Opinion
8-25-1954
GARMON v. SAN DIEGO BUILDING TRADES COUNCIL et al. Civ. 4854.
Todd & Todd, San Francisco, Thomas Whelan and John T. Holt, San Diego, for appellants. Gray, Cary, Ames & Frye, James W. Archer and Ward W. Waddell, Jr., San Diego, for respondents.
GARMON
v.
SAN DIEGO BUILDING TRADES COUNCIL et al.
Aug. 25, 1954.
Rehearing Denied Sept. 20, 1954.
Hearing Granted Oct. 20, 1954.
Todd & Todd, San Francisco, Thomas Whelan and John T. Holt, San Diego, for appellants.
Gray, Cary, Ames & Frye, James W. Archer and Ward W. Waddell, Jr., San Diego, for respondents.
MUSSELL, Justice.
Plaintiffs, who are owners and proprietors as copartners of a lumber business operating under the name of Valley Lumber Company, brought this action on May 7, 1953, to enjoin defendants from picketing plaintiffs' place of business and for damages.
On or about November 15, 1952, Morris Collins, secretary of defendant San Diego Building Trades Council, called at plaintiffs' place of business in Escondido and requested plaintiffs to sign a union contract. The contract submitted required plaintiffs to employ union labor in that it required plaintiff's employees to be or become and remain members in good standing of defendant unions. Plaintiffs refused to sign this agreement, stating that they had no request from their men so to do. Thereafter Collins called on plaintiffs several times and was told that they were not ready to sign; that they did not know whether their employees wanted to become union members or not; and that Collins could discuss the matter with them.
Mr. Rutledge, plaintiffs' yard foreman, testified that on or about April 1, 1953, he was present when Mr. Garmon brought Collins into the yard to talk to the men; that Collins read the agreement to them and explained its provisions; that the men discussed it and decided at that time to leave it up to plaintiffs as to whether they 'wanted the union to enter'; that subsequent to this meeting a second meeting was held at which no representative of the management or unions was present and at which the men definitely decided not to join the union; that plaintiffs had informed their employees that it was up to them to decide whether they wished to join the union; and that about the middle of April he informed the union representatives of the decision of the men not to become union members.
Plaintiff William Garmon testified that after Collins talked with the men he stated they 'were interested'; that a few days later he told Collins that as far as he knew, the men were perfectly satisfied and that he saw no advantage to plaintiffs in signing a contract; that the men had not requested such action; that some time in April a Mr. Taylor (a union representative) came in and 'wanted to know if we were ready to sign up their contract with them and I told him no and he says, 'Well, we are just going to have to do this the hard way'. I told him, 'You will just have to do it. We are not willing to sign any contract and if that is the way you want to do it, you will just have to do it the hard way.' So he left and he said, 'I will see you with a picket tomorrow morning''; that the next morning, April 28th, a picket was placed near the entrance to plaintiffs' yard but on the highway and not on plaintiffs' property. The picket carried a banner of moderate size on which appeared the following: 'A. F. of L. Picket Millman's Union 2020 Teamster's Union 36 Invites Employees to Join.'
The picketing on the part of the unions was without violence, no untruths were claimed and there was no breach of the peace. There was only one banner carried at a time. There was no secondary boycott. No one was stopped entering or leaving plaintiffs' property and no deliveries either way were stopped by the defendants. There was evidence that on numerous occasions plaintiffs' trucks were followed when they made deliveries and that union trucks were seen circling jobs at which deliveries had been made and that as a result of this it was necessary for the plaintiffs to make delivery of merchandise through other yards.
There was testimony that union agent Collins told the manager of another lumber company in Escondido that 'they couldn't do anything and that they guessed they would have to get tough with him now' (referring to the Valley Lumber Company), and that Collins told contractors and others that the Valley Lumber Company was being picketed.
