (Mo.App. 1984) 672 S.W.2d 99, upheld quasi-contractual recovery by the state after it furnished fire protection during a city firefighters’ strike. The decision discussed Pasadena, rejected its prima facie tort theory, but suggested that in an appropriate case it would imply from a statute that expressly prohibited public employee strikes a cause of action for breach of contract or tortious interference with contract. Caso v. District Council 37, etc. (1973) 43 App.Div.2d 159 [350 N.Y.S.2d 173], relied on New York‘s Taylor Law, which prohibits public employee strikes, to permit neighboring cities to sue for nuisance when a sanitation workers’ strike caused pollution of their beaches. In short, the majority of third party cases reject recovery, and those which permit it ground that recovery on a specific statutory prohibition, not upon a theory of prima facie tort.
Our principal objection to Pasadena‘s prima facie tort theory, however, relates not to the lack of precedential support, but to the relative roles of the courts and the Legislature in establishing rules to govern labor-management relations. The history of the courts in applying common law doctrines to issues of labor law has been an unhappy one. Drawing back from
Parallel to this withdrawal of judicial remedies has been a steady growth of statutory and administrative regulation. California teachers are now governed by the Education Employment Relations Act (
In City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 917 [120 Cal.Rptr. 707, 534 P.2d 403], we observed that “[t]he question as to what sanctions should appropriately be imposed on public employees who engage in illegal strike activity is a complex one which, in itself, raises significant issues of public policy. In the past, several states have attempted to deter public employee strikes by imposing mandatory, draconian statutory
Our opinion in County Sanitation sounded the same theme of judicial restraint, observing that the policy questions involved in public employee strikes “are highly debatable, and best left to the legislative branch in the first instance.” (38 Cal.3d at p. 591, fn. 39.) Justice Kaus, concurring, applied this theme to the question of damages, concluding that “[i]n the absence of a determination by the Legislature that a tort action, resulting in a money damage award determined by a jury many years after the strike, is the appropriate method for dealing with public employee strikes, I do not believe the judiciary should, on its own, embrace this ‘solution’ to the problem.” (P. 592.)
The courts of other states agree. The Michigan Supreme Court, in rejecting a damage suit against a teachers’ union, said that “the ultimate legislative goal is to achieve a prompt, fair resolution of disputes while avoiding the disruption of the educational process. To recognize alternative tort remedies would result in a substantial negative impact upon such purposes. It would encourage future school board inaction. Eventual settlements could be prolonged pending the resolution of multiple tort claims and counterclaims. The inevitable result would be to create labor law logjams in our courts and, at the same time, to exacerbate labor-management disputes.” (Lamphere Sch. v. Lamphere Fed. of Teachers, supra, 252 N.W.2d 818, 830.)
The West Virginia Supreme Court of Appeals noted that “in most other states the legislature has made an effort to make some statutory accommodations to the labor relation problems that exist in the public sector. Indeed, it was the initial inability of the courts to judicially resolve the competing interests of private employees and private employers that led to federal legislation in the labor law field. Most if not all commentators in the labor law area agree that the complex issues in this field are ill suited to any comprehensive judicial solution.” (City of Fairmont v. Retail, Wholesale, etc., supra, 283 S.E.2d 589, 595.)
