PACIFIC LEGAL FOUNDATION et al., Petitioners, v. EDMUND G. BROWN, JR., as Governor, etc., et al., Respondents; CALIFORNIA STATE EMPLOYEES’ ASSOCIATION et al., Interveners.
S.F. No. 24168
Supreme Court of California
Mar. 12, 1981.
29 Cal. 3d 168
Ronald A. Zumbrun and Robert K. Best for Petitioners.
John C. Wakefield, Larry C. Larsen, Gilles Attia, A. J. Weiglein, Roger A. Jeanson, Haas & Najarian, Thomas A. Farr and Rex Reed as Amici Curiae on behalf of Petitioners.
Tuttle & Taylor, Raymond C. Fisher, Barbara L. Stocker, Jeffrey M. Hamerling, J. Anthony Kline, Byron S. Georgiou, Barbara T. Stuart, Jerome B. Falk, Jr., Steven L. Mayer, Howard, Prim, Rice, Nemerovski, Canady & Pollak, Barry Winograd, Kristin Jensen, Robert Miller, William P. Smith, Terry Filliman, Gerald Becker and Ronald Blubaugh for Respondents.
Loren E. McMaster, Bernard L. Allamano, Gary P. Reynolds, Richard Lobel, Van Bourg, Allen, Weinberg & Roger, Stewart Weinberg and Robert J. Bezemek for Interveners.
Reich, Adell, Crost & Perry, Hirsch Adell, Charles P. Scully, Donald C. Carroll, Charles P. Scully II, Donald H. Wollett, Ronald Yank, Franklin Silver, Carroll, Burdick & McDonough, Bodkin, McCarthy, Sargent & Smith, Timothy J. Sargent, Kevin W. Horan, Gillin, Jacobson & Wilson, Ralph L. Jacobson and Cynthia T. Podren as Amici Curiae on behalf of Interveners.
OPINION
TOBRINER, J.--Over the past 20 years, the California Legislature has enacted a series of legislative measures granting public employees, at both the state and local level, a variety of organizational and negotiating rights somewhat analogous to the rights long afforded most employees in the private sector by the federal labor relation laws of the
For the reasons discussed below, we conclude that SEERA is not unconstitutional on its face. First, we shall point out that the collective bargaining process established by SEERA does not conflict with the general merit principle of civil service employment established as a constitutional precept by
Second, we shall explain that SEERA does not conflict with
Finally, we conclude that the provisions of SEERA granting the Public Employment Relations Board (PERB) initial jurisdiction to investigate and adjudicate “unfair practices” are not rendered unconstitutional on their face by virtue of the State Personnel Board‘s authority, under
Moreover, even in those cases in which the jurisdictions of the two agencies do overlap, the mere possibility of conflict does not call for a drastic or inflexible rule totally curtailing one agency‘s jurisdiction at the expense of the other‘s. Instead, we must harmonize the competing procedural schemes in a fashion that will best serve the policies underlying each agency‘s functions with least injury to the functions of the other. As we point out, our court has applied such a harmonizing principle in the face of similar, potential jurisdictional conflicts in recent cases, and other jurisdictions have adopted similar approaches in dealing with disputes between agencies with functions comparable to the State Personnel Board and PERB.
Thus, we shall conclude that SEERA is not unconstitutional on its face, and that the requested writs of mandate should be denied.
1. Background and description of the provisions of SEERA.
Prior to 1961, public employees in California enjoyed no formal rights to participate in the decision-making processes which determined
Although it represented a significant first step, the George Brown Act omitted a number of key elements that have proven to be important factors in formulating peaceful labor relations in the private sector. Thus the act did not provide any mechanism for recognizing an employee organization as the exclusive representative of a group of employees, and placed no obligation on either the employer or employees to attempt to reach an agreement on terms and conditions of employment, i.e., to negotiate in good faith. Moreover, the act afforded the parties no explicit authority to reach binding agreements and did not establish an expert labor relations agency with authority to oversee the process and devise appropriate remedies for improper conduct by employees or employers.
Subsequent legislative and gubernatorial actions over the past decade and a half have been aimed, in large part, in overcoming these deficiencies and in tailoring the labor relations process to the special conditions of different segments of the public labor force. In 1965, the Winton Act (Stats. 1965, ch. 2041, § 1, p. 4660) expanded the “meet and confer” rights of public school employees, and in 1968, the Legislature enacted the Meyers-Milias-Brown Act (MMBA) (Stats. 1968, ch. 1390, § 1, p. 2725, codified at
The early 1970‘s brought an increasing demand among state employees for a formal system of collective bargaining that would provide them with a more meaningful role in establishing the terms and conditions of their employment. (See King, Deliver Us From Evil: A Public History of California‘s Civil Service System (1979) p. 51.) In response,
In 1972, following the first major state employee strike, the Legislature created the Assembly Advisory Council on Public Employee Relations, chaired by UCLA Professor Benjamin Aaron, to formulate recommendations “for establishing an appropriate framework within which disputes can be settled between public jurisdictions and their employees.” (Assem. Res. No. 51 (1972 Reg. Sess).) In its 1973 report the Advisory Council recommended the enactment of a comprehensive state law, modeled on the National Labor Relations Act, which would afford formal collective bargaining rights to all public employees.
