SHENK, J.
This is an appeal by the defendants from a judgment granting to the plaintiff a writ of mandate to compel his admission to membership in the defendant Local 162 of the Moving Picture and Projecting Machine Operators of the City and County of San Francisco. Damages in the sum of $1,289.70 and $1,500 attorney fees were also awarded to the plaintiff.
Local 162 is a member of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. Through contracts with 66 of the 70 motion picture theaters in San Francisco it controlled working conditions for projectionists and machine operators. It limited the number of journeymen members to 112 all of whom were regularly employed, and in addition dispatched machine operators and projectionists for another 175 jobs from the membership of other locals. The plaintiff is an experienced and qualified machine operator, having been engaged in that work since 1942 except for Army service. He is a member of Local B18, a subsidiary of Local 162. Over and above his dues to Local B18, he is required to pay a “working fee” to Local 162 in the same amount as its journeymen members. However, he is not a member of that union, he lacks the security of employment and seniority possessed by the members thereof, and has no voice as to its organization, its contracts or working conditions imposed by it.
Prior to the commencement of this action the plaintiff was regularly dispatched to work by the officials of Local 162. [632]*632In January 1953 be filed with that local his written application for journeyman membership accompanied by one-half of the initiation fee, as required by its constitution. He was notified in writing to take the entrance examination conducted by the local. He passed it, filed a doctor’s certificate showing a good physical condition, and appeared at a regular meeting relating to applications for memberships. His application failed to receive a favorable two-thirds vote of the members voting, as required by the local’s constitution, and was rejected. The trial court found that the “plaintiff meets all lawful and reasonable requirements for membership in Local 162; and that plaintiff has performed each and every act heretofore required of him under the constitution and by-laws of Local 162 as a condition precedent to admission to journeymen membership therein, save and except said membership vote.” After the rejection of his application Local 162 dispatched a newly-admitted journeyman to perform the work for which the plaintiff had been regularly employed and the plaintiff has since then been employed intermittently elsewhere.
The plaintiff contends, and rightly so, that a labor organization may not properly maintain a closed union and a closed shop at the same time. (James v. Marinship Corp., 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900]; Dotson v. International Alliance etc. Employes, 34 Cal.2d 362 [210 P.2d 5].) Furthermore, a reference to the opinion in the case of Garmon v. San Diego Building Trades Council, ante, p. 595 [320 P.2d 473], this day decided, discloses that under present law a state court has jurisdiction to grant both legal and equitable relief in disputes involving labor practices in violation of valid state laws where interstate commerce is not involved but may not grant equitable relief by way of injunction in controversies involving commerce between the states. The plaintiff contends that interstate commerce is not here involved and that the state court therefore has jurisdiction to grant both the equitable and legal relief sought by him.
Whether the cause of action alleged by the plaintiff is one entirely local in character or one also affecting interstate commerce must be determined by an examination of the record in this case. It appears from the amended complaint that the defendant Local 162 asserts “jurisdiction over moving picture operators and projectionists employed in the City and County of San Francisco, State of California”; that Local 162 exercises “a monoply over all employment in the occupation of moving picture machine operators and pro[633]*633jectionists employed in the said City and County,” and “does possess, maintain and enforce closed shop agreements with all the employers who own or operate motion picture theaters covering the employment of moving machine operators and projectionists in said City and County”; that the plaintiff “entered the jurisdiction of Local 162 in February, 1942, when he commenced work as a moving picture machine operator and projectionist in San Francisco”; that “from June, 1951 until June 7, 1953 plaintiff was regularly employed as a moving picture machine operator and projectionist in the Center Theater in said City and County”; that on or about May 22, 1953 defendants notified the plaintiff in writing that one Joseph Ford, a member of Local 162, had requested plaintiff’s job at the Center Theater and that said Ford would take over plaintiff’s job at said theater on June 7, 1953,” and that “defendants thereafter dispatched said Ford to said Center Theater on June 7, 1953 in the place and stead of plaintiff and the plaintiff was thereby deprived of his employment and the right to work in his trade in said City and County.”
There is nothing in the foregoing to suggest that the employment from which the plaintiff was deprived was one which affected interstate commerce. Likewise, there is nothing in the answer which in any way raised such an issue either by denial or in the allegations of affirmative defenses. As the issue was not raised by the pleadings or the proof the trial court made no findings of fact as to whether the plaintiff’s employment was or was not one which affected interstate commerce.
