Opinion
BROUSSARD, J. Defendants appeal from a judgment awarding plaintiff sanitation district damages and prejudgment interest in connection with defendant union’s involvement in a labor strike against plaintiff. The case squarely presents issues of great import to public sector labor-management relations, namely whether all strikes by public employees are illegal and, if so, whether the striking union is liable in tort for compensatory damages. After careful review of a long line of case law and policy arguments, we conclude that the common law prohibition against all public employee strikes is no longer supportable. Therefore, the judgment for the plaintiff finding the strike to be unlawful and awarding damages, interest and costs must be reversed.
I. Statement of the Case. Defendant union (Local 660 or the union) is a labor organization affiliated with the Service Employees International Union, AFL-CIO, and has been the certified bargaining representative of the blue collar employees of the Los Angeles Sanitation District since 1973. Plaintiff is one of 27 sanitation [568]districts within Los Angeles County1 and is charged with providing, operating and maintaining sewage transport and treatment facilities and landfill disposal sites throughout the county.2 The District 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. Since 1973, the District and Local 660 have bargained concerning wages, hours and working conditions pursuant to the Meyers-Milias-Brown Act (MMBA). (Gov. Code, §§ 3500-3511.) Each year these negotiations have resulted in a binding labor contract or memorandum of understanding (MOU). (See Glendale City Employees’ Assn. v. City of Glendale (1975) 15 Cal.3d 328 [124 Cal.Rptr. 513, 540 P.2d 609].)
On July 5, 1976, approximately 75 percent of the District’s employees went out on strike after negotiations between the District and the union for a new wage and benefit agreement reached an impasse and failed to produce a new MOU. The District promptly filed a complaint for injunctive relief and damages and was granted a temporary restraining order. The strike continued for approximately 11 days, during which time the District was able to maintain its facilities and operations through the efforts of management personnel and certain union members who chose not to strike.3 On July 16, the employees voted to accept a tentative agreement on a new MOU, the terms of which were identical to the District’s offer prior to the strike.
The District then proceeded with the instant action for tort damages. The trial court found the strike to be unlawful and in violation of the public policy of the State of California and thus awarded the District $246,904 in compensatory damages,4 prejudgment interest in the amount of $87,615.22 and costs of $874.65.
[569]II. The Traditional Prohibition Against Public Employee Strikes.
Common law decisions in other jurisdictions at one time held that no employee, whether public or private, had a right to strike in concert with fellow workers. In fact, such collective action was generally viewed as a conspiracy and held subject to both civil and criminal sanctions.5 Over the course of the 20th century, however, courts and legislatures gradually acted to change these laws as they applied to private sector employees; today, the right to strike is generally accepted as indispensable to the system of collective bargaining and negotiation, which characterizes labor-management relations in the private sector.6
By contrast, American law continues to regard public sector strikes in a substantially different manner. A strike by employees of the United States government may still be treated as a crime,7 and strikes by state and local employees have been explicitly allowed by courts or statute in only 11 states.8
[570]Contrary to the assertions of the plaintiff as well as various holdings of the Court of Appeal,9 this court has repeatedly stated that the legality of strikes by public employees in California has remained an open question. In Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 687-688 [8 Cal.Rptr. 1, 355 P.2d 905], this court stated in dictum that “[i]n the absence of legislative authorization public employees in general do not have the right to strike ...” but proceeded to hold that a statute affording public transit workers the right “ ‘to engage in other concerted activities for the purpose of collectively bargaining or other mutual aid or protection’ ” granted these employees a right to strike. However, in our very next opinion on the issue, In re Berry (1968) 68 Cal.2d 137 [65 Cal.Rptr. 273, 436 P.2d 273], we invalidated an injunction against striking public employees as unconstitutionally overbroad, and expressly reserved opinion on “the question whether strikes by public employees can be lawfully enjoined.” (Id., p. 151.)
In our next opportunity to examine public employee strikes, City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898 [120 Cal.Rptr. 707, 534 P.2d 403], which involved a suit challenging the validity of a strike settlement agreement enacted by the city, we held only that such settlement agreements are valid. After noting the Court of Appeal holdings that public employee strikes are illegal and the employees’ counterargument that such strikes are impliedly authorized by statute, our unanimous opinion declared that we had no occasion to resolve that controversy in that action. (Id., p. 912.)
In a similar vein, this court has carefully and explicitly reserved judgment on the issue of the legality of public employee strikes on at least three other occasions in recent years.10 Indeed, our reluctance to address the issue head-on has elicited critical commentary from both dissenting and concurring [571]opinions, which have urged us to resolve the question once and for all.11 While we had ample reason for deciding the aforementioned cases without determining the broader question of the right of public employees to strike, the instant case presents us with the proper circumstances for direct consideration of this fundamental issue.
Before commencing our discussion, however, we must note that the Legislature has also chosen to reserve judgment on the general legality of strikes in the public sector. As Justice Grodin observed in his concurring opinion in El Rancho Unified School Dist. v. National Education Assn., supra, 33 Cal.3d 946, 964, “the Legislature itself has steadfastly refrained from providing clearcut guidance.” With the exception of firefighters (Lab. Code, § 1962), no statutory prohibition against strikes by public employees in this state exists.12 The MMBA, the statute under which the present controversy arose, does not directly address the question of strikes.
The MMBA sets forth the rights of municipal and county employees in California.13 (Gov. Code, §§ 3500-3511.) The MMBA protects the right of such employees “to form, join, and participate in the activities of employee [572]organizations ... for the purpose of representation on all matters of employer-employee relations.” It also requires public employers to “meet and confer” in good faith with employee representatives on all issues within the scope of representation. As explained in its preamble, one of the MMBA’s main purposes is to improve communications between public employees and their employers by providing a reasonable method for resolving disputes. A further stated purpose is to promote improved personnel relations by “providing a uniform basis for recognizing the right of public employees to join organizations of their own choice.”14
On its face, the MMBA neither denies nor grants local employees the right to strike. This omission is noteworthy since the Legislature has not hesitated to expressly prohibit strikes for certain classes of public employees. For example, the above-noted prohibition against strikes by firefighters was enacted nine years before the passage of the MMBA and remains in effect today. Moreover, the MMBA includes firefighters within its provisions. Thus, the absence of any such limitation on other public employees covered by the MMBA at the very least implies a lack of legislative intent to use the MMBA to enact a general strike prohibition.15
Plaintiffs have suggested that section 3509 of the MMBA must be construed as a general prohibition on the right to strike because it specifically precludes the application of Labor Code section 92316 to public em[573]ployees. Labor Code section 923 has been construed by this court to protect the right of private sector employees to strike (see Petri Cleaners, Inc. v. Automotive Employees, etc. Local No. 88 (1960) 53 Cal.2d 455 [2 Cal.Rptr. 470, 349 P.2d 76]); yet, an examination of other California statutes governing public employees makes it perfectly clear that section 3509 was not included in the MMBA as a means for prohibiting strikes.
A provision identical to section 3509 is contained in the statutes governing educational employees and firefighters. However, an explicit strike prohibition is included in the firefighters statute in addition to this provision. The fact that the Legislature felt it necessary to include this express strike prohibition clearly indicates that it neither intended nor expected its preclusion of section 923 to serve as a blanket prohibition against strikes. Furthermore, in San Diego Teachers Assn. v. Superior Court, supra, 24 Cal.3d at page 13, this court interpreted section 3549 of the EERA, a provision identical to section 3509 of the MMBA, as specifically not prohibiting strikes. Therefore, plaintiff’s assertion that section 3509 must be read as a legislative prohibition of public employee strikes cannot be sustained.17
In sum, the MMBA establishes a system of rights and protections for public employees which closely mirrors those enjoyed by workers in the private sector. The Legislature, however, intentionally avoided the inclusion of any provision which could be construed as either a blanket grant or prohibition of a right to strike, thus leaving the issue shrouded in ambiguity. In the absence of clear legislative directive on this crucial matter, it becomes the task of the judiciary to determine whether, under the law, strikes by public employees should be viewed as a prohibited tort.
