Elsis v. Evans

• Decision Date: 04 February 1958
• Citation: Elsis v. Evans, 157 Cal.App.2d 399, 321 P.2d 514 (Cal. App. 1958)
• Court: California Court of Appeals
• Parties: , 41 L.R.R.M. (BNA) 2600, 34 Lab.Cas. P 71,279 Stanley C. ELSIS et al., Plaintiffs and Respondents, v. Gordon EVANS et al., Defendants, Gordon Evans, Defendant and Appellant. Civ. 22330.

Page 514

321 P.2d 514

157 Cal.App.2d 399, 41 L.R.R.M. (BNA) 2600,

34 Lab.Cas. P 71,279

Stanley C. ELSIS et al., Plaintiffs and Respondents, v. Gordon EVANS et al., Defendants Gordon Evans, Defendant and Appellant.

Civ. 22330.

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

Feb. 4, 1958.

Hearing Denied April 2, 1958.

John H. Nelson, Los Angeles, Dean M. McCann, Upland, for appellant.

James M. Nicoson, Playa Del Rey, Arthur Garrett, Los Angeles, for respondents.

WHITE, Presiding Justice.

Respondent Stanley C. Elsis is business representative and a member of Office Employees International Union, Local No. 30 (hereinafter referred to as the Union). The other plaintiffs are officers and members or members of said union. They instituted this action themselves and for and in behalf of said local union and the members thereof.

Appellant Gordon Evans, under the firm name of Thrifty Telephone Answering Service, is engaged in the business of conducting a telephone answering service for his customers and clients.

By their complaint respondents alleged that on or before March 1, 1956 some of them were employed as telephone operators by appellant in the conduct of his business. That between March 1st and March 5th, 1956 certain named respondents signed written applications and became members of the aforesaid union. That such employees requested and authorized the union and its officers and agents to represent and bargain collectively for them with respect to grievances, wages, hours of employment and conditions of work, and 'to engage in other concerted activities for their mutual aid and protection'.

It is then alleged that about March 5, 1956 respondent Charles Henderson as a representative of the union and in behalf of the employees above mentioned, stated to appellant Evans that a majority of the latter's employees had designated said union as their exclusive collective bargaining representative and had become members of said union. That respondent Henderson then invited appellant Evans to meet with him 'for the purpose of discussing working conditions, wages, hours of employment and other matters and to negotiate a contract covering such subject and others'. That appellant Evans agreed to such meeting but subsequently and before the time set therefor, advised respondent Henderson that he would not meet with him 'at the meeting scheduled for the following day or at any other time, and since said date, has refused and continues to refuse to meet with plaintiff Henderson or any other representative of his employees or any agent * * *' of said union concerning the aforesaid conditions of employment.

It is then alleged that appellant and his co-defendants on or before February 14, 1956 conspired together to 'interfere with, restrain and coerce the plaintiffs and others similarly situated, in the exercise of their rights to full freedom of association, self-organization, and designation of representatives of their own choosing and for other concerted activities for the purpose of collective bargaining and for other mutual aid and protection, and further, to require, as a condition of employment that plaintiffs and others similarly situated must refuse to join or remain members of a labor organization or that if said plaintiffs and others similarly situated were members of a labor organization, that they and each of them, as a condition of continuing employment, must give up their membership in such labor organization or any other labor organization.'

It is then alleged that in furtherance of and in pursuance of said alleged common plan of conspiracy, appellant and his co-defendants committed the following specific acts:

'(a) That on March 5, 1956 after receiving the aforementioned telephone call from Plaintiff Henderson, Defendant Evans (appellant) summons individually and separately into his private office', the foregoing named employees of appellant, 'and questioned each of them separately as to whether or not they and each of them had designated the said Local No. 30, as their collective bargaining representative and whether or not they had become members of said Local No. 30. Each gave answers in the affirmative to both questions. Thereupon, defendant Evans told each of such employees that unions were a bunch of communists and racketeers and that they took their orders and directions from Russia and that any employee of his that had joined a union and who didn't withdraw from such membership would be summarily discharged and defendant Evans further stated that each of the employees whom he had questioned and who had given affirmative replies, as aforesaid, could not work for him until they withdrew their membership from said Local No. 30. That when plaintiff Lee Barnes (one of said employees) refused to withdraw her membership from said Local No. 30, defendant Evans summarily discharged her. Defendant Evans, during these questionings stated to plaintiffs Valerye De Armon, Ronald Ruff and Douglas Cameron, that they each should think the matter over and call him later in the day as to their decision of remaining in the union or remaining an employee of defendant Evans. Thereafter, and on the same day, plaintiffs De Armon, Ruff and Cameron, stated to defendant Evans, that they desired to remain members of said Local No. 30, whereupon defendant Evans stated to them that they had made their choice, that it was either the union or Evans and since they desired to remain members of Local No. 30, their employment was terminated.

'(b) At or about the same time and in the similar and same manner, defendant Evans gave the same information to and took the same actions against Mary Norberg and Dorothy Phillips.'

* * *

* * *

'(d) Thereafter, and on or about March 7, 1956 defendant Evans met with defendants Lauria, Papke, Hanson and other members of Telephone Answering Service of California, Inc., whose names are unknown to plaintiffs but are well known to defendants and each of them and agreed to unite and combine to blacklist and prevent any of the plaintiffs herein and other members of the said Local No. 30, obtaining employment as operators in any of the business establishments of defendants and other members of Telephone Answering Service of California, Inc.' It is then alleged on information and belief that after the discharge of the above-mentioned employees, appellant Evans prepared a writing wherein he listed the names of the employees he discharged, and stating therein that said employees had been discharged because of their membership in and activities in behalf of said union. That copies of said writing were delivered to members of Telephone Answering Service of California, Inc. (a non-profit corporation composed of persons and corporations engaged in the business of telephone answering services, and which corporation was named herein as a defendant) requesting that members of Telephone Answering Service of California, Inc., should refuse to employ any of the persons mentioned in said writing, because of their membership and activities in said union.

It is then alleged that because of the foregoing conduct on the part of appellant and his co-defendants, the employee respondents aforesaid have been unable 'to secure employment as operators in any telephone answering service business in the City and County of Los Angeles'.

The prayer was for injunctive relief against the alleged acts of appellant and his co-defendants including reinstatement of the allegedly discharged employees of appellant; for damages in the sum of $200,000 and exemplary damages in the sum of $250,00.

The instant action was filed June 13, 1956, and subsequently respondents obtained an order to show cause directing appellant and his co-defendants to show cause why a preliminary injunction should not be issued prohibiting appellant from interfering with the rights of self-organization of his employees; ordering appellant to recognize and bargain collectively with Office Employees International Union, Local No. 30; ordering him to reinstate certain named employees with back pay and requiring the corporate trade association (defendant Telephone Answering Service of California, Inc.) to instruct its members that their employees were free to join and become members of a labor organization.

In opposition to the issuance of a preliminary injunction appellant filed an affidavit controverting the allegations of the complaint and of the affidavits of respondents.

In his said affidavit, appellant denied the discharge of respondent employees with the exception of Lee Barnes, and with reference to her, he averred that she was employed as chief operator and was considered by appellant as 'a supervisory or managerial operator and not a rank and file employee'. That said employee had authority to discharge any switchboard operator, and 'was in full charge of the establishment during the absence of affiant'. That for some time prior to the date mentioned in the aforesaid complaint and respondents' affidavits, the work of said respondent Barnes in her supervisory capacity 'had been increasingly unsatisfactory to affiant'. Citing several instances which prompted appellant's dissatisfaction, he avers that he had determined to replace respondent Barnes as chief operator, and 'believed that it would be unwise to demote her to a non-supervisory position, even though her services as an operator would have been satisfactory'. Appellant then sets forth that he commenced negotiations during the months of January and February, 1956, with representatives of two telephone answering services in an effort to procure employment for respondent Barnes. Appellant then avers that after he had informed said respondent of his intention to discontinue her services, she 'conceived the plan of interesting her fellow employees in becoming members of the plaintiff union and contacted the plaintiff union for that purpose with the hope and desire...