Opinion
BURKE, J.
Petitioners are the United Farm Workers Committee (“UFWOC”), and its two principal officers, Cesar Chavez (“Chavez”), and Dolores Huerta (“Huerta”). By this proceeding they seek a writ of prohibition restraining respondent court from enforcing, by contempt proceedings or otherwise, the provisions of a preliminary injunction issued by respondent on October 8, 1970. We have concluded that enforcement of a substantial portion of the preliminary injunction would violate petitioners’ constitutional rights of free speech and that a peremptory writ should issue accordingly.
Real party in interest Bud Antle, Inc. (“Antle”), is engaged in the growing, harvesting, and shipping of various agricultural products. Since 1961, Antle has been a signatory to various collective bargaining agreements entered into with the General Teamsters, Warehousemen and Helpers Union, Local 890 (“Teamsters”), covering a number of categories of Antle’s employees. On July 16, 1970, Antle and Teamsters executed a collective bargaining agreement which, for the first time, cov
ered Antle’s agricultural field workers.
On or about August 19, 1970, petitioner Huerta approached officials of Antle and requested that UFWOC be recognized as the bargaining agent for Antle’s agricultural workers. When this request was rejected by Antle, petitioners called a strike and established picket lines at various of Antle’s agricultural operations.
On August 24, Antle filed an action against petitioners alleging, inter alia, that the strike and picketing activities violated the provisions of the California Jurisdictional Strike Act. (Lab. Code, §§ 1115-1120.)
On September 14, respondent court granted Antle’s application for a preliminary injunction prohibiting petitioners from engaging in strikes, work stoppages or picketing at any of its agricultural operations. Petitioners do not here challenge the provisions of that injunction and it is not involved in this proceeding.
On September 21, 1970, an unfair labor practice charge was filed by another Salinas Valley agricultural employer alleging that UFWOC, by engaging in secondary boycott activities directed against Antle and several other agricultural employers, had violated section 8, subdivision (b), subsection (4) of the National Labor Relations Act.
On October 19, the Regional Director of the National Labor Relations Board notified the complainant of his decision not to issue a complaint, on the ground that UFWOC is not a “labor organization” within the meaning of the Act,
because it represents only agricultural laborers who are specifically exempted from the coverage of the Act.
The complainant in that action has taken an appeal to the general
counsel of the N.L.R.B., in which appeal Antle has joined. The disposition, if any, of that appeal does not appear in the record herein.
Meanwhile, on September 25, Antle filed a supplemental complaint, alleging, inter alia, that petitioners “wrongfully and unlawfully instituted a boycott against plaintiff’s agricultural products ordering pickets to be placed at and around various grocery stores and other businesses selling plaintiff’s products, throughout the State of California and the United States urging the patrons of such stores not to buy products bearing plaintiff’s trade name.” An order to show cause was issued on that date and, on October 8, 1970, respondent court issued a second preliminary injunction, in part prohibitory and in part mandatory, which provides in substance that (1) Petitioners are enjoined from publicizing that Antle is engaged in a labor dispute; (2) Petitioners are enjoined from publicizing that Antle’s employees are not represented by a labor organization; (3) Petitioners are enjoined from in any way boycotting Antle’s products; (4) Petitioners are required to do anything reasonably required to ensure the cessation of boycott activities by members of UFWOC; (5) Petitioner Chavez is required to notify in writing all responsible personnel that all boycott activities against Antle must cease, and to file a copy of such writing with respondent court.
The preliminary injunction also provides, however, that nothing in it shall be construed as “enjoining conduct which reasonably could be construed to be an unfair labor practice under 8, subdivision (b), subsection (4) of the Labor
Management Relations Act of 1947, as amended by the Labor Management Reporting and Disclosure Act of 1959 . . . The injunction then specifies that the following described conduct is
not
within the purview of section 8, subdivision (b), subsection (4): “(1) Handbilling to advertize [sic] that a labor dispute exists between plaintiff and defendant UFWOC unless the same has the effect of inducing any individual employed by any person other than plaintiff in the course of his employment to refuse to pick up, deliver or transport any goods, or not to perform any services, at the establishment of the employer other than plaintiff engaged in distribution of plaintiff’s products. (2) Picketing, handbilling, or advertising to encourage consumers of plaintiff’s products not to buy such products, or to buy the products of producers other than plaintiff.”
