Messner v. Journeymen Barbers, Hairdressers & Cosmetologists, International Union of America, Local 256

351 P.2d 347, 53 Cal. 2d 873, 4 Cal. Rptr. 179, 1960 Cal. LEXIS 262, 45 L.R.R.M. (BNA) 3135

• Court: California Supreme Court
• Decided: April 7, 1960
• Docket: L. A. 25288
• Status: Published

Opinions

TRAYNOR, J.

Defendants appeal from a judgment of the trial court enjoining them from picketing plaintiff’s barber shop to secure a union shop agreement.

Plaintiff is a barber, working with the tools of the trade. During the summer of 1957 defendants attempted to organize all the barber shops in the San Diego area. They submitted a contract to plaintiff that would have required him and his four barber employees to join defendants’ organization. Defendants did not represent any of plaintiff’s employees, and the employees do not wish to join the union or to be represented by defendants. Plaintiff’s refusal to sign the contract led to defendants’ peaceful picketing. After about a week the pickets were removed by stipulation pending the decision in this case.

Since plaintiff is not engaged in interstate commerce, this case must be decided under state law. It is clear that ‘1 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. . . . It is equally well settled that the object of concerted labor activity must be proper and that it 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, 160 A.L.R. 900] and eases cited.) If defendants’ peaceful picketing was directed toward a proper object, the injunction was erroneously granted. The crucial issue in this case, therefore, is whether a closed or union shop agreement is a proper objective of a labor union that does not represent any of the employees directly involved.

That issue was decided in C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389 [106 P.2d 414], and McKay v. Retail Automobile S. L. Union No. 1067, 16 Cal.2d 311 [106 P.2d 373], and was reaffirmed in Petri Gleaners, Inc. v. Automotive-Employees, etc. Local No. 88, ante, pp. 455, 474-475 [2 Cal.Rptr. 470, 349 P.2d 76]. In the course of holding in the Petri case that an employer was not required to bargain collectively with a union representing a majority of his employees, this court said; ‘1 [w] e conclude that employers are not required by law to engage in collective bargaining and that closed or union shop agreements and concerted activities to achieve them are lawful in this state whether or not a majority of the employees directly involved wish such agreements.” Since the concerted activities in the Petri case were conducted by a union that represented a majority of the employees at the time the activities began, we were there concerned with the issue of this case only inferentially. We deem it appropriate to set forth the law on this issue by a detailed discussion of the controlling authorities.

As early as J. F. Parkinson Co. v. Building Trades Council (1908), 154 Cal. 581 [98 P. 1027, 16 Ann.Cas. 1165, 21 L.R.A. N.S. 550], this court held that it was not unlawful for a union to call a strike of employees and order a boycott to bring pressure on an employer who retained a nonunion worker and thereby to enforce a closed shop. The elimination of the competition of nonunion workers was held a proper objective of concerted labor activity, and the court was unanimous in holding a strike a proper method of attaining this end. The conclusion of the Parkinson case that a closed shop is a proper labor objective was reaffirmed in Pierce v. Stablemen’s Union, 156 Cal. 70 [103 P. 324], even though the picketing in that ease was enjoined because it involved force and violence.

The precise issue of this case was raised and decided in C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389 [106 P.2d 414], a suit to restrain a union from picketing and boycotting a food market to organize the nonunion butchers and to obtain a closed shop agreement. No labor dispute existed between the employer and the butchers in that case and none of them wished to join the picketing union. The court held that the concerted activity was proper because “[t]he members of a labor organization may have a substantial interest in the employment relations of an employer although none of them is or ever has been employed by him. The reason for this is that the employment relations of every employer affect the working conditions and bargaining power of employees throughout the industry in which he competes. Hence, where union and nonunion employees are engaged in a similar occupation and their respective employers are engaged in trade competition one with another, the efforts of the union to extend its membership to the employments in which it has no foothold is not an unreasonable aim. ” (Id., at 401.)

