Gabaldon v. United Farm Workers Organizing Committee

• Citation: 35 Cal.App.3d 757,111 Cal.Rptr. 203
• Court: California Court of Appeals
• Decision Date: 04 December 1973
• Parties: , 86 L.R.R.M. (BNA) 2034, 73 Lab.Cas. P 53,224 Josephine GABALDON et al., Plaintiffs and Appellants, v. UNITED FARM WORKERS ORGANIZING COMMITTEE et al., Defendants and Respondents. Civ. 1736.

Page 203

111 Cal.Rptr. 203

35 Cal.App.3d 757, 86 L.R.R.M. (BNA) 2034,

73 Lab.Cas. P 53,224

Josephine GABALDON et al., Plaintiffs and Appellants, v. UNITED FARM WORKERS ORGANIZING COMMITTEE et al., Defendants and Respondents.

Civ. 1736.

Court of Appeal, Fifth District, California.

Dec. 4, 1973.

Hearing Denied Jan. 31, 1974.

[35 Cal.App.3d 759] Rex H. Reed, Gall, Lane, Powell & Kilcullen, John L. Kilcullen, Washington, D. C., Gibson & Kennerson, Jonathan C. Gibson, San Diego, Jacobus, Isham & Humpal, Frederic A. Jacobus and Richard B. Isham, Visalia, for plaintiffs and appellants.

Cohen, Farnsworth, Denison, Carder & Engelhardt, Salinas, and Stephen Engelhardt, Delano, for defendants and respondents.

OPINION

GEO. A. BROWN, Presiding Justice.

Plaintiffs appeal from a judgment on the pleadings in favor of the defendants rendered on the ground their complaint does not state facts sufficient to constitute a cause of action.

A motion for judgment on the pleadings is treated identically to a demurrer. (Welshans v. City of Santa Barbara (1962), 205 Cal.App.2d 304, 305, 23 Cal.Rptr. 108.) Consequently, the facts alleged in the complaint must be assumed to be true and liberally construed in favor of the party against whom the motion is made. (Gill v. Curtis Publishing Co. (1952), 38 Cal.2d 273, 275, 239 P.2d 630; Semole v. Sansoucie (1972), 28 Cal.App.3d 714, 719, 104 Cal.Rptr. 897.)

The named plaintiffs are farm workers. The defendant United Farm Workers Organizing Committee (hereinafter 'union') is an unincorporated labor organization; the other defendants are 26 major growers (hereinafter 'GROWERS') OF AGRICULTURAL CROPS IN THE SOUTHErn san joaquin valley. the plaintiffs commenced this class action on behalf of themselves and others similarly situated, alleging that on July 29, 1970, the union and growers entered into a collective bargaining agreement; they complain that some of the provisions of the contract, hereinafter summarized, have deprived the plaintiffs of their constitutional rights. It is alleged that the union is designated as the sole collective bargaining agent for the workers, although they do not represent a 'majority or substantial portion of the agricultural workers including plaintiffs. . . .' It is further alleged that plaintiffs '. . . for several years have worked for and have been employed by defendant growers on terms and conditions freely arrived at between themselves and said growers while enjoying the freedom to work and contract individually with said defendant growers without restraint, obstruction, interference or hindrance from any source.' The complaint continues that plaintiffs are required to work under the terms of the contract, among the requirements of which are four provisions of which they make special complaint. These in summary are:

(1) Membership in defendant union is a condition of employment with defendant growers and that the employees of the growers as of the date of the contract must become members of the union within seven days of the execution of the contract or suffer termination. ¹

(2) Whenever any grower requires workers he shall notify the union, which will use its best efforts to furnish the required workers; if unable to do so, the grower may then procure workers from other sources, but they too must become union members within seven days. The hiring clause of the contract provides referral priority in the order of (a) strikers, (b) the growers of prior employment, (3) new registrants.

(3) The union is given the right to require the grower to discharge any worker whom the union charges with antiunion activity when it presents to the employer written evidence of such activity. The worker is given the right to a hearing, but the union is granted the power to make the final decision with respect to the discharge.

(4) The grower is required to deduct or 'check off' union initiation fees, dues and assessments from the employees' wages upon presentation of the individual authorization of the worker.