On November 9, petitioners filed a notice of appeal from the preliminary injunction entered on October 8. Respondent, on November 17, issued an order specifying that petitioners’ appeal would not stay the enforcement of the injunction unless petitioners filed an undertaking in the sum of two million dollars. On the same day, respondent issued an order to show cause directed to petitioners Chavez and UFWOC, requiring them to appear on December 4 and show cause why they-should not be held in contempt of court for failing to comply with the provisions of the October 8 injunction. On December 4 the hearing was held and UFWOC was fined $1,000 for violation of the prohibitory provisions of the injunction. Chavez was sentenced to and served five days in jail for violation of the prohibitory provisions of the injunction, and was further ordered to remain in jail until such time as he agreed to comply with the mandatory provisions of the injunction. In light of the serious constitutional issues raised by petitioners, we issued an alternative writ of prohibition, staying enforcement of all provisions of the injunction except that which prohibits petitioners from representing that Antle’s employees are not represented by a labor organization, and ordering Chavez released on his own recognizance.
Petitioners challenge the validity of the injunction on two distinct
grounds: First, they allege that the activities restrained by respondent are arguably subject to regulation under sections 7 or 8 of the Act
and, hence, within the exclusive jurisdiction of the National Labor Relations Board;
second, petitioners contend that the provisions of the injunction infringe upon their rights of free speech and the injunction is, therefore, unconstitutional under the First and Fourteenth Amendments to' the federal Constitution. We have concluded that the jurisdiction of respondent court is not preempted by federal law, but that the injunction is, in major part, overly broad and violative of petitioners’ First Amendment rights.
Turning first to petitioners’ contention that jurisdiction has been preempted, we note that it is well settled that if the activity restrained by respondent is subject to regulation under the Act, state court jurisdiction is preempted.
And even though the conduct in question is not clearly so subject, if it is arguably within the scope of the jurisdiction of the National Labor Relations Board, the state courts must defer to the jurisdiction of the board.
Here petitioners place substantial reliance on the fact that unfair labor practices were alleged in a charge filed with the regional director. But as we have noted above, the director refused to issue a complaint in the matter. We deem it of no consequence that the charging party has chosen to appeal that decision,
since the bare assertion by an interested party that certain conduct is within the scope of the Act is obviously insufficient to oust a state court of jurisdiction. Petitioners’ contention must
therefore stand or fall on UFWOC’s being either a “labor organization” or the agent of a labor organization, within the meaning of the Act.
For purposes of the Act, a “labor organization” is defined in section 2, subdivision (5), of the Act, as an organization “in which employees participate and which exists for [certain enumerated purposes].”
The term “employee” is defined in section 2, subdivision (3), of the Act specifically to exclude “any individual employed as an agricultural laborer.”
Petitioners concede that UFWOC represents only agricultural laborers and, therefore, is not a “labor organization,” but they contend that since section 8, subdivision (b), subsection (4), of the Act
prohibits unfair labor practices by a labor organization “or its agents,” they are arguably subject to the provisions of the Act, as “agents” of the AFL-CIO.
The AFL-CIO is a “labor organization” for purposes of the Act.
Hence, if UFWOC were acting as the agent of the AFL-CIO in engaging in the activities in question, it might well come within the cited provisions.
Nowhere, though, is there an allegation of any facts on which such agency might be predicated; indeed, there is not even to be found a conclusionary allegation of agency. Nor is it alleged that UFWOC represents both agricultural and nonagricultural workers, in which case it would not likely be exempt from the Act.
In short, we conclude, as did the regional director, that the cited exclusion plainly applies to UFWOC and that respondent court therefore had jurisdiction to hear the complaint filed by Antle.
Turning then to the contention that the provisions of the injunction are violative of petitioners’ First Amendment rights, we review briefly the history of the California Jurisdictional Strike Act (Lab. Code, §§ 1115-1120) under the terms of which the challenged injunction was issued. The heart of the legislation, which was enacted in 1947, is Labor Code section 1118,
which defines a 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.”
In 1953, the Jurisdictional Strike Act was held constitutional against a contention that the prohibition of peaceful picketing violated the constitutional right of free speech.
(Seven Up etc. Co.
v.
Grocery etc. Union
(1953) 40 Cal.2d 368 [254 P.2d 544, 33 A.L.R.2d 327] (revd. on other grounds) (1959) 359 U.S. 434 [3 L.Ed.2d 931, 79 S.Ct. 939].) Specifically,
Seven Up
held that the state may constitutionally enjoin picketing for purposes declared to be illegal or contrary to public policy. However,
Seven Up
and its two companion cases
(Voeltz
v.
