COUNTY SANITATION DISTRICT NO OF LOS ANGELES COUNTY v. LOS ANGELES COUNTY EMPLOYEES ASSOCIATION LOCAL 660 SERVICE EMPLOYEES INTERNATIONAL UNION AFL CIO

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Court of Appeal, Second District, Division 2, California.

COUNTY SANITATION DISTRICT NO. 2 OF LOS ANGELES COUNTY, a public agency, Plaintiff and Respondent, v. LOS ANGELES COUNTY EMPLOYEES ASSOCIATION, LOCAL 660, SERVICE EMPLOYEES INTERNATIONAL UNION AFL–CIO;  Victor N. Hochee, Harry Gluck, Jack Roberts, Anthony Butka, Eugene Miller, Gary Schalander, Billy Manning, Defendants and Appellants.

Civ. 66088.

Decided: October 12, 1983

Geffner & Satzman by Leo Geffner, Los Angeles, for defendants and appellants. Musick, Peeler & Garrett by Stuart W. Rudnick, Steven D. Weinstein, and Neil O. Andrus, Los Angeles, for plaintiff and respondent. George Agnost, City Atty., and Philip S. Ward and Steven A. Diaz, Deputy City Attys., amicus curiae.

Defendants Los Angeles County Employees Association, Local 660, Service Employees International Union, AFL–CIO;  Victor N. Hochee;  Harry Gluck;  and Jack Roberts (Local 660) appeal from the judgment awarding plaintiff County Sanitation District No. 2 of Los Angeles County (District) damages in the sum of $246,904, prejudgment interest in the amount of $87,615.22 and costs of $874.65.

Local 660 contends:  “[I.]   Whether a public employees strike provides a tort cause of action for damages is an unresolved issue in California.  [II.]  The trial court committed prejudicial error in granting excessive, unreasonable and unlawful compensatory damages.”

 The District is a public agency organized pursuant to the provisions of the County Sanitation District Act (Health & Saf.Code, §§ 4700–4789) and is charged with providing, operating and maintaining sewage transport and treatment facilities and landfill refuse disposal sites throughout the County of Los Angeles.1  It employs some 500 workers who are directly or indirectly responsible for the operation and maintenance of its facilities and who are members of, or represented by, Local 660.

At 10 p.m. on July 5, 1976, approximately 75 percent of these workers went out on strike after negotiations between the District and Local 660 for a new wage and benefit agreement had reached an impasse.   The strike continued until July 16, at which time the employees voted to accept an offer made by the District prior to the strike, i.e., July 1, 1976, and to return to work the following day.   In the interim, the District had filed the instant action for injunctive relief and damages on July 6, 1976.

Much has been written on the subject of labor relations in the public sector, including the advisability of granting public employees full collective bargaining rights and, more particularly, the right to strike.  (See, e.g., Hanslowe and Acierno, The Law and Theory of Strikes By Government Employees (1982) 67 Cornell L.Rev. 1055;  Comment, Public Employee Legislation:  An Emerging Paradox, Impact, and Opportunity (1976) 13 San Diego L.Rev. 931;  Comment, California Assembly Advisory Council's Recommendations on Impasse Resolution Procedures and Public Employee Strikes (1974) 11 San Diego L.Rev. 473;  Comment, The Collective Bargaining Process at the Municipal Level Lingers in Its Chrysalis Stage (1974) 14 Santa Clara Law. 397;  Grodin, Public Employee Bargaining in California:  The Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719;  Shaw and Clark, The Practical Differences Between Public and Private Sector Collective Bargaining (1972) 19 U.C.L.A.L.Rev. 867;  Lev, Strikes by Government Employees:  Problems and Solutions (1971) 57 Amer.Bar Assoc.J. 771;  Witt, The Public Sector Strike:  Dilemma of the Seventies (1971) 8 Cal.Western L.Rev. 102;  Bernstein, Alternatives to the Strike in Public Labor Relations (1971) 85 Harv.L.Rev. 459;  Burton and Krider, The Role and Consequences of Strikes by Public Employees (1970) 79 Yale L.J. 418;  Wellington and Winter, More on Strikes by Public Employees (1970) 79 Yale L.J. 441;  Kheel, Strikes and Public Employment (1969) 67 Mich.L.Rev. 931;  Anderson, Strikes and Impasse Resolution in Public Employment (1969) 67 Mich.L.Rev. 943;  Wellington and Winter, The Limits of Collective Bargaining in Public Employment (1969) 78 Yale L.J. 1107;  Thorne, The Government Employee and Organized Labor (1962) 2 Santa Clara Law. 147;  Note, Labor Relations in the Public Sector (1961) 75 Harv.L.Rev. 391;  Annot., Labor Law:  Right of Public Employees to Strike or Engage in Work Stoppage (1971) 37 A.L.R.3d 1147.)

