Gowanlock v. Turner

267 P.2d 310, 42 Cal. 2d 296, 1954 Cal. LEXIS 173

• Court: California Supreme Court
• Decided: February 24, 1954
• Docket: S. F. 18593, 18640
• Status: Published

Opinions

EDMONDS, J.

Several employees of the municipal railway of the city and county of San Francisco, on behalf of themselves and all other employees similarly situated, sued for writs of mandate and for declaratory relief. Named as defendants are the manager of utilities of the public utilities commission, the members of the civil service commission and its secretary, and the controller. Joseph Robinson, on behalf of the taxpayers of the city and county, has filed a complaint in intervention in opposition to the employees’ complaint.

By this action, the employees principally seek to obtain a determination as to their right to have work for certain minimum hours. One theory of the complaint, based upon section 125 of the charter of the city and county, is that every operating employee is entitled to receive compensation for a minimum of eight hours of work in each working day. An alternative theory is that section 151.3 of the charter, which establishes a method of computing wages based upon the wage schedules of certain other street railway systems, requires the consideration of any minimum wage guarantees included in such schedules.

According to the stipulated facts, the streetcars and coaches of the municipal railway are operated over designated routes on schedules arranged by the manager of utilities and approved by the public utilities commission. These schedules have “straight time” runs, which require the continuous services of an operator for a period which may be more or less than eight hours, and “split time” runs, during which there is a period when the operator is off duty. “Split time” runs vary in the number of hours worked as well as in their total elapsed time, termed “range time,” which generally is less than 10 hours. Work assignments are made on the basis of selection by the employees, in order of seniority.

It is necessary from the standpoint of satisfactory operation of the municipal railway and a usual practice among street railways throughout the country to employ more operators than there are runs. Standby employees must be available in case of absences and to handle unforeseen demands for increased transportation facilities. The employees who supply these needs are those who, for one reason or another, do not have a regular run.

An extra employee is assigned to the division headquarters he selects. He is required to report at a designated time to a dispatcher who assigns him to the run of an absentee, or to a location at which he collects fares from passengers as they board a ear or bus. In the event that no work is available, the dispatcher may designate a later report time, or he may dispense with the employee’s services for that day.

An operator who is given no work on a particular day is entitled to compensation for the time he spent in reporting. Although some of the men on the extra list do not have work for eight hours each day, it is the policy of the manager of utilities to assign duties to the extent that, throughout the period of two weeks, each employee shall have received compensation equivalent to the wages he would have earned had he worked 40 hours per week.

The present action primarily concerns these extra men. However, the complaint indicates that it is intended to present the rights of some of the operators assigned to regular runs of less than eight hours per day.

Five causes of action were pleaded. Two of them were determined adversely to the employees in the trial court and they are no longer in issue.

In the first count, based upon section 125 of the city charter, the employees seek a writ of mandate to compel the manager of utilities to approve and transmit to the civil service commission payrolls crediting each employee with a minimum of eight' hours of work for each working day. By the • fourth count, they ask the court to compel the civil service commission to certify to the board of supervisors a wage schedule which guarantees minimum wages and hours of employment for the operating personnel. The fifth count reiterates the allegations of the preceding ones and seeks a declaratory judgment in accordance with them. The appeal of the city officials and the intervener is from a judgment in favor of the employees upon each of these causes of action.

The appellants take the position that section 125 of the charter provides only a formula for the payment of overtime and does not establish maximum or minimum hours of work. Furthermore, they argue, the judgment is too uncertain in its terms to be capable of enforcement. The respondent employees are without standing to bring this action, the appellants also assert, and the city officials named in the judgment are not the proper parties against whom such a judgment may be given.

