Opinion
12-10-1956
39 L.R.R.M. (BNA) 2285, 31 Lab.Cas. P 70,410 Johny E. McCARROLL, Willie J. McCarroll, and Thomas L. Hall, a co-partnership, d/b/a McCarroll & Hall Construction Company, a/k/a McCarroll & Hall, Plaintiffs and Respondents, v. LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS, an unincorporated association, et al., Defendants and Appellants.* Civ. 21625.
Arthur Garrett, James M. Nicoson, Los Angeles, for appellants. Hill, Farrer & Burrill, Los Angeles, for respondents.
Johny E. McCARROLL, Willie J. McCarroll, and Thomas L. Hall, a co-partnership, d/b/a McCarroll & Hall Construction Company, a/k/a McCarroll & Hall, Plaintiffs and Respondents,
v.
LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS, an unincorporated association, et al., Defendants and Appellants.*
Dec. 10, 1956.
Rehearing Denied Jan. 2, 1957.
Hearing Granted Feb. 6, 1957.
Arthur Garrett, James M. Nicoson, Los Angeles, for appellants.
Hill, Farrer & Burrill, Los Angeles, for respondents.
WHITE, Presiding Justice.
This action was instituted by plaintiffs and respondents (hereinafter referred to as respondents) for specific performance, injunction and damages against defendants and appellants (hereinafter referred to as appellants). By their second amended complaint respondents alleged that appellants had engaged in a course of conduct, and by directions, instructions and orders have engaged in strikes, and have induced employees of employers to engage in the strikes or other concerted refusal to work on materials and to perform services for respondents' General Contractors, the purposes thereof being (1) to compel the General Contractors to withdraw their business relations with respondent and to cease doing business with respondent, (2) that respondent through its membership in the Building Contractors Association of California, Inc., was a party to 'Master Labor Agreement' with appellants and others and that appellants had refused to perform certain obligations under that agreement, and (3) that the conduct alleged was violative of the Cartwright Act of the State of California.
In the court below numerous affidavits were filed, and oral testimony was received, resulting in the issuance of a preliminary injunction, from which order appellants prosecute this appeal.
The first cause of action alleges that respondents and appellants were and are parties to a collective bargaining agreement known as the 'BCA-AF of L Master Labor Agreement.' That the agreement provides that contractors shall have entire freedom of selectivity in hiring, and may discharge any employee for just cause; that contractors shall first call upon a local union having work or area jurisdiction for such men as the contractors may from time to time need and that the local union shall immediately furnish to the contractors the required number of qualified and competent workmen needed by the contractors; that the local union will furnish each such required competent workman or skilled mechanic to the contractors by use of a written referral; that if after forty-eight hours' notice, the local union shall not furnish the workmen requested by the contractor, the contractor may procure workmen from any other source; that if men are so employed the contractor will report to the local union each such workman by name.
That the collective bargaining agreement further recites that contractors may transfer workmen from the jurisdiciton of one local union to the jurisdiction of another local union up to the maximum permitted by the by-laws of the craft involved, but in any event they may transfer up to 10% of their current requirements; that workmen employed by any contractor under the terms of the agreements shall not be removed nor transferred by the union without the prior approval of the contractor.
That the contract also provides that all grievances or disputes arising between the parties over the interpretation or application of the terms of the agreement shall be settled by arbitration and that during the term of the agreement the union shall not 'call, or engage in, sanction, or assist in a strike against, or any slow-down or stoppage of work of the contractors.' That the contract further provides that the union will require its members to perform their services for the contractors when required by the contractor so to do.
That the agreement provides that the employer shall determine the number of employees and classifications required to perform any operation and that the contractors and the unions recognize the necessity of eliminating restrictions on production and that nothing shall be permitted that restricts production or increases the time required to do the work and that no limitation shall be placed upon the amount of work which the employee shall perform, nor shall there be any restriction against labor saving devices.
That the collective bargaining agreement further provides that any provisions in the working rules of the union in conflict with the terms of the agreement between the parties shall be deemed waived.
The complaint further alleges that Section 16(f) 1 and 2 of the by-laws of the defendant Los Angeles County District Council of Carpenters provides:
'A local union must honor a request (for a work order) from a Contractor, providing he names the individual member of our brotherhood whom he desires to have cleared to his job. The honoring of requests by local unions and their representatives shall be mandatory providing the privilege is not abused by the Contractor, and that he does not exceed at any time 50% of the carpenters needed for that particular job.'