The California Assembly Advisory Council on Public Employee Relations in its final report of March 15, 1973, concluded that, “[s]ubject only to [certain specified] restrictions and limitations ․ public employees should have the right to strike” (p. 24) and proposed a statute to carry out these goals (Appendix A).   Nevertheless, the Legislature “has steadfastly refrained from providing clearcut guidance” in this area.  (El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 964, 192 Cal.Rptr. 123, 663 P.2d 893 (conc. opn. of Grodin, J.).)

No recent decision of our Supreme Court has squarely passed upon the legality of strikes by public employees, although in Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 8 Cal.Rptr. 1, 355 P.2d 905, wherein the Los Angeles Metropolitan Transit Authority Act was held to authorize strikes by employees of that agency, the court stated:  “In the absence of legislative authorization public employees in general do not have the right to strike ․”  (Id., p. 687, 8 Cal.Rptr. 1, 355 P.2d 905.)   With complete uniformity the Courts of Appeal have treated this declaration as establishing a general rule—and have honored it.  (See, e.g., Stationary Engineers v. San Juan Suburban Water Dist. (1979) 90 Cal.App.3d 796, 801, 153 Cal.Rptr. 666;  Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 105–107, 140 Cal.Rptr. 41, hg. den.;   Los Angeles Unified School Dist. v. United Teachers (1972) 24 Cal.App.3d 142, 145–146, 100 Cal.Rptr. 806, hg. den.;  Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers (1970) 13 Cal.App.3d 863, 867, 92 Cal.Rptr. 134, hg. den.;  City of San Diego v. American Federation of State etc. Employees (1970) 8 Cal.App.3d 308, 310, 87 Cal.Rptr. 258, hg. den.;   Almond v. County of Sacramento (1969) 276 Cal.App.2d 32, 35–36, 80 Cal.Rptr. 518, hg. den.;  Pranger v. Break (1960) 186 Cal.App.2d 551, 556, 9 Cal.Rptr. 293, hg. den.;   see also, the earlier appellate decision in Newmarker v. Regents of Univ. of Cal. (1958) 160 Cal.App.2d 640, 646, 325 P.2d 558;  City of L.A. v. Los Angeles etc. Council (1949) 94 Cal.App.2d 36, 41, 210 P.2d 305, hg. den.)   Although hearings have been granted in several most recent appellate court decisions, our highest court to date has declined to reach the question of the continuing validity of its earlier pronouncement.  (International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 193 Cal.Rptr. 518, 666 P.2d 960;  El Rancho Unified School Dist. v. National Education Assn., supra, 33 Cal.3d 946, 192 Cal.Rptr. 123, 663 P.2d 893;  San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 154 Cal.Rptr. 893, 593 P.2d 838;  City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 120 Cal.Rptr. 707, 534 P.2d 403.)