Bakery etc. Union
(1953) 40 Cal.2d 382 [254 P.2d 553];
Sommer
v.
Metal Trades Council
(1953) 40 Cal.2d 392 [254 P.2d 559]), shed little light on the extent to which the Act was intended to be, or may be enforced against conduct other than picketing.
In
Seven Up,
the court’s discussion of the free speech aspects of the case., was limited to a defense of regulation of picketing. (40 Cal.2d at pp. 373-380.) In
Voeltz
v.
Bakery etc. Union, supra,
40 Cal.2d 382, defendants were enjoined from picketing, calling a strike, and threatening to picket to enforce secondary boycotts. And in
Sommer
v.
Metal Trades Council, supra,
40 Cal. 2d 392, defendants were engaged in picketing and secondary boycott activities. Although the specifics of the latter were not set forth in the opinion, they were viewed by the court as “coercive activity” (see
id.
at p. 401). In none of those cases was a consumer (as opposed to a secondary) boycott involved, nor was the court faced with the need to define the concept of “coercive” activity, or to establish limits beyond which the Act could not constitutionally be employed. Those cases, therefore, stand for the proposition (1) that peaceful picketing for purposes declared to be illegal or contrary to the public policy of the state may be enjoined, under some circumstances, and (2) that some forms of activity other than picketing may be enjoinable, if the activity is coercive.
One reported appellate decision appears to have gone further in enjoining specific activity,
but several trial courts have held that the Act could not be applied to conduct other than picketing unless such conduct was accompanied by some element of coercion.
The question, therefore, of what “other concerted interference with an employer’s operation or business”
may be properly enjoined has not been conclusively established.
The United States Supreme Court, in the landmark cases of
Thornhill
v.
Alabama
(1940) 310 U.S. 88 [84 L.Ed. 1093, 60 S.Ct. 736], and
Carlson
V.
California
(1940) 310 U.S. 106 [84 L.Ed. 1104, 60 S.Ct. 746], established the applicability of the First Amendment to picketing and other forms of activity in connection with a labor dispute. In the language of the court, “publicizing the facts of a labor dispute in a peaceful way through appropriate means . . . must now be regarded as within that liberty of communication which is secured to every person by the Fourteenth Amendment against abridgment by a State.”
(Carlson
v.
California, supra,
p. 113 [84 L.Ed. p. 1108].) Eventually, “the broad pronouncements, but not the specific holding of
Thornhill
[yielded] ‘to the impact of facts unseen’ or at least not sufficiently appreciated.”
(Teamsters Union
v.
Vogt, Inc.
(1956) 354 U.S. 284, 289 [1 L.Ed.2d 1347, 1351, 77 S.Ct. 1166].) As a result, the court engaged in a more refined effort to define “the power of the State to set the limits of permissible contest open to industrial combatants.”
(Thornhill
v.
Alabama, supra,
p. 104 [84 L.Ed. p. 1103].)
That those limits include the power to enjoin peaceful picketing for purposes violative of state laws or public policy was made clear in
Hughes
v.
Superior Court
(1949) 339 U.S. 460 [94 L.Ed. 985, 70 S.Ct. 718], affg. 32 Cal.2d 850 [198 P.2d 885]. In
Hughes,
this court suspended an injunction banning picketing to secure compliance with a demand for racial
quota hiring. In affirming that decision, the court discussed the special characteristics of picketing as “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. . . . The loyalties and responses evoked and exacted by picket lines are unlike those flowing from the printed word.”
(Hughes
v.
Superior Court, supra,
p. 465 [94 L.Ed. p. 992].)
Thus, it is apparent that the more limited protection given picketing as a concomitant of free speech is predicated on the dual nature of the activity and the fact that, of itself, picketing (i.e., patrolling a particular locality) has a certain coercive aspect. Yet even with respect to picketing, there must be alternative means available for making known a grievance if the activity is to be enjoined. (See
Bakery Drivers Local
v.
Wohl
(1942) 315 U.S. 769 [86 L.Ed. 1178, 62 S.Ct. 816].)
In
Bakery Drivers Local
v.
