Opinion
7-5-1951
28 L.R.R.M. (BNA) 2462, 20 Lab.Cas. P 66,494 SEVEN UP BOTTLING CO. OF LOS ANGELES, Inc. v. GROCERY DRIVERS UNION LOCAL 848, etc., et al. Civ. 17610.
Thomas P. Menzies, Harold L. Watt, Los Angeles, Carl M. Gould, Los Angeles, of counsel, for appellant. Stevenson & Richman, Los Angeles, Todd & Todd, San Francisco, for respondents.
SEVEN UP BOTTLING CO. OF LOS ANGELES, Inc.
v.
GROCERY DRIVERS UNION LOCAL 848, etc., et al.
July 5, 1951.
Rehearing Denied July 23, 1951.
Hearing Granted Aug. 30, 1951. *
Thomas P. Menzies, Harold L. Watt, Los Angeles, Carl M. Gould, Los Angeles, of counsel, for appellant.
Stevenson & Richman, Los Angeles, Todd & Todd, San Francisco, for respondents.
DRAPEAU, Justice.
Plaintiff's complaint alleges facts sufficient to charge defendants with violation of the jurisdictional strike act of California, to be awarded damages, and to be granted injunctive relief--all under the terms of the statute. California Labor Code, Sec. 1115 et seq., Stats. 1947, ch. 1388.
Defendants' answer puts in issue the material allegations of the complaint, and asserts a constitutional right to do the acts complained of.
At the commencement of the trial defendants objected to the introduction of evidence, on the ground that the complaint did not state a cause of action. The trial court agreed with this contention, and ordered entry of judgment dismissing the action. From this judgment plaintiff appeals. See Seven Up etc. Co. v. Grocery etc. Union, 97 Cal.App.2d 623, 218 P.2d 41.
The principal question for decision is whether the statute under attack is constitutional or unconstitutional. Respondent suggests other questions, which will be considered at the close of this opinion.
In re Blaney, 30 Cal.2d 643, 184 P.2d 892, gives names, citations, and brief statements of the facts, in cases in the Supreme Court of California and in the Supreme Court of the United States which define the rights of the people and of employers and employees in the developing law of labor relations. There will be found a comprehensive exposition of labor's right to publicize disputes with employers, by picketing, boycotting, and otherwise, in the exercise of civil liberties guaranteed by federal and state constitutions. And there also will be found cases which up to that time defined certain limitations of that right. No need therefore appears to repeat fundamental rules now settled in cases of this kind; except, of course, those believed to directly apply to the questions here involved.
In re Blaney declared unconstitutional the so-called hot cargo or secondary boycott act, because it was too sweeping, vague and uncertain, and violated the right of free speech, press and assembly guaranteed by the Constitution of the United States.
The statute now under consideration 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 * * * its members perform work for an employer.' Sec. 1118, Labor Code.
So here we have a law which is neither sweeping, vague nor uncertain, as was the one under consideration in the Blaney case. The opinion of the Supreme Court in that case points out that the hot cargo act prohibited a group of employees or a union from giving publicity to their contentions in a dispute between employers and employees even by means of radio or newspaper.
In this case the law prohibits concerted action against employers by persons who have no dispute with employers over wages, or hours, or any condition of employment, except only what labor organizations shall represent employees and bargain with employers, or which of two or more contending labor organizations shall represent employees.
At the same time employers are prohibited by California law from coercing or compelling any person to join or not to join any labor organization. And this prohibition is implemented by penal sanctions. Sec. 922, Labor Code.
The Blaney case comments upon the familiar rule that rights of employers and employees in labor cases are to be determined by the law of the state, as construed by the courts of the state, and by the Supreme Court of the United States; and that, of course, the pronouncement of the latter high tribunal is the last word upon the subject, to the extent that rights under the federal constitutional are involved.
The right of free speech is not without limitations. It is always to be exercised with due regard for the rights of others. No authorities need be cited to sustain this elementary proposition.
In the law of labor as it develops in the United States the right to picket as an incident to the right of free speech likewise has its limits. An example of such limitation is when the conduct of those engaged goes beyond peaceful picketing and involves violence, continuous, uninterrupted, and enmeshed in the picketing. Steiner v. Long Beach Local, 19 Cal.2d 676, 123 P.2d 20; In re Bell, 19 Cal.2d 488, 122 P.2d 22.