Local 660 argues that prohibiting public employees from striking and subjecting those who engage in such activities to actions for damages is contrary to public policy and inconsistent with “modern society” and that it results in a deprivation of basic constitutional rights.   However, it has heretofore been held that the “conduct of an unlawful strike is itself a tort for which damages may be recovered” (Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers, supra, 72 Cal.App.3d 100, 112, 140 Cal.Rptr. 41;  Annot., Liability of Labor Union or Its Membership for Torts Committed by Officers, Members, Pickets, or Others, in Connection with Lawful Primary Labor Activities (1971) 36 A.L.R.3d 405;  and Annot., Damage Liability of State or Local Public Employees' Union or Union Officials for Unlawful Work Stoppage (1978) 84 A.L.R.3d 336), and that the enforcement of the prohibition against such strikes is not violative of the constitutional rights of free speech and association or the guarantee of equal protection of the law.2  (Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers, supra, 72 Cal.App.3d 100, 104–110, 140 Cal.Rptr. 41;  Los Angeles Unified School Dist. v. United Teachers, supra, 24 Cal.App.3d 142, 144–146, 100 Cal.Rptr. 806;  City of San Diego v. American Federation of State etc. Employees, supra, 8 Cal.App.3d 308, 313, 87 Cal.Rptr. 258.)

Insofar as Local 660 asserts the District did not engage in fair bargaining, thereby violating the Meyers-Milias-Brown Act and entitling its employees to “engage in economic action in order to obtain a reasonable settlement,” it has been noted that the Meyers-Milias-Brown Act “falls far short of constituting a legislative authorization of a right to strike as a means of settling public employer-employee differences” (Almond v. County of Sacramento, supra, 276 Cal.App.2d 32, 38, 80 Cal.Rptr. 518), and, further, the prohibition against public employee strikes has been deemed to apply whether an employer “violates the Meyers-Milias-Brown Act or not.  [Citations.]”  (Stationary Engineers v. San Juan Suburban Water Dist. (1979) 90 Cal.App.3d 796, 801, 153 Cal.Rptr. 666.)

While we recognize that often “coming events cast their shadows before” and certain expressions in decisions such as International Brotherhood of Electrical Workers v. City of Gridley, supra, 34 Cal.3d 191, 199, fn. 7, 193 Cal.Rptr. 518, 666 P.2d 960;  El Rancho Unified School Dist. v. National Education Assn., supra, 33 Cal.3d 946, 957–958, 962–964, 192 Cal.Rptr. 123, 663 P.2d 893;  San Diego Teachers Assn. v. Superior Court, supra, 24 Cal.3d 1, 6–7, 13, 154 Cal.Rptr. 893, 593 P.2d 838;  and City and County of San Francisco v. Cooper, supra, 13 Cal.3d 898, 912, 120 Cal.Rptr. 707, 534 P.2d 403, may have prophetic value, as an intermediate appellate court we remain bound by the presently well-settled rules that deny public employees the right to strike and which subject those who do engage in such unlawful labor practices to tort actions for damages.   If these rules should no longer represent the considered view of our Supreme Court, it is the exclusive province of that body to so declare.

On the question of damages the trial court determined that “[i]n order to assure the maintenance of essential public services during the ․ strike, [the District] assigned certain non-striking employees to work extended hours at various of its facilities, and compensated such employees at appropriate rates of overtime pay or compensatory time off for the extra hours served at such facilities during the strike.”   Specifically, it found the District had “paid overtime compensation in the amount of $301,989;  extra FICA payments in the amount of $2,238;  and provided compensatory time off having a value of $16,040.”   The court also ascertained the District reasonably had expended $55,080 “to provide meals, equipment rental, security guard services, and other expenses reasonably related to the maintenance of its sewage treatment and land fill operations” during the course of the strike.

The court additionally concluded, however, that these strike-related costs, as well as the $6,000 the District had paid in health care benefits for the striking employees during the period of the strike, were subject to an offset in the amount of $134,443, since the District “was not required to compensate [striking] employees ․,” thereby saving “$112,649 in unpaid salaries;  $4,490 in FICA;  [ ] $8,312 in retirement[;]” and “$8,992 that would have been paid to the striking employees as overtime if they had remained on the job.”   As a consequence, the court determined the net monetary damage to the District as a “direct and proximate result” of Local 660's “tortious conduct” to be $246,904.

