Rivera v. Division of Industrial WelfareRivera v. Division of Industrial Welfare
This is a mandate action to compel the State Department of Industrial Relations and the Division of Industrial Welfare to enforce orders regulating minimum wages, maximum hours and working conditions of women and minors employed in agricultural and allied pursuits, also to compel vacation of partial restraints against enforcement which have been issued by the Superior Courts of San Francisco and Los Angeles. Petitioners Rivera and Graham are female agricultural workers who sue for themselves and on
The orders, three in number, were adopted by the State Industrial Welfare Commission on September 26, 1967, to become effective February 1, 1968. Order 8-68 (Cal. Admin. Code, tit. 8, § 11110) establishes wages, hours and working conditions for women and minors in industries handling products after harvest. Order 13-68 (ibid., § 11127) affects those working on the farm preparing agricultural products for market, Order 14-68 (ibid., § 11500), those engaged in farming operations. Generally, these orders establish a minimum wage rate of $1.65 per hour, but permit certain minors to be paid a minimum rate of $1.35 per hour. Wages for overtime, i.e., in excess of 40 hours per week, are one and'one-half times the standard rates. These three orders were promulgated as part of a series of orders affecting women and minors employed in California industries generally.
Petitioners allege, and the Industrial Welfare Commission (which appears through the Attorney General) admits, that these three agricultural wage orders are not being enforced during this year of 1968. Petitioners charge that because of nonenforeement approximately 100,000 women and minors are being paid less than lawful minimum wages. Genesis of the enforcement agency’s nonaetion lies in three mandate actions filed by a number of employers and employer organizations on February 1, 1968, the very day the orders were to become effective. Two of these suits (actions Nos. 587891 and 587878) were filed in the San Francisco Superior Court and one (No. 925929) in the Los Angeles Superior Court. In these actions alternative writs of mandate were issued by stipulation, restraining the Division of Industrial Welfare from enforcing the wage orders against the suing employers, but providing for retroactive wage payments should the orders be eventually upheld. The Division of Industrial Welfare then adopted a policy of nonenforcement as to all employers covered by the three disputed orders. None of the superior court actions has reached the point of decision on the merits.
On behalf of the Industrial Welfare Commission, the Attorney General has appeared in the present action, joining in the petitioners’ request for relief at the hands of this court. As real parties in interest, the employers who initiated the three superior court suits have appeared in opposition. The Division of Industrial Welfare and the Director of the Department of
In assuming jurisdiction we were mindful of the rule that a court of appeal does not ordinarily accept supervening jurisdiction involving a lower court action pending in another appellate district.
(Waidley
v.
Superior Court
(1942)
Here, weighty reasons of public interest and need impelled assumption of jurisdiction despite the two pending superior court actions.
(Pitts
v.
Perluss
(1962)
The Industrial Welfare Commission is a five-member appointive board in the Division of Industrial Welfare of the State Department of Industrial Relations (Lab. Code, § 70). The division supplies staff and enforcement facilities. (Lab. Code, § 1193.5.) Section 1173, Labor Code, invests the commission with a continuing duty to ascertain the wages, hours and working conditions of women and minors. Section 1177 authorizes the commission to establish its own procedural rules. Section 1178 establishes a basic procedure for the adoption of commission regulations fixing minimum wages, maximum working hours and the working conditions of women
The commission is authorized to deliberate in executive session before promulgating its orders. (Lab. Code, § 71.1.) All its records are open to public inspection. (Lab. Code, § 71.2.)
The Industrial Welfare Commission commenced proceedings for review of its statewide series of wage orders in 1966. In August and October of that year it designated 13 wage boards, two of which were concerned with the three orders in issue here. One board was directed to inquire into the subject matter of Order 8, regulating off-farm industries handling products after harvest, and Order 13, covering on-farm preparation of agricultural products. Another board was designated for Order 14, covering agricultural occupations. These boards held meetings and, with the other 11 wage boards, submitted recommendatory reports. All these reports were published by the commission in a 67-page pamphlet entitled “Summary of Wage Board Recommendations.” This
Propriety of Wage Order Adoption Procedure.