In McKay v. Retail Automobile S. L. Union No. 1067, 16 Cal.2d 311 [106 P.2d 373], this court held that a labor union that represented none of an employer’s salesmen could lawfully engage in concerted activity to obtain a closed shop agreement since that objective had a reasonable relation to the betterment of the conditions of labor. Substantially the same conclusion was reached in Lund v. Auto Mechanics Union No. 1414, 16 Cal.2d 374, 378 [106 P.2d 408].

In Shafer v. Registered Pharmacists Union, 16 Cal.2d 379 [106 P.2d 403], involving a strike by plaintiff’s union pharmacists to obtain a closed shop agreement, the propriety of the closed shop as a labor objective under common-law principles was conceded and the crucial question was whether sections 920, 921, and 923 of the Labor Code outlawed closed shop agreements. Recognizing that these sections were enacted to outlaw yellow-dog contracts, the court held that they “lay no statutory restraints upon the workers’ efforts to secure a closed shop contract from an employer. ...” (Id., at 388.)

In Sontag Cham Stores Co. v. Superior Court, 18 Cal.2d 92 [113 P.2d 689], the court followed its earlier decisions by holding that the superior court had exceeded its jurisdiction in permanently restraining a union from peacefully picketing to obtain a union shop agreement. The principle that a union may use economic pressure to achieve a closed or union shop agreement even though the employees in the picketed shop do not belong to the union and have no dispute with their employer, established in the foregoing cases, has been restated in many cases not directly concerned with the point. (Magill Bros. v. Building Service etc. Union, 20 Cal.2d 506, 508 [127 P.2d 542] ; James v. Marinship Corp., 25 Cal.2d 721, 730 [155 P.2d 329, 160 A.L.R. 900] ; Park & T. I. Corp. v. International elc. of Teamsters, 27 Cal.2d 599, 604 [165 P.2d 891, 162 A.L.R 1426] and cases cited; DeMille v. American Fed. of Radio Artists, 31 Cal.2d 139,144-145 [187 P.2d 769,175 A.L.R. 382] ; Charles H. Benton, Inc. v. Painters Union, 45 Cal.2d 677, 683 [291 P.2d 13]; see Fortenbury v. Superior Court, 16 Cal.2d 405, 409 [106 P.2d 411] ; Williams v. International etc. of Boilermakers, 27 Cal.2d 586 [165 P.2d 903] ; Thompson v. Moore Drydock Co., 27 Cal.2d 595 [165 P.2d 901].)

Thus, for 50 years, until the four-to-three decision of this court in Garmon v. San Diego Building Trades Council, 49 Cal.2d 595 [320 P.2d 473], in 1958, it was the settled law of this state that union labor could freely compete for jobs in the labor market and seek to improve wages and working conditions by engaging in lawful concerted activities such as strikes and picketing. The law moreover recognized that union labor has a legitimate interest in organizing workmen in competing nonunion shops to insure the benefits of collective bargaining in union shops. Concerted activities such as picketing to achieve that goal were legitimate even when the employees in the nonunion shops did not wish to join or to be represented by the union. Just as the union had to reckon with the risk that it might lose its struggle for organization, so the nonunion employer risked loss of business, and hence his employees risked loss of employment, in resisting organization.

Such risks, grim as they are, are the price of lawful competition in a free enterprise system. The union plays for the high stakes of holding the gains it has made in union shops. The nonunion shop plays for the high stakes of holding the competitive advantages it has against union shops. The nonunion workers must then decide between alternatives neither of which is of their own choosing. They may welcome organization or merely accede to it as the lesser of two evils. On the other hand they may dislike organization, or merely regard it as a lost cause, or resist it out of fear of losing what they presently hold or out of hope that they will emerge as free-riding beneficiaries of organizations which their fellows will join and support.

In the absence of statutory regulation the struggle can be bitterly hard on all sides. The hardship does not render less legitimate the objectives of the union in seeking organization or the objectives of the nonunion shop in resisting it, or the objectives of the nonunion workers who may either join or resist. Confronted with the legitimate objectives of all parties concerned in such a struggle, it is not for the courts to abate it, however keenly aware they may be of its inevitable hardships. They are bound to remain aware also that they cannot properly encroach upon the function of regulation that belongs to the Legislature.