 Local 660's challenge to the accuracy and adequacy of the District's overtime records and the reasonableness of the District's staffing of its various facilities during the duration of the strike is in effect an invitation to us to reweigh the evidence and arrive at a result more favorable to its membership.   This we cannot do.  “[O]ur reviewing power begins and ends with the determination whether there is any substantial evidence to support the trial court's findings.  [Citation.]”  (Thompson v. Occidental Life Ins. Co. (1973) 9 Cal.3d 904, 917, 109 Cal.Rptr. 473, 513 P.2d 353.)

Local 660 maintains the District's “records were inherently untrustworthy, as they were based on information given by employees who themselves had a personal interest in exaggerating the amount of overtime.”   In the absence of any evidence to support such a conclusion, we are unwilling to presume the employees falsely certified the accuracy of the hours set forth on their pay reports.   The District's payroll records, introduced as exhibits at trial, provided ample support of the number of overtime hours worked by employees during the strike.3

Substantial evidence also supports the trial court's finding that the District undertook reasonable steps to insure the continued operation of essential sanitary landfill and sewage treatment services to approximately four million residents of the County of Los Angeles by hiring security personnel and assigning a number of nonstriking employees to work extended hours at various facilities.

In support of its allegation that the District's strike-related expenses were excessive, Local 660 presents an extended examination of the security measures and level of staffing which, in its view, would have been appropriate.   Even if this analysis might appear to be reasonable, at least in hindsight, that fact alone would not compel the conclusion that the District's plan was unreasonable.

At the time the District's strike contingency plan was implemented, it was not known how extensive the strike activity would be or the form it would take.   However, given the critical nature of the services provided by the District, the potential for sabotage and vandalism,4 and the replacement workers' lack of experience, and consequent inefficiency in carrying out even the routine duties of the striking employees, the District would have been remiss had it simply replaced those workers on strike and maintained a “regular” work schedule.   On the other hand, of course, if the District had capitalized on the crisis, as Local 660 suggests, to “help[ ] itself ․ on the expectation that [the] Union could pay for this ‘windfall’,” it would not be entitled to full compensation for the expenses incurred.   We are convinced by the record before us that the District undertook only those precautions which in its best judgment were legitimately required to guarantee the security and continued operation of its facilities.   It would ill behoove us to “second guess” these decisions at this late date, even if it were otherwise permissible to do so.

With respect to those employees who were required to be on duty 24 hours per day with no guarantee of uninterrupted sleep or meals, it was entirely fitting that they be fully compensated therefor, even though a portion of their time was in fact devoted to eating, sleeping or “leisure” activities, such as reading or card-playing.  (Armour & Co. v. Wantock (1944) 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118;  Skidmore v. Swift & Co. (1944) 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124;  General Electric Co. v. Porter (1953) 208 F.2d 805;  29 C.F.R. 785, et seq.)   Similarly, such employees were entitled to meals at the employer's expense.

Local 660 urges error in the trial court's assessment of damages on the basis of compensatory time off granted to several District employees, asserting that in the absence of any evidence replacements were hired for such employees, there could be no labor cost associated with this benefit.   We disagree.   When an employee receives compensatory time off, whether for vacation, sick leave, or as here, in lieu of monetary payment for overtime, the employer is, in effect, paying for services it does not receive.   While the remaining employees may “take up the slack,” at least to the extent the size of the labor force originally was inflated to accommodate a certain number of nonproducing employees, such a system clearly is not without cost to the employer.5  Though it may be difficult to determine in any given case whether that cost is actually equivalent to the nonproducing employee's earnings, as a general rule such a measure appears to be a fair one.

 Local 660 further contends the trial court improperly utilized a time and one-half formula to calculate the damages incurred by the District for overtime compensation to managerial personnel working during the strike.   We agree.