The trial court found, in part, that during the past year plaintiffs have sold lumber and other materials of the value in excess of one quarter of a million dollars, which originated and were manufactured outside of the state of California; that plaintiffs' business affects interstate commerce; that defendants demanded that plaintiffs sign the union contract referred to herein; that none of the defendants offered or produced any evidence that any employee of plaintiffs has designated any of said unions as his collective bargaining representative; that none of the defendant unions had been recognized by the plaintiffs or certified by the National Labor Relations Board as the representative of any employee of the plaintiffs; that none of the defendants has been designated or is the collective bargaining agent for any employee of the plaintiffs and the said employees have indicated that they do not desire to join or be represented by any of the defendants; that the plaintiffs declined to execute the said contract and informed the defendants that they could not enter into it or any contract containing the provisions relative to union membership of the employees unless and until it should appear that the plaintiffs' employees or some appropriate unit thereof designates one of the defendants union as their collective bargaining agent; that on or about April 28, 1953, the defendants placed pickets around the place of business of plaintiffs in Escondido and maintained pickets there up to and including the trial of the action; that by the placing of the picket line about plaintiffs' place of business the defendants intended to compel the plaintiffs to enter into certain union agreements and did not intend to induce the employees of plaintiffs to join the said union or to educate the plaintiffs or the employees of plaintiffs or to inform said employees of the benefits of unionization or to accomplish any other objective than to destroy the business of plaintiffs or to compel plaintiffs to execute said agreement without regard to the legality of doing so; that by the use of said pickets and by following the plaintiffs' trucks and by threatening persons doing business with plaintiffs and persons entering or about to enter plaintiffs' place of business with economic injuries, and by using language in the said picket lines calculated to instill fear of economic injury in such persons and by other means, and in order to compel the plaintiffs to execute the said agreement, even though it would be illegal to do so, the defendants and each of them have induced a number of the contractors engaged in the construction industry in or about the city of Escondido to cease doing business with plaintiffs and to refuse to accept deliveries in plaintiffs' trucks and have induced various suppliers of materials and common carriers of freight to refuse to make deliveries to plaintiffs and have prevented persons intending to enter plaintiffs' place of business from doing so and thereby have injured plaintiffs' business and put them to great expense in making deliveries and picking up supplies purchased by them; that as a result of the acts of defendants plaintiffs have lost business and profits and their business has been damaged in the sum of $1,000; that the National Labor Relations Board has, pursuant to a policy declared by it, refused to take jurisdiction of the controversy between plaintiffs and defendants for the purpose of determining whether defendants should be disignated as the collective bargaining representatives of the employees of plaintiffs.
Judgment was entered enjoining the defendants from picketing the place of business of plaintiffs, from following their trucks, from preventing by means of threats persons having business with the plaintiffs from entering the premises of plaintiffs, from inducing by such means potential customers of plaintiffs to refuse to purchase from plaintiffs or to refuse to accept deliveries of good from plaintiffs and from doing any other acts intended to injure plaintiffs' business in order to compel plaintiffs to execute any contract with the defendants, or any of them, requiring plaintiffs to discriminate with respect to conditions of employment by means of membership, or lack thereof, in any labor organization unless and until defendants or any one or more of them have been properly designated as the collective bargaining representatives of plaintiffs' employees or an appropriate unit thereof, and that plaintiffs have and recover damages in the sum of $1,000.
It is first contended that the Superior Court had no jurisdiction to entertain the suit herein or enter the judgment appealed from. While the appellants contend that the evidence shows that defendants were picketing plaintiffs' place of business for the purpose of inviting the employees to join the union, there was evidence to support the trial court's finding that their purpose was to compel plaintiffs to execute a union contract when none of the unions involved had been designated as the collective bargaining agent for said employees. The determination of the purpose or object sought to be accomplished by the picketing was one of fact for the trial court. Standard Grocer Co. v. Local No. 406 of A. F. of L., 321 Mich. 276, 32 N.W.2d 519, 529.
The National Labor Relations Act, as amended in 1947, 39 U.S.C.A. § 158, provides that it is an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization and for a labor organization to force or require an employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of the title, Sec. 158(b)(4)(B).
In Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, 346 U.S. 485, 74 S.Ct. 161, decided December 14, 1953, petitioners were engaged in the trucking business and had i4 employees, four of whom were members of respondent union. The trucking operations formed a link to an interstate railroad. No controversy, labor dispute or strike was in progress, and at no time had petitioners objected to their employees joining the union. Respondents, however, placed rotating pickets, two at a time, at petitioner's loading platform. None were employees of petitioner. They carried signs reading 'Local 776 Teamsters Union (A. F. of L.) wants Employees of Central Storage & Transfer Co. to join them to gain union wages, hours and working conditions.' Picketing was orderly and peaceful but drivers of other carriers refused to cross this picket line and, as most of petitioners' interchange of freight was with unionized concerns, their business fell off as much as 95 per cent. The court below found that respondents' purpose in picketing was to coerce petitioners into compelling or influencing their employees to join the union and concluded, after reviewing the Labor Management Relations Act, 29 U.S.C.A. § 141 et seq., that such provisions for a comprehensive remedy precluded any state action by way of a different or additional remedy for the correction of the identical grievance. The Supreme Court said: 'Congress has taken in hand this particular type of controversy where it affects interstate commerce. In language almost identical to parts of the Pennsylvania statute, it has forbidden labor unions to exert certain types of coercion on employees through the medium of the employer. It is not necessary or appropriate for us to surmise how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body. The power and duty of primary decision lies with the Board, not with us. But it is clear that the Board was vested with power to entertain petitioners' grievance, to issue its own complaint against respondents and, pending final hearing, to seek from the United States District Court an injunction to prevent irreparable injury to petitioners while their case was being considered. The question then is whether the State, through its courts, may adjudge the same controversy and extend its own form of relief. * * * 'We conclude that when federal power constitutionally is exerted for the protection of public or private interests, or both, it becomes the supreme law of the land and cannot be curtailed, circumvented or extended by a state procedure merely because it will apply some doctrine of private right. To the extent that the private right may conflict with the public one, the former is superseded. To the extent that public interest is found to require official enforcement instead of private initiative, the latter will ordinarily be excluded. Of course, Congress, in enacting such legislation as we have here, can save alternative or supplemental state remedies by express terms, or by some clear implication, if it sees fit. 'On the basis of the allegations, the petitioners could have presented this grievance to the National Labor Relations Board. The respondents were subject to being summoned before that body to justify their conduct. We think the grievance was not subject to litigation in the tribunals of the State.' [346 U.S. 485, 74 S.Ct. 165]
In Capital Service v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, decided May 17, 1954, it was held that where Congress, acting within its constitutional authority, has vested a federal agency with exclusive jurisdiction over a subject matter and the intrusion of a state would result in conflict of functions, the federal court may enjoin the state proceeding in order to preserve the federal right.
In Gerry of California v. Superior Court, 32 Cal.2d 119, 194 P.2d 689, it was held that under the National Labor Relations Act as amended in 1947, the State court has no jurisdiction, at the suit of a private person to enjoin union activities affecting interstate commerce when covered by the federal act. It was there said, quoting from Amalgamated Utility Workers v. Consolidated dated Edison Co., 309 U.S. 261, 264, 60 S.Ct. 561, 84 L.Ed. 738: "Within the range of its constitutional power, Congress was entitled to determine what remedy it would provide, the way that remedy should be sought, the extent to which it should be afforded, and the means by which it should be made effective.' The Supreme Court pointed out that the course of procedure was definite and restricted; that the board and the board alone could determine whether an employer had engaged in an unfair labor practice; that the board was chosen as the instrument or agency, exclusive of any private person or group, to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce, and that the board alone was authorized to take proceedings to enforce its order. The sole authority of the board to secure prevention of unfair labor practices affecting commerce was thus recognized.' [32 Cal.2d 119, 194 P.2d 692-694]
It was further said: 'The provisions of the 1947 Act show an intent to preserve the functional purposes of the National Labor Relations Act with increased objectives, and an intent not to confer powers in the courts at the suit of private parties with the exception of the jurisdiction expressly granted, which does not include the exercise of equity powers. * * * The employer as well as the union is now required by the 1947 Act to proceed before the board to obtain appropriate relief from unfair labor practices affecting interstate commerce. The alleged cause for injunctive relief presents matters for the board to determine in the first instance pursuant to the exercise of power vested by the National Labor Relations Act as amended by the 1947 Act. There is nothing in the act as so amended which indicates that these union is may not thus be subject to the appropriate procedure thereby provided.'
