Hitchcock Transportation Co. v. Industrial Welfare Commission

I dissent. Four members of this court did not participate in California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200 [ 157 Cal.Rptr. 840 , 599 P.2d 31 ]. Yet apparently they conclude either that the case binds them or that it was correctly decided.

Dissenting in that case, I argued inter alia that the alleged error was not prejudicial to the complaining employers. ( 25 Cal.3d at p. 217 .) That also is true here, I believe. The majority in California Hotel & Motel held, however, that the employees should not be prejudiced. (See id., at p. 216.) In this case, unfortunately, the employees are seriously prejudiced by the judicially pronounced rule that in my view still is unsupportable.

In October 1976, a few days before the 1976 wage orders promulgated by the Industrial Welfare Commission (IWC or commission) were scheduled to go into effect, several employer organizations and individual employers (employers) in the transportation and amusement and recreation industries instituted these two mandate actions in the Kings County Superior Court, challenging the validity of orders 9-76 (transportation industry) and 10-76 (amusement and recreation industry). The superior court stayed the challenged wage orders pending the resolution of the actions, consolidated the cases for trial and ultimately concluded that the wage orders were invalid on numerous grounds. The IWC appealed from the judgments in favor of the employers. 1

While this case was pending on appeal, we rendered our decision in California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200 [ 157 Cal.Rptr. 840 , 599 P.2d 31 ]. We concluded that the IWC had misinterpreted Labor Code section 1177’s requirement relating to the preparation of a statement as to the basis of its orders when it promulgated order 5-76, a separate 1976 wage order covering the public housekeeping industry.

As…