Sommer v. Metal Trades Council

254 P.2d 559, 40 Cal. 2d 392, 1953 Cal. LEXIS 202, 32 L.R.R.M. (BNA) 2004

• Court: California Supreme Court
• Decided: March 10, 1953
• Docket: L. A. 21757
• Status: Published

Opinions

SHENK, J.

This is an appeal by the defendants from an order granting a preliminary injunction.

The controversy involves concerted union activities which bring into question the application of the Jurisdictional Strike Act of this state (§ 1115 et seq., Labor Code added by Stats. 1947, p. 2592). The constitutional validity of that statute has been determined in Seven Up Bottling Co. v. Grocery Drivers Union, L. A. No. 21347 (ante, p. 368 [254 P.2d 544]). The question is whether the state court had jurisdiction to order the preliminary injunction and, if it had jurisdiction whether it properly exercised its discretion in directing that it should issue.

For 31 years the plaintiff has manufactured, distributed and installed auto service stations and equipment. He employs 50 persons. The defendant unions are affiliated with the American Federation of Labor. The individual defendants are members and officers of the unions.

Prior to July, 1949, the plaintiff’s employees were unorganized. In that month the defendants demanded of the plaintiff that he recognize the unions as the exclusive collective bargaining representatives of the employees, and that only members of the unions be employed by him. In September the employees held meetings to organize The Workers Association of Manufacturers and Builders of Auto Service Union Local No. 1, without A. F. of L. or other union affiliation, and demanded that the employer recognize it as their exclusive bargaining representative. The plaintiff refused to recognize either Local No. 1 or the unions as the employees’ collective bargaining agent. Peaceful picketing and secondary boycott activities, including the representation that the plaintiff was unfair to organized labor, were commenced by the defendants on September 15, 1949.

Also in September the employees’ Local filed a petition with the National Labor Relations Board for certification as the representative for collective bargaining purposes. The unions intervened and contested for recognition. On February 24, 1950, the National Board found that the plaintiff was engaged in commerce within the meaning of the federal labor relations law and ordered an election. The plaintiff alleges that an election was conducted by the Local; that 25 employees voted for the Local, seven of which votes were challenged by the defendants, and that five employees voted for the unions. It does not appear whether the election was pursuant to the board’s direction or whether certification of a collective bargaining representative followed.

The defendants continued their concerted activities and the plaintiff commenced this action for injunctive relief and damages in March, 1950. A hearing on the return to an order to show cause was had on the verified complaint and numerous affidavits. The court granted the preliminary injunction enjoining the defendants from conducting the picketing and secondary boycott activities and from representing to others that the plaintiff is unfair to organized labor.

The plaintiff’s employees are not on strike. The dispute is between the two groups concerning union organization of the plaintiff’s employees, collective bargaining representation and consequent work assignment. It is not questioned that the union picketing and secondary boycott activities substantially interfered with the conduct of the plaintiff’s business.

The plaintiff contends that the concerted union activity presents a case of a jurisdictional strike which is in violation of and enjoinable pursuant to the Jurisdictional Strike Act of which the state court has jurisdiction. The defendants contend that their activity is not in violation of the act and in any event is governable solely pursuant to the federal law.

Section 1115 of the Labor Code declares a jurisdictional strike to be against the public policy of the state and unlawful. Section 1116 provides the remedies by injunction and damages. “Labor organization” is defined as any organization or any agency or employee representation committee or any local unit thereof in which employees participate which exists for the purpose of dealing with employers concerning grievances and labor disputes and is not found to be financed, interfered with, dominated or controlled by the employer (§ 1117). Section 1118 defines “jurisdictional strike” 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 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.” Section 1119 preserves, subject to the foregoing restrictions, the right of collective bargaining and the right of any individual voluntarily to become or remain a member of a labor organization or personally to request any other individual to join a labor organization.

A policy prohibiting concerted jurisdictional activity is also contained in the federal law. Section 8(b)(4) of the amended Wagner Act (National Labor Relations Act, July 5, 1935, 49 Stats. 452, ch. 372, 29 U.S.C.A. § 158, as amended by the Labor Management Relations Act, 1947, 61 Stats. 140) specifies concerted jurisdictional activities which are declared to be unfair labor practices on the part of labor organizations, and section 303(a) of the amended act declares the conduct to be unlawful. (See discussion Teller, Labor Disputes and Collective Bargaining, 1950 Supplement, p. 111 et seq., p. 121 et seq.) For present purposes it is sufficient to note- that section 8(b)(4)(C) declares it to be an unfair labor practice for a labor organization to engage in concerted activity (as here) for the purpose of forcing or requiring the employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as their representative under the provisions of the act.

