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

May No. 31850. [L.A. 1985.] 2 OF ANGELES

COUNTY SANITATION DISTRICT NO. LOS COUNTY, Plaintiff and Respondent, ASSOCIATION,

LOS ANGELES COUNTY EMPLOYEES’ UNION, LOCAL INTERNATIONAL SERVICE EMPLOYEES al., AFL-CIO et Defendants and Appellants.

Counsel Satzman, Geffner & Leo Geffner Paule for Defendants and Jeffrey Appellants. II, Carroll, P. Scully,

Charles C. Jennifer Scully Donald Charles P. Friesen, Okrand, Rothner, Reich, Fred Adell & Glenn R. Segall, Anthony Crost, Allen, Victor J. Van & Bourg, Weinberg Roger, Van Bourg, Hansen, Jr., White, A. Michael L. Charles Eugene Huguenun, Raymond R. Gustafson,

R. Henry R. Fenton and Ansell & Goldman as Amici Levy, Curiae behalf Defendants and Appellants.

Musick, Garrett, Rudnick, Peeler & Stuart D. Weinstein and W. Steven Neil O. Andrus for and Plaintiff Respondent.

George Agnost, City (San Francisco), Ward and Attorney S. Steven Philip Diaz, Senecal, Burris, A. Swafford, Deputy City Attorneys, H. Jess Jack T. Senecal, Stewart, Swift &

Lagerlof, Robert E. Robin Leslie Murphy, Kronick, Moskovitz, Girard, Tiedemann & Ronald A. Zumbrun and T. Anthony Caso Amici Curiae on behalf of Plaintiff and Respondent.

Opinion

BROUSSARD, from a Defendants appeal judgment awarding plaintiff J.

sanitation district damages and interest connection with de- prejudgment fendant union’s involvement a labor strike The case against plaintiff. issues of

squarely presents sector great labor-management import relations, and, whether all if namely are employees illegal so, whether the union is liable in tort for striking damages. compensatory After careful review of a line case and we long arguments, law policy conclude that the common law all prohibition against public employee Therefore, strikes is no for longer supportable. judgment plaintiff to be finding strike and interest and costs unlawful awarding damages, must reversed.

I. Statement the Case. (Local union)

Defendant union 660 or the labor affiliated a organization Union, AFL-CIO, with the Service International and been Employees has the certified collar blue bargaining representative

Los 1973. Sanitation District since Plaintiff is one 27 sanitation Angeles with oper-

districts within and Angeles County1 charged providing, Los facilities and landfill and treatment ating sewage and maintaining transport some work- employs sites District disposal county.2 throughout and main- operation ers for who or directly indirectly responsible of, by, or Local represented of its facilities and who are members tenance bargained concerning 660. Since the District and Local 660 have Meyers-Milias-Brown hours and to the pursuant conditions wages, working (Gov. Code, 3500-3511.) these (MMBA). year negotiations Act Each §§ understanding have resulted a labor contract memorandum binding City Glendale (MOU). City Glendale Assn. Employees’ 540 P.2d Cal.3d Cal.Rptr. 5, 1976, On of the District’s percent July approximately union District for went out on strike after between the and negotiations to produce reached an failed new benefit wage agreement impasse relief injunctive a new MOU. District filed complaint promptly The strike order. restraining was damages granted temporary District was continued for which time the approximately days, during the efforts of manage- able to maintain its facilities and through operations to strike.3 On ment and certain union members who chose not personnel on a voted a new July agreement to tentative employees accept to MOU, to offer prior the terms of which were identical the District’s strike. then damages.

The District with the instant action tort proceeded trial of the public court found strike to in violation be unlawful and $246,904 in of the State thus the District policy of California and awarded $87,615.22 in the amount of interest compensatory damages,4 prejudgment $874.65. and costs of the State of separate political 1Each such district is a and autonomous subdivision

California, County et by Safety seq. authorized Health and Code section 4700 Sanitation County joint powers agreement 2 on Angeles by District No. of Los authorized act matters, including personnel and behalf of itself and other in numerous labor the 26 districts (These District.) jointly 27 referred to as the relations. sanitation districts are hereinafter sanitary together by 2In landfills which operated the facilities the District included 6 15,000 day, plants processing treatment 450 received about tons of solid waste each gallons sewage per day, yards, pumping million and In raw 4 maintenance stations. operations, approximately million residents of the maintaining these the District served county. July findings while the trial court’s union on 3The maintains that strike settled addition, July In agreed the strike 16. with the District’s contention that settled had entirely peaceful alleged was various acts of District maintained that the strike not charges The union these in full. vandalism were committed the strikers. denied Wages payments: represents following damages: and PICA figure 4This strike-related $304,227; $16,040; security, equip-' time miscellaneous compensatory earned off valued Traditional Prohibition Public Strikes. II. Against Employee Common law decisions other at one time held that no jurisdictions whether or employee, had a to strike in concert with private, fact, fellow workers. such collective action viewed as a was generally and held conspiracy subject both civil and criminal sanctions.5 Over the course of however, the 20th century, courts and acted legislatures gradually to change these laws as sector they applied private today, employees; to strike is generally system to the of col- accepted indispensable lective which bargaining negotiation, characterizes labor-management relations in the sector.6 private contrast,

By American law continues to sector strikes in a regard public substantially different manner. A strike United States government crime,7 still be treated as a state and local employees have been allowed explicitly by courts statute states.8 $55,080; expenses: ment and meal striking $6,000; health paid employees: care benefits $134,443 wages,

less set off in FICA and retirement benefits the District did not have pay out on behalf of striking workers. Commonwealth, 91806) Commons, 5See (Mayor’s Pullis reported Ct. Phil. Docu mentary History 59; Society (1910) American Industrial Walker v. Cronin 555; Vegelahn 1077]; Mass. v. Guntner 167 Mass. 92 N.E. Loewe v. Lawlor 301], U.S. 274 [52 L.Ed. 28 S.Ct. 6Congress gradually, through enactments, legislative only granted a series of private sector activities, to strike engage and to in other concerted but also deprived employers of their injunction traditional damage remedies of suits. Act], [Clayton 17, Stat. 730 (1970), 15, Antitrust codified as amended at 15 U.S.C. 26 §§ (1970); Act], (1930) 29 U.S.C. 52 47 70 § Stat. Guardia codified [Norris-La at 29 (1970); Stat., Act], U.S.C. 101-115 (1926) 47 pt. [Railway §§ n 577 Labor codified as (1970); (1935) amended at Act], 45 U.S.C. [Wagner 151-188 49 §§ Stat. 449 codified as (1970).) at amended 29 U.S.C. 141-197 §§ 7Employees of government the federal statutorily prohibited striking are from under 5 . United (1976), States Code section prohibits 7311 holding which an individual from a federal position “participates if he in right against a asserts the strike Government of the United (D.D.C. 1971) States . . . .’’In United Federation Postal Clerks v. Blount of 879, affd., 38, 325 F.Supp. (1971), 404 802 upheld U.S. L.Ed.2d 92 S.Ct. the court 80] constitutionality prohibitions, yet of the strike “wording declared unconstitutional the insofar as it inhibits the right assertion of the p. to strike. 881 in [italics ...” {Id. 1947, original].) In Congress originally employees denied federal to strike in Act), section Management 120, 305 of the Labor (Taft-Hartley chapter Relations Act 61 (1947). Large Statutes at repealed ultimately This act was and replaced section 7311. Alaska, Montana, Ohio, Hawaii, Idaho, Illinois, Minnesota, 8Those states are Oregon, Vermont, Pennsylvania, below.) Interestingly, and Wisconsin. further discussion virtually United States is among upholding general alone Western industrial nations prohibition them, of employee European permitted Most strikes. countries have with limitations, See, Anderson, quite e.g., certain some time as has Canada. Strikes Impasse 943, Resolution Employment in Public 67 Mich.L.Rev. 961-964. holdings as as well various to the assertions of the

Contrary plaintiff legality stated that court has repeatedly the Court Appeal,9 an question. has remained open in California by public employees strikes Trainmen Brotherhood Railroad Los Transit v. Angeles Authority In Met. 905], P.2d this court Cal.Rptr. Cal.2d authorization the absence legislative stated dictum that “[i]n but ...” proceeded not have the strike do employees general “ ‘to engage workers the right hold that a statute transit affording public or other collectively bargaining concerted activities for the purpose other ” to strike. How- mutual aid or these protection’ granted issue, (1968) 68 Cal.2d ever, Berry re in our next on the In very opinion 273], an injunction against invalidated P.2d we Cal.Rptr. overbroad, expressly unconstitutionally striking public employees can strikes by public reserved on “the whether opinion question (Id., 151.) be lawfully enjoined.” p. strikes, City examine our next opportunity public employee Cal.Rptr. 13 Cal.3d 898 County Cooper San Francisco of a 403], the validity which involved suit challenging 534 P.2d that such we held city,

strike enacted agreement settlement holdings After the Court noting Appeal settlement are valid. agreements counterargument strikes are and the employees’ public employee illegal statute, our unanimous opinion authorized by that such strikes impliedly in that action. controversy resolve that declared that we had no occasion to (Id., vein, judgment reserved explicitly

In a this court has carefully similar three other at least on the issue of the legality public employee Indeed, issue head- to address the occasions in recent our reluctance years.10 and concurring both dissenting on has elicited critical from commentary 9See, Cal.App.3d Stationary Engineers Dist. e.g., v. San Juan Water 666]; Teachers Pasadena Federation Cal.Rptr. Dist. v. Pasadena Sch. [153 of Unified Union, (1977) 41]; Employees’ International Cal.App.3d Cal.Rptr. 100 Service 72 [140 400, (1972) Cal.Rptr. 408 Community Cal.App.3d 24 Hosp. [101 22 Local No. v. Roseville 1352, (1970) 69]; 13 etc. Teachers Colleges v. Local S.F. State Trustees Cal. State of 863, 134]; State City Diego American Federation Cal.Rptr. San v. Cal.App.3d 867 [92 of of 258]; County 308, (1970) Almond v. Cal.Rptr. 310 Employees Cal.App.3d 8 etc. of 32, Cal.Rptr. Cal.App.2d 35 518]. Sacramento 893, Cal.Rptr. Diego 24 Cal.3d 1 Superior 10San Court Teachers Assn. (1983) 33 838]; Assn. v. National Education P.2d El Rancho School Dist. Unified 893]; 123, Electrical Brotherhood Cal.Rptr. 3d 663 P.2d and International Cal. 946 [192 of 666 P.2d City ofGridley Cal.Rptr. 960]. Workers v. 34 Cal.3d once which have us to resolve the and for all.11 opinions, urged question had While we reason for the aforementioned cases without ample deciding determining the broader of the question right public employees the instant presents case us with the circumstances for direct consid- proper eration this fundamental issue. discussion, however,

Before our we must note that the commencing Leg islature has also chosen to judgment general reserve on the of strikes legality sector. in his As Justice Grodin observed concurring opinion Assn., in El Rancho School Dist. v. Education National supra, Unified 946, 964, Cal.3d “the itself has refrained from Legislature steadfastly pro (Lab. clearcut viding guidance.” With the exception firefighters Code, 1962), no statutory prohibition against by § strikes public employees in MMBA, this state exists.12 The which the statute under con present arose, troversy does not address the directly of strikes. question The MMBA sets forth the and in rights municipal county employees Code, (Gov. California.13 3500-3511.) The MMBA protects §§ form, such “to employees and join, the activities of participate employee 11See,e.g., Richardson, J., dissenting opinion Diego Superior in San Teachers Assn. v. Court, supra, J., Richardson, concurring Cal.3d opinion of in El Rancho Unified Assn., School Dist. v. National Education page Cal.3d at where he stated hesitant, longer court should “[t]his no continue its tentative ritual dance around the perimeter legal of this central principle. ...” just (former Code, 12For one example, the Winton Act seq.), gov Ed. 13080 et which § unions, relationship erned the between local school boards and teachers’ neither affirmed rejected nor teachers’ Legislature repealed to strike. In 1975 the the Winton Act and added provisions new to the Employment Government Code to Education establish an (see Code, Relations Board Gov. seq.); prohibit 3540 et § new enactment also does not by teachers. It also Assembly Advisory bears mention that the California Council on Employee 15, 1973, that, Public Relations report in its final “[s]ubject March concluded only to specified] public employees [certain restrictions and . limitations . . should have the 24) (p. a). However, to strike” proposed carry goals (appen. a statute out these proposed law, statute was never perhaps reflecting legislative enacted into further decision to leave the thorny judiciary. ultimate determination of this issue to the Act, amendments, 13TheMMBA predecessor, revised its the Brown The MMBA 1968. however, apply government employees local because the MMBA deleted reference to the explicitly “State California” “public employee” employed by defined one any political (See Code, 3501.) Presently, subdivision of employees the state. Gov. state § governed by Code, are (Gov. Employer-Employee 3512-3524). State Relations Act §§ groups excepted Additional coverage were from the Brown under Act previous legislation. These consequently not covered the MMBA. Code, 25051-25052, Pub. Util. added 2 at pp. §§ Stats. ch. 1960-1961 § [governing bargaining between employees of the Alameda-Contra Costa Transit District and employers]; Code, their Appen. [governing bargaining Pub. Util. in the Los 3.6(b)-(g) § Angeles Metropolitan Code, Authority]; [governing Transit Ed. educational §§ MMBA, Grodin, For a detailed scope purposes discussion of the see Public Employees Bargaining Meyers-Milias-Brown Act the Courts California: 719; Note, Hastings L.J. Bargaining Meyers-Milias-Brown Collective Under the Act— Employees Right Should Local Hastings Have the to Strike L.J. 523. of on all matters em- of for the

organizations representation ... purpose to “meet and employers relations.” It also requires public ployer-employee the on all issues within representatives confer” in faith with good employee of the MMBA’s one of As in its preamble, representation. explained scope public employees communications between main is improve purposes A for resolving disputes. method their a reasonable providing employers relations by “pro- is personnel stated to promote improved further purpose of join the right public employees a uniform basis for viding recognizing own choice.”14 of their organizations face, employees nor local grants