This inquiry, then, narrows to whether the statute under consideration constitutes a valid limitation upon the right to strike as an incident to the right of free speech.
Four cases in the Supreme Court of the United States, decided in 1949 and 1950, bring light to the problem. These cases are Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; International Brotherhood of Teamsters v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; and Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045.
These cases turn upon what has been called the unlawful purpose limitation of peaceful picketing, and hold that picketing to coerce employers to violate state law may be prohibited by the state.
In Giboney v. Empire Storage & Ice Co., supra, 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, it was held that the state had the power to regulate peaceful picketing when its objective was to require an employer to violate the law of the State of Missouri dealing with restraints of trade. In that case the state law provided criminal penalties for its violation.
Hughes v. Superior Court, supra, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985, is a California case. Negroes in the City of Richmond, California, were enjoined by the Superior Court from picketing a grocery store. The objective of the picketing was to require the grocer to employ Negroes as clerks in proportion to the Negro patronage of the store.
Picketing was continued, despite the injunction; the pickets were adjudged guilty of contempt and ordered to jail. The District Court of Appeal of California reversed the judgment. Hughes v. Superior Court, 186 P.2d 756. California's Supreme Court reversed the District Court of Appeal. 32 Cal.2d 850, 198 P.2d 885. And the United States Supreme Court upheld the conviction. 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985.
The judgment was affirmed by the Supreme Court of California and by the Supreme Court of the United States for the reason that the picketing was for an unlawful purpose. In the decision of the United States Supreme Court, 339 U.S. 460, 70 S.Ct. 718, 721, 94 L.Ed. 985, 992, it is said: 'Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for disallowance.' (Emphasis added.)
In International Brotherhood v. Hanke, supra, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, the question involved the right to picket peacefully a business conducted without employees, the object being to enforce closing hours on business days, and closing on Sundays and holidays, to conform with practices agreed upon between the union and a few employers in the same business.
Picketing for this purpose was enjoined. The judgment was affirmed by the Supreme Court of Washington and by the Supreme Court of the United States.
In its opinion the Supreme Court makes the following comments, 339 U.S. 470, 70 S.Ct. 773, 775, 94 L.Ed. at page 1001:
'The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and 'the power of the State to set the limits of permissible contest open to industrial combatants.' (Citing cases.) A State's judgment on striking such a balance is of course subject to the limitations of the Fourteenth Amendment. Embracing as such a judgment does, however, a State's social and economic policies, which in turn depend on knowledge and appraisal of local social and economic factors, such judgment on these matters comes to this Court bearing a weighty title of respect. * * * [339 U.S. 470, 70 S.Ct. 773, 94 L.Ed at page 1003.]
'Because there is lack of agreement as to the relevant factors and divergent interpretations of their meaning, as well as differences in assessing what is the short and what is the long view, the clash of fact and opinion should be resolved by the democratic process and not by the judicial sword. Invalidation here would mean denial of power to the Congress as well as to the forty-eight States.'
A situation similar to that here presented appears in Building Service Employees Union v. Gazzam, supra, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045. In that case the State of Washington enacted legislation that workers may join or not join a union, free from coercion, interference, or restraint of employers in the designation of their representatives for collective bargaining.
The union was enjoined from picketing a hotel. The picketing was because the owner refused to sign a contract agreeing to require his employees to join the picketing union. The injunction was affirmed by the Supreme Court of Washington; Gazzam v. Building Service E. I. Union, 29 Wash.2d 488, 188 P.2d 97, 11 A.L.R.2d 1330, and by the Supreme Court of the United States. The decisions were based upon the fact that the picketing constituted a coercive attempt to force an employer to violate state law.
No particular restatement need be made of the principle under discussion as it has been stated and applied in our California decisions. Views of the courts of this state, as picketing has changed from unlawful to lawful, as it has been extended to accomplish various things, and then, perforce, as it has been limited to lawful objectives, may be found in: Pierce v. Stablemen's Union, 156 Cal. 70, 103 P. 324; Lisse v. Local Union No. 31, 2 Cal.2d 312, 41 P.2d 314; Overland Publishing Co. v. H. S. Crocker Co., 193 Cal. 109, 222 P. 812; McKay v. Retail Automobile Salesman's Local Union, 16 Cal.2d 311, 106 P.2d 373; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d 403; Magill Bros. v. Building Service Employees' Union, 20 Cal.2d 506, 127 P.2d 542; James v. Marinship Corporation, 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900; Park & Tilford Import Corporation v. International Brotherhood of Teamsters, 27 Cal.2d 599, 165 P.2d 891, 162 A.L.R. 1426; In re Blaney, supra, 30 Cal.2d 643, 184 P.2d 892; Northwestern Pac. R. R. Co. v. Lumber & Sawmill Workers Union, 31 Cal.2d 441, 189 P.2d 277; Riviello v. Journeymen Barbers etc. Union, 88 Cal.App.2d 499, 199 P.2d 400; and City of Los Angeles v. Los Angeles etc. Council, 91 Cal.App.2d 36, 210 P.2d 305.
