City of Los Angeles v. Los Angeles Bldg. & Const. Trades Council

Decision Date06 October 1949
Citation94 Cal.App.2d 36,210 P.2d 305
CourtCalifornia Court of Appeals Court of Appeals
PartiesCITY OF LOS ANGELES et al. v. LOS ANGELES BLDG. & CONST. TRADES COUNCIL et al. Civ. 16794.

Arthur Garrett, Los Angeles, and Clarence Todd, San Francisco, for appellants.

Ray L. Chesebro, City Atty., Gilmore Tillman, Chief Asst. City Atty. for Water and Power, Cornelius T. Waldo, Asst. City Atty., A. L. Lawson, Deputy City Atty., Alfred H. Driscoll, Deputy City Atty., Los Angeles, for respondents.

SHINN, Presiding Justice.

The question for determination on this appeal involves the right of organized labor to strike, picket, and engage in other concerted labor activities against a governmental, rather than a private, employer.

The action was brought by the City of Los Angeles and its Department of Water and Power, which was engaged in construction and modification work upon some eight major water and electrical projects in the city, to enjoin a group of labor unions from striking, picketing, declaring the department unfair, and engaging in other concerted action for the purpose of coercing the department to comply with certain demands of defendants regarding working conditions on said projects. A preliminary injunction was granted on March 11, 1948, after a hearing of an order to show cause issued on plaintiffs' verified complaint. The appeal is from the injunction, and challenges its validity solely upon constitutional grounds.

By the terms of the preliminary injunction, the defendant unions, and 'all persons in active concert or participation with them,' were restrained during the pendency of the action or until the further order of the court from 'Striking, or calling or inducing a strike against the Department of Water and Power of The City of Los Angeles at any of its projects hereinafter enumerated, or picketing any of said projects, or giving any notice stating or implying that a strike exists at any of said projects or threatening to strike or picket any of said projects or hindering, delaying or interfering with, in any manner or by any means or device, the work upon any of said projects, for the purpose of intimidating or coercing The City of Los Angeles, the Department of Water and Power, the Board of Water and Power Commissioners, the Board of Civil Service Commissioners, or any officer of said City in the performance of their or his lawful duties; and coercing, compelling, inducing or encouraging the employees of said Department of Water and Power, who are employed on said projects, to hinder, delay or interfere with the work on said projects, by strike, walk-out, cessation of work, or otherwise.' After describing the projects affected, the injunction concluded with the statement that 'Nothing in this order shall be construed as affecting the right of any employee of said Department to abandon or to resign his employment.'

The evidence upon which the injunction was granted was contained in plaintiffs' verified complaint, and in three affidavits filed by defendants.

The following facts were before the court: The Department of Water and Power of The City of Los Angeles is a duly constituted department of the city government. It is required and empowered by the City Charter to construct and operate facilities to supply water and electricity to the city and its inhabitants. Approximately $450,000,000 is presently invested in publicly owned water and electric systems under its management and control. In December, 1947, in order to meet the greatly increasing demands being made upon it by reason of the rapid growth of the city, the department was engaged in an extensive construction program to enlarge and improve its facilities. The estimated cost of the eight separate construction projects here involved exceeds $48,000,000. Of these projects, all but two were being built entirely by direct employment and purchase of materials by the department; the two largest projects were being constructed in part by independent contractors. Some 420 persons were directly employed by the department on the several projects, all of whom were classified members of the civil service. Ninety or more of these employees, and nearly all of the employees of the independent contractors, were members of one or more of defendant unions.

Beginning in December, 1947, defendant unions made repeated demands upon the department relating to working conditions. According to the allegations of the complaint, the foremost demand was 'that said department require all of said persons so employed directly by it to be or become members of some one of the defendants labor unions, or that the department remove said persons from said projects and employ thereon only members of such a labor union.' Other demands alleged were as follows: That the Board of Water and Power Commissioners and Board of Civil Service Commissioners fix and classify the duties of civil service positions in the department in conformity with the craft jurisdictions and job classifications recognized by defendants; that the department provide craft foremen to supervise the work 'in conformity with the provisions of the collective bargaining agreements which said defendants have made with private employers'; and that the Board of Water and Power Commissioners fix wages and salaries in accordance with 'standards and rules established, approved and recognized by said defendants.' Defendants' version of the union demands, as shown by affidavit was that the unions proposed that the department follow a 'union policy' on the new construction, by transferring sufficient union employees from repair and maintenance work to the new construction so as to completely man those jobs, and with respect to new employees put only union members on new construction work. Defendants admitted, by affidavit, the other demands allegedly made, and averred in justification therefor that the prevailing system of classification and definition of the duties of departmental employees was being used as a device to avoid payment of wages equivalent to those being paid for comparable services rendered to private employers, in violation of section 425 of the City Charter. After a series of conferences between union and departmental officials, as a result of which the department allegedly made some changes in its overtime pay policies but otherwise rejected the union demands, a strike was called on February 6, 1948. The department's projects were declared to be 'unfair,' pickets were posted, and all of the union employees withdrew from work. It is not contended that the picketing was not entirely peaceful, nor that the representations made were either false or fraudulent.

The case presents the important question whether organized labor may legitimately strike and picket government itself. The city tacitly concedes that the complaint would not sate a cause of action as against an ordinary employer in private industry; McKay v. Retail Automobile Salesmen's Local Union No. 1067, 16 Cal.2d 311, 106 P.2d 373; Shafer v. Registered Pharmacists Union Local 1172, 16 Cal.2d 379, 106 P.2d 403; and we are not called upon to determine whether it would be sufficient as against a privately owned public utility or common carrier. See Northwestern Pac. R. Co. v. Lumber & Sawmill Workers' Union, 31 Cal.2d 441, 446-448, 189 P.2d 277.

Although no case has been found, nor has any been cited to us, which affirms that there exists a constitutional right to strike, as distinct from other constitutional rights, we are faced with a clear constitutional issue in respect to the portions of the injunction which restrain picketing and other forms of communication relating to the controversy between the parties. In Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and Carlson v. State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104, the principal was laid down that peaceful picketing for the purpose of publicizing the truthful facts of an industrial labor dispute was an exercise of freedom of discussion which under the Fourteenth Amendment to the United States Constitution, could not be generally prohibited by state action. The right, of course, is not free from limitation. It does not extent beyond the bounds of legality. And as said by Mr. Justice Brandeis in Dorchy v. Kansas, 1926, 272 U.S. 306, 311, 47 S.Ct. 86, 87, 71 L.Ed. 248; 'a strike may be illegal because of its purpose, however orderly the manner in which it is conducted. * * * Neither the common law, nor the Fourteenth Amendment, confers the absolute right to srike.' In International Union, U.A.W., A. F. of L., Local 232 v. Wisconsin Employment Relations Board, 1949, 336 U.S. 245, 69 S.Ct. 516, 524, 93 L.Ed. 651, citing and quoting with approval from Dorchy v. Kansas, the court said: 'The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining which this Court has characterized as a 'fundamental right' * * *.' In upholding the power of a state to outlaw intermittent, unannounced work stoppages, the court there reaffirmed the principle that to whatever extent there is a right to strike, that right plainly contemplates a lawful strike. One which runs afoul of statute law or public policy is not entitled to legal protection, and may be subject to legal restrictions. See National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, sit-down strike; Southern S. S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246, mutiny; United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, strike creating national emergency; Lafayette Dramatic Productions v. Ferentz, 305 Mich. 193, 9 N.W.2d 57, 145 A.L.R. 1158, strike to compel hiring of...

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