Tobacco Documents Online

CI 4 5 6 13 14 15 16 17 18 19 20 21 22 23 24 25 ALAN C. DAVIS DUANE W. RENO VINCENT J. COURTNEY JR. DAVIS & RENO 182 Second Street, Fourth Floor San Francisco, California 94105 r--., .-- { , . E.~1 C•_C•u Telephone: (415) 543-1900 Attorneys for Plaintiffs and Petitioners IN THE SUPERIOR COURT COUNTY OF OF THE SAN STATE OF CALIFORNIA MATEO SAN MATEO COUNTY FIRE FIGHTERS ) LOCAL 2400, INTERNATIONAL ) -..ti.i~..v.. ~ Case No. ASSOCIATION OF FIRE FIGHTERS, ) AFL-CIO, MARK GREENE, KEVIN RUANE, ) ROBERT DAVIS, EARL CHINN, CORY ) MEMORANDUM OF POINTS AND TRAMMEL, RANDY HIMES, KURT ) AUTHORITIES IN SUPPORT HALLIDAY, JOHN ROEMER, AARON SAY, ) OF COMPLAINT FOR INJUNCTIVE JOHN S. MOLINELLI, JR., DOES ONE ) AND DECLARATORY RELIEF AND THROUGH ONE HUNDRED, ) FOR WRIT OF MANDATE AND ) DECLARATORY RELIEF Plaintiffs and Petitioners, ) } vs. ) } CITY OF SAN MATEO, RICHARD B. ) DELONG, as City Manager of the ) City of San Mateo, ARTHUR N. KORON ). as the Fire Chief of the City of ) San Mateo, ROES ONE THROUGH TEN, ) ) Defendants and Respondents. ) ) O w A. PRELIMINARY STATEMENT In these proceedings a labor ~ ~ 00 .j ~ union representing fire- fighters and nine successful firefighter applicants have filed a complaint challenging an "Employment Agreement" unilaterally imposed without negotiations with the union.

e n 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I As specifically set forth in the complaint and the eclarations, the "Employment Agreement" required all successful job applicants to commit to specific physical standards not ~ equired of other firefighters, and further required annual etesting. The "Employment Agreement" also contained a ledge that the applicants would not smoke on or off duty. he job applicants were all told that they would not be ired unless they agreed to sign the agreement. The "Employment greement" provided for automatic termination if the applicants ailed the annual retesting or violated the no smoking pledge. The union also joins other successful firefighter job applicants who have been denied employment on grounds f nepotism. A city manager's rule, which has never been pproved by the City Council, the Civil Service Commission r by the voters, precludes applicants from employment in he fire department if they have relatives who work for the ire department. In the case of John Molinelli, Jr., an ttempt was made by a top Fire Department official to obtain waiver of the City Manager's nepotism "rule". The waiver as denied by the City Manager. The union therefore seeks a writ of mandate ordering he City to hire John Molinelli, Jr., an action the city wou'_u ave taken but for the City Manager's actions. The union 0 W -11 lso seeks injunctive relief prohibiting the City from ~ .z nforcing the nepotism rule and prohibiting enforcement of tl-:,e ~ knilaterally imposed pre-employment contracts. Ix -2-

2 3 4 5 6 7 8 14 15 16 17 18 19 20 21 22 23 24 25 26 B. THE PREEMPLOYMENT CONTRACT IS AN UNDULY OPPRESSIVE AND UNCONSCIONABLE CONTRACT OF ADHESION, WHICH SHOULD BE DENIED ENFORCEMENT A contract of adhesion was defined in Neal v. State Farm Ins. Co. (1961) 188 Cal. App. 2d 690, 694, 10 Cal. Rptr. 781 when the court stated "the term signifies a standardized contract which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it." There is no serious question but that the "Employment Agreement" falls within this definition. The Respondents and Defendants drafted the agreement and offered it to applicants for employment on a "take it or leave it" basis, knowing full well that applicants had no bargaining strength and would not have until after they became employees and members of the bargining unit represented by Local 2400. Respondents drafted the contract knowing as well that its terms would deny applicants a substantial portion of the benefits of Local 2400's bilaterally negotiated Memorandum of Understanding. The Court apparently preferred to "bargain" with job applicants individually rather than deal with them as members of Local 2400. 0 W ~ Once it is determined that a contract is adhesive it W JD is necessary to apply the judicially established tests to 7) CD determine the issue of enforceability. In Graham v. Scissor=Tai1 Inc. (1981) 28 Cal. 3d 807, 171 Cal. Rptr. 604, 623 P. 2d 165, the California Supreme Court set forth the criteria for enforcement when it stated: -3-

