Bricklayers and Masons Union No. 1 of Cal. v. Superior Court of Kings County

• Decision Date: 23 May 1963
• Citation: 216 Cal.App.2d 578,31 Cal.Rptr. 115
• Court: California Court of Appeals Court of Appeals
• Parties: , 53 L.R.R.M. (BNA) 2524, 47 Lab.Cas. P 18,332 BRICKLAYERS AND MASONS UNION NO. 1 OF CALIFORNIA et al., Petitioners, v. The SUPERIOR COURT OF the COUNTY OF KINGS, Respondent; Winsor CURTIS, Real Party in Interest. Civ. 248.

Page 115

31 Cal.Rptr. 115

216 Cal.App.2d 578, 53 L.R.R.M. (BNA) 2524,

47 Lab.Cas. P 18,332

BRICKLAYERS AND MASONS UNION NO. 1 OF CALIFORNIA et al., Petitioners, v. The SUPERIOR COURT OF the COUNTY OF KINGS, Respondent Winsor CURTIS, Real Party in Interest.

Civ. 248.

District Court of Appeal, Fifth District, California.

May 23, 1963.

Hearing Denied July 17, 1963.

Stutsman, Nagel & Ferrari, Fresno, Brundage, Hackler & Roseman, Charles K. Hackler and Julius Reich, Los Angeles, for petitioners.

Earl Klein, Beverly Hills, for real party in interest.

CONLEY, Presiding Justice.

Bricklayers and Masons Union No. 1 of California and Bricklayers, Masons and Plasterers International Union of America and their officers and members seek a writ of prohibition to prevent further proceedings in a damage suit against them now pending in the Superior Court of Kings County; the application is based on the contention that that court lacks jurisdiction because the acts complained of in the suit are arguably protected or prohibited conduct under the National Labor Relations Act and exclusive jurisdiction over the cause rests in the National Labor Relations Board. (San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.

The superior court action which the petitioners seek to halt (Winsor Curtis, Plaintiff, v. Bricklayers and Masons Union No. 1 of California et al., Efendants) was filed in Kings County and is numbered 15043 therein. In that case Winsor Curtis, an individual doing business under the fictitious name of Birdor Masonry Contractors, sued the petitioners herein for damages claimed to have been caused through the commission of a tort, to-wit, interference with economic relations. In the suit it was alleged that on or about May 17, 1960, plaintiff and the defendant unions entered into a collective bargaining agreement in writing under which the unions agreed to provide adequately trained and qualified workmen for masonry and brick work in connection with the construction by Mr. Curtis of several hundred homes at the Lemoore Naval Air Station in Kings County. The construction in question was part of a Capehart housing project, and the residences were to be used by naval personnel. The total amount of plaintiff's bid for this job was $360,000, and in the year 1960 plaintiff's gross business was approximately $1,400,000. The contract which plaintiff made for the construction in question was entered into on or about November 27, 1959.

The written contract between plaintiff and the unions did not mention the use of a device which a union representative and plaintiff orally agreed might be employed by the workmen. This device, known as a 'speed lead,' was originated and perfected to replace the plumb rule, and it facilitated bricklaying by securing an accurate and level course for the laying of the bricks. Plaintiff alleges that he expended the sum of $2,500 in perfecting this 'speed lead,' because the use of the device improved the quality of the construction and permitted workmen to accomplish their end and aim at a more rapid pace. Plaintiff alleged that with the use of the 'speed lead' each workman could lay an average of 430 bricks a day and that with that average the brick work at the Lemoore Naval Air Station would have required 1800 shifts to complete. For approximately three months the 'speed lead' was used with such average production. It is further alleged that on or about the 1st of August, 1960, one Al Bishop, a member of the defendant unions and a bricklayer on the housing project, was discharged by plaintiff because of inefficiency in the quantity and quality of his work. The unions protested, and Mr. Bishop was rehired, but with no indication of improvement in his work, he was again discharged on August 11, 1960. On the following morning the dispute again flared up between the plaintiff and the unions, and a meeting of its members was called by the defendant Lopez, the secretary and business agent of the California union, for the purpose of voting on a discontinuance of the 'speed lead.' On August 19, the plaintiff received a letter from Mr. Lopez mailed on behalf of the unions stating that on August 17, 1960, the unions had voted to outlaw the use of the device, and plaintiff's workmen were forbidden to use the 'speed lead'; they in fact ceased to use it. It is alleged 'That said action in outlawing the use of the 'speed lead' and forbidding Plaintiff's employees from using the 'speed lead' was taken maliciously, deliberately and wilfully by the defendants with the sole purpose, aim and objective to injure Plaintiff and slow down production on the housing project at Lemoore Naval Air Station because Plaintiff had discharged the above mentioned defendant, Al Bishop.' The plaintiff continues by stating that the defendants conspired among themselves 'to maliciously, wilfully and deliberately inflict financial loss upon Plaintiff and his business in retribution for the discharge of the said defendant. Al Bishop.' The plaintiff further avers that by the abolition of the 'speed lead' plaintiff was required to use 2062 shifts to complete the housing project or 262 more shifts than would have been required if the 'speed lead' had been used, at an additional cost to plaintiff of $14,410. It is further claimed that by their refusal to use it, plaintiff's employees destroyed te value of the 'speed lead' which was developed and created for the particular job; it is further said that other masonry contractors operating in the territorial jurisdiction of the defendant unions were permitted to use devices of a similar type to replace the plumb rule. The additional allegation is made that because of the slowdown the governmental authorities at the naval air station decided never to use additional brick work in future construction projects at the naval air station. The prayer is for $16,910 loss of profits, $30,000 for loss of prospective profits and $500,000 punitive and exemplary damages besides costs of suit.