The Legislature, however, was unable to agree on a comprehensive bill covering all public employees and decided instead to draft separate collective bargaining statutes directed to the specific needs and problems of different categories of public entities. In line with this approach, the Legislature in 1975 first enacted the Educational Employment Relations Act (EERA) (Stats 1975, ch. 961, § 2, p. 2247, codified in
Although a detailed discussion of all of SEERA‘s provisions is not necessary for the purposes of this decision, it may be helpful to high-
Although the act thus affords state employees significant new rights, the Legislature at the same time placed definite limits on the scope of representation and retained substantial control over state employee compensation and many other terms and conditions of state employment. SEERA specifically precludes bargaining over “the merits, necessity, or organization of any service or activity provided by law or executive order.” (
The act further provides that, except with respect to a number of specific statutes which the Legislature has expressly determined may be superseded by a memorandum of understanding, any provision of a memorandum of understanding in conflict with a statutory mandate shall not be effective unless approved by the Legislature. (Ibid.) In addition, the act provides that any terms of a memorandum of understanding in conflict with specified statutes relating to layoffs or demotions shall not be controlling if the State Personnel Board finds those terms to be inconsistent with the merit employment principles of
Finally, to protect the rights and enforce the obligations of employees, employee organizations and the state, SEERA expanded the jurisdiction and changed the name of the Educational Employment
The provisions of SEERA became operative on July 1, 1978, and PERB proceeded to implement the statute by promulgating regulations and holding hearings to determine appropriate units for bargaining. In January 1979, before this process was complete, petitioners Pacific Legal Foundation and Public Employees Service Association filed an original mandate proceeding in the Court of Appeal contending that SEERA was unconstitutional on its face; two weeks later, the Attorney General, acting on behalf of the People, filed a similar mandate proceeding in the same court raising comparable constitutional contentions.3 The two proceedings were consolidated and, after extensive briefing and argument, the Court of Appeal, in a divided decision, agreed with petitioners’ claims and struck down the statute in its entirety. In light of the obvious importance of the issue, we granted a hearing to resolve the significant constitutional questions presented.4
In analyzing petitioners’ challenge to the constitutionality of SEERA, we start from several fundamental principles of constitutional adjudication. “Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. [Citations.] Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people‘s right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly, or by necessary implication denied to it by the Constitution. [Citations.]...[¶] Secondly, all intendments favor the exercise of the Legislature‘s plenary authority: ‘If there is any doubt as to the Legislature‘s power to act in any given case, the doubt should be resolved in favor of the Legislature‘s action. Such restrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not to be extended to include matters not covered by the language used.’ [Citations.]” (Italics added.) (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691.)
Moreover, our past cases establish that the presumption of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions clearly in mind. (See, e.g., San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279.) In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision. Although the ultimate constitutional interpretation must rest, of course, with the judiciary (see Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 176-180), a focused legislative judgment on the question enjoys significant weight and deference by the courts.
Finally, in evaluating petitioners’ contentions we must bear in mind that petitioners’ instant challenge pertains to the constitutionality of the statute on its face. To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute, or as to particular terms of employment to which employees and employer may possibly agree. Rather, petitioners must demonstrate
As we shall explain, under these controlling constitutional principles we conclude that SEERA is not unconstitutional on its face.
3. SEERA does not conflict with the general “merit principle” of civil service employment embodied in article VII of the California Constitution .
In challenging the constitutionality of SEERA, petitioners rely primarily on the asserted conflict between the act and several sections of
In 1913, the California Legislature enacted a statute creating California‘s first civil service system in an attempt to combat the “spoils
“A second abuse of the Civil Service Act was the gross misuse of authorizations for temporary employment [which was not subject to the civil service act].... Officially, temporary appointments followed the three month rule, but this had never been followed. By August 1931, temporary employees constituted more than a third of the entire state service.” (Id.)
Finally, in the early 1930‘s considerable public attention was focused on the problem by widespread newspaper accounts of the allegedly numerous politically motivated appointments made by the incumbent Governor. (Id. at pp. 26-29.)
It was in this milieu and in response to the specific problems of the times that in 1934 the people adopted article XXIV of the state Constitution. The ballot argument accompanying the 1934 initiative measure sets forth in clear terms both the objectives and the limits of the proposed constitutional provision.
The ballot argument stated: “The purpose of this constitutional amendment is to promote efficiency and economy in State government. The sole aim of the act is to prohibit appointments and promotion in State service except on the basis of merit, efficiency and fitness ascertained by competitive examination. Appointments of inefficient employees for political reasons are thereby prohibited, thus eliminating the ‘spoils system’ from State employment. [¶]...[T]his constitutional amendment provides: (1) Employment in the classified service based solely on merit and efficiency; (2) a nonpartisan Personnel Board; (3) prohibition against exemptions from the merit system of employment;
As this ballot argument demonstrates, the “sole aim” of the amendment was to establish, as a constitutional mandate, the principle that
From this description, we conclude that the collective bargaining process established by SEERA does not on its face conflict with the basic constitutional principles of
We recognize, of course, that theoretically the product of the collective bargaining process may possibly in specific instances conflict with the merit principle of employment embodied in
Thus,
Moreover, in designating the statutes that may be superseded by a memorandum of understanding without legislative approval, the Legislature excluded those statutes relating to classification, examination, appointment, or promotion, areas in which a potential conflict with the merit principle of employment would be most likely to occur. Finally, the Legislature‘s sensitivity to the preservation of the merit principle is additionally evident in the numerous legislative modifications contained in the 1978 “clean-up” legislation to SEERA, changes which were made
These numerous provisions demonstrate beyond question that the Legislature drafted SEERA with the merit principle of
4. SEERA does not contravene article VII in authorizing the ultimate setting of civil service salaries by the Governor and the Legislature rather than by the State Personnel Board.