On its the MMBA neither denies has not the Legislature since noteworthy to strike. This omission of employ- classes hesitated to strikes for certain prohibit expressly by firefighters against For the above-noted ees. example, prohibition remains the MMBA and years nine before passage was enacted Moreover, within its provi- the MMBA includes today. firefighters effect Thus, other such limitation on any sions. the absence a lack of intent legislative MMBA least very implies covered at the the MMBA to strike prohibition.15 to use enact general MMBA must be of the have that section 3509 suggested

Plaintiffs it specifi to strike because construed as a on the general prohibition em- of Labor Code section 92316 cally precludes application 14However, merely resolving disputes. It the MMBA contains no clear mechanism agree mediator they may appoint provides parties agreement, that if the fail to reach an Additionally, parties. agreed upon impasse procedures other resolution use contro agency to resolve of an administrative MMBA does not authorize the establishment contrast, governing other arising provisions. under statutes versies its (PERB) disputes and Board to resolve Employee authorize the Public Relations California Code, (setting the powers 3541.3 provisions legislation. § of the Gov. enforce the (EERA)); Gov. Act Employment Relations duties of the PERB under the Educational Code, PERB under the EERA [making powers duties of the (g) subd. § Act].) applicable Employees to the State Relations compromise that the political and/or desire 15Apparently this decision was the result indicating public em step unambiguously whether courts would take difficult first explains, “The entire commentator ployees generally have the to strike. As one noted avoided, the declaration except for subject impasse procedures strikes and resolution legislative emerges general is a rather What parties may engage that the elect to a mediator. without clear delineation governmental level blessing bargaining for collective at the local whole, have, done an admirable policy implementation. The courts or means for its underlying weakness help but reflect the job exegesis, but their decisions cannot (Grodin, Hastings op. supra, 23 L.J. at text.” cit. full have part: . the individual workman provides pertinent [shall] 16Section 923 “. . his association, representatives of own designation of self-organization, and freedom of he shall be free employment, and that choosing, negotiate conditions of his the terms and or in representatives employers designation such from the interference ... ... bargaining or purpose of collective for the self-organization or other concerted activities protection.” aid or other mutual Labor Code this court to protect section 923 has been construed ployees. Cleaners, (see sector Petri Inc. v. employees strike private

Automotive etc. No. 88 Employees, Local Cal.2d Cal.Rptr. 76]); P.2d yet, an examination other California statutes gov- was erning public employees makes it clear that section 3509 not perfectly included MMBA as a for strikes. means prohibiting

A identical to provision section 3509 is contained in the statutes governing However, educational and employees an strike firefighters. explicit prohi- bition is included in the statute addition firefighters provision.

fact that the felt Legislature include this strike necessary express pro- hibition clearly indicates that it neither intended nor its expected preclusion Furthermore, section 923 to serve as a blanket strikes. prohibition against Court, in San Diego Teachers Superior Assn. Cal.3d page 13, this EERA, court interpreted section 3549 of the identical provision to section MMBA, 3509 of the as strikes. There- specifically prohibiting fore, plaintiff’s assertion that section 3509 must be read as a legislative prohibition of public strikes cannot be employee sustained.17 sum, the MMBA establishes a system rights protections which closely mirrors those enjoyed by workers however, sector. private The Legislature, avoided intentionally the inclu- sion of any which provision could be construed as either blanket grant of a prohibition thus leaving issue shrouded ambiguity.

In the matter, absence clear legislative directive this crucial it becomes the task of the whether, law, judiciary determine under public employees should be viewed a prohibited tort.

HI. The Common Law Prohibition Against Public Strikes. Employee

As above, noted Court lower Appeal various courts in this and other jurisdictions that, have stated absent a repeatedly specific all statutory grant, strikes se A public employees illegal. variety per policy rationales legal justifications traditionally have been advanced “rule,” of this common support law and numerous articles scholarly MMBA, present 17Since the employees subject case involves we to the do not consider provisions whether governing interpreted statutes other could be to limit the right of such employees to strike. The merits.18 var- their respective

treatises have been devoted debating into can be summarized for law ious the common justifications prohibition a by strike traditional justification—that four basic First—the arguments. authority/sov- of governmental is tantamount to denial public employees Second, to bilateral subject are not the terms of public employment ereignty. sector, set the they by because collective as in the bargaining, private Third, since bod- body legislative unilateral legislative through lawmaking. decisionmaking, granting public ies are responsible public employment lever- afford them excessive bargaining to strike would and an dele- improper in a of age, resulting political distortion process essential of Finally, employees provide gation legislative authority. public strikes, which, threaten the public if would services interrupted by welfare. neces-

Our determination of the of strikes legality of each of current viability involves an sarily analysis reasoning sovereignty argument, first arguments. justifications, these The of these those and hence asserts that is the embodiment of the government people, This was entrusted to its it.19 impede argument out function carry subject of relations in 18Among recently on the labor appear the more notable works Acierno, Theory By Strikes Government Hanslowe & The Law and sector are: 1055; Comment, (1982) Legislation: An Employees Employee 67 Cornell Public L.Rev. 931; Comment, Paradox, (1976) Diego Emerging Impact, Opportunity 13 San L.Rev. Resolution Proce Assembly Advisory Impasse on Council’s Recommendations California 473; Comment, (1974) The Col Employee Diego 11 dures and Public Strikes San L.Rev. (1974) Stage Chrysalis 14 Bargaining Municipal Lingers in Its lective Process at the Level 397; Meyers Grodin, The Employee Bargaining in Santa Clara Public Law. California: Clark, 719; The Practical (1972) & Hastings Act L.J. Shaw Milias-Brown Courts 23 Bargaining (1972) UCLA Sector Collective Between Public and Private Differences (1971) 867; Lev, Solutions Employees: Problems and L.Rev. Strikes Government (1971) 771; Witt, 8 Cal. the Seventies Public Strike: Dilemma A.B.A.J. The Sector (1971) 102; Bernstein, Relations the Strike in Public Labor Western Alternatives to L.Rev. 459; Krider, by Public Consequences Strikes The Role and 85 Harv.L.Rev. Burton & 418; Winter, Em (1970) Wellington More on Strikes Public Employees L.J. & 79 Yale Kheel, (1969) 441; (1970) Employment and Public ployees L.J. Strikes 79 Yale (1969) 931; Anderson, Employment Impasse Resolution Public Mich.L.Rev. Strikes and 943; Winter, Bargaining in Public Collective Wellington & The Limits Mich.L.Rev. 1107; Thome, Organized (1969) Employee and The Government Employment 78 Yale L.J. Note, 147; Service in the Public Labor Labor Relations Santa Clara Law. 391; Annot., Engage Employees Strike Right of Public Harv.L.Rev. Labor Law: Stoppage in Work 1147. A.L.R.3d Ops. 41 Ohio City 268 Amal. Ass’n example, 19For Cleveland v. Division system 711, 715], that in our is clear stated that “[i]t N.E.2d court public, against a strike government, people. of all of the And government a servant against government. as a rebellion employees, been denominated ... strike has gov- destroying one means of public employees if ... accorded to particularly first half the 20th when it received popular century, from support several American Presidents.20 however, criticized in sovereignty has often been recent concept,

years vague outdated based that “the theory assumption ” observed, can do no King wrong. As T. Edwards has Judge Harry cogently “the of application the strict notion—that sovereignty governmental power can never from opposed by employee organizations—is clearly vestige era, another an era of With the unexpanded government.... growth rapid of government, in both sheer size of as well as in terms ser- assuming vices not traditionally associated with the ‘sovereign,’ government employ- ees no understandably feel constrained a notion that ‘The longer by King can do no wrong.’ The cries by unions of distraught public treat- disparate that, ment merely reflect the fact for all intents and em- public purposes, ployees occupy essentially the same vis vis their position employer ” (Edwards, The Labor Relations Law in private Developing counterparts. Public Sector (1972) 359-360.)21 10 L.Rev. Duq.

In years, recent courts have same of rejected very concept sovereignty as a justification for governmental from tort In Califor immunity liability.

nia, the death knell came Dist. Muskopf v. Coming Hospital Cal.2d 211 that, 457], Cal.Rptr. [11 P.2d where this court stated they ernment. And if destroy government, anarchy, we have we A have chaos.” California case which relied on sovereignty argument City this is Nutter v. Santa Monica of Cal.App.2d 292 Cal.Rptr. 741]. strike, 20Commenting on the police Boston Coolidge Calvin asserted that no “[t]here against public to strike safety by anybody, anywhere, any (quoted in Norwalk at time” 482, 484, Teachers Ass’n v. Board Education 138 Conn. A.2d of 1133]). Wilson, A.L.R.2d Woodrow commenting on the same stated that the strike “ ” id., against 484]). ‘an intolerable crime (quoted p. p. civilization’ at at A.2d pronouncement another famous sovereignty argument, of the President Franklin Roo- “ sevelt stated: place any organization tactics have no of of ‘[M]ilitant the functions employees. Government . public nothing . . strike of employees manifests less than an [A] part prevent intent on their operations or obstruct the Government until their demands action, are Such looking paralysis by satisfied. toward the of Government those who have it, (Id., support sworn to is unthinkable pp. and intolerable.’” at A.2d at p. [quoting a letter from 484] President National president Roosevelt to the Federation Employees (Aug. 1937)].) Federal 21,See Teach, City also Anderson Fed. School Anderson Ind. 588 [251 15, 20, (dis. DeBruler, J.). 2d (“[Sovereign immunity] N.E. opn. A.L.R.3d C. 1131] is not a rational argument dealing but a technique avoiding all with the merits of the issue whether [of conflict of real forces .... social strike] by cannot be solved magical phrases ‘sovereignty.’”) the invocation of like Chief Justice government DeBruler also notes that where the has over the discretion terms of employment, “[a]ny conditions discretionary decision within this area is authorized therefore, government, authority obviously deny government.” does (Id., 20.) p.at anachronism, without an for tort is of governmental immunity rule

“[t]he (55 Cal.2d at basis, of inertia.” the force only by and has existed rational the doctrine of Muskopf, As court in perpetuation noted its application in tort law led to many inequities, immunity sovereign archaic use of this concept Similarly, effected results. many incongruous is inconsistent employee against se justify per prohibition to rest. laid and should be hereafter reality with modern social prohibition the common law argument underlying second basic are employment the terms strikes holds that since public employee to re virtually employers powerless fixed Legislature, would such strikes alternatively allowing to strike spond pressure, by law.” instead of “government contract” “government by result 36, 46 etc. Council 94 Cal.App.2d v. Los City Angeles of L.A. the California had merit before 305].) This have some P.2d justification may However, employees. bargaining rights public extensive Legislature gave arrived at employment of public most terms and conditions present, at as the MMBA. under such statutes collective through bargaining and rights of variety the MMBA establishes We have seen that already join participate the for protections public employees—including for confer with employer representatives in union activities and to meet and The importance issues. the of labor-management purpose resolving disputed confer requirement, meet and these mandating rights, particularly a nearly of the MMBA represents The overall framework ignored. cannot system of collective system bargaining—a exact to the sector private parallel in the relations labor-management private which sets forth the for guidelines strike. en- By employees and which protects private sphere for public employees acting parallel protections these significant MMBA, of the un- removed effectively many through Legislature common strikes. public employee law se ban against derpinnings per strikes, of such its address the issue directly While the MMBA does not are signifi- law the traditional common prohibition implications regarding cant. in his Grodin concur Justice was argument eloquently explained

This Assn., Education National in El Rancho Sch. Dist. v. ring opinion Unified that premise he out where pointed “[t]he Cal.3d page Cal.App.2d in City 36]—that the court’s underlying opinion of L.A. terms and conditions to establish necessarily policy contrary public collective bilateral process through for employment since been re lawmaking—has unilateral rather than bargaining through under consideration The heart of the statute jected by Legislature. con- Act], for example, Relations this case Educational Employment [the other terms and hours, and certain to wages, matters templates relating subject negotiation for will be the conditions teachers employment representing between a school and organizations agreement employer Thus, 3543.2, 3543.3, 3543.7.) (Gov. Code, original its employees. §§ are illegal strikes foundation for the ‘rule’ that policy public employee undermined, this been if not obliterated.” state has substantially in this state as grounds two have not served remaining arguments ban on but have been advanced com- asserting public employee reasons for mentators and courts of other states. With the traditional debunked, reasons do not convince such strikes these additional prohibiting us of the of a ukase all such strikes. necessity judicial prohibiting roles of first these draws the different market arguments upon forces rationale that because private suggests This public spheres. inelastic, government services are essential and demand is generally would if wield excessive allowed strike. bargaining power Proponents assume that economic constraints are not argument pres- ent to in the any sector. meaningful degree Consequently, constraints, absence of such will be forced to make ab- public employers workers, normally concessions to which in turn will distort our large polit- ical of resources process by either taxes or a redistribution forcing higher between government services.22 are, however,

