Opinion
Page __
__ Cal.App.2d __ 234 P.2d 323 SOMMER v. METAL TRADES COUNCIL OF SOUTHERN CALIFORNIA et al. Civ. 18251. California Court of Appeals, Second District, Second Division July 27, 1951.Hearing Granted Sept. 24, 1951.
Subsequent opinion 254 P.2d 559.
Rehearing Denied Aug. 13, 1951.
[234 P.2d 324] Arthur Garrett, Los Angeles, Todd & Todd, San Francisco, for appellants.
Gibson, Dunn & Crutcher, by William French Smith, Los Angeles, James R. Hutter, Los Angeles, of counsel, for respondent.
MOORE, Presiding Justice.
The court below by appropriate order restrained appellants from picketing respondent's place of business, his products, job sites, customers and suppliers; from [234 P.2d 325] engaging in any activities to cause such customers, suppliers and subcontractors and their respective employees to cease to do business with respondent, and from representing him as unfair.
The complaint embraces two causes of action. The first alleges the unlawfulness of appellants' picketing and other concerted activities as being used (1) to coerce respondent to recognize one of the unions as the collective bargaining representative of respondent's employees notwithstanding the majority of such employees did not desire to join such union and the latter did not represent the workers, and (2) to bring pressure on respondent to discharge his present employees and employ in their stead appellants' members only. The second cause of action is predicated upon the theory that the activities of appellants described in count I were in violation of the Jurisdictional Strikes Act, Labor Code, sec. 1115 to 1120, and being unlawful should be enjoined.
Sec. 1115. 'A jurisdictional strike as herein defined is hereby declared to be against the public policy of the State of California and is hereby declared to be unlawful.'
Negotiations were initiated by some of the appellants in July, 1949, for the purpose of inducing respondent to require his employees to join one of appellant unions and demand was then made (1) that members of appellant unions be employed by respondent to do the latter's work instead of his current employees; (2) that respondent execute a collective bargaining agreement with appellants and their affiliates. In September, Local No. 1 of the Workers Association of Manufacturers and Builders of Auto Service Stations, an independent union of respondent's employees, petitioned the National Labor Relations Board for an order directing respondent to recognize it as the exclusive collective bargaining agent of his employees. In answer to appellants' demands that respondent choose one of them to become his bargaining agent, he refused to recognize any of such unions as the representative of the majority of his employees on the ground that he did not know which group, if any, represented his employees. Respondent at that time agreed to recognize any union representing the majority of his workers. Appellants sought to organize said employees but met with no success, although respondent cooperated in arranging a number of meetings of his employees with the agents of appellants.
On March 10, 1950, pursuant to their petition filed with the National Labor Relations Board, an election was held by the independent union to determine whether it or a union selected by appellants was to become [234 P.2d 326] the representative of respondent's employees. Twenty-five out of 37 members participating having cast their votes for the independent union, it became the agent for respondent's employees. But still appellants' demands persisted. They continued their intermittent picketing of respondent's place of business, his jobs and job sites, his customers and subcontractors, warning all to desist from patronizing respondent or be subjected to a boycott by appellant trade groups. Their secondary boycotts and picket lines did not diminish in intensity and respondent's business suffered immeasurable harm through loss of at least ten new construction contracts and by being forced to abandon construction jobs.
Jurisdictional Strikes Act Valid
In Senn v. Tile Layers Protective Union, 1937, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, Justice Brandeis suggested the right of labor groups to be protected in their concerted activities by the free speech provision of the constitution. The legislature of this state in 1937 declared its policy as to labor organizations by section 923 of the Labor Code. Ten years later, that body, evidently having grown restive at the frequency of strikes for so many different causes, determined that strikes should not occur by virtue of or on account of a contest between labor groups. The six new sections added to the Labor Code declare a jurisdictional strike to be against public policy, sec. 1115; provide for injunctive relief to one who is injured by such a strike, sec. 1116; define 'labor organization,' 'person,' and 'jurisdictional strike,' secs. 1117, 1118. But the right of collective bargaining was expressly reserved, sec. 1119.