And the Washington Supreme Court observed that “[i]nherent in the doctrine of judicial restraint is a recognition that the delicate balance of labor relations is now primarily the province of the legislature.” (Burke & Thomas, Inc. v. Intern. Organization of Masters, supra, 600 P.2d 1282, 1288.) It concluded that “all factors considered, . . . in view of the delicate
Those who argue in favor of a tort remedy assert that it will deter illegal strikes. (State v. Kansas City Firefighters Local No. 42, supra, 672 S.W.2d 99, 110; Note, op. cit. supra, 23 B.C.L.Rev. 1087.) The deterrent effect, however, varies inversely with the strength of the union, and the threat of damages may prolong any strike which does occur. The striking union, in negotiating a settlement, will have to consider that the employer can bring a suit for enormous damages—often far more than the union treasury—at any time before the tort statute of limitations runs. The only sensible course of action for the union is to insist, as a term of any settlement, that the employer waive its right to tort damages, and to prolong any strike until the employer agrees. Thus only the weakest unions, whose strikes may fail utterly, will be deterred by the threat of a destructive damage award; the stronger unions will face little risk. The cause of action thus may have a destabilizing effect, prolonging public employee strikes and exacerbating inequalities in bargaining power. ““[T]o allow damage suits by the employer against the union . . . , far from promoting a balance of bargaining between the parties, would probably only aggravate any existing imbalance. In situations in which the union possesses the preponderance of power, the employer would be unlikely to invoke the damage remedy for fear of exacerbating relations; and when the employer holds the power, the availability of such a further remedy would merely increase his advantage.“” (Lamphere Sch. v. Lamphere Fed. of Teachers, supra, 252 N.W.2d 818, 831, quoting Comment, Collective Bargaining for Public Employees and the Prevention of Strikes in the Public Sector (1969) 68 Mich.L.Rev. 260, 293.)
In sum, Pasadena‘s prima facie tort theory was unsupported by prior precedent from any jurisdiction, and has been rejected by all subsequent decisions. It stands alone in opposition to the steadily growing recognition that judicial intervention to weight the bargaining balance in favor of public employers, by threatening to impose ruinous judgments on unions, is not a desirable or workable method of dealing with public employee strikes.
We therefore disapprove the Pasadena court‘s holding that an illegal strike is prima facie grounds for recovery in tort. The selection of remedies for an illegal strike is, we believe, a matter for the Legislature, and in the
We do not preclude all damage actions by employers. An employer will retain the right to sue for breach of an explicit no-strike clause.6 (See Labor Management Relations Act, § 301,
The judgment of the Court of Appeal is reversed.
Bird, C. J., Mosk, J., Reynoso, J., Panelli, J., and Feinberg (Sidney), J.,* concurred.
LUCAS, J.—I respectfully dissent. In County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564 [214 Cal.Rptr. 424, 699 P.2d 835], my colleagues held that, except in limited cases presenting an “imminent threat” to public health or safety, public employees now have a right to strike in this state. I dissented, observing that this holding was contrary to the federal rule and to the vast majority of cases in other states; indeed, until County Sanitation, it was well established in California that all public strikes were illegal. (Id. at p. 610 [dis. opn.].) The fact that at least nine California appellate decisions (cited in my dissent) had so ruled, and that no statutes were enacted to change that rule, indicated to me a legislative acquiescence therein. The majority held otherwise.
Now the majority holds that even if a strike was unlawful (posing the requisite “imminent threat” to public health or safety), affected public agencies are limited to their injunctive or administrative remedies and may not sue to recover the financial losses proximately caused by the strikers’
*Retired Associate Justice, Court of Appeal, First District, Division Three, assigned by the Chairperson of the Judicial Council.
Pasadena‘s principal theory for sustaining damage awards for unlawful public strikes was quite elementary, and quite irrefutable: An unlawful strike is no different than any other tort which proximately causes injury. In upholding a damage award against a striking union, we stated nearly 30 years ago that, “The law of this state imposes upon everyone the duty ‘to abstain from injuring the person or property of another, or infringing upon any of his rights.’ (
The majority disapproves Pasadena, supra, 72 Cal.App.3d 100. Do my colleagues also disapprove the general tort principles noted in Garmon, supra, 49 Cal.2d 595, and abrogate
The fact remains that unlawful public strikes (which, by the majority‘s own definition, pose “imminent threats” to public health or safety) can result in devastating financial injury to the affected municipality. To deprive public agencies of their right to recompense for such unlawful conduct, a right enjoyed by all other persons in the absence of statutory limitation, is
I would affirm the judgment of the Court of Appeal.
Notes
Subsequently in Petri Cleaners, Inc. v. Automotive Employees, etc., Local No. 88 (1960) 53 Cal.2d 455, 475 [2 Cal.Rptr. 470, 349 P.2d 76], this court considered whether an employer retained a state cause of action in cases not within the preemptive reach of federal law. Our decision held that organizational picketing did not violate California law, and expressly overruled Garmon. (53 Cal.2d at p. 475.)