There with this “distortion several fundamental problems one, For will be discussed more political process” fully as argument. below, a key all ser- assumption underlying argument—that government vices are essential—is Modem factually engage unsupportable. governments functions, in an enormous number and which as to variety clearly vary such, their of an nexus degree essentiality. As absence unavoidable between most services and undercuts the no- essentiality necessarily tion that officials will be forced to settle strikes and at quickly any Blount, e.g., 22See F.Supp. United Federation Postal 884. Clerks v. (“In private sphere, equalize bargaining power, the strike is but this univer used has sally appropriate object purpose been held not to be be to when its can influence resources.”) essentially political of Government in of its decisions the allocation For an even political process” more extensive elaboration of this “distortion of the ar- Winter, gument, Wellington Bargaining Employ- see & in The Limits Collective Public ment, supra, 78 Yale LJ. 1107. strike23 is another yet

cost. The recent case of the air-traffic controllers’ firm a strike against that have the to hold example governments ability As this in inconvenience. a considerable even the face substantial period, Brotherhood Authority in Met. Transit Angeles court concluded Los Trainmen, not dele- to strike does Railroad supra, “Permitting employees of the em- fix to the exclusion to them their own gate authority wages not whether or discretion. In collective bargaining negotiations, ployer’s demands if he determines is free to employer reject added.) (54 italics Cal.2d at they unacceptable.” of strik- Other factors also serve to the potential bargaining power temper officials to resist excessive and thus enable ing public employees First, em- demands: lost due to strikes are as wages important Second, over concern public’s are to ployees they employees. private from serve to the decisionmaking process tax rates will increasing prevent A third of economic considerations. dominated instead being by political water, and, areas as sewage and related economic constraint arises such instances, services, are charged. where explicit prices some sanitation if than employer Even other representatives groups local govern- both union and do enter the formally bargaining process, of bargaining ment are aware of the economic implications representatives A to the fourth which which are visible higher clearly public. leads prices services where exists in those economic constraint on public employees For example, to the sector is a realistic alternative. subcontracting private Warren, American Fed- with an impasse resolved a Michigan bargaining State, (AFSCME) local by eration of County Municipal Employees California, service; Monica, ended its entire sanitation Santa subcontracting its sanitation oper- strike of to subcontract city threatening employees by ations; fact, sanitation to subcontract its entire San Francisco has chosen wages If this subcontract private option preserved, firms. system subcontracting the rate at which sector need not exceed public clearly becomes a realistic alternative.24 (PATCO) Organization Controllers August 23In the Professional Air Traffic Reagan or Ronald government. President against launched a nationwide strike the federal 11,000 within a returned to work discharge striking who had not dered the of controllers rejected all Administration has two-day grace period. writing, of this Up to time strikers, violating by the federal amnesty, being that the suggestions general position for a its oath, their have forfeited own “no-strike” government’s prohibition on strikes and their upheld govern Federal courts

jobs with the Federal Aviation Administration forever. 1982) (D.C. 685 F.2d Authority Cir. position in PATCO Labor Relations ment’s v. Federal Sunstein, strike, Employee Public Meltzer & analysis For a more detailed of the see 547. Strikes, Discretion, 731. 50 U.Chi.L.Rev. Executive and the Air Controllers Traffic Krider, Consequences Strikes The Role and 24See further discussion in Burton & of Employees, supra, Yale LJ. 425-427. Public not only ignore of a flat ban on proponents public employee such factors as the but also fail to adequately availability subcontracting, consider sentiment towards most strikes and assume that public public fact, will for an resolution at cost. In sentiment push blindly early any public leaders, toward a strike often thereby limits the felt pressure by political the strike’s A Governor’s Commission reducing Pennsylvania effectiveness. stressed grant such sentiment as an reason to

Report just public important a limited to strike: on the to strike which we limitations “[T]he . will . . to the as so much fairer than a propose appeal general public ban on general strikes that the will be less to tolerate strikes likely beyond these boundaries. Strikes so can be effective have long they short, In we public support. carefully look the limited and upon defined to strike as a safety (Italics valve that will in strikes.”25 in prevent fact original.) sum, little, there is if any evidence which demonstrates that empirical governments generally to unreasonable demands capitulate em- in order to ployees resolve strikes. result the strike the instant case clearly suggests opposite. During 11-day negotiations resumed, and the parties reached an subsequently agreement a new MOU, the terms of which were the same as the District’s last offer precisely to the prior commencement of the strike. Such results do not il- certainly lustrate a situation where public wielded excessive employees bargaining and power caused a thereby distortion of our political process.

The fourth and final justification the common law prohibition is that interruption government is services because are essen- unacceptable they above, tial. As noted in our industrial contemporary society presumption of essentiality of most government services is at best. In ad- questionable dition, we tolerate strikes by private employees many same areas in which government health, education, such engaged, as transportation, utilities; fields, many employment activity largely private overlap. Teach, In a dissenting Anderson Fed. v. School opinion City

Anderson, supra, Chief Justice DeBruler of Indiana observed that the source management most service is irrelevant to the relative enterprises essentiality the services: “There no difference in on the com- impact between a munity strike utility 25Governor’s Commission Employee Pennsylvania, Report to Revise the Public Law of Recommendations, (BNA) E-l, reprinted (1968). Empl. Rep. in 251 Gov. Rel. E-3 This report Acierno, is discussed in Theory by detail in Hanslowe & The Law and Strikes Employees, supra, Government 67 Cornell L.Rev. 1055. and a bus company nor between a utility; municipal

a private school teachers and par- owned bus nor between public privately company; of the en- and management ochial school teachers. The form of ownership caused a strike not amount of destruction does determine the terprise addition, form of that is ownership of that In the employees enterprise. accident, subject and historical is often a actually political employed that were once rendered public future forces. Services change by political then another enterprise, be contracted out enterprise may private (251 sector.” N.E.2d at p. administration returned to the public eschewed the classic United Court also States Recently, Supreme of that essentiality of an with the industry equation public ownership United reasoning, In an reflected the traditional earlier case which industry. 677], 67 S.Ct. (1947) 330 L.Ed. States v. Mineworkers U.S. seizure pri- held that the wartime government’s Court had Supreme services and mining public vate coal mines rendered those operations remained miners, of the mines of the the function changed though rights of an injunction then the issuance the same. The court exactly approved had workers, been available a that would have striking remedy against the mines still been considered a private enterprise. Island R. Co. Long

In the recent case of Union v. Transportation however, 1349], the court held 102 S.Ct. U.S. L.Ed.2d railroad, had been ac- recently of a which formerly that employees private to strike under the retained their right quired by governmental entity, rec- instance, clearly Court Labor In this latter Railway Supreme Act. did not necessarily change that the takeover of the railroad ognized public that the railroad suggested the court therefore rights employees; deci- Although no essential after its acquisition. became more value on limits its direct precedential sion’s basis in the clause supremacy from the law, major departure nevertheless ruling signifies labor Mineworkers, es- a service becomes supra—that court’s earlier holding Union The Transportation sential once it comes under control. government the service that it is the nature case thus underscores the conclusion determines of its disruption which its and the essentiality impact provided welfare, of whether determination on the opposed simplistic Indeed, strikes by the service is by public private employees. provided than interest threat to the workers often a more serious private pose would of those which involve many public employees. services, “essential” public that there are certain

We course recognize safety. health or threaten the seriously of which would disruption act to render fact, law should still union itself concedes that the defendant 581 a gen- which would constitute strikes essential services any truly illegal Therefore, that “excessive to the extent the uine threat to the welfare. public still arguments of essential services” bargaining power” “interruption merit, on the to strike should right health and limitations safety have specific underlying to answer the concerns those arguments. suffice courts to the persuade to the advanced arguments In addition various legal which, as strikes—arguments to a on judicial employee ban impose public seen, juris- we are in the context modern have decidedly unpersuasive that concern permitting pub- broader prudence experience—there balance, be, lic strike harmful to labor-management to employees best This is essentially political argument, relations sector. to out that to the We review the Legislature. point

addressed matter intervention, is not so since issue clear cut as justify judicial Legislature could conclude reasonably recognizing public employees’ that to strike enhance relations. right may actually labor-management 11 states most of employees At least have their granted strike;26 behind further statutory rationale this policy recognition strike-ban advocates. undercuts several the basic relied premises upon con- As aforementioned Commission Governor’s Pennsylvania Report if cluded: “The collective strengthened qual- will bargaining process ified to strike It will be some curb on the possible recognized. will of an and the on the to strike limitations

intransigence employer; he serve notice on the that there to the are limits employee hardships (251 can E-3.) Rel. impose.” Rep., supra, Gov. Empl.

It and their employees is unrealistic assume that disputes among public occur; fact, relatively will not are strikes employers by public during events in For 46 strikes occurred California. frequent example, 1981-1983, which decline when significant compared marks a actually be- the circumstances number the 5 during years.27 Although previous ante, permit public these statutes Typically 26See footnote list of the 11 states. health, strikes, safety, or The statutes endanger sector unless such welfare. strikes generally prohibit fire-protection in correctional police employees, strikes instances, facilities, binding provide statutes and those health-care institutions. some Thus, proscribed. resolve for which disputes arbitration to certain begun despite strong opposition degree legitimacy, sector strike has some achieve of critics. California, employee 27Public strikes in 1970-1983:* 1972 1973 1976 1970 1971 1974 1975 15 44 23 14 18 45 1977 1978 1979 1980 1982 1983 (Mar. Analysis Public Sector *Source: An Strikes California’s hind somewhat, each individual strike commentators vary repeatedly note that much of the reason for their occurrence lies the fact that without strike, threat, or at least a credible strike have public employees This, little turn, negotiating strength. frustrations which exac- produces erbate labor-management conflicts and often strikes. provoke “illegal” mediator, Kheel,

The noted labor Theodore W. described this aptly pro- cess when (which New analyzing York’s Law makes all em- Taylor ployee and its resultant effect on labor relations in illegal) that state: “It would be unfair to sole place legal machinery upon responsibility for these of critical services on which interruptions the welfare New York But the fact depends. remains that the machinery—including prohibition on strikes with attendant and the boards with their penalties fact-finding to make power recommendations—did not work settle these or disputes strikes, slowdowns, stop or threats. In fact it is that the Taylor probable Law exacerbated these conflicts. For one it made subversive a form thing, of conduct society endorsed for workers. It unions to private encouraged threaten to strike to achieve the in collective bargaining position participants must It bargaining possess. made the march to jail martyr’s procession and a fact, of honor for badge union leaders. it did ... simple point not and not to work as likely a mechanism for conflicts in resolving determination, relations employment joint whether called collective through or bargaining (Kheel, collective and negotiations.” Employ- Strikes Public ment, supra, 936.)28 Mich.L.Rev. Inst, Rel., of Ind. Berkeley) Empl. U.C. employees Cal. Pub. Rel. 9. Public California, include all public agencies workers in excluding federal service and

utilities. Comment, 28Indeed the per prohibition se notoriously ineffective. See Assem California bly Advisory Council’s Impasse Recommendations on Resolution Procedures and Public Strikes, Employee Diego study San L.Rev. 480. The council’s found that the “present strikes, furthermore, laws do not deter illegal once that an strike is instituted very the law has little in compelling effect the strikers to return to work. Part of the reason many public this is that employers request injunction they hesitate to an because believe would continue to thereby forcing employer to either initiate contempt proceedings subject quasi-criminal penalties, his idly stand and ineffectually by alternatives, illegal as the pursued, strike continues. Either of these if would have a deleterious effect on employee-management future relations once the strike is settled.” See School, also statement of Reginald Alleyne, Professor Transcript UCLA Law Proceedings, Hearing, MMBA Legislative Assembly, Employ California Interim Public Committee, ment and Retirement page Alleyne supported 20. Professor cited statistics which his view that “In private they cases sector succeed and reach an 9/10 ” agreement. Cebulski, See also Analysis Illegal An Strikes and Law 18 Cal. California (chart Empl. Pub. showing Rel. employers imposed that strikes in which sector legal sanctions lasted long twice as employers attempt as strikes in which the did not sanctions). impose sector, the bilateral deter- that in the universally private It is recognized bargaining a collective conditions working through mination of wages facilitates strength, in relatively equal which both sides possess process, their and employers and harmonious relations between more understanding the parties’ respec- In the absence of some means equalizing employees. threat, are less both sides as a credible strike

tive such bargaining positions, faith;29 unsatisfactory to and to in turn leads this likely bargain good strikes. longer Equal- to more and acrimonious labor relations and ironically the best impetus the strike often important, possibility provides a ly table, both because par- for reach an the bargaining to at parties agreement clear incen- lose if comes Thus a by providing ties a strike to actually pass. avert, to rather a threat serve

tive credible strike resolving disputes, to than work encourage, stoppages. should Kheel has well: very

Theodore explained argument “[W]e determination, to and turn instead true the failure of unilateral acknowledge the of a collective this must include bargaining, though possibility even seek to the improve strike. We would then understand that we must clearly strikes. . and the skill of the to . . bargaining negotiators prevent process outsiders, no no and machinery, With skillful and responsible negotiators, no fixed our attention has long rules are needed to settle For too disputes. to

been directed to the mechanics and than the participants rather penalties that, strikes by in the It is now time to to seek to process. prevent change collective to fullest extent encouraging possible.”30 the bargaining A a final consideration in our more policy analysis philosophical addresses strike, as well as issue—the that the to in the sector perception public sector, ac- widespread a basic civil private liberty.31 represents 29See, e.g., Reg. Reg. Timberlane Dist. Ed. Ass’n N.H. Sch. v. Timberlane A.2d 557]. 30Kheel, op. pages cit. 67 Mich.L.Rev. 940-941. 3 interesting granting right to strike policy argument support 1Another and a related of the American public employees recognition changing shape to rests on and values the essence, economy system it on the that our market has economic itself. focuses fact pluralistic increasingly form. In this evolved from its classical model into an mixed intervention, government private enterprise process increased the line between time, blurring has occurred increasingly has become At the same a concomitant blurred. which activity, overlap latter renders political between traditional and economic is this ban on so a flat all sector strikes difficult defend. system argument from classical eco- analogizes then the deviation of the American prohibitions to Soli- corresponding and the reevaluation of strike nomic models military Ironically, prior crackdown. darity-inspired developments in Poland latest striking is bargaining and anti- argument the traditional common that sector law closely government’s political process, mirrors Polish democratic and inimical our reactionary—conduct that revisionist and view unions and strikes are antisocial—indeed models and system operated from classical purportedly for the benefit of all. Deviations of that leads

ceptance perception the conclusion that logically as an free should important symbol denied society, unless such a strike would injure interests substantially paramount larger community.