Labor Code, sec. 923. 'In the interpretation and application of this chapter, the public policy of this State is declared as follows:
Whether such statutes comprising the Jurisdictional Strikes Act are valid is the question posed by this appeal. Basing their contentions upon (1) Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Building Service v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045, (2) upon the California cases Lisse v. Local Union, 2 Cal.2d 312, 41 P.2d 314; McKay v. Retail Auto Salesmen, 16 Cal.2d 311, 106 P.2d 373; Shafer v. Registered Pharmacists, 16 Cal.2d 379, 106 P.2d 403; Magill v. Building Service Employees, 20 Cal.2d 506, 127 P.2d 542; In re Lyons, 27 Cal.App.2d 293, 81 P.2d 190, and (3) upon the fact that their picketing was peaceful, appellants assert that the act in question is violative of the free speech doctrine of the federal constitution, and is therefore void.
The Act satisfies every constitutional requirement and is not in conflict with the right of free speech as guaranteed by the federal constitution. Picketing, boycotting and other forms of concerted union activity are now identified with the basic freedoms guaranteed by the First Amendment. Building Service Union v. Gazzam, supra, 339 U.S. at page 536, 70 S.Ct. at page 786; In re Blaney, 30 Cal.2d 643, 647, 184 P.2d 892. However, it has been declared just as firmly that this alliance between the constitution and the right of organized labor to picket and engage in other peaceful, concerted activities for legitimate labor goals is not complete. Following the Thornhill [234 P.2d 327] and Carlson decisions the federal Supreme Court made more soundings and new calculations. Giboney v. Empire Storage and Ice Company, 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Union v. Gazzam, 339 U.S. 532, 537, 70 S.Ct. 784, 94 L.Ed. 1045; Int. Brotherhood v. Hanke, 339 U.S. 470, 474, 70 S.Ct. 773, 94 L.Ed. 995; Hughes v. Superior Court, 339 U.S. 460, 464, 70 S.Ct. 718, 94 L.Ed. 985.
In 1948, one Joseph Giboney was convicted under a statute enacted to prevent combinations in restraint of frade. While one objective of his union's drive was to better wage and working conditions, it caused Giboney to violate a Missouri statute. In order to succeed, the unions planned to make it impossible for nonunion peddlers to buy ice to supply their retail trade. Having pledged all wholesale ice distributors but one not to sell to the nonunion peddlers, they undertook to subdue the one recalcitrant, Empire Storage and Ice Company, by use of the picket line. The express purpose of the picketing was to compel Empire to agree to stop selling to the nonunionists. But because they were trying to force Empire to violate a penal statute, Missouri Revised Statutes, sec. 8308, R.S.1949, § 416.090, Mr. Justice Black without a single dissent, Giboney v. Empire Storage and Ice Company, 336 U.S. 490, 498, 69 S.Ct. 684, 687, 93 L.Ed. 834, proceeded to declare: (1) There is nothing in the Constitution which precludes a state from adopting and enforcing a policy of preventing combinations to restrain freedom of trade. (2) Merely because a picket line is often protected by the guaranties of the First and Fourteenth Amendments in disseminating information, such guaranties do not afford labor unions immunity against laws enacted to restrain trade combinations, 'unless * * * labor unions are given special constitutional protection.' (3) 'To exalt all labor union conduct in restraint of trade above all state control would greatly reduce the traditional powers of states over their domestic economy and might conceivably make it impossible for them to enforce their antitrade restraint laws.' (4) Constitutional freedom for speech and press does not extend its immunity to speech or writing when they are used as an integral part of conduct in violation of a valid criminal statute. The Giboney decision was followed by International Brotherhood v. Hanke, supra, wherein the court held that 'while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech.' [339 U.S. 470, 70 S.Ct. 775.] About the same time it held in the Hughes case that 'The Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its use in these situations.' [339 U.S. 460, 70 S.Ct. 721.]