In this court the parties debate approximately the same issues raised in the employers’ superior court actions. A salient issue is whether the wage order adoption proceedings of the Industrial Welfare Commission complied with constitu
Specifically, the employers complain that witnesses who testified at the hearings were not sworn or made available for cross-examination; that experts and staff members who prepared the statistical studies and other evidence considered by the commission were not called to testify or made available for cross-examination; that the commission considered statistical surveys and other information not included in the hearing record, hence beyond cross-examination and rebuttal. The information not included in the hearing record but playing a role in the commission’s action was of several kinds: First, after the conclusion of the public hearings in July 1967, the commission received and considered two newly formulated statistical studies.
3
Second, a group of statistical studies published by state and federal agencies were furnished to the commission by its staff but not included in the hearing record.
4
Third, one commissioner made a personal investigation by speaking to women workers and by acquiring employment herself at an hourly rate of $1.30. Fourth, in connection with the adoption of Order 14-68, two commissioners eonsid
The Labor Code provisions require public hearings to be held after published and mailed notices have assured affected parties an opportunity for participation. The kind of participation assured by procedural due process and by statute depends, in part, upon the function served by the hearing and, in part, upon the demands of the particular statute.
6
Generally speaking, an adjudicative function implies an adversary proceeding between contending parties who are entitled to access to the evidence and opportunities for cross-examination and rebuttal.
7
In promulgating the wage orders, the Industrial Welfare Commission was not performing that kind of function. Its task was to ascertain the minimal labor conditions which would satisfy the dual statutory standards of cost-of-living and health and welfare. Its function was to receive and consider economic and social data, as well as opinion and argument, covering large numbers of people and wide sectors of the economy; to select a series of positions aimed at the statutory objectives but shaped by discretion and policy; finally, to express its selection in rules regulating the future conduct of relatively broad classes of persons. Thus its function was quasi-legislative rather than adjudicative.
8
The statutory
There is no constitutional requirement for any hearing in a quasi-legislative proceeding; hence, the procedural requirements for conduct of the agency’s hearings stem from the particular statute rather than the constitutional demands of procedural due process. 10 In terms of access to evidence and opportunities for cross-examination and rebuttal, decisional pronouncements vary with the terms of the specific statutes. Generally, the demands are far less stringent than those prevailing in adjudicative proceedings. Quasi-legislative administrative agencies have been compared to legislative committees, which hear testimony and argument from contending factions and witnesses (but without cross-examination or rebuttal among the contenders) and which receive, independent investigations such as staff studies. 11 It has been pointed out that in hearings preceding the adoption of regulations of wide application, the availability of cross-examination among all the contending parties would impose intolerable burdens. “There must be a limit to individual argument in such matters if government is to go on. ’ ’ 12
Minimum wage regulations in several states have been sustained after argument type" hearings which did not provide opportunities for cross-examination or which were paralleled by independent investigations outside the hearing process. 13 Other state decisions are more stringent, requiring opportunity for cross-examination and rebuttal, as well as confinement to the hearing record. 14
Various California decisions sanction quasi-legislative procedings which exclude cross-examination ;
16
which do not provide access to the body of information from which statistical compilations or summaries are drawn by the agency’s staff,-
17
and which dispense with specific and detailed findings.
18
On the other hand, where the agency’s staff brings in factual material not available to the public, such as a specially
Implicit in these decisons is a distinction between two kinds of evidence: one which is not generally available to the public, thus depending upon confrontation as a precondition of rebuttal; the other, generally available data and argument which can be countered without advance confrontation.
When the evidentiary material consists of private facts rather than public conditions or of a special investigation conducted for the purpose of the particular determination and is not generally available to the public during the hearing process, its incorporation in the hearing record may be an indispensable condition of fairness. Other evidence deals with public conditions rather than private facts and is so generally available that fairness does not demand its display in the administrative record, for any percipient party may acquire and use it by analysis and research in advance of the hearing. Evidence of the latter sort frequently takes the form of statistical compilations and of economic and social studies, some published by federal and state agencies, others issued under the aegis of educational institutions or chambers of commerce but available through standard research sources such as libraries and public document depositories. Published studies of this sort are available to all who care to collect and use them. Even in the relatively strict precincts of judicial inquiry, published research material on social and economic conditions is habitually used without entering it in evidence, without putting the author under oath or cross-examining him.
20
It is equally available to assist the process of administrative legislation. An impeccably arranged process would incorporate all such material before or during the hearings and announce its presence to all, thus avoiding dissatisfaction, protest and legal attack.