Plaintiff’s can the common argument Legislature reject law doctrine prohibiting strikes flies face public employee squarely both logic and is not the past precedent. silence Legislative equivalent positive legislation does not reevaluation of common preclude judicial one, law doctrine. If have an courts created a bad rule or outmoded can courts it. change redefine,

This court has or abol long recognized modify need even a ish common law rule “when reason demand it” or when its equity no of underlying principles are modern longer justifiable light society. v. Rodriguez 382, Bethlehem Steel 12 Cal.3d 394 Corp. [115 765, 669]; Cal.Rptr. P.2d v. Muskopf Hospital Dist. Corning 211, 89, 457]; Cal.2d 359 P.2d Green Cal.Rptr. Superior v. 616, 704, 1168]; Court 10 Cal.3d 517 P.2d Li Cal.Rptr. v. YellowCab Co. (1975) 804, 858, 13 Cal.3d 532 P.2d Cal.Rptr. 1226, 78 393].) A.L.R.3d

This court’s history numerous this In Li provides examples principle. Co., Yellow Cab supra, Cal.3d at when this court first page a adopted rule of we comparative rejected the conten negligence, expressly that tion any change the law was contributory exclusively negligence a matter for the a Legislature, overturned more than century prece dent. v. Bethlehem Rodriguez Corp., Steel Cal.3d we supra, directly repudiated assertion that action for loss recognition spousal of consortium (see 393-395) required action and reversed legislative pp. numerous decisions in Fur prior that cause of action. endorsing thermore, subject law á has been governing shaped giiided “[w]hen decision, judicial inaction does not legislative necessarily constitute a tacit endorsement extant evolution law precise stage the time when the did that the Legislature may Legislature nothing; signify development.” to entrust the willing judicial further evolution doctrine legal beliefs thus both ideological viewpoints. argument confront for a to strike for public employees capitalist strength society away in'a from system clearly gains as evolves pure private clearly the classical economy public ideal of market where the sectors separated. system Similarly, grows stronger the case in a to strike socialist society from deviates the classical ideals of the socialist model. For a more detailed analysis theory, Aciemo, see 1072- pages Hanslowe & 67 Cornell L.Rev. at 1073. v. Drew fn. ople (1978) 22 Cal.3d (Pe 583 P.2d Cal.Rptr. law the common above, conclude that stated we

For the reasons in this recognized not be strikes should sector against public prohibition such in this state as sector employees Consequently, state. law. We must common California

are neither nor tortious under illegal to strike caution, however, that the immediately for the general public and concern no unlimited. Prudence means welfare certain restrictions. require under any strikes by firefighters has already prohibited Legislature other categories

circumstance. It conclude that in im- result invariably strike would such essential services that a perform be prohibit- and must therefore safety, minent health and danger ed.32 restrictions, the courts must such

While the enact Legislature may specific standards statutory may on a Certain case-by-case existing basis. proceed above, have number of states them in this task. As noted a guide properly such legislation typ- a limited granted public employees in clearly involved ically a limited number prohibits addition, relief for injunctive essential services. several statutes provide dem- the state clearly other when against types striking public employees constitute an imminent onstrates that the continuation of such strikes will Such an safety.33 threat or “clear and health and present danger” public 179.63(11) (1981) peace 32See, (firefighters, e.g., Minnesota Statutes Annotated section officers, facilities), 243.736 Oregon Statutes section guards at correctional Revised institutions); Penn or mental health (firefighters, police guards officers and at correctional Annotated, correctional or mental (guards at sylvania Statutes title section 1101.1001 courts). For a further necessary functioning of the to the health institutions and Acierno, Theory Strike & The Law provisions, discussion of these see Hanslowe Employees, supra, 67 Cornell L.Rev. 1079-1083. Government (advocating presumption of Kinder, page Yale See also Burton & L.J. services, burden relieving the of the thereby state illegality involving truly in strikes essential injunction). necessary for an demonstrate elements may (strikes 33See, 23.40.200(c) public employees most e.g., Alaska Statutes section health, safety and begun to threaten enjoined it that it has not be unless can shown 243.726(3)(a) (injunctive relief avail public); Oregon welfare of the Revised Statutes section health, safety welfare or danger or threat to the present able when a clear and strike creates Annotated, (injunctive relief 1101.1003 public); Pennsylvania Statutes title section health, safety or danger or present a clear and threats available when strike creates 111.70(7m)(b) (injunctive relief section public); welfare of the Wisconsin Statutes Annotated safety). also School See public to the health poses available if strike an imminent threat N.W.2d 348 Mich. City Holland Educ. Ass’n District Holland v. cases, not “to (Mich. Ct., declaring policy is state’s Supreme in teachers strike 210] violence, breach injury, or irreparable showing injunctions disputes issue in labor absent that essential services will not be so approach guarantees disrupted as to threaten health and while also genuinely safety, preserving basic rights public employees. us,

After consideration of the we believe the various alternatives before standard courts in the resolution of future following may properly guide in this area: strikes are not unlawful at com- disputes by public employees mon law unless or until it is demonstrated that such a strike creates clearly substantial and imminent threat to the health or This safety public. standard allows in certain essential areas of exceptions public employment and law enforcement (e.g., prohibition against firefighters personnel) and also the courts to determine on a basis whether requires case-by-case interest overrides the basic to strike. we that this an addi-

Although recognize balancing process impose tional burden on the task.34 judiciary, is neither a novel nor unmanageable Indeed, an examination of affords a ex- good the strike the instant case of how this new standard should be strike did ample applied. 11-day not involve such as or law enforcement public employees, firefighters per- peace”); Reg. Reg. Timberlane Sch. Dist. v. Timberlane Ed. Ass’n 114 N.H. (N.H. Supreme A.2d legality Ct. refused to rule on the of teachers’ 559] strikes but stated in determining injunction, whether to issue a strike a court should health, safety substantially consider “whether the and welfare will be harmed if the continue.”). (29 strike is Management allowed to The Federal Labor Relations Act of 1947 141-187), approach respect private U.S.C. follows a similar with §§ sector strikes. It empowers Attorney enjoin the President to direct the General to a threatened or strike actual industry if it affects an involved in interstate if permitted commerce and to occur or continue (29 imperil 176-180.) would safety. the national health or U.S.C. §§ 34Legislation already requires precise in several states the courts to make this determina (See, Alaska, Ore., Wis.) e.g., just For statutory provisions tion. the relevant Pa. and Act, example, Pennsylvania public employees one Employee under the Public Relations prohibited finding, unless striking they from after have submitted to mediation and fact health, safety present danger or until such a strike creates a and or threat to the and clear cases, (Pa. Ann., 1101.1003.) employer public. welfare of the In such Stat. tit. § relief, may petition equitable including injunctions, is entitled to relief if the court and (Id.) applied danger Pennsylvania finds that the strike courts have creates the threat. (See, employees. e.g., standard Bethel Park Sch. v. Bethel public this to several classes of Park Fed. Fed’n Teachers 54 P. Commw. A.2d Am. ofTchrs. health, (teacher’s safety and present danger public’s strike constituted a to the clear and 18] potential welfare and school in view of losses of state district entitled to back-to-work order subsidies, counseling, so days job, higher opportunities, instructional vocational education services, oppor programs employees’ and work cial health extracurricular enrichment (1974) 14 Pa. wages); Township tunities and Bristol Ass’n v. School District Education (school injunction against teach Commw. 468-470 A.2d district entitled to 767] circumstances); Highland Water Auth. v. Local Union er’s strike under similar 459, Sewer and (sewer authority not enti & and water I.B.E.W. Pa. D. C.2d injunction there was no clear and forcing striking employees tled to back to work since by authority could still be present danger provided in view of the fact that the services inconvenience). relatively little performed during apparently by supervisors, with sonnel, whose absence from their duties would clearly endanger public Moreover, health and there was no the District that the safety. by showing health and threatened. That safety imminently was at time public any is not to that had the strike continued or had the say indefinitely, availability a reasonable replacement been insufficient to maintain sanita- personnel tion there of a system, could not have been at some a clear point showing However, substantial threat to the such was not health welfare.35 public here, the case and the of the strike would have been under legality upheld our standard.36 newly adopted

Defendant union has also this court se urged to find that per prohibition of all strikes violates public employee the California Constitution’s guar- association, antees freedom of free They speech, equal protection.

do not contend that such a constitutional is when infringement present court exercises its a strike based on a equitable authority enjoin showing that the strike a substantial and represents imminent to the danger Instead, health or the union safety. that in the absence of such a argues se showing, per prohibition constitutionally unsupportable. form and be represented unions is a fundamental by American workers that has been extended to public employees statute; constitutional

through case, as well adjudication37 it is made, 35Had such a showing been the trial authority court would then have had the injunction strikes, issue an illegal. involving declare the strike In cases sanitation length often the (See, of the strike ultimately require injunction. which will issuance of an e.g., Highland 459, I.B.E.W., Sewer and Water Auth. v. Local Union 67 Pa. 564, 565-567.) addition, D. & C.2d particular jobs by striking if performed sanitation or public employees other require unique training, skills and it is that a conceivable agency might matter, however, adequate unable to find replacements. In the instant replacement personnel adequately any signif maintained needed sanitation services without Further, icant threat of public. harm to the allegations the District’s of vandalism the (see 4, ante), acts, strikers fn. perhaps citing illegal while no individual were means enough to render the illegal entire strike or even a substantial threat. 36The trial court in this finding regarding matter had no reason to make a the threat to safety health and posed by merely prior strike. The court relied on Court of Appeal opinions, which had public employee per illegal held that were se specific future, absence of a statutory grant. clearly required In the trial courts will be to cases, make such finding. In scope appellate ordinarily these the of will review be limited determining to grounds whether reasonable existed for the trial court’s decision. attack, 37In upholding the against National Labor United Relations Act constitutional the Supreme recognized

States Court right organize purpose that the to for the of (Labor bargaining (1937) collective Laughlin is fundamental. Board v. Jones & 301 U.S. 1, 893, 909, 615, 33 1352].) L.Ed. [81 57 S.Ct. 108 A.L.R. It join is also axiomatic that organizations protect form and labor to their disputes, interests in labor long recognized and the Supreme United States Court has the circumstances concerning “[i]n of our times the dissemination of information the facts dispute of a labor regarded guaranteed must be as within that is that area free discussion by (Thornhill 88, (1940) the Constitution. Alabama 310 U.S. 102 L.Ed. v. [Citations.]” [84 588 the In mandated MMBA itself.

specifically by provisions “ addition, combine to lawfully is now settled law that workmen may ‘[i]t exert various forms of economic an upon provided pressure employer, relation object sought to be has reasonable to the accomplished thereby conditions, (Cita honestly. betterment labor and act and they peaceably tions) This is federal Constitution as an incident of right by guaranteed freedom of and it is not speech, (citations) dependent and press assemblage, the existence of a labor between the and his upon controversy employer ” (In 643, 892], P.2d Blaney (1947) re 30 Cal.2d 648 employee.’ [184 676, (1942) Steiner v. Beach No. 128 Cal.2d 682 quoting Long Local 19 20].) P.2d [123 contends, however,

As the union little to unionize means unless right it is accorded some its aim—effec- degree protection regarding principal tive collective For to meaningful, employee such bargaining. bargaining must least its ability maintain to or at threaten groups apply pressure A to so. creditable strike is one means of As application. right doing yet, however, the to strike has been accorded full constitutional right pro- tection, view because of its being that prevailing “[t]he interest, more serious is vulnerable more impact upon regu- than the lation and select lawful organize pur- representatives as a collective which this Court has ‘fun- poses bargaining characterized ” (Auto. 336 damental . . .’ Workers v. Wis. Board U.S. right. 651, 666, 516].) 259 L.Ed. 69 S.Ct.

Further, the federal ban on has been specifically employee Postal United Federation constitutionally permissible. upheld Blount, 884; 802 Clerks v. affd. U.S. supra, F.Supp. 1093, 1102, addition, 736].) undertakes con- organization S.Ct. whenever a labor assemble, activity has activity, organizational its certed members exercise their and (Thomas U.S. been held to be a of that v. right. lawful exercise Collins L.Ed. S.Ct. through the Fourteenth assembly to the speech applicable The freedoms states 954]), (Hague 59 S.Ct. Amendment O. U.S. 496 L.Ed. v. C. I. Supreme Court by the States may explained United be exercised in an economic context. As view, private points of advocacy both in N.A.A. C.P. v. Alabama: “Effective association, ones, as this Court group particularly undeniably controversial enhanced the freedoms of close nexus between recognized by remarking upon more than once has engage in association freedom to assembly. beyond It is debate that speech and [Citations.] ‘liberty’ aspect assured inseparable for the of beliefs and ideas is an advancement Amendment, of speech. freedom which embraces Due Process of the Fourteenth Clause course, advanced asso- sought to be Of immaterial the beliefs it is whether [Citations.] matters, economic, state action which or cultural pertain political, religious ciation scrutiny.” to the closest subject curtailing have the effect of the freedom to associate 1488, 1498, Alabama, 78 S.Ct. (N.A.A.C.P. L.Ed.2d U.S. 1163].) constitutional any explicit In the absence L.Ed.2d 92 S.Ct. the law that strike, court reasoned the Blount right protection a rational have only need striking from prohibiting then easily The court guarantees. basis to avoid constitutional offending above) in detail (discussed justifications found that the common law policy (See, United se a rational basis for the per prohibition. did indeed provide Blount, at supra, Federation Postal Clerks v. however, the wis- commentators, have questioned and

Thoughtful judges They strikes. se of public employee dom of upholding per prohibition so inextricably to strike is that because the right have persuasively argued and collec- to organize intertwined with the fundamental recognized right extended should be some of constitutional tively protection bargain, degree in sectors. to the act of both the and striking private in United Feder- As J. declared his concurrence Judge Skelly Wright Blount, labor of a Postal the inherent purpose ation Clerks v. “[i]f on management, interests to bear is to workers’ organization bring means of effec- is, an important to strike right historically practically, no strikes, can make A or which that union that never tuating purpose. That fact is wither in ineffectiveness. away

credible threat to decisions, Indeed, in several not irrelevant to the constitutional calculations. of association right Court held that the First Amendment has Supreme activities which give

is at least concerned with essential organizational . . . its fundamental purposes. [Ci- association life particular promote the right with co-equal I do not that the to strike is right suggest tations.] is, to strike But I do believe that the right to form labor . . . organizations. least, discriminatorily not be within constitutional concern and should (325 F.Supp. without justification.” substantial or

abridged ‘compelling’ 879, 885.) offered similar Court

Chief Justice Roberts of the Rhode Island Supreme “Obviously, in that state: sentiments in a case a teachers’ strike involving union, and a union a labor to strike is essential to the viability right survive pressures which can make no credible threat of strike cannot fundamental to the world. If the to strike right industrial present-day union, must be subsumed existence of a labor that bargaining process, . The collective collectively. . . organize bargain strike, would be if it not include a constitutionally protected does I cannot agree ritualism. ... little more than an exercise sterile welfare threatens the necessarily every strike public employees instances many . The fact is that . . governmental paralysis. interest threat to the public the far more serious by private employees pose than would many short, those engaged by public ... employees. to me appears that to all deny to strike because right they employed the public sector would be arbitrary unreasonable.” (Sc Committee v. Westerly Teachers Ass’n Ill R.I. 96 hool 441, 447-449], A.2d dis. opn.) We are not persuaded that the freedoms the United personal guaranteed by States and strike,38 California Constitutions confer an absolute but right the arguments above merit consideration at If some future date. to strike right is afforded some constitutional as derivative of the protection fundamental association, of freedom of then this cannot be absent a abridged substantial or compelling justification. As this court stated in Vogel v. Los County Angeles 18,

Cal.2d 409, 961], Cal.Rptr. P.2d which invalidated a loyalty oath state, requirement “even where a com state pelling purpose present, restrictions on the cherished freedom of association the First protected by Amendment and made to the applicable states the Fourteenth Amendment must be drawn with narrow specificity. First Amendment freedoms are delicate and vulnerable and must pro tected wherever possible. When government seeks to limit those freedoms on the basis of legitimate substantial . . . those governmental purposes cannot purposes be pursued by means that stifle fundamental broadly per sonal liberties when the end can be more achieved. Precision of narrowly regulation is required so that the exercise of our most freedoms precious will not be unduly curtailed to the extent necessitated except legiti mate governmental objective. (Keyishian v. Board Regents, supra, 589, 602-603; Russell, U.S. 11, 15, v. U.S. et seq.; Elfbrandt Button, Tucker, 415, 432-433; N.A.A.C.P. v. 371 U.S. Shelton v. 364 U.S. 488; Dist., Bagley v. Washington Township Hospital 65 Cal.2d 499, 506-509; Com., Fort v. Civil Service supra, 61 Cal.2d 337- 338.)”

