Discussion

There is no serious dispute that the respondents are employing conductors in violation of the literal requirements of Section 6906. The respondents candidly admit that newly hired trainmen are generally promoted to conductors after a training period of well under one year. This admission is confirmed by their own employment records and the testimony of their operating managers. Train service employees are given 13 or 14 weeks of comprehensive training on all aspects of a trainman's job, including safety and operating rules, and make a number of student trips. They must also demonstrate their knowledge by passing written tests. When they have successfully satisfied these requirements, they are promoted to conductors.⁶

The respondents assert that this system produces uniformly trained, well-qualified conductors, who have ably demonstrated their ability to operate trains safely, as proven by uncontroverted evidence. At the same time, direct promotion of conductors in this fashion has restricted the availability of experienced brakemen who could qualify for promotion to conductors under Section 6906(b). Although there are still some qualified brakemen in train service because of "grandfather" provisions in collective bargaining agreements between the UTU and the respondents, their number is fast dwindling. There is no dispute that the number of qualified brakemen is insufficient to fulfill the need for new conductors.

The respondents assert that if Section 6906 is enforced, they will be unable to comply without causing severe disruption to their operations and interstate commerce, and without suffering financial hardship. They have furnished considerable testimony to support these assertions. We find that their arguments are convincing, particularly because the changes in train staffing and conductor promotion practices began more than a decade ago and could not easily be reversed after such a long period.

UTU's criticism of the respondents' current conductor promotion process is particularly puzzling to us because the changes in the promotion system were made pursuant to the terms of collective bargaining agreements UTU negotiated with the respondents. Both the "manning" (staffing) of trains and the process of qualifying and promoting employees to conductors are now governed by these agreements. The UTU's instigation of this investigation by reporting the respondents' unlawful employment practices to the Commission overlooks the fact that these parties are in contractual privity, and the UTU, as the trainmen's collective bargaining representative, should be considered to be estopped from complaining about the system.⁷ Nevertheless, having undertaken this investigation on our own motion, we must decide whether we should order the respondents to comply with Section 6906 despite the odd posture of the proceeding.

The respondents argue that we must not require them to comply with Section 6906, because the statute is unconstitutional, preempted by certain federal legislation, and inconsistent with the manning of trains permitted under California's Anti-Featherbedding Act.⁸ These are essentially the same arguments they offered unsuccessfully to support their motion to dismiss this proceeding. While their contentions are not without merit, as the ALJ stated in his Ruling denying that motion, we are legally foreclosed from considering them: Article III, section 3.5 of the California Constitution expressly renders state administrative agencies powerless to declare a statute to be unconstitutional, unenforceable or preempted by federal law, or to refuse to exercise their enforcement powers on such grounds, unless an appellate court has declared the statute to be unconstitutional or unenforceable. No appellate court has expressly invalidated Section 6906(b).

The respondents argue that Article III, section 3.5 does not bar us from refusing to enforce section 6906 because an agency may do so "(i) based on preemption or constitutional grounds where . . . an appellate court has blazed the trail; or (ii) if enforcement would result in violation of inconsistent state requirements."⁹ The respondents point out that the United States Supreme Court long ago declared a similar Texas statute to be unconstitutional in Smith v. Texas, 233 U.S. 630, 345 Ct. 681, 58 L.Ed. 1129 (1914), and that the California Attorney General even opined that Section 6906(a) was invalid (2 Ops. Atty. Gen. 157 (1943)). In urging that we have the power to invalidate Section 6906(b), the respondents rely upon Rees v. Kizer, 46 Cal.3d 996, 251 Cal.Rptr. 299 (1988), which states that Article III, Sec. 3.5 "cannot reasonably be construed to place a restriction on the authority of the legislature to limit the scope of its own enactments." (46 Cal.3d at 1002.) They assert that because adherence to Section 6906(b) would have the practical consequence of requiring them to employ unneeded brakemen to qualify them for promotion to conductors after two years, it is contrary to the terms of their collective bargaining agreement, and this, in turn, would conflict with Section 6900.5, limiting its scope.¹⁰