In In re De Silva, 33 Cal.2d 76, 199 P.2d 6, 8, an employer had secured an injunction on the ground that the picketing was unlawful under the Labor Management Relations Act, 1947, since there had been no certification of a union representative. It was there held that the injunction issued was void, its object being to accomplish something which was within the exclusive jurisdiction of the National Labor Relations Board under the terms of the federal act. In commenting on the Gerry case, supra, the court said: 'This court there held that the declared intent and purpose of the Labor Management Relations Act, 1947, was to vest exclusive jurisdiction in the National Labor Relations Board over unfair labor practices affecting interstate commerce and to vest in the courts generally jurisdiction only of action for damages arising out of the commission of such practices, and that the act deprived the superior courts of original equitable jurisdiction in such cases.'
The case of Sommer v. Metal Trades Council, 40 Cal.2d 392, 254 P.2d 539, 564, involved a claimed violation of the jurisdictional Strike Act, Lab.Code, sec. 1115 et seq., and the same union activity was declared to be an unfair labor practice by the National Labor Relations Act, as amended. The question there was whether the state court had jurisdiction to enforce the provisions of the state statute making the defined union jurisdictional activity unlawful and subject to restraint. It was held that the trial court did not abuse its discretion in granting an injunction order pending a trial on the merits. The court discussed the Gerry case, supra, and observed that there the petitioners contended that the state had concurrent jurisdiction with the National Labor Relations Board to enforce the provisions of the federal act and that the decision rejecting this contention was a determination that in the absence of a valid, applicable local statute affording relief, facts which amount to unfair labor practices under the federal act are cognizable exclusively in a proceeding before the National Board. After discussing several United States Supreme Court cases on the subject, the court said: 'It is thus apparent that the factors of protection and condemnation under the federal act largely determine whether the area is one closed to state control. The decisions indicate that the presence of those factors are deemed to disclose an intention on the part of Congress to place exclusive jurisdiction in the National Board.'
In the instant case plaintiffs pleaded and the court found that they were engaged in interstate commerce. The claimed objectionable conduct of the unions is defined in the federal act as an unfair labor practice but there is no state statute making it unlawful as was the case in Sommer v. Metal Trades Council, supra. We therefore conclude that the state court in the instant action had no jurisdiction to grant the permanent injunction herein.
It is argued that although the federal law is applicable, the National Labor Relations Board has, as a matter of policy, declined to accept jurisdiction and that there can be no conflict of remedies between the courts and the board. However, the evidence shows that on May 7, 1953, plaintiffs' counsel mailed to the National Labor Relations Board a petition by the Valley Lumber Company for determination of representation of its lumber yard and delivery workers. This petition was apparently dismissed by the regional director for the reason that the scope of the business involved did not justify further proceedings. The petition contained no application to the National Board to take jurisdiction of an unfair labor practice charge and the evidence fails to show a refusal of the board to assume jurisdiction of the acts and conduct of the unions involved in that connection. Since the National Labor Relations Board had jurisdiction to determine plaintiffs' right to injunctive relief herein, the state court was without jurisdiction until plaintiffs exhausted their administrative remedy. United States v. Superior Court, 19 Cal.2d 189, 195, 120 P.2d 26; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715; Woodward v. Broadway Federal Savings & Loan Ass'n, 111 Cal.App.2d 218, 220, 244 P.2d 467; Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638.
Respondents argue that the federal law does not prevent a state court from awarding damages for a violation of a state public policy which does not conflict with the federal law; that the remedy in the instant case is for intentional, unexcused injury to the business of another and that the injury herein is unexcused because for an unlawful purpose, namely, to compel the execution of a contract in violation of the National Labor Relations Act.