Since 1925, section 125 of the charter has read in part as follows: “Persons employed as platform men or bus operators in the operating department of the municipal railway system shall be subject to the following conditions of employment: The basic hours of labor shall be eight hours, to be completed within ten consecutive hours; there shall be one day of rest in each week of seven days; all labor performed in excess of eight hours in any one day, or six days in any one week, shall be paid for at the rate of time and one-half.” According to the respondents, this provision guarantees the employees eight hours of work within a range of 10 hours upon six days of each week, with pay for eight hours even if the work assignment is for less than that time on any particular day. The city contends that the only purpose of section 125 is to specify the rate of pay for all hours in excess of eight within 10 hours and for those worked after the expiration of 10 hours in any one day.

The charter provision does nothing more than to specify the basis of compensation for employees. It declares that overtime shall be paid for all work done after eight hours and also after the lapse of 10 hours of actual service. Labor performed in excess of six days in any one week must be paid for at the rate of time and one-half.

The requirements of a statute are directory, not mandatory, unless means be provided for its enforcement. The charter includes no means of enforcing the requirement that all labor performed in excess of eight hours in any one day, all labor performed after the span of 10 hours in any one day, and all labor performed in excess of six days in any one week “shall be paid for at the rate of time and one-half.” No requirement is laid upon the city to pay for eight hours of work on a given day or 48 hours per week regardless of the duties performed.

The same construction was placed upon a federal statute which declared that “eight hours shall constitute a day’s work for all laborers, workmen, and mechanics now employed, or who may be hereafter employed, by or on behalf of the government of the United States.” (Act of June 25, 1868, ch. 72; 15 Stats.L. 77.) This legislation, said the court, constituted only a direction by the government to its agents, and not a prohibition of the making of contracts which fixed a different length of time for daily service; “the government officer is not prohibited . , . from agreeing, when it is proper, that a less number of hours than eight shall be accepted as a day’s work.” (United States v. Martin, 94 U.S. 400, 403 [24 L.Ed. 128].) A Massachusetts law was similarly interpreted. (Woods v. City of Woburn, 220 Mass. 416 [107 N.E. 985, Ann.Cas. 1917A 492].)

The respondents rely upon Chatfield v. City of Seattle, 198 Wash. 179 [88 P.2d 582, 121 A.L.R 1279]; Goss v. Justice of District Court of Holyoke, 302 Mass. 148 [18 N.E.2d 546] ; and Graham v. City of New York, 167 N.Y. 85 [60 N.E. 331]. The opinion in none of them states the language of the statute or ordinance being considered, and the court’s conclusions necessarily were based upon the legislation before it.

In 1924 and 1925, when section 125 of the charter was amended, section 33 of article XVI declared: “No deputy, clerk, or other employee of the City and County shall be paid for a greater time than that covered by his actual service.”¹ It is reasonable to conclude that if the purpose of the proponents of the amendment was to change that basic provision, the new section would have so stated in no uncertain terms. The failure to do so shows a legislative intent to specify a basis of compensation for railroad workers not in conflict with the existing mandate of the charter prohibiting payment for service not performed.

Another provision of the old charter provided for the wages and hours of labor of employees of railroads which operated under franchises granted by the city and county. It read: “Every franchise shall provide that employees of the person or company or corporation operating a street railroad shall be paid not less than three dollars a day and that eight hours shall be the maximum hours of labor in any calendar day, the same to be completed within ten hours; provided, that nothing in this section shall be construed to prohibit overtime employment, wages for such employment to be paid at one and one half times the said rate of wages proportionate to each hour of such extra service.”² (Art. Ill, ch. 2, §7b.) This section in clear and unmistakable terms specifies a minimum wage and maximum hours of work, overtime employment being allowed if paid for at time and one-half. With these requirements laid upon railways privately owned, the omission from the 1925 amendment of similar provisions in regard to the municipal railway may well be taken as evidence that the new proposal was not intended to guarantee either a particular amount of wages or a work day of a given number of hours.

