International Brotherhood of Electrical Workers, Local Union 1245 v. City of Gridley , 34 Cal. 3d 191 ( 1983 )

RICHARDSON, J., Concurring and Dissenting.

Public employee strikes are illegal. They cannot and should not be condoned. To permit, for example, the firemen of the City of Gridley to instigate a strike is to permit them to hold hostage to their demands the very lives and property of the citizens of Gridley. My colleagues should forthrightly, clearly, and unmistakably acknowledge this. (See San Diego Teacher’s Assn. v. Superior Court (1979) 24 Cal.3d 1, 15-18 [154 Cal.Rptr. 893, 593 P.2d 838], dis. opn.) It follows that the employees of the public works, fire and finance departments of the City of Gridley were acting outside the law when they struck. It is with this underlying principle in mind that I concur insofar as it may appear that the record is inadequate to determine whether the City of Gridley’s failure to afford its employees a pretermination hearing violated its own rule allowing dismissal “for stated cause” thereby resulting in prejudice to some or all of those employees. Accordingly, remand to flesh out the record on those issues and to provide any appropriate relief appears warranted.

I respectfully dissent, however, from the majority’s attempt to rewrite the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.; hereinafter the MMBA or the act) with respect to revocation for cause of a union’s formal recognition. The purpose of the majority’s redrafting, presumably, is better to achieve what it perceives to have been the goals of the act. Whether the majority’s law is a “better” one, of course, is beside the point. We are under a constant admonition well expressed by Justice Cardozo: “We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.” (Anderson v. Wilson (1933) 289 U.S. 20, 27 [77 L.Ed. 1004, 1010, 54 S.Ct. 417].)

The MMBA decribes its purpose in this context “to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations .... Nothing contained herein shall be deemed to supersede . . . rules of local public agencies . . . which provide for other methods of administering employer-employee relations nor is it intended that this chapter [embodying the MMBA] be binding upon those public agencies which provide procedures for the administration of employer-employee relations in accordance with the provisions of this chapter. . . .” (Gov. Code, § 3500, italics added.)

As a matter of first impression, it could have been argued that in enacting the MMBA, the Legislature simply provided one “reasonable method” of resolving local public employer-employee disputes, while clearly emphasizing that “other methods” employed by local jurisdictions to resolve those disputes were not to be superseded. Further, in offering local public agencies the option of adopting “procedures” in accordance with the MMBA, it could be noted that the Legislature stipulated that any such agency which chose to adopt MMBA procedures was not to be bound by provisions in the act which otherwise might appear mandatory in the local implementation of those procedures. Apparently, however, we are at least committed to the proposition that local regulations in this area must be “consistent with the purposes of the MMBA.” (Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 63 [151 Cal.Rptr. 547, 588 P.2d 249].)

Nonetheless, in my opinion, that modest requirement of consistency with the purposes of the MMBA is expanded beyond recognition by the majority’s construction of the act here. By stretching to the breaking point the legislative guidelines which the MMBA affixed to the vessel of local public agencies’ employer-employee relations, the majority comes perilously close to setting it adrift in the uncertain seas of public policy. However well-intentioned, this judicial interference with the legislative will misconceives our role in the scheme of things.

Prior to the union’s designation as a “recognized employee organization” by the City of Gridley in April 1974, the city adopted two relevant resolutions governing relations with its employees. Resolution No. 2 provided the mechanism for the employees’ selection of their representative organization and the city’s formal recognition of that organization. Resolution No. 3 provided, inter alia, for the suspension or revocation of that recognition if a recognized employee organization encouraged or condoned a strike. The union was fully aware of those rules and, indeed, obtained its own “recognition” pursuant to them. Subsequently, according to the undisputed findings of the trial court, the union engaged in the strike activity which was directly prohibited by resolution No. 3.

The city’s revocation of the union’s recognition thus was expressly authorized by the city’s rules. In addition, the trial court expressly found that the city’s exercise of that authority here was justified by the facts adduced at trial demonstrating that the union did, in fact, encourage or condone the strike of the city’s public works, fire and finance department employees. There being substantial evidence in the record to support those findings, there is no basis whatever for our interference with the trial court’s judgment.

Further, assuming that the MMBA was intended both to supersede any inconsistent local rules governing employee relations and to bind local entities which chose to adopt procedures identified in the act, that legislation requires no different result here. To the contrary, it is clear that the MMBA contemplates the enactment of local regulations to cover those areas of employer-employee relations which are not specifically covered by the act, such as revocation of a union’s recognition for appropriate cause. In my view, the city’s resolution No. 3 conforms to that expectation.