21
Reviewing courts, however, are
Another kind of “evidence” is judgmental rather than factual. In the nomenclature of the judicial process, evidence, including the testimony of witnesses, is presented to produce belief in the existence of facts. (See Cal. Evid. Code, §§140, 190.) Transported into the legislative process, this nomenclature tends to evoke spurious responses. Thus witnesses appear to testify or give evidence before legislative investigating committees. Actually, most such witnesses utter opinion and argument rather than recollection or narration, seeking to produce belief in ideas rather than proof of facts. Stripped of verbal garments borrowed from the judicial process, such utterances may be viewed in their true character and met on their own terms, vulnerable to rebuttal by counterargument and countervailing opinion without cross-examination as the attritional prelude. In quasi-legislative as in legislative inquiries, absence of cross-examination does not significantly impair the parties’ ability to meet and rebut argumentative testimony.
The subject of the Industrial Welfare Commission’s investigation and the basis for its decisions were an amalgam of fact and judgment. The more factual phases consisted of collective rather than individualized facts and conditions. At the inception of the statutory proceedings, in the fall of 1966, the commission staff supplied the two wage boards with extensive study material, largely dealing with agricultural labor economics. Much of this material had been published by federal and state agencies, while other items emanated from chambers of commerce and educational institutions. There is no claim of inaccessibility regarding this material. The pamphlets and documents which later came into the hands of commission members in alleged violation of the public hearing provision are few in comparison. From the descriptions, all the questioned items appear to have been published by federal and state agencies. With one exception, they were not specially formulated for the purpose of the commission hearings but consisted of research material available to the public generally, including the present real parties in interest. (See fns. 3,
The commission’s investigation as well as its determinations were judgmental as well as factual. The commission was directed by law to arrive at concrete judgments by the standard of relatively indeterminate statutory words, for example, a wage adequate to supply the necessary costs of proper living and to maintain the health and welfare of women and minors. What was adequate, what was necessary, what was proper, what maintained welfare, formed as much a judgmental decision as factual. Such decisions are not born out of statistics alone. They are fashioned by argument; by recognition of contending needs, benefits and burdens; by balancing the interests of those receiving the benefit and those who bear the cost. Underlying the statistics of Minnie’s Budget (fn. 3, supra) are value judgments of the food Minnie eats, the quarters she inhabits, the clothing she wears and the number and extent of miscellaneous needs which fix her relationship to a bottom level of bare subsistence. Such judgmental inclinations do not permit flight from facts and figures. They are implicit, nevertheless, in the statutory standards. An examination of the transcript of commission hearings bears out this view. Much of the “testimony” before the commission consisted of argument, of appeals to understanding the employees’ needs or the employers’ burdens. To impose upon such witnesses an oath to tell the “truth” would elevate persuasion to the level of moral certitude. Multilateral cross-examination of such “testimony” would mask counterargument and clog the hearing process to the point of frustration. The statutory hearing requirement did not demand such anarchic debate.
Real parties in interest assert that they were denied the opportunity to cross-examine members of the commission staff who prepared statistical studies and other evidence considered by the commission. With the single exception noted earlier, they have not pointed to any staff study or investigation made for the purpose of these hearings and not available to the general public. Indeed, some of their briefs complain of the absence of affirmative staff presentation. The exception consists of the one-page supplement updating the 1961 Minnie’s Budget to 1967. The supplement was prepared by the Division - of Labor Statistics and Research to include price adjustments to June 1967. Apparently it had not been completed at the
Although the real parties in interest correctly assert denial of an opportunity to review and rebut Minnie’s 1967 budget during the public hearings, the assertion is nothing but an abstraction, a claim of pain without injury. Neither in their superior court petitions nor in this court have they charged any error, fault or omission in the one-page 1967 supplement. Minnie’s Budget of 1961, in the form of a 31-page printed pamphlet, was available for review and attack during the public hearings. Based on June 1961 prices, it expressed a self-supporting working woman’s annual need of $2,334.90 for commodities and services “to maintain a minimum but adequate mode of living” plus an annual tax burden of $520.08. The 1967 supplement adjusted the 1961 figures to reflect the changes in cost-of-living indicated by the consumer price index of the United States Bureau of Labor Statistics and to reflect changes in tax rates. Essentially, the 1967 supplement resulted from an elementary mathematical calculation applied to the 1961 figures. The surface appearance is one of acceptability. Real parties in interest make no attempt to peer beneath the surface.