Petitioners additionally claim that even if the collective bargaining process established by SEERA does not conflict with the merit principle of civil service employment, SEERA nonetheless is unconstitutional because it assigns the task of setting the salaries of civil service employees to the Governor and the Legislature rather than to the State Personnel Board. In this regard, petitioners rely on
(a) The State Personnel Board‘s constitutional authority to prescribe classifications does not encompass the power to set the particular salary for such classifications.
On its face, SEERA clearly does not conflict with the State Personnel Board‘s constitutional authority to prescribe classifications for the state civil service. No provision of the act purports to authorize any other agency to classify positions in the civil service, and the act excludes the numerous statutory provisions relating to the State Personnel Board‘s classification power (
Petitioners argue, however, that an integral part of the State Personnel Board‘s authority to prescribe classifications is the power to establish salaries for the classifications so set. An almost identical contention came before the Colorado Supreme Court in Vivian v. Bloom (1947) 115 Colo. 579 [177 P.2d 541]. In Vivian, the plaintiffs contended that the Civil Service Amendment of the Colorado Constitution vested sole authority to set civil service salaries in the Colorado Civil Service Commission, the counterpart to California‘s State Personnel Board. Plaintiffs relied upon a provision of the constitutional amendment which provided in part that “the standardization of all positions...and the determination of the grades of all positions in the classified service shall be vested in the commission.” (177 P.2d at p. 543.)
In Vivian, the Colorado Supreme Court rejected the plaintiffs’ contention, stating: “It is insistently urged that the power to classify carries with it by necessary implication the power to fix compensation. In this contention we cannot concur. Elsewhere, systems are set up with like divisions of authority. [¶] We are constrained to conclude that the power to fix compensation within the classified service still abides in the [Legislature]. The [Legislature] has the burden of determining and providing for the amount of revenue to be made available for payment of salaries and is immediately responsible to the people‘s will therein, so it seems not improper that it should retain ultimate control of its ancient prerogative.” (177 P.2d at p. 544.)
As the Vivian decision suggests, although the power to classify positions has frequently been lodged in civil service commissions or personnel boards, the actual authority to set salaries has traditionally been viewed as a legislative function, with ultimate authority residing in the legislative body. A host of California decisions demonstrate that this fundamental principle has long been followed in this state in jurisdictions operating under civil service provisions. (See, e.g., City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 921 [120 Cal.Rptr. 707, 534 P.2d 403]; Los Angeles City etc. Employees Union v. Los Angeles City Bd. of Education (1974) 12 Cal.3d 851, 856 [117 Cal.Rptr. 537, 528 P.2d 353]; City and County of S. F. v. Boyd (1943) 22 Cal.2d 685, 692 [140 Cal.Rptr. 666]; Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 694-697 [163 Cal.Rptr. 464]; cf. Miller v. State of California (1977) 18 Cal.3d 808, 813-814 [135 Cal.Rptr. 386, 557 P.2d 970] (terms and conditions of state civil service employment fixed by statute).)
Petitioners assert, however, that the classification authority granted the State Personnel Board by
With the exception of one decision discussed below, however, judicial authorities have uniformly indicated that the State Personnel Board‘s authority to establish salary ranges rests simply on a delegation of legislative authority under the relevant statutes, and does not reside in the board by virtue of any constitutional mandate. Thus, in State Trial Attorneys’ Assn. v. State of California (1976) 63 Cal.App.3d 298, 303 [133 Cal.Rptr. 712], for example, the court explicitly declared: “Setting compensation for public employees is a legislative function. [Citation.]
This view of both the source and the extent of the salary setting power exercised by the State Personnel Board in the past is directly confirmed by an examination of the actual legislative practice that has been followed in this state since the inception of the civil service system. If the State Personnel Board‘s salary setting duties flowed directly from the Constitution, as petitioners claim, the board‘s salary decisions would, of course, be binding on the Legislature. In cases of conflict, one would expect to find that employees have been paid in accordance with the board‘s rather than the Legislature‘s mandate. As we shall see, however, in actual practice precisely the opposite has been true.
First, in many years either the Legislature and/or the Governor (by virtue of his “line veto” power (
Petitioners argue, however, that while these actions by the Legislature and Governor may demonstrate that the State Personnel Board does not have unlimited power to set salaries in excess of authorized appropriations, such actions do not conflict with a recognition of the board‘s constitutional authority over the setting of salaries and distribution of funds within appropriated limits. Although the actions noted above may not be inconsistent with such a view, a host of other legislative actions over the years clearly conflicts with even this more limited version of the State Personnel Board‘s constitutional authority.