The city officials in charge of the municipal railway consistently have operated it with an administrative interpretation of the charter as prescribing no guarantee of wages or hours of labor. At the time the amendment was adopted, the superintendent of the railway submitted a report to the board of public works, then in charge of its operations, giving an estimate of the railway’s needs in terms of personnel and wages. Shortly thereafter, at the superintendent’s request, the president of Local 518, one of the sponsors of the amendment, submitted a written analysis of it in which he described the enactment as providing only a basis for compensation.³

Following this correspondence, a number of conferences were held, attended by city officials and representatives of the men. At that time the city attorney rendered an opinion in which he said in part: “Most legislation limiting the hours of employees and restricting the number of days a week upon which labor may be performed, is adopted upon the theory that the shortening of time of labor promotes the health and comfort of the employe, and therefore, produces greater efficiency. But it is manifest from the very language of section 20 that it does not restrict the hours of labor for that reason. It creates a basic day and a basic week for the purpose of fixing compensation.”

Shortly thereafter, the board of public works adopted a resolution directing the superintendent of the railway to arrange the' schedules so that no platform man or bus operator would be employed on the seventh consecutive day (except men on the extra list who had worked less than 48 hours in six days; all work on the seventh day to be paid for at time and one-half); that a minimum of overtime would be required of an employee who worked eight hours in any given day,- and to fix 11 hours as the maximum range to be used.

In 1932, the manager of the railway issued a bulletin which stated: “Commencing Monday, April 25, . . . no allowance will be made in the way of overtime for runs which extend beyond a range of ten (10) hours.” This rule was revoked by a new bulletin issued in 1935 which allowed overtime “for runs which extend beyond a range of ten (10) hours.”

William H. Scott, now general manager of the railway, testified that from 1917 until the creation of the present public utilities commission in 1932, he represented the railway in all labor negotiations. During that period of time, he said, he was never confronted with any demands based upon a guaranteed eight-hour day. The first time such a demand was made by any employee of the railway was in the spring of 1949.

From 1932 to 1945, Edward G. Cahill was manager of utilities. In that capacity it was his duty to certify payrolls of the railway. He testified that the 1932 bulletin did not come to his attention until sometime after its issuance, and late in 1934 he was approached by union representatives concerning it. After investigation he recommended to the public utilities commission that it be changed. The bulletin of 1935 was then issued.

During those discussions with the union representatives, Cahill said, no claim was made by them that the men were entitled to an eight-hour day by virtue of the charter provision. Henry S. Foley, employed by the municipal railway for approximately 33 years preceding 1951, was one of those representatives. According to his testimony, in 1946 the city and county controller notified the railway management they would have to discontinue paying for “dead time”; at that time operators whose runs finished within 15 minutes of eight hours were paid' for the full eight hours. Subsequently, Foley requested reinstatement of the practice of allowing eight hours’ pay for such runs.

William H. McRobbie, who has been an employee of the municipal railway for a number of years and a member of the same union as Mr. Foley, testified as to negotiations with city officials concerning the wage schedules. A committee of which he was a member met the mayor and the city attorney and discussed the question as to the legality of payment for work performed in excess of 10 consecutive hours. At that time, MeRobbie said, the city attorney orally stated that, in his opinion, payment for such services was a legal charge against the city. Two weeks later, the 1935 bulletin restoring range time was issued. Asked if at that meeting there was any assertion that the men, by virtue of the charter, were afforded a guarantee of eight hours a day, he said, “No, there was no assertion that ... all the men would be guaranteed eight hours a day; however, we did contend that the regular runs should be eight hours and any work performed in excess of the ten hours spread should be paid for at the rate of time and a half; that was all that was discussed. ’ ’

The employees attach some significance to two items which they suggest show an administrative interpretation in favor of an eight-hour guaranteed workday. In March, 1935, the superintendent of the municipal railway wrote a letter to the then acting mayor of San Francisco in regard to the provisions of the new amendment to the charter. In estimated costs for an average month, the superintendent included : ‘ ‘ Cost for time allowed for runs under eight hours, $2,898.23. This item does not enter into Amendment 21.” The city explains this statement as having reference to management’s established practice prior to 1946 of paying a full eight hours’ pay for a regular run of seven hours and 45 minutes. This seems to be the only reasonable inference that can be drawn from the statement in view of the low amount stated, and the interpretations of the amendment by the city attorney and by the president of Local 518 at about the same time.