The Salary Resolution in effect at the time of the strike 6 provides a three-tiered formula, tied to monthly salary, for payment of overtime to managerial personnel.   While the resolution does specify those employees whose basic monthly salaries are at the lowest levels are entitled to time and one-half, those receiving mid-range salaries are to be compensated at specified hourly rates, and those at the upper salary ranges are to receive straight time rates of compensation.

The District has not shown the existence of any other provision, whether by ordinance, resolution or memo of understanding, which permits the payment of time and one-half to all managerial personnel under any circumstances.   Nevertheless, it urges that the Salary Resolution “is addressed [only] to the District's normal, day-to-day operation” and “was never intended to apply to an extraordinary or emergency situation, such as the strikes in 1974 and 1976, and did not, therefore, render inappropriate the overtime policy during the strike.”

 It is well settled that a “public employee is entitled only to such compensation as is expressly provided by statute or ordinance regardless of the extent of services actually rendered.  [Citations.]”  (Markman v. County of Los Angeles (1973) 35 Cal.App.3d 132, 135, 110 Cal.Rptr. 610.)  “In the absence of a provision which provides for such payment, no such payment is authorized.”  (Van Riessen v. City of Santa Monica (1976) 63 Cal.App.3d 193, 199, 133 Cal.Rptr. 618;  Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22–23, 157 Cal.Rptr. 706, 598 P.2d 866.) 7

The District also argues that notwithstanding the Salary Resolution, its managerial employees were entitled to overtime compensation at one and one-half times their regular rate of pay under the Fair Labor Standards Act of 1938.   (29 U.S.C. § 201 et seq.)

The Fair Labor Standards Act (FLSA), enacted by Congress forty-five years ago, requires employers covered thereby to pay their employees a minimum hourly wage (29 U.S.C. § 206(a)) and to pay them at one and one-half times their regular rate of pay for hours worked in excess of 40 per week (29 U.S.C. § 207(a)).8  Expressly exempted from the provisions of sections 206 and 207 are those employees “employed in a bona fide executive, administrative, or professional capacity” (29 U.S.C. § 213(a)), hereinafter referred to collectively as “managerial” personnel.9

Whether an employee is a managerial employee may be determined in one of two ways under FSLA regulations promulgated by the Secretary of Labor.  (29 C.R.R. §§ 541.1;  541.2;  541.3.)   These regulations establish different legal tests according to salary level, with employees earning less than $250 per week being subject to the so-called “long test,” while those earning $250 or more are governed by the “short test.”  (Donovan v. Burger King Corp. (1982) 675 F.2d 516, 518.)

At issue here is whether the District's high-salaried employees lost their exempt status from the Act's overtime pay provisions when they deviated from their normal duties and performed nonexempt work during the strike.10

Under the short test, managerial status is determined by reference to the employee's “primary duty” as an employee.  (29 C.F.R. §§ 541.1(f);  541.2(e);  541.3(e).)   Although the regulations do furnish some guidance on what is meant by primary duty (29 C.F.R. §§ 541.103;  541.206;  541.304), they provide no basis for measuring such duty in any specific time frame.   Nevertheless, we are persuaded by the discussion of the United States Court of Appeals for the Third Circuit in Marshall v. Western Union Tel. Co., supra, 621 F.2d 1246, that there is no rationale in the underlying theory or policy of FLSA which would warrant paying high-salaried managerial personnel overtime at one and one-half times their base salary for time worked in excess of forty hours, even if during any workweek they spent the major portion of their time on nonexempt work: 11

“Although a workweek standard is indeed a fundamental part of FLSA, the exemption of managerial employees from the general coverage of the Act confirms our view that they were not within the scope of Congress' concerns in enacting this legislation.   The reason is plain:  the underlying and declared purpose of FLSA is to eradicate from interstate commerce conditions detrimental to ‘the maintenance of a minimum standard of living necessary for health, efficiency, and general well-being of workers.’  29 U.S.C. § 202(a) (1976).   Thus, FLSA bans from interstate commerce products produced through the imposition of lengthy hours of work at low wages.  [Citation.]