Reference should also be made to several helpful and instructive discussions in text and law reviews: Wolferman, Inc., v. Root, 356 Mo. 976, 204 S.W.2d 733, 174 A.L.R. 593; Gazzam v. Building Employees, etc., Union, 29 Wash.2d 488, 188 P.2d 97, 11 A.L.R.2d 1338; 22 Southern California Law Review 442; 37 Cal. Law Review 296; 24 Southern California Law Review 145; 3 Stanford Law Review 413, and Cf. 'The Organizational Picket Line' by Lauritzen and by Tobriner; and 28 North Carolina Law Review 291.
It therefore appears that the California jurisdictional strike law, enacted in 1947, is constitutional and enforceable. It is an exercise of the power of the State of California, using democratic methods through its legislative department, to define an unlawful purpose limitation of peaceful picketing. Moreover, it is part of a general legislative scheme developing in our Labor Code, for the protection not only of labor and of management but of the people as a whole.
Section 923 of the Labor Code provides:
'Public policy as to labor organizations. In the interpretation and application of this chapter, the public policy of this State is declared as follows:
'Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.'
To tell the employer that he is not to interfere in the designation by his employees of their bargaining organization, and then to permit picketing of the employer's business to force him to do the very thing which the law enjoins him not to do is socially illogical.
Nor does it help to argue that picketing may be directed against employees only, to persuade them to join the picketing union. In such circumstances it is the employer's business which inevitably suffers, and which may indeed be destroyed if it is a small one. Employers too have a constitutional right, just as sacred and binding as the right of free speech, to be protected from assaults upon their property in industrial disputes to which they are not parties. Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441; Dorchy v. State of Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248.
Other questions raised by respondents are:
1. Whether the decision of the court is supported by the record.
2. That there does not appear in the record any clear and present danger to paramount public interests justifying the injunction.
3. That the jurisdictional strike law does not prohibit jurisdictional strikes.
4. That the law prohibits acts long recognized as protected by the bill of rights.
5. That the law has no presumption of constitutionality.
6. That the complaint alleges no facts to show that plaintiff is engaged in interstate commerce.
7. That the allegations of the complaint are insufficient to constitute a cause of action, or permit injunctive relief.
8. An injunction will not lie against lawful acts of a labor union which indirectly cause a breach of contract.
9. The fourth cause of action fails to show a proper ground for equitable relief.
10. That an employer may sign a closed shop or union shop contract even if none of its employees are members of the contracting union, without violating Sections 920-923 of the Labor Code.
Examination of the record and of the law has convinced this court that these contentions, and all of them are untenable.
Only one of them needs any particular comment--that there does not appear in the record any clear and present danger to paramount public interests justifying the injunction.
The short answer is that it was the province of the legislature when the law was put upon the statute books of the state to determine the clear and present danger requiring its enactment; and that unless the courts may say that there was and that there is no such clear and present danger the law is not to be struck down.
In the opinion of the United States Supreme Court in the Hughes case, 339 U.S. 46, 70 S.Ct. 718, 723, 94 L.Ed. 985, 994, it is said: 'The policy of a State may rely for the common good on the free play of conflicting interests and leave conduct unregulated. Contrariwise, a State may deem it wiser policy to regulate, Regulation may take the form of legislation, e. g., restraint of trade statutes, or be left to the ad hoc judicial process, e. g., common law mode of dealing with restraints of trade. Either method may outlaw an end not in the public interest or merely address itself to the obvious means toward such end. The form the regulation should take and its scope are surely matters of policy and, as such, within a State's choice.'
In California it has been held that the protection afforded by the free speech guarantee of the right to publicize a labor dispute is not necessarily controlled by the clear and present danger test. In re Blaney, supra, 30 Cal.2d 643, 184 P.2d 892; City of Los Angeles v. Los Angeles etc. Council, supra, 94 Cal.App.2d 36, 210 P.2d 305.