The defendants seek now, for the first time on appeal, to show that the plaintiff’s employment had a substantial effect on interstate commerce and that thereby the state court was deprived of jurisdiction under the rule announced by the Supreme Court of the United States in Guss v. Utah Labor Relations Board, 353 U.S. 1 [77 S.Ct. 598, 1 L.Ed.2d 601], Amalgamated Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20 [77 S.Ct. 604, 1 L.Ed.2d 613], and San Diego Building Trades Council v. Garmon, 353 U.S. 26 [77 S.Ct. 607, 1 L.Ed.2d 618]. This request would require a factual determination which on the present record cannot be made. Having failed to raise the issue in the pleadings and to submit evidence in the trial court in proof thereof, the defendants are now foreclosed from asserting it. (Seven Up etc. Co. v. Grocery etc. Union, 40 Cal.2d 368, 372 [254 P.2d 544, 33 A.L.R.2d 327].)
[634]*634The fact that the defendant Local 162 is affiliated with the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, also a defendant herein, and presumably might make the effect of the limitations imposed on the plaintiff’s employment felt on a nationwide scale is of no consequence.
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SHENK, J.
This is an appeal by the defendants from a judgment granting to the plaintiff a writ of mandate to compel his admission to membership in the defendant Local 162 of the Moving Picture and Projecting Machine Operators of the City and County of San Francisco. Damages in the sum of $1,289.70 and $1,500 attorney fees were also awarded to the plaintiff.
Local 162 is a member of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. Through contracts with 66 of the 70 motion picture theaters in San Francisco it controlled working conditions for projectionists and machine operators. It limited the number of journeymen members to 112 all of whom were regularly employed, and in addition dispatched machine operators and projectionists for another 175 jobs from the membership of other locals. The plaintiff is an experienced and qualified machine operator, having been engaged in that work since 1942 except for Army service. He is a member of Local B18, a subsidiary of Local 162. Over and above his dues to Local B18, he is required to pay a “working fee” to Local 162 in the same amount as its journeymen members. However, he is not a member of that union, he lacks the security of employment and seniority possessed by the members thereof, and has no voice as to its organization, its contracts or working conditions imposed by it.
Prior to the commencement of this action the plaintiff was regularly dispatched to work by the officials of Local 162. [632]*632In January 1953 be filed with that local his written application for journeyman membership accompanied by one-half of the initiation fee, as required by its constitution. He was notified in writing to take the entrance examination conducted by the local. He passed it, filed a doctor’s certificate showing a good physical condition, and appeared at a regular meeting relating to applications for memberships. His application failed to receive a favorable two-thirds vote of the members voting, as required by the local’s constitution, and was rejected. The trial court found that the “plaintiff meets all lawful and reasonable requirements for membership in Local 162; and that plaintiff has performed each and every act heretofore required of him under the constitution and by-laws of Local 162 as a condition precedent to admission to journeymen membership therein, save and except said membership vote.” After the rejection of his application Local 162 dispatched a newly-admitted journeyman to perform the work for which the plaintiff had been regularly employed and the plaintiff has since then been employed intermittently elsewhere.
The plaintiff contends, and rightly so, that a labor organization may not properly maintain a closed union and a closed shop at the same time. (James v. Marinship Corp., 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900]; Dotson v. International Alliance etc. Employes, 34 Cal.2d 362 [210 P.2d 5].) Furthermore, a reference to the opinion in the case of Garmon v. San Diego Building Trades Council, ante, p. 595 [320 P.2d 473], this day decided, discloses that under present law a state court has jurisdiction to grant both legal and equitable relief in disputes involving labor practices in violation of valid state laws where interstate commerce is not involved but may not grant equitable relief by way of injunction in controversies involving commerce between the states. The plaintiff contends that interstate commerce is not here involved and that the state court therefore has jurisdiction to grant both the equitable and legal relief sought by him.
Whether the cause of action alleged by the plaintiff is one entirely local in character or one also affecting interstate commerce must be determined by an examination of the record in this case. It appears from the amended complaint that the defendant Local 162 asserts “jurisdiction over moving picture operators and projectionists employed in the City and County of San Francisco, State of California”; that Local 162 exercises “a monoply over all employment in the occupation of moving picture machine operators and pro[633]*633jectionists employed in the said City and County,” and “does possess, maintain and enforce closed shop agreements with all the employers who own or operate motion picture theaters covering the employment of moving machine operators and projectionists in said City and County”; that the plaintiff “entered the jurisdiction of Local 162 in February, 1942, when he commenced work as a moving picture machine operator and projectionist in San Francisco”; that “from June, 1951 until June 7, 1953 plaintiff was regularly employed as a moving picture machine operator and projectionist in the Center Theater in said City and County”; that on or about May 22, 1953 defendants notified the plaintiff in writing that one Joseph Ford, a member of Local 162, had requested plaintiff’s job at the Center Theater and that said Ford would take over plaintiff’s job at said theater on June 7, 1953,” and that “defendants thereafter dispatched said Ford to said Center Theater on June 7, 1953 in the place and stead of plaintiff and the plaintiff was thereby deprived of his employment and the right to work in his trade in said City and County.”