HI. The Common Law Prohibition Against Public Employee Strikes.
As noted above, the Court of Appeal and various lower courts in this and other jurisdictions have repeatedly stated that, absent a specific statutory grant, all strikes by public employees are per se illegal. A variety of policy rationales and legal justifications have traditionally been advanced in support of this common law “rule,” and numerous articles and scholarly [574]treatises have been devoted to debating their respective merits.18 The various justifications for the common law prohibition can be summarized into four basic arguments. First—the traditional justification—that a strike by public employees is tantamount to a denial of governmental authority/sovereignty. Second, the terms of public employment are not subject to bilateral collective bargaining, as in the private sector, because they are set by the legislative body through unilateral lawmaking. Third, since legislative bodies are responsible for public employment decisionmaking, granting public employees the right to strike would afford them excessive bargaining leverage, resulting in a distortion of the political process and an improper delegation of legislative authority. Finally, public employees provide essential public services which, if interrupted by strikes, would threaten the public welfare.
Our determination of the legality of strikes by public employees necessarily involves an analysis of the reasoning and current viability of each of these arguments. The first of these justifications, the sovereignty argument, asserts that government is the embodiment of the people, and hence those entrusted to carry out its function may not impede it.19 This argument was [575]particularly popular in the first half of the 20th century, when it received support from several American Presidents.20
The sovereignty concept, however, has often been criticized in recent years as a vague and outdated theory based on the assumption that “the King can do no wrong. ” As Judge Harry T. Edwards has cogently observed, “the application of the strict sovereignty notion—that governmental power can never be opposed by employee organizations—is clearly a vestige from another era, an era of unexpanded government.... With the rapid growth of the government, both in sheer size as well as in terms of assuming services not traditionally associated with the ‘sovereign,’ government employees understandably no longer feel constrained by a notion that ‘The King can do no wrong.’ The distraught cries by public unions of disparate treatment merely reflect the fact that, for all intents and purposes, public employees occupy essentially the same position vis a vis the employer as their private counterparts. ” (Edwards, The Developing Labor Relations Law in the Public Sector (1972) 10 Duq. L.Rev. 357, 359-360.)21
In recent years, courts have rejected the very same concept of sovereignty as a justification for governmental immunity from tort liability. In California, the death knell came in Muskopf v. Coming Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457], where this court stated that, [576]“[t]he rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia.” (55 Cal.2d at p. 216.) As noted by this court in Muskopf, perpetuation of the doctrine of sovereign immunity in tort law led to many inequities, and its application effected many incongruous results. Similarly, the use of this archaic concept to justify a per se prohibition against public employee strikes is inconsistent with modern social reality and should be hereafter laid to rest.
The second basic argument underlying the common law prohibition of public employee strikes holds that since the terms of public employment are fixed by the Legislature, public employers are virtually powerless to respond to strike pressure, or alternatively that allowing such strikes would result in “government by contract” instead of “government by law.” (See City of L.A. v. Los Angeles etc. Council (1949) 94 Cal.App.2d 36, 46 [210 P.2d 305].) This justification may have had some merit before the California Legislature gave extensive bargaining rights to public employees. However, at present, most terms and conditions of public employment are arrived at through collective bargaining under such statutes as the MMBA.
We have already seen that the MMBA establishes a variety of rights and protections for public employees—including the right to join and participate in union activities and to meet and confer with employer representatives for the purpose of resolving disputed labor-management issues. The importance of mandating these rights, particularly the meet and confer requirement, cannot be ignored. The overall framework of the MMBA represents a nearly exact parallel to the private sector system of collective bargaining—a system which sets forth the guidelines for labor-management relations in the private sphere and which protects the right of private employees to strike. By enacting these significant and parallel protections for public employees through the MMBA, the Legislature effectively removed many of the underpinnings of the common law per se ban against public employee strikes. While the MMBA does not directly address the issue of such strikes, its implications regarding the traditional common law prohibition are significant.
This argument was eloquently explained by Justice Grodin in his concurring opinion in El Rancho Unified Sch. Dist. v. National Education Assn., supra, 33 Cal.3d at page 963, where he pointed out that “[t]he premise underlying the court’s opinion in City of L.A. [94 Cal.App.2d 36]—that it is necessarily contrary to public policy to establish terms and conditions of employment for public employees through the bilateral process of collective bargaining rather than through unilateral lawmaking—has since been rejected by the Legislature. The heart of the statute under consideration in [577]this case [the Educational Employment Relations Act], for example, contemplates that matters relating to wages, hours, and certain other terms and conditions of employment for teachers will be the subject of negotiation and agreement between a public school employer and organizations representing its employees. (Gov. Code, §§ 3543.2, 3543.3, 3543.7.) Thus, the original policy foundation for the ‘rule’ that public employee strikes are illegal in this state has been substantially undermined, if not obliterated.”
The remaining two arguments have not served in this state as grounds for asserting a ban on public employee strikes but have been advanced by commentators and by courts of other states. With the traditional reasons for prohibiting such strikes debunked, these additional reasons do not convince us of the necessity of a judicial ukase prohibiting all such strikes.
The first of these arguments draws upon the different roles of market forces in the private and public spheres. This rationale suggests that because government services are essential and demand is generally inelastic, public employees would wield excessive bargaining power if allowed to strike. Proponents of this argument assume that economic constraints are not present to any meaningful degree in the public sector. Consequently, in the absence of such constraints, public employers will be forced to make abnormally large concessions to workers, which in turn will distort our political process by forcing either higher taxes or a redistribution of resources between government services.22
There are, however, several fundamental problems with this “distortion of the political process” argument. For one, as will be discussed more fully below, a key assumption underlying the argument—that all government services are essential—is factually unsupportable. Modem governments engage in an enormous number and variety of functions, which clearly vary as to their degree of essentiality. As such, the absence of an unavoidable nexus between most public services and essentiality necessarily undercuts the notion that public officials will be forced to settle strikes quickly and at any [578]cost. The recent case of the air-traffic controllers’ strike23 is yet another example that governments have the ability to hold firm against a strike for a considerable period, even in the face of substantial inconvenience. As this court concluded in Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, supra, “Permitting employees to strike does not delegate to them authority to fix their own wages to the exclusion of the employer’s discretion. In collective bargaining negotiations, whether or not the employees strike, the employer is free to reject demands if he determines that they are unacceptable.” (54 Cal.2d at p. 693, italics added.)
Other factors also serve to temper the potential bargaining power of striking public employees and thus enable public officials to resist excessive demands: First, wages lost due to strikes are as important to public employees as they are to private employees. Second, the public’s concern over increasing tax rates will serve to prevent the decisionmaking process from being dominated by political instead of economic considerations. A third and related economic constraint arises in such areas as water, sewage and, in some instances, sanitation services, where explicit prices are charged. Even if representatives of groups other than employees and the employer do not formally enter the bargaining process, both union and local government representatives are aware of the economic implications of bargaining which leads to higher prices which are clearly visible to the public. A fourth economic constraint on public employees exists in those services where subcontracting to the private sector is a realistic alternative. For example, Warren, Michigan resolved a bargaining impasse with an American Federation of State, County and Municipal Employees (AFSCME) local by subcontracting its entire sanitation service; Santa Monica, California, ended a strike of city employees by threatening to subcontract its sanitation operations; in fact, San Francisco has chosen to subcontract its entire sanitation system to private firms. If this subcontract option is preserved, wages in the public sector clearly need not exceed the rate at which subcontracting becomes a realistic alternative.24
[579]The proponents of a flat ban on public employee strikes not only ignore such factors as the availability of subcontracting, but also fail to adequately consider public sentiment towards most strikes and assume that the public will push blindly for an early resolution at any cost. In fact, public sentiment toward a strike often limits the pressure felt by political leaders, thereby reducing the strike’s effectiveness. A Pennsylvania Governor’s Commission Report stressed just such public sentiment as an important reason to grant a limited right to strike: “[T]he limitations on the right to strike which we propose . . . will appeal to the general public as so much fairer than a general ban on strikes that the public will be less likely to tolerate strikes beyond these boundaries. Strikes can only be effective so long as they have public support. In short, we look upon the limited and carefully defined right to strike as a safety valve that will in fact prevent strikes.”25 (Italics in original.)