The second item consists of an unsigned memorandum dated September 4, 1925, entitled “Municipal Railway, San Francisco, data re working conditions of platform men.” This memorandum was prepared in response to a written request from another transit company and consists of a short summary of working conditions before and after the effective date of the amendment to the charter. The memorandum includes the following: “Previous to Charter amendment, schedules were made out on an eight hour day with no limits as to range, except that they were kept as near ten hours as possible. All regular runs under eight hours were paid full eight hours and time and one-half was paid for all time beyond eight hours and twenty minutes. Number of hours after Charter amendment 21? Conditions same as above, except that overtime is paid after eight hours instead of after eight hours and twenty minutes, and one [and one-] half time is also allowed after the ten hour range. . . .” (Emphasis added.) The statement concerning eight hours’ pay for all regular runs should be read in the light of the practice then in force of treating a regular run of seven hours and 45 minutes as the equivalent of a full eight hours regular run. Certainly, this does not support the finding that the “administrative construction adhered to throughout the years of Section 125 of the Charter is not in contravention of petitioner’s construction.”

The respondents contend, however, that even if section 125 does not guarantee to them a minimum working day, they are entitled to it under section 151.3⁴ which requires that the wages of platform employees and bus operators of the municipal railway be fixed annually at the average of “the two highest wage schedules in effect on July 1st of that year for platform employees and bus operators of other street railway systems in the State of California.” It is argued that “the average of the two highest wage schedules” includes the right to receive any guarantee of wages or hours included in such schedules.

The whole of section 151.3 is a qualification of section 151, which empowers the board of supervisors “to fix by ordinance from time to time ... all salaries, wages and compensations ... of all officers and employees” of the city and county. According to section 151.3, where there is established “a rate of pay for . . . groups or crafts through collective bargaining agreements with employers employing such groups or crafts, and such rate is recognized and paid throughout the industry and the establishments employing such groups or crafts in San Francisco, ’ ’ the civil service commission must certify to the board of supervisors the prevailing rates. “The board of supervisors shall thereupon revise the rates of pay for such crafts or groups accordingly.”

But the wages of the employees of the municipal railway cannot be fixed by that formula. For some years, nearly all of the public transportation service in San Francisco has been performed by the municipal railway, and, accordingly, there was no “prevailing rate of pay” established for street railway employees within the city and county. To set up a standard of wages, the second part of section 151.3 was added to provide a method of computing compensations based upon the average of the two highest wage schedules of other street railways in California. In effect, this portion of section 151.3 represents a further qualification of the general structure of wage and pay determinations, applicable to a specific group of employees of the city and county.

The appellants draw a distinction between the two portions of section 151.3 from the use of the term “rate of pay” in the earlier part, as distinguished from “wages” and “wage schedules” in the portion relating specifically to municipal railway employees. Although a distinction between those terms has been made (see Giannettino v. McGoldrick, 295 N.Y. 208 [66 N.E.2d 57, 59]; Jung v. City of New York, 76 N.Y.S.2d 235), clearly it was not intended here. The provisions relating to municipal railway employees use both “rate of pay” and “wages,” apparently interchangeably. (Of. subsections B, C, D, and E.) Both parts are aimed at providing standards of compensation for particular groups of city and county employees, and vary only as to the methods used in determining them.

In Adams v. Wolff, 84 Cal.App.2d 435 [190 P.2d 665], the constitutionality of section 151.3 was upheld. There, the question before the court was whether, in determining prevailing rates of pay for groups and crafts, the civil service commission was required to include pay for holidays and premium pay for night work. It was argued by the city that the section contemplates only a basic rate of pay and was not intended to govern working conditions. The court said: “It is probably true that section 151.3 relates only to the ‘basic’ rate of pay and does not relate to ‘working conditions. ’ But that in no way assists defendants. It is quite apparent that it was the intent of section 151.3 to give to the public employees of the type here involved the same take home pay received by private employees in the same industry. That means that when the public employees work on a night shift, or where a work week is interrupted by a holiday they are to receive the same pay that private employees would receive for work similarly performed. It is quite obvious that night shift pay and pay for holidays is a part of the ‘basic’ rate of pay, and is as much a part of the wage structure as the hourly wage itself.” (Pp. 444-445.)

