Porter v. Quillin

• Citation: 123 Cal.App.3d 869,177 Cal.Rptr. 45
• Court: California Court of Appeals
• Decision Date: 24 September 1981
• Parties: , 25 Wage & Hour Cas. (BNA) 114 Dorothy PORTER, et al., Plaintiffs and Appellants, v. James L. QUILLIN, Labor Commissioner, Division of Labor Law Enforcement, Defendant and Respondent. Santa Clara Hospitality Industry, Inc., Intervenor and Respondent. Civ. 47987.

Page 45

177 Cal.Rptr. 45

123 Cal.App.3d 869, 25 Wage & Hour Cas. (BNA) 114

Dorothy PORTER, et al., Plaintiffs and Appellants, v. James L. QUILLIN, Labor Commissioner, Division of Labor Law Enforcement, Defendant and Respondent.

Santa Clara Hospitality Industry, Inc., Intervenor and Respondent.

Civ. 47987.

Court of Appeal, First District, Division 1, California.

Sept. 24, 1981.

Philip P. Bowe, Steven L. Stemerman, Davis, Cowell & Bowe, San Francisco, for plaintiffs and appellants.

Guy T. Gurney, Division of Labor Standards Enforcement, San Jose, for defendant and respondent.

M. Armon Cooper, Carol G. Perry, Hawkins & Cooper, San Francisco, for intervenor and respondent.

GRODIN, Associate Justice.

This appeal, from an order of the superior court denying a petition for writ of mandate, poses a perplexing and apparently novel question concerning the relationship between state labor standards of general application and the provisions of a collective bargaining agreement. Labor Code section 1182 empowers the Industrial Welfare Commission to establish minimum wages for all employees, and Labor Code section 450 provides that "(n)o employer, or agent or officer thereof, or any other person, shall compel or coerce any employee, or applicant for employment, to patronize his employer, or any other person, in the purchase of anything of value." The two sections, read together, have been interpreted to prohibit an employer in the restaurant business from requiring employees to accept meals in the employer's establishment as part of their minimum wage, absent "specific and prior voluntary employee consent." (California State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340, 348, 129 Cal.Rptr. 824.) The principal question presented here is whether a labor organization, authorized to represent all the employees in a bargaining unit pursuant to federal law, may provide that consent on a collective basis.

The question arose in the following manner. Hotel, Motel, Restaurant Employees and Bartenders Union Local 19 (the union) is the federal statutory bargaining representative for waiters and waitresses employed by members of the Santa Clara County Hospitality Industry, Inc. (hereinafter the Association). The collective bargaining agreement in effect at all relevant times provided in section 5(g) as follows: "If during the lifetime of this Agreement the California or Federal minimum wage should exceed any wage scale in existence at that time, the Employer is permitted to take meal credits up to the allowable maximums as set forth by the State and Federal laws for the difference in the two wage scales."

Effective January 1, 1979, federal and state minimum wages were increased by amounts which exceeded the then applicable wage scale for waiters and waitresses under the collective bargaining agreement. Accordingly, the employers covered by the agreement began to take meal credits pursuant to section 5(g). This meant that certain of the employees were paid at less than the minimum rate, and were required to accept the balance of the prescribed minimum in the form of meals provided by their employers.

At the time of these events, there was in effect an order of the Industrial Welfare Commission (IWC Order No. 5-76, section 10) which limited the amount at which meals may be valued and which allowed employers to credit meals toward their minimum wage obligations to employees only "pursuant to a voluntary written agreement between the employer and the employee."

At the same time, there was in effect a written policy of the commission (Policy/Procedure Memo 76-14) which allowed employers to treat a collective bargaining agreement as constituting the "voluntary written agreement" required by IWC Order No. 5-76. Thus, so far as the commission was concerned, section 5(g) of the collective bargaining agreement was valid and enforceable.

On July 18, 1979, several waiters and waitresses covered by the collective bargaining agreement, on behalf of themselves and others similarly situated, filed in the Superior Court for the County of Santa Clara a petition for writ of mandate to compel the Labor Commissioner to require an individual written waiver, signed by the employee affected thereby, before permitting deduction of meal credits from the employee's wages. They alleged that at the time the agreement was ratified they were neither members of the union nor employed by any contracting employers, and never individually consented to accept meals as a credit toward the minimum wage. James L. Quillin, Labor Commissioner, Division of Labor Law Enforcement, was named as respondent, and the Association was granted leave to intervene as a respondent as well. ¹ The trial court determined, in accordance with the position of the Labor Commissioner and the Association, that the collective bargaining agreement sufficed as authorization for all employees covered by the agreement, and entered judgment denying the writ. This appeal followed.

Discussion

The Labor Commissioner and the Association both invoke, in support of their position, the principle of exclusive representation which is central to federal labor law. Under that principle, "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes (are) the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment." (National Labor Relations Act, § 9(a), 29 U.S.C.A. § 159(a).) Normally, the collective agreement takes precedence over any conflicting individual contract of employment. (J. I. Case Co. v. Labor Board (1944) 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762.) "National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. The policy therefore extinguishes the individual employee's power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees." (NLRB v. Allis-Chalmers Mfg. Co. (1967) 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123.) Thus, in the absence of a violation of a union's duty of fair representation (Steele v. L. & N. R. Co. (1944) 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173), a union has the authority to bind the members of the bargaining unit to the terms of a collective agreement, whether or not they are members of the union, and whether or not they were employed in the bargaining unit at the time the agreement was entered into or ratified. (J. I. Case Co. v. Labor Board, supra, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762.)

Appellants, on the other hand, stress the significance of this state's policy, as declared in Whitlow, supra, 58 Cal.App.3d 340, 129 Cal.Rptr. 824, to the effect that the consent required to validate meal credits against the minimum wage must be "specific," "voluntary" and "prior". Insisting that these requirements can only be met by individual agreements, they contend, in effect, that section 5(g) of the collective agreement is invalid, or at least unenforceable, as to them. And, citing federal precedent to the effect that a collective bargaining agreement may not waive an employee's right to receive full payment of the federally prescribed minimum wage (Robertson v. Alaska Juneau Gold Mining Co. (9th Cir. 1946) 157 F.2d 876, cert. den., 331 U.S. 823, 67 S.Ct. 1314, 91 L.Ed. 1839, vacated on other grounds, 331 U.S. 793, 67 S.Ct. 1728, 91 L.Ed....