As above, discussed at the traditional length justifications espoused in favor of a se cannot per prohibition withstand a significant degree Indeed, judicial scrutiny. since not all services are essential public employee and many private employees services more vital to the health perform 38As stated in the Supreme Dorchy United States Court in com v. Kansas: “Neither the mon law nor the (,Dorchy Fourteenth Amendment confers the absolute to strike.” 248, 269, 86].) Kansas Similarly, 272 U.S. L.Ed. 47 S.Ct. we do not comparable find that the personal guaranteed by freedoms the California Constitution confer (See, an absolute right e.g., to strike. In re 28 Cal.2d P.2d Porterfield 167 A.L.R. sector, than do their the safety in the counterparts public simplistic does not constitute a public/private dichotomy “compelling” justification for a se Thus the constitutional per prohibition strikes. public employee dismissed, of defendant union and be arguments easily several amici cannot since we will retain be particularly the limitation that strikes public may when prohibited they threaten the or safety.39 health public Since we have concluded se already that the traditional per prohibition common against public strikes can no employee law longer upheld we do grounds, not find it in necessary to reach the issue constitutional terms. we are Although not inclined to hold the to strike that rises to the of a magnitude fundamental it does that associational right, appear rights implicated such, a substantial degree. As the close connection be- tween striking other adds further constitutionally protected activity to our weight rejection traditional common law rationales underlying the se Environmental & per (Cf. Planning Council prohibition. Information 39Contrary to the characterization of our dissenting colleague, applaud we neither nor disapprove of by public employees as a in policy, present matter social for the state of state, the law that is not our function. The old rule in this to the effect that strikes by public unlawful, employees are expressly upon premise wages rested the and con employment ditions of public employees for may only be set unilateral action of the public employer, and bargaining that collective contrary for such in itself was public policy. rule, Legislature It is the which has underpinnings removed the the old from by sanctioning system bargaining collective government employees. local At the for time, Legislature same has stony regarding maintained a public silence the status of employee strikes under statutory the new scheme. To the extent that we examine alternative justifications strikes, which have been support asserted in only a ban on such we do so to determine any justifications whether there are such compelling require which are so as to acceptance by the legislative courts even in the absence of action. We find an affirmative answer as regards imperil safety. those strikes which or public health As to other strikes, debatable, we policy conclude that questions highly involved are and best left to legislative branch in the first instance. nothing We find dissenting opinion logic. “cogent which detracts from this analysis” upon which the dissent relies for underlying “the various rationales the ‘no strike’ (post, 610) rule” p. nakedly refers employment relationship” “differences between sectors, public private preservation system government to “the in the ambit public employment and proscription practices compatible public with the em- (Id., ployer-employee relationship.” p. significant What the differences are which rule, require a why different or incompatible employer-employee strikes are with the rela- sector, tionship in Surely judicial we are not complex told. intervention in so an requires greater justification arena than that. The dissent decries perceives ambiguity also what it prohibiting be the our rule health, strikes which public safety threaten preference or and states for those statutes which clearly define classes of employees may may who or not strike. The formulation we have however, adopted, (ante, 585), is in accord with the rule in states and the several dissent points to no evidence incapable judicial that such a rule is of effective administration. On contrary, rule, such a depends upon which an assessment of detriment from a particular entirely equity. accord with the traditional role of courts in If Legislature rule, adopt wishes to a different of course it do so. 680 P.2d Cal.Rptr. Court 36 Cal.3d Superior to engage for

We conclude that it is not unlawful their wages of improving a concerted work stoppage purpose work that the stop it has been determined conditions unless employment, Since the trial health or safety. an imminent threat to poses page an erroneous in this case was predicated upon court’s judgment damage unlawful, for dam the judgment that strike was determination defendants’ cannot be sustained.40 ages is reversed. judgment

Mosk, J., Grodin, J., concurred. strike holds that a KAUS, peaceful I concurin insofar as it the judgment J. for damages against rise to a tort action does not by public employees give Act which the union. I am aware of in the Meyers-Milias-Brown nothing tort remedies should common law that the intended that suggests Legislature I believe context, endorsement be in this and without such legislative applied situa- devised for different it is that were tort remedies improper import City noted in As this court tions into this sensitive labor relations arena. 13 Cal.3d County Cooper San Francisco v. should to what sanctions “The question P.2d Cal.Rptr. 403]: in strike illegal who engage be on appropriately imposed public employees itself, issues of which, in raises significant is a one activity complex to deter public employee In have attempted several states policy. past, on striking sanctions statutory strikes draconian mandatory imposing demonstrated, however, that has all too frequently employees; experience are coun- harsh, but instead such do not prevent automatic sanctions and prolonging friction exacerbating employer-employee terproductive, that Legislature work In the absence of a determination stoppages.” action, jury many determined aby a tort in a award money damage resulting with method for dealing is the after years appropriate own, should, on embrace strikes, its I do not believe the judiciary employee Lamphere Sch. v. (See, e.g., Lamphere this “solution” to the problem. 818, 827-832, N.W.2d Teachers 400 Mich. Fed. Wholesale, Retail, (W.Va. 1980) etc. 314]; Fairmont v. City A.L.R.3d Local 592-595; Firefighting City State v. Kansas 283 S.E.2d contra Pasadena Federation Dist. v. upon 40The court relied Pasadena Sch. trial Unified 41], conduct of an which held that the Cal.Rptr. Cal.App.3d Teachers held that the Since we have damages be recovered. illegal strike was a tort for which decision. consider the correctness illegal, in case was not we need not strike 1984) 107-116.) I would therefore disapprove 672 S.W.2d (Mo.App. Federation Dist. v. Pasadena contrary Pasadena Sch. holding Unified Teachers Cal.Rptr. Cal.App.3d 41]. not lie these circum- that a common law tort action does concluding stances, or it is not to determine whether such a strike necessary “legal” circumstances, sense, whether, in an abstract and under what “illegal” such a strike could relief enjoined. injunctive properly question of a tort presents different considerations than the significantly propriety action, and it is not before We should await the facts of a us this case.

concrete before resolve dispute we it. attempt I believe it an

Finally, unwise to venture equally opinion potential view, constitutional In my to future action this field. challenges legislative we should—if to deal anything—be encouraging Legislature attempt area, with the difficult in this not it frightening away policy questions with minefields. premature constitutional warnings possible J.,

Reynoso, concurred.

BIRD, J.,C. Concurring.

I write because I it is fair to the separately only give Legis believe lature some guidance in an area filled with constitutional To problems. the to not

prompt Legislature only enter this field without such guidance1 invites error but encourages it. Such a practice disingenuous, to the disrespectful and misleads the litigants knowingly public.

Today’s decision the law of strikes into the 20th brings public employee court ex- century makes the common law As the has contemporary. the flat

plained, such strikes was outmoded prohibition grounded against notions sovereignty and unreasoned fears of free labor organization.

It is that affirmation of the to strike should come appropriate today’s right so soon after the the Pol- Solidarity, events strike tragic surrounding ish labor union. to The strikers Solidarity proclaimed rights orga- nize and to treatment on the collectively job strike for and better dignity were fundamental declared human freedoms. When the Polish government martial law and union in Americans espe- December suppressed cially mourned the of these basic liberties. loss ante, Grodin, Kaus, concurring opinions 1See In re Misener J. and J. See also antecedent,

page People v. Collie Cal.Rptr. and its P.2d 637] 776], graphically illus Cal.Rptr. Cal.3d 43 634 P.2d which A.L.R.4th very problem. trate this strength The reaction to the strike revealed the Solidarity feature of American is an essential belief that to strike people’s right dominated business society. free In an economy large-scale increasingly withhold their governmental organizations, right power. labor as a abuses of protection against employer is an essential group 184, (See, (1921) 257 U.S. Tri-City Amer. Foundries v. Council e.g., Hence, 189, 199, it is widely L.Ed. 42 S.Ct. 27 A.L.R. for just work that “we have the free men refuse to presumed right as & (Reagan an citizen.” any the strike is unalienable grievances: weapon Hubler, Rest of Me? Where’s the have constitu- that the strike majority opinion suggests right ante, 589-591.)

tional I write separately dimensions. (Maj. opn., pp. history elaborate on to strike a long this has point. Although have eluded American its theoretical foundations textual and jurisprudence, Instead, minuet around courts have danced a comprehensive analysis. issue. that which has so frequently The time has come to make explicit country If indeed been to strike does differentiate presumed. free, enforced. from those then given that are not it must substance to strike on a number of bedrock principles: constitutional rests security the basic and economic personal liberty pursue happiness Const., Amends.; (U.S. Const., 5th 14th Cal. productive labor through I, 1, 7, (a)); (2) involuntary art. subd. the absolute prohibition against §§ Const., (U.S. Const., Amend.; I, 6); and the servitude 13th Cal. art. § Const., (U.S. fundamental of 1st freedoms association and expression Amend.; Const., I, 2, (a), 3). Cal. art. subd. §§

It is the freedom to withhold beyond personal that individual’s dispute free of Without this “liberty.” service basic to the constitutional concept dom, unable of mercy would be total their employers, the working people intolerable to to from an either extricate themselves bargain effectively right Such of fundamental mockery situation. a condition would make a the life, in the occupations to and common pursue liberty happiness by engaging Inn, 1, 17 (1971) 5 Cal.3d (See Kirby Sail’er Inc. v. community. 529, 351]; City see Nash v. 485 46 also Cal.Rptr. P.2d A.L.R.3d of 688 P.2d Cal.Rptr. Santa Monica Cal.3d 894] as (conc. Bird, service J.) of C. to withhold dis. opn. [right personal id., (dis. interest]; at p. landlord is a liberty constitutionally protected in Const., 13th Amend. Mosk, J.) [same]; of [prohibiting cf. U.S. opn. Const., [same].) I, servitude]; voluntary Cal. art. § the Nevertheless, withholding concerted country, of this early years the doctrine of “criminal conspiracy.” of labor was outlawed under Greene, 2-3, Frankfurter & The and cases cit- Injunction pp. Labor ed.) workers—with the Although slaves—enjoyed the of chattel exception individuals, to leave from as were employment they prohibited doing (Ibid.) as a so the that group. working people courts assumed Apparently, could their adequately liberty personal interests their protect by exercising to terminate labor mar- employment and as individuals compete ket. written, “[sjome

As Archibald Cox has of consti- major problems tutional law arise . . . from the born of an necessity guarantees shaping individualistic society to the from the of or- solidarity conditions resulting (Cox, Strikes, ganized the Constitution groups.” Picketing and Cox].) Vand.L.Rev. recognition group rights [hereafter for laborers trailed behind the the modern cor- business legal acceptance form poration, group property ownership.2 strike was initially as labor’s regarded counterpart

massive economic power concentrated With rise of corporation. monolithic business it could no enterprises, maintained em- longer freedom to ployees’ in the labor compete market individuals would be sufficient to their protect interests. In a famous liberty dissenting opinion, Justice Oliver Wendell Holmes observed: “One the eternal conflicts out of which life is made is that between up the effort man every get most he services, can for his and that of disguised under name society, capital, his get services for least on return. Combination possible the one side is patent Combination is the nec- powerful. other essary desirable if the battle is be carried on a fair counterpart, equal (Mass. 1896) way.” (Vegelahn v. Guntner N.E. (dis. Holmes, J.).) opn. view,

In Holmes’s the to strike to this combina- right was latter integral tion: “If it view, be that true with a other workingmen may among combine labor, to things, as much getting as can for their they just capital may return, combine with a to view the be getting greatest it must true possible that, combined, has, when have same that they the combined liberty capital to their support interests or by the bestowal re- argument, persuasion, 2The corporate modern form of organization, grants corporate management which the shareholders, powers broad to part century. act on behalf of 19th emerged in the latter Means, generally, Property Berle & Corporation The Modern and Private 127-152.) 1890’s, pp. During corporations Supreme the United States Court ruled that (See, possess rights. Chicago, Railway constitutional e.g., &c. Co. v. Minnesota 970, Smyth 134 U.S. 418 [“liberty”]; L.Ed. v. Ames 169 U.S. [33 462] S.Ct. 819, L.Ed. [“property”].) [42 18 S.Ct. 418] (Vegelahn control.” lawfully

fusal of which otherwise they those advantages Guntner, v. 44 N.E. at supra, p. States Su