In Chavez v. Sargent, 52 Cal.2d 162 [339 P.2d 801], however, a majority of this court ignored the traditional doctrine of separation of powers to write a state law of labor relations based on the Taft-Hartley Act. That ease suggested that many of the earlier cases had been superseded by the subsequent enactment of the Jurisdictional Strike Act (Lab. Code, §§ 1115-1120, 1122). That conclusion was reached by interpreting section 1117, which defines a labor organization as “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 or to have been financed in whole or in part, interfered with, dominated or controlled by the employer or any employer association within one year of the commencement of any proceeding brought under this chapter . . .” to apply to a group of unorganized, nonunion employees who are satisfied with their terms and conditions of employment and therefore do not wish to engage in collective bargaining. (Chavez v. Sargent, supra, at 197-203.) The controversy between this unorganized group and a national labor organization as to whether the former shall join the union was then converted into a jurisdictional strike, defined by section 1118 as “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] to have its members perform work for an employer” so as to make the act applicable to the fact situations of the McKay, Shafer, Lyons and Fortenbury cases, supra.

Even under the Chavez interpretation of the act, however, its terms cannot possibly apply to the Shafer and Fortenbury situations. In Shafer, all of plaintiff’s 14 pharmacists and assistant pharmacists who were eligible for membership were union members and all but one wanted the closed shop agreement. In Fortenbury, the strike was conducted by employees of the shop as well as other union members. There was no question in either case of a dispute between rival labor organizations; the only dispute was between the employees and the employer. The Shafer case therefore established that sections 920, 921, and 923 of the Labor Code do not affect the propriety of closed or union shop agreements and concerted activities to obtain such agreements. (See Park & T. I. Corp. v. International etc. of Teamsters, 27 Cal.2d 599, 609-613 [165 P.2d 891,162 A.LR. 1426].)

There is some reason, however, for the suggestion that the McKay case, supra, has been superseded by the act because the employees in that case had formed an inside union. The court held, however, that the employees had failed to sustain the burden of proving that their organization was a “bona fide independent labor union.” (Id., at 329-330.) Whether the act has superseded that case on its facts therefore depends on whether the employee group was financed, interfered with, dominated or controlled by the employer. (Lab. Code, § 1117.)

The act did not supersede the Lyons case, supra, however. Under sections 1117 and 1118 of the Labor Code a labor organization is not formed merely by an agreement of employees not to be organized. A group whose sole purpose is to express the wish of its members not to deal as a group with the employer “concerning grievances, labor disputes, wages, hours of employment or conditions of work” is not an organization that exists for the purposes of section 1117, for it lacks the purpose “of dealing with employers concerning grievances, labor disputes, wages, hours of employment or conditions of work.” (Lab. Code, § 1117.) Moreover, even if such a group could be a labor organization under section 1117, its objection to organization of the shop could not give rise to a jurisdictional strike within the meaning of section 1118. Such a strike can only arise 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 . . . [or] to have its members perform work for an employer.” (Lab. Code, § 1118.) The wish of all or some of the employees to work in an open shop without collective bargaining is the very antithesis of a demand for the “exclusive right to have [their] members perform work for [the] employer.”

In 1960, in Petri Cleaners, Inc. v. Automotive Employees, etc. Local No. 88, ante, p. 455 [2 Cal.Rptr. 470, 349 P.2d 76], the court disapproved the sweeping pronouncement of the Chavez case and retraced its steps to the stare decisis of half a century, reaffirming the cumulative decisions from 1908 to 1958.

When it made that reaffirmation the court was mindful that no decision was possible that would not entail some hardship. Nevertheless it felt bound to respect the traditional principle of separation of powers that gives to the Legislature the responsibility of making any major changes in social and economic policy. It made clear that the court would not establish by judicial legislation a little Taft-IIartley Act for California that only the Legislature can properly consider and enact. The Legislature is uniquely able to amass economic data and hold hearings where it can give heed to many representatives of the public besides parties to a controversy. It can best determine whether there should be further governmental regulation of peaceful competitive economic activity.