“Specifically, the Act was manifestly designed to place a floor under wages and a ceiling over hours of employment.   The limitation in hours also served the purpose during a time of extraordinary unemployment and depressed wages of spreading the work and providing extra compensation for overtime.  [Citation.]  Setting a floor under wages and a ceiling over normal hours of employment had the further purpose of eliminating from commerce the evils attendant upon low wages and long hours of service.  [Citations.]  Thus, the forty-hour provision of the Act is an essential element in spreading the work among the rank and file and compensating an employee in a specific manner for the strain of working longer than forty hours.  [Citation.]  There is nothing in the Act that demonstrates Congress had these concerns in mind for managerial employees and that it, therefore, intended that the workweek standard also be applied to them in measuring their exempt status.

“Managerial employees, particularly executives, generally direct and operate a business enterprise.   Because they have the power to direct, supervise, and manage the operations and are paid accordingly, granting managerial employees exempt status must have been a recognition that they are seldom the victims of substandard working conditions and low wages.   Congress apparently acted on this basic principle of industrial organization, realizing that compensation and working conditions of managerial employees normally would be significantly above those of the hourly wage earner.   Therefore, there was no need for Congress to be concerned about the number of hours worked per week or the hourly wage for them․”  (Marshall v. Western Union Tel. Co, supra, 621 F.2d 1246, 1250–1251.) 12

We, therefore, hold that the District's managerial employees retained their exempt status during the strike and, consequently, the trial court erred when it failed to apply the terms of the Salary Resolution to determine the amount of compensation to which these employees were entitled for working overtime during the strike.13  According to evidence introduced at trial, which the parties do not appear to dispute, utilization of the Resolution would have resulted in total damages to the District of $298,257, broken down as follows:  overtime costs, including those attributable to compensatory time off, of $241,174;  FICA contributions of $2,003;  and out of pocket damages, which remain unchanged by the present valuation, of $55,080.   After deducting from this total the offsets allowed by the trial court in the sum of $134,443,14 the District's net damages and Local 660's liability is $163,814.

 Finally Local 660 contends that the court erred in granting prejudgment interest.   In opposition the District maintains “[t]he trial court properly awarded prejudgment interest both as a matter of sound discretion [pursuant to Civil Code section 3288] and as a matter of law [pursuant to subdivision (a) of Civil Code section 3277].”

In the absence of any indication that the interest award represented an exercise of the court's discretion under section 3288,15 we assume it was made pursuant to subdivision (a) of section 3287, which establishes the right of a plaintiff to recover prejudgment interest whenever the amount of damages is liquidated, i.e., “certain, or capable of being made certain by calculation, ․”

The certainty requirement was present in the instant case for once the District's entitlement to recovery of overtime-related expenses was established, the calculation thereof was readily accomplished by resort to simple mathematics.  (See generally Leff v. Gunter (1983) 33 Cal.3d 508, 519–520, 189 Cal.Rptr. 377, 658 P.2d 740;  Tripp v. Swoap (1976) 17 Cal.3d 671, 681–682, 131 Cal.Rptr. 789, 552 P.2d 749.)   The fact that unliquidated setoffs may have existed does not preclude allowance of prejudgment interest.   (Leaf v. Phil Rauch, Inc. (1975) 47 Cal.App.3d 371, 376, 120 Cal.Rptr. 749.)   The same can be said with respect to claims for costs clearly incurred after the strike.   Such errors are minor and easily correctable.  (See Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 408–409, 55 Cal.Rptr. 1, 420 P.2d 713;  Charlton v. Pan American World Airways (1953) 116 Cal.App.2d 550, 554–555, 254 P.2d 128.)

The judgment is modified to reduce damages from $246,904 to $163,814 and, as so modified, is affirmed.

FOOTNOTES

1.   In 1976 the facilities operated by the District included six sanitary landfills which together received about 15,000 tons of solid waste each day, eleven treatment plants processing 450 million gallons of raw sewage each day, four maintenance yards and 46 pumping stations.