In sum, there is little, if any empirical evidence which demonstrates that governments generally capitulate to unreasonable demands by public employees in order to resolve strikes. The result of the strike in the instant case clearly suggests the opposite. During the 11-day strike, negotiations resumed, and the parties subsequently reached an agreement on a new MOU, the terms of which were precisely the same as the District’s last offer prior to the commencement of the strike. Such results certainly do not illustrate a situation where public employees wielded excessive bargaining power and thereby caused a distortion of our political process.
The fourth and final justification for the common law prohibition is that interruption of government services is unacceptable because they are essential. As noted above, in our contemporary industrial society the presumption of essentiality of most government services is questionable at best. In addition, we tolerate strikes by private employees in many of the same areas in which government is engaged, such as transportation, health, education, and utilities; in many employment fields, public and private activity largely overlap.
In a dissenting opinion in Anderson Fed. of Teach, v. School City of Anderson, supra, Chief Justice DeBruler of Indiana observed that the source and management of most service enterprises is irrelevant to the relative essentiality of the services: “There is no difference in impact on the community between a strike by employees of a public utility and employees of [580]a private utility; nor between employees of a municipal bus company and a privately owned bus company; nor between public school teachers and parochial school teachers. The form of ownership and management of the enterprise does not determine the amount of destruction caused by a strike of the employees of that enterprise. In addition, the form of ownership that is actually employed is often a political and historical accident, subject to future change by political forces. Services that were once rendered by public enterprise may be contracted out to private enterprise, and then by another administration returned to the public sector.” (251 N.E.2d at p. 21.)
Recently, the United States Supreme Court also eschewed the classic equation of public ownership of an industry with the essentiality of that industry. In an earlier case which reflected the traditional reasoning, United States v. Mineworkers (1947) 330 U.S. 258 [91 L.Ed. 884, 67 S.Ct. 677], the Supreme Court had held that the government’s wartime seizure of private coal mines rendered those mining operations public services and changed the rights of the miners, though the function of the mines remained exactly the same. The court then approved the issuance of an injunction against striking workers, a remedy that would not have been available had the mines still been considered a private enterprise.
In the recent case of Transportation Union v. Long Island R. Co. (1982) 455 U.S. 678 [71 L.Ed.2d 547, 102 S.Ct. 1349], however, the court held that employees of a formerly private railroad, which had recently been acquired by a governmental entity, retained their right to strike under the Railway Labor Act. In this latter instance, the Supreme Court clearly recognized that the public takeover of the railroad did not necessarily change the rights of the employees; the court therefore suggested that the railroad became no more essential after its public acquisition. Although the decision’s basis in the supremacy clause limits its direct precedential value on labor law, the ruling nevertheless signifies a major departure from the court’s earlier holding in Mineworkers, supra—that a service becomes essential once it comes under government control. The Transportation Union case thus underscores the conclusion that it is the nature of the service provided which determines its essentiality and the impact of its disruption on the public welfare, as opposed to a simplistic determination of whether the service is provided by public or private employees. Indeed, strikes by private workers often pose a more serious threat to the public interest than would many of those which involve public employees.
We of course recognize that there are certain “essential” public services, the disruption of which would seriously threaten the public health or safety. In fact, defendant union itself concedes that the law should still act to render [581]illegal any strikes in truly essential services which would constitute a genuine threat to the public welfare. Therefore, to the extent that the “excessive bargaining power” and “interruption of essential services” arguments still have merit, specific health and safety limitations on the right to strike should suffice to answer the concerns underlying those arguments.
In addition to the various legal arguments advanced to persuade the courts to impose a judicial ban on public employee strikes—arguments which, as we have seen, are decidedly unpersuasive in the context of modern jurisprudence and experience—there is the broader concern that permitting public employees to strike may be, on balance, harmful to labor-management relations in the public sector. This is essentially a political argument, best addressed to the Legislature. We review the matter only to point out that the issue is not so clear cut as to justify judicial intervention, since the Legislature could reasonably conclude that recognizing public employees’ right to strike may actually enhance labor-management relations.
At least 11 states have granted most of their public employees a right to strike;26 and the policy rationale behind this statutory recognition further undercuts several of the basic premises relied upon by strike-ban advocates. As the aforementioned Pennsylvania Governor’s Commission Report concluded: “The collective bargaining process will be strengthened if this qualified right to strike is recognized. It will be some curb on the possible intransigence of an employer; and the limitations on the right to strike will serve notice on the employee that there are limits to the hardships that he can impose.” (251 Gov. Empl. Rel. Rep., supra, at p. E-3.)
It is unrealistic to assume that disputes among public employees and their employers will not occur; in fact, strikes by public employees are relatively frequent events in California. For example, 46 strikes occurred during 1981-1983, which actually marks a significant decline when compared to the number during the 5 previous years.27 Although the circumstances be[582]hind each individual strike may vary somewhat, commentators repeatedly note that much of the reason for their occurrence lies in the fact that without the right to strike, or at least a credible strike threat, public employees have little negotiating strength. This, in turn, produces frustrations which exacerbate labor-management conflicts and often provoke “illegal” strikes.
The noted labor mediator, Theodore W. Kheel, aptly described this process when analyzing New York’s Taylor Law (which makes all public employee strikes illegal) and its resultant effect on labor relations in that state: “It would be unfair to place upon the legal machinery sole responsibility for these interruptions of critical services on which the welfare of New York depends. But the fact remains that the machinery—including the prohibition on strikes with attendant penalties and the fact-finding boards with their power to make recommendations—did not work to settle these disputes or stop the strikes, slowdowns, or threats. In fact it is probable that the Taylor Law exacerbated these conflicts. For one thing, it made subversive a form of conduct society endorsed for private workers. It encouraged unions to threaten to strike to achieve the bargaining position participants in collective bargaining must possess. It made the march to jail a martyr’s procession and a badge of honor for union leaders. ... In simple point of fact, it did not and is not likely to work as a mechanism for resolving conflicts in public employment relations through joint determination, whether called collective bargaining or collective negotiations.” (Kheel, Strikes and Public Employment, supra, 67 Mich.L.Rev. 931, 936.)28
[583]It is universally recognized that in the private sector, the bilateral determination of wages and working conditions through a collective bargaining process, in which both sides possess relatively equal strength, facilitates understanding and more harmonious relations between employers and their employees. In the absence of some means of equalizing the parties’ respective bargaining positions, such as a credible strike threat, both sides are less likely to bargain in good faith;29 this in turn leads to unsatisfactory and acrimonious labor relations and ironically to more and longer strikes. Equally as important, the possibility of a strike often provides the best impetus for parties to reach an agreement at the bargaining table, because both parties lose if a strike actually comes to pass. Thus by providing a clear incentive for resolving disputes, a credible strike threat may serve to avert, rather than to encourage, work stoppages.