Subsequently, in Adams v. City & County of San Francisco, 94 Cal.App.2d 586 [211 P.2d 368, 212 P.2d 272], the court considered the question of whether, under the general provisions of section 151.3, the right of employees to vacations and to sick and disability leaves was to be governed by the “prevailing rate of pay” of similar groups and crafts in the industry. It was held that the right to sick and disability leave was governed by other specific sections of the charter. But, on the authority of Adams v. Wolff, the court concluded that vacation pay, too, is an item of take home pay as defined in the earlier decision.

In both of the Adams cases, the court equated “basic rate of pay” with “take home pay,” but did not attempt to define either of those terms. It was recognized, however, that the apparent purpose of the section is to provide a method of computing the monetary remuneration to an employee, as distinguished from “fringe benefits,” or benefits derived from working conditions. The difficulty lies in deciding whether a particular item is to be deemed “pay” or some other type of benefit.

By the use of the word “rate,” the charter specifies a wage schedule made up by the measurement of one item on the basis of a unit or quantity of another.⁵ As applied to wages, it requires a computation of amount of compensation for a unit of work, in the case of municipal workers, being an hourly wage.

It is unnecessary to decide whether the Adams cases were properly decided. Arguably, holiday pay and provisions for paid vacations might be considered to be items required to be included within a computation of “basic rate of pay,” since ultimately, they have a bearing upon the amount of pay received for time actually worked, and sound accounting practice might require that they be so considered. However, at least insofar as municipal railway workers are concerned, specific provision for those items now is made by the charter. (§§151.3 [E], 151.4, 151.5.)

But a guarantee as to minimum hours of work does not affect the rate of an employee’s pay, that is, the amount of compensation per unit of work. It deals only with the number of hours of work to which an employee may claim to be entitled. Such a provision is without the scope of a charter section establishing a method of computing a basic “rate of pay” for employees.

This conclusion is strengthened by consideration of the practical results of a contrary construction of the charter. By section 151.3, the wages of municipal railway employees must be computed annually on the basis of the two highest wage schedules of other street railways in California established as of July 1st of each year. By section 150, payments of wages for such guaranteed minimum hours may not be made to an employee who did not work for that amount of time. To pay each employee for a minimum of eight hours per day, it would be necessary to revise the entire operating schedule to provide work for such hours, and to revise it continually with every change in guaranteed hours of those wage schedules to which reference would be made. The evidence shows that, particularly in the case of extra men, such realignment of schedules would be extremely difficult and costly. Certainly there is no reasonable basis for holding that, in adopting the charter section, the people intended such a result.

The respondents suggest that, instead of attempting to effectuate any specific guarantee of hours, the city officials should assign a monetary value to such a benefit and average it with the wages stated in the schedules consulted. Although they recognize that such a process would require “considerable consideration before an average could be struck between diverse systems of guarantees and diverse wage provisions,” they assert that if the sole purpose of the section were “to add two rates of pay, divide by two, and then establish the result as the ‘hourly rate of pay,’ ” there would be no need to entrust that function to the board of supervisors, the highest administrative agency of the city and county.

But if this contention were sustained, under like principles, the board should place a money value upon all other benefits received by employees under such schedules, and also upon similar benefits guaranteed under the charter of the city and county, and fix the wage schedule for the municipal railway accordingly. Such a construction of the section would impose the vast, if not impractical or impossible, burden upon the board of evaluating an endless variety of benefits. It is not unreasonable to construe the charter as placing upon the board a simple averaging process. It has the sole authority to fix wages and salaries and, although it generally is vested with wide discretion in computing them, section 151.3 is a direct limitation upon that power. Moreover, in the first part of section 151.3, the board is directed to revise the rates of pay of groups of crafts in accordance with the rates certified to it by the civil service commission, under circumstances allowing no room for discretion.