This the United adopted by theoretical foundation was later Taft, the court declared: In an Chief Justice by Court. preme opinion A the situation. single out of necessities of organized were “[Unions] He was dependent was in with an employee helpless employer. dealing himself If family. on his the maintenance ordinarily daily wage fair, he was thought him that he wages refused to employer pay unfair resist arbitrary nevertheless unable to leave the to employ to deal on equal to laborers treatment. Union was essential give opportunity him and to upon with to exert influence They their united ity employer. inconvenience, to order, to induce him make leave him in a in body, labor of economic better with their They withholding terms them. were was to combine value to make him worth. they thought right what pay has, been by any denied years, for such a lawful purpose many Council, (Amer. U.S. court.” Foundries v. Tri-City 199].) L.Ed. at p. [66 court,

A Justice writing, few later the with Chief high Hughes years in “collective action” was asserted that the to right engage (1930) 281 to v. Clerks U.S. (Texas “not & N. O. R. Co. disputed.” Ry. 427].) the court Finally, pro L.Ed. 50 S.Ct. were “fundamental” claimed that employees’ rights self-organization 1, 33 (Labor & 301 U.S. L.Ed. nature. Board v. Jones Laughlin 893, 909, 57 S.Ct. 108 A.L.R. included these forceful Court suggest Supreme statements

Though Constitution, that to strike those liberties protected among Instead, court a federal district was never proposition asserted. squarely “The peace was the terms: unambiguous first define the work, one, and to choose or to work or refuse ably strike participate work, like to make one will the right the terms and conditions under which not condition which state may fundamental human liberties speech, community.” danger in the absence of and immediate grave abridge 51, 61, dism. (D.Kan. 1945) app. 60 F.Supp. v. Mitchell (St apleton a Kansas [invalidating U.S. L.Ed. 66 S.Ct. stip., 326 172] strikes]; also activities, see Al including law that various labor prohibited So.2d 246 Ala. 1 McAdory (1944) Labor abama State Federation all strikes not 810, law down Alabama that prohibited [striking 827-828] of the struck employer’s employees].) endorsed aby majority “liberty” constitutionally protected The strike as a status of of set Justice fairness forth from the considerations only arises not Holmes and but from the inherent Chief Justices Taft and also Hughes, Frankfurter, nature of words Felix of coming work. of Justice “[t]he men the machine tended to It turned age human despoil personality.

women into The industrial Nineteenth history early Century ‘hands.’ demonstrated the human of the individual to achieve helplessness employee in a dignity so affected advances. Hence the society largely technological union felt, trade made as weap itself not an increasingly indispensable of on self-defense on the of but of workers as an aid to the part well-being society merely which work is an of life and not the means expression (A.F. (1949) of earning subsistence.” v. American Sash Co. U.S. of L. 538, 222, 225, 258, (cone, 542-543 L.Ed. 69 S.Ct. A.L.R.2d 481] Frankfurter, J.).) of opn. concern,

Perhaps to this response courts—including some California Court of no Appeal—adopted an absolutist distinction position, recognizing whatever between the of rights work as individuals or quit with, “It is group: work to deal every man to for or engage or to refuse with, to work for or to deal man or class of men as he sees any fit, whatever his motive whatever the without held resulting injury, being in any way accountable therefor. These exercised rights [Citations.] in association with others so have object as no unlawful view.” long they (Overland P. Co. Union L. 370-371 v. Co. 57 Cal.App. 412]; Tobriner, P. see also Picket Line: Eco Organizational Lawful ,

nomic Pressure Stan.L.Rev. 423 fn. 16 four spite [in separate opinions, the decision of court in Bldg. Parkinson Co. v.

Trades Council absolute Cal. P. rests 1027] a labor strike].) union to

It has been argued that constitutional would strike activities protection intrude on the function. courts have restraint in legislative exercised applying constitutional guarantee “liberty” determina- legislative tions economic This the diffuse restraint reflects the fear that policy.

concept could be a device for the liberty imposition employed judicial policy judgments. Lochner New York 198 U.S. Holmes, 937, 948-949, (dis. J.).) L.Ed. S.Ct. opn. 539]

Nevertheless, the mere fact matters that an enactment covers economic does insulate it from where an constitutional scrutiny important guar- antee is The Constitution certain implicated. expressly rights protects Const., Amends.; Const., I, (U.S. 5th and 14th art. “property.” Cal. §§ (a).) observed, subd. As which as- Professor Cox has constitution “[a] sures the owner of an to obtain a return on reasonable property opportunity his capital must interest in under recognize worker’s the conditions

598 (Cox, 4 supra, labors he for his

which he and the receives work.” price Vand.L.Rev.

Furthermore, an uncon- of the to strike does not require recognition right The courts can find judicial “liberty.” strained construction the term to strike and a constitutional nexus between the guidance right close (U.S. servitude. constitutional the ban on provision: involuntary specific Const., Amend.; Const., I, 6.) 13th might Cal. Though provision art. § itself does clear for support not guarantee provide constitutionally protected that the strike an exercise proposition liberty. declared,

Justice once case concerted Brandéis in a involving peaceful, case, “If, work: refusal to work refusal to on the facts of this undisputed for can be an enjoined, imposing created ... instrument Congress [has] (Bedford which servitude.” upon restraints labor reminds of involuntary 916, 37, 928, Stone 65 47 Co. v. Cutters Assn. 274 U.S. L.Ed. [71 522, Brandeis, Holmes, J., (dis. joined S.Ct. A.L.R. opn. 791] J.); (3d 1948) also Co. 166 F.2d Packing Dailey see France v. Cir. (dis. O’Connell, J.) War Labor Act to opn. [construing Disputes on involuntary in view of the constitutional ban voluntary strikes

permit servitude].) as inconsis Some courts have invalidated antistrike restrictions the ban Henderson v. Coleman e.g., tent with servitude. involuntary (N.D.Ill. 117, 121]; Petrillo Fla. 185 So.2d United States v. 1946) L.Ed. U.S. revd. F.Supp. 1538].)3

S.Ct. The close between to strike and prohibition connection the right 13th Amend- from the against purposes servitude derives involuntary That freedom to employment ment. amendment terminate guarantees sake, own which the not its but order to that control “prohibit[] service for another’s benefit of one man coerced personal disposed is the Alabama (Bailey which essence of servitude.” v. involuntary 191, 201, 219 U.S. L.Ed. 31 S.Ct. with formal merely the amendment is concerned

Accordingly, to protect the practical ability working people but also with quit, oppressive their interests in the defense workplace: against general “[I]n conditions, hours, is the change or treatment pay, employ working Petrillo, holding involuntary as to 3In the district court’s Supreme Court reversed face—prohibit not—on its solely on at issue did ground servitude restriction Petrillo, (United pp. States U.S. at L.Ed. at strike activities. 1885-1886].) pp.

599 the cannot the obli escape ers. When master can and the laborer compel on, to and no incentive above gation go there is no redress below power (Pol relieve a harsh or unwholesome conditions work.” overlordship lock v. Williams 322 64 S.Ct. U.S. L.Ed. [88 792]; Cox, 576.) see 4 Vand.L.Rev. at generally, supra, p.

As courts and commentators the acknowledge, group right universally strike has as the replaced the individual right “change employers” prin- defense of cipal conditions. rise of working people against oppressive multinational has a cor- corporations large-scale government produced responding decrease the of the for the quit practical significance right To individual. withdraw the to strike is to the worker of his right deprive ante, only (See her effective at bargaining power. maj. opn., 589- pp. 590; Krider, see also Burton & by The Role and Strikes Consequences of 418, 419-420, Public Employees (1970) cited.) 79 Yale L.J. and sources This undeniable fact reflected the to the intensity the reaction suppression strike. Solidarity

Over 30 years the ago, of whether the 13th Amendment question protects the to strike right was termed the justices “momentous” two United Co., States (A.F. Court. Supreme v. American Sash U.S. of L. at J., p. (conc. L.Ed. at p. opn. joined by Rutledge, 234] J.) Yet, Murphy, [expressly reserving the that court judgment question].) has never squarely addressed the issue.4

The notion of a 13th Amendment to strike been rejected by has some lower federal courts and state courts. These have on two lines courts relied First, of reasoning. some have that suggested the invol prohibition against untary servitude protects to withhold only personal (See, services as individuals. Western Co. e.g., Union Tel. v. International 994-995, B. (N.D.Ill. 1924) 1925) Workers (7th F.2d affd. Cir. of E. However, above, F.2d 444 1538].) A.L.R. line of explained 4The court came confronting closest to Board issue Auto. Workers v. Wis. case, 336 U.S. 245 [93 L.Ed. 69 S.Ct. In that a union had conducted series of 516]. meetings” “union irregular during at Employment times work hours. The Wisconsin Rela tions issued prohibiting any production Board an order with “concerted effort to interfere of the complainant except leaving premises orderly purpose an manner {Id., 661], going added.) p. on strike.” p. at L.Ed. at The court sustained italics (see the id., against challenge. order a 13th Amendment Whatever the merits of this conclusion p. (dis. J.) at p. opn. Murphy, majority at find the union’s [93 L.Ed. 671] [the effective]), objectionable tactic only because it is is clear the court did not decide general question guaranteed whether 13th Amendment to strike: “Our question beyond power . . whether it is prohibit particular . of the State to course {Id., p. conduct p. described.” at L.Ed. at in an activities of strike cannot the total justify nonprotection argument ante, 598- employers. economy large powerful dominated tem does not protect the 13th Amendment Other courts have held that Linoleum (See, Co. v. Carpet, of e.g., Dayton labor. porary withholding 183, 197-198], D., N.W.2d (1949) 229 Minn. 87 and Resilient Fl. etc. However, 1334, 570].) dism., L.Ed. S.Ct. 339 U.S. 906 app. servitude, “can involuntary view the on of purposes prohibition the estab merely or leaves matter whether the worker quits permanently be said to In former case he until the lishment conditions are changed? bidder, leaving the highest sell his services to exercising the to right to is seeking injure case he others to take former while latter his job, reasoning scarcely of But this labor. by cutting off employer supply of distinction, the improvement for in either case a constitutional justifies labor from of withholding ultimately conditions employment depends upon temporary perma until offer more. . . . marginal they employers [T]he (Cox, supra, of seems irrelevant.” nent character quitting 576-577.) Vand.L.Rev. pp. in- prohibition not here that

More it is fundamentally, suggested strike. right necessarily guarantees servitude alone voluntary standing however, for does, the proposition That provision provide ample support constitutionally pro- be counted those among that the strike must right freedom. “liberties” essential to human tected that are an protection concerted labor warrants withholding free- fundamental but as an incident exercise of also personal liberty, Const., Const., Amend.; Cal. (U.S. 1st doms of association and expression. to combine I, 2, 3.) out, of workers art. As majority point §§ ” “ is consti- on employers and exert ‘various forms of economic pressure’ ante, 588, re Blaney In at p. quoting tutionally protected. (Maj. opn., 892].) (1947) 30 Cal.2d P.2d form and unions. join the constitutional enjoy

Working people 1129, 1131; 1970) American (See, (5th Orr 427 F.2d Thorpe v. Cir. e.g., 1969) 406 State, Co., (8th Cir. Woodward Federation & v. Emp. Mun. strike, the 139-140.) constitutionally protected Without a F.2d in sterile than an exercise be “little more use these freedoms would Ass’n 111 R.I. Teachers (School Westerly ritualism.” Committee Roberts, J.); United Fed C. see also (dis. A.2d opn. 96 [299 448] 1971) (D.D.C. 325 F.Supp. eration Postal Clerks v. Blount 38, 404 U.S. 802 L.Ed.2d (conc. J.), affd. mem. opn. Wright, S.Ct. au-

Recent decisions consumer concerning boycotts provide persuasive for the of free thority protection strikes under the association guarantees were, strikes, Consumer like expression.5 boycotts originally prohibited Note, at common law. and the generally, Boycott Activity Political Amendment, 676-677.) First Harv.L.Rev. at pp.

However, in a series cases consumer civil involving boycotts rights advocates, strikes, the courts began boycotts, such like recognize necessary to entrenched economic provide counterweight power.

Justice Roger Traynor observed that their equality struggle “[i]n only effective economic have is the weapon Negroes purchasing power they are able to mobilize to induce to them. . . aOnly . employers open jobs clear danger community judicial would rules that restrict justify peaceful mobilization of a economic to secure economic group’s power (Hughes (1948) v. Court 32 868 P.2d equality.” Superior Cal.2d [198 (dis. J.), opn. (1950) affd. 460 Traynor, 885] U.S. L.Ed. [94 718]; S.Ct. see also Garner v. Louisiana 368 U.S. 201 [7 207, 239, Harlan, (conc. L.Ed.2d J.) S.Ct. First and opn. [the 248] Fourteenth Amendments sit-ins called to protect racial protest practices of private businesses].)

In NAACP v. Claiborne Hardware Co. 458 U.S. 907-915 [73 1215, 1232-1238, L.Ed.2d (hereafter 102 S.Ct. Claiborne Hard- 3409] ware), the United States Court Supreme held that peaceful, politically boycott motivated constituted an exercise constitutional freedoms case, Gibson, association and In that expression. black citizens of Port Mis- sissippi, boycotted white-owned businesses to those businesses and pressure elected public (Id., officials to implement of racial at policies equality. 898-900

pp. 1226-1228]; L.Ed.2d at C. [73 N. A. A. P. Claiborne pp. (Miss. 1980) 1290, 1295-1297.) Hardware Co. 393 So.2d The Mississippi Court Supreme affirmed the trial court’s that boycotted busi- holding (Id., nesses were entitled to at injunctive monetary relief. pp.