The complainant then alleges that respondents entered into a contract to do carpentry work in Palmdale, California, and that immediately thereafter, defendant Nukala (a union official) arrived on the job site and informed respondents that they would not be allowed to transfer more than 10% of their employees from the jurisdiction of any other local union. The respondents requested men from defendant Nukala and the men transferred were unqualified and incompetent. Respondents thereupon gave defendant Nukala notice to that effect and after the expiration of 48 hours respondents procured workmen from other sources. That at no time did the number of employees who were transferred from the jurisdiction of other local unions exceed 50% of the current requirements of respondents. Defendant Nukala thereupon placed respondents on the 'out-of-bounds' list, and refused to honor requests from respondents for a work order for specifically named men.
The complaint further alleges that on a subsequent job in Palmdale, California, respondents requested men from defendant Nukala; that the men referred were unqualified and incompetent; that respondents were refused job requests for members of the appellant unions whom respondents desired to have 'cleared' to the job by use of a written referral; that defendant Nukala at all times refused to honor these requests; the respondents sought to transfer 14 regular employees of respondents from Los Angeles to Palmdale; that respondents requested written referrals or work orders for these men; that the 14 men constituted less than 50% of the current requirements of respondents on the job; that defendant Nukala refused to issue written work orders and thereupon called a strike of respondents' employees and shut the job down for the stated reason that respondents were allegedly 'labor contractors'; that approximately two weeks later the strike was called off by defendant Nukala and the dispute submitted to arbitration; that the Arbitration Board ruled that labor contracts are not illegal under the Master Labor Agreement and that respondents were not labor contractors; that respondents suffered substantial damage due to the strike and the refusal to furnish competent workmen, or honor work requests submitted by respondents.
The complaint further alleges that thereafter on other jobs being performed by respondents in other Southern California areas, the local unions furnished incompetent and unqualified workmen, thereby causing damaging delay to respondents; that the local unions refused to honor written referrals or work orders for specifically named men and refused to permit respondents to transfer more than 10% of their employees to the job; that on May 21, 1954, a strike was called of respondents' employees on the Arrow Gardens Tract for the reason that respondents were allegedly violating state safety regulations; that four days later the strike was called off and on the following day a state safety inspector inspected the tract for violations of state safety regulations and in the presence of certain defendants did state that there were no violations of state safety regulations.
The complaint further alleges that on June 9, 1954, all of respondents' jobs were shut down for the reason that respondents were allegedly labor contractors.
Appellants first contend that the court did not have jurisdiction over the subject matter of this litigation and was without authority to grant a preliminary injunction because respondents through their membership in the Building Contractors Association of California came within the exclusive jurisdiction of the National Labor Relations Board under the National Labor Relations Act, as amended, Public Law 101, 80th Congress, Chap. 120, 1st Session. Respondents do not contend that the subject matter here involved is not within the jurisdiction of the national board, but that the National Labor Relations Board does not have exclusive jurisdiction of the controversy here in question which they argue, involves a suit for breach of a collective bargaining contract and that Section 301 of the Labor Management Relations Act of 1947, popularly referred to as the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., provides that actions for violation of contracts between employer and unions, in an industry affecting commerce, may be brought in any District Court of the United States having jurisdiction of the parties, without respect to the amount in controversy or notwithstanding the citizenship of the parties. We are persuaded however, that the above-mentioned Section 301 has pre-empted jurisdiction in the field of controversies for breach of a collective bargaining agreement, involving commerce, for the federal tribunals. 29 U.S.C.A. § 185(c). The act provides for damages for breach of a collective bargaining agreement and having set up a remedy that is adequate, the federal courts have exclusive jurisdiction, and this is true even though the state law provides a comparable remedy. We are satisfied that in the adoption of Section 301, Congress has manifested its purpose to vest jurisdiction over breaches of collective bargaining agreements, to a certain extent, where commerce is affected, and unfair labor practices are involved, in the federal courts, Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510.
There can be no question that the National Labor Relations Board has been clothed with exclusive jurisdiction to determine whether a course of conduct on the part of a labor organization, is either a prohibited activity or one protected and guaranteed by the National Labor Relations Act. And it is equally well settled that in either event, a state court does not possess jurisdiction over such subject matter, and hence is without power to grant injunctive relief. Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Garmon v. San Diego Building Trades, 45 Cal.2d 657, 661, 291 P.2d 1; Benton, Inc., v. Painters Local Union No. 333, 45 Cal.2d 677, 681, 291 P.2d 13; California Kitchens, Inc., v. United Brotherhood of Carpenters, 139 Cal.App.2d 597, 602, 294 P.2d 468; Breidert Co. v. Sheet Metal Workers, 139 Cal.App.2d 633, 639, 294 P.2d 93.