The Legislature has so far acted not only to outlaw the employer’s use of the yellow-dog contract (Lab. Code, §§ 920-922) but also labor’s use of the jurisdictional strike (Lab. Code, §§ 1115-1122.) With the exception of these practices the present legislative policy favors free competition for jobs by lawful peaceful means. Additional restrictions such as those contained in “right-to-work” laws or little TaftHartley acts have been defeated by the people or the Legislature,¹ although they are always open to reconsideration. The Petri case reaffirmed the traditional separation of powers that compels the judiciary to keep its distance from major formulations of policy.

This court’s interpretation of section 923 of the Labor Code (Shafer v. Registered Pharmacists Union, supra) is in accord with the United States Supreme Court’s interpretation of a similar provision of the Taft-Hartley Act. (§7, 29 U.S.C. §157.) Pointing out that ”[b]asie to the right guaranteed to employees in § 7 to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection” the United States Supreme Court, after a review of the legislative materials, held that peaceful picketing for recognition by a union that does not represent a majority of the employees is not an unfair labor practice under § 8(h) (1) (A). (N.L.R.B. v. Drivers’ Local 639, 362 U.S. 274 [80 S.Ct. 706, 4 L.Ed.2d 710]; 28 U.S.L. Week 4217, 4219, 4222, March 28, 1960.) The court’s opinion makes plain that the Labor-Management Reporting and Disclosure Act of 1959 does not “. . . relegate this litigation to the status of an unimportant controversy over the meaning of a statute which has been significantly changed.” (Id., at 4218.)

Since the judgment must be reversed, we deem it appropriate to settle several questions of law that may arise on remand, (Code Civ. Proc., § 53.) The picketing in this case was for a dual purpose: to achieve a union shop agreement and to compel plaintiff, as a barber working with the tools of the trade, to join the union. Despite the parties’ contrary assumption, it is not clear whether the trial court enjoined picketing for the latter purpose. The judgment reads in part 11 [t] hat the defendants and each of them be and they hereby are enjoined from picketing the plaintiff's place of business . . . in order to compel the plaintiff to execute the form of agreement demanded by them or any other form of agreement, requiring the plaintiff to compel his employees to join the Defendant Union against the will of the said employees. ’ ’

After defendants’ national union amended its constitution to require that all barbers who work with the tools of the trade become members of a local union or an employers ’ guild, the courts of many states were called upon to determine whether a businessman-worker could properly be required to join a workman’s union. Since many of the barber shops involved in these test cases had operated as union shops before the amendment, several of the eases took the form of actions by the union to recover its union shop card or by the employer-barber to retain the card. Some of the cases, therefore, hold only that the union may recover the card as an article of property and do not decide whether the employer-barber may be required to join the union. (Head v. Local Union No. 83, Journeymen Barbers, 262 Ala. 84, 87-89 [77 So.2d 363] ; Rainwater v. Trimble, 207 Ga. 306, 307-308 [61 S.E.2d 420] ; Journeymen Barbers, Hairdressers, etc., Local 687 v. Pollino, 22 N.J. 389, 398-401 [126 A.2d 194] ; Foutts v. Journeymen Barbers, 155 Ohio St. 573, 577-581 [99 N.E.2d 782]; cf. Wisconsin Employ. Rel. Board v. Journeymen Barbers, 272 Wis. 84, 90-94 [74 N.W.2d 815].) One case holds that the payment of union dues and fees by an employer constitutes the contribution of financial support to the union in violation of state statutes. (Journeymen Barbers etc., Local Union No. 205 v. Industrial Comm., 128 Colo. 121, 131-132 [260 P.2d 941].) A third group of cases decides on the merits either that a union may properly require that a businessman-worker who competes with union labor join the union (Coons v. Journeymen Barbers, 222 Minn. 100, 102-105 [23 N.W.2d 345] ; Romero v. Journeymen Barbers, 63 N.M. 443, 444-447 [321 P.2d 628]) or that it may not do so (Kerkemeyer v. Midkiff, -Mo.-[299 S.W.2d 409, 417]; Grimaldi v. Local No. 9, Journeymen Barbers, 397 Pa. 1 [153 A.2d 214, 215], cert. den., 361 U.S. 901 [80 S.Ct. 210, 4 L.Ed.2d 157].)