1302.) Hardware, (Claiborne

The United States Court Supreme reversed. at U.S. L.Ed.2d p. 1249].) at The court the com p. rejected [73 mon law view that boycotts were devoid of constitutional value virtue of their coercive nature. . “Speech does not lose its character . . protected simply (Id., because it may embarrass others coerce them into action.” Note, boycott Boycott Activity 5A an organized refusal deal. Political First boycott—i.e., Amendment A an Harv.L.Rev. strike is one form organized to provide refusal workers labor. entitled was contrary, boycott

at L.Ed.2d at On p. p. about bringing politi means as an effective and nonviolent protection at social, L.Ed.2d cal, (Id., at and economic change. pp. eco the States 1232-1238].) regulate Accordingly, pp. “[t]he the boycott. against justify complete prohibition” nomic could activity 1237].)6 (Id., at L.Ed.2d p. announced the principles has had occasion to recently apply

This court Council v. & Planning Hardware. In Environmental Claiborne Information 127, 680 P.2d Court 36 Cal.3d 188 Superior Cal.Rptr. 1086] to in- sought (hereafter group an environmental Planning), Environmental ad- businesses that by boycotting fluence a editorial newspaper’s policies suit brought claiming publisher in the newspaper. newspaper’s vertised with an economic relationship. tortious interference civil rights boycotts argument This court rejected publisher’s Hardware, in Claiborne “As should be accorded constitutional protection: boycott motivated . activities constitute ‘politically . . boycotters’] [the (458 at U.S. change’ to force and economic designed governmental environ 914[]), upon which seek bears they and the fact that the p. change different hardly than can support mental rather racial quality equality, 197.) at (Environmental p. Applying 36 Cal.3d Planning, supra, result.” guaran and state constitutional law federal principles light common in lawful tees, engaging environmental was the court held that the group (Id., 197-198.) at activity. pp. motivated” “politically

I no basis for protection see principled granting In boycotts. from labor while boycotts withdrawing consumer protection whether reserved the question Planning, expressly Environmental this court boy- and labor between political Claiborne Hardware's distinction apparent (36 at Constitution. Cal.3d cotts the dictates of the California reflects and of the United 198, 9.) of this court fn. decisions both p. prior activities used to boycott expressive itself and the analysis 6The covered both the court’s Hardware, (Claiborne L.Ed.2d pp. U.S. at 907-912 expand supra, [73 458 sustain and it. 1232-1236].) expression. a means of boycott at form of association and pp. at A is once a id., (See, e.g., assembly at and debate. boycott processes results from decision commenced, 1232].) boycott symbolic is form of p. p. at Once L.Ed.2d [73 target. views to the forcefully participants’ expression. obviously, Most communicates event, Further, platform with a boycott provides participants newsworthy as a by foregoing They platform public. pay for this explaining advocating and their views to the Berkeley Against Rent v. Control employment. (Compare the benefits of trade Citizens 498-499, 290, 492, contribution [the 102 S.Ct. 434] L.Ed.2d U.S. communicating advocacy the means for money since expenditure of are essential effective conveying short, boycott method costly].) nonviolent with participants’ views. intensity of the the content but also the entitled to full States Court indicate that labor should be Supreme boycotts constitutional protection.

Differential treatment and labor runs afoul the well- activity political established principle judicial impartiality among speakers messages. course,

“Of it is to be immaterial whether the beliefs advanced sought matters, economic, association or cultural pertain political, religious state action which have the effect of the freedom to associate curtailing subject (N. the closest A. P. v. Alabama scrutiny.” A. C. 449, 1488, 1498-1499, 1163], U.S. L.Ed.2d 78 S.Ct. quoted ante, 587, 37; the majority, see Environmental Planning, fn. also 36 Cal.3d supra, at p. labor

Similarly, unions are entitled to no less than civil protection rights organizations environmental “The inherent groups. speech worth in terms of its capacity for informing depend does not upon source, union, of its identity association, whether or individ- corporation, (First ual.” National Bank Boston v. Bellotti 435 U.S. 707, 718, L.Ed.2d 1407].) 98 S.Ct.

If these principles held judicial neutrality without sway qualification, the political-labor distinction could be without further rejected discussion.

However, as this court has “commercial” is ac- recognized, expression corded a lowered level of protection. Planning, Environmental 197; 36 Cal.3d at p. accord Bolger Drug Corp. Products Youngs U.S. L.Ed.2d S.Ct. The United States Court has defined commercial alter- Supreme speech as nately “speech which does ‘no more than a commercial trans- propose (Va. action’” Bd. Pharmacy v. Va. Consumer Council 425 U.S.

748, 346, 358, 762 1817]) L.Ed.2d 96 S.Ct. [48 related “expression solely to the economic of (Central interests its speaker and audience” 557, Hudson Gas & Elec. v. Public Serv. Comm’n 447 U.S. 341, 348, L.Ed.2d 2343]). S.Ct. Labor cannot re- expression

duced to such narrow concerns. It should not be relegated to lowered accorded protection commercial expression. issues,

Labor cover a broad disputes which involve basic range many concerns of “A liberty. collective is an effort to erect bargaining agreement ” system industrial (Steelworkers Warrior self-government. & Gulf Co. U.S. L.Ed.2d 80 S.Ct.

For the bulk of each day, codes conduct working people subject that govern their Those embodied in collective workplaces. codes—whether books, or informal practices—govern rule employer

bargaining agreements, (See bathroom. to use the from race relations matters ranging permission Reason, Contract, Shulman, in Labor Relations and Law generally, Shulman]; Cox, Harv.L.Rev. 1002-1008 [hereafter Reflections on the 1490.) While (1959) 72 Labor Arbitration Harv.L.Rev. Upon immediately more rules feel the force of these job, working people those government. than directly as informed liberty, the link the guarantee personal

Herein lies between servitude, freedoms of association ban on and the involuntary rival those addressed in the workplace The issues that arise expression. enjoyed liberty in their breadth actual political process impact worker’s de- strike an essential weapon by working people. man is service of one which the fense “that control against personal Alabama, (Bailey v. . . of or coerced for another’s benefit . .” disposed ante, 598-599. 201]; at pp. at at see p. 219 U.S. L.Ed. supra, p. And, favored methods constitutionally is a weapon employs ante, at p. association and change: expression. promoting peaceful working people the efforts & fn. the Constitution Surely, protects outspo- of nonviolent—albeit their liberties means preserve expand (Cf. Claiborne expression. ken and of association and impolite—forms Hardware, 1232-1236].) at pp. L.Ed.2d U.S. at pp. coexist discovered, cannot organization a free labor

As the Polish strikers bargaining no true: “Collective The converse is less with political tyranny. de- out, industrial establishing the means of as Brandéis today, pointed means of democracy, political as the essential condition of mocracy worth, freedom, the sense industry for the workers’ lives providing ” as citizens. them government promises and of that democratic participation 1002.)7 (Shulman, supra, 68 Harv.L.Rev. compensation members seek increased

The fact that unions and their of their grievances does not lower liberty expression well as greater labor of of Congress, In the words speech. “[t]he the level of commercial (15 U.S.C. of commerce.” is not or article commodity human a being a to rights rise of labor 17.) gives a the sale commodity, Unlike the sale of § only obtains not The employer time person’s activity. of control over a to dictate labor, power but also considerable product employee’s the Health, Dept. be generally, and how the work will performed. when system particular the bargaining. Whatever collective Constitution does not mandate 7The to is essential democ relations, relationship liberty employment degree a of labor racy. Welf., Ed. & Work in HEW Report].) America [hereafter is, tradeoff for subordination. amount a compensation part, personal Amendment, the 13th a This feature and benefits wages why explains defense op is concerned with “the guarantee personal liberty, against Williams, (Pollock hours, supra, conditions.” pressive pay working [and] .)8 322 U.S. at at p. L.Ed. p .1104] short, In for de- asserted distinction no basis political-labor provides to and unions the afforded civil ac- nying working rights people protection tivists and a restraint on the to strike right environmentalists. Accordingly, be if should under the California Constitution it serves a com- upheld state interest the least restrictive means.9 pelling century a ago, expressed 8Over eloquently liberty John Stuart Mill a view of in the em model,

ployment relation: “Human a a do nature not machine to built after and set to exactly it, tree, prescribed the work for requires grow develop but a which to itself sides, according tendency all living thing.” to the the inward forces which make it (Mill, (Shields Liberty 1956) 72.) On p. recently, widely recognized edit. More been has relating that (See, authority issues to importance and work content are of central in labor relations. Hill, e.g., 16-44; Report; Competition HEW pp. at Work Control Hir szowicz, (1982); (Kerr Sociology Industrial Work in Decade & America: The Ahead Rosow 1979); Martin, 125-129; Contemporary edits. Tepperman, pp. Labor Relations Not (1976); Servants Not Speak Machines: Office Workers Out Case Studies on the Labor Pro (Zimbalist 1979).) cess edit. question personal liberty Whatever one’s views on the workplace, it is clear controversy that debate over that issue cannot be reduced to purely the status of speech. “commercial” 9The notion that protects rejected the United right States Constitution was strike Blount, two-judge majority in United supra, Federation Postal Clerks v. F.Supp. However, affd. (hereafter Blount). mem. 404 U.S. 802 [30 L.Ed.2d S.Ct. 80] (See, possesses California Constitution independent vitality. e.g., Serrano v. Priest Hence, Cal.Rptr. Cal.3d P.2d Blount is authority binding as to the provide any state constitutional Nor claim. did Blount court persuasive reasoning in support holding. of its First, erroneously the Blount suggested court provided that since the common law no strikes, protection (Blount, for supra, neither did the United States Constitution. F.Supp. p. decision, at The court did not have the benefit of the Claiborne Hardware which held boycott constitutionally that consumer protected spite was of the fact that boycotts such prohibited (458 had been pp. under the common U.S. at law. 907-915 [73 Moreover, pp. 1232-1238].) L.Ed.2d at today this court overturns the common law ban on public employee strikes in this state. Next, the court fully asserted that the to strike for the protected was first time (NLRA). (Blount, section 7 of the National Labor F.Supp. Relations Act 882.) However, as the Supreme explained, Chief Justice of the Rhode Island Court has presumed the NLRA that working people already possessed right strike: “The fact is of7 that act § makes no mention to strike. 13 thereof reference is § Act, made the right to strike ‘Nothing except specifically provided as follows: herein, any shall be so impede construed as either to interfere with or or diminish in way right.’ Obviously, to affect or qualifications the limitations on that 13 is my § a rule of construction. It opinion recognized that the NLRA [Citation.] rights already which rights legislative labor had and was intended afford those extensive (School Ass’n, protection.” Westerly supra, (dis. p. Committee v. Teachers 299 A.2d at private employees be to

The to strike must guaranteed public right thereby do not sacrifice individuals employment, alike. accepting public Hos- Washington Township Bagley v. (See, rights. e.g., their constitutional 401, 499, 421 P.2d pital Dist. (1966) Cal.Rptr. 65 Cal.2d 503-505 of asso- freedom 409].) liberty, of guarantees personal constitutional ciation, to workers are no less important public of expression and freedom to other working than people. de- time, have been might on strikes

At one the ban employee However, be- to strike. scribed as a limited to exception general 1970, million from about 3.2 1930 and increased tween force, of public employ- As a the work to more than million. percentage with state over 15 percent, from 6.5 to approximately percent ment rose would an increase.10 There and local workers for most of the accounting to strike is that obvious were this court to inconsistency recognize to significant proportion that essential to free while society denying of the working population. lack constitutional protec-

It has been employee argued influ- a disproportionate tion since enable workers exercise they Roberts, J.).) opn. of C. present opinion. set forth in Nowhere did the Blount court address concerns prior Claiborne persuasive. In cases decided federal no more two Other authorities are Hardware, 886, rejected First Amendment supra, Supreme summarily Court 458 U.S. 607, (See (1980) 447 U.S. Employees claims labor unions. NLRB v. Retail Store boycott 377, 385-386, [upholding peaceful consumer restriction L.Ed.2d S.Ct. 2372] International, 212, Longshoremen 456 U.S. picketing]; Allied Inc. 32, refusing 21, longshoremen against [upholding prohibition 102 S.Ct. 1656] L.Ed.2d However, case, Union].) provided the court in each cargo bound to or from the Soviet handle boycott nature of explanation, relying mainly on the “coercive” paragraph one reasoning. Peaceful undercut this subsequent decision in Claiborne Hardware activities. (458 p. U.S. at spite aspects. their coercive boycott protected activities were held reftising apply this for Clearly, principled there is no basis L.Ed.2d at ante, 602-605; Three-Systems Pope, The see also pp. approach in the labor context. (1984) Hastings Const. Rungs and a Black Hole First Values: Two Ladder Amendment Getman, Policy L.Q. 189, 232-246; Limited Speech: Free The Curious Labor Law and 12-19; Emerging Right (1984) Maryland Harper, The Consumer’s Expression L.Rev. Labor Law Implications American Boycott: and Its NAACP v. Claiborne Hardware to (1984) Speech: Note, Picketing and Commercial Labor Harper]; 409 [hereafter Yale L.J. 938; Note, Speech L.J. 91 Yale Enterprise in the Doctrine Free Free Values (1982) 82 Colum.L.Rev. Picketing Amendment Labor and the First Peaceful Statistical of Commerce’s Department figures compiled 10These from United States were Abstract]; States, Statistical table No. 487 page Abstract of the [hereafter United Census, Commerce, Statistics Historical Bureau Department 1 United States 127; 11-25, 2 United States States, page Series D Colonial Times to 1970 United States, Commerce, Census, of the United Statistics Bureau of the Historical Department 308-317, 272-289, page Y Series page Y Times Series Colonial 332-334, page Y 1104. Series view, ence on the In this political process. the announced in principles Claiborne Hardware should to consumer apply boycotts. power to withhold is said to be patronage power less than the to with- dangerous hold labor (See because consumer is more power widely dispersed. gener- ally supra, 426-427.) Harper, 93 Yale L.J. at pp.

However, the the present majority coercive opinion explains, potential of public strikes is con- employee sharply limited economic and political ditions. Many services can be government over substantial foregone periods without serious harm. Others can be to contracted out private industry.

Where fees, services are financed user can exert users effective pres- sure against least, strikers. Last but taxpaying public general (See mounts effective frequently to opposition maj. strikes. public employee ante, 578-579.) at opn., pp. level,

On a deeper the constitutional behind considerations to are, strike if anything, more than those compelling to supporting withhold strikes, patronage. Consumer boycotts, unlike do not implicate either the fundamental liberty pursue labor or the happiness through pro- ante, hibition against (See 596-600.) servitude. at involuntary pp.

