California State Council of Carpenters v. Superior Court

• Decision Date: 08 September 1970
• Citation: 11 Cal.App.3d 144,89 Cal.Rptr. 625
• Court: California Court of Appeals Court of Appeals
• Parties: , 75 L.R.R.M. (BNA) 2364, 64 Lab.Cas. P 52,401 CALIFORNIA STATE COUNCIL OF CARPENTERS, etc., et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent. STROM DRYWALL CONTRACTORS, INC., etc., et al., Real Parties in Interest. Civ. 10189.

Page 625

89 Cal.Rptr. 625

11 Cal.App.3d 144, 75 L.R.R.M. (BNA) 2364,

64 Lab.Cas. P 52,401

CALIFORNIA STATE COUNCIL OF CARPENTERS, etc., et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent STROM DRYWALL CONTRACTORS, INC., etc., et al., Real Parties in Interest.

Civ. 10189.

Court of Appeal, Fourth District, Division 1, California.

Sept. 8, 1970.

Rehearing Denied Oct. 2, 1970.

Hearing Denied Nov. 5, 1970.

[11 Cal.App.3d 149] Levy & Van Bourg, Los Angeles, for petitioners.

No appearance for respondent.

Richard A. Perkins, Beverly Hills, and Dudley Gray, Torrance, for real parties in interest.

OPINION

WHELAN, Associate Justice.

By their petition for a writ of prohibition, California State Council of Carpenters and its Orange County subsidiary (the union) challenge the jurisdiction of the Superior Court of Orange County (respondent court) to entertain and try an action there pending, $167366, brought by real parties in interest Strom Drywall Contractors and others (Strom) as plaintiffs against the union and others.

The complaint filed in action $167366 alleges that Strom is a party to a collective bargaining agreement between the union and California Drywall Contractors Association, of which Strom is a member, and which is named as a defendant. The agreement covers all members of the union engaged in the drywall industry within the State of California; its term is from August 1, 1968 to and including July 31, 1971.

The complaint further alleges the inclusion within the agreement of the following provisions:

'ARTICLE V

'STRIKES, LOCKOUTS

'* * * The Union * * * shall have the right to withdraw or refuse to refer men with respect to any Contractor who has * * * violated the prohibition against * * * payment of piece rates or bonuses specified in this Agreement * * *. The withdrawal or refusal to refer men under the conditions specified in this Article shall not be deemed a violation of this Agreement. Any Contractor who believes that the Union has violated the provisions of this Agreement by withdrawing or refusing to furnish men as specified herein must exhaust the grievance and arbitration remedies provided in this Agreement.'

The contract provided that there should not be any right to strike except as provided in Article V.

Article VII of the contract provided that the rates of compensation should be the hourly rates fixed by the contract, with some leeway for workmen of exceptional skill. Compensation based upon piecework bonuses, units of production or work quotas are forbidden.

Article VIII provided in part:

'Section 1. Subject to the exceptions provided for in Article V of this Agreement, any dispute, grievance or question concerning the application or interpretation of this Agreement shall be determined in accordance with the provisions of this Article and the rules and procedures of the Joint Adjustment, Joint Arbitration and Joint Appeals Boards as they may be amended from time to time.

'Any grievance or dispute may be presented to the Joint Adjustment Board * * *.

'* * *

'Wherever the Union has the right pursuant to the terms of this Agreement to withdraw or refuse to refer men such right shall co-exist with the right to proceed under any stage provided for under the provisions of this Article.

'* * * er

'Section 2. * * *

'* * * n 2

'j. The decision of the Joint Adjustment Board Panel, the Joint Appeals Board or the Joint Arbitration Board shall be final and binding upon the parties to this Agreement and shall have the effect of a legal judgment. The impartial arbitrator shall not have the authority to modify, vary, change, add to, or remove any of the terms or conditions of this Agreement.'

Article XXI repeated the prohibition against compensation on a piecework basis. It then provided that should the Joint Adjustment Board, upon which the union and the employers have equal representation find a violation of that provision, it should assess liquidated damage for each infraction, stating:

'(6) * * * The parties recognize and acknowledge that proper payment of wages is essential to the maintenance of the Agreement, the health and safety of workmen, and fairness to all employees in the industry, and that it would be extremely difficult if not impracticable to fix the actual expense and damage to the workmen and the industry from any failure to pay wages in accordance with the provisions of this Agreement. Therefore, the amount of damage resulting from any such failure shall be presumed to be the sum of Two Hundred and Fifty Dollars ($250.00) for each infraction for each employee, for each week in which the infraction occurs * * *.'

