Opinion
GRUNWALD-MAR INC
11-13-1958
43 L.R.R.M. (BNA) 2101, 36 Lab.Cas. P 65,062 In the Matter of the Application of, a California corporation, for an Order Directing Arbitration, Petitioner. , a California corporation, Respondent, v. LOS ANGELES JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA, Appellant. * Civ. 23113. . Division 1, California
Wirin, Rissman & Okrand, Fred Okrand, Los Angeles, for appellant. Hill, Farrer & Burrill, Ray L. Johnson, Jr., Los Angeles, for respondent.
In the Matter of the Application of GRUNWALD-MARX, INC., a California corporation, for an Order Directing Arbitration, Petitioner.
GRUNWALD-MARX, INC., a California corporation, Respondent,
v.
LOS ANGELES JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA, Appellant. *
Nov. 13, 1958.
Rehearing Denied Dec. 11, 1958.
Hearing Granted Jan. 7, 1959.
Wirin, Rissman & Okrand, Fred Okrand, Los Angeles, for appellant.
Hill, Farrer & Burrill, Ray L. Johnson, Jr., Los Angeles, for respondent.
WHITE, Presiding Justice.
This is an appeal from a judgment and order confirming an award and supplemental award of arbitrators (one arbitrator dissenting), and denying appellant's motion to vacate, modify and correct said awards.
This proceeding was instituted on December 1, 1955 when respondent Grunwald-Marx, Inc., a California corporation (hereinafter referred to as the Company) filed in the Superior Court of the County of Los Angeles, a petition for an order directing arbitration. This petition alleged that the company and appellant, Los Angeles Joint Board, Amalgamated Clothing Workers of America (hereinafter referred to as the Union), on October 1, 1953, entered into a written contract recognizing the union as the exclusive bargaining representative of the company's employees and covering wages, hours and working conditions of the latter's employees. A copy of said contract was annexed to the petition, marked Exhibit 'A', and made a part thereof. It was further alleged that the aforesaid written contract contains a provision (paragraph 14) to settle by arbitration any controversy or dispute arising, directly or indirectly, out of the contract or the refusal to perform the whole, or any part thereof.
In so far as here pertinent, the petition alleged, 'That a controversy and dispute has arisen out of said contract * * * as follows: Paragraph 19 of said contract provides that the union shall give petitioner (the company) the same terms and conditions in a collective bargaining agreement as are given to any other garment manufacturer and that if more favorable conditions are granted to any other garment manufacturer such terms and conditions shall be made available to petitioner; paragraph 12 of said contract provides that petitioner agrees to contribute sums of money equal to a stated percentage of its payroll to the Amalgamated Insurance Fund, all as provided in the Supplemental Agreement annexed to the said contract and which terms and provisions are incorporated into the contract by reference; that the union waived for a period of approximately six months the Banning plant of Pacific Manufacturing Company payment of any sums of money into the Amalgamated Insurance Fund, whereas, the union did not waive such requirement for petitioner for six months, or at all;'.
In response to the foregoing petition the union filed a motion to dismiss on the ground that the court was without jurisdiction to proceed in the matter. The union also filed a general and special demurrer.
In support of its motion to dismiss, the union filed supporting affidavits wherein it was alleged that the company is engaged in interstate commerce within the meaning of the National Labor Relations Act; that on or about October 10, 1955, and prior to the filing of the petition herein, the company had filed with the National Labor Relations Board a charge alleging that the union was engaging in unfair labor practices within the meaning of Section 8(b)(3) of the National Labor Relations Act (29 U.S.C.A. § 158(b)(3)); that 'these unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act', and that the union has 'refused to bargain'. A copy of the aforesaid charge made by the company to the National Labor Relations Board was attached to the affidavit in support of the union's motion to dismiss. An examination of said charge presented to the federal board by the company reveals that the gravamen of the complaint therein contained is analgous to and identical with the allegations of the petition filed in the superior court, viz., that 'The Union waived for a period of approximately six months the requirement that the Banning plant of Pacific Manufacturing Co. pay any sums of money into the insurance fund.', but did not waive such requirement for the company.