The law of California is that if plaintiff was offered the same rights of union membership as the employee members (Riviello v. Journeymen Barbers etc. Union, 88 Cal.App.2d 499, 504-507 [199 P.2d 400] ; second opinion, 109 Cal.App.2d 123, 124, 129 [240 P.2d 361]), defendants’ peaceful picketing to compel him to join the union was proper because “ [t]he businessman-worker operating in an industry or field in which he competes with organized workmen may likewise be "subjected to the same means of persuasion as any other workman to join the union and conform to the conditions regulating union labor.” (Bautista v. Jones, 25 Cal.2d 746, 749 [155 P.2d 343]; see Emde v. San Joaquin County etc. Council, 23 Cal.2d 146, 155 [143 P.2d 20, 150 A.L.R. 916].) Safeway Stores v. Retail Clerks etc. Assn., 41 Cal.2d 567 [261 P.2d 721], is not to the contrary. That case holds that organized labor may not, consistently with public policy, require store managers who are agents of management to divide their loyalties by becoming union members. (Id., at 575.) Plaintiff owes no loyalty to any principal and thus will not be placed in the same position as the store managers by becoming a union member. Moreover, the store managers did not normally perform the same duties as the store clerks in the Safeway case (Id., at 572) and thus did not compete directly with the union members. Plaintiff, by choosing to compete on the same level as union barbers, threatens the union-won scale of terms and conditions, even if he voluntarily adheres to the same or a higher scale (see C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 401 [106 P.2d 414]).

Plaintiff contends that since employer-barbers and proprietor-barbers are members of the union, defendant union is not merely a labor organization but also a price-fixing organization of employers. The union contract, offered to plaintiff in this ease, sets the weekly wage of a full-time journeyman barber at 70 per cent of his gross receipts with a guaranteed minimum of $50 per week. Clause 13 provides that “ [w]hereas wages are paid on a percentage basis the prices to be charged under this Agreement in all Union barber shops not to be less than the following: [listing the prices for barber shop services].”