This line of reasoning is not persuasive. The respondents could, if necessary, qualify conductors under Section 6909, even if they had to employ more train service employees than required by contract. We will not go to great lengths to circumscribe the statute at issue, in view of the state constitutional prohibition against doing so. As the California Supreme Court explained in Rees,

Article III, section 3.5, which was enacted by the voters in 1978, was placed on the ballot by a unanimous vote of the legislature in apparent response to this court's decision in Southern Pac. Transportation Co. v. Public Utilities Com. (1976) 18 Cal.3d 308 . . . in which the majority held that the Public Utilities Commission had the power to declare a state statute unconstitutional. [Citations omitted.] The purpose of the amendment was to prevent agencies from using their own interpretation of the Constitution or federal law to thwart the mandates of the Legislature. (Id.)

This language not only requires us to act with restraint, but also points to the historical context for this requirement.

In Southern Pacific, supra, the California Supreme Court upheld this Commission's act of declaring invalid a provision of the California Public Utilities Code concerning the maintenance of railroad grade crossings for public use. In a learned dissent in that decision, the late Justice Mosk provided the rationale for the Legislature subsequently to place Article III, section 3.5 on the ballot:

. . .[N]o constitutional authority, express or implied, can be found in support of the PUC's assertion of power [by declaring the PU Code provision to be invalid.] This alone leads to a conclusion that the commission's act was ultra vires, but because of the importance of the issue it may be useful to explore underlying policy arguments sometimes advanced in an effort to justify the exercise of constitutional review by an administrative agency.

It may be urged that administrative agencies must be granted such power in order to avoid injustice in some cases. Obsolete and patently unconstitutional laws remain on the statute books and according to this argument they should be removed by the governmental body with the first opportunity to do so [italics added]. This is particularly desirable with regard to the PUC. . . .

It is true that if the commission lacks constitutional review power, an invalid statute will remain in effect during the interval between the PUC decision and this court's reviewing opinion. But on the other hand a time lag will also occur when the commission . . . erroneously declares a law unconstitutional: during the period before this court reverses the commission, legislation duly enacted by the representatives of the people of California will not be enforced. [Citations omitted.] The question, accordingly, is which time lag is the less undesirable: a period during which an unconstitutional law remains effective prior to court review, or a delay during which a valid legislative measure is rendered inoperative.

. . . [T]he resolution is not difficult. Laws passed by a legislature represent the will of the people, and courts in a democratic society are understandably reluctant to nullify that will. Consequently, in California as in all American jurisdictions, not only do courts presume that statutes are constitutional until clearly proven otherwise, but they normally will not decide constitutional challenges unless the responsibility is unavoidable. [Citations omitted.] When a court exercises such restraint, a statute of questionable validity may remain effective until revised by the Legislature or struck down in a later case in which the constitutional issue is unavoidable. But the belief is implicit in our system that any adverse effects of such a delay are less harmful than the consequences of a court's precipitous and erroneous decision that a statute is unconstitutional. A fortiori, the delay caused by an administrative agency's inability to render a decision on the constitutionality of a statute is preferable to the situation created by an erroneous administrative nullification of a legislative act. 18 Cal.3d 319-320.

We will not disregard the foundational principles for Article III, sec. 3.5 in order to achieve an easy result, even if our decision may appear in some respects to fly in the face of logic and reason. The power to invalidate a provision of state laws, no matter how quaint or archaic, belongs to the Legislature and the courts alone. Any effort by us to usurp that power would be ultra vires.

The record demonstrates that immediate enforcement of Section 6906 would cripple the respondents and devastate their operational and financial efficiency by suddenly imposing major changes on their train operations. Crews would have to change at the state's border, qualified employees would have to be relocated (if they could be found), and training programs would have to be modified or eliminated. We therefore anticipate that the respondents will require a reasonable period in which to find a way to comply with the law, or to bring their cause before the Legislature or the courts. Accordingly, we are delaying the effective date for implementation of our order for one year to enable the respondents to modify their operations and to seek a stay if necessary. On the record before us we find that allowing respondents a reasonable period of time to come into compliance with Section 6906 will not compromise the safety of the respondents' employees or the public.