Furthermore, the argument of influence is “disproportionate” political untenable view of the United States treatment of mon Court’s Supreme wealth, etary the most perhaps concentrated form of economic power.11 Restrictions on political expenditures and contributions are to strict subject judicial 1, scrutiny. 15-19, v. Valeo (Buckley (1976) 424 U.S. 58-59 [46 659, 685-688, 710, L.Ed.2d 612].) 96 S.Ct. as well as indi Corporations viduals enjoy concentrated employ political wealth process. (F Bellotti, 777, National Bank Boston v. 435 U.S. supra, at pp. irst 789-792 725-728].) L.Ed.2d at pp. Against Rent Control Berkeley, 27 Cal.3d City supra, Citizens

819, this court addressed the of a constitutionality ordinance Berkeley city that prohibited $250 contributions of more than committees per person formed to support or held or- oppose ballot measure. The court that the dinance was necessary serve the interest in governmental compelling 1972, percent As of population personal held percent over the nation’s Abstract, 218,000 794.) wealth. p. Statistical at table Some individuals No. possessed (Id.., $10 estates worth over million each. table No. As this court recognized, has possessor such wealth can disproportionate enable exercise a influence political (Citizens on the process. Against City Berkeley Rent Control v. 27 Cal.3d 742], Cal.Rptr. Against Rent P.2d revd. sub nom. Citizens Berkeley, supra, Control v. 454 U.S. 290 102 S.Ct. [70 L.Ed.2d ref- dominating from interest groups well-financed

preventing special 825-829, 832.) (Id., at process. pp. erendum (Citizens Rent Con- Against Court reversed.

The United States Supreme CARC].) court high The Berkeley, supra, 454 U.S. 290 trol [hereafter to effective was essential of financial resources reasoned that the pooling (Id., mail. at and direct costs of rising advertising because advocacy 499]; Election Commission accord Federal p. fh. 5 L.Ed.2d at p. — ——, U.S. Committee Political Action v. National Conservative Further, 1459, 1467-1468].) the court 455, 467-468, L.Ed.2d 105 S.Ct. the use of concentrated could restrict this court’s view that the city rejected in others voice to assure an equal interest order by wealth special groups at L.Ed.2d (CARC, 454 U.S. 295-296 supra, pp. the political process. 498-499].) at pp. Hardware, clear court made supra, high

In Claiborne U.S. was not limited to advocacy expenditure concern for effective that its by primarily a that is money, power possessed form economic CARC to cover the Instead, reasoning the court extended wealthy. available economic influence a form of collective withholding patronage, 1232- at (Id., pp. L.Ed.2d ordinary to consumers. at pp. labor, is no less withholding for the combination purpose the landlords of wealth to to was the working pooling essential than people to the civil power in CARC or the collective withholding purchasing cannot com- working people in Claiborne Hardware. While activists rights for access to mass paying with individuals or pete wealthy corporations attention communications, their causes the public’s can they bring capacity in abundance—the the one asset that they possess withholding labor. engage productive that are scarcely working protections

This court can deny people As Jus- by other groups. the forms of economic power possessed accorded observed, ideal standards “should not impose the courts Traynor tice once when society] they powerless conflict groups on one side among [of Court, v. Superior (Hughes the other.” impose similar standards upon J.).) (dis. 32 Cal.2d at Traynor, p. opn. law’s flat prohibition the common It remains determine whether state interest. necessary compelling to serve public employee for that justifications refuted the traditional majority convincingly have com- ante, state has a 573-580.) (See Although at maj. ban. opn., pp. health to the immediate serious threats interest in averting polling means the least no strikes is employee a flat ban on safety, id., 580.) Accord- that end. method for accomplishing restrictive but law common principles not only by today’s holding compelled ingly, also the California Constitution. Broussard’s plu- Justice I have

GRODIN, J., signed Concurring. Though in to the concerns expressed in response I write rality separately opinion, Justice Kaus. the concurring opinion by with to regard in to distinguish,

I there is little merit attempting suggest Act, between Meyers-Milias-Brown covered the strikes by employees of a availability and the at common law the of an availability injunction rise to a violated, can give If the violation action. an damage injunction The imposed. in for sanctions monetary which proceeding contempt common law predicate there exists a is whether underlying legal question holds, the Meyers- I that and agree, for either The remedy. plurality opinion which justification theoretical Milias-Brown Act has removed principal local that all strikes been advanced in this state for the proposition had suf- justification no alternative Finding are tortious. government employees courts in the absence to ficiently compelling require acceptance health or action, which imperil public legislative regards except court, where the ball in the Legislature’s safety, opinion properly places {Ante, 39.) it fn. belongs. p. for a wide range policies

Other states and countries have developed strikes, in which one clearly with and the arena dealing public employee Kaus’ I share Justice should be encouraged. Consequently, experimentation constitutionality any to concern that we should not attempt prejudge it un- finds opinion explicitly particular legislative response. plurality I {ante, 591), and as terms p. to reach the issue in constitutional necessary to demonstrate that in order only understand discusses the Constitution com- exists an absolute were we to the district’s there adopt position—that stat- of the strikes in the context present mon law ban public employee would dimension of constitutional scheme—substantial utory questions {Ibid.) that I join opinion. arise. It is with that understanding in this view, In LUCAS, my public dissent. I respectfully J. right. any nor have that they neither have the should

state to the basic event, in fashioning exceptions of the light difficulty proper from rule, arising and safety and the health dangers public “no strike” de- services, courts should even a cessation of temporary governmental exceptions. to create such fer to the far better Legislature, body equipped of the as a majority paints glowing picture strike weapon 581), means of (ante, relations” “enhancing] labor-management 583), “equalizing parties’ respective bargaining positions,” (p. assuring {ibid.), faith” collective “good a clear incentive bargaining “providing (ibid.). Indeed, with resolving disputes” so enamored is the majority strike that it concept elevates heretofore device illegal (Ibid.) a “basic civil liberty.” wholly unnecessary opinion, its Though majority dictum even have suggests that public employees may constitutional strike which cannot be absent legislatively abridged (P. some “substantial or compelling justification.” Thus, in the face of an unbroken of Court of cases com Appeal string which mencing nearly years ago hold that strikes are we illegal, suddenly announce our strikes are not lawful finding cases, most but indeed for of the social they may many constitute panacea wonder, and economic ills which have beset the sector. One long may public do, as I we for El why revelation a secret all these kept years. Rancho School Dist. (1983) v. National Education Assn. 33 Cal.3d Unified 946, 123, Richardson, 962 663 P.2d Cal.Rptr. opn. by [192 893] [conc. J.].) encomiums,

Despite strikes the fact remains that majority’s hours, devastate a within a matter of or even on city days, depending reason, others, circumstances. For this of this many courts among (and state the vast of courts in states and the majority other federal govern ment) above, have declared all strikes As indicated until illegal. today the Courts California of had followed that rule. uniformly Appeal (See, (1979) e.g., Engineers v. San Juan Suburban Water Dist. Stationary 796, 90 666]; Cal.App.3d 801 Pasadena Sch. Dist. Cal.Rptr. [153 Unified v. 100, Pasadena (1977) Federation Teachers 72 105-107 Cal.App.3d of den.; 41], Los School United Cal.Rptr. Angeles [140 Dist. v. hg. Unified 806], (1972) 142, Teachers 24 145-146 Cal.App.3d Cal.Rptr. hg. [100 den.; 1352, Trustees Colleges Cal. State v. Local S.F. State etc. Teachers of (1970) 863, 134], den.; 13 867 San City Cal.App.3d Cal.Rptr. hg. [92 Diego v. American Federation Employees State etc. 8 Cal.App.3d 258], den.; 310 v. Sacramento County Almond Cal.Rptr. hg. [87 518], den.; Pranger v. 35-36 Cal.App.2d Cal.Rptr. hg. den.; Break (1960) 293], New Cal.App.2d Cal.Rptr. hg. marker v. Regents Univ. Cal. Cal.App.2d 558]; P.2d Los City Cal.App.2d etc. Council Angeles of L.A. 305], den.) P.2d hg. Justice Diego cogent San case offers a Coughlin’s opinion City of “no He ob- analysis the various rationales strike” rule. underlying is the generally accepted “This common law rule served that California [Citations, from including cases rule in common law many jurisdictions.

states.] statutorily by confirmed

“The common law has been adopted rule federal states and the government. [Citations.] not do have The common rule

. . law [that] necessity strike is collectively predicated expressly or to bargain Where a statute lack of such authority right. for and statutory conferring within meth- collective and strikes includes them authorizes it bargaining law conditions employment. ods authorized terms and fixing strike present Those who advocate the should public employees case to the Legislature. their [Italics added.] raised,

“Wherever the issue held laws has been been governing has activities, collective rights engage bargain- union and other coercive ing, applicable private practices, equally versa, and vice employees, on a premised constitutionally approved classification; and, reason, for this are violative constitutional not guarantee of law. for equal protection of the The reasons [t] [Citations.] the law strike while such denying public right affording to to of jobs are not on differences private employees premised types two held these employ- classes but differences upon ment which are relationship compelling they parties. legitimate interest em- state the law accomplished promoted denying public ployees strike is not for a solely particular governmen- need tal service but the of a the ambit of preservation system of government with the compatible and the employment proscription practices (8 employer-employee relationship. Cal.App.3d [Citation.]” 311-315.) pp.

The decision to a delicate and allow public employee requires undertaken which complex balancing process Legislature, may best formulate a to avoid the comprehensive disrup- scheme regulatory designed which tion and chaos follow a or invariably gov- cessation interruption the strike ernmental services. The own to withhold majority’s proposal, 580) where involved and a essential” services are weapon “truly (p. 586),

“substantial and threat” is will afford little posed guid- imminent (p. must, {ibid.), our trial basis decide ance to courts who on a “case-by-case” such issues. Nor will be able management labor representatives with predict any confidence or certainty whether a strike is a particular or, lawful one lawful being at its will become unlawful inception, by reason of its adverse effects short, upon health and In safety. major- broad ity’s will holding prove unworkable as it is unwise.

Of the few states that permit strikes by public all do employees, virtually so by comprehensive statutory provisions. Some of the statutory schemes begin by classifications of creating employees, distinguishing, example, workers whose services are deemed essential (e.g., police, firefighters), those whose services bemay for short of time interrupted periods (e.g., teachers), and those whose services be omitted for an extended time (e.g., municipal golf attendants).1 course These schemes define typically various prerequisites the exercise of the to strike for those categories of workers permitted option. include a prerequisites period man- datory mediation2 as well as addition, advance notice to the In employer.3 some statutory schemes out lay rules for ground arbitration.4 binding contrast, new majority’s California rule is undefined and hopelessly unstructured. In addition to the breadth of the essential” majority’s “truly standard, the statutes no presently provide classification of em- systematic ployees to the according nature of their work and the to which the degree can tolerate work stoppages. Only firefighters expressly prohib- ited from striking (Lab. Code, giving recognition lines. picket 1962.) Moreover, the four § schemes principal statutory other regulating public employees establish widely to labor relations for differing approaches different types Code, levels of Gov. 3500- employees. (Compare §§ Act, [Meyers-Milias-Brown local covering government employees]; Act, Relations Employer-Employee [State state em- covering 1See 23.40.200(a) first, fire, Alaska Statutes (categorizing, section police, all cor rectional, workers; second, hospital removal, sanitation, public utility, snow and edu employees; third, cation workers). all other See also Minnesota Statutes Anno (West 1985) workers, tated section etc.). 179A.03 Supp. (defining “essential” 2E.g., 23.40.200(c) (1972) (mediation Alaska Statutes section required); Illinois Public 83-1012, (El. Act 6781, section Legis. Serv. to be codified at 111.Ann. Stat. ch. 48, 1617) (mediation 179A.18, required); § Minnesota Statutes Annotated section subdivi 1, (West 1985) (mediation sions Supp. teachers); required days, days for 45 case of Pennsylvania Annotated, 43, (Purden (media 1984) Statutes title Supp. section 1101.1003 required); 111.70(4)(cm) (West 1983) tion (me Wisconsin Supp. Statutes Annotated section diation-arbitration required). 3E.g., 83-1012, (5 Illinois Public Act days’ required); section 17 notice Minnesota Statutes 179A.18, (West 1985) (10 Annotated section Supp. days); subdivision Wisconsin Statutes 111.70(4)(cm) (West 1983) (10 Annotated section Supp. days). 4E.g., (West 1985); Minnesota Statutes Supp. Annotated section 179A.16 Wisconsin Stat (West utes 111.70(4)(jm) 1983). Annotated section Supp. Act, covering public Relations 3540-3549.3 Employment ployees]; [Ed. educa- higher employment

school 3560-3599 [governing employees]; when, here, Thus, results tion].) these inconsistent produce statutes the board. almost across to strike is given recognition “no mecha- Act, clear for example, provides Meyers-Milias-Brown and their workers. local resolving governments nism for between disputes” to settle (Ante, agency In the administrative fn. absence an mediation, such remedies as of unfair labor charges practices compel instance, the courts in the first all strike-related will togo issues presumably On the for the of such issues. but the courts are forums resolution poor hand, school other issues out of work arising stoppages (PERB) Board on the Relations be resolved the Public Employee course, situation this anomalous basis of PERB’s own set remedies. Of teachers tolerance of strikes by of this court’s large part product Assn., 946; (El Dist. National Ed. Cal.3d Rancho Sch. Unified (1979) 24 Cal.3d San Teachers Assn. Court Diego Superior v.. its 838]) expansion 593 P.2d and PERB’s correlative

Cal.Rptr. in labor other remedies adopt so mediation authority may compel Code, (see 32000 et seq.). education Cal. Admin. tit. disputes § (Gov. Code, statutory in PERB’s Finally, explicit powers nothing arbitration, so 3541.3) extends to it remains example, mandatory § (id., jurisdiction be established whether state under PERB’s also employees, rules as educa- subd. will be the same (g)), governed ground § them, tional deemed essen- “truly or whether some employees, perhaps tial,” that do not now will be arbitration under rules subject binding exist.

I would affirm the judgment. for a denied June 1985.

Respondent’s petition rehearing was

Case Details

Case Name: County Sanitation District No. 2 v. Los Angeles County Employees' Ass'n, Local 660

Court Name: California Supreme Court

Date Published: May 13, 1985

Citation: 699 P.2d 835

Docket Number: L.A. 31850

Court Abbreviation: Cal.