The union affiadvit also averred that, '* * * the National Labor Relations Board has not declined, but in fact has assumed and is now exercising jurisdiction over the present controversy over the petitioner and the union. The National Labor Relations Board has conducted an investigation with respect to the merits of petitioner's allegations, and the matter is still pending before the National Labor Relations Board.' The record does not disclose that any of the foregoing claims contained in the affidavits of the union on the motion to dismiss, were disputed or controverted. The union's motion to dismiss was denied and its demurrer was overruled. Thereupon, the union filed its answer, again raising the aforesaid jurisdictional point, and set up the further defense that the matter was not arbitrable, 'Since the alleged grievance is not one arising out of the contract, but an alleged unfair labor practice under the National Labor Relations Act, and in fact the Petitioner in its proceedings before the National Labor Relations Board has alleged that the Union is guilty of an unfair labor practice in this respect, this matter is one which should properly and exclusively be determined by the National Labor Relations Board.' No additional evidence was taken. The court found that the union's allegations of fact concerning the pendency, on the petition of the company, of the controversy before the National Labor Relations Board were true, but 'that the issues presented by petitioner (company) for adjudication to the National Labor Relations Board are not the same as those which constitute the controversy and dispute in the instant petition'. The judgment and order directed that the company and the union '* * * proceed, * * * to arbitrate the controversies now existing between them in accordance with the terms of said contract * * *'.
Pursuant to the foregoing judgment and order, the arbitration was held. A majority of the arbitrators (one arbitrator dissenting), found that the union was correct in its contention that arbitration was ordered only as to disputes arising under the 1953 contract, but, as stated in the award, '* * * we think the facts show a violation of that contract (1953) as well as of the 1947 contract. Since the Union had allowed the Banning plant a six-month waiver of payments, it was obligated to make a waiver to the Employer for the same period. This not having occurred. the Employer started operation under the 1953 contract with a credit balance, which it could legitimately have applied until exhausted in satisfaction of its obligation under Article 12 of the 1953 contract. The Union's continued exaction of new payments was a continuing violation, now of the 1953 contract, and the Employer has properly raised the issue as a violation of the 1953 agreement.'
On November 9, 1956, prior to the issuance of the award by the arbitrators (March 14, 1957), but after a tentative award had been drafted and was under consideration by the arbitrators, the union filed with the arbitrators a motion to reopen the hearing for the purpose of placing in evidence the contract in effect between the union and the Banning plant during the time (July 18, 1952 to January 18, 1953) of the alleged waiver of insurance premiums as to that company, and for the further purpose of producing additional testimony to show that when Mr. Posner (a witness for the union) was asked the question, 'Now, you would have given the Banning Shirt Corporation a waiver from July 18th until January 18th, approximately 6 months time, is that correct?', and to which he answered, 'Yes', that such answer did not mean a blanket waiver (as a majority of the arbitrators later found), but meant only a partial waiver, in accord with the provisions of the 1947 contract between the company here involved and the union. In other words, that the waiver was only as to the payroll attributed to non-union employees for the five-month period. That paragraph 16 of the 1947 contract between the parties hereto provides for the insurance payment by the company to be based only upon the earnings of the union members, which the union claims was the precise condition in effect between the union and the Banning plant through December 31, 1952. The union asserts this new evidence would show that 'after December 31, 1952, Grunwald-Marx (the company herein) was favored (until the 1953 contract at which time it came into line) because it did not have to pay on a payroll which included non-union (the contract terminology is 'potential') members, while Banning did'. The union's motion to reopen the hearing was denied by the arbitrators.
After having found that the aforesaid 'waiver' was a violation of the 1953 contract, the arbitrators ordered the union to return to the company the premiums the latter had paid into the insurance fund during the period July 18, 1952 to January 18, 1953, in the sum of $8,896.43. They rejected the argument of the union that the company, at the most, under Section 19 of the 1953 contract, was entitled to 'equal, not more favorable' treatment, and that since as contended by the union, the Banning Shirt Corporation 'waiver' was at the beginning of the collective bargaining relationship, the amount of the return to the company here should be for a comparable period (October, 1946 through March, 1947), in which event the amount would be $2,699.17, or at the minimum the first six months of the duration of the 1947 contract as to which the arbitrators found a breach, in which event the amount would be $2,701.50.
Following these awards by a majority of the arbitrators, the company filed in the superior court a timely petition to confirm and the union filed its motion to vacate, modify and correct. The court granted the company's petition, and it denied the motion of the union. From the ensuing judgment and order the union prosecutes this appeal.
