SAN DIEGO TEACHERS ASSOCIATION et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent.
L.A. No. 30977
Supreme Court of California
Apr. 10, 1979.
24 Cal. 3d 1
Howard J. Bechefsky, Christopher J. Schatz, Sheela, Lightner, Castro & Walsh, Sheela, Lightner & Castro, Peter T. Galiano and Raymond L. Hansen for Petitioners.
Geffner & Satzman, Jeff Paule and Leo Geffner as Amici Curiae on behalf of Petitioners.
Donald L. Clark, County Counsel, Betty Evans Boone, Chief Deputy County Counsel, and Robert C. Campbell, Deputy County Counsel, for Respondent.
Paul M. Loya, Paterson & Taggart, Silvia M. Diaz, Kristin A. Jensen, W. Craig Biddle, Robert G. Walters, John L. Bukey, Biddle, Walters & Bukey, O‘Melveny & Myers, Richard N. Fisher, Gordon E. Krischer and Kenneth S. Stewart as Amici Curiae on behalf of Respondent.
OPINION
NEWMAN, J.—In this writ of review proceeding San Diego Teachers Association (SDTA) and Hugh Boyle seek annulment of contempt orders that punish them for conducting a strike against the San Diego Unified School District in violation of a restraining order and a preliminary injunction. Boyle was SDTA‘s president during events that led to the contempt orders. The strikers’ demands arose out of negotiations being conducted on behalf of the district‘s teachers. SDTA was the exclusive representative under the Education Employment Relations Act (EERA),
The main issue is whether the restraining order and injunction are invalid because the district failed to exhaust its EERA remedies. SDTA‘s unfair practice charge was filed with PERB on May 19, 1977, and alleged
On June 2 the district filed with respondent court a complaint asking that SDTA and its officers be enjoined from conducting a strike. The complaint alleged not only that the strike would be illegal and cause the district and pupils irreparable injury but also that under the EERA the parties had duties to meet and negotiate and had not declared an impasse.
A strike began on June 6; and that day, at the district‘s request, respondent court issued a restraining order. The application for a preliminary injunction was heard on June 7; the injunction issued on June 8. On June 9 SDTA announced termination of the strike after receiving assurances that the district would negotiate certain issues and not take reprisals against striking teachers.
On June 14 Judge Levitt, who had signed the preliminary injunction, filed a declaration alleging violation of the restraining order and injunction by SDTA and Boyle, and they were ordered to show cause why they should not be held in contempt. Judge Levitt acted on his own motion; the district did not participate in the contempt proceeding and is not now before us.
After trial SDTA was found guilty of three violations of paragraph 5 of the restraining order and six violations of paragraphs 1 and 2 of the injunction and was fined $500 for each violation. Boyle was convicted of three violations of paragraph 5 of the restraining order and five violations of paragraph 2 of the injunction, was fined $4,000, and was sentenced to forty days in jail of which thirty were suspended.
Paragraph 5 of the restraining order enjoined “doing any act either direct or indirect in furtherance of [the] strike. Ordering, coercing, requesting, or otherwise inducing or attempting to induce an employee of [the district] to refrain from performing his employment duties for the [district] as part of a work stoppage, walk out, strike against [the district].”
Paragraph 1 of the injunction forbade “[e]ngaging in a work stoppage or strike against the [district], its officers, agents, employees, and the children who attend school within the [district].” SDTA was convicted of having engaged in the strike on June 8 and 9.
Paragraph 2 of the injunction was essentially the same as paragraph 5 of the restraining order.2 SDTA and Boyle were found guilty of (1) adopting on June 8 a board resolution (a) to continue the strike until the district promised no reprisals and “a return to good-faith bargaining,” and (b) to urge parents to keep children away from school; (2) Boyle‘s speech later that day to a mass rally (a) reporting the resolution and the preliminary injunction, (b) arguing that judges do not make laws and the Legislature has made no law against public employee strikes, and (c) calling for continuation of the strike with Ben Franklin‘s exhortation to hang together or “surely we will hang separately“; (3) announcing to the media on June 9 that a condition to ending the strike would be a “no reprisals” guarantee; and (4) demanding such a guarantee at the district‘s board meeting on June 9. A violation by Boyle alone was based on a TV interview he gave on June 8 in which he stated that the strike would be honored by the district‘s bus drivers, encouraged parents to keep children home on June 9, and responded affirmatively to the question whether he would defy the preliminary injunction.
