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 as conductors after a training period of well under one year. This is supported by their own employment records and the testimony of their operating managers. Train service employees are given 13 or 14 weeks of comprehensive training in 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 student/training requirements, they begin their careers as conductors.⁷

The respondents assert that this system produces uniformly trained, well-qualified conductors, who have 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 suffering financial hardship, 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. They have furnished considerable testimony to support these assertions. The respondents also 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.

Although these contentions are not without merit, as the ALJ stated in his Ruling denying that motion, they are not dispositive of the matter of conductor qualification requirements. Moreover, the Commission is foreclosed under these circumstances from conceding federal preemption. Article III, section 3.5 of the California Constitution expressly provides that state administrative agencies may not 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 enforcement of Section 6906(b) would have the consequence of requiring them to employ unneeded brakemen for two years in order to qualify them for promotion, it is contrary to the terms of their collective bargaining agreements, which in turn conflicts with Section 6900.5 by limiting its scope.¹⁰

As the California Supreme Court explained in Rees v. Kizer, supra,

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. (46 Cal. 3d at 1002.)¹¹

It may well be that Section 6906 has become obsolete over time. We also recognize that enforcing Section 6906(b) may partially negate de facto Section 6900.5, a statute of broader scope. Nevertheless, the respondents must resort to a different forum to cure these infirmities, and we anticipate that they will do so. In the meantime, on the record before us, we find that permitting the status quo to be maintained for the period of any appeal would not compromise the safety of the respondents' employees or the general public.

⁷ Pursuant to federal regulatory requirements, these operating employees subsequently must also undergo periodic "efficiency testing," a term that refers to job performance tests conducted while they are operating trains.

⁸ This was enacted as Section 6900.5 of the Code.

⁹ Opening Brief, p. 3.

¹⁰ Section 6900.5 permits the number of train crew members to be established by collective bargaining agreements pursuant to the award in Federal Arbitration Board No. 282. Although crew size is established by the parties' collective bargaining agreements, UTU argues that those agreements do not settle the issue of employees' qualifications to become conductors. UTU Response to Respondents' Motion to Dismiss (October 18, 1999), pp. 3-4.

¹¹ Art. 3, § 3.5 of the Cal. Const. was enacted by initiative passed on June 6, 1978. The Southern Pacific, decision supra, is helpful in explaining why. The California Supreme Court in that decision ratified 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, 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.)

These principles, which drove the subsequent enactment of Article III, Section 3.5, explain the result we reach today: the power to invalidate a provision of state laws, no matter how quaint or archaic, clearly belongs to the Legislature and the courts alone.