Fullerton v. International Sound Technicians of Motion Picture, Broadcast and Amusement Industries Local 695 of Intern. Alliance of Theatrical Stage Emp. and Moving Picture Mach. Operators of U.S. and Canada

• Decision Date: 17 August 1961
• Docket Number: No. 25149,25149
• Citation: 194 Cal.App.2d 801,15 Cal.Rptr. 451
• Court: California Court of Appeals Court of Appeals
• Parties: , 48 L.R.R.M. (BNA) 3012, 43 Lab.Cas. P 17,191 James FULLERTON, Appellant, v. INTERNATIONAL SOUND TECHNICIANS OF the MOTION PLCTURE, BROADCAST AND AMUSEMENT INDUSTRIES LOCAL 695 OF the INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF the UNITED STATES AND CANADA, a corporation, et al., Respondents. Civ.

Page 451

15 Cal.Rptr. 451

194 Cal.App.2d 801, 48 L.R.R.M. (BNA) 3012,

43 Lab.Cas. P 17,191

James FULLERTON, Appellant, v. INTERNATIONAL SOUND TECHNICIANS OF the MOTION PLCTURE, BROADCAST AND AMUSEMENT INDUSTRIES LOCAL 695 OF the INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF the UNITED STATES AND CANADA, a corporation, et al., Respondents.

Civ. No. 25149.

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

Aug. 17, 1961.

Thomas H. Ludlow, Jr., Los Angeles, for appellant.

Bodkin, Breslin & Luddy, Michael G. Luddy, Los Angeles, for respondents.

LILLIE, Justice.

Plaintiff appeals from a judgment on the pleadings dismissing the second and sixth causes of action of his complaint; only the Union defendants are respondents herein.

On September 1, 1955, plaintiff sued defendant Union and certain of its officers and various employer-producers of motion picture and television films in six separate causes of action--the first, for injunctive relief, the remaining five, for damages for wrongful interference with his right to work; he alleged in each cause that the action of defendant Union constituted an unfair labor practice contrary to Section 8 of the National Labor Relations Act, 29 U.S.C.A. § 158. Upon institution of the suit plaintiff on September 27, 1955, also filed a charge against defendant Union with the National Labor Relations Board--that it was engaging in unfair labor practices (the same conduct alleged in the complaint) within the meaning of Section 8(b), subsection (1)(A) and (2) of the National Labor Relations Act--but on January 25, 1956, while the charge was under investigation by the Board but before any ruling thereon, plaintiff withdrew the same without prejudice. Defendant Union then petitioned this court for a writ of prohibition to prevent the superior court from proceeding in plaintiff's action, on the ground that the subject matter was witnin the exclusive jurisdiction of the National Labor Relations Board.

Then pending in the California Supreme Court was Garmon v. San Diego Bldg. Trades Council; therein defendant Union had sought from plaintiff employers an agreement to retain in their employ only those workers who were already members of the union or who applied for membership within 30 days; plaintiffs refused; thereupon, defendant Union began peaceful picketing of plaintiffs' places of business to exert pressure on customers and suppliers in order to persuade them to stop dealing with plaintiffs. The lower court enjoined the Union, and awarded $1,000 damages. At the time of suit in the court below, plaintiff employers had started a representative proceeding before the National Labor Relations Board; jurisdiction was declined by the Board. The California Supreme Court in December, 1955, (45 Cal.2d 657, 291, P.2d 1), therein held that inasmuch as the Board had declined to exercise its jurisdiction the state court had power over the dispute, although involving an unfair labor practice, and sustained the lower court's judgment granting injunctive relief and awarding damages against the union.

Thereafter, in April, 1956, this court in the instant case in the writ proceeding (International Sound Technicians, etc. v. Superior Court, 141 Cal.App.2d 23, 296 P.2d 395) held that since jurisdiction had not been declined by the Board, the state court cannot act to enjoin unfair labor practices within the prview of the Board and granted the writ as to the first cause of action; but denied the writ as to the five remaining causes seeking damages for the wrongful act of the defendant Union in depriving him of his means of livelihood, on the theory of interference with plaintiff's common-law right to work. Petition for hearing in the Supreme Court was denied June 20, 1956. Thereupon, defendants interposed answers to the five remaining causes of action admitting defendant employers were engaged in industry affecting interestate commerce, the acts described in the complaint, if true, constitute unfair labor practices in violation of Section 8 of the Act, the National Labor Relations Board has never acted on the conduct alleged, and the same is within the exclusive jurisdiction of the Board.