Theodore Kheel has explained this argument very well: “[W]e should acknowledge the failure of unilateral determination, and turn instead to true collective bargaining, even though this must include the possibility of a strike. We would then clearly understand that we must seek to improve the bargaining process and the skill of the negotiators to prevent strikes. . . . With skillful and responsible negotiators, no machinery, no outsiders, and no fixed rules are needed to settle disputes. For too long our attention has been directed to the mechanics and penalties rather than to the participants in the process. It is now time to change that, to seek to prevent strikes by encouraging collective bargaining to the fullest extent possible.”30
A final policy consideration in our analysis addresses a more philosophical issue—the perception that the right to strike, in the public sector as well as in the private sector, represents a basic civil liberty.31 The widespread ac[584]ceptance of that perception leads logically to the conclusion that the right to strike, as an important symbol of a free society, should not be denied unless such a strike would substantially injure paramount interests of the larger community.
Plaintiff’s argument that only the Legislature can reject the common law doctrine prohibiting public employee strikes flies squarely in the face of both logic and past precedent. Legislative silence is not the equivalent of positive legislation and does not preclude judicial reevaluation of common law doctrine. If the courts have created a bad rule or an outmoded one, the courts can change it.
This court has long recognized the need to redefine, modify or even abolish a common law rule “when reason or equity demand it” or when its underlying principles are no longer justifiable in light of modern society. (See Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394 [115 Cal.Rptr. 765, 525 P.2d 669]; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 216 [11 Cal.Rptr. 89, 359 P.2d 457]; Green v. Superior Court (1974) 10 Cal.3d 616, 629 [111 Cal.Rptr. 704, 517 P.2d 1168]; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].)
This court’s history provides numerous examples of this principle. In Li v. Yellow Cab Co., supra, 13 Cal.3d at page 812, when this court first adopted a rule of comparative negligence, we expressly rejected the contention that any change in the law of contributory negligence was exclusively a matter for the Legislature, and overturned more than a century of precedent. In Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, we directly repudiated the assertion that recognition of a spousal action for loss of consortium required legislative action (see pp. 393-395) and reversed numerous prior decisions in endorsing that cause of action. Furthermore, “[w]hen the law governing á subject has been shaped and giiided by judicial decision, legislative inaction does not necessarily constitute a tacit endorsement of the precise stage in the evolution of the law extant at the time when the Legislature did nothing; it may signify that the Legislature is willing to entrust the further evolution of legal doctrine to judicial development.” [585](People v. Drew (1978) 22 Cal.3d 333, 347, fn. 11 [149 Cal.Rptr. 275, 583 P.2d 1318].)
For the reasons stated above, we conclude that the common law prohibition against public sector strikes should not be recognized in this state. Consequently, strikes by public sector employees in this state as such are neither illegal nor tortious under California common law. We must immediately caution, however, that the right of public employees to strike is by no means unlimited. Prudence and concern for the general public welfare require certain restrictions.
The Legislature has already prohibited strikes by firefighters under any circumstance. It may conclude that other categories of public employees perform such essential services that a strike would invariably result in imminent danger to public health and safety, and must therefore be prohibited.32
While the Legislature may enact such specific restrictions, the courts must proceed on a case-by-case basis. Certain existing statutory standards may properly guide them in this task. As noted above, a number of states have granted public employees a limited right to strike, and such legislation typically prohibits strikes by a limited number of employees involved in clearly essential services. In addition, several statutes provide for injunctive relief against other types of striking public employees when the state clearly demonstrates that the continuation of such strikes will constitute an imminent threat or “clear and present danger” to public health and safety.33 Such an [586]approach guarantees that essential public services will not be disrupted so as to genuinely threaten public health and safety, while also preserving the basic rights of public employees.
After consideration of the various alternatives before us, we believe the following standard may properly guide courts in the resolution of future disputes in this area: strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public. This standard allows exceptions in certain essential areas of public employment (e.g., the prohibition against firefighters and law enforcement personnel) and also requires the courts to determine on a case-by-case basis whether the public interest overrides the basic right to strike.
Although we recognize that this balancing process may impose an additional burden on the judiciary, it is neither a novel nor unmanageable task.34 Indeed, an examination of the strike in the instant case affords a good example of how this new standard should be applied. The 11-day strike did not involve public employees, such as firefighters or law enforcement per[587]sonnel, whose absence from their duties would clearly endanger the public health and safety. Moreover, there was no showing by the District that the health and safety of the public was at any time imminently threatened. That is not to say that had the strike continued indefinitely, or had the availability of replacement personnel been insufficient to maintain a reasonable sanitation system, there could not have been at some point a clear showing of a substantial threat to the public health and welfare.35 However, such was not the case here, and the legality of the strike would have been upheld under our newly adopted standard.36
Defendant union has also urged this court to find that a per se prohibition of all public employee strikes violates the California Constitution’s guarantees of freedom of association, free speech, and equal protection. They do not contend that such a constitutional infringement is present when a court exercises its equitable authority to enjoin a strike based on a showing that the strike represents a substantial and imminent danger to the public health or safety. Instead, the union argues that in the absence of such a showing, per se prohibition is constitutionally unsupportable.
The right to form and be represented by unions is a fundamental right of American workers that has been extended to public employees through constitutional adjudication37 as well as by statute; in this case, it is [588]specifically mandated by the provisions of the MMBA itself. In addition, “ ‘[i]t is now settled law that workmen may lawfully combine to exert various forms of economic pressure upon an employer, provided the object sought to be accomplished thereby has a reasonable relation to the betterment of labor conditions, and they act peaceably and honestly. (Citations) This right is guaranteed by the federal Constitution as an incident of freedom of speech, press and assemblage, (citations) and it is not dependent upon the existence of a labor controversy between the employer and his employee.’ ” (In re Blaney (1947) 30 Cal.2d 643, 648 [184 P.2d 892], quoting Steiner v. Long Beach Local No. 128 (1942) 19 Cal.2d 676, 682 [123 P.2d 20].)
As the union contends, however, the right to unionize means little unless it is accorded some degree of protection regarding its principal aim—effective collective bargaining. For such bargaining to be meaningful, employee groups must maintain the ability to apply pressure or at least threaten its application. A creditable right to strike is one means of doing so. As yet, however, the right to strike has not been accorded full constitutional protection, the prevailing view being that “[t]he right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining which this Court has characterized as a ‘fundamental right. . . .’ ” (Auto. Workers v. Wis. Board (1949) 336 U.S. 245, 259 [93 L.Ed. 651, 666, 69 S.Ct. 516].)
Further, the federal ban on public employee strikes has been specifically upheld as constitutionally permissible. (See United Federation of Postal Clerks v. Blount, supra, 325 F.Supp. 879, 884; affd. (1971) 404 U.S. 802 [589][30 L.Ed.2d 38, 92 S.Ct. 80].) In the absence of any explicit constitutional protection of the right to strike, the Blount court reasoned that the law prohibiting only public employees from striking need only have a rational basis to avoid offending constitutional guarantees. The court then easily found that the common law policy justifications (discussed in detail above) did indeed provide a rational basis for the per se prohibition. (See, United Federation of Postal Clerks v. Blount, supra, at p. 883.)
Thoughtful judges and commentators, however, have questioned the wisdom of upholding a per se prohibition of public employee strikes. They have persuasively argued that because the right to strike is so inextricably intertwined with the recognized fundamental right to organize and collectively bargain, some degree of constitutional protection should be extended to the act of striking in both the public and private sectors.