Specific legislative directives affecting the manner of distribution of appropriated funds have taken a variety of forms. In some cases, the Legislature has prescribed, by statute, the method by which the State Personnel Board should set the salaries for particular categories of employees.12 In other instances, the Legislature has directed that a fixed dollar or specific percentage increase be paid either to all state employees or to all employees who fall within a specified income bracket.13 Finally, on still other occasions, the Legislature has prescribed either a fixed dollar or specific percentage increase for individual categories of
These numerous legislative actions, reaching back more than 40 years, demonstrate an unvarying legislative view that the salary setting authority for civil service employees has not been ceded to the State Personnel Board by
Moreover, the State Personnel Board itself has consistently concurred in the view that its constitutional authority to prescribe classifications does not encompass the ultimate authority to set civil service salaries. In a 1974 position paper, “A Perspective on Collective Bargaining in the State Civil Service,” drafted by the State Personnel Board in response to the then-current legislative study of the issue, the board drew a sharp distinction between the classification power which it believed resided within its exclusive jurisdiction and should not be subject to negotiation, and the authority to set salaries which it concluded did not fall within its aegis and could properly be open to bargaining. Thus, with reference to salaries, the board proposed that “[s]alary and benefit negotiations should become a responsibility of the administration under collective bargaining. The Board staff currently provides the expertise in this area and should continue to perform the staff work related to salary and benefit matters, but administratively responsible to the Governor‘s negotiator. Salary and benefit data collection and application would be
Thus, as we have seen, past judicial, legislative and administrative pronouncements and practice all refute petitioners’ contention that the State Personnel Board‘s constitutional authority to prescribe classifications carries with it the constitutional authority to set salaries. As petitioners point out, however, one recent Court of Appeal decision, Fair Political Practices Com. v. State Personnel Bd. (1978) 77 Cal.App.3d 52 [143 Cal.Rptr. 393], does contain language contrary to the uniform conclusion of the wealth of authorities discussed above, and suggests instead that the constitutional powers of the State Personnel Board “encompass salary fixing.” (77 Cal.App.3d at p. 57.) Although we have no quarrel with the actual result reached in the Fair Political Practices case,15 that decision‘s conclusion with reference to the constitutional basis of the State Personnel Board‘s salary setting functions was reached without consideration of the ballot argument accompanying the 1934 constitutional amendment or the consistent judicial, legislative and administrative interpretation and practices which we have reviewed above. In our view these authorities demonstrate that the State Personnel Board‘s constitutional classification power does not include the power to set salaries. Accordingly, the Fair Political Practices opinion is disapproved to the extent that it is inconsistent with the present decision.
Although we have determined that SEERA‘s salary setting provisions are not inconsistent with the State Personnel Board‘s authority to prescribe classifications, we do not intend to suggest that the board‘s classification decisions will have no effect whatsoever on the salary
(b) SEERA does not conflict with the State Personnel Board‘s authority to “enforce the civil service statutes.”
As noted above, in addition to contending that the salary setting provisions of SEERA conflict with the State Personnel Board‘s authority to “prescribe classifications,” petitioners claim that the act‘s delegation to the Governor of the power to negotiate and agree to salaries conflicts with the portion of
Former
First, petitioners’ suggested construction entirely negates the intent of the proponents of the 1934 constitutional amendment as expressed in the ballot argument accompanying the measure. As we have already seen, other than rendering the “merit principle” in state employment inviolate, the ballot argument explicitly disclaimed any intent to restrict the Legislature to any particular mode of personnel administration. To reiterate, the ballot argument stated in this regard: “Having by constitutional mandate prohibited employment on any basis except merit and efficiency,... the Legislature is given a free hand in setting up laws relating to personnel administration for the best interests of the State....”
Second, contemporary and subsequent legislative acts demonstrate that the constitutional provision upon which petitioners rely has not been construed by the Legislature as precluding it from investing agencies other than the State Personnel Board with administrative responsibilities affecting civil service employees. Thus, for example, over the last half century the Legislature has enacted numerous programs relating to retirement benefits, disability, group life and health insurance, and similar items of compensation for civil service employees, and has placed the administration of such programs in the hands of the Public Employment Retirement System, rather than the State Personnel Board. (
Similarly, the Board of Control, rather than the State Personnel Board, has been delegated authority over such compensation-related items as travel and per diem expenses, moving expenses and uniform allowances for civil service employees. (
Under these circumstances, we cannot properly interpret the constitutional provision establishing the State Personnel Board‘s authority to “enforce the civil service statutes” in the manner urged by petitioners. Although the constitutional amendment established the nonpartisan State Personnel Board to ensure that the merit principle was properly safeguarded, the amendment did not propose to preclude the Legislature from adopting new personnel administration procedures, which do not impinge upon the merit principle, outside of the State Personnel Board‘s sphere. As the Court of Appeal stated in California State Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390, 398 [86 Cal.Rptr. 305]: ”
Nearly 60 years ago this court observed that constitutional provisions “ought not to be construed so as to prevent legislative action adjusted to growing needs and the changed condition of the people.” (Veterans’ Welfare Board v. Jordan (1922) 189 Cal. 124, 143 [208 P. 284, 22 A.L.R. 1515].) In light of the history of
4. PERB‘s jurisdiction to investigate and devise remedies for unfair practices is not unconstitutional on its face.
Petitioners contend that the provisions of SEERA granting PERB jurisdiction to investigate and devise remedies for unfair practices are irreconcilably in conflict with the State Personnel Board‘s jurisdiction to “review disciplinary actions” under
First, as the State Personnel Board itself recognizes, many areas of PERB‘s unfair practice jurisdiction do not overlap with the State Per-
Second, even in those areas in which the jurisdiction of the State Personnel Board and PERB do overlap, familiar rules of construction counsel our court to attempt to harmonize the disparate procedures, rather than simply to invalidate one or the other on broad constitutional grounds.19 As a New Jersey court recently observed in reviewing a conflict between quasi-judicial rulings of a civil service commission and the Public Employee Relations Board in that state: “The inquiry is properly not so much which statutory scheme prevails [over the other], but rather how each can be harmonized to give them reasonable and full effect. [Citations.] Each agency operates under different statutory schemes, but not to defeat each other‘s authority.” (City of Hackensack v. Winner (1978) 162 N.J. Super. 1 [392 A.2d 187, 198], affd. (1980) 82 N.J. 1 [410 A.2d 1146].)