The holding against Giboney is akin to the court's conclusion in other controversies involving the violation of state laws as in the case of speakers convicted for holding meetings in a street contrary to city ordinances. Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267. Free speech is not an absolute and unqualified right. This is especially true with respect to picketing for 'while * * * a mode of communication it is inseparably something more and different * * * 'more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.'' Mr. Justice Frankfurther in Hughes v. Superior Court, quoting in part Mr. Justice Douglas in Bakery & Pastry D. & H. Local v. Wohl, 315 U.S. 769, 775-776, 62 S.Ct. 816, 86 L.Ed. 1178.
Accordingly, the most recent pronouncements of the high court have limited the holdings of the earlier decisions such as Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104. The later decisions have made it clear that a state may within constitutional bounds limit certain forms of labor activity to such extent and in such manner and the legislature shall determine for the best interest of society in furthering the state's desired social and economic [234 P.2d 328] policies. The cited cases have recognized that it is the state itself which can best determine its own public policy since such determination depends on a knowledge and appraisal of local, social, and economic factors. Congress has no power to fix the public policy of California. Riviello v. Journeymen Barbers, etc., Union, 88 Cal.App.2d 499, 506, 199 P.2d 400. Therefore, the legislature's findings and judgment upon matters of such vital force deserve the respect of finality. International Brotherhood v. Hanke, 339 U.S. 470, 475, 70 S.Ct. 773, 94 L.Ed. 995.
In Building Service Employers International Union v. Gazzam, supra, the court affirmed a judgment of a Washington court enjoining picketing aimed at coercing plaintiff's employees to join defendant's union, although the workers had previously voted against joining. The union, however, had continued demands that the employer sign a contract recognizing the group as the employees' bargaining representative. The state Supreme Court had affirmed the judgment granting the injunction on the ground that it was against the state's public policy to compel an employer to coerce his employees to join a union. The United States Supreme Court, on the strength of the Giboney case affirmed the State Court with a unanimous opinion. A similar holding was announced in Carpenters & Joiners Union v. Ritters Cafe, 1942, 315 U.S. 722, 726, 62 S.Ct. 807, 86 L.Ed. 1143.
By International Brotherhood of Teamsters, etc. v. Hanke, supra, injunctions were upheld prohibiting picketing in an effort to compel a closed shop in a business conducted by the owner himself without employees. The Supreme Court refused to interfere with the state's determination that such picketing was unlawful, saying, 'it is not for this Court to question a State's judgment in regulation only where an evil seems to it most conspicuous.' The court pointed out also that it could not conclude that the state's decision 'has struck a balance so inconsistent with rooted traditions of a free people that it must be found an unconstitutional choice.' By the foregoing authorities it is made definite that the courts should enjoin picketing when employed to coerce an employer to violate a valid state statute or a valid city ordinance.
The problem presented here, as it was in the cited decisions, is one of striking a balance between the constitutional protection of the free speech aspects of concerted labor activities and the reserved power of the state to establish limits of permissible contest open to both factions in a labor dispute.
State May Declare and Enforce Its Public Policy
In the Act under consideration, supra, the legislature has declared jurisdictional strikes to be against the public policy of the State and unlawful. Such strike is defined as 'a concerted refusal to perform work for an employer or any other concerted interference with an employer's business, arising out of a controversy between two or more labor organizations' over which group is the rightful representative of the employees for collective bargaining purposes, or as to which group should have the exclusive right to have its members work for an employer.
Thus, the legislature has determined that where two or more unions are contesting for representation rights or work assignments and are unwilling to settle the question in a peaceful and impartial manner, but rather seek to direct coercive and concerted activity against the employer, there is no legitimate end of labor thereby being served. Such determination cannot be said to be unreasonable.
