Rivera v. Division of Industrial Welfare

• Decision Date: 10 September 1968
• Court: California Court of Appeals Court of Appeals
• Parties: , 1 Empl. Prac. Dec. P 9876 Angela RIVERA and Judy Graham, individually and on behalf of a class of persons similarly situated but too numerous to mention, Petitioners, v. DIVISION OF INDUSTRIAL WELFARE of the State of California, Albert C. Beeson, Director of the Department of Industrial Relations of the State of California, Alvin E. Weinberger, Presiding Judge, Superior Court in and for the City and County of San Francisco, Lloyd S. Nix, Presiding Judge, Superior Court in and for the County of Los Angeles, Respondents. Civ. 12023.

Page 739

71 Cal.Rptr. 739

265 Cal.App.2d 576, 1 Empl. Prac. Dec. P 9876

Angela RIVERA and Judy Graham, individually and on behalf of a class of persons similarly situated but too numerous to mention, Petitioners, v. DIVISION OF INDUSTRIAL WELFARE of the State of California, Albert C. Beeson, Director of the Department of Industrial Relations of the State of California, Alvin E. Weinberger, Presiding Judge, Superior Court in and for the City and County of San Francisco, Lloyd S. Nix, Presiding Judge, Superior Court in and for the County of Los Angeles, Respondents.

Civ. 12023.

Court of Appeal, Third District, California.

Sept. 10, 1968.

Rehearing Denied Oct. 9, 1968.

Hearing Denied Oct. 31, 1968.

Sheldon L. Greene, Clark F. Ide, John P. Kelley, Modesto, for petitioners.

Judge Charles S. Peery, Judge Alvin E. Weinberger, pro se, San Francisco, Judge Donald R. Wright, Judge Lloyd S. Nix, pro se, Los Angeles, for respondents.

Thomas C. Lynch, Atty. Gen., by Jay S. Kinderman, Deputy Atty. Gen., Bronson, Bronson & McKinnon, Athearn, Chandler & Hoffman, San Francisco, McDaniel & McDaniel, Robert L. Meyer, Los Angeles, for real parties in interest.

FRIEDMAN, Associate Justice.

This is a mandate action to compel the State Department of Industrial Relations and the Division of Industrial Welfare to enforce orders regulating minimum wages, maximum hours and working conditions of women and minors employed in agricultural and allied pursuits, also to compel vacation of partial restraints against enforcement which have been issued by the superior courts of San Francisco and Los Angeles. Petitioners Rivera and Graham are female agricultural workers who sue for themselves and on behalf of the class of women and minors employed by growers and packers affected by the wage orders.

The orders, three in number, were adopted by the State Industrial Welfare Commission on September 26, 1967, to become effective February 1, 1968. Order 8--68 (Cal.Admin.Code, tit. 8, § 11110) establishes wages, hours and working conditions for women and minors in industries handling products after harvest. Order 13--68 (ibid., § 11127) affects those working on the farm preparing agricultural products for market, Order 14--68 (ibid., § 11500), those engaged in farming operations. Generally, these orders establish a minimum wage rate of $1.65 per hour, but permit certain minors to be paid a minimum rate of $1.35 per hour. Wages for overtime, i.e., in excess of 40 hours per week, are one and one-half times the standard rates. These three orders were promulgated as part of a series of orders affecting women and minors employed in California industries generally.

Petitioners allege, and the Industrial Welfare Commission (which appears through the Attorney General) admits, that these three agricultural wage orders are not being enforced during this year of 1968. Petitioners charge that because of nonenforcement approximately 100,000 women and minors are being paid less than lawful minimum wages. Genesis of the enforcement agency's nonaction lies in three mandate actions filed by a number of employers and employer organizations on February 1, 1968, the very day the orders were to become effective. Two of these suits (actions Nos. 587891 and 587878) were filed in the San Francisco Superior Court and one (No. 925929) in the Los Angeles Superior Court. In these actions alternative writs of mandate were issued by stipulation, restraining the Division of Industrial Welfare from enforcing the wage orders against the suing employers, but providing for retroactive wage payments should the orders be eventually upheld. The Division of Industrial Welfare then adopted a policy of nonenforcement as to all employers covered by the three disputed orders. None of the superior court actions has reached the point of decision on the merits.

On behalf of the Industrial Welfare Commission, the Attorney General has appeared in the present action, joining in the petitioners' request for relief at the hands of this court. As real parties in interest, the employers who initiated the three superior court suits have appeared in opposition. The Division of Industrial Welfare and the Director of the Department of Industrial Relations, as well as the Los Angeles and San Francisco Superior Courts, have been named as respondents but have taken no position in this action.