Combinations entered into for the purpose of restraining competition and fixing prices are unlawful in this state under the common law (Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 44 [172 P.2d 867]) and the Cartwright Act. (Bus. & Prof. Code, § 16700 et seq.) Although human labor is not a “commodity” under the act (§ 16703), a service consisting in the main of human labor is. (People v. Building Maintenance etc. Assn., 41 Cal.2d 719, 723 [264 P.2d .31].) Section 16703, however, is not limited to exempting from the act agreements that set the price of labor. “Reasonably interpreted, [it] must be held to have been intended to except from the operation of the act combinations of laborers for the purposes of furthering their interests by collective bargaining, when not otherwise unlawful.” (Schweizer v. Local Joint Executive Board, 121 Cal.App.2d 45, 53 [262 P.2d 568].) Accordingly, “the real test in a particular ease is the primary purpose of the agreement or combination in question.” (Schweizer v. Local Joint Executive Board, supra, at 53.) Thus, a labor union, acting alone, violates the Cartwright Act only when its primary purpose is to accomplish a restraint of trade (Alpha Beta Food Mkts. v. Amalgamated Meat Cutters, 147 Cal.App.2d 343, 345-346 [305 P.2d 163] ; Kold Kist v. Amalgamated Meat Cutters, 99 Cal.App.2d 191, 198-199 [221 P.2d 724] ; cf. O’Shea v. Tile Layers Union, 155 Cal.App.2d 373, 376-377 [318 P.2d 102]; Miracle Adhesives Corp. v. Peninsula Tile Contr. Assn., 157 Cal.App.2d 591, 594-595 [321 P.2d 482] ; see also Saveall v. Demers, 322 Mass. 70, 72-73 [76 N.E.2d 12] ; Commonwealth v. McHugh, 326 Mass. 249, 263-264 [93 N.E.2d 751] ; Purcell v. Journeymen Barbers, 234 Mo.App. 843, 860 [133 S.W.2d 662]; but see Cleaners, Dyers, etc. Union v. G.H.W. Cleaners & D., 200 La. 83, 90-91 [7 So.2d 623]), not when its purpose is to obtain a valid labor objective (Los Angeles Pie Bakers Assn. v. Bakery Drivers, 122 Cal.App.2d 237, 238, 243 [264 P.2d 615] ; Schweizer v. Local Joint Board, supra; Local 24, Internat’l Broth. Teamsters v. Oliver, 358 U.S. 283, 292-295 [79 S.Ct. 297, 3 L.Ed.2d 312]). As in the rent-fixing clause considered in Local 24, Internat’l Broth. Teamsters v. Oliver, supra, the point of clause 13 is not price-fixing, but wage-fixing, and the presence of employer-barbers in the union does not convert the contract into an agreement between labor groups and nonlabor groups for the purpose of restraining trade. (Cf. Alfred M. Lewis, Inc. v. Warehousemen etc. Local No. 542,163 Cal.App.2d 771 [330 P.2d 53] ; Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797 [65 S.Ct. 1533, 89 L.Ed. ] ; Giboney v. Empire Storage Co., 336 U.S. 490 [69 S.Ct. 684, 93L.Ed. 834].)

The conclusion we reach is not inconsistent with Overland Pub. Co. v. H. S. Crocker Co., 193 Cal. 109 [222 P. 812], In holding the agreement there involved between labor and nonlabor groups a violation of the Cartwright Act, this court said “ [t]here is no question in our minds but that the primary purpose of this agreement was to create or carry out restrictions in trade or commerce.....” (Id., at 115.) There is not a shred of evidence in the record in the present case to support a contention that such was the purpose of clause 13.

Nor is our conclusion inconsistent with the general statement in Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 44-45 [172 P.2d 867], that “[t]he public interest requires free competition so that prices will not be dependent upon an understanding among suppliers of any given commodity, but upon the interplay of the economic forces of supply and demand.” That statement cannot be wrenched from its context to condemn activity that the case did not contemplate. In the area of trade regulation the values of free competition themselves compete with the values of wage security. Clause 13 sought to secure certain wages as in any other union contract. The difficulty of setting a fixed wage that is fair and reasonable in a trade consisting entirely of personal services is apparent. The union’s method of setting the cost of its labor to the employer in the barber’s trade by reference to price is appropriate in a service trade as it might not be in areas where the worker’s labor is not so predominantly linked with costs.

Respondent does not contend that the contract, if entered into between the union and an employer who does not work with the tools of the trade and hence does not belong to the union, is a violation of the common-law rule against price-fixing. He contends only that the union itself is a price-fixing association because some employers belong to it who have agreed among themselves to support minimum prices. As noted earlier, however, the employer-barbers are required to join the union only because they work in direct competition with employee-barbers and could affect the wage scale adversely if they were not subjected to union responsibilities, even if their individually established price scales were above the union scale. (See C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 401 [106 P.2d 414].)