The act in question was passed subsequent to the disastrous jurisdictional dispute which occurred among labor organizations in the motion picture industry. It is common knowledge that that dispute provoked extreme violence and resulted in substantial economic loss without noticeable gains to the wage earners in the industry. Moreover, the legislature was made aware of, and has recognized, the helpless position of an employer caught in the midst of such industrial strife. While he is certain to suffer substantial and irreparable injury as a result of the concerted action of his employees accompanied by bitter controversy, [234 P.2d 329] yet he cannot coerce, restrain or interfere with their activities in order to assist them in making a decision. Labor Code, sec. 923. Neither can he in a jurisdictional strike proceed to recognize one union as against another without subjecting himself to continued harassment by that other.
The Act is aimed at what the legislature reasonably felt to be a substantial evil and an activity deemed contrary to the public policy of this state. The wisdom of such legislation is not for the determination of the courts; neither is it generally their duty to define the State's public policy. See Park & Tilford Import Corp. v. Teamsters, 27 Cal.2d 599, 609, 165 P.2d 891, 162 A.L.R. 1426.
The Hot Cargo Decision Not Pertinent
Appellants contend that the Jurisdictional Strike Act differs little from the so-called 'Hot Cargo Act,' declared to be inbalid. In re Blaney, 30 Cal.2d 643, 184 P.2d 892, 897. That statute was annulled as 'too sweeping, vague and uncertain * * * permits the prior censorship of matters undeniably protected by the constitutional guarantee of free speech and press.' The court pointed out that under the broad provisions of that Act, should a union merely agree to give newspaper publicity to a dispute between its members and their employers, if thereby some other employees of some other employer were induced to withhold services from their employer, the original agreement and publicity could be enjoined. Thus the 'Hot Cargo Act' attempted to regulate the method by which all activities of labor groups are to be conducted without regard to the purpose or goal of the union.
The Jurisdictional Strikes Act, however, does not purport to be so broad in its prohibition, enjoining activity only in so far as it arises out of a stated and limited situation, that is, a jurisdictional dispute between two or more unions as to which shall have the right of recognition or assignment of work.
Moreover, as above observed, since the publication of the Blaney decision the United States Supreme Court has seen fit to declare that picketing and other labor activities are not completely allied with free speech and that the states are not without power to prescribe certain restraints and limitations toward their control. Prior to the Blaney decision there were virtually no guides for state courts to follow. See Blaney decision, supra, 30 Cal.2d at page 658, 184 P.2d at page 892. To the federal cases may now be added many decisions of California and of other states upholding legislative limitations imposed upon picketing and kindred union activities where the objective is forbidden by a state law. Northwestern Pacific Railroad Company v. Lumber & Sawmill Workers Union, 31 Cal.2d 441, 189 P.2d 277; Bautista v. Jones, 25 Cal.2d 746, 155 P.2d 343; City of Los Angeles v. Los Angeles Building and Construction Trades Council, 94 Cal.App.2d 36, 210 P.2d 305; Kold Kist Inc. v. Amalgamated Meat Cutters, 99 Cal.App.2d 191, 221 P.2d 724; Fashion-craft Inc. v. Halpern, 313 Mass. 385, 48 N.E.2d 1; Schwab v. Moving Picture Machine Operators Local, 165 Or. 602, 109 P.2d 600; Markham & Cullow, Inc. v. International Woodworkers, 170 Or. 517, 135 P.2d 727. Illegality of purpose on the part of striking employees provides a complete basis for injunctive relief against conduct which would otherwise be held 'permissible exercise of fundamental rights.' City of Los Angeles v. Los Angeles B & C Trades Council, supra [94 Cal.App.2d 36, 210 P.2d 309.]