The same abstract complaints characterize the other challenged documents. Mandamus will be granted to protect a party against substantial damage, not to vindicate abstract claims; issuance of the writ is not a matter of right, but involves a consideration of its effect in promoting justice; likely public detriment warrants denial of relief.
23
In this phase of their superior court actions, real parties in interest posed abstract complaints of denied rebuttal opportunity against elaborate and extended adoption proceedings, heavy public and private expenditures of time and money and the expectations of the affected employees. In balancing abstrae
Under the circumstances here, personal study and research by individual commissioners did not violate the public hearing requirement. At the meeting at which the wage orders were adopted, two commissioners explained their refusal to accept a differential between urban and rural minimum wage rates. At that point they referred to the statistical studies described in footnote 5, supra, to buttress their position. Such studies were as available to real parties in interest as to the two commissioners.
The commissioner who personally tested the experience of a female worker employed at $1.30 per hour and talked to female agricultural workers did no more than augment the individual expertise and depth of understanding necessary to well-founded individual decisions. Carried to an extreme, of course, private studies and investigations by the individual members of a tribunal or commission might sap the substance of the group process demanded by statute. In the context of the Industrial Welfare Commission’s extensive collective investigation, this individual activity was not of substantial importance and did not transgress the statutory mandate for collective public hearings.
Both in their superior court mandate actions and in this court, real parties in interest have asserted the right to take the testimony of the commission members and staff to ascertain the extent of use and reliance upon data and evidence not included in the hearing record. They cite
Olive Proration etc. Com.
v.
Agricultural Prorate Com., supra,
Compliance With Substantive Standards of the Enabling Statutes.
The petitions for mandate in the superior court and the briefs of real parties in interest in this court charge absence of any finding that a minimum hourly rate of $1.65 for women or $1.30 for minors is necessary to meet the statutory standard of “a wage adequate to supply the necessary costs of proper living . . . and maintain the health and welfare of . . . women and minors” (Lab. Code, § 1182, subd. (a), fn. 2, supra) ; that in any event there is no evidence to support such a finding; that neither the petitioners in this action nor the Attorney General have pointed to such evidence; that Minnie’s Budget and other evidence of the living costs of a self-supporting woman employed in an urban locale are inappropriate to agriculture and crop processing, since the majority of women and minors in these fields are temporary, seasonal workers who are not self-supporting but supplementing family income needed to meet the lower living costs prevailing in rural areas.
These arguments misconceive the burdens undertaken by real parties in interest as well as the character of the Industrial Welfare Commission’s statutory mandate. A reviewing court does not superimpose its own policy judgment upon a quasi-legislative agency in the absence of an arbitrary decision; rather, the review is limited to an examination of the proceedings to determine whether the action is arbitrary or entirely lacking in evidentiary support or whether the agency has violated the procedure required by law; in these •technical matters requiring the assistance of experts and the collection and study of statistical data, courts let administrative boards and officers work out their problems with as little judicial interference as possible. 25
Either in a lawsuit to restrain or to compel its enforcement, the action of the agency comes before the court with a presumption of correctness and regularity.
26
He who assails the
The Industrial Welfare Commission is not required to adopt a finding expressly declaring that the specified minimum hourly rates meet the statutory standards, since such a finding is implied from its action. 27
Basic to review of the commission’s minimum wage action is an understanding of the statute, Labor Code section 1182, subdivision (a) (fn. 2, supra). It directs the commission to fix a minimum wage for women and minors “which shall not be less than” a wage adequate to supply the described needs. It does not peg the minimum wage at the precise level of adequacy, but fixes adequacy as a minimum level beneath which it shall not be set. The “not less than” phraseology necessarily implies an exercise of discretion and policy by the commission in fixing minimum rates at or at some point above the level of bare adequacy. There is no ambiguity in this statutory language, no reason to delve into legislative purpose or history. The statutory standard of adequacy is a floor and not a ceiling on the commission’s wage determinations. 28
This characteristic of the statute supports the thesis, expressed earlier, that the evidentiary base for the commission’s action is judgmental as well as statistical. The policy and discretion allowed to the commission in setting minimum wage rates at or above the minimum level of adequacy permits it to recognize a range of determinants other than the employee’s minimum subsistence cost. These include such factors as general wage trends, productivity levels, availability of non-wage benefits, the effect on the labor market, the minimum’s relationship to the entire payroll, the economic condition of the employing industry and its capacity to adjust to the increased cost. 29 The implied thesis that minimal subsistence statistics form the exclusive evidentiary basis for minimum wage decisions is rebutted by the statute.