There is nothing in the foregoing to suggest that the employment from which the plaintiff was deprived was one which affected interstate commerce. Likewise, there is nothing in the answer which in any way raised such an issue either by denial or in the allegations of affirmative defenses. As the issue was not raised by the pleadings or the proof the trial court made no findings of fact as to whether the plaintiff’s employment was or was not one which affected interstate commerce.
The defendants seek now, for the first time on appeal, to show that the plaintiff’s employment had a substantial effect on interstate commerce and that thereby the state court was deprived of jurisdiction under the rule announced by the Supreme Court of the United States in Guss v. Utah Labor Relations Board, 353 U.S. 1 [77 S.Ct. 598, 1 L.Ed.2d 601], Amalgamated Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20 [77 S.Ct. 604, 1 L.Ed.2d 613], and San Diego Building Trades Council v. Garmon, 353 U.S. 26 [77 S.Ct. 607, 1 L.Ed.2d 618]. This request would require a factual determination which on the present record cannot be made. Having failed to raise the issue in the pleadings and to submit evidence in the trial court in proof thereof, the defendants are now foreclosed from asserting it. (Seven Up etc. Co. v. Grocery etc. Union, 40 Cal.2d 368, 372 [254 P.2d 544, 33 A.L.R.2d 327].)
[634]*634The fact that the defendant Local 162 is affiliated with the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, also a defendant herein, and presumably might make the effect of the limitations imposed on the plaintiff’s employment felt on a nationwide scale is of no consequence. The employment involved in the present case concerned only the Center Theater in the City and County of San Francisco and there is no hint that the business of that employer affected interstate commerce. (See 29 U.S.C.A. § 151, Findings and declaration of policy, and § 152, Definitions.) Accordingly the dispute is not one within the cognizance of the National Labor Relations Board and the state courts are not deprived of their jurisdiction to resolve the controversy and to award equitable relief and damages for tortious conduct.
It is clear that the plaintiff’s cause of action falls within the principles announced in James v. Marinship Corp., supra, 25 Cal.2d 721, and that mandamus is a proper remedy. (Cason v. Glass Bottle Blowers Assn., 37 Cal.2d 134 [231 P.2d 6, 21 A.L.R.2d 1387]; Dotson v. International Alliance etc. Employes, supra, 34 Cal.2d 362.) The defendants claim, however, that in determining the plaintiff’s loss of earnings the trial court failed to take into consideration earnings by the plaintiff in other than theater employment, and that such loss of earnings was based in part on overtime work available at the Center Theater whereas the plaintiff’s health would not have permitted him to perform such work. It appeared that the plaintiff had earnings from other than theater work both before and after his discharge from the Center Theater. The court awarded damages based upon the difference in the plaintiff’s actual earnings from theater employment and the actual earnings of the projectionist who replaced him at the Center Theater during the period involved. This was a reasonable and proper basis to award damages. (Dotson v. International Alliance etc. Employes, supra, 34 Cal.2d 362, 374; Zinn v. Ex-Cell-O Corp., 24 Cal.2d 290, 297, 298 [149 P.2d 177]; Harris v. National Union etc. Cooks & Stewards, 98 Cal.App.2d 733, 738 [221 P.2d 136].) The findings of fact and conclusions of law are essentially in accordance with the allegations of the amended complaint as to the right to the writ of mandate and the award of damages and there is substantial evidence in support thereof.
It is claimed that the award for attorney fees is not recoverable in this case. As there was no contractual, statutory or other proper basis for the award it was therefore im[635]*635properly made. (Viner v. Untrecht, 26 Cal.2d 261, 272 [158 P.2d 3].)
The defendants also claim that the plaintiff failed to exhaust his administrative remedies within the defendant unions. The trial court found on substantial evidence that had the plaintiff attempted to appeal from his rejection of membership it would have been a “futile, useless and idle act. . . .” Accordingly he was not required to pursue such a remedy. (Civ. Code, § 3532; Elevator Operators etc. Union v. Newman, 30 Cal.2d 799, 809 [186 P.2d 1].)
The judgment is modified by striking therefrom the award for attorney fees in the amount of $1,500 and, as so modified, is affirmed, with costs to neither party.
Schauer, J., Spence, J., and McComb, J., concurred.