Origin of This Controversy
Appellants contend that inasmuch as their picketing and negotiations with respondent commenced prior to the time the independent union appeared on the scene, we are not here concerned with activity 'arising out of' a true jurisdictional dispute and consequently the Jurisdictional Strikes Act has no application. Such contention is not supported by the record. Only after there were two unions in the arena did the respondent seek injunctive relief. At the time the court granted the restraining order the unions were in hostile array. Each asserted a superior claim to be respondent's employees' [234 P.2d 330] representative. Appellants were openly declaring their purpose to defeat respondent if he declined to yield to their demands while respondent in support of his refusal to yield stood upon the Jurisdictional Strikes Act. Although appellants' union was repudiated at the ballot box in favor of the independent group, still the former continued their efforts to 'break' respondent.
Findings Favor Respondent
On the issues presented by the complaint more than 20 affidavits were filed. The findings are impliedly in accord with the proof of respondent, the same as in the case of a trial on spoken testimony. Kettelle v. Kettelle, 110 Cal.App. 310, 313, 294 P. 453; Brainard v. Brainard, 82 Cal.App.2d 478, 480, 186 P.2d 990. On appeal respondent enjoys the advantage of every inference fairly to be drawn from the evidence. Hinkle v. Southern Pacific Co., 12 Cal.2d 691, 695, 87 P.2d 349. Based upon the implied findings, the court in the exercise of a sound discretion granted the restraining order. Such order can be disturbed only upon a clear showing of abuse of such discretion, in view of all the circumstances involved. Trujillo v. Trujillo, 71 Cal.App.2d 257, 260, 162 P.2d 640; Kosloff v. Kosloff, 67 Cal.App.2d 374, 379, 154 P.2d 431. No abuse of discretion on the part of the trial court having been shown, no reason appears for a reversal of the order.
Interstate Commerce
In a supplemental brief belately filed, appellants urge as a further ground for reversal that the record reveals respondent to be engaged in interstate commerce and therefore his sole remedy lies with the National Labor Relations Board under the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. The answer to this contention is that the record before us does not support any determination that respondent's activities bring him within the sphere of federal jurisdiction. As bearing on the issue we have only the allegations in the complaint briefly describing the general nature of respondent's operations, the further allegations that the independent union filed a petition before the National Labor Relations Board and the affidavits showing that thereafter a hearing was held and an election ordered.
Such evidence is not sufficient to compel or infer a finding that respondent is engaged in interstate commerce or that the interruption of his activities directly burdens or obstructs the free flow of commerce. Indeed, the complaint and affidavits indicate a contrary determination. The fact that respondent filed charges of unfair labor practice with the National Board is not determinative in view of the fact that such charges were dismissed without the jurisdictional question having been raised.
It follows that it is not necessary to consider the problem whether Congress in the 1947 act did intend to preclude State activity in this field.
Order affirmed.
McCOMB and WILSON, JJ., concur.
Sec. 1116. 'Any person injured or threatened with injury by violation of any of the provisions hereof shall be entitled to injunctive relief therefrom in a proper case, and to recover any damages resulting therefrom in any court of competent jurisdiction.'
Sec. 1117. 'As used herein, 'labor organization' means any organization or any agency or employee representation committee or any local unit thereof in which employees participate, and exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, hours of employment or conditions of work, which labor organization is not found to be financed in whole or in part, interfered with, dominated or controlled by the employer.
'As used herein, 'person' means any person, association, organization, partnership, corporation, unincorporated association, or labor organization.'
Sec. 1118. 'As used in this chapter, 'jurisdictional strike' means a concerted refusal to perform work for an employer or any other concerted interference with an employer's operation or business, arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to bargain collectively with an employer on behalf of his employees or any of them, or arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to have its members perform work for an employer.'
Sec. 1119. 'Nothing in this chapter shall be construed to interfere with collective bargaining subject to the prohibitions herein set forth, nor to prohibit any individual voluntarily becoming or remaining a member of a labor organization, or from personally requesting any other individual to join a labor organization.'
'Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. [Enacted 1937.]'