The preliminary injunction was ordered in May, 1950. The trial court appears not to have been informed as to any finality in the representation proceeding before the National Labor Relations Board. For the purpose of this appeal it is assumed that the plaintiff is engaged in interstate commerce and that there is no certification of a collective bargaining representative for his employees under the federal act. In the representation proceeding the unions sought to introduce evidence of employer domination of the Local, but the evidence was refused consideration because the issue was not subject to litigation in that proceeding. Subsequently the unions filed charges of employer coercion and domination of the Local in violation of sections 8(a)(1) and (2) of the federal act. In December, 1949, the evidence of domination was held to be insufficient to warrant investigation at that time. On September 22d and December 5, 1949, the employer filed with the National Board charges of union jurisdictional activity in violation of section 8(b)(4) of the act. On December 28th the charges were dismissed for lack of evidence of violation at that time. It does not appear that the charges were renewed after a possible certification of the employees’ Local as their representative for collective bargaining purposes.

It may also be assumed that the evidence which was relevant in the representation contest and to the several charges of unfair labor practices before the National Board bears on the issues here. But it does not follow that the state court does not have jurisdiction of this controversy.

Gerry of California v. Superior Court (June, 1948), 32 Cal.2d 119 [194 P.2d 689], does not determine with finality the matter of jurisdiction on this appeal. The Gerry case involved interstate commerce but was not concerned with union jurisdictional activity as defined in our statute. Secondary boycott activities were there employed by A.F. of L. anions for the purpose of organizing the petitioner’s nonunion employees. In view of the fact that the court in In re Blaney, 30 Cal.2d 643 [184 P.2d 892], had held invalid the hot cargo and secondary boycott act of 1941, the petitioner agreed that there was no California statute which could furnish equitable redress. The petitioner contended that the state had concurrent jurisdiction with the National Labor Relations Board to enforce the provisions of the federal act. The decision rejecting the 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. This court in In re DeSilva, 33 Cal.2d 76, 78 [199 P.2d 6], again recognized that the Gerry case involved the question of the concurrent jurisdiction of the state court to enforce the federal act. Thus the problem now is not whether the state has concurrent jurisdiction with the National Board to enforce the federal act. The question is whether the state court has jurisdiction to enforce the provisions of a state statute making the defined union jurisdictional activity unlawful and subject to restraint.

At the time of the decision in the Gerry case, Bethlehem Steel Co. v. New York State Labor Relations Board (April, 1947), 330 U.S. 767 [67 S.Ct. 1026, 91 L.Ed. 1234], was the latest holding of the Supreme Court that except where jurisdiction had been ceded by the National Board to a state agency, state and federal action in matters covered by the federal act could not coexist. The Supreme Court has since recognized the validity of state action in those cases where the conduct complained of is neither forbidden nor legalized and approved under the federal act.

The Bethlehem Steel formula was followed in La Crosse Tel. Corp. v. Wisconsin Emp. Relations Board (Jan., 1949), 336 U.S. 18 [69 S.Ct. 379, 93 L.Ed. 463], where cession had not been granted. The jurisdiction of the local board in a certification procedure was denied because of inconsistencies between the federal and the state acts. The court said at page 26: “A certification by a state board under a different or conflicting theory of representation may therefore be as readily disruptive of the practice under the federal act as if the orders of the two boards made a head-on collision. These are the very real potentials of conflict which lead us to allow supremacy to the federal scheme even though it has not yet been applied in any formal way to this particular employer. ’ ’

The state power to set the limits of permissible contest available to industrial combatants, so long as constitutional guaranties are observed, is not open to question. (Senn v. Tile Layers Protective Union, 301 U.S. 468 [57 S.Ct. 857, 81 L.Ed. 1229] ; Thornhill v. Alabama, 310 U.S. 88, 103 [60 S.Ct. 736, 84 L.Ed. 1093].) International Union v. Wisconsin Emp. Relations Board (Feb., 1949), 336 U.S. 245 [69 S.Ct. 516, 93 L.Ed. 651], again recognized the area of control open to the state (see numerous cases cited at p. 257; cf. Giboney v. Empire Storage & Ice Co., 336 U.S. 490 [69 S.Ct. 684, 93 L.Ed. 834]; see, also, Gerry of California v. Superior Court, supra, 32 Cal.2d at p. 125 and cases cited). There the local board ordered the union to cease intermittent unannounced work stoppages for unstated purposes and other concerted activity except by leaving the premises in an orderly manner for the purpose of exercising the protected right of going on strike. The Supreme Court pointed out that the enjoined activity was neither forbidden nor protected by the federal act.