Wohl, supra,
315 U.S. 769, 775 [86 L.Ed. 1184], the court, in holding the provisions of an injunction against picketing to be án unconstitutional invasion of the right of free speech, laid great stress on the fact that, although “A state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual,” nevertheless “respondents’ mobility and their insulation from the public as middlemen made it practically impossible for petitioners to make known their legitimate grievances to the public whose patronage was sustaining the . . . system.” Similar considerations impelled this court, in
Park & T. I. Corp.
v.
Int. etc. of Teamsters
(1946) 27 Cal.2d 599 [165 P.2d 891, 162 A.L.R. 1426], to modify the broad provisions of an injunction which precluded a rejected union from attempting to persuade employees and the public of the legitimacy of its grievances. As we then said, “In seeking to enjoin defendants’ lawful activities plaintiff in effect asks this court to preclude any possibility that public sentiment will crystallize in favor of a closed shop in plaintiff’s business. The court could not do so without denying to defendants their constitutional right of freedom of speech. [Citations.]”
(Park & T. I. Corp.
v.
Int. etc. of Teamsters, supra,
p. 608.)
In the leading case of
National Labor Relations Board
v.
Fruit & Vegetable Packers & Warehousemen
(1968) 377 U.S. 58 [12 L.Ed.2d 129, 84 S.Ct. 1063] (“Tree Fruits”), the court held that picketing in support of a consumer boycott was protected activity under the so-called “publicity proviso” of section 8, subdivision (b), subsection (4) of the Act. In
Tree
Fruits,
the Teamsters Union had a dispute with certain growers of Washington State apples. The union stationed pickets outside certain retail grocery stores, carrying placards which importuned the customers not to purchase the struck product—i.e., Washington State apples. It was made clear on the placard that the Teamsters had no dispute with any store or market. This distinction—between merely following the struck product and attempting to force a cessation of all purchases from the picketed establishment—was emphasized in the court’s opinion.
Similarly, in the case before us, petitioners’ efforts are not directed at those establishments which serve as the situs for some of the challenged activity—rather, those efforts are directed to following the “struck product”—i.e., the agricultural products of Antle. Such activity obviously does not have the same coercive effect as a secondary boycott of all stores dealing with Antle.
Section 8, subdivision (b), subsection (4), protected “publicity other than picketing for the purpose of truthfully advising the public” that a dispute existed between an employer and a union. In construing the language as it did, the court was extremely cognizant of the difficult constitutional questions which would have been raised had the section precluded peaceful picketing in the circumstances of a consumer boycott. (377 U.S. at pp. 63, 69 [12 L.Ed.2d at pp. 133, 137].) Mr. Justice Black concurred specially on the ground that, in his view, the statute did preclude peaceful picketing in support of a consumer boycott and, so construed, was unconstitutional (377 U.S. 58, 76 [12 L.Ed.2d 129, 141], Black, J., concurring). And even Justice Harlan’s dissent, in which Justice Stewart concurred, laid great stress on the “discriminating eye” with which Congress had prohibited certain picketing, in asserting the constitutionality of the proviso. “The decision of Congress to prohibit secondary consumer picketing during labor disputes is, I believe, not inconsistent with the protections of the First Amendment,
particularly when, as here, other methods of communication are left open.”
(Italics added; 377 U.S. 58, 80, 93 [12 L.Ed.2d 129, 143, 150], Harlan, J., dissenting.) That such serious constitutional doubts were asserted not only by the court, but also by the Senate (see
id.
at p. 69 [12 L.Ed.2d at p. 137]) is not, we think, without significance in considering petitioners’ constitutional challenge to the injunction issued in the case at bench.
Judicial efforts to circumscribe the legitimate activities of industrial combatants have thus been a response to more than abstract questions involving the right to speak freely; they have taken into account, whether
overtly or tacitly, the unique problems involved when freedom of expression is so intimately entwined with economic effects and the shifting economic balance of power. So although we have seen that activities may be circumscribed, nonetheless, we believe that “An order issued in the area of First Amendment Rights must be couched in the narrowest terms that will accomplish the pinpointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field the State may not employ ‘means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ [Citations.]”
(Carroll
v.
President & Commissioners of Princess Anne
(1968) 393 U.S. 175, 183-184 [21 L.Ed.2d 325, 332-333, 89 S.Ct. 347].) And, in another context, we have recently reaffirmed the primacy of First Amendment freedoms when their exercise conflicts with other legitimate and well recognized property rights.
(Diamond
v.
Bland
(1970) 3 Cal.3d 653 [91 Cal.Rptr. 501,
477
P.2d 733].)