As the Hackensack decision suggests, PERB and the State Personnel Board are not in competition with each other; rather, each agency was established to serve a different, but not inconsistent, public purpose. The State Personnel Board was granted jurisdiction to review disciplinary actions of civil service employees in order to protect civil service
PERB, on the other hand, has been given a somewhat more specialized and more focused task: to protect both employees and the state employer from violations of the organizational and collective bargaining rights guaranteed by SEERA. Although disciplinary actions taken in violation of SEERA would transgress the merit principle as well, the Legislature evidently thought it important to assign the task of investigating potential violations of SEERA to an agency which possesses and can further develop specialized expertise in the labor relations field. (Cf., e.g., Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346 [156 Cal.Rptr. 1, 595 P.2d 579]; San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d. 1, 11, 13-14 [154 Cal.Rptr. 893, 593 P.2d 838]; Garner v. Teamsters Union (1953) 346 U.S. 485, 490 [98 L.Ed. 228, 239, 74 S.Ct. 161].)20 Thus, insofar as possible, we should construe the relevant provisions to permit an accommodation of the respective tasks of both the State Personnel Board and PERB.
Such an accommodation appears particularly appropriate here on a number of grounds. First, nothing in either the language or history of
Thus, for example, under
As these various statutes illustrate, SEERA is only one of a number of instances in which the Legislature has deemed it appropriate to vest a specialized agency, which has familiarity in a particular area, with the authority to protect employees who are discharged or otherwise disciplined for exercising important rights in the agency‘s field of expertise. We should be reluctant to construe
Indeed, in a number of recent cases this court has explicitly eschewed the “meat ax” approach proposed by petitioners and has instead applied harmonizing principles in dealing with overlapping jurisdictional schemes comparable to those present in the instant case. In Vargas v. Municipal Court (1978) 22 Cal.3d 902, 910-913, 916 [150 Cal.Rptr. 918, 587 P.2d 714], for example, this court accommodated the municipal court‘s jurisdiction over unlawful detainer actions and the Agricultural Labor Relations Board‘s unfair labor practice jurisdiction, recognizing that neither entity completely ousted the other of jurisdiction under all circumstances. Similarly, in Kaplan‘s Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 67-75 [162 Cal.Rptr. 745, 603 P.2d 1341], we held that the ALRB‘s jurisdiction over unfair labor practices did not prevent a superior court from granting equitable relief in instances “when the board cannot provide a full and effective remedy.” And in San Diego Teachers Assn. v. Superior Court, supra, 24 Cal.3d 1, 12-14, we held that in light of the expertise which PERB brings to labor disputes arising under the EERA, the superior court which had jurisdiction over an equitable action should have stayed its hand until the specialized agency had initially addressed the dispute.
Because no actual jurisdictional conflict between PERB and the State Personnel Board confronts us in this proceeding, we have no occasion to speculate on how some hypothetical dispute that might be presented for decision in the future should properly be resolved. As numerous authorities in other jurisdictions make clear, however, any conflicts which may arise in this area can be resolved either by administrative accommodation between the two agencies themselves21 or, failing that, by sensitive application of evolving judicial principles. (See, e.g., Town of Dedham v. Labor Relations Com., supra, 312 N.E.2d 548; City of Hackensack v. Winner, supra, 410 A.2d 1146, id. at pp. 1166-1168 (conc. opn. by Pashman, J.), id. at pp. 1171-1173 (conc. and dis. opn. of Schreiber, J.); City of Albany v. Public Employment Rel. Bd. (1977) 57 App.Div.2d 374 [395 N.Y.S.2d 502]; cf. Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36, 47-60 [39 L.Ed.2d 147, 157-165, 94 S.Ct. 1011]; Tipler v. E. I. duPont deNemours and Co. (6th Cir. 1971) 443 F.2d 125, 128-129.)
Accordingly, we conclude that the fact that PERB‘s jurisdiction over unfair practices may in some cases overlap with the State Personnel Board‘s jurisdiction to review disciplinary actions provides no basis for finding the applicable provisions of SEERA unconstitutional on their face.
5. SEERA is not an unlawful delegation of legislative authority nor does it infringe on the gubernatorial veto power.
Finally, petitioners contend that even if SEERA does not fatally conflict with any of the provisions of
Petitioners’ “unlawful delegation” argument rests on the claim that the Legislature acted improperly in providing in
As the New Jersey Supreme Court recently observed in a similar context: “[W]e do not doubt that the Legislature has the power to ordain that collective negotiations may contravene specific as well as general statutes....” (State v. State Supervisory Emp. Ass‘n (1978) 78 N.J. 54 [393 A.2d 233, 245].) Indeed, a contrary conclusion on this point would mean that the public employment collective bargaining procedures in force in a majority of American jurisdictions would be unconstitutional. Since neither the federal nor state Constitutions contain any provision that purports to limit the Legislature‘s authority to implement such a labor relations policy in the public sector, we find petitioners’ argument totally untenable. (Cf. Kugler v. Yocum (1968) 69 Cal.2d 371, 375-384 [71 Cal.Rptr. 687, 445 P.2d 303].)