Algoma Plywood & Veneer Co. v. Wisconsin Amp. Relations Board (Mar., 1949), 336 U.S. 301 [69 S.Ct. 584, 93 L.Ed. 691], concerned a Wisconsin law which provided for a maintenance-of-membership clause in the labor contract when a tivo-thirds employee vote favored the inclusion in a referendum conducted by the Wisconsin board. No referendum had been conducted under the state or federal act, but in January, 1947, an employee was discharged pursuant to such a clause in the current labor contract. The state court sustained the jurisdiction of the local board in the issuance of a cease and desist order to the employer including a direction for reinstatement and back pay. With the less restrictive conditions in the federal act the Supreme Court found no conflict between it and the state act on the subject of union security maintenance. In affirming the state judgment, the court reviewing the legislative history and debate and concluded that Congress did not intend to interfere with state action on the subject. Cession was deemed essential only where the state and federal laws were parallel. Where there was no overlapping, cession was said to be unnecessary because the state’s jurisdiction remains unimpaired. The court also recognized the impact of the 1947 amendments to require a modification of the Bethlehem Steel decision in cases where the National Board had declined jurisdiction, in order to permit freedom of state action including pursuit of the more restrictive state policies. The modification was held to apply so long as Congress did not manifest an unambiguous intention to vest exclusive jurisdiction in the National Board, and the state policy was not inconsistent with national policy.

Plankinton Packing Co. v. Wisconsin Emp. Relations Board (Feb., 1950), 338 U.S. 953 [70 S.Ct. 491, 94 L.Ed. 588], also involved the maintenance of union membership. On December 6,1946, the local board ordered the reemployment of employee Stokes who on May 9, 1945, had been discharged for failure to maintain his union membership. The state court determined that the local board had jurisdiction on the authority of the Algoma Plywood decision. The Supreme Court reversed without opinion citing Bethlehem Steel and La Crosse. But it cannot be assumed that the Supreme Court intended to overrule the Algoma Plywood declarations. It must on the contrary be assumed that the facts in Plankinton would disclose a federally protected union maintenance clause which would form the basis of the implied conclusion of absence of state jurisdiction.

International Union Etc. A. & A. I. W. v. O'Brien (May, 1950), 339 U.S. 454 [70 S.Ct. 781, 94 L.Ed. 978], involved a strike vote provision of the Michigan labor mediation law. It was held that since this was a protected and regulated right in a field occupied by Congress it was closed to state regulation under a statute which conflicted with the exercise of federally protected labor rights. The court recognized that in International Union v. Wisconsin Emp. Relations Board, supra (336 U.S. 245, 252), it had reaffirmed the principle that if "Congress has protected the union conduct which the State has forbidden . . . the state legislation must yield” (339 U.S. at p. 459).

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. They also demonstrate that the problem is not one which in every case is resolved solely by looking to the provisions of the federal act; bnt that if the subject matter of the local statute is otherwise one within the area of permissible exercise of state power in the maintenance of industrial peace, and state policy is consistent with federal policy, the state does not necessarily encroach upon the area of control vested in the National Board. And in some cases it is seen that the presence or absence of the factors of protection or condemnation under the federal act may be resolved by the fact of whether the National Board has or has not assumed jurisdiction.

The extent to which the organizational coercive measures are lawful is not involved at this time. It is sufficient to note that the statutory restrictions on jurisdictional strike activity are consistent with the federal policy enacted in 1947 defining as an unfair labor practice activity by a union which seeks to substitute itself as the collective bargaining agent in the place of one duly selected by the employees. There is here therefore no conflict with federal policy such as was considered fatal in Amalgamated Assn. v. Wisconsin Emp. Relations Board (Feb. 1951), 340 U.S. 383 [71 S.Ct. 359, 95 L.Ed. 364], in connection with a statute outlawing all strike activity on the part of public utility employees and substituting arbitration in the settlement of disputes. It was there pointed out that the activity forbidden by the Wisconsin law was one protected under the federal law.