In United Const. Workers, Etc. v. Laburnum Const. Corp., 74 S.Ct. 833 the court held that the Labor Management Act of 1947, National Labor Relations Act, § 10(c), as amended by Labor Management Relations Act of 1947, 29 U.S.C.A. § 160(c); Labor Management Relations Act of 1947, § 303(b), 29 U.S.C.A. § 187(b), did not give the National Labor Relations Board such exclusive jurisdiction over the subject matter of common law court actions for damages as would preclude an appropriate state court from hearing and determining its issues even though such conduct constitutes unfair labor practice under that act; that Congress has neither provided nor suggested any substitute for the traditional state court procedure for collecting damages for injuries caused by tortious conduct. However, in this state peaceful picketing is a lawful form of concerted action by members of the labor union. Shafer v. Registered Pharmacists Union Local, 16 Cal.2d 379, 382, 106 P.2d 403. As was said in Seven Up Bottling Co. v. Grocery Drivers Union, 40 Cal.2d 368, 374, 254 P.2d 544, 548, 33 A.L.R.2d 327: 'Peaceful picketing has been identified with freedom of speech--a means by which the pickets communicate to others the existence of a labor controversy.' (Citing many cases.) In Park & Tilford Import Corp. v. International Etc. of Teamsters, 27 Cal.2d 599, 603, 165 P.2d 891, 894, 162 A.L.R. 1426, the court said: 'In this state 'a union may use the various forms of concerted action, such as strike, picketing, or boycott, to enforce an objective that is reasonably related to any legitimate interest of organized labor' but 'the object of concerted labor activity must be proper and * * * must be sought by lawful means, otherwise the persons injured by such activity may obtain damages or injunctive relief.' James v. Marinship Corp., 25 Cal.2d 721, 728, 729, 155 P.2d 329, 334 , and authorities there cited.'
In McKay v. Retail Auto Salesmen's Local Union No. 1067, 16 Cal.2d 311, 319, 106 P.2d 373, 378, the court said: 'Concerning the means used, it must be taken as settled in this state, that workmen may associate together and exert various forms of economic pressure upon employers, provided they act peaceably and honestly. The conventional means of exerting this economic pressure which have been held lawful are the strike * * * the boycott, both primary and secondary * * * and the picket * * *.'
In Fortenbury v. Superior Court, 16 Cal.2d 405, 410, 106 P.2d 411, 413, it is held that the law does not invariably give relief against damage, because in some circumstances the infliction of damage, though intentional, is without legal remedy. 'So far as cases of picketing or boycott are concerned, there is no remedy for damage which may be inflicted where, as here, the means are peaceful and the purpose is reasonably related to working conditions or the right to bargain collectively.'
In Bautista v. Jones, 25 Cal.2d 746, 755, 155 P.2d 343, 348, Mr. Justice Edmonds, in his concurring opinion, states: 'And in the exercise of its constitutional right of free speech, a union is privileged intentionally to induce others, in their relation with an employer, to apply economic pressure upon him resulting in injury. However, this privilege to interfere with a competitor's valuable and legally protected economic interests is not an absolute one but is qualified and conditional. 'The first limitation which has been applied by this court is that a union, in compelling compliance with its demands through the application of economic pressure, induced by publication of the facts and the solicitation of support, is privileged to invade the interests of others only where it employs peaceful and truthful means. (Citing cases.) The second general condition necessary to justify the invasion of economic interest is that the end be lawful. 'Any injury to a lawful business * * * is prima facie actionable, but may be defended upon the ground that it was merely the result of a lawful effort of the defendants to promote their own welfare.' J. F. Parkinson Co. v. Building Trades Council, supra, (154 Cal. 581, 98 P. 1027) [21 L.R.A.,N.S., 550].'
In the instant case the attempt by the unions to induce plaintiffs to sign the contract involved is not made unlawful by statute in this state. The means used were peaceful and the purpose is reasonably related to working conditions and the right to bargain collectively. Damages, if any, suffered by plaintiffs were occasioned by the presence of a picket near plaintiffs' place of business, carrying a banner inviting plaintiffs' employees to join the union and not by the alleged purpose of the picketing. Moreover, the award of damages in the sum of $1,000 was apparently based on the testimony of one Glenn Bailey that he had once purchased materials from the plaintiffs but that he had overheard a conversation between a union representative and the witness contractor in which they were discussing the picketing of plaintiffs' place of business; that he had intended to buy his materials on a new job from plaintiffs but had changed his mind; that the approximate cost of materials on the new job was $4,000. The award of $1,000 damages was not supported by substantial evidence that it was caused by the tortious conduct of defendants or any of them.
The attempted appeal from the order overruling the demurrer herein is dismissed as such an order is not appealable. Garroway v. Jennings, 189 Cal. 97, 207 P. 554; Southern California Telephone Co. v. Damenstein, 81 Cal.App.2d 216, 183 P.2d 675; Cook v. Stewart McKee & Co., 68 Cal.App.2d 758, 157 P.2d 868.
Judgment reversed.
BARNARD, P. J., concurs.