In view of these conclusions, it is unnecessary to consider the points raised by the appellants in regard to procedural questions.

The judgment is reversed.

Shenk, J., Sehauer, J., and Spence, J., concurred.

1 Section 33 was a part of the former charter from its inception (Stats. 1899, eh. 2 of Res., p. 241, at p. 364) and continued therein, unchanged, until that charter was superseded by the new charter in 1932. It was carried into section 150 of the new charter, enlarged to include officers. (Stats. 1931, eh. 56 of Res., p. 2973, at p. 3066.)

2 Added to the charter by the Statutes of 1911, eh. 25 of Res., p. 1661, at p. 1694. It continued unchanged during the life of the former charter. It was a part of that charter in 1924 and 1925.

3 “Our interpretation of the . . . [amendment] and also the opinion of legal minds with whom we have consulted is that the stipulations contained therein merely provide a basis of compensation and do not prevent the performance of any labor beyond the limitations described.

“Supplementary to our opinion we refer you to the Adamson Eight Hour Law for Trainmen which while not identical, is in many respects similar to Charter Amendment No. 21.

“We might also refer you to employment in many industries where the hours of labor must be stretched over a range that will supply the requirements of all concerned; in which event, the employer is subject to a penalty similar to that affixed by Amendment No. 21.

“As an illustration of our opinion as to how the law would apply where the ten hour limit as set forth in the Amendment hás been exceeded . . . the crew working run [15A] shall be paid straight time for work actually performed ... 7 hours and 5 minutes, and, for all work actually performed beyond the ten hours range, which [will be] ... 47 minutes, they shall be paid at the rate of time and one-half of one hours and eleven minutes; making a total of 8 hours and 16 minutes.

“The other feature of the amendment relative to one day of rest in seven may be construed in this manner.

“You will note that the amendment establishes eight hours as being the basic day and that therefor an employee working less than eight hours in any one day is not subject to this portion of the Amendment and may be permitted to work on the seventh day at straight time.

“This may continue until such employee has worked 208 hours which is equivalent to 26 eight hour days, after which, the overtime rate shall prevail.

“Providing that the time consumed in putting in the 208 hours shall have exceeded 26 days in one month.”

4 The portion of the section relating to municipal railway employees provides:

‘‘ Notwithstanding the provisions of section 151 or any other provisions of this charter the wages of platform employees and bus operators of the municipal railway shall be determined and fixed, annually, as follows:

“ (A) On or before the second Monday of July of each year the civil service commission shall certify to the board of supervisors the two highest wage schedules in effect on July 1st of that year for platform employees and bus operators of other street railway systems in the State of California;

“ (B) The board of supervisors shall thereupon fix wage schedules for platform employees and bus operators of the municipal railway which shall be the average of the two highest wage schedules so certified by the civil service commission; provided, if the average of the two highest wage schedules shall be less than the rates of pay fixed for such service in the salary standardization ordinance adopted by the board of supervisors on March 18, 1946, the board of supervisors shall fix wage schedules for such service which shall be the same as the rates fixed for such service in the said ordinance;

“(C) When, in addition to their usual duties, such employees are assigned duties of instructors of platform employees or bus operators they shall receive twenty (20c) cents per hour above the rates of pay fixed for platform employees and bus operators as herein provided;

“(D) The rates of pay so fixed for platform employees and bus operators as herein provided shall be effective from July 1st of the fiscal year in which such rates of pay are certified by the civil service commission;

“(E) Platform employees and bus operators shall be paid one and one-half times the rate of pay fixed as herein provided for all work performed on six days specified as holidays by ordinance of the board of supervisors for such employees.”

5 Webster’s New International Dictionary (2d ed. 1948) gives this definition of the word “rate”: “3. Quantity, amount, or degree of a thing measured per unit of something else; . . . Amount of payment or charge based on some other amount, as in money obligations; as, the rate of wages per week; ...”