The claim that SEERA cannot pass constitutional muster because it infringes on the gubernatorial veto power likewise fails. Although SEERA obligates the Governor and exclusive representatives
6. Conclusion
Following the trend in private industry, the California Legislature in the past two decades has enacted a series of statutes to institutionalize employer-employee relations in the public sector. Structuring a collective bargaining process, first, for most local governmental employees, then for educational employees, and thereafter for higher educational employees, these enactments established a framework for the resolution of employer-employee disputes and the avoidance of work stoppages. One significant thread in the fabric of the state‘s relationship with its employees is the statute which we have analyzed.
In that enactment, after careful deliberation, the Legislature set up a meticulous and comprehensive procedure for the treatment of the state‘s employees. That statute is now under manifold attack, chiefly on the ground that it conflicts with the state‘s civil service system. Yet, as we have shown, it does not at all attempt to nullify the constitutional principle that employment should be based upon merit; indeed, the statute reaffirms that precept. Nor does the statute conflict with constitutional mandate in reserving to the Governor and the Legislature, rather than the State Personnel Board, the setting of salaries, since that power in the relevant past has never been constitutionally ceded to the personnel board. Finally, the statute‘s grant of initial jurisdiction to the Public Employment Relations Board to adjudicate “unfair practices” creates no facial invalidity because, in case of future disputes, an overlap of the two boards can be reconciled either by negotiation or litigation.
In this ongoing and vital process of evolving employer-employee relations, so necessary to the promotion of harmonious understanding between the parties, the invalidation of this statute would be a sorrowful step backwards.
Bird, C. J., Mosk, J., and Newman, J., concurred.
RICHARDSON, J.—I respectfully dissent. The 1977 legislation at issue here (SEERA) is plainly unconstitutional as a gross infringement upon the powers of the State Personnel Board (SPB). Under
A “merit” system of civil service includes the predominant and fundamental principle that state employees shall receive “like pay for like work.” (See State Trial Attorneys’ Assn. v. State of California (1976) 63 Cal.App.3d 298, 304 [133 Cal.Rptr. 712].) To discharge its constitutional responsibilities, including the maintenance of “merit” principles in state service with “like pay for like work,” it is essential that the SPB retain and exercise not only its historic power to specify particular job classifications for state service, but also to fix the salary ranges appropriate for each classification within the gross amount appropriated each year by the Legislature. SPB must carefully adjust the salaries both vertically in accordance with duties, and horizontally to maintain parity both between comparable classes of public employees and with the private sector. The establishment of job “classifications” without control over the salaries for the affected positions within the classification would constitute a meaningless act. Without exercising such power to prescribe salary classifications, the SPB could not possibly assure that the constitutionally mandated merit principle is respected and enforced.
Nevertheless, despite the almost syllogistic truth of the foregoing proposition, the majority upholds a statutory scheme which removes from the SPB all effective controls over the salaries to be paid to rank and file state employees. SEERA purports to transfer the fixing of salaries for nonmanagerial or nonsupervisorial employees entirely to a bargaining process which will inevitably, and inherently, be governed by
The history of the creation and administration of the civil service system in this state reinforces my conviction that SEERA represents an unconstitutional invasion of the authority and responsibility of the SPB. An historic review and analysis of the problem is contained in the careful opinion of Presiding Justice Puglia for the Third District Court of Appeal in this case. Finding its reasoning eminently sound, I set forth and adopt the following pertinent portions of his opinion:
“In 1913, California‘s first civil service system was created by statute to eliminate abuses in the political spoils system and to establish instead a nonpartisan system of state employment based upon merit. Among the Civil Service Commission‘s duties were the classification and grading of positions ‘...within each class with respect to salaries, to the end that like salaries shall be paid for like duties....’ (Stats. 1913, ch. 590, § 5.)
“In 1927, the commission was given additional powers regarding salary setting; an amendment specified that appointing powers authorized by law to fix the compensation of civil service employees must do so in accordance with the commission‘s classification and salary schedules subject to the approval of the commission. (Stats. 1927, ch. 719, § 5.)
“In 1934, the state civil service was elevated to constitutional status (
Cal. Const., art. XXIV ). By initiative, the voters of the state createdthe nonpartisan, politically insulated, five-member State Personnel Board as successor to the previous statutory commission. The Constitution vested the SPB with ‘all of the power, duties, purposes, functions, and jurisdiction’ in administering and enforcing ‘any and all other laws relating to the state civil service. ...’ (former Cal. Const., art. XXIV, § 3 .) Constitutionally delineated powers and duties of the SPB included ‘... the creation and adjustment of classifications and grades,...’ for state civil service employees. (formerCal. Const., art. XXIV, § 2, subd. (c) .)“In 1937, the Legislature adopted the State Civil Service Act implementing a comprehensive state personnel system and directing the SPB to fix salary ranges ‘for each class of position in the State civil service.’ (Stats. 1937, ch. 753, § 70; see
§ 18850 .) The new law emphasized the Legislature‘s intent not to add to or detract from the constitutional powers, duties and jurisdiction of the SPB. (Stats. 1937, ch. 753, § 243.)“In 1970,
article XXIV of the Constitution was revised... The powers and duties of the SPB delineated in the original sections 2 and 3 (discussed above) were restated and consolidated in newsection 3, subdivision (a) : ‘The board shall enforce the civil service statutes and...shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions.’“The overall intent of the constitutional provisions respecting the civil service remained unchanged; permanent appointment and promotions ‘shall be made under a general system based on merit ascertained by competitive examination.’ (former
Cal. Const., Art. XXIV, § 1, subd. (b) .)“. . . . . . . . . . . . . . . .