In the case now engaging our attention respondents pleaded that appellants through orders, directions and instructions, have caused employees to strike and to refuse to perform services with the objective thereof, to force or require the general contractors to withdraw or withhold their business relationship with respondents. We conclude that this alleged course of conduct, if true, constitutes an unfair labor practice as that term is defined by Section 8(b) subd. (4) of the National Labor Relations Act, 29 U.S.C.A. § 158(b)(4). There is no claim advanced herein that the activities of appellants threatened a probable breach of the state's peace. There is no suggestion that the activities complained of herein were anything but peaceful and orderly or consisted of any activities not subject to regulation by the federal board either by prohibition or by protection, and therefore fall within 'the area of activities, neither protected nor prohibited, that the State may regulate.' International Union, U. A. W., A. F. of L., Local 232 v. Wisconsin Emp. Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651; Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers of America v. Wisconsin Emp. Relatons Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154.
We are persuaded that the instant case comes within the purview of the rule that a state court must decline jurisdiction in deference to the federal board because the facts pleaded reasonably bring the controversy within the sections of the federal act prohibiting these practices, and where the conduct here complained of, if not prohibited by the federal act, may be reasonably deemed to come within the protection afforded by that act, Benton, Inc., v. Painters Local Union, supra, 45 Cal.2d 677, 681, 291 P.2d 13.
By reason of the foregoing conclusion at which we have arrived it becomes unnecessary to discuss or decide the remaining issues tendered on this appeal other than respondents' contention that their third cause of action for injunctive relief comes within the purview of the California statute known as the Cartwright Act, Bus. and Prof. Code, §§ 16700-16758. It is their contention that the alleged concerted activity of appellants is designed to force them out of business and is therefore actionable under Section 16720 of the Business and Professions Code, which in general prohibits any combination in restraint of trade or commerce. There is no allegation in the amended complaint that appellants have combined with employer groups to accomplish the ends sought, as was the case in Overland Publishing Co. v. H. S. Crocker Co., 193 Cal. 109, 113, 222 P. 812, and Kold Kist, Inc., v. Amalgamated Meat Cutters, 99 Cal.App.2d 191, 193, 221 P.2d 724, relied upon by respondents.
Section 16703 of the Business and Professions Code reads as follows: 'Labor Not Commodity: Within the meaning of this chapter, labor, whether skilled or unskilled, is not a commodity'. This section must be held to have been intended to except from operation of the Cartwright Act combinations of laborers for a purpose of furthering their interests by collective bargaining, Schweizer v. Local Joint Executive Board, 121 Cal.App.2d 45, 51, 262 P.2d 568. It is only where unions depart from their normal and legitimate objects and engage in an actual combination or conspiracy in restraint of trade that they are not exempted from the provisions of the Cartwright Act. The gist of respondents' third cause of action is that the acts and conduct of appellants as alleged in their first cause of action are in violation of the aforesaid Cartwright Act, 'in that the purpose of defendants' conduct and acts is to carry out restrictions in the trade of plaintiffs.' The allegations relied upon by respondents present a situation where the members of a labor union refused and threatened to refuse to work under conditions which they asserted were detrimental to their general welfare. Can it be said that the conduct here in question is not reasonably related to working conditions and the right and purpose of collective bargaining? We think not. In the case of In re Blaney, 30 Cal.2d 643, at page 648, 184 P.2d 892, at page 896, where a statute making secondary boycotts unlawful was involved, the court said: "It is now settled law that workmen may lawfully combine to exert various forms of economic pressure upon an employer, provided the object sought to be accomplished thereby has a reasonable relation to the betterment of labor conditions, and they act peaceably and honestly". And in Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 988, 84 L.Ed. 1311, 128 A.L.R. 1044, where a restraint of trade was involved, the court said: 'But the Sherman Act [15 U.S.C.A. §§ 1-7, 15 note] admittedly does not condemn all combinations and conspiracies which interrupt interstate transportation'. We are inclined to the view that the same must be said of the Cartwright Act. This statute has been in force for many years, and it cannot be assumed that it was overlooked during the rendition of the many decisions of the courts of California with respect to the lawfulness of such acts as are complained of here. We conclude that no violation of the Cartwright Act appears and that the acts of appellants alleged in respondents' amended complaint, do not constitute a combination in restraint of trade within the meaning of that Act.
The order appealed from is reversed.
DORAN and FOURT, JJ., concur. --------------- * Opinion vacated 315 P.2d 322.