It is then alleged in substance that by virtue of the execution of the contract, defendant union and growers have and will continue to enforce the terms of this contract, in violation of plaintiffs' freedom of association, right to work, freedom to pursue the occupation of their choice, freedom of thought, freedom of political action, freedom from unwarranted invasion of their right to privacy and other fundamental rights and liberties in violation of their constitutional rights secured under the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution, and sections 1, 9, 10 and 13 of article I of the California Constitution; ² and that as a consequence of the enforcement of the agreement plaintiffs and members of the class have been threatened with discharge, have in fact been discharged, demoted, subjected to job classification, discrimination, transfer, and have been refused employment.

Plaintiffs pray for damages in excess of $5,000, a declaration of rights and responsibilities of all the parties that the contract between the union and the growers is void and, thirdly, for an injunction against enforcing the provisions of the contract.

At the threshold we must determine if the cause has become moot by reason of the expiration of the contract between the union and growers on July 29, 1973. ³

Events which occur during the pendency of an appeal may cause a matter to be moot (Paul v. Milk Depots, Inc. (1964), 62 Cal.2d 129, 41 Cal.Rptr. 468, 396 P.2d 924; Callie v. Board of Supervisors (1969), 1 Cal.App.3d 13, 81 Cal.Rptr. 440), making it permissible to dispose of the appeal on that ground. In the case at bench, however, while the expiration of the contract has rendered the cause moot as to the declaratory and injunctive relief prayed for because no effectual relief could be granted (see Paul v. Milk Depots, Inc., Supra, at pp. 132--133 of 62 Cal.2d, 41 Cal.Rptr. 468, 396 P.2d 924), the cause with respect to damages during the term of the contract is not moot; we therefore proceed to consider the matter on the merits with respect to the issue of damages only.

We turn to the controlling question of whether there is sufficient state action or action under color of state law to bring plaintiffs within the protection of the United States Constitution inasmuch as that instrument erects no shield against purely private conduct. (The Civil Rights Cases (1883), 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed 835; Shelley v. Kraemer (1948), 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161.) ⁴

California has no statute or policy either requiring that collective bargaining agreements include union shop provisions or invalidating such agreements. No facts are alleged in the pleadings to indicate other than that the growers and union entered into the collective bargaining agreement herein through private negotiations and through the normal give and take of collective bargaining without any compulsion of California law.

What constitutes state action under a given set of facts is to be determined on a case-by-case basis. As stated in Burton v. Wilmington Parking Authority (1961), 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45:

'It is clear, as it always has been since the Civil Rights Cases . . . that 'Individual invasion of individual rights is not the subject-matter of the amendment,' (citation) and that private conduct abridging individual rights does no violence to the Equal Protection Clause (and thus the Fourteenth Amendment in general) unless to some significant extent the state in any of its manifestations has been found to have become involved in it. Because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed in the variety of individual-state relationships which the Amendment was designed to embrace. For the same reason, to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an 'impossible task' which 'This Court has never attempted.' (Citation.)'

Evans v. Newton (1965), 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373, instructs:

'What is 'private' action and what is 'state' action is not always easy to determine. (Citation.) Conduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.'

Appellants argue that the action of the union and owners in entering into the agreement constitutes state action because California has encouraged and protected union shop agreements. They point to Labor Code section 921 outlawing yellow-dog contracts (Petri Cleaners, Inc. v. Automotive Employees etc. Local No. 88 (1960), 53 Cal.2d 455, 470, 2 Cal.Rptr. 470, 349 P.2d 76), Labor Code section 922 making it a misdemeanor for any person to coerce or compel any person to agree not to join a labor organization as a condition of employment, and Labor Code section 923 declaring it to be public policy that the individual workman shall have freedom of association, self-organization and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, free from interference of employers. They also point to Labor Code section 1126, making collective bargaining agreements enforceable in law and equity. Reference is also made to certain California decisions which uphold the validity of union security agreements (see C. S. Smith Met. Market Co. v. Lyons, Supra, 16 Cal.2d 389, 106 P.2d 414; Park & T.I. Corp. v. Int. etc. of Teamsters (1946), 27 Cal.2d 599, 165 P.2d 891; McKay v. Retail Auto S.L. Union No. 1067 (1940), 16 Cal.2d 311, 106 P.2d 373, cert. den., 313 U.S. 566, 61 S.Ct. 939, 85 L.Ed. 1525; Petri Cleaners, Inc. v. Automotive Employees etc....