Opinion
Rehearing Denied May 9, 1930
Hearing Granted by Supreme Court June 9, 1930.
Appeal from Superior Court, City and County of San Francisco; J.J. Trabucco, Judge.
Suit by Walter A. Weber and others, as members of Musicians’ Union of San Francisco, Local No. 6, and others, against William J. Nasser and others. From the judgment of dismissal, plaintiffs appeal.
Reversed. COUNSEL
Aaron Sapiro and Sapiro & Hayes, all of San Francisco, for appellants.
Nat Schmulowitz, George B. Harris, Gavin McNab, and Schmulowitz, Wyman, Aikins & Brune, all of San Francisco, for respondents.
OPINION
TYLER, P.J.
This is a suit in equity to enforce the terms of a collective bargaining agreement with reference to labor and to prevent a breach thereof.
The pleadings show that plaintiffs are members of the Musicians’ Union of San Francisco, an unincorporated association, composed of over a thousand members. The union has for its object the regulation of prices, business and working conditions of members of the musical profession, and it is authorized by the members thereof to fix the basic prices and the general terms and conditions under which musician services are to be rendered, and the members of the union agree to abide by any agreement established by it. Defendants are the owners and operators of certain theaters. The Allied Amusement Industries is authorized by certain of the theater owners to enter into and execute, for and in their behalf, contracts to cover and control the employment of members of the Musicians’ Union and the members of their industry. In pursuance of his authority, the president of the union met with the employers through its trade organization to establish the terms, prices, and conditions under which the musicians would work. A contract was entered into in 1926 between the parties relating to this subject, which was to continue for a period of two years. Prior to its expiration the same parties entered into negotiations for a new agreement to govern both organizations for an additional period of two years. During the negotiations leading up to the consummation of this contract, it was recognized that theaters were apt to install the use of talking devices. To provide for this contingency, the theaters were classified into groups, and a provision was inserted in the proposed contract which provided that in theaters where such devices were installed, the minimum size of orchestra provided for in the different classifications should be maintained. The parties then agreed upon other changes in working and basic price conditions. Upon the completion of these and other arrangements, the union announced to its members the proposed terms and conditions of the new agreement which was to exist for a further two-year period. The agreement was satisfactory, and it was signed by both contracting parties and was fully performed by them until March 1, 1929, at which time the owners of certain of the theaters installed talking devices and thereafter proceeded to discharge their orchestras in violation of the terms of their contract. The Musicians’ Union, acting on behalf of its members, thereupon made demand on respondents that they perform their contract. Certain of the respondents refused to employ any orchestra at all and have continued to operate the talking devices without one. Thereupon this suit was commenced.
At the time of the filing of the complaint an order to show cause was made why an injunction should not be issued against respondents. A demurrer and answer were filed to the complaint. When the order to show cause came on for hearing, the trial court heard the demurrer before considering the order. The demurrer was both general and special, and among other things it alleged that the facts as set forth in the complaint did not constitute a cause of action in equity or law against respondents; that the contract sued upon was unilateral and void for want of mutuality and consideration; and, further, that equity will never decree performance of a contract involving personal services, except where such services are of an unique and extraordinary nature. The trial court thereupon sustained the demurrer without leave to amend and dismissed the order to show cause. There is nothing in the minute order sustaining the demurrer, or in the judgment of dismissal, which in any manner indicates upon what ground the order of dismissal was based, except that it recites that it was sustained "upon the general grounds." The matter, however, is of no consequence. Whatever the court’s reasons may have been are not here controlling. If any of the grounds of demurrer presents sufficient justification for the ruling, regardless of the reasons given by the court, its action in sustaining the demurrer and dismissing the action must be affirmed. If the grounds present no justification, its action must be reversed.
Respondents here urge the argument: (1) That the agreement sued upon is a mere declaration of usage resulting from collective bargaining; (2) that it lacks mutuality of obligation as well as of remedy; (3) that the alleged breach thereof by the theater owners did not vest in the Musicians’ Union, or its members, any right to injunctive relief, mandatory or prohibitory— for which reasons the judgment of the lower court should be affirmed. It is contended for by appellants that the contract is not of the character claimed by respondents, but, on the contrary, is one of mutual collective bargaining made between the union, a labor organization on the one hand, and the theater owners as employers on the other, whereby terms, conditions, and prices of employment are contracted for by mutual covenants, equally binding upon employers and employees alike and enforceable by both parties; it being mutual in obligation and remedy and supported by a valuable consideration. It is agreed by both parties in view of the well-established equitable principles which have found expression in our Codes (section 3423, Civ.Code; section 526, Code Civ.Proc.) that if the contract is to be construed as one calling for personal services, it will not be enforced in equity. It is conceded by both parties that the contract is not one of that character. In support of their claim that it is a mere nudum pactum, lacking mutuality of obligation and remedy, respondents argue that while they are bound by the contract to employ at their respective theaters an orchestra composed of a specific number of persons who are members of the union, there is no corresponding duty or promise on the part of members of the union to perform services, and, further, that even conceding that they so promised, their contract in this particular could not be enforced by reason of the provisions contained in section 3423 of the Civil Code. Notwithstanding that the parties concede that the contract is not one calling for personal services, it is apparent that the question is so entwined and intermingled with contracts of that character it necessitates a discussion of the nature of both such contracts. While the question presented is one of first impression in this state, the subject has received consideration in different jurisdictions. It is only