Cox v. Superior Court of San Bernardino County

• Decision Date: 06 November 1959
• Citation: 52 Cal.2d 855,346 P.2d 15
• Court: California Supreme Court
• Parties: , 45 L.R.R.M. (BNA) 2121, 38 Lab.Cas. P 65,923 Jack COX, as Secretary, etc., et al., Petitioners, v. SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent, Frank A. Calhoun et al., Real Parties In Interest. L. A. 25484

Page 15

346 P.2d 15

52 Cal.2d 855, 45 L.R.R.M. (BNA) 2121, 38 Lab.Cas. P 65,923

Jack COX, as Secretary, etc., et al., Petitioners, v. SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent, Frank A. Calhoun et al., Real Parties In Interest.

L. A. 25484.

Supreme Court of California

Nov. 6, 1959.

Garrett, Richman & Nicoson and Lionel Richman, Los Angeles, for petitioners.

No appearance for respondent.

Edgar C. Keller, San Bernardino, for real parties in interest.

PETERS, Justice.

Petitioners seek a writ of prohibition to compel the respondent court to desist from further proceedings in the trial of issues raised by the second amended counterclaim and cross-complaint brought against petitioners by the real parties in interest.

Petitioners Cox and Pollock brought representative actions on behalf of two painters' unions (Orange Belt District Council of Painters No. 48 and Painters Local Union No. 775) against Frank A. Calhoun, individually, and Frank A. Calhoun and Elmer Bickmore, partners, painting contractors, and the real parties in interest herein, for breach of a collective bargaining agreement. The complaint alleged that the defendants had failed to enforce a union shop provision and had failed to make payments in accordance with a trust fund provision contained in the collective bargaining agreement. The defendants filed an answer alleging, among other things, that the part of the collective bargaining agreement establishing the trust fund was illegal in that it violated section 302 of the Labor Management Relations Act (29 U.S.C.A. § 186). ¹

The defendants also filed a counterclaim and cross-complaint, containing six counts. These pleadings alleged that the collective bargaining agreement between cross-complainants and the unions incorporated the provisions relating to the previously existing employees' insurance fund created in 1952, of which the cross-defendants were trustees; that the cross-complainants entered into the agreement under threat by cross-defendants that they would cause cross-complainants' employees to cease working for them; that cross-complainants subsequently discovered that the trust fund was illegal in that it was in violation of section 302 of the Labor Management Relations Act; and that all the parties to the pre-existing trust agreement were engaged in an industry affecting commerce within the meaning of the Labor Management Relations Act. The first three counts of the cross-complaint seek return of money the cross-complainants paid into the allegedly illegal trust fund and into a contract administration fund.

The fourth count alleges that cross-defendant Local Union breached its promise to supply men from its hiring hall after they had been requested by cross-complainant.

The fifth count alleges that the cross-defendants, by means of threats and otherwise, induced cross-complainants' employees to breach their working agreements with cross-complainants. It is further alleged that disharmony was thus created among cross-complainants' employees and became known to general contractors in the area, and that the latter refused to give painting subcontracts to cross-complainants because of fear that their jobs would become involved in labor disputes.

The sixth count alleges that cross-defendant unions wilfully threatened a general contractor with 'labor troubles' if the contractor gave subcontracts to cross-complainants. It is alleged that the contractor understood, and cross-defendants meant, that 'labor troubles' meant picketing by cross-defendants to induce other unions to refuse to work on such construction, a 'slow down,' and generally performing or failing to perform in such a manner that the cost and difficulty of completing the construction would be increased. It is further alleged that this general contractor, because of the cross-defendants' actions, refused to give subcontracts to cross-complainants.

Cross-defendants' demurrers to the counterclaim and cross-complaint, challenging its sufficiency and the jurisdiction of the court, were overruled, the court holding that it had jurisdiction. Petitioners now seek a writ of prohibition to compel the respondent court to desist from further proceedings in the trial of the issues raised by the second amended counterclaim and cross-complaint.

