16 Cal.2d 311, 16016, Mckay v. Retail Auto. S. L. Union No. 1067

Docket Nº:16016
Citation:16 Cal.2d 311, 106 P.2d 373
Opinion Judge:[11] Edmonds
Party Name:Mckay v. Retail Auto. S. L. Union No. 1067
Attorney:[7] I. M. Peckham, Sol A. Abrams, John Francis Neylan and Bartley C. Crum for Appellants. [8] Hanna & Morton, James M. McRoberts, Cullinan, Hickey & Cullinan, Rogers & Clark, Webster V. Clark, Cullinan, Hickey & Sweigert, Brobeck, Phleger & Harrison and George O. Bahrs, as Amici Curiae, on Behalf...
Case Date:October 14, 1940
Court:Supreme Court of California

Page 311

16 Cal.2d 311

106 P.2d 373

JAMES F. McKAY et al., Appellants,



S. F. No. 16016.

Supreme Court of California

October 14, 1940

In Bank.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[106 P.2d 374] I. M. Peckham, Sol A. Abrams, John Francis Neylan and Bartley C. Crum for Appellants. Hanna &amp Morton, James M. McRoberts, Cullinan, Hickey &amp Cullinan, Rogers &amp Clark, Webster V. Clark, Cullinan, Hickey &amp Sweigert, Brobeck, Phleger &amp Harrison and George O. Bahrs, as Amici Curiae, on Behalf of Appellants. Mathew O. Tobriner for Respondents. Vallee, Beilenson &amp Kenny, Laurence W. Beilenson, William Berger, M. Mitchell Bourquin, Edward P. Murphy, P. J. Murphy, Clarence E. Todd and Samuel W. Gardiner, as Amici Curiae, on Behalf of Respondents


[106 P.2d 375] EDMONDS, J.

The question presented for determination in this case concerns the right of labor to picket an employer's place of business. The controversy arose over a demand upon the employer to sign a contract with a union. [106 P.2d 376]

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By a suit against the employer, the American Federation of Labor and a number of its affiliates, Retail Automobile Salesmen's Local Union No. 1067 and its affiliate, Retail Clerks International Protective Association, Garage Employees Union Local No. 665 and its affiliate, Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, San Francisco Labor Council, and a number of officers of these organizations, the nonunion employees sought an injunction to prevent interference with their employment relations. The case is here upon the plaintiffs' appeal from an order dissolving a temporary restraining order and denying an application for a preliminary injunction.

The only evidence before the trial court in ruling upon the appellants' right to injunctive relief was the verified complaint. It alleges the following facts:

The plaintiffs, thirty-two in number, are employed as salesmen by the defendant Howard Automobile Company, which is a California corporation engaged in the business of selling and repairing automobiles in San Francisco "and elsewhere". In May, 1937, in San Francisco, the plaintiffs, being then all the salesmen employed by the company, united and organized and designated three of their number a committee to negotiate terms and conditions of employment with the company "in accordance with the terms of the Wagner Labor Relations Act". This committee forthwith notified the Regional Director of the National Labor Relations Board and the employer of its appointment, whereupon the employer recognized the committee as the bargaining agent for the entire sales force.

Other allegations of the complaint are that the plaintiffs and the employer are mutually satisfied with the terms and conditions of employment and desire to continue the relationship. Between the plaintiffs and their employer no labor dispute of any kind exists, and none of the plaintiffs has been or is now on strike. None of the plaintiffs is or has any desire to be a member of any of the defendant unions. Neither the plaintiffs nor the company has ever been a party to any agreement with any of the defendant unions or any other labor organization, and neither has ever requested any of the defendant unions to act for any of the plaintiffs as a collective bargaining agency.

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The plaintiffs further assert that the Howard Company employs members of all of the defendant unions except members of the Salesmen's Union, and each of these unions has rules and agreements, binding on their respective members and enforceable by fines and penalties, not to pass picket lines or to do business with persons under picket. The placing of a picket at the company's plant will, pursuant to these rules and agreements, "compel" the members of these unions to abstain from visiting, delivering goods to, accepting delivery from, transacting business with, or working for the company.