Petitioners’ application to the Court of Appeal for a writ to review the contempt order was summarily denied. We granted hearing and ordered issuance of the writ.
Petitioners do not deny the acts the trial court held contemptuous but attack the validity of the restraining order and preliminary injunction. A contempt conviction may be annulled when issuance of the order was beyond the court‘s authority. (In re Berry (1968) 68 Cal.2d 137, 146-149.)
Petitioners contend that the EERA, though excluding
Responding to Court of Appeal holdings that public employee strikes are illegal, petitioners assert that this court has treated legality as an open question. In Los Angeles Met. Transit, supra, this court declared that “[i]n the absence of legislative authorization public employees in general do
Similarly it is unnecessary here to resolve the question of the legality of public employee strikes if the injunctive remedies were improper because of the district‘s failure to exhaust its administrative remedies under the EERA. (See Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105, 112.) The exhaustion question was raised but given only scant attention in the trial court.3 It is extensively briefed here.4 Three main issues are identified: (1) Could PERB properly determine that the strike was an unfair practice under the EERA? (2) If it made that determination could it furnish relief equivalent to that which would be provided by a trial court? (3) Did the Legislature intend that PERB would have exclusive initial jurisdiction over remedies against strikes that it properly could find were unfair practices?
By engaging in a strike the SDTA may have committed at least two of the unfair practices forbidden an employee organization that is recognized as exclusive representative: (1) failure to negotiate in good faith (
The question of negotiation in good faith is resolved by determining whether there was a genuine desire to reach agreement. (Placentia Fire Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25 (construing Meyers-Milias-Brown Act,
An unfair practice consisting of “refus[al] to participate in good faith in the impasse procedure” (
The impasse procedures almost certainly were included in the EERA for the purpose of heading off strikes. (See Comment, Public Employee Legislation: An Emerging Paradox, Impact, and Opportunity (1976) 13 San Diego L.Rev. 931, 953.) Since they assume deferment of a strike at least until their completion, strikes before then can properly be found to be a refusal to participate in the impasse procedures in good faith and
2. Could PERB furnish relief equivalent to that available in a court action?
The district was not required to exhaust its remedy under the EERA unless PERB could furnish relief equivalent to that which could be provided judicially. (Endler v. Schutzbank (1968) 68 Cal.2d 162, 168; cf. Vargas v. Municipal Court (1978) 22 Cal.3d 902, 912 [landlord-employer‘s unlawful detainer action against tenant-employee need not be stayed pending hearing of agricultural union‘s unfair practice charge for wrongful discharge of employee because ALRB could not order possession restored to landlord].)
On the dates of the restraining order and injunction here (June 6 and 8, 1977) there was no announced PERB policy for dealing with requests for injunctive relief. PERB on June 15, 1977, did consider on the merits and deny a union‘s request that the general counsel of PERB petition for an injunction. (Service Employee International Union v. Fresno Unified School Dist., EERB Order No. IR-1.) PERB so far has received 37 requests for injunctive relief; none involved a strike; all were deemed nonmeritorious.
“(a) The Board directs the General Counsel to evaluate pending charges and bring to the Board‘s attention and advise it as to appropriate cases in which to consider seeking injunctive relief. Under Board direction the General Counsel shall take such action as the Board deems appropriate.
“(b) Requests from parties that the Board seek injunctive relief shall be directed to the General Counsel who shall promptly evaluate the request and advise the Board in regard thereto. Under Board direction the General Counsel shall take appropriate action in regard thereto and advise the parties thereof.”
Respondent argues that, because the EERA, unlike the NLRA (
To provide an adequate alternative to a party‘s own lawsuit for an injunction, PERB‘s power to apply for injunctive relief should be exercisable in response to any aggrieved party‘s request, not simply on its own motion. (Ross v. Superior Court (1977) 19 Cal.3d 899, 912.)
It is contended, however, that even if PERB could have applied for judicial relief against the strike the grounds on which this might have been done would not necessarily encompass all grounds on which a judicial order could be granted. It is argued that PERB‘s determination to seek an injunction, as well as its application to the court, would reflect only a narrow concern for the negotiating process mandated by the EERA and would ignore strike-caused harm to the public and particularly the infringement on children‘s rights to an education. An analogy is drawn to the rule that NLRB jurisdiction to remedy unfair practices does not preempt state suits that present different issues. (See, e.g., Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180 (antipicketing injunction based on location, rather than on means or objective of pickets); Farmer v. Carpenters (1977) 430 U.S. 290 (damages action for union‘s intentional infliction of mental distress); Youngdahl v. Rainfair, Inc. (1957) 355 U.S. 131 (injunction against pickets’ violence).)