If the union activity here involved is not protected under the federal act it is not immunized from state action. The union concerted activity was not protected under the federal act if another union was certified by the national board as the collective bargaining representative of the plaintiff's employees. And in the absence of such certification there is no immunity under the state law if the employees’ Local constitutes a collective bargaining representative within the meaning of the jurisdictional strike provisions, (cf. Park & Tilford I. Corp. v. International etc. of Teamsters (Jan., 1946), 27 Cal.2d 599, 603, 604 [165 P.2d 891, 162 A.L.R. 1426].) Since the certification of a union other than the defendant is not shown, a case of condemnation of the union activity under the federal act is not presented. And as it does not appear that the National Board has seen fit to act finally in either the representation or the unfair charges proceedings there is involved a possible area of activity which is neither protected nor condemned under the federal act, and pursuant to the foregoing decisions is subject to state action under the anti-jurisdictional strike provisions of the Labor Code.

Thus, there is here an area open to the state for the exercise of its police power. The state policy of outlawing jurisdictional coercive activity in the maintenance of peaceful industrial relations justifies the injunctive as well as legal relief. The provisions of section 303 (b) of the amended federal act confining the action which may be brought in the state courts to that for recovery of damages to business or property are concerned with state jurisdiction in matters covered by that act. They do not preclude local injunctive relief in an area open to state control.

In view of the many decisions recognizing the constitutional right of states to proscribe picketing in the furtherance of unlawful objectives (Giboney v. Empire Storage & Ice Co., supra, 336 U.S. 490, 502-503, citing Bakery & P. Drivers & H., I. B. T. v. Wohl, 315 U.S. 769, 776-777 [62 S.Ct. 816, 86 L.Ed. 1178] ; Hughes v. Superior Court, 339 U.S. 460, 464 [70 S.Ct. 718, 94 L.Ed. 985]; International Brotherhood C. W. & H. Union v. Hanke, 339 U.S. 470, 474 [70 S.Ct. 773, 94 L.Ed. 995, 13 A.L.R.2d 631] ; Building Service Emp. Intl. Union v. Gazzam, 339 U.S. 532, 537 [70 S.Ct. 784, 94 L.Ed. 1045] citing numerous cases; International Etc. Electrical Workers v. National Labor Relations Board (June, 1951), 341 U.S. 694, 705 [71 S.Ct. 954, 95 L.Ed. 1299] ; see, also, James v. Marinship Corp., 25 Cal.2d 721, 729-730 [155 P.2d 329, 160 A.L.R. 900] and eases cited; Rubin v. American Sportsmen Television Eq. Soc., L. A. No. 21803, post, p. 412 [254 P.2d 510]), it may not successfully be contended that the defendant unions have the right to publicize the present controversy by means of placards and picketing if the objective is shown to be in violation of the Jurisdictional Strike Act. As said in the Hughes case at page 464, the "Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its use in these situations”; and in the Hanke case at page 474, that “while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech. . . . The effort in the cases has been to strike a balance between the constitutional protection of the element of communieation in picketing and ‘the power of the State to set the limits of permissible contest open to industrial combatants. ’ ’ ’

In Gerry of California v. Superior Court, supra, 32 Cal.2d 119, there was an attempt by the petitioner’s employees to form their own organization for collective bargaining purposes and an unsuccessful attempt to obtain certification under the federal act. The events took place in November, 1947, after the effective dates of the Labor Management Relations Act, 1947 (August), and of the state Jurisdictional Strike Act (September, 1947). In that case apparently neither counsel nor court considered that the effort to form a local unaffiliated organization of the nonunion employees constituted a labor organization within the meaning of section 1117 of the Labor Code. Consequently the petitioner’s employees were treated as unorganized for the purpose of the decision in that case.

The controversy here presents for the first time the question whether a somewhat similar attempt effects a labor organization within the meaning of the statute. At this point it may not be seriously questioned that such a local unit, if qualified and undominated by the employer, may constitute a labor organization for collective bargaining purposes. That it may is clearly indicated by the language of the statute. That effect was also impliedly determined by the order of the National Board in the representation proceeding and in the dismissal of the charges based on alleged employer domination. But here the factual elements which would support the granting of an injunction cannot be finally resolved until a trial on the merits. In the meantime the trial court was justified in maintaining the status quo until it should decide the questions of the lawfulness of the union activity and the propriety of issuing a permanent injunction. The requirements of qualification and voluntary character of the employees’ organization are preliminarily met by the prima facie showing in the complaint and the affidavits, and thereby the trial court’s jurisdiction to order the temporary relief is established. On the application for the preliminary order the court also could, and undoubtedly did, weigh the probable injury which would ensue to the plaintiff by denying the temporary relief as against the absence of probable injury which would accrue to the defendants by granting it. The record does not indicate that the court abused its discretionary power in making these determinations adversely to the defendants and in granting the injunctive order pending a trial on the merits.

The order is affirmed.

Edmonds, J., Schauer, J., and Spence, J., concurred.