Plaintiff also contends that because employer-members are required to pay union dues and fees, defendant is an employee group financed in part by employers in violation of section 1122 of the Labor Code. That section provides: “ [a]ny person who organizes an employee group which is financed in whole or in part, interfered with or dominated or controlled by the employer or any employer association, as well as such employer or employer association, shall be liable to suit by any person who is injured thereby. Said injured party shall recover the damages sustained by him and the costs of suit.” Section 1122 is part of the Jurisdictional Strike Act (Lab. Code, §§ 1115-1120, 1122) and its plain purpose is to give an action for damages to any person injured by the formation of a company union. Even were defendant partly financed by the dues of employer-members, their dues would not give them control over union power and policy. Employers are prohibited from financing labor unions because such financing might render a union less independent and thus less able to represent its members effectively vis-a-vis the employer. When, as here, the employer is himself a workman, his dues are no different from those of any other member. Plaintiff’s reliance on Journeymen Barbers, etc. Local Union No. 205 v. Industrial Com., 128 Colo. 121, 131-132 [260 P.2d 941], which reached a different result under a statute making the employer’s contribution of financial support to a labor union an unfair labor practice (Colo. Rev. Stat. 80-5-6 (1) (b)), is misplaced. That case relied exclusively upon two earlier cases (Wisconsin Employ. Rel. Board v. Journeymen Barbers, 256 Wis. 77, 85-86 [39 N.W.2d 725] ; DiLeo v. Baneault, 329 Mass. 590, 595-597 [109 N.E.2d 824]) that have been superseded by subsequent legislation (Wis. Stat. Ann. § 111.06 (1-b) (1957) ; see Wisconsin Employ. Rel. Board v. Journeymen Barbers, 272 Wis. 84, 89-90 [74 N.W.2d 815] ; Ann. Laws of Mass. ch. 150A, § 4(2) (1956)).

In view of our conclusion that the trial court’s judgment must be reversed, we need not consider defendants’ contention that even if their picketing was directed toward an improper purpose the trial court lacked power to issue an injunction in the absence of proof that plaintiff had been injured by their conduct.

The judgment is reversed.

Gibson, C. J., Peters, J., and White, J., concurred.

1 The California policy of course differs from policies of states with different statutory provisions. Twenty states have 1 ‘ right-to-work ’ ’ laws that prohibit union security contracts. (See dissenting opinion herein, footnote 7.) Ten other states have statutes specifically requiring that union security contracts be supported by a majority vote of the employees directly involved. Those states, all except Hawaii cited in footnote i of the dissenting opinion herein, include Colorado (Rev. Stats. §80-5-0 (c), requiring approval of three-quarters); Connecticut (Gen. Stats. §31-105 (5), 31-106(a)); Hawaii (1959 Session Laws, Act. 210, p. 141) ; Idaho (Code, § 44-107, 1959 Supp.) ; Kansas (Gen. Stat. § 44-809 (4), also included in the 20 states with “ right-to-work ” laws and not counted in these ten) ; Massachusetts (Ann. Laws, ch. 150A, §§4(3) and 5); Michigan (Stat. Ann. § 17. 454 (15)); Minnesota (Stat. Ann. §§179.12 (3), 179.16 (1); New York (Laws Ann. ch. 31, §§ 704 (5) 705); Pennsylvania (Stats. Ann. tit. 43, §§211.6 (1) (c), 211.7 (a)); and Wisconsin (Stat. Ann. § 111.06 (1) (c)). Six states not otherwise accounted for and having only a provision more or less similar to section 923 of the California Labor Code reach a result contrary to that of Shafer v. Registered Pharmacists Union, supra. (Kentucky, Maine, Missouri, New Jersey, Washington and Wyoming. See eases cited in footnote 4 of the dissenting opinion herein.) Of the remaining thirteen states, six have no specific statutes and of these three (New Mexico, Rhode Island, and West Virginia) support the majority view in this case while three (Ohio, Illinois, and perhaps New Hampshire) support the dissent’s view'. (Sec footnotes 6 and 8 of dissenting opinion herein. The Now Hampshire case is unclear as to w'hether the union had majority support. That it liad some support from the employees is clear. [White Mt. Freezer Co. v. Murphy] 78 N.H. 398 [101 A. 357, 358].) Of the remaining seven states, six apparent!)' have not passed on the point (Alaska, Delaware, Maryland, Oklahoma. Vermont and Montana) ; and one (Oregon) has repealed i1s labor relations statute and not yet enacted another (Ore. Laws, 1959, ch. 55, § 1). Thus, nine states without special statutes are opposed to the California position.