2.   Local 660's averments notwithstanding, the strike giving rise to the instant litigation involved more than “peaceful picketing” as was the case in Lamphere Sch. v. Lamphere Fed. of Teachers (1977) 400 Mich. 104, 252 N.W.2d 818, 826.  (See footnote 4, post.)With respect to Local 660's claim that the “application of equal protection is more apparent since El Rancho prohibited the superior court from holding the teachers union liable for damages,” we note the court in that case held merely that the Education Employment Relations Act (Gov.Code, § 3540 et seq.) divests a superior court of jurisdiction to entertain a school district's tort suit for damages arising out of a teachers' strike led by noncertified unions, since the Public Employees Relations Board “has exclusive initial jurisdiction to determine whether such a strike is an unfair practice and what, if any, remedies should be pursued.”  (El Rancho Unified School Dist. v. National Education Assn., supra, 33 Cal.3d 946, 961, 192 Cal.Rptr. 123, 663 P.2d 893.)   It did not specifically declare damages could never be available as a remedy.

3.   Insofar as there may have been some evidence that a few employees were credited erroneously with having earned strike-related overtime, the trial court was, of course, free to reject it.  (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 787, 59 Cal.Rptr. 141, 427 P.2d 805.)

4.   In 1974 “substantial numbers” of the District's workers had engaged in a five-day strike during which there apparently was a significant amount of vandalism at the landfills.   When faced with the possibility of the instant walkout in 1976, the District developed a strike contingency plan designed to rectify the deficiencies in its previous response.Notwithstanding such efforts, however, the 1976 strike did not proceed without incident.   On July 5, management personnel replacing striking workers at the Joint Water Pollution Control Plant (JWPCP), the District's largest sewage treatment facility, discovered a plywood disk concealed in a sludge line.   In addition, a locked plant vehicle, from which the keys had been removed, was found blocking the entrance to the maintenance building and a mechanized gate was damaged and rendered inoperable, thereby breaching plant security.   Entrances to the work site were routinely strewn with roofing tacks and broken glass.On the afternoon of July 6 it was discovered that on the three days preceding the strike, “[o]perations personnel [had] increased sludge pumping to abnormally high rates from the primary sedimentation tanks to the anaerobic digesters.   This act reduced biological activity in the digesters and substantially reduced the production of methane gas.   Since most of the plant facilities rely on methane gas for power production, emergency measures were required to be taken to conserve gas for the most critical operations.”   JWPCP is designed such that any significant delay in starting the effluent pumps could cause the plant to “flood out.”   Although the plant contained an emergency standby generator, its battery cables had been cut.On July 6 and July 16 debris of a type and magnitude that “does not normally enter the sewer system,” e.g., an inner-spring mattress, tires, a canvas tarpaulin, upholstered cushions, carpeting and cabinet doors were removed from the bar screens at JWPCP.   On the latter date the chains that drive the bar screens were broken as a result of the debris.

5.   The fact that the District's employees at the time of trial might not have utilized their time off does not alter this conclusion.

6.   The Resolution, which sets the level of wages, hours, salaries, fringe benefits, and other terms and conditions of employment, was approved and adopted by a vote of the District's Board of Directors, functioning as the governing body of the District.  (Health & Saf.Code, § 4730.)

7.   So far as the record reveals, overtime compensation at the rate of time and one-half was paid upon the verbal instructions of the District's Chief Engineer.   Nothing contained within the April 1, 1976, amended joint administration agreement entered into by the twenty-seven sanitation districts of Los Angeles County supports a finding that the power to authorize employee compensation at variance with that contained in the Salary Resolution was delegated to this individual.   Neither does section 6522 of the Health and Safety Code, which permits the District to “do any act necessary or proper to the complete exercise and effect of any of its powers, or for the purposes for which it is formed,” justify the action of the Chief Engineer.

8.   The original Act specifically excluded the states and their political subdivisions from its coverage.   In 1974, however, Congress enacted a series of broadening amendments which extended the minimum wage provisions to almost all public employees.  (29 U.S.C. §§ 203(d);  203(e)(2)(C);  203(x).)