The petition for a writ of prohibition alleges that the petitioners filed a motion for summary judgment in the action on or about the 19th of February, 1962, and therein objected to the suit on the ground that the court lacked jurisdiction. After hearing, the motion was denied, and the case was set down for trial; the petition avers that it will be tried and judgment rendered unless the writ of prohibition is granted.

It is alleged:

'Respondent has no jurisdiction in said matter, for the reason that the facts of the case reveal that the conduct of the Defendants, Petitioners herein, constitute arguably protected or prohibited conduct under the National Labor Relations Act and exclusive jurisdiction over the cause rests in the National Labor Relations Board.'

It is elementary that this court has jurisdiction to issue a writ of prohibition to prevent the superior court from acting in excess of its jurisdiction. (Cal.Const. art. VI, § 4B; Code Civ.Proc. §§ 1102, 1103; Harden v. Superior Court, 44 Cal.2d 630, 634, 284 P.2d 9; Calise v. Superior Court, 159 Cal.App.2d 126, 132, 135, 323 P.2d 859.) Petitioners contend that this is the only means by which defendants can have the holding of the superior court reviewed without the necessity of a trial. There is, of course, no appeal from an order denying a summary judgment. (Stanton v. Andrews, 170 Cal.App.2d 269, 338 P.2d 529; Schulze v. Schulze, 121 Cal.App.2d 75, 262 P.2d 646; Nevada Constructors, Inc. v. Mariposa Public Utility Dist., 114 Cal.App.2d 816, 251 P.2d 53.) The trial was anticipated to last six days; some of the defendants would attend with the greatest inconvenience, and the requirement of a trial in which many of the witnesses depend for their livelihood on daily wages would be extremely burdensome. As is said in Phelan v. Superior Court, 35 Cal.2d 363, 370, 217 P.2d 951, 955:

'Where an order is not appealable, but is reviewable only upon appeal from a subsequent judgment, various factors, such as expense of proceeding with a trial and prejudice resulting from delay, may operate to make that remedy inadequate.'

It is observed in 3 Witkin, California Procedure, Extraordinary Writs, section 36, pages 2510-2511:

'* * * the expense and delay of a substantial trial or hearing will usually be a sufficient reason for prohibition.'

In view of all of the circumstances, we hold that a determination of the jurisdiction of the superior court through this application for a writ of prohibition is justified.

Petitioners' basic premise in support of their request for relief is that the California courts have no jurisdiction to try a case which is arguably either a protected or prohibited activity under the National Labor Relations Act, because Congress has indicated an intent to vest exclusive jurisdiction with respect to matters of that kind in the National Labor Relations Board. In the area of labor relations it is clearly apparent from the volume and comprehensiveness of federal legislation that the doctrine of pre-emption applies, and Congress has indicated that concurrent jurisdiction should not be effectuated except where expressly provided for the that any state law which conflicts with national legislation must yield to the federal statutes. In enacting the National Labor Relations Act, 49 Statutes 451, 29 U.S.C.A. § 153 and following, Congress created an administrative board with investigative, hearing and decisional powers as well as authority to apply to the courts for intermediate injunctive relief; the fundamental purpose of the National Labor Relations Board is to administer the operation of the act. Because Congress intended that there should be a single uniform policy throughout the land in the area of labor relations, both state and federal courts are barred from interfering with the primary jurisdiction of the National Labor Relations Board (San Diego Bldg. Trades Council etc. v. Garmon, supra, 359...