Chavez v. Sargent

• Decision Date: 04 September 1958
• Citation: 329 P.2d 579
• Court: California Court of Appeals Court of Appeals
• Parties: 42 L.R.R.M. (BNA) 2763, 35 Lab.Cas. P 71,823 Ted CHAVEZ, Plaintiff and Appellant, v. O. E. SARGENT et al., Defendants and Respondents. * Civ. 18012.

Page 579

329 P.2d 579

42 L.R.R.M. (BNA) 2763, 35 Lab.Cas. P 71,823

Ted CHAVEZ, Plaintiff and Appellant, v. O. E. SARGENT et al., Defendants and Respondents. ^*

Civ. 18012.

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

Sept. 4, 1958 Hearing Ordered on Court's Motion Oct. 22, 1958.

Garvin W. Hale, San Jose, for appellant.

Severson, Davis & Larson, Nathan R. Berke, George Brunn, San Francisco, as amicus curiae for appellant.

Morgan & Beauzay, San Jose, for respondent.

Gladstein, Andersen, Leonard & Sibbett, Norman Leonard, San Francisco, as amicus curiae (I. L. W. U.).

Charles P. Scully, Victor Van Bourg, San Francisco, as amicus curiae (AFL-CIO).

PETERS, Presiding Justice.

This case involves the validity of the so-called 'Right to Work' ¹ ordinance of San Benito County. The trial court, on demurrer, held that such ordinance was unconstitutional, and entered its judgment for the defendants. From this judgment the plaintiff appeals.

The ordinance was enacted in July of 1957. It is entitled: 'An ordinance relating to employment, prohibiting denial of employment because of non-membership in a labor organization, prohibiting agreements excluding any person from employment because of non-membership in a labor organization; * * * Making illegal compelling or attempting to compel a person to join a labor organization or leave his employment against his will; prohibiting conspiracy to cause the discharge of any person because of non-membership in a labor organization; providing right of action for damages for violations; and providing for injunctive relief.'

After setting forth several definitions, the ordinance provides that:

'Section 3. * * * No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall * * * [any person or corporation] enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.

'Section 4. * * * Any act or provision in any agreement entered into on or after the effective date hereof or any renewal or extension of any existing agreement entered into on or after the effective date hereof which is in violation of this ordinance shall be illegal and void. Any strike or picketing to force or induce any employer to make an agreement in writing or orally in violation of this ordinance shall be for an illegal purpose.

'Section 5. * * * It shall be unlawful for any employee, labor organization, or officer, agent or member thereof to compel or attempt to compel any person to join any labor organization or to strike against his will * * *'

Section 6 prohibits and declares illegal any conspiracy to accomplish any of the prohibited acts. Section 7 provides that 'any person who violates any provision of this ordinance, or who enters into any agreement containing a provision declared illegal by this ordinance, or who shall bring about the discharge or the denial of employment of any person because of nonmembership in a labor organization shall be liable to the person injured as the result of such act or provision for such damages as such person injured may have sustained thereby and may be sued therefor.'

Section 8 provides that 'Any person injured or threatened with injury by any act declared illegal by this ordinance shall notwithstanding any other provision of this ordinance or any other ordinance to the contrary, be entitled to injunctive relief therefrom.'

The next section contains a broad severability provision. There is no provision making a violation of the ordinance a criminal offense.

The complaint alleges that the plaintiff, Ted Chavez, is a painting contractor doing commercial and residential painting in Santa Clara and San Benito Counties; that a majority of his employees are members of a designated painters' local union affiliated with the A.F.L.-C.I.O.; that Sargent is the secretary of that union, and that such union is the only painters' union in San Benito County; that the defendants demand that plaintiff sign a union contract similar to the one that he has in Santa Clara County with the painters' union there, providing for union membership after 30 days of employment; that the union members in San Benito County are conspiring to compel the non-union painters to join the union, and refuse to work with non-union painters; that these acts are in violation of the ordinance; that plaintiff 'wishes to sign a union security contract but is subject to a suit for damages' under the ordinance if he does so. Plaintiff therefore prayed for a temporary and permanent injunction compelling the defendant union 'to desist from their demands for any type of union security in San Benito County and compelling them to work with non-union building trades employees.'