9.   The District's Salary Resolution contains the following provisions relating to nonexempt and exempt employees:“5.1A ‘Non Exempt employees' means employees who would be subject to the provisions of the Federal Fair Labor Standards Act, if the Act were applicable to [the] Districts' employees.   Non exempt employees who are ordered by the Districts to work overtime, as defined in the Federal Fair Labor Standards Act, will be paid at the rate specified in the Act for such ordered overtime ․”“5.1B ‘Exempt employees' means employees who would not be subject to the provisions of the Federal Fair Labor Standards Act, if the Act were applicable to [the] Districts' employees ․”

10.   “There is no difficulty in determining when exempt status is lost through the performance of nonexempt work by a managerial employee under the long tests.   If a long test managerial employee spends more than 20 percent of his time in a given workweek performing nonexempt work, the managerial exemption is lost.   See 29 C.F.R. §§ 541.1(e);  541.2(d);  541.3(d).”  (Marshall v. Western Union Tel. Co. (1980) 621 F.2d 1246, 1250.)   However, this is of no moment in the instant case, since any District managerial employees who earned less than $250 per week were entitled to time and one-half under the Salary Resolution itself.

11.   The first time the Western Union case was before the Third Circuit it held “no more than that managerial personnel who perform strike duty are not necessarily exempt” and directed the district court to decide “if, under the regulations, the determination of whether an employee is ‘employed in a bona fide executive ․ capacity’ is to be made with respect to each week separately or with respect to a broader period of time.”   (Brennan v. Western U. Tel. Co. (1977) 561 F.2d 477, 483.)Upon remand, the district court adopted a standard “by which the exempt status of managerial employees would be determined through an evaluation each week of the ‘primary duty’ of the employee.”  (Marshall v. Western Union Tel. Co., supra, 621 F.2d 1246, 1248;  emphasis added.)   The Marshall court reversed.

12.   Moreover, such a standard would be most impractical to implement.  (Marshall v. Western Union Tel. Co., supra, at pp. 1251–1252.)

13.   Ironically, in the absence of this Resolution if the rights of the exempt employees here were to be determined solely under federal statutory law, they would be entitled to no overtime compensation whatsoever.

14.   As we mentioned previously, the trial court reduced the District's damages by $134,443 to account for withheld salaries ($112,649);  FICA contributions ($4,490);  retirement contributions ($8,312);  and overtime ($8,992) of striking workers.We have not diminished these offsets by the $6,000 the District claimed it had paid toward striking employees' health insurance during the period of the strike.   The evidence at trial uncontrovertibly demonstrated the District was not billed on a prorated basis for such benefits, but on the contrary, was required to contribute its full share of the employee's monthly premium, if the employee worked but a single day during any given month.The trial court's election to offset salary savings as part of its damages formula not having been challenged on this appeal, we express no opinion concerning the necessity therefor.

15.   We reject the District's contention that the court “acting under its equitable ‘clean up’ powers had discretion to award prejudgment interest.”   A similar claim was made with regard to the special damages award and is likewise unpersuasive.   Moreover, to the degree the court based the awards upon this ground, it erred.Where as here, “legal and equitable remedies are sought in the same action, each remedy is governed by the law that would apply to it if the other remedy had not been requested.”  (Crouser v. Boice (1942) 51 Cal.App.2d 198, 200, 124 P.2d 358.)   The material at 38 Cal.Jur.3d, Injunctions § 91, cited by the District sets forth the well known, but here irrelevant, principle that a court of equity having once acquired jurisdiction of the subject matter of an action is justified in retaining it until all issues in the action have been determined.  (Union Oil Co. v. Reconstruction Oil Co. (1937) 20 Cal.App.2d 170, 183, 66 P.2d 1215.)   Even in such cases, however, the legal issues are resolved by application of legal principles.  (Id., p. 184, 66 P.2d 1215.)

GATES, Associate Justice.

ROTH, P.J., and COMPTON, J., concur.

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