4 A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C "(6a) Generally speaking, there are two judicially imposed limitations on the enforcement of adhesion contracts or provisions thereof. The first is that such a contract or provision which does not fall within the reasonable expectations of the weaker or "adhering" party will not be enforced against him. (See, e.g. Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 271-272 (54 Cal. Rptr. 104, 419 P. 2d 168); Steven v. Fidelity & Casualty Co. (1962) 58 Cal. 2d 862, 869-870 (27 Cal. Rptr. 172, 377 P.2d 284); Wheeler v. St. Joseph Hospital, supra, 63 Cal. App. 3d 345, 357; see generally S bert, supra, at pp. 305-306, and cases there cited.)18 (2b) The second--a principle of equity applicable to all contracts generally-- is that a contract or provision, even if consistent with the reasonable expectations of the parties, will be denied enforcement if, considered in its context, it is unduly oppressive or "unconscionable." (_See e.g. Steven, supra, 58 Cal.2d at pp. 878-879; Jacklich v. Baer (1943) 57 Cal. App. 2d 684 (135 P . 2d 1791 . )19" The Supreme Court further noted that another factor which may have a "profound and decisive effect on the reasonable expectations of the "adhering" party is the extent to which the contract in question may be said to be one affecting the public interest." See also Tunkl v. Regents of University of California (1963) 60 Cal. Cal. Rptr. 33, 383 P. 2d 441. // // // -4- 2d 92, 101, 32

A ~ 1 The tests established in Scissor-Tail support 2 plaintiffs' contention the "Employment Agreement" imposed 3 on job applicants in these proceedings should not be enforced. 4 Given the public interest in having working conditions such 5 as those addressed in the pre-employment contract determined 6 through the meet and confer process set forth in Government 7 Code Section 3500 et se . CThe Meyers-Milias-Brown Act), it 8 cannot be concluded that job applicants or adhering parties 9 were reasonably expected to waive substantial rights 10 which they would otherwise have under state law. Nor can it be 11 concluded that the job applicants would agree to the establishing 12 of working conditions in a manner totally inconsistent with the 13 method provided for and required by the Meyers-Milias-Brown 14 Act. 15 And, applying the second test mentioned in Scissor- 16 Tail, supra it is apparent that even where the provisions of 17 the pre-employment contract were within the reasonable 18 expectations of the parties, the agreement should be denied 19 enforcement because the terms are unconscionable. The terms 20 are unduly oppressive since they infringe upon constitutional 21 rights and public policy and are presented to applicants as 22 non-negotiable conditions which must be adhered to at a time 23 when they do not have representation and protection from 24 O Local 2400. W ~ 25 C.~ // 26 // ~ N *,a,i II -5-

r A n 1 2 3 4 5 6 14 15 16 17 18 19 20 21 22 23 24 25 26 The Meyers-Milias-Brown Act clearly intended that the working conditions of employees represented pursuant to Government Code Section 3500 et seq. should be determined through the meet and confer process and employees ought not to be denied this protection because they are compelled to sign unconscionable pre-employment contracts such as that drafted by Defendants and Respondents. The legislature has also addressed the problem of unconscionable contracts in adopting Civil Code Section 1670.5, which states: "(a) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any uncoriscionable result." "Cb) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity"to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination. (effective September 19, 1979)_" Section 1670.5 is intended to allow the court to pass directly on the unconscionability of the contract or particular clause therein and to make a conclu- sion of law as to its unconscionability. The basic test is whether, in light of the general background and the needs of the particular case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of ~O ~ G.: .T -6-