These varying characteristics pose the alternatives of wage rate parity and a theoretically conceivable differential between primary and secondary breadwinners. The Industrial
Another complaint against the statewide rates fixed by the commission is its refusal to allow adjustments for lower living costs in rural areas. Although carrying the burden of demonstrating invalidity, real parties in interest have pointed to no evidence of an actual living cost differential between urban and rural areas of the state. The record of the hearings includes statistics and testimony from which the commission could reasonably conclude that no significant differential exists.
Real parties in interest complain that the hearing record included no evidence whatever regarding minors. 33 To the contrary, the statistical material submitted to the wage boards and the evidence before the commission dealt in part with employment and pay problems peculiar to students and trainees. Claimed lack of evidence relative to minors’ subsistence needs rests on the assumption that the subsistence needs of female workers are irrelevant. Within broad limits, such compilations as Minnie’s Budget are useful to determine the minimal needs of any single person. Order 8-68 (applicable to crop processing off the farm) fixes a $1.65 minimum rate for both women and minors. Order 13-68 (on-farm crop processing) permits a proportion of “learners” and minors at a $1.35 minimum, while Order 14-68, applicable to agricultural occupations, specifies a $1.35 minimum for minors of 16 and 17. These differentiations demonstrate careful inquiry and treatment following accumulation of adequate evidence.
The body of evidence before the commission included Minnie’s Budget, a carefully conceived and conducted study of the total annual income need of a self-supporting woman living at a fairly drab, even austere, level of existence. According to June 1967 price levels, that total income need stood at $3,132.56. The concept underlying Minnie’s Budget corresponded closely to the adequate living wage standard fixed by Labor Code section 1182, subdivision (a).
34
The commission heard testimony urging inadequacies in Minnie’s Budget,
Validity of Overtime Rates
Orders 8-68 and 13-68, covering packing and processing of crops on and off the farm, prohibit employment of women beyond 8 hours per day or more than 6 days per week except in an emergency or when necessary to process a perishable product to prevent spoiling; and, as to permitted overtime, establish a premium rate one and one-half times the regular hourly rate for work in excess of 8 hours per day. and 40 hours per week. 35
Real parties in interest make several attacks against these overtime regulations. One claim is lack of statutory authority. The claim is premised upon the proposition that, since premium pay for overtime is calculated upon the regular and not the minimum hourly rate, it affects women employed
Next, it is urged that the overtime provisions of the commission’s orders conflict with Labor Code sections 1350-1356. With qualifications, the latter fix a maximum 8-hour day, 48-hour week, for women in specified industries and trades. For present purposes these may be assumed to include agricultural packing operations. These provisions originated in 1911 and, since 1913, have coexisted with the statutes investing the Industrial Welfare Commission with regulatory powers as to women and minors. Bach set of statutes contains a provision designed to dovetail with the other. Thus section 1182, subdivision (b), declares that the maximum hours fixed by the commission ‘ ‘ shall not be more than the maximum now or hereafter fixed by law. ’ ’ The statutes restricting overtime of women contain a provision, added in 1967, which limits the regulatory powers of the commission in some respects. 37
A group of exclusions from the statutory overtime limit is
By means of section 1352, the California 8-hour law limiting women workers’ overtime excludes coverage of overtime which occurs in the course of processing perishable crops “when necessary ... to prevent spoiling.”
39
The Industrial
By parity of reasoning, the overtime premium imposed by the commission is not more restrictive than the statutory limitations on overtime for women (Lab. Code, § 1356, fn. 37, supra), since it operates in an area excluded from those limitations. The predecessors of Orders 8-68 and 13-68 have imposed premium overtime rates for women and minors ever since 1919. This long-continued and consistent administrative interpretation has received at least silent acquiescence from the Legislature. It supports the interpretation that the statutory restrictions on overtime should not be construed to prevent it. The courts will not depart from such an administrative construction unless it is clearly erroneous or unauthorized. 40
Where the circumstances do not call for overtime to prevent spoilage of perishables, the commission’s regulatory action is consistent with the statutory limitation, since both prohibit overtime under such circumstances without regard to pay rates. Out of circumspection, the wage order provisions on overtime (fn. 35, supra) are preceded by the phrase “unless otherwise provided by statute” and declare that its premium rates are applicable only to overtime permitted by Labor Code sections 1350-1356. The claim of conflict has no merit.