The majority apparently freely acknowledges each of the following propositions, which together ineluctably lead, in my opinion, to the conclusion that the city’s resolution is valid, even when that resolution is measured by the standards of the MMBA, to wit: that (1) “the act leaves to local government agencies the power to establish and enforce rules governing relations with their own employees” (ante, p. 197); (2) a local government’s obligations to a union depend upon recognition of the union by that government (see Gov. Code, §§ 3503, 3505; ante, p. 198 and fn. 6); (3) the act specifically provides that a local “public agency may adopt reasonable rules and regulations . . . [which] may include provisions for . . . recognition of employee organizations ...” and that such an agency is enjoined only from unreasonably withholding recognition of an employee organization (Gov. Code, § 3507, italics added; ante, p. 199); and (4) the act neither authorizes nor prohibits a local public agency’s revocation of a union’s recognition for strike activity (ante, p. 199). Indeed, with respect to the last point, the majority frankly concedes that the Legislature chose not to deal with the question of revocation of recognition at all (ante, p. 199), presumably for the same reason it is seen as having left the matter of recognition to local regulation—lack of any legislative consensus. (See ante, p. 200, fn. 8.)

Even under the majority’s interpretation of the MMBA as preemptive of inconsistent local regulation, then, the act’s failure to deal with revocation, together with its express general and specific authorization of local public agencies to adopt and enforce their own employee relations rules, strongly suggests to me that the revocation of recognition for cause is a prime area for exercise of local regulatory power under the act. Apparently, however, in pursuing the majority’s premises to their logical conclusion, we presume too much. Rather, we are counseled to measure the city’s regulation governing revocation of recognition for strike activity by what the majority perceives is the MMBA’s “guiding principle of . . . employee choice.” (Ante, p. 201.)

Beyond observing the obvious—that the majority’s selection of its “guiding principle” ignores the express purpose and intent of the MMBA as codified in the very legislation itself—I also note that there is a wide gap in the majority’s reasoning between its “principle” and its conclusion invalidating resolution No. 3. For, although my colleagues first candidly acknowledge that there is no necessary connection between “the Legislature’s determination that recognition must be based on employee choice” and the question, under the act, “whether a local government has the power to revoke recognition for other reasons” (ante, p. 201), the majority then simply ignores that clear distinction in apparent deference to its newly discovered principle: Apparently, nothing more than inconsistency with the “guiding principle of . . . employee choice” kills the city’s resolution No. 3 and its revocation of the union’s recognition pursuant thereto. (See ante, p. 201.)

The majority’s alternative attack on resolution No. 3 on the ground of “unreasonableness” seems to me equally unfounded. The threat of revocation of a union’s recognition for encouraging or condoning an illegal strike impresses me as a sound means of achieving the goals of the MMBA. While it is clearly in the interest of the employees of the city to afford themselves an opportunity to be represented at the “meet and confer” table by an organization of their choice, it is no less in the interest of the citizens of the city that essential governmental functions continue while those discussions take place. Further, it must be remembered that the MMBA creates no neutral board to provide prompt adjudication of “unfair labor practices” and thus to forestall prolonged interruption of city services while differences are being resolved. Resolution No. 3 is a reasonable means of keeping the parties both at the “meet and confer” table and at work, thus furthering both the act’s goal “to promote full communication between public employers and their employees . . .” (Gov. Code, § 3500) and the public interest. Contrary to the majority’s perception (see ante, p. 201), it was not the city which severed the “major conduit” of information between employer and employees; it was the union which extinguished the last flickering flame of communication between the two by promoting the illegal strike and mandating invocation of resolution No. 3 to deal with the crisis in public affairs which was triggered by the strike.

Nor can the city’s revocation of the union’s recognition for illegal activity be considered “unreasonable” per se in view of the statutory and decisional approval of such sanctions in other contexts of which the majority is aware. (See ante, pp. 202-203, 205, 206 and fns. 13 and 18.) Indeed, the majority admits “that under the MMBA revocation of recognition would [not] necessarily be inappropriate in all situations.” (Ante, p. 206.) This disclaimer is wholly inconsistent with the claim that such sanction is unreasonable per se.

In brief, the majority attempts to substitute a consistent statutory framework for one it perceives as “sketchy and frequently vague.” While that goal may be commendable, in my view the majority goes too far with its renovations, “remodeling” an edifice which the Legislature never erected, presumably because of a lack of legislative consensus to do so.

Justice Frankfurter put the guiding interpretive principle well: “[N]o one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature .... A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation.” (Frankfurter, The Reading of Statutes, in Of Law and Men (Elman edit. 1956) p. 53.)

Except as indicated heretofore, I would discharge the writ.