of recent years that labor differences came to be settled in collective bargaining agreements. These contracts were designed to do away with strikes and lockouts and prevent acts of violence through which employer, employee, and the public alike were all inconvenienced and suffered incalculable loss. The courts early recognized that these wasteful methods of settling disputes were archaic and they readily entertained, in the interest of public welfare, suits to enforce, where possible, contracts that had for their object industrial peace. Injunctions have frequently been issued on behalf of employers and against labor unions to prevent their officers and leaders from calling a strike or improperly persuading the members thereof to strike, by reason of the existence of contracts between the contending parties. Labor organizations have been slow to seek relief from the courts for breaches of collective bargaining contracts, but it would seem obvious that if a court, by injunction, has the power to prevent a contractual violation on the part of employees, it has equal power to prevent such violation on the part of the employer. If an injunction may issue in one case, it should issue in the other, as both cases should be measured by the same principle. Some of the earlier cases, following the reasoning of respondents, denied equitable relief to members of a union, holding that such contracts were for personal services and lacked mutuality or that an adequate remedy at law was provided for their breach. See Chambers v. Davis, 128 Miss. 613, 91 So. 346, 22 A.L.R. 114; Stone Cleaning Union v. Russell, 38 Misc. 513, 77 N.Y.S. 1049; Hudson v. Cincinnati Ry. Co., 152 Ky. 711, 154 S.W. 47, 45 L.R.A.(N.S.) 184, Ann.Cas.1915B, 98. Other and more recent cases, while recognizing fully the general rules under which injunction is denied to enforce a contract for personal services, or where the applicant has an adequate remedy at law, or where he will not suffer irreparable injury, hold that the law keeps pace with the requirements of justice, and have expressed the opinion that none of these principles are applicable to contracts of the character here involved, as the facts are so extraordinary as to require injunctive relief if a plaintiff is to have any protection whatever in his contract rights. Thus in Schlesinger v. Quinto, 201 A.D. 487, 194 N.Y.S. 401, the court affirmed an order granting an injunction restraining an association of employers from violating the terms of their contract. The court, after referring to the doctrine that there must be a mutuality of remedy as well as of obligation, and recognizing the principle that an injunction will not issue to compel one man to work for another, although he may have agreed so to do, held that cases of the character here involved do not arise out of individual employment. It then points out that two organizations, one composed of employers and the other of employees, have entered into an agreement; that each had power through the consent of its members to enter into a binding obligation in their behalf; that each had power through disciplinary methods to enforce compliance with the terms of the agreement; that the contract has mutual obligations binding on the parties thereto; that each party knows its obligation and the consequences of failure or refusal to perform those requirements; and that through the control of its members it can compel performance. Under such circumstances the court concluded that a decree of a court of equity could be enforced against either party and in favor of the other. The validity of such contracts and their enforceability is also recognized in Goldman v. Cohen, 222 A.D. 631, 227 N.Y.S. 311. In discussing this question the court, in the course of its opinion, declared that the right to issue an injunction to prevent contractual violation of such contracts is well settled, and it held that where an employer is threatening to order a lockout of his employees, the right of a court of equity to prevent such contractual violation is measured by the same principle as the right of an employer to seek relief in equity to prevent a strike. It is there declared that if the union has not the right to invoke the aid of a court of equity to prevent the unlawful violation of such a contract, that it loses its force, and the right of collective bargaining is narrowed, and the economic benefits to the community arising therefrom is to a great extent lost. Again, the same principle was announced in Grassi Contracting Co. v. Bennett, 174 A.D. 244, 160 N.Y.S. 279. There, plaintiff sought to enjoin the defendant from calling a strike which would have been in violation of a contract. It was held in substance that where a strike, or other action, is threatened by a labor union in violation of its contract, or of the contract of its members with their employers, the jurisdiction of a court of equity to issue an injunction is well recognized. See, also, Blum & Co. v. Landau, 23 Ohio App. 426, 155 N.E. 154; Burgess v. Georgia, F. & A. Ry., 148 Ga. 415, 96 S.E. 864; Gilchrist v. Metal Polishers Union (N.J.Ch.) 113 A. 320; Meltzer v. Kaminer, 131 Misc. 813, 227 N.Y.S. 459; Nederlandsch, etc., v. Stevedores’ & Longshoremen’s, etc., Soc. (D.C.) 265 F. 397. In Gregg v. Starks, 188 Ky. 834, 224 S.W. 459, the court, in departing from its original position, holds that the contracts are of such extraordinary character as to require equitable relief if the parties are to have any relief at all. To the same effect is the very recent case of Ribner v. Rosco Butter & Egg Co. (December, 1929) 135 Misc. 616, 238 N.Y.S. 132, where the cases on the subject are collected and extensively reviewed. All of these cases recognize that such contracts do not lack mutuality, but are founded on adequate consideration, enforceable in equity by injunction, there being, from their very nature, no adequate remedy at law for their breach, as they do not provide for the employment of any particular person. Schlesinger v. Quinto, supra; Goldman v. Cohen, supra.
In conclusion it may be stated that while some courts have granted equitable relief to employers and others have denied the same relief to labor unions, the better considered cases hold, as appellant contends for, that such contracts have mutual obligations binding upon both parties and enforceable in equity. Counsel for respondents has expressed the opinion that the later cases are based upon expediency rather than reason. We do not think so. Courts should, in the interest of public welfare, give recognition to the laudable efforts of groups to improve industrial conditions and prevent waste and violence, and where the parties have contracted with that end in view, their contracts should be enforced in a manner to give them effect if possible. In their enforcement the remedies applied should be, and they are, mutual. The law does not have one rule for the employer and another for the employee. In a court of justice they stand on an equal footing.
For the reasons given, the order of the court sustaining the general demurrer and the judgment dismissing the action are reversed.
We concur: CASHIN, J.; KNIGHT, J.