Another attack is grounded on the contention that, since the enactment of section 1350.5 in 1967, California law unconstitutionally discriminates between two classes of female workers: those working on interstate products who are covered by the Fair Labor Standards Act, hence have the opportunity
Federal Preemption and Conflict with Federal Law.
Real parties in interest contend that an array of federal statutes form a comprehensive plan of national regulation, preempting the field of wage and hour legislation and excluding state regulations such as Orders 8-68, 13-68 and 14-68 of the Industrial Welfare Commission. They refer to the following statutes as components of the federal regulatory plan: the National Labor Relations Act, 29 U.S.C.A., § 151; the Railway Labor Act, 45 U.S.C.A., § 151; the Fair Labor Standards Act of 1938, 29 U.S.C.A., § 201; the Wagner-Peyser Act, 29 U.S.C.A., § 49; and title 7 of the Civil Rights Act, 42 U.S.C.A., § 2000e.
State regulation of wages, hours and working conditions, particularly affecting women and minors, has been such a widely and long-established feature of American life that this argument comes as a distinct surprise.
42
Doubtless it would arouse equal surprise in the halls of the federal Congress. Preemption is primarily a matter of congressional intent.
43
The fact of the matter is that the coverage of the Fair Labor Standards Act does not extend to farms below the 500 man-day employment level (fn. 44, supra) and, as to farms above that level, expresses a “hands off” attitude when state law fixes a shorter workweek or specifies a rate higher than the federal minima of $1 to $1.30 per hour.
Counsel support the preemption argument by decisions sup: posedly finding preemption in the face of saving clauses. The argument employs the phrase “saving clause” as an indiscriminate cachet. In each of the three cited eases, the court held that that particular congressional references to state power or jurisdiction did not manifest an intent to preserve state regulation. 46 In none did the court find preemption contrary to an express congressional declaration.
A specific regulation of the Industrial Welfare Commission may enter a relatively narrow regulatory sphere reserved by Congress or may actually conflict with a federal regulation. (See, for example,
United Air Lines, Inc.
v.
Industrial Welfare Com., supra,
There is nothing in the history of the Federal Civil Rights Act indicative of congressional intent to abrogate state legislation fixing minimum pay and working conditions for women. The state legislation does not sanction discrimination between the sexes, and there is no evidence ■ that such is its effect. The federal act permits hiring selection based upon a “bona fide occupational qualification” necessary to the normal operation of the enterprise. (42 U.S.C.A., § 2000e-2, subd.
The Relief to Be Granted.
The orders adopted by the Industrial Welfare Commission on September 26, 1967, are valid, and the Division of Industrial Welfare is under a statutory duty to enforce them. (Lab. Code, § 1193.5.) The petitioning employees are entitled to a writ of mandate to compel performance of this duty. (Code Civ. Proc., § 1085.) The division, however, is the object of restraints embodied in the alternative writs of mandate issued in the Los Angeles and San Francisco Superior Court actions. These alternative writs have never been discharged. In these three lawsuits the superior courts had jurisdiction to determine their own jurisdiction, but went farther and indulged in positive assumptions of jurisdiction by issuing restraints
At times appellate courts have issued writs of mandate directing administrative action which lower courts had restrained, implying but not expressing supersedure of the latters ’ orders. 48 Whatever may be appropriate in other cases, it is inappropriate here that the enforcement agency be burdened with any doubt emanating from nominally conflicting judicial orders. This court has authority to grant any appropriate relief within the issues presented by the pleadings. 49 In order to assure complete realization of the relief to which petitioners are entitled, this court will issue a writ of, mandate addressed to the superior courts as well as the enforcement agency. In this exercise of original jurisdiction, this court is not constrained by the fact that neither court is within our appellate district. 50
Let a peremptory writ of mandate issue directing the Division of Industrial Welfare of the State Department of Industrial ' Relations to enforce Orders 8-68, 13-68 and 14-68 adopted by the Industrial Welfare Commission on September 26, 1967; directing the Superior Court in and for the City and County of San Francisco to vacate those provisions of the alternative writs of mandate issued in actions Nos. 587891 and 587878 which stayed enforcement of said orders and directing the Superior Court in and for Los Angeles County to vacate a like provision in the alternative writ of mandate issued in action No. 925929.
Pierce, P. J., and Regan, J., concurred.
Petitions for a rehearing were denied October 9, 1968, and the petitions of the real parties in interest for a hearing by the Supreme Court were denied October 31,1968.