The complaint in the court below alleged that the provision against piecework and for an hourly rate of wage as fixed by the contract had been waived and that petitioners should be estopped to attempt to enforce it; that the provision is contrary to public policy and void; that the provisions for permitting an award of liquidated damages was in fact for a penalty; and that the petitioners have failed and been unable to furnish workmen in adequate number and should not be permitted to enforce those provisions so long as they fail to perform their obligation to furnish workmen.

The complaint alleges additionally:

'On and after June 2, 1969, plaintiffs have repeatedly called on the Unions to refer competent employees to them for work, but the Unions have always replied that they have no employees available, to refer, and none have been referred. Also, a number of plaintiffs' employees who did report for work June 2, 1969, engaged in a slowdown and refused to perform a full day's work at contract hourly wage rates.

'The result of the foregoing developments is this: competent employees in sufficient numbers are not willing to work at contract hourly wage rates; the Union is evidently unable or unwilling to comply with its contractual obligation to furnish employees as needed; * * *'

After a hearing, a preliminary injunction issued by which the union was enjoined from:

'(a) Threatening, attempting, or committing any act, or testifying before the 'Drywall Joint Adjustment Board' referred to in the 'Drywall Master Agreement,' a copy of which is attached to the complaint herein, or filing any declaration or application before said Board, in any proceeding against any of the plaintiffs herein arising out of any alleged violation of any of the paragraphs of Article XXI of said agreement, except Paragraphs 1 and 3 thereof; or

'(b) Withdrawing any employee from, or refusing to furnish or refer any men to, any of the plaintiff employers for any reason arising out of a claim that the plaintiff employer has violated the so-called prohibition against piecework, which is contained in Section 1 of Article XIV of said agreement; or

'(c) Taking any action in furtherance of the processing or collection of any now existing or outstanding penalties or orders made to this date by said 'Drywall Joint Adjustment Board' against any of the plaintiffs herein, which penalties or orders arose out of actual or alleged violations of any and all the paragraphs of Article XXI of the Drywall Master Agreement except paragraphs 1 and 3, and any actual or alleged violations of the so-called prohibition against piecework, which is contained in Section 1 of Article XIV of said agreement.'

The petition alleges, which allegation is undenied, that Strom and California Drywall Contractors Association are employers subject to the jurisdiction conferred by statute on the National Labor Relations Board.

The response to the petition for prohibition sets up the matters alleged in the complaint in action $167366; among other additional matters, it alleges:

'(c) The procedure of said purported arbitration tribunal is unfair in that counsel for the unions, whose accusations of contract violations are prosecuted against employers before said tribunal, also acts as attorney for said tribunal and has influenced said tribunal to accept his contention that the unions' noncompliance with their contractual obligation to supply competent workmen in sufficient number on request as needed is immaterial to a proceeding against an employer, so that any employer who is forced to pay contractually-excessive wages is automatically subject to the imposition of penalties as a contract violator, regardless of the pressures which he may be under as a result of the unions' non-compliance, the employees' wage demands, and his liability to others for performance of construction contracts * * *

'* * *

'The instant petition for writ of prohibition ostensibly claims jurisdiction for other tribunals. Actually, however, its object is to take the controversy out of the rule of law entirely and subject it to union dictates, either directly imposed by means of economic coercion or (by a kind of elegant variation) registered by a private tribunal which cannot furnish effective relief and which in any event the unions control to their satisfaction.'

If the content of the preliminary injunction reflects the purpose of the action in which it was granted, the plaintiffs therein have sought to prevent on the one hand a union-directed work stoppage or strike for a violation of the contract provisions against piecework and wage bonuses based on production, and on the other hand to prevent the operation of the procedures for arbitration of alleged violations of those provisions and for awards of damages for such violations.

Prohibition is a proper remedy to restrain the superior court from hearing or taking proceedings in a civil action to enjoin the enforcement of certain provisions relating to wages of a collective bargaining agreement, the parties to which are engaged in interstate commerce. (Heavy, Highway Bldg. Constr. Teamsters Committee v. Superior Court, 203 Cal.App.2d 591, 21 Cal.Rptr. 840.)

In those areas of labor relations that are the subject of federal preemption, a writ of prohibition will issue to prevent...