As Judge J. Skelly Wright declared in his concurrence in United Federation of Postal Clerks v. Blount, supra, “[i]f the inherent purpose of a labor organization is to bring the workers’ interests to bear on management, the right to strike is, historically and practically, an important means of effectuating that purpose. A union that never strikes, or which can make no credible threat to strike, may wither away in ineffectiveness. That fact is not irrelevant to the constitutional calculations. Indeed, in several decisions, the Supreme Court has held that the First Amendment right of association is at least concerned with essential organizational activities which give the particular association life and promote its fundamental purposes. . . . [Citations.] I do not suggest that the right to strike is co-equal with the right to form labor organizations. . . . But I do believe that the right to strike is, at least, within constitutional concern and should not be discriminatorily abridged without substantial or ‘compelling’ justification.” (325 F.Supp. 879, 885.)
Chief Justice Roberts of the Rhode Island Supreme Court offered similar sentiments in a case involving a teachers’ strike in that state: “Obviously, the right to strike is essential to the viability of a labor union, and a union which can make no credible threat of strike cannot survive the pressures in the present-day industrial world. If the right to strike is fundamental to the existence of a labor union, that right must be subsumed in the right to organize and bargain collectively. . . . The collective bargaining process, if it does not include a constitutionally protected right to strike, would be little more than an exercise in sterile ritualism. ... I cannot agree that every strike by public employees necessarily threatens the public welfare and governmental paralysis. . . . The fact is that in many instances strikes by private employees pose the far more serious threat to the public interest [590]than would many of those engaged in by public employees. ... In short, it appears to me that to deny all public employees the right to strike because they are employed in the public sector would be arbitrary and unreasonable.” (School Committee v. Westerly Teachers Ass’n (1973) Ill R.I. 96 [299 A.2d 441, 447-449], dis. opn.)
We are not persuaded that the personal freedoms guaranteed by the United States and California Constitutions confer an absolute right to strike,38 but the arguments above may merit consideration at some future date. If the right to strike is afforded some constitutional protection as derivative of the fundamental right of freedom of association, then this right cannot be abridged absent a substantial or compelling justification.
As this court stated in Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 22 [64 Cal.Rptr. 409, 434 P.2d 961], which invalidated a loyalty oath requirement for public employees in this state, “even where a compelling state purpose is present, restrictions on the cherished freedom of association protected by the First Amendment and made applicable to the states by the Fourteenth Amendment must be drawn with narrow specificity. First Amendment freedoms are delicate and vulnerable and must be protected wherever possible. When government seeks to limit those freedoms on the basis of legitimate and substantial governmental purposes . . . those purposes cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Precision of regulation is required so that the exercise of our most precious freedoms will not be unduly curtailed except to the extent necessitated by the legitimate governmental objective. (Keyishian v. Board of Regents, supra, 385 U.S. 589, 602-603; Elfbrandt v. Russell, 384 U.S. 11, 15, et seq.; N.A.A.C.P. v. Button, 371 U.S. 415, 432-433; Shelton v. Tucker, 364 U.S. 479, 488; Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 506-509; Fort v. Civil Service Com., supra, 61 Cal.2d 331, 337-338.)”
As discussed at length above, the traditional justifications espoused in favor of a per se prohibition cannot withstand a significant degree of judicial scrutiny. Indeed, since not all public employee services are essential and many private employees perform services more vital to the public health [591]and safety than do their counterparts in the public sector, the simplistic public/private dichotomy does not constitute a “compelling” justification for a per se prohibition of public employee strikes. Thus the constitutional arguments of defendant union and several amici cannot easily be dismissed, particularly since we will retain the limitation that public strikes may be prohibited when they threaten the public health or safety.39
Since we have already concluded that the traditional per se prohibition against public employee strikes can no longer be upheld on common law grounds, we do not find it necessary to reach the issue in constitutional terms. Although we are not inclined to hold that the right to strike rises to the magnitude of a fundamental right, it does appear that associational rights are implicated to a substantial degree. As such, the close connection between striking and other constitutionally protected activity adds further weight to our rejection of the traditional common law rationales underlying the per se prohibition. (Cf. Environmental Planning & Information Council [592]v. Superior Court (1984) 36 Cal.3d 188, 195 [203 Cal.Rptr. 127, 680 P.2d 1086].)
We conclude that it is not unlawful for public employees to engage in a concerted work stoppage for the purpose of improving their wages or conditions of employment, unless it has been determined that the work stoppage poses an imminent threat to public health or safety. Since the trial court’s judgment for damage in this case was predicated upon an erroneous determination that defendants’ strike was unlawful, the judgment for damages cannot be sustained.40
The judgment is reversed.
Mosk, J., and Grodin, J., concurred.
Each such district is a separate and autonomous political subdivision of the State of California, authorized by Health and Safety Code section 4700 et seq. County Sanitation District No. 2 of Los Angeles County is authorized by a joint powers agreement to act on behalf of itself and the 26 other districts in numerous matters, including personnel and labor relations. (These 27 sanitation districts are hereinafter jointly referred to as the District.)
In 1976, the facilities operated by the District included 6 sanitary landfills which together received about 15,000 tons of solid waste each day, 11 treatment plants processing 450 million gallons of raw sewage per day, 4 maintenance yards, and 46 pumping stations. In maintaining these operations, the District served approximately 4 million residents of the county.
The union maintains that the strike settled on July 12, while the trial court’s findings agreed with the District’s contention that the strike settled on July 16. In addition, the District maintained that the strike was not entirely peaceful and had alleged various acts of vandalism were committed by the strikers. The union denied these charges in full.
This figure represents the following strike-related damages: Wages and PICA payments: $304,227; earned compensatory time off valued at $16,040; miscellaneous security, equip-' [569]ment and meal expenses: $55,080; health care benefits paid to striking employees: $6,000; less a $134,443 set off in wages, FICA and retirement benefits that the District did not have to pay out on behalf of striking workers.
See Commonwealth, v. Pullis (Mayor’s Ct. Phil. 91806) reported in 3 Commons, Documentary History of American Industrial Society (1910) p. 59; Walker v. Cronin (1871) 107 Mass. 555; Vegelahn v. Guntner (1896) 167 Mass. 92 [44 N.E. 1077]; Loewe v. Lawlor (1908) 208 U.S. 274 [52 L.Ed. 488, 28 S.Ct. 301],
Congress gradually, through a series of legislative enactments, not only granted private sector employees a right to strike and to engage in other concerted activities, but also deprived employers of their traditional remedies of injunction and damage suits. (See 38 Stat. 730 (1914) [Clayton Antitrust Act], codified as amended at 15 U.S.C. §§ 15, 17, 26 (1970), 29 U.S.C. § 52 (1970); 47 Stat. 70 (1930) [Norris-La Guardia Act], codified at 29 U.S.C. §§ 101-115 (1970); 47 Stat., pt. n 577 (1926) [Railway Labor Act], codified as amended at 45 U.S.C. §§ 151-188 (1970); 49 Stat. 449 (1935) [Wagner Act], codified as amended at 29 U.S.C. §§ 141-197 (1970).)
Employees of the federal government are . statutorily prohibited from striking under 5 United States Code section 7311 (1976), which prohibits an individual from holding a federal position if he “participates in a strike, or asserts the right to strike against the Government of the United States . . . .’’In United Federation of Postal Clerks v. Blount (D.D.C. 1971) 325 F.Supp. 879, affd., 404 U.S. 802 [30 L.Ed.2d 38, 92 S.Ct. 80] (1971), the court upheld the constitutionality of the strike prohibitions, yet declared unconstitutional the “wording insofar as it inhibits the assertion of the right to strike. ...” {Id. at p. 881 [italics in original].) In 1947, Congress originally denied federal employees the right to strike in section 305 of the Labor Management Relations Act (Taft-Hartley Act), chapter 120, 61 Statutes at Large 136 (1947). This act was repealed and ultimately replaced by section 7311.