Notes
The items in question were: (a) Report 860, No. 11, Estimated Number of Women in California Agriculture by County and Type of Worker, 9/3/66, State Department of Employment, (b) Report of the Advisory Commission on the Status of Women to the Legislature, (e) U.S. Department of Labor, Women’s Bureau, Leaflet 4, “State Minimum Wage Laws” and (d) California Department of Education “Hand Book on Work Experience Education’’ 1965.
These were: (a) a family budget study published by the State Department of Social Welfare, Aid to Families with Dependent Children Program; (b) a study of hourly earnings in manufacturing in Kern County, a publication whose sponsor is not designated; (e) a study entitled Medical Costs in Urban and Rural Areas, issued in connection with the California Medi-Cal Program.
See
Norwegian Nitrogen Products Co.
v.
United States
(1933)
Relative to such an adjudicative hearing, it is said: "Administrative tribunals which are required to make a determination after a hearing cannot act upon their own information, and nothing can be considered as evidence that was not introduced at a hearing of which the parties had notice or at which they were present.”
(English
v.
City of Long Beach
(1950)
See
Opp Cotton Mills, Inc.
v.
Administrator
(1941)
Jersey Maid Milk Products Co.
v.
Brock
(1939)
Franchise Tax Board
v.
Superior Court
(1950)
See Ray
v.
Parker, supra,
Norwegian Nitrogen Products Co.
v.
United States, supra,
Kiamesha Concord, Inc.
v.
Lewis
(1962) 15 App.Div.2d 702 [
Martin
v.
Wolfson
(1944)
Emby Foods, Inc.
v.
Paul
(1964)
Security-First Nat. Bank
v.
Franchise Tax Board
(1961)
Wilson
v.
Hidden Valley Municipal Power Dist., supra,
Olive Proration etc. Com. v. Agricultural etc. Com., supra, 17 Cal.2d at p. 210; see also Ray v. Parker, supra, 15 Cal.2d at pp. 303-310; Franchise Tax Board v. Superior Court, supra, 36 Cal.2d at pp. 549-550.
The "Brandéis brief," which brings social statistics into the courtroom, has become a commonplace. A measure of fame now surrounds footnote 11 in
Brown
v.
Board of Education
(1954)
Several state administrative procedure statutes require notification of technical and scientific data which is to receive consideration. (See 9 Wigmore, Evidence (3d ed.) 1964 Pocket Supplement, § 2568.)
Real parties in interest do not charge deliberate secrecy on the part of the Industrial Welfare Commission or its staff or violation of Labor Code section 71.2, which makes commission records available for public inspection.
See
Parker
v.
Bowron
(1953)
Evidence Code, section 664;
Ralphs Grocery Co.
v.
Reimel
(1968)
Ralphs Grocery Co.
v.
Reimel, supra,
See authorities cited footnote 24, supra.
United Air Lines, Inc.
v.
Industrial Welfare Com., supra,
Absence of an upper statutey limit on the minimum wage does not hand the commission a legislative blank check. At some point disregard of the recommendations and data submitted to the commission would result in invalid, arbitrary action.
See Backman, Wage Determination (D. Van Nostrand Company, Inc., Princeton, New Jersey) (1959) ; Belloe, Wages in California, Univ. of Cal. Press (1948) pp. 91-94; Tolles, Origins of Modern Wage Theories,
Cal. Dept. of Employment, Estimated Number of Women in California Agriculture by County and Type of Worker, Report 860, No. 9, Oct. 6, 1966; Idem., Employment and Earnings of Adult Female Workers in California Agriculture, Report 840, No. 16, Oct. 27, 1966 ; Idem., Youth in California Agriculture, Report 840, No. 14, Oct. 27, 1966.
The President’s Commission on the Status of Women, Report of Committee on Private Employment, pp. 1, 47 (1963); American Women Report of the President’s Commission on the Status of Women, p. 27 (1963).
One document (Statement of Position, AFL-CIO) before the commission declared that California farm laborers averaged 1,100 hours of work per year. Such a statistic indicates the pooling of family effort necessary to provide minimum family subsistence. Another statistic indicated that of the statewide female labor force, 43.3 percent were without a supporting spouse. (Cal. Dept. of Industrial Relations, Division of Labor Statistics and Research, California Women Power (1966) Table 15.) The latter figure corresponds closely with the Beport of the President’s Commission (fin. 31, supra) indicating that three out of every five women in the work force are married.