The real parties in interest first contend that the state court has jurisdiction to the exclusion of either the federal courts or the National Labor Relations Board because nowhere in the pleadings are there allegations sufficient to show that their activities affect interstate commerce. The contention is without merit. The second amended counterclaim and cross-complaint alleges that '* * * the said parties to said 1952 Agreement and Declaration of Trust were engaged, and they are now engaged, in an industry affecting commerce within the meaning of the U. S. Labor Management Relations Act, 1947.' This allegation avers an ultimate fact rather than a conclusion of law, and as such is sufficient so as to enable us to consider the question of federal pre-emption. See Retail Clerks' Union, Local No. 1364, AFL-CIO v. Superior Court, 52 Cal.2d 222, 339 P.2d 839, certiorari denied 80 S.Ct. 120.

It is argued that '(t)he parties to the agreement there referred to are not identical with the parties to this action, but include many contractors and many associations.' This is probably true. However, the petitioners were parties to the 1952 agreement, as was the Orange Belt Chapter Painting and Decorating Contractors Association of San Bernardino, Inc., in which the real parties in interest are members. Also alleged to be parties are 'individual employers who may subscribe (to the agreement).' While real parties in interest may not have been original signers of the 1952 agreement, they became a 'party' upon subscribing to it, which, since they were making contributions to the welfare fund, it may be assumed that they did.

In addition, although the real parties in interest were not original signatories to the 1952 agreement, they signed the 1955 collective bargaining agreement which incorporated the terms of the 1952 agreement.

Even if the allegations were not sufficient to show that the real parties in interest are engaged in interstate commerce, we would nonetheless be able to consider whether or not section 302 is applicable to the first three causes of action. In Sheet Metal Contractors Ass'n of San Francisco v. Sheet Metal Wkrs. Int. Ass'n, 9 Cir., 248 F.2d 307, at page 311, certiorari denied 355 U.S. 924, 78 S.Ct. 367, 2 L.Ed.2d 354, it was held, that the basis of jurisdiction under section 302 of the Labor Management Relations Act is simply that the employees whose representatives are prohibited from receiving money from employers be employed in an industry affecting commerce. The court said: 'The statutory test is not as to how much interstate business any particular employers may do.'

As pointed out above, the petitioners here were parties to the 1952 Agreement and Declaration of Trust. They therefore come within the allegation here under discussion. At least some of the employees of the real parties in interest are members of the petitioners' organizations and thus are 'employees who are employed in an industry affecting commerce.' Section 302 is therefore applicable.

Before reaching the question of whether these causes of action are preempted, another preliminary point must be discussed. The real parties in interest contend that this Court was without jurisdiction to consider the petition for hearing filed by the petitioners, for the reason that the decision of the District Court of Appeal denying without opinion the petitioners' petition for a writ of prohibition had not become final when the petition for hearing was filed. The decision of the District Court of Appeal was filed on the 5th of June and the petition for hearing was filed on the 10th of June.

This contention is without merit. Rule 24(a) of the Rules on Appeal provides, in part, that: 'A decision of a District Court of Appeal becomes final as to that court 30 days after filing, except that the denial without opinion of a petition for a writ within its original jurisdiction without issuance of an alternative writ or order to show cause becomes final as to that court immediately after filing.'

Petitioners first contend that the trial court is without jurisdiction over the first three counts because section 302(e) of the Labor Management Relations Act vests exclusive jurisdiction to try cases arising under section 302 in the federal courts. Section 302(e) provides that: 'The district courts of the United States and the United States courts of the Territories and possessions shall have jurisdiction, for cause shown, and subject to the provisions of section 381 of Title 28 (relating to notice to opposite party) to restrain violations of this section, without regard to the provisions of section 17 of Title 15 and section 52 of this title (Clayton Act), and the provisions of sections 101-110 and 113-115 of this title (Norris-La Guardia Act).' 29 U.S.C.A. § 186(e). The petitioners argue that 'a reading of Section 302 makes it clear that it was intended by Congress to vest general equitable jurisdiction in federal courts over the administration of trust funds created under the provisions of that section.'

The contention is with merit. In McCarroll v. Los Angeles County, etc., Carpenters, 49 Cal.2d 45, 315 P.2d 322, certiorari denied 355 U.S. 932, 78 S.Ct. 413, 2 L.Ed.2d 415, this court pointed out the well settled rules applicable in the determination of whether or not a state court has concurrent jurisdiction with the federal courts. We said, 'As Mr. Justice Bradley stated in Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833, '(I)f exclusive jurisdiction (in the federal courts) be neither express nor implied, the State courts have concurrent jurisdiction (to enforce federal rights) whenever, by their own constitut...