Appellant challenges the jurisdiction of the superior court in this matter on the ground that the National Labor Relations Board has exclusive jurisdiction over the conduct alleged in respondent's petition for an order directing arbitration. We are satisfied this contention must be sustained.
As was said by our Supreme Court in McCarroll v. Los Angeles County, etc., Carpenters, 49 Cal.2d 45, 52, 53, 315 P.2d 322, 325: 'It is now well established that if conduct may be reasonably deemed to fall within the provisions of the Labor Management Relations Act defining unfair labor practices (29 U.S.C., § 158(a)-(b)), a state court has no jurisdiction to grant injunctive relief under either state or federal law, even if the National Labor Relations Board has declined to exercise jurisdiction over the controversy. (Citing cases.)'
The question then arises, can the conduct alleged in the present case reasonably be deemed to fall within the provisions of the National Labor Relations Act (29 U.S.C.A. § 158(b)(3)), which provides that 'It shall be an unfair labor practice for a labor organization or its agents---- * * *
'(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159(a) of this title;'.
29 U.S.C.A. § 160(a), insofar as here pertinent, provides in part:
'(a) The (National Labor Relations) Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise: * * *'
In the instant case we are confronted with the fact that on October 7, 1955, prior to the filing of the case at bar in the state court, respondent company had filed with the National Labor Relations Board a charge alleging that appellant union was engaging in unfair labor practices within the meaning of Section 8(b)(3) of the National Labor Relations Act; that, 'these unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act' (emphasis added), and that the Union has 'refused to bargain'. The record reflects that these charges are based on the identical facts presented to the court below in the proceeding now engaging our attention. And, as heretofore pointed out, it is uncontroverted that the Federal Board has not declined, 'but in fact has assumed and is now exercising jurisdiction over the present controversy over the petitioner (company) and the Union * * * and the matter is still pending before the National Labor Relations Board'.
We are persuaded that the Supreme Court of the United States has held in unequivocal language that a state has no power to deal with matters within the jurisdiction of the National Labor Relations Board unless the board, declining to exercise its jurisdiction, has ceded jurisdiction pursuant to the proviso to Section 10(a) of the National Labor Relations Act empowering the board to cede jurisdiction to state agencies. This proviso, added to Section 10(a) of the federal act authorizes the national board to allow state agencies to take final jurisdiction of cases in the borderline industries (i. e., borderline in so far as interstate commerce is concerned), provided that the state statute conforms to national policy (Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601; Garner v. Teamsters Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Amalgamated Utility Workers v. Consolidated Edison Company, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738; United Construction Workers, Affiliated with United Mine Workers of America v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; San Diego Bldg. Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618, 620; Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 427, A.F.L. v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed. 613).
In the case of San Diego Bldg. Trades Council v. Garmon, supra, the Supreme Court of the United States ordered that the judgment of the California Supreme Court in Garmon v. San Diego Bldg. Trades Council, 45 Cal.2d 657, 291 P.2d 1, be 'vacated' and the cause be remanded 'for proceedings not inconsistent with this opinion'. [353 U.S. 26, 77 S.Ct. 608.] On reconsideration of the Garmon case, supra, the California Supreme Court decision filed January 16, 1958 (49 Cal.2d 595, 320 P.2d 473), clearly declares that in conformity with the mandate of the United States Supreme Court, while one who is injured by unfair labor practices, contrary to the declared public policy of the state, may obtain judgment for sustained damages, he is without any remedy in cases affecting interstate commerce insofar as equitable injunctive relief to stop such injurious practices is concerned, unless the federal board cede jurisdiction to the state courts.
We entertain no doubt that the acts and conduct charged against the union 'refusal to bargain' with the company constitute unfair labor practices, and as stated by the company in its charge filed with the national board, 'these unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act'.
Respondent asserts that there is no showing anywhere in the record that it is engaged in a business which affects interstate commerce. It is claimed that the only evidence submitted on this issue is found in an affidavit of Robert R. Rissman, one of the attorneys for appellant union, that, 'by virtue of its receipt and shipment of goods from and to places outside of the state of California, petitioner (company) is engaged in interstate commerce within the meaning of the National Labor Relations Act'. It is urged that this is nothing more nor less than a conclusion of law and contains no probative facts; and that such a showing fails to meet the burden imposed on the union to make out a prima facie case that an employer's business affects interstate commerce sufficient to overcome the presumption that the state court has jurisdiction. However, this claim on the part of the union was not denied. On the contrary, as heretofore pointed out, the company itself affirmatively alleged in its charge filed with the national board, that the unfair labor practices engaged in by the union do affect 'commerce within the meaning of the Act'. The contention of respondent company lacks substance here.