The commission’s wage orders define "minors” as those under the age of 18. See Labor Code, section 1172.
In the explanatory portion (p. 7) of Minnie’s Budget, the Division of Labor Statistics and Beseareh stated: "The allowances are intended to permit a working woman, entirely dependent on her own resources and
The overtime provision of Orders 8-68 and 13-68 reads in part .as follows: "(a) Unless otherwise provided by statute, no woman eighteen (18) "years of age or over shall be employed more than eight (8) hours in.any one day nor more .thgn.fi.ve (5) -days in .any one week unless the
Kerr’s Catering Service
v.
Department of Industrial Relations
(1962)
Labor Code, section 1356: "The Division of Industrial Welfare shall enforce this article; provided, however, that neither the division nor the Industrial Welfare Commission may place on employers any limitations that are more restrictive than the provisions of this article. ’ ’
The material before us does not permit a precise view of the scope of this exclusion. For present purposes, it seems appropriate to assume that the preparation and packing of perishable crops during the harvest must be conducted as a continuous process, thus that the clause “when necessary ... to prevent spoiling ’
’
has general rather than emergency application to the seasonal processing of perishable crops in preparation for shipping. (See
In re Miller
(1912)
Select Base Materials Inc.
v.
Board of Equalization
(1959)
See
Fox-Woodsum Lbr. Co.
v.
Bank of America etc. Assn.
(1936)
Twenty-eight states and the District of Columbia have laws establishing a statutory minimum wage. Statutory provisions for the adoption of minimum wage orders by administrative boards exist in 19 states and the District of Columbia. (See Commerce Clearing House, Labor Law Reporter, State Laws, vol. 1, par. 40355.) In 1963, the President’s Commission on the Status of Women reported that all but seven states had maximum work hour limitations for women (Report, American Women (1963) supra, p. 36.)
San Diego Bldg. Trades Council
v.
Garmon
(1959)
In connection with the saving clause, it is interesting to note that the Fair Labor Standards Amendments of 1966 (Pub. L. 89-601 [80 Stat. 841] eif. 2/1/67) extended federal minimum wage standards to agricultural employees on farms employing more than 500 man-days of agricultural labor in a calendar quarter (29 U.S.C.A., § 213, subd. (a) (6) ) as well as certain workers in agricultural processing (Pub. L. 89-601, § 204, repealing 29 U.S.C.A. § 213(a) (10)). The Amendments (§ 302) set the hourly minimum wage of agricultural employees at §1 during the year commencing February 1, 1967, at $1.15 during the following year, and $1.30 thereafter (29 U.S.C.A., § 206(a) (5)), the same minima as those fixed for nonagricultural workers during those particular years (the latter, however, progressing to a $1.60 rate in 1971). In presenting the bill the Senate Labor and Public Welfare Committee voiced the objective of achieving ultimate parity between farm and nonfarm employees. (Senate Report No. 1487, Aug. 23, 1966, 1966 U.S. Code, Congressional and Administrative News, pp. 3011, 3021.)
See
San Diego Bldg. Trades Council
v.
Garmon, supra,
359 U.S. at pp. 239-240 [3 L.Ed.2d at pp.
779-780]; Weber
v.
Anheuser-Busch,
(1955)
Federal Power Com.
v.
Southern Cal. Edison Co.
(1964)
See Regulations, U.S. Dept. of Labor, under Equal Pay Act of 1963 (Pub. L. 88-38 [77 Stat. 56, 29 C.F.R., § 800.161]); Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 C.F.R., § 1604.1; see also Murray and Eastwood, Jane Crow and the Law (1965) 34 Geo. Wash.L.Rev. 232, 249-250; Miller, Sex Discrimintion and Title VII of the Civil Rights Act of 1964 (1967) 51 Minn. L.Rev. 877, 894-896; cf. Reynolds v. Mountain States Tel. § Tel. Co. (1966) Case No. 17-12E, Ariz. Civil Rights Commission, C.C.H. Labor Law Reports, Employment Practices Guide, ¶8111. Labor Code section 1197.5, a recently enacted state equal pay law, should also be noted.
See, e.g.,
Pitts
v.
Perluss, supra,
58 Cal.2d at p.
848; Perry
v.
Jordan, supra,
Caminetti
v.
Superior Court
(1941)
In
re Davidson, supra,