C 1 2 3 4 5 6 14 15 16 17 18 19 20 21 22 23 24 25 26 the making of the contract. The principle is one of the prevention of oppression and unfair surprise and not of disturbance of allocation of risks because of superior bargaining power. (Legislative Committee Comment) " Thus, there is a statutory basis as well as judicial policy for determining that the pre-employment contract should not be enforced. The pre-employment agreement unilaterally imposed by the Respondents in these proceedings should be denied enforcement under both these policies. C. RIGHT TO PRIVACY--THE REQUIREMENT THAT PETITIONERS NOT SMOKE ON OR OFF DUTY ON PENALTY OF DISMISSAL IS A VIOLATION OF THE CONSTITUTIONAL RIGHT TO PRIVACY The employment contract provisions, particularly the requirement of the promise not to smoke, impinge upon several fundamental rights guaranteed by the U.S. Constitution. Smoking is a matter of personal preference involving a private choice which.is protected by the right all citizens have to privacy. The California Supreme Court, in White v. Davis (1975) 13 C. 3d 757, 120 Cal. Rptr. 94, 533 P. 2d 222, analyzed the rationale for an amendment to the California Constitution, citing the privacy arguments set forth in the State's election brochure: // "The right to privacy is an important American heritage essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is a compelling public need. . ." (Id., at 775) -7-

C n 1 2 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Here, the City of San Mateo must demonstrate a is no conceivable interest of a compelling nature which all other employees, who are not similarly affected. There will not be permitted to smoke either on or off the job, and treatment between newly hired fire department employees, who compelling interest which justifies the differentiation in would permit such an extensive infringement of the right to privacy of a single group. Even if the state were to show a compelling interest, the California Supreme Court has held that restrictions upon fundamental rights and personal liberties must be drawn with narrow specificity: "When the government seeks to limit those freedoms on the basis of legitimate 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." (Vogel v. County of Los Angeles (1967) 68 Cal. 2d 18, 22.) In the more recent case of City of Carmel-bv-the-Sea v. Young (hereinafter "Carmel") (_1970) 2 Cal. 3d 259 at 266, the Court relied upon the Vogel decision, expanding its application ~ beyong protection of First Amendment rights solely, when it w ~ stated: w .T "When the government seeks to require a limitation CJ of constitutional rights as a condition of public ZA employment, it bears the heavy burden of demonstrating -8-

C 1 2 3 the practical necessity of the limitation. The condition...must reasonably tend to further the purposes of the government...and the utility of imposing the condition must manifestly outweigh the impairment of the constitutional rights. (citation)" 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In the Carmel decision, the Court listed several' Supreme Court decisions which uphold the principle that personal liberties and fundamental human rights are entitled to protection against overbroad intrusion or regulation by the government. The Court further noted that these decisions were not limited merely to rights expressly mentioned in the Constitution, but also extended to basic values "implicit in the concept of ordered liberty." The Court pointed out that, where there is a "significant encroachment upon personal liberty," the state must show a compelling interest in order to support the law as necessary. A merely rational reason is not sufficient. If less drastic means can achieve the same basic purpose, those means must be employed." (.at page 268) The City of San Mateo cannot show a compelling need to impose a no smoking prohibition targeted at all newly hired firefighters. All other currently employed firefighters may ~ continue to smoke on or off duty. Nor was the no smoking rule .1 W U, adopted with the purpose of lessening the interference upon the ~. ~ rights of other non-smoking employees. This rule outlaws all ~~ smoking and still allows other smoking employees to interfere with the rights of these plaintiffs. Clearly, there can be no compelling -9-

C 1 2 3 4 5 6 7 8 13 14 15 16 17 18 19 20 21 22 23 24 25 26 interest in the imposition of such an ill-conceived rule. An injunction should issue accordingly. D. EQUAL PROTECTION--THE REQUIREMENT TO ADHERE TO TERMS OF THE PRE-EMPLOYMENT CONTRACT DENIES PLAINTIFFS/APPLICANTS EQUAL PROTECTION OF THE LAWS Both the United States Constitution and the California Constitution prohibit any state action which i;n effect wculd deny any person equal protection of the laws. The United States Constitution provides, in the Fourteenth Amendment, that: "No State shall...deny to any person within its jurisdiction the equal protection of the laws." The same provision is reflected in the California Constitution, Article 1, Section 7 La1 : "A person may not be deprived of life, liberty, or property without due process of laws or denied equal protection of the laws;. .." The requirement that new hires in the fire department sign a promise not to smoke on or off the job, and agree that failure to keep this promise constitutes cause for termination regardless of circumstances and that they agree to other working conditions more burdensome than those of all other city employees is a significant differentiation in the way these candidates for employment are treated in their employment relationship as compared to other firemen currently on the job, as well as other personnel of the same employer. This is precisely the type of differentiation // -10-