“SEERA substantially increases the rights of state civil service employees to bargain collectively. Under its provisions, the Governor, not the affected state department or agency, is designated as the ‘state employer’ for purposes of bargaining and meeting and conferring in good faith. (
§ 3513, subd. (i) .) The Governor is required to meet and confer in good faith with respect to wages and hours and other terms and conditions of employment with the exclusive representatives of civil service employees; he is obliged to ‘endeavor’ to reach agreement on matters within the scope of representation (§ 3517 ). Agreements are to be reduced to a written memorandum of understanding (§ 3517.5 ). Thememorandum of understanding takes precedence over any of 122 designated sections of the Government Code, relating generally to salaries, compensation, and other terms and conditions of state employment, with which it is in conflict. Where a memorandum of understanding conflicts with any of another nine specified provisions of the Government Code relating generally to layoffs, the terms of the memorandum control unless the SPB finds they are inconsistent with merit employment principles established by the Constitution ( § 3517.6 ). If a provision of a memorandum of understanding requires the expenditure of funds or other legislative action for its implementation, such provision shall not become effective unless approved by the Legislature (§§ 3513, subd. (i) ;3517.6 ). Only a ‘recognized employee organization’ may enter into a memorandum of understanding with the Governor (§ 3515.5 ).“. . . . . . . . . . . . . . . .
“From its inception as a constitutional agency the SPB has been charged with prescribing classifications for civil service positions and enforcing the civil service statutes. The main body of the civil service statutes is located in
title 2, division 5, part 2 of the Government Code commencing with section 18500 . That section contains a broad declaration of purpose. ‘As though to demonstrate the preeminent and predominant role for the like-pay-for-like-work principle, the Legislature has listed it among the cardinal objectives of the Civil Service Act. Government Code section 18500 proclaims in part: “It is the purpose of this part:...[¶] (c) To provide a comprehensive personnel system for the state civil service, wherein: [¶] (1) Positions involving comparable duties and responsibilities are similarly classified and compensated....““’ (State Trial Attorneys’ Assn. v. State of California [supra] 63 Cal.App.3d 298, 304.) Accordingly, civil service positions are allocated to a single class where they impose like duties and responsibilities, require similar qualifications for appointment and where ‘The same schedule of compensation can be made to apply with equity.’ (§ 18801 .)“Section 18850 provides in part: ‘The [SPB] shall establish and adjust salary ranges for each class of position in the state civil service. The salary range shall be based on the principle that like salaries shall be paid for comparable duties and responsibilities. In establishing or changing such ranges consideration shall be given to the prevailing rates for comparable service in other public employment and in private busi-
ness. The [SPB] shall make no adjustments which require expenditures in excess of existing appropriations which may be used for salary increase purposes....’ [Fn. omitted.] “The process of classification of civil service positions was explicitly related to the principle of like pay for like work in California‘s first civil service statute. It was there provided that the Civil Service Commission classify positions ‘in accordance with the duties attached to such positions’ and ‘grade all positions within each class with respect to salaries, to the end that like salaries shall be paid for like duties.’ (Stats. 1913, ch. 590, § 5.) Although the principle of like pay for like work was not expressly carried over into the Constitution, it remains a part of the statutes which
article XXIV directed the SPB to ‘administer and enforce.’ Except for certain modifications not pertinent here, later amendments toarticle XXIV have not altered its substantive effect but have merely simplified the language and deleted the anachronistic reference to the Statutes of 1913. (Fair Political Practices Com. v. State Personnel Bd. (1978) 77 Cal.App.3d 52, 57-58 [143 Cal.Rptr. 393].)“Our review of the evolution and history of the relevant constitutional and statutory provisions satisfies us that the responsibility to classify civil service positions conferred by the Constitution upon the SPB is inseparable from the responsibility to insure like pay for like work. The latter is thus as much a constitutional command upon the SPB as the former. The uniform application of equal compensation for commensurate duties and responsibilities is essential to an employment system based on classification according to merit. Indeed, as we have demonstrated, the principle of like pay for like work permeates the entire civil service statutes, the enforcement of which the Constitution delegates exclusively to the SPB (
Cal. Const., art. VII, § 3, subd. (a) ). Therefore we conclude that the authority to fix salaries of civil service employees necessarily reposes in the SPB alone as an integral part of its constitutional power to classify positions. We further conclude that the exclusive exercise of these functions by the politically insulated SPB is essential to the maintenance of ‘a general system based on merit’ as contemplated byarticle VII, section 1 of the Constitution . (Fair Political Practices Com. v. State Personnel Bd., supra, 77 Cal.App.3d at p. 57.) It is in the assignment of the salary-setting function to the bargaining process between the Governor and employee representatives that SEERA comes into fatal conflict with the Constitution.
“. . . . . . . . . . . . . . . . “[We find] unpersuasive...respondents’ assertion that the Legislature alone has exclusive jurisdiction to establish salaries with the SPB relegated to a statutorily derived secondary role in which it serves merely as a collector of data upon which to base salary recommendations to the Legislature. The contention overlooks the essential fact that legislative appropriations for salaries are dispensed in a lump sum. While it is true that the SPB cannot ‘make...adjustments [to salary ranges] which require expenditures in excess of existing appropriations which may be used for salary increase purposes’ (
§ 18850 ), within that limitation the SPB still retains exclusive power to differentiate salaries equitably according to merit classifications in order to foster the ‘preeminent and predominant role for the like-pay-for-like-work principle,...’ (State Trial Attorneys’ Assn. v. State of California, supra, 63 Cal.App.3d at p. 304.)“Finally, PERB, joined by the Governor, contends the source of its authority derives from the Constitution and therefore is at least of equal dignity with the powers of the SPB. PERB claims under
article XIV, section 1 of the California Constitution which grants the Legislature the authority to ‘provide for minimum wages and for the general welfare of employees and for those purposes [the Legislature] may confer on a commission legislative, executive, and judicial powers.’”