The trial judge, the Honorable Stanley Lawson, held the ordinance to be unconstitutional. In doing so he wrote an opinion holding that the phase of the labor-management field here involved had been pre-empted by the Federal government by certain provisions of the Taft-Hartley Act (29 U.S.C.A. § 158(a)), and that, even if this were not so, the State of California has legislated on the subject and occupied the field. This being so, the judge declared, a county cannot lawfully pass an ordinance that conflicts with the general laws of the state, 'Nor may it forbid what the State law allows or legislate when the State law occupies the field. (Pipoly v. Benson, 20 Cal.2d 366 [125 P.2d 482, 147 A.L.R. 515]).' The judge concluded 'that since the Federal and State Governments have per-empted the field, the ordinance is void.' It is these determinations that are challenged on this appeal. In addition to the briefs of the litigants several amici curice have filed briefs on both sides of the controversy.

The holding that the federal government has pre-empted the field of legislation here involved was erroneous for at least two reasons. In the first place, even if it be assumed that the Taft-Hartley Act is applicable to this controversy, by reason of section 8(a) (29 U.S.C.A. § 158(a)(3)) which outlaws the closed shop but authorizes union shop ² agreements under certain conditions, section 14(b) of the Taft-Hartley Act (29 U.S.C.A. § 164(b)) provides:

'Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.'

This section, on its face, apparently permits non-federal legislation and regulation in this field by state or territorial law ³ when the problem involves interstate commerce.

In the second place, even if it be assumed that, in a case involving interstate commerce, the federal government has pre-empted the field on the subject involved, and that the section quoted above does not mean what it apparently says, this would not assist defendants. The Taft-Hartley Act, of course, can apply only to matters relating to interstate commerce. It has no application to commerce purely local in character, that is, to commerce that is entirely intrastate. In the instant case, the record before us is completely devoid of any allegation or claim by any party that interstate commerce is involved or affected. There is nothing in the record to indicate that plaintiff was engaged in interstate commerce. Where the record is barren as to interstate commerce the question of federal pre-emption does not arise. Thorman v. International Alliance, etc. Employees, 49 Cal.2d 629, 320 P.2d 494; Seven Up Bottling Co. of Los Angeles v. Grocery Drivers Union, 49 Cal.2d 625, 320 P.2d 492. We must, therefore, hold that, as to the problem here involved, inasmuch as interstate commerce is not involved, the trial court was in error in holding that the federal government has pre-empted the field.

The trial court also ruled that the State of California, by state law, has pre-empted the field, and that the ordinance is unconstitutional because contrary to state law and policy. This presents the pivotal issue presented on this appeal.

The Constitution of this state in Article XI, section 11, states: Any county * * * may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' Under this section the police powers conferred on cities and counties are 'equal in extent to those of the state.' McKay Jewelers v. Bowron, 19 Cal.2d 595, 600, 122 P.2d 543, 546, 139 A.L.R. 1188; see also an article by Peppin, 'Municipal Home Rule in California,' 32 Cal.L.Rev. 341. Therefore, if the state has not occupied the field here involved, the counties may legislate on tis subject. This is so no matter how logical and compelling the argument may be that laws permitting or prohibiting the union or closed shop should, for obvious reasons, be of statewide application. The problem is obviously one of statewide concern. But even as to such a concern, local regulation is permissible until state laws have been enacted to occupy the field. In re Porterfield, 28 Cal.2d 91, 168 P.2d 706, 167 A.L.R. 675; In re Iverson, 199 Cal. 582, 250 P. 681; Wilton v. Henkin, 52 Cal.App.2d 368, 126 P.2d 425; Sawyer v. Board of Supervisors, 108 Cal.App. 446, 291 P. 892. Except in a very limited field not here involved, power to act on such a question is concurrent between the state and counties and municipalities, with state law prevailing in the event that the local ordinance conflicts 'with general laws.'

The phrase 'general laws' implies that for a conflict to exist such conflict must be between the local ordinance and a state statute, and that a conflict between the ordinance and general common law principles is not sufficient to constitute the conflict referred to in the constitutional provision. The phrase used in that...