In National Labor Relations Board v. Denver Bldg. & Construction Trades Council, 341 U.S. 675, 684, 71 S.Ct. 943, 95 L.Ed. 1284, it was held that if the effect on commerce is more than de minimis it is covered by the federal act.
Respondent company earnestly argues that under recent decisions of the United States Supreme Court, a state court is clothed with jurisdiction to award damages to a litigant even though interstate commerce and unfair labor practices cognizable under the federal act, are involved. In support of this claim respondent company relies on International Association of Machinists v. Gonzales, 1958, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America v. Russell, 1958, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030. Our examination of these cases impresses us that they enunciate the principle that the National Labor Relations Act as amended (29 U.S.C.A. § 151 et seq.) does not displace state causes of action sounding in tort or contract when the possibility that such causes will conflict with federal policy is remote, notwithstanding that 'there may be an argumentative coincidence in the facts adducible in the State causes and a plausible proceeding before the National Labor Relations Board', and that, the possibility that a wrong may be partially relieved in proceedings before the National Labor Relations Board, 'does not deprive the wronged party of available state remedies for all damages suffered'. Both of these cases involved punitive damages which the national board had no authority to award and compensatory damages, an award of which the federal board might not feel would effectuate the policies and purposes of the act. We are impressed that the holding was that in such limited area, where an action for damages is instituted in the state court, the pre-emption did not apply. The Gonzales case, supra, involved a member who had been expelled from membership in a union, allegedly in violation of his rights under the constitution and by-laws. He obtained a judgment in the state courts of California ordering his reinstatement and awarding him damages for lost wages as well as for physical and mental suffering. Holding that, [356 U.S. 617, 78 S.Ct. 925] '* * * the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied' by the proviso to Section 8(b)(1) of the act, the United States Supreme Court held that the action did not purport to remedy or regulate union conduct striking at an unfair labor practice or employer-employee relations within the realm of evils with which the federal board is concerned.
In the Russell case, supra, the court was concerned with a suit for damages against a union whose pickets, during a strike, denied the plaintiff access to his employer's plant through the medium of mass picketing and threats of violence. It was held by the United States Supreme Court that, 'Under the National Labor Relations Act as amended, Congress has not given the National Labor Relations Board such exclusive jurisdiction over the subject matter of a common-law tort action for damages as to preclude an appropriate state court from hearing and determining its issues where such conduct constitutes an unfair labor practice under the federal statute.' (Emphasis added.)
But, the case with which we are here concerned, does not involve 'the subject matter of a common-law tort action for damages'. The gravamen of the petition in the case at bar, as well as the charge made by respondent company against appellant union to the federal board, envisions the obtaining of an order to compel the functioning of the collective bargaining process-relief against conduct which may be reasonably deemed to fall within the provisions of the Labor Management Relations Act defining unfair labor practices (McCarroll v. Los Angeles County, etc., Carpenters, supra, 49 Cal.2d at page 53, 315 P.2d at page 325). The present litigation does not, therefore, fall within that limited area wherein pre-emption does not apply and the state courts may entertain an action for punitive damages.
Under the facts and circumstances present in the instant proceeding, an incongruous result could well ensue if the principle of pre-emption is not adhered to. The trial court herein ordered arbitration (collective bargaining) on respondent company's petition, based on the same facts presented by the company to the national board. A holding by the board that such facts do not warrant an order compelling the parties to collectively bargain would create a direct conflict with the state court. Since Congress has expressed its judgment in favor of uniformity, and its power in the area of commerce among the states being plenary, its judgment must be respected, and until the Congress acts to change the provisions of the federal act with regard to pre-emption in the field of managementlabor relations, we are bound by the foregoing and other decisions of the United States Supreme Court, to the end that the conflict between jurisdictions, above adverted to, may be avoided. Guss v. Utah Labor Relations Board, supra.
Having concluded that the court below was without jurisdiction to hear and determine this proceeding, consideration of other questions presented on this appeal is rendered unnecessary.
The judgment and order from which this appeal was taken is reversed.
FOURT and LILLIE, JJ., concur. --------------- * Opinion vacated 343 P.2d 23.