The judgment is reversed.
DORAN, J., concurs.
WHITE, Presiding Justice.
I concur.
The main and vital question here presented is whether the statute under consideration in so far as it defines a jurisdictional strike, declares it to be against the public policy of the State of California, and providing injunctive relief and damages for violation of the act is an unwarranted encroachment upon constitutional guarantees.
In Thornhill v. State of Alabama, 310 U.S. 88, at page 103, 60 S.Ct. 736, at page 745, 84 L.Ed. 1093, it is stated: 'It is true that the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist. This is but an instance of the power of the State to set the limits of permissible contest open to industrial combatants'. This is but another way of saying what was declared in James v. Marinship Corp., 25 Cal.2d 721, 730, 155 P.2d 329, 334, 160 A.L.R. 900, as follows: 'Thus a state may impose limitations upon picketing or other concerted action if the 'end sought' is not permissible under state law and public policy, though any such limitations are subject to review by the United States Supreme Court, and will be annulled if they unreasonably interfere with labor's right to publicize the facts of a labor dispute'.
It is now firmly established that states have the power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition or of some valid federal law. But, under this constitutional doctrine the due process clause is not to be so broadly construed that the state legislature is without power to suppress business and industrial conditions which it regards as offensive to the public welfare. Thus, in Carpenters Union v. Ritter's Cafe, 315 U.S. 722, 726, 62 S.Ct. 807, 809, 86 L.Ed. 1143, it was held that a state may validly declare that its welfare will not be served if 'in a controversy between a contractor and building workers' unions, the unions were permitted to bring to bear the full weight of familiar weapons of industrial combat against a restaurant business, which, as a business, has no nexus with the building dispute but which happens to be owned by a person who contracts with the builder.'
There can be no doubt that the constitutional guarantee would be infringed should the state attempt to limit peaceful picketing for, as was said in American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 570, 85 L.Ed. 855, 857, 'A state cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. * * * The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ.'
And, as was said by our Supreme Court In re Blaney, 30 Cal.2d 643, 648, 184 P.2d 892, 896, quoting from Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682, 123 P.2d 20: '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, (Citations.) This right is guaranteed by the federal Constitution as an incident of freedom of speech, press and assemblage, (citations) (and it is not) dependent upon the existence of a labor controversy between the employer and his employee.' (Emphasis added.)
However, the act with which we are here concerned is not directed at any concerted action against employers over wages, hours or conditions of employment. It prohibits concerted action only in cases where two or more labor organizations are contending as to which of them 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. Section 922 of the Labor Code prohibits employers from coercing or compelling any person not to affiliate with a labor organization. Violation of this section is punishable as a crime. The act here in question is not aimed at disputes or controversies to which the employer is a party. It has to do only with quarrels between rival labor organizations as to which of them should have the rights and privileges above referred to. I fail to see how such a dispute can be classed as having 'a reasonable relation to the betterment of labor conditions'. The employer is an innocent victim of such a controversy. As, in the instant case, he has according to the complaint on file herein a contract with a labor organization. The object of the economic pressure against the employer is to compel him to require his employees to join a union other than the one of their choice. Can it be said that the due process clause deprives the state of the right to prohibit concerted action to force an employer to deal with the picketing union in defiance of his existing agreement with another union, or notwithstanding the provisions of section 922 of the Labor Code?
To judge of the wisdom of the declared policy of the state is not for the courts. Their duty is to determine whether a restraint of picketing in reliance on the policy of the state as declared by its legislative branch is an unwarranted encroachment upon rights protected from abridgement. Where, as here, claims on behalf of free speech are met with claims on behalf of the authority of the state to impose reasonable regulations for the protection of the community as a whole, it cannot be held that peaceful picketing must be wholly immune from regulation in order to protect the general interest, nor that the state must be held powerless to confine the use of this industrial weapon within reasonable bounds. For the reasons herein stated, it is my conclusion that the labor code act under discussion presents no constitutional infirmity.
This cause is before us on a judgment predicated upon the sustaining of an objection to the introduction of any evidence on the ground that the complaint did not state a cause of action. Assuming, as we must, the truth of the allegations of the complaint, I am persuaded that it states a cause of action under the California Labor Code, section 1115 et seq.; Stats. 1947, chap. 1388, and that the legislation in question is constitutional. --------------- * Subsequent opinion 254 P.2d 544.