Glenn v. Clearman's Golden Cock Inn, Inc.

• Decision Date: 07 June 1961
• Docket Number: AFL-CIO,No. 531,531
• Court: California Court of Appeals Court of Appeals
• Parties: , 115 L.R.R.M. (BNA) 4517, 48 L.R.R.M. (BNA) 2779, 43 Lab.Cas. P 50,303 Edith GLENN, Individually and as Business Representative of Culinary Workers and Bartenders Union, Local, et al., Plaintiffs, v. CLEARMAN'S GOLDEN COCK INN, INC., a corporation, Defendant and Respondent. Joseph Lanzarotta, Burton R. Richardson, Donald W. Johnson, David Lee Levering and George C. Supp, Appellants. Civ. 25015.

Page 769

13 Cal.Rptr. 769

192 Cal.App.2d 793, 115 L.R.R.M. (BNA) 4517,

48 L.R.R.M. (BNA) 2779, 43 Lab.Cas. P 50,303

Edith GLENN, Individually and as Business Representative of Culinary Workers and Bartenders Union, Local No. 531, AFL-CIO, et al., Plaintiffs, v. CLEARMAN'S GOLDEN COCK INN, INC., a corporation, Defendant and Respondent Joseph Lanzarotta, Burton R. Richardson, Donald W. Johnson, David Lee Levering and George C. Supp, Appellants.

Civ. 25015.

District Court of Appeal, Second District, Division 2, California.

June 7, 1961.

Hearing Denied Aug. 2, 1961.

Lewis Garrett, Lionel Richman, Los Angeles, for appellants.

Gray, Binkley & Pfaelzer, Orville A. Armstrong, Jr., Los Angeles, for respondent.

McMURRANY, Justice pro tem.

This is an appeal by certain plaintiffs from a judgment of dismissal entered by the trial court after the granting of defendant's motion for judgment on the pleadings. A motion for judgment on the pleadings is tantamount to a demurrer and admits the material facts alleged in the pleadings of the adverse party and challenges their sufficiency to state a cause of action (39 Cal.Jur.2d, Pleading § 305). The main question on this appeal is, therefore, whether or not the facts alleged state a cause of action as a matter of law. Paraco, Inc., v. Dept. of Agriculture, 118 Cal.App.2d 348, 351, 257 P.2d 981.

Succinctly, the facts pleaded herein are that the appellants were employees of the respondent prior to September 2, 1958 at the respondent's place of business in San Gabriel, California; that on or before that date the appellants signed applications for membership in the Culinary Workers and Bartenders Union, Local No. 531; and that on the above date the respondent discharged the appellants and since has refused to employ them for the reason that the appellants designated Local No. 531 to be their collective bargaining representative.

The question therefore arises whether the provisions of the Labor Code, specifically sections 922 and 923, provide a basis for civil liability where an employee at will is discharged for union activity. The respondent contends that the allegations of the complaint show only a criminal offense.

Section 922 of the Labor Code provides, in part, that '[a]ny person or agent or officer thereof who coerces or compels any person to enter into an agreement, written or verbal, not to join or become a member of any labor organization, as a condition of securing employment or continuing in the employment of any such person is guilty of a misdemeanor.' (Emphasis added.)

The respondent takes the position that the statute above quoted and section 923 of the Labor Code outlaw only the so-called 'yellow dog contract' and that the pre-trial order contains no allegation that the parties entered into such a contract. The appellants' allegations were