O'Sullivan v. City & County of San Francisco

THE COURT.

Plaintiffs brought this action to enjoin defendant city, its mayor and the members of its civil service

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commission from “permitting, requiring or allowing” employees of the city’s street repair and street cleaning departments to sign waivers of premium pay for work done before 8 o’clock a. m. After trial, judgment was entered in favor of defendants. Plaintiffs appeal.

Section 151.3 of the charter of the city and county of San Francisco provides that when “any groups or crafts” establish a rate of pay in private employment through collective bargaining agreements with employers, and such rates prevail generally in private employment in San Francisco, the supervisors shall fix such rate of pay as the compensation for such groups or crafts in the employ of the city and county.

For some years before filing of this action, the collective bargaining agreement between General Laborers Union Number 261 and private employers had provided that work performed before 8 o’clock a. m. be paid for at one and one-half times the regular hourly rate. Pursuant to the charter, these provisions had been carried into the ordinance fixing wages for city employees. Another section of this same ordinance provided “The working conditions established herein in accordance with the provisions of collective bargaining agreements shall be maintained in the City service except when a provision is specifically waived by the employee concerned. Such waiver shall be in writing and filed with the Civil Service Commission.”

The agreement for private employment provides that “where . . . existing traffic conditions, job conditions, or weather conditions render it desirable to start the day shift at an earlier hour, such starting time may, with the mutual consent of the individual employer and local union ... be made earlier.” The city’s wage ordinance contains the same provision, except that the phrase “with the mutual consent of the individual employer and local union” is omitted.

For more than 20 years most of the employees in the street cleaning and street repair bureau had commenced work before 8 a. m. and worked an eight-hour day with time off for lunch. The same practice continued until 1954, and no demand for premium pay for work before 8 a. m. was made until that year. Then the union demanded premium pay for such employees. At that time, defendant city announced its plan to start its street crews at 8 a. m. It circulated waiver forms among employees in the laborers classification of the street department, announcing that those who did sign would start