Instructive on the constitutionally permissible breadth of an injunction which touches on First Amendment rights is the'recent case of
In re Berry
(1968) 68 Cal.2d 137 [65 Cal.Rptr. 273, 436 P.2d 273], There, certain persons were arrested for picketing in support of the demands of a social workers union. This court assumed that the state could lawfully prohibit strikes by public employees, but held that the injunction which petitioners had been charged with violating was both unconstitutionally vague and overbroad. As we there pointed out “Other language in the order compounds the effect of the indicated intrusion into the area of protected expression. Section (4) forbids ‘inducing others to participate’ in demonstrations. Section (3) forbids ‘inducing or calling a strike, work stoppage or
other concerted activity’
against the County. It is clear that this language is broad enough to include the distribution of literature, the circulation of petitions, the publication of articles, and much other Union activity in connection with its grievances against the County. Even if we assume, as we have done above, that all such activity would be properly enjoinable insofar as it advocated a strike by public employees, still a vast area of constitutionally protected activity falls within the wide reach of the ban.”
(In re Berry, supra,
68 Cal.2d 137, 154.)
Turning to the specific injunction issued by respondent court, we believe that, like the injunction issued in
In re Berry,
it brushes with too broad a stroke to be sustained. As noted above,
the injunction prohibits petitioners from “in any way promulgating or advertising” that a dispute exists; it precludes petitioners from “urging, encouraging, or recommending,
or asking any other persons to urge, encourage or recommend, that any customer of plaintiff’s boycott plaintiff’s agricultural products”; it effectively enjoins petitioners from making any appeal whatever to the consuming public to purchase the products of Antle’s competitors.
Antle contends that such activities are enjoined only to the extent that they have as their purpose the execution of a collective bargaining agreement between petitioners and Antle. It is true, of course, that a theoretical distinction exists between publicity which is solely intended to inform the public of certain alleged inadequacies in the conduct of a business, and publicity which has a further purpose—e.g., to persuade the employer to recognize the labor organization conducting the campaign. Such a distinction has been utilized to enjoin
picketing
for the purpose of forcing an employer to bargain with a specific union, while allowing picketing which has as its purpose the truthful dissemination of information concerning working conditions.
(Corrigan
v.
Barbers & Beauticians Union, supra,
251 Cal.App.2d 490.) Whatever merit such a distinction has in the context of picketing,
we are persuaded that a state may not constitutionally enjoin other noncoercive truthful efforts to communicate the facts of a labor dispute to the public.
We therefore believe that the injunction at issue is too broad to withstand the constitutional challenge mounted by petitioners.
Petitioners may properly be enjoined from making false and untruthful statements in connection with a labor dispute.
(Magill Bros.
v.
Bldg. Service etc. Union
(1942) 20 Cal.2d 506 [127 P.2d 542];
Globe D. Lunch
v.
Joint Culinary Wkrs.
(1953) 117 Cal.App.2d 190 [255 P.2d 94] (hg. den.).) But the application of the Jurisdictional Strike Act to other activities enjoined by respondent court suffers from the same fatal defect noted in
Bakery Drivers
V.
Wohl, supra,
315 U.S. 769, and
Tree Fruits, supra.
That is, it effectively precludes petitioners in any effective manner, from informing the general public of the nature of their dispute with Antle. We deem it of significance in this connection that, unlike the federal Act, there is no provision in the Labor Code for certification of a Union and all the concomitant protections offered both employer and union. Hence, for aught that appears, none of
Antie’s employees may have wanted to be represented by Teamsters.
But once a contract is signed, a union effort to challenge the appropriateness of the representative with which the employer has contracted is, for all practical purposes, precluded if the injunction issued by respondent court were valid. In light of these considerations, we hold that peaceful and truthful attempts to persuade the general public not to purchase a specific product or products, unaccompanied by picketing
or coercive tactics, is not the “other concerted activity” contemplated by the Jurisdictional Strike Act.
We have also concluded that the language of the injunction—except for that portion enjoining untruthful statements—is not that which would allow the application of the doctrine of severance (see
In re Berry, supra,
68 Cal.2d 137, 156), to sustain portions of the challenged order.
Let a peremptory writ of prohibition issue restraining respondent court from enforcing, by contempt proceedings or otherwise, all portions of the challenged injunction save that section which enjoins petitioners from representing that Antie’s products are not handled by union personnel or that Antie’s field workers are not represented by a bona fide union.
Wright, C. J., McComb, J., Peters, J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.