Article XIV concerns minimum wages for all workers within the state. Unlikearticle VII , the civil service article, it has no specific application to state employees as distinguished from all workers generally. It is a fundamental rule of construction that a specific provision controls a more general one. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637 [268 P.2d 723].) Thus assuming, arguendo, the argument has some abstract validity,article XIV does not afford PERB a source of constitutional power coextensive with that of the SPB. PERB‘s claim of constitutional authority under the general police power fails for the same reason.“. . . . . . . . . . . . . . . .
“...[T]he act is constitutionally infirm in the particulars heretofore identified and, because the offending parts relating to wages and salaries are not susceptible to severability, the entire act must fall. (In re Portnoy (1942) 21 Cal.2d 237, 242 [131 P.2d 1].)
“Ever since the 1913 statutory reform, the vitality of the California merit system has been intimately linked with the principle of like pay for like work. Such constitutionally enshrined precedent is formidable in contrast to the will of a transient, politically sensitive legislative majority in enacting SEERA. (See City of Los Angeles v. Public Utilities Com. (1975) 15 Cal.3d 680, 696 [125 Cal.Rptr. 779, 542 P.2d 1371].) The 1934 constitutional provision and subsequent amendments thereto clearly manifest ‘a purpose of centralizing civil service administration in the State Personnel Board as an agency immune from...external and internal pressures.... [¶] The civil service system and its import, established by constitutional amendment, may not now or in the future be diluted or derogated by legislative enactment.’ (Fair Political Practices Com. v. State Personnel Bd., supra, 77 Cal.App.3d at p. 58.) Regardless of the salutary motives of the legislative majority in enacting SEERA (see § 3512 ), any alteration of the import ofarticle VII requires a constitutional mandate by the People.”
I would issue the peremptory writ of mandate directing the named respondents to perform their statutory and constitutional duties without regard to the provisions of SEERA.
Clark, J., concurred.
Petitioners’ application for a rehearing was denied April 22, 1981. Richardson, J., was of the opinion that the application should be granted.
Notes
In 1962, the State Personnel Board recommended that 6 percent increases be provided only to those whose yearly salaries were less than $15,000; the Legislature modified the proposal to provide such increases to those earning up to $19,800. (Stats. 1962, Second Ex. Sess., ch. 1, item 282, pp. 485-486.)
In 1969, the Legislature provided that inequity salary adjustments be made only to employees in occupational groups which were 7 percent or more below the prevailing rate and whose monthly salary did not exceed $950. (Stats. 1969, ch. 355, item 297.1, pp. 784-785.)
In 1976, the Legislature directed a $70 per month increase for all state employees, except for the California Highway Patrol which received a $120 per month increase. (Stats. 1976, ch. 341, § 15, p. 938.)
In 1969, the Legislature provided a $3.6 million appropriation, not requested by the State Personnel Board, to increase the salaries of psychiatric technicians. (Stats. 1969, ch. 1479, § 1, p. 3030.)
In 1970, the Legislature passed a $4.1 million appropriation, not requested by the State Personnel Board, to increase the salary of members of the California Highway Patrol. (Stats. 1970, ch. 1614, § 1, p. 3390.)
In 1972, the Legislature enacted a similar unrequested $5 million appropriation to increase the salaries of employees of the Department of Corrections and the California Youth Authority. (Stats. 1972, ch. 512, § 1, p. 891.)
In 1976, the Legislature provided a $120 per month increase for members of the California Highway Patrol while other state employees received only a $70 per month increase. (Stats. 1976, ch. 341, § 15, p. 938.)
Although as we have noted there is dicta in Fair Political Practices contrary to the conclusion we reach above, the court in that case made it clear that it was not purporting to decide the issue before our court in the present case. Thus, the Fair Political Practices court noted the recent enactment of SEERA and explicitly disclaimed any intent “to express ourselves on the import of [SEERA] upon the constitutional issue which we here discuss.” (77 Cal.App.3d at p. 58, fn. 2.)
In our view, any ruling on such guidelines is premature. As of this time, the board has not even formally promulgated the guidelines and there is no indication that the Governor will not voluntarily agree to be guided by the board‘s advice. Until a concrete controversy arises, it would not be appropriate to express an opinion either upon the authority of the board to promulgate such guidelines or on the substantive validity of any particular guideline.
In taking this position in the instant case, the State Personnel Board has modified the views it expressed in its 1974 position paper on collective bargaining. In that document, the State Personnel Board expressly advocated the creation of a Public Employment Relations Commission which would, inter alia, “hear unfair practice complaints.” (A Perspective on Collective Bargaining in the State Civil Service, supra, p. 9.) The document also stated that the State Personnel Board had considered whether it would be advisable for it to assume the duties of such a commission but had ultimately decided against the board‘s assumption of such a role because “we believe that the administering agency would be more acceptable to both management and employees if it were an entity with no other involvement in the personnel management process.” (Id.)