Those 11 states are Alaska, Hawaii, Idaho, Illinois, Minnesota, Montana, Ohio, Oregon, Pennsylvania, Vermont, and Wisconsin. (See further discussion below.) Interestingly, the United States is virtually alone among Western industrial nations in upholding a general prohibition of public employee strikes. Most European countries have permitted them, with certain limitations, for quite some time as has Canada. See, e.g., Anderson, Strikes and Impasse Resolution in Public Employment (1969) 67 Mich.L.Rev. 943, 961-964.
See, e.g., Stationary Engineers v. San Juan 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 [140 Cal.Rptr. 41]; Service Employees’ International Union, Local No. 22 v. Roseville Community Hosp. (1972) 24 Cal.App.3d 400, 408 [101 Cal.Rptr. 69]; Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers (1970) 13 Cal.App.3d 863, 867 [92 Cal.Rptr. 134]; City of San Diego v. American Federation of State etc. Employees (1970) 8 Cal.App.3d 308, 310 [87 Cal.Rptr. 258]; Almond v. County of Sacramento (1969) 276 Cal.App.2d 32, 35 [80 Cal.Rptr. 518].
San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1 [154 Cal.Rptr. 893, 593 P.2d 838]; El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal. 3d 946 [192 Cal.Rptr. 123, 663 P.2d 893]; and International Brotherhood of Electrical Workers v. City ofGridley (1983) 34 Cal.3d 191 [193 Cal.Rptr. 518, 666 P.2d 960].
See, e.g., dissenting opinion of Richardson, J., in San Diego Teachers Assn. v. Superior Court, supra, 24 Cal.3d 1 and concurring opinion of Richardson, J., in El Rancho Unified School Dist. v. National Education Assn., supra, 33 Cal.3d at page 962, where he stated that “[t]his court should no longer continue its hesitant, tentative ritual dance around the perimeter of this central legal principle. ...”
For just one example, the Winton Act (former Ed. Code, § 13080 et seq.), which governed the relationship between local school boards and teachers’ unions, neither affirmed nor rejected the teachers’ right to strike. In 1975 the Legislature repealed the Winton Act and added new provisions to the Government Code to establish an Education Employment Relations Board (see Gov. Code, § 3540 et seq.); the new enactment also does not prohibit strikes by teachers. It also bears mention that 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 (appen. a). However, this proposed statute was never enacted into law, perhaps further reflecting a legislative decision to leave the ultimate determination of this thorny issue to the judiciary.
The MMBA revised its predecessor, the Brown Act, in 1968. The MMBA amendments, however, apply only to local government employees because the MMBA deleted reference to the “State of California” and explicitly defined “public employee” as one employed by any political subdivision of the state. (See Gov. Code, § 3501.) Presently, state employees are governed by the State Employer-Employee Relations Act (Gov. Code, §§ 3512-3524).
Additional groups of employees were excepted from coverage under the Brown Act by previous legislation. These employees are consequently not covered by the MMBA. (See Pub. Util. Code, §§ 25051-25052, added by Stats. 1955, ch. 1036, § 2 at pp. 1960-1961 [governing bargaining between employees of the Alameda-Contra Costa Transit District and their employers]; Pub. Util. Code, Appen. 1, § 3.6(b)-(g) [governing bargaining in the Los Angeles Metropolitan Transit Authority]; Ed. Code, §§ 13080-13089 [governing educational
For a detailed discussion of the scope and purposes of the MMBA, see Grodin, Public Employees Bargaining in California: The Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719; Note, Collective Bargaining Under the Meyers-Milias-Brown Act— Should Local Employees Have the Right to Strike (1984) 35 Hastings L.J. 523.
However, the MMBA contains no clear mechanism for resolving disputes. It merely provides that if the parties fail to reach an agreement, they may agree to appoint a mediator or use other impasse resolution procedures agreed upon by the parties. Additionally, the MMBA does not authorize the establishment of an administrative agency to resolve controversies arising under its provisions. In contrast, statutes governing other public employees in California authorize the Public Employee Relations Board (PERB) to resolve disputes and enforce the provisions of the legislation. (See Gov. Code, § 3541.3 (setting the powers and duties of the PERB under the Educational Employment Relations Act (EERA)); and Gov. Code, § 3513, subd. (g) [making the powers and duties of the PERB under the EERA applicable to the State Employees Relations Act].)
Apparently this decision was the result of political compromise and/or a desire that the courts would take the difficult first step of unambiguously indicating whether public employees generally have the right to strike. As one noted commentator explains, “The entire subject of strikes and impasse resolution procedures is avoided, except for the declaration that the parties may elect to engage a mediator. What emerges is a rather general legislative blessing for collective bargaining at the local governmental level without clear delineation of policy or means for its implementation. The courts have, on the whole, done an admirable job of exegesis, but their decisions cannot help but reflect the underlying weakness of the text.” (Grodin, op. cit. supra, 23 Hastings L.J. at p. 761.)
Section 923 provides in pertinent part: “. . . the individual workman [shall] have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference ... of employers ... in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Since the present case involves employees subject to the MMBA, we do not consider whether provisions of statutes governing other employees could be interpreted to limit the right of such employees to strike.
Among the more notable works to appear recently on the subject of labor relations in the public sector are: Hanslowe & 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 MeyersMilias-Brown Act in the Courts (1972) 23 Hastings L.J. 719; Shaw & Clark, The Practical Differences Between Public and Private Sector Collective Bargaining (1972) 19 UCLA L.Rev. 867; Lev, Strikes by Government Employees: Problems and Solutions (1971) 57 A.B.A.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 & Krider, The Role and Consequences of Strikes by Public Employees (1970) 79 Yale L.J. 418; Wellington & 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 & Winter, The Limits of Collective Bargaining in Public Employment (1969) 78 Yale L.J. 1107; Thome, The Government Employee and Organized Labor (1962) 2 Santa Clara Law. 147; Note, Labor Relations in the Public Service (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.
For example, in City of Cleveland v. Division 268 of Amal. Ass’n (1949) 41 Ohio Ops. 236, 239 [90 N.E.2d 711, 715], the court stated that “[i]t is clear that in our system of government, the government is a servant of all of the people. And a strike against the public, a strike of public employees, has been denominated ... as a rebellion against government. The right to strike, if accorded to public employees ... is one means of destroying gov[575]ernment. And if they destroy government, we have anarchy, we have chaos.” A California case which relied on this sovereignty argument is Nutter v. City of Santa Monica (1946) 74 Cal.App.2d 292 [168 Cal.Rptr. 741].
Commenting on the Boston police strike, Calvin Coolidge asserted that “[t]here is no right to strike against public safety by anybody, anywhere, at any time” (quoted in Norwalk Teachers Ass’n v. Board of Education (1951) 138 Conn. 269, 273 [83 A.2d 482, 484, 31 A.L.R.2d 1133]). Woodrow Wilson, commenting on the same strike, stated that the strike is “ ‘an intolerable crime against civilization’ ” (quoted in id., at p. 273 [83 A.2d at p. 484]).
In another famous pronouncement of the sovereignty argument, President Franklin Roosevelt stated: “ ‘[M]ilitant 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.’” (Id., at pp. 273-274 [83 A.2d at p. 484] [quoting a letter from President Roosevelt to the president of the National Federation of Federal Employees (Aug. 16, 1937)].)
,See also Anderson Fed. of Teach, v. School City of Anderson (1969) 252 Ind. 588 [251 N.E. 2d 15, 20, 37 A.L.R.3d 1131] (dis. opn. of DeBruler, C. J.). (“[Sovereign immunity] is not a rational argument at all but a technique for avoiding dealing with the merits of the issue [of whether public employees may strike] .... The conflict of real social forces cannot be solved by the invocation of magical phrases like ‘sovereignty.’”)