In assuming jurisdiction we were mindful of the rule that a court of appeal does not ordinarily accept supervening jurisdiction involving a lower court action pending in another appellate district. (Waidley v. Superior Court (1942) 51 Cal.App.2d 690, 125 P.2d 507.) That rule is one of policy, adapted primarily to private litigation. The courts of appeal possess coequal jurisdiction with the Supreme Court to administer extraordinary relief without regard to the existence of appellate jurisdiction over a pending lawsuit to which the relief relates. (Cal.Const., art. VI, § 10; In re Davidson (1914) 167 Cal. 727, 141 P. 216.)

Here, weighty reasons of public interest and need impelled assumption of jurisdiction despite the two pending superior court actions. (Pitts v. Perluss (1962) 58 Cal.2d 824, 828, 27 Cal.Rptr. 19, 377 P.2d 83; Perry v. Jordan (1949) 34 Cal.2d 87, 90--91, 207 P.2d 47.) Orderly judicial review may be had without taking new evidence. The affected workers are many, their labor seasonal, their wage rates at the low end of the income scale, their entitlement to the new minimum rates in limbo. Continued uncertainty over labor costs plagues farmers and food processors. Because of agriculture's primacy in the state's economy, the interests of the affected economic groups and of the public are interwoven. These interests cannot abide the standard timetable of ordinary litigation without damage. They will be benefited by encasing in a single, accelerated decision the controversies now split among three separate lawsuits in two separate counties and two separate appellate districts.

The Industrial Welfare Commission is a five-member appointive board in the Division of Industrial Welfare of the State Department of Industrial Relations (Lab. Code, § 70). The division supplies staff and enforcement facilities. (Lab. Code, § 1193.5.) Section 1173, Labor Code, invests the commission with a continuing duty to ascertain the wages, hours and working conditions of women and minors. Section 1177 authorizes the commission to establish its own procedural rules. Section 1178 establishes a basic procedure for the adoption of commission regulations fixing minimum wages, maximum working hours and the working conditions of women and minors in the various industries of the state. ¹ The first basic requisite consists of preliminary investigations and recommendations by wage boards composed of employer and employee representatives in the affected industries plus a commission representative. Section 1180 declares that the proceedings of the wage boards shall be made a matter of record for the use of the commission. The second basic step consists of public hearings by the Industrial Welfare Commission. Section 1181 prescribes publication and mailing of notice of the time and place of the hearings. Section 1182 authorizes the commission to fix minimum wages, maximum working hours and standard labor conditions after the wage board conferences and public hearings. It fixes as the standard for a minimum wage that 'which shall not be less than a wage adequate to supply the necessary costs of proper living to, and maintain the health and welfare of such women and minors.' 'Health and welfare' is the standard which governs the fixing of maximum hours and of labor conditions. ² Section 1185 declares that the orders of the commission 'when promulgated in accordance with the provisions of this chapter' shall be valid and operative; section 1187, that the commission's findings of fact are conclusive in the absence of fraud; section 1190, that these provisions do not prevent judicial review of the commission's orders and regulations. Section 1204 declares that no order made under section 1182 shall be effective 'unless and until' compliance is had with section 1178. Section 1202 directs the Division of Labor Statistics and Research (an agency within the Department of Industrial Relations) to collect such statistics, data and information and make such investigations as the Industrial Welfare Commission may require.

The commission is authorized to deliberate in executive session before promulgating its orders. (Lab. Code, § 71.1.) All its records are open to public inspection. (Lab. Code, § 71.2.)

The Industrial Welfare Commission commenced proceedings for review of its statewide series of wage orders in 1966. In August and October of that year it designated 13 wage boards, two of which were concerned with the three orders in issue here. One board was directed to inquire into the subject matter of Order 8, regulating off-farm industries handling products after harvest, and Order 13, covering on-farm preparation of agricultural products. Another board was designated for Order 14, covering agricultural occupations. These boards held meetings and, with the other 11 wage boards, submitted recommendatory reports. All these reports were published by the commission in a 67-page pamphlet entitled 'Summary of Wage Board Recommendations.' This summary (which included a statement indicating availability of the full reports in 19 offices of the Division of Industrial Welfare) was mailed to approximately 1,800 interested persons throughout the state. Quite aside from the hearings required by statute, the commission scheduled a series of preliminary public hearings to take testimony on the wage boards' recommendations. Notices of these hearings were widely distributed by mail and by newspaper publication. Public hearings were held in Los Angeles, Fresno and San Francisco on March 27--31, 1967. One hundred sixty-six persons testified at...