Meanwhile, on certiorari, the United States Supreme Court in San Diego Building Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618, reversed the state judgment for injunctive relief holding that the refusal of the Board to assert jurisdiction did not leave with the states power over activities they otherwise would be pre-empted from regulating; and remanded the case to the state Supreme Court for further consideration of the local law issue in connection with the award for damages. On remand the California Supreme Court in 1958 (49 Cal.2d 593, 320 P.2d 473), set aside the injunction but sustained the award of damages on the ground that the Union's activities constituted 'an actionable tort based upon an unlawful labor practice under state law.' (Sections 1708, 1667, California Civil Code; Sections 923, 1115-1118, California Labor Code) (49 Cal.2d at page 609, 320 P.2d at page 481); again the United States Supreme Court granted certiorari. Meanwhile, defendants in the instant case, anticipating a favorable decision in the Garmon case, reserved in the pre-trial order (October 21, 1958) the right to raise the issue of jurisdiction at the outset of the trial. Thereafter, in April, 1959, the United States Supreme Court in San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, reversed the damage judgment below.

On the basis of the Garmon case (359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775) defendant Union herein filed a motion for summary judgment, later deemed by the court to be a motion for judgment on the pleadings, seeking dismissal of the second and sixth causes of action (the third, fourth and fifth having previously been dismissed pursuant to stipulation in February, 1958); the affidavit of Michael G. Luddy was filed therewith. The lower court granted the motion on the ground that jurisdiction over the subject matter was vested exclusively in the National Labor Relations Board, specifically relying upon San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, as controlling, and rejecting International Sound Technicians, etc. v. Superior Court, 141 Cal.App.2d 23, 296 P.2d 395, as the law of the case. Only the two causes of action (second and sixth) are before this court.

According to certain allegations of the first cause of action, incorporated by reference in the two before us, the genesis of the within controversy began with numberous refusals of defendant Union, between 1952 and 1955, to admit plaintiff to union membership and to permit defendant producers from employing plaintiff because he was not a union member. Plaintiff is a sound technician commonly known as a mixer; defendant Union, as a collective bargaining agent, represents those engaged as sound technicians in the motion picture and amusement industry in respect to working conditions and terms of employment; defendant producers are engaged in the production of motion picture and television films, distribution and exhibition of the same in interstate commerce, and production of films employing sound technicians; defendant Union entered into an agreement with defendant producers fixing the terms and conditions of employment of sound technicians, and by its terms every employee is required to be and remain a member in good standing in defendant Union; during 1952 thru 1955, plaintiff made numerous applications to defendant Union for membership and offered to pay thereto all application and initiation fees and dues and comply with all rules and regulations of its constitution and by-laws; defendant Union refused to admit plaintiff to membership.

Both the second and sixth causes of action sound in tort. As the subject of the second, plaintiff alleged that he accepted employment as a mixer with defendant Visual Drama Inc., commencing August 29, 1955; that on said day defendant Union's business agent ordered defendant Visual Drama Inc. to terminate plaintiff's employment inasmuch as he was not a member of defendant Union and had no work permit from it, and if it did not terminate plaintiff, defendant Union would refuse to allow its members to work on the same job. Likewise in his sixth cause of action, plaintiff alleged that he accepted employment as a mixer with defendant Aerojet General Corp. and that on July 7, 1955, defendant Union ordered defendant Aerojet General Corp. to terminate his employment for the same reasons, and if it did not do so defendant Union would refuse to allow its members to work on the same job.

In connection with each cause of action plaintiff alleged, 'that said action (of defendant Union) was and is contrary to the National Labor Relations Act, Section 8(a)(3), 8(b)(2), and further is in deprivation of the plaintiff seeking his livelihood in violation of California Civil Code, Sections 43 and 51, and the Fifth Amendment to the United States Constitution and the Fourteenth Amendment of the United States Constitution. That as a proximate and direct result of said acts, plaintiff was discharged from his employment' (Para. IV, second cause of action; Para. II, sixth cause of action); and prayed for damages.

The acts alleged in the complaint, if true, and as specifically pleaded by plaintiff, constitute unfair practices in violation of Section 8(a)(3) and (b)(2) of the National Labor Relations Act. By subsection (a)(3) of Section 8 it is made an unfair labor practice for an employer to discriminate in regards to hire and tenure of employment or any terms or conditions of employment, or to encourage or discourage membership in any labor organization, except that an employer may enter into an agreement with a labor organization which is the collective bargaining agent of its...