Chief Justice DeBruler also notes that where the government has discretion over the terms and conditions of employment, “[a]ny decision within this discretionary area is authorized by the government, and therefore, obviously does not deny the authority of government.” (Id., at p. 20.)
See e.g., United Federation of Postal Clerks v. Blount, supra, 325 F.Supp. 879, 884. (“In the private sphere, the strike is used to equalize bargaining power, but this has universally been held not to be appropriate when its object and purpose can only be to influence the essentially political decisions of Government in the allocation of its resources.”)
For an even more extensive elaboration of this “distortion of the political process” argument, see Wellington & Winter, The Limits of Collective Bargaining in Public Employment, supra, 78 Yale LJ. 1107.
In August 1981, the Professional Air Traffic Controllers Organization (PATCO) launched a nationwide strike against the federal government. President Ronald Reagan ordered the discharge of 11,000 striking controllers who had not returned to work within a two-day grace period. Up to the time of this writing, the Administration has rejected all suggestions for a general amnesty, its position being that the strikers, by violating the federal government’s prohibition on strikes and their own “no-strike” oath, have forfeited their jobs with the Federal Aviation Administration forever. Federal courts upheld the government’s position in PATCO v. Federal Labor Relations Authority (D.C. Cir. 1982) 685 F.2d 547. For a more detailed analysis of the strike, see Meltzer & Sunstein, Public Employee Strikes, Executive Discretion, and the Air Traffic Controllers (1983) 50 U.Chi.L.Rev. 731.
See further discussion in Burton & Krider, The Role and Consequences of Strikes by Public Employees, supra, 79 Yale LJ. 418, 425-427.
Governor’s Commission to Revise the Public Employee Law of Pennsylvania, Report and Recommendations, reprinted in 251 Gov. Empl. Rel. Rep. (BNA) E-l, E-3 (1968). This report is discussed in detail in Hanslowe & Acierno, The Law and Theory of Strikes by Government Employees, supra, 67 Cornell L.Rev. 1055.
See footnote 8, ante, for a list of the 11 states. Typically these statutes permit public sector strikes, unless such strikes endanger the public health, safety, or welfare. The statutes generally prohibit strikes by police and fire-protection employees, employees in correctional facilities, and those in health-care institutions. In some instances, statutes provide binding arbitration to resolve certain disputes for which strikes are proscribed. Thus, the public sector strike has begun to achieve some degree of legitimacy, despite the strong opposition of critics.
Public employee strikes in California, 1970-1983:*
1970 1971 1972 1973 1974 1975 1976 20 14 18 15 45 44 23
1977 1978 1979 1980 1981 1982 1983 59 29 87 55 20 6 20
*Source: An Analysis of 1981-1983 Strikes in California’s Public Sector (1984) (Mar. [582198]4 Inst, of Ind. Rel., U.C. Berkeley) 60 Cal. Pub. Empl. Rel. 7, 9. Public employees include all workers in public agencies in California, excluding federal service and public utilities.
Indeed the per se prohibition is notoriously ineffective. See Comment, California Assembly Advisory Council’s Recommendations on Impasse Resolution Procedures and Public Employee Strikes, supra, 11 San Diego L.Rev. 473, 480. The council’s study found that the “present laws do not deter strikes, and furthermore, that once an illegal strike is instituted the law has very little effect in compelling the strikers to return to work. Part of the reason for this is that many public employers hesitate to request an injunction because they believe that the employees would continue to strike, thereby forcing the employer to either initiate contempt proceedings and subject his employees to quasi-criminal penalties, or stand idly and ineffectually by as the illegal strike continues. Either of these alternatives, if pursued, would have a deleterious effect on future employee-management relations once the strike is settled.”
See also statement of Professor Reginald Alleyne, UCLA Law School, in the Transcript of Proceedings, MMBA Hearing, California Legislative Assembly, Interim Public Employment and Retirement Committee, page 20. Professor Alleyne cited statistics which supported his view that “In 99 and 9/10 of the cases in the private sector they succeed and reach an agreement. ”
See also Cebulski, An Analysis of 22 Illegal Strikes and California Law (1973) 18 Cal. Pub. Empl. Rel. 2, 9 (chart showing that strikes in which public sector employers imposed legal sanctions lasted twice as long as strikes in which the employers did not attempt to impose sanctions).
See, e.g., Timberlane Reg. Sch. Dist. v. Timberlane Reg. Ed. Ass’n (1974) 114 N.H. 245 [317 A.2d 555, 557].
Kheel, op. cit. supra, 67 Mich.L.Rev. at pages 940-941.
Another interesting and related policy argument in support of granting a right to strike to public employees rests on a recognition of the changing shape and values of the American economic system itself. In essence, it focuses on the fact that our market economy has evolved from its classical model into an increasingly mixed and pluralistic form. In this process of increased government intervention, the line between public and private enterprise has become increasingly blurred. At the same time, a concomitant blurring has occurred between traditional political and economic activity, and it is this latter overlap which renders a flat ban on all public sector strikes so difficult to defend.
The argument then analogizes the deviation of the American system from classical economic models and the corresponding reevaluation of public strike prohibitions to the Solidarity-inspired developments in Poland prior to the latest military crackdown. Ironically, the traditional common law argument that public sector bargaining and striking is antidemocratic and inimical to our political process, closely mirrors the Polish government’s view that unions and strikes are antisocial—indeed revisionist and reactionary—conduct in a system operated purportedly for the benefit of all. Deviations from classical models and [584]beliefs thus confront both ideological viewpoints. The argument for a right to strike for public employees in'a capitalist system clearly gains strength as society evolves away from the classical ideal of a pure market economy where the public and private sectors are clearly separated. Similarly, the case for a right to strike in a socialist system grows stronger as that society deviates from the classical ideals of the socialist model. For a more detailed analysis of this theory, see Hanslowe & Aciemo, supra, 67 Cornell L.Rev. at pages 1072-1073.
See, e.g., Minnesota Statutes Annotated section 179.63(11) (1981) (firefighters, peace officers, guards at correctional facilities), Oregon Revised Statutes section 243.736 (1979) (firefighters, police officers and guards at correctional or mental health institutions); Pennsylvania Statutes Annotated, title 43, section 1101.1001 (guards at correctional or mental health institutions and employees necessary to the functioning of the courts). For a further discussion of these provisions, see Hanslowe & Acierno, The Law and Theory of Strike by Government Employees, supra, 67 Cornell L.Rev. 1055, 1079-1083.
See also Burton & Kinder, supra, 79 Yale L.J. at page 437 (advocating a presumption of illegality in strikes involving truly essential services, thereby relieving the state of the burden to demonstrate the elements necessary for an injunction).
See, e.g., Alaska Statutes section 23.40.200(c) (strikes by most public employees may not be enjoined unless it can be shown that it has begun to threaten the health, safety and welfare of the public); Oregon Revised Statutes section 243.726(3)(a) (injunctive relief available when strike creates a clear and present danger or threat to the health, safety or welfare of the public); Pennsylvania Statutes Annotated, title 43, section 1101.1003 (injunctive relief available when strike creates a clear and present danger or threats to the health, safety or welfare of the public); Wisconsin Statutes Annotated section 111.70(7m)(b) (injunctive relief available if strike poses an imminent threat to the public health or safety). See also School District for City of Holland v. Holland Educ. Ass’n (1968) 348 Mich. 314 [157 N.W.2d 206, 210] (Mich. Supreme Ct., in teachers strike cases, declaring state’s policy is not “to issue injunctions in labor disputes absent a showing of violence, irreparable injury, or breach [586]of the peace”); Timberlane Reg. Sch. Dist. v. Timberlane Reg. Ed. Ass’n (1974) 114 N.H. 245 [317 A.2d 555, 559] (N.H. Supreme Ct. refused to rule on the legality of teachers’ strikes but stated that in determining whether to issue a strike injunction, a court should consider “whether the public health, safety and welfare will be substantially harmed if the strike is allowed to continue.”). The Federal Labor Management Relations Act of 1947 (29 U.S.C. §§ 141-187), follows a similar approach with respect to private sector strikes. It empowers the President to direct the Attorney General to enjoin a threatened or actual strike if it affects an industry involved in interstate commerce and if permitted to occur or continue would imperil the national health or safety. (29 U.S.C. §§ 176-180.)