The complaint also states that the Salesmen's Union has solicited the plaintiffs to join it and, in consequence of their refusal, has "placed a picket around the place of business of said company, and [its members] have congregated there in numbers, and announced their intention to maintain said picket until the said company compels plaintiffs to join said union or discharges said plaintiffs, and until said codefendants of said company have convinced said company that it is profitable for it to sign a contract with said union which would require plaintiff employees to join said union, and if they refuse to join said union, would require said company to discharge plaintiffs and each of them". None of the pickets has been or is an employee of the company. The defendant Labor Council has by resolution approved of the picket, and plaintiffs allege upon information and belief that the council has appointed a "Board of Strategy" to devise ways and means of "exerting pressure and coercion" on the company and on plaintiffs to sign a contract with and join the Salesmen's Union and has placed the company on its "We don't patronize list", a list of firms "boycotted throughout the nation by all organized labor".

Continuing their charges against the defendants, the plaintiffs say that the continuance of the picket has had the effect of "closing down the company's plant, stopping all work therein, and destroying its said business". The unions and their officers have "combined and confederated and conspired to aid, abet and carry out said boycott and said picket, and to fine, coerce and penalize any of their members who violate either boycott or picket". The effect of the boycott and picket is "ruinous to the business of any plant so boycotted or picketed, and coerces said company to deprive plaintiffs

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and each of them of their right to earn a livelihood freely and unmolested". [106 P.2d 377] Unless the codefendants of the company are restrained, the company intends to and will discharge plaintiffs or demand that each of them join the Salesmen's Union.

The prayer of the complaint is for a decree enjoining the labor organizations and their representatives from picketing or boycotting the company or "from in anywise threatening, coercing or intimidating" the company or any of its employees or customers for the purposes named in the complaint; from "in any manner interfering with" the business of the company; from inducing or compelling any of the company's employees to leave its employ; from preventing others from entering the service of the company; and from acting in or aiding any combination or conspiracy to restrain the company in the free and unhindered control of its business.

Upon the filing of this complaint the superior court issued a temporary restraining order in literal accordance with the terms of the prayer and an order to show cause why a preliminary injunction should not issue. All of the defendants except the employer joined in a demurrer to the complaint, which challenged it on both general and special grounds. The application for the injunction was heard with the demurrer and submitted upon the allegations of the verified complaint. The trial court sustained the demurrer with leave to amend, dissolved the temporary restraining order and denied the application for a preliminary injunction. The appeal has been taken only from the orders denying injunctive relief.

Broadly stated, the position taken by the plaintiffs in their briefs is that in the absence of any dispute between themselves and their employer, the defendants have no right to interfere in any way with their employment relations. On the other hand, the labor organizations and their officers maintain that they collectively have a direct, substantial and legitimate interest in the employment relations of the company, and that since they are employing means which are entirely lawful, their activities may not be enjoined.

The history of the law governing the right of workingmen to combine in order to bargain for better working conditions is marked by much divergence of opinion, with many changes through the years. In England, until 1824,

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combinations of laborers to raise wages or shorten hours or to affect business in any way were criminal even if there was no resort to a strike (5 Geo. IV C. 95; 6 Geo. IV C. 129; 34 Edw. III C. 9; Rex v. Journeymen- Taylors, 8 Mod. 10, 88 Eng. Repr. 9), and until after the middle of the nineteenth century it was a crime to threaten a strike for any purpose (Walsby v. Anley, 3 El. & El. 516, 121 Eng. Repr. 536; Skinner v. Kitch, 10 Cox, C. C. 493, L. R. 2 Q. B. 393), or to combine peacefully to persuade employees to leave work without picketing (Reg. v. Rowlands, 2 Den. C. C. 363, 17 Q. B. 671, 117 Eng. Repr. 1439). The sanctions of the criminal law against combinations of workingmen in furtherance of their interests were not finally relaxed until 1875 (The Conspiracy and Protection of Property Act, 38 & 39 Vict. C. 86, sec. 3).

Development of the early law in this country shows a similar trend. Workingmen who combined for any purpose opposed to the interest of their employer were indicted and punished as members of a criminal conspiracy. (People v. Melvin, 2 Wheeler C. C. (N.Y.) 262 (1810); People v. Fisher, 14 Wend. 9 (N.Y. 1835) [28 Am. Dec. 501]. See, also, Nelles, The First American Labor Case, 41 Yale L. J. 165 (1931); Witte, Early American Labor Cases, 35 Yale L. J. 825, 826 (1926); Landis, Cases on Labor Law, p. 28 et seq.) And although in 1842 Massachusetts held that workingmen who quit work in concert to compel an employee to join their association were not guilty of a crime (Commonwealth v. Hunt, 45 Mass. 111 [38 Am. Dec. 346]), until the end of the nineteenth century the criminal conspiracy doctrine was applied to associations of...

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