That argument erroneously presupposes a disparity between public and PERB interests. The public interest is to minimize interruptions of educational services. Yet did not an identical concern underlie enactment of the EERA? The Legislature was aware of the increase in public employee work stoppages despite the availability and use of injunctions and other sanctions to prevent or punish them. (See Cal. Assem. Advisory Council, Final Rep. (Mar. 15, 1973) pp. 197-198; Cebulski, An Analysis of 22 Illegal Strikes and California Law (1973) 18 Cal. Pub. Employment Re. 2; Comment, Public Employee Legislation: An Emerging Paradox, Impact, and Opportunity, supra, 13 San Diego L.Rev. 931, 935.) It does not follow from the disruption attendant on a teachers’ strike that immediate injunctive relief and subsequent punishment for contempt are typically the most effective means of minimizing the number of teaching days lost from work stoppages. As observed in City and County of San Francisco v. Cooper, supra, 13 Cal.3d 898, 917, the question of appropriate sanctions for illegal strike activity is complex. Harsh, automatic sanctions often do not prevent strikes and are counterproductive. PERB‘s responsibility for administering the EERA requires that it use its power to seek judicial relief in ways that will further the public interest in maintaining the continuity and quality of educational services.
Petitioners and PERB both invoke an NLRB analogy and argue that PERB had exclusive initial jurisdiction to determine whether the SDTA strike was an unfair practice and, if so, whether temporary judicial relief was appropriate. Neither federal nor state courts may grant relief on grounds that arguably would justify an NLRB remedy against an unfair practice (
There are marked similarities between EERA and NLRA (
Further, as if exclusive initial jurisdiction were not amply implied by the comprehensiveness of the EERA scheme,
It is contended that to require the district to apply to PERB before suing for injunctive relief would be to require an idle act because, if PERB had then refused to apply to a court for relief, the district would have been entitled to do so—on the theory that exhaustion of remedies is not required if completion of the administrative proceeding would result in irreparable injury. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 296; Greenblatt v. Munro (1958) 161 Cal.App.2d 596, 605-606.) But the EERA gives PERB discretion to withhold as well as pursue, the various remedies at its disposal.5 Its mission to foster constructive employment relations (
If PERB had declined not only to seek injunctive relief but also to issue an unfair practice complaint, would the district have been without a remedy because a decision of nonissuance is not judicially reviewable? (See
The contempt orders are annulled on the ground that PERB had exclusive initial jurisdiction to determine whether the strike was an unfair practice and what, if any, remedies PERB should pursue. Our holding is limited to injunctions against strikes by public school employee organizations recognized or certified as exclusive representatives (
Tobriner, Acting C. J., Mosk, J., and Kaus, J., * concurred.
RICHARDSON, J.—I respectfully dissent. Petitioners were properly adjudged in contempt for conducting a strike in violation of the express terms of a temporary restraining order and preliminary injunction. As will appear, the strike was clearly unlawful under California law. No statutory right to strike was granted to public employees by the legislative adoption of the Education Employment Relations Act (EERA) (
The district‘s complaint for injunctive relief in the present case alleged that the impact of the illegal teachers’ strike would cause irreparable injury to the district‘s educational program and a significant loss of state funds (which are based upon average daily school attendance). Under prior California case law it was well established that a public employer could obtain immediate injunctive relief from the courts to prevent or reduce such irreparable injury or loss. (E.g., City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41.) The majority now severely limits the public employer‘s judicial remedy to protect the public interest and requires that it request and obtain PERB‘s permission in order to invoke judicial relief. The majority suggests that PERB not only has exclusive jurisdiction over strikes by public educational employees but even possesses discretion to refuse to enjoin such strikes consistent with “[i]ts mission to foster constructive employment relations.” (Ante, p. 13.) Despite the obvious potential irreparable injury
*Assigned by the Acting Chairperson of the Judicial Council.
As will appear, I disagree with the majority‘s premise, reasoning, and result.
1. Public Employee Strikes are Unlawful
The majority opinion itself cites five Court of Appeal cases which, without equivocation, hold that public employees have no right to strike in California. (Ante, pp. 5-6.) Indeed, we ourselves have fully acknowledged the rule that “In the absence of legislative authorization public employees in general do not have the right to strike . . . .” (Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 687.) Yet despite past unanimity of judicial opinion on the subject, the majority finds it “unnecessary here to resolve the question of the legality of public employee strikes . . . .” (Ante, p. 7, italics added.) Contrary to the majority‘s suggestion, however, there remains no such “question” to decide, for prior cases which have carefully and thoughtfully analyzed and resolved the issue have ruled that public employee strikes are unlawful in the absence of legislation to the contrary.
I quote at some length from Justice Coughlin‘s opinion in City of San Diego v. American Federation of State etc. Employees (1970) 8 Cal.App.3d 308, wherein he painstakingly reviewed the prior authorities in California and in other states, concluding that in the absence of some statutory authorization, public employees have no right to strike against the public. He observed that “This California common law rule is the generally accepted common law rule in many jurisdictions. [Citations, including cases from 24 states.]
“The common law rule has been adopted or confirmed statutorily by 20 states and the federal government. [Citations.]
“The reasons for the rule are many; apply public policy; relate generally to the fundamental differences between private and public employment as regards the processing and settlement of labor demands
“. . . The common law rule public employees do not have the right to bargain collectively or to strike is predicated expressly on the necessity for and lack of statutory authority conferring such right. Where a statute authorizes collective bargaining and strikes it includes them within the methods authorized by law for fixing the terms and conditions of employment. Those who advocate the right of public employees to strike should present their case to the Legislature. [Italics added.]
“. . .
“Wherever the issue has been raised, it has been held laws governing the rights of public employees to engage in union activities, collective bargaining, strikes and other coercive practices, not equally applicable to private employees, and vice versa, are premised on a constitutionally approved classification; and, for this reason, are not violative of the constitutional guarantee of equal protection of the law. [Citations.] [¶] The reasons for the law denying public employees the right to strike while affording such right to private employees are not premised on differences in types of jobs held by these two classes of employees but upon differences in the employment relationship to which they are parties. The legitimate and compelling state interest accomplished and promoted by the law denying public employees the right to strike is not solely the need for a particular governmental service but the preservation of a system of government in the ambit of public employment and the proscription of
In the context of teachers’ strikes, one commentator has cogently observed that a sound public policy underlies the foregoing established rule. “The use of the strike against the school boards, as against private employers, amounts to an exercise of economic pressure—the stoppage of services to force concessions. But to the extent teachers can wield the strike against the school boards, they wield it also against the public. Should the public be subjected to economic pressure? From a political view, the answer would seem to be an unequivocal no. The public should be and is subject to political pressure that is exercised in open channels in the legislative and executive branches of the government. This pressure is tolerable, indeed desirable, because all interested organized groups have access to the same channels of communication and are able to use the same methods of pressure, subject to limitations in relative strength and interest. The people, through the political organs of government, remain the ultimate decisionmakers. Utilization of economic pressure via the strike leaves no room for the free interchange of groups with differing views. The impact on the public can be severe, dramatic, and immediate. The school board, having an obligation to the public to provide a continuing service, has little discretion in its adjustment to the strike. To halt the stoppage, some concession will usually have to be made; and, when such steps are taken, the teachers and not the board decide the issues. At that point, public sovereignty is at its lowest ebb. Though the board is still accountable to the electorate, the power of the strike enables the teachers to compel decisions possibly inconsistent with the wishes of the public‘s representatives.
“Since the teacher‘s expertise is a justification for his power to bargain collectively, one may argue that the same rationale should be applied to his use of the strike, particularly since this power is used to make collective bargaining effective. Except for the fact that the powers of bilateral control and the strike are exercised in much different situations, the argument might carry considerable weight. In the case of bilateral control, the board has the power to make concessions and to determine the shape of its counterproposals. This freedom of action is greatly constricted when the board must make decisions under the pressure of a strike. Against the expertise of the teacher must be balanced the interest of the public in retaining control over educational decisionmaking in the hands of its representatives. Although teacher expertise might justify a role for teachers in the decisionmaking process, it cannot justify the use of an economic weapon that places the balance of power in the hands of the teachers. This is particularly true when the strike is used to compel higher
It is well and widely accepted that education ranks among the highest and most important of public purposes. We ourselves have said that public education is a fundamental interest (Serrano v. Priest (1976) 18 Cal.3d 728, 766) which is “essential to the preservation of the rights and liberties of the people . . . .” (
Since the majority elects not to pursue the point, I will forego further discussion beyond noting, however, that as recently as 1977, in a case declaring unlawful a strike by public school employees, the appellate court reiterated the views of a 1972 case that “‘no benefit . . . would result from our reanalyses of the same issues which the . . . (omission in original) cited opinions have exhaustively treated, with extensive citation of authority.‘” (Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 107.) We unanimously denied a hearing in the Pasadena case. If there are lurking majority reservations regarding an important principle of law which has been treated as settled for so long, surely there is an obligation to set forth those views openly and candidly.
In reexpressing the reasons for the long established conclusion that public employee strikes are illegal, we could repeat with Justice Coughlin the words of the late President Franklin D. Roosevelt, long recognized as an historic friend of labor: “‘Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. . . . [A] strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.’ [Citations.]” (8 Cal.App.3d at p. 316.)
2. Right to Strike Under the EERA
As indicated above, the prior cases have held that despite the illegality of public employee strikes at common law, the Legislature may, if it so
Conversely, it also has been held that legislation which purports to deprive a particular class of employee of the right to engage in concerted activities, or which withholds the applicability of the provisions of
The majority acknowledges that the EERA, under
The majority‘s disposition of
Therefore, in examining those sections of EERA relied on by the majority, we should bear in mind that, under EERA‘s own provisions, public school strikes remain unlawful.
As becomes readily apparent from an examination of its provisions, EERA was designed to provide a commendable forum whereby disputes between public school employees and employers might be discussed, mediated and resolved. The unfair and unlawful practices which fall within PERB‘s jurisdiction include such acts as discrimination or coercion of employees, refusal to negotiate or participate in impasse procedures, and interference with employee organizations. (See
The principal thesis of the majority holding is that “the EERA gives PERB discretion to withhold as well as pursue, the various remedies at its disposal. . . . PERB may conclude in a particular case that a restraining order or injunction would not hasten the end of a strike . . . and, on the contrary, would impair the success of the statutorily mandated negotiations between union and employer. A court enjoining a strike on the basis of (1) a rule that public employee strikes are illegal, and (2) harm resulting from the withholding of teachers’ services cannot with expertise tailor its remedy to implement the broader objectives entrusted to PERB.” (Ante, pp. 12-13.) By thus construing EERA, the majority permits PERB to validate a public strike by refusing to enjoin it. The
The majority opinion is deeply troubling in one further respect. The majority concludes that it “need not decide” whether a school district may pursue its traditional judicial remedies if PERB should decline either to seek injunctive relief on its own or to issue an unfair practice complaint against the striking employees. (Ante, p. 13.) The fair implications of such a principle are indeed startling. Consideration of this issue, in my view, should not be deferred but demands our immediate attention so that the lower courts will have guidance, for one can readily envision the following circumstances occurring with frequency: A strike is called hurriedly to coerce a settlement of the strikers’ demands; irrepara-ble harm ensues; the district rushes to PERB requesting immediate relief; PERB delays or withholds action pending its discretionary consideration of the “broader objectives” which the majority now places within its exclusive jurisdiction, or for other reasons satisfying to itself. Meantime, the entire public school system and its programs are held hostage to a combination of strikers’ demands and PERB‘s inertia. It is inconceivable to me that the Legislature would seriously have intended such public impotence.
In this instance, teachers’ union officials studiously, with full knowl-edge of the consequences and with full ability to comply, chose to defy an express order of a court whose powers were properly invoked in the field of education, an area of continuing and consuming public interest. I cannot believe that the Legislature under such circumstances intended to strip from courts their traditional equitable powers, thereby leaving the public helpless and without a remedy to protect itself.
In such a situation petitioners should be treated no differently than any other contemner. I would affirm the orders of contempt.
Clark, J., and Manuel, J., concurred.
Respondent‘s petition for a rehearing was denied May 10, 1979. Bird, C. J., did not participate therein. Kaus, J.* participated therein. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.
*Assigned by the Acting Chairperson of the Judicial Council.
Notes
The opinion announcing the contempt orders does not deal with exhaustion. It makes the point, already discussed, that the EERA does not authorize strikes. It states that, in punishing petitioners for contempt, the court took into account that “the strike was called notwithstanding the [EERA], which mandated the very negotiations which were the subject of the strike and also provided the mechanics for evaluating the motives and good faith of the parties to the negotiations. [Petitioners] chose to strong-arm the situation without waiting for the statutory process to be afforded its opportunity to resolve the difficulties between the [district] and the [SDTA].”