Legislation in several states already requires the courts to make this precise determination. (See, e.g., the relevant statutory provisions in Alaska, Ore., Pa. and Wis.) For just one example, under the Pennsylvania Public Employee Relations Act, public employees are not prohibited from striking after they have submitted to mediation and fact finding, unless or until such a strike creates a clear and present danger or threat to the health, safety and welfare of the public. (Pa. Stat. Ann., tit. 43, § 1101.1003.) In such cases, the employer may petition for equitable relief, including injunctions, and is entitled to relief if the court finds that the strike creates the danger or threat. (Id.) The Pennsylvania courts have applied this standard to several classes of public employees. (See, e.g., Bethel Park Sch. v. Bethel Park Fed. ofTchrs. 1607, Am. Fed’n of Teachers (1980) 54 P. Commw. 49, 52 [420 A.2d 18] (teacher’s strike constituted a clear and present danger to the public’s health, safety and welfare and school district entitled to back-to-work order in view of potential losses of state subsidies, instructional days vocational job, higher education opportunities, counseling, social and health services, extracurricular enrichment programs and employees’ work opportunities and wages); Bristol Township Education Ass’n v. School District (1974) 14 Pa. Commw. 463, 468-470 [322 A.2d 767] (school district entitled to injunction against teacher’s strike under similar circumstances); Highland Sewer and Water Auth. v. Local Union 459, I.B.E.W. (1973) 67 Pa. D. & C.2d 564, 565-567 (sewer and water authority not entitled to injunction forcing striking employees back to work since there was no clear and present danger in view of the fact that the services provided by the authority could still be performed during the strike, apparently by supervisors, with relatively little inconvenience).
Had such a showing been made, the trial court would then have had the authority to issue an injunction and declare the strike illegal. In cases involving sanitation strikes, it is often the length of the strike which will ultimately require issuance of an injunction. (See, e.g., Highland Sewer and Water Auth. v. Local Union 459, I.B.E.W., supra, 67 Pa. D. & C.2d 564, 565-567.) In addition, if particular jobs performed by striking sanitation or other public employees require unique skills and training, it is conceivable that a public agency might be unable to find adequate replacements. In the instant matter, however, replacement personnel adequately maintained needed sanitation services without any significant threat of harm to the public. Further, the District’s allegations of vandalism by the strikers (see fn. 4, ante), while perhaps citing individual illegal acts, were by no means enough to render the entire strike illegal or even a substantial public threat.
The trial court in this matter had no reason to make a finding regarding the threat to public health and safety posed by the strike. The court merely relied on prior Court of Appeal opinions, which had held that public employee strikes were per se illegal in the absence of a specific statutory grant. In the future, trial courts will clearly be required to make such a finding. In these cases, the scope of appellate review will ordinarily be limited to determining whether reasonable grounds existed for the trial court’s decision.
In upholding the National Labor Relations Act against constitutional attack, the United States Supreme Court recognized that the right of employees to organize for the purpose of collective bargaining is fundamental. (Labor Board v. Jones & Laughlin (1937) 301 U.S. 1, 33 [81 L.Ed. 893, 909, 57 S.Ct. 615, 108 A.L.R. 1352].)
It is also axiomatic that employees form and join labor organizations to protect their interests in labor disputes, and the United States Supreme Court has long recognized that “[i]n the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. [Citations.]” (Thornhill v. Alabama (1940) 310 U.S. 88, 102 [84 L.Ed. [588109]3, 1102, 60 S.Ct. 736].) In addition, whenever a labor organization undertakes a concerted activity, its members exercise their right to assemble, and organizational activity has been held to be a lawful exercise of that right. (Thomas v. Collins (1945) 323 U.S. 516 [89 L.Ed. 430, 65 S.Ct. 315].)
The freedoms of speech and assembly are applicable to the states through the Fourteenth Amendment (Hague v. C. I. O. (1939) 307 U.S. 496 [83 L.Ed. 1493, 59 S.Ct. 954]), and may be exercised in an economic context. As explained by the United States Supreme Court in N.A.A. C.P. v. Alabama: “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. [Citations.] It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. [Citations.] Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” (N.A.A.C.P. v. Alabama, supra, 357 U.S. 449, 460 [2 L.Ed.2d 1488, 1498, 78 S.Ct. 1163].)
As stated in the United States Supreme Court in Dorchy v. Kansas: “Neither the common law nor the Fourteenth Amendment confers the absolute right to strike.” (,Dorchy v. Kansas (1926) 272 U.S. 306, 311 [71 L.Ed. 248, 269, 47 S.Ct. 86].) Similarly, we do not find that the comparable personal freedoms guaranteed by the California Constitution confer an absolute right to strike. (See, e.g., In re Porterfield (1946) 28 Cal.2d 91, 114 [168 P.2d 706, 167 A.L.R. 675].)
Contrary to the characterization of our dissenting colleague, we neither applaud nor disapprove of strikes by public employees as a matter of social policy, for in the present state of the law that is not our function. The old rule in this state, to the effect that strikes by public employees are unlawful, rested expressly upon the premise that wages and conditions of employment for public employees may only be set by unilateral action of the public employer, and that collective bargaining for such employees in itself was contrary to public policy. It is the Legislature which has removed the underpinnings from the old rule, by sanctioning a system of collective bargaining for local government employees. At the same time, the Legislature has maintained a stony silence regarding the status of public employee strikes under the new statutory scheme. To the extent that we examine alternative justifications which have been asserted in support of a ban on such strikes, we do so only to determine whether there are any such justifications which are so compelling as to require acceptance by the courts even in the absence of legislative action. We find an affirmative answer only as regards those strikes which imperil public health or safety. As to other strikes, we conclude that the policy questions involved are highly debatable, and best left to the legislative branch in the first instance.
We find nothing in the dissenting opinion which detracts from this logic. The “cogent analysis” upon which the dissent relies for “the various rationales underlying the ‘no strike’ rule” (post, p. 610) refers nakedly to “differences in the employment relationship” between public and private sectors, and to “the preservation of a system of government in the ambit of public employment and the proscription of practices not compatible with the public employer-employee relationship.” (Id., at p. 611.) What the significant differences are which require a different rule, or why strikes are incompatible with the employer-employee relationship in the public sector, we are not told. Surely judicial intervention in so complex an arena requires greater justification than that.
The dissent decries also what it perceives to be the ambiguity in our rule prohibiting strikes which threaten public safety or health, and states a preference for those statutes which clearly define classes of employees who may or may not strike. The formulation we have adopted, however, is in accord with the rule in several states (ante, p. 585), and the dissent points to no evidence that such a rule is incapable of effective judicial administration. On the contrary, such a rule, which depends upon an assessment of public detriment from a particular strike, is entirely in accord with the traditional role of courts in equity. If the Legislature wishes to adopt a different rule, of course it may do so.
The trial court relied upon Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100 [140 Cal.Rptr. 41], which held that the conduct of an illegal strike was a tort for which damages may be recovered. Since we have held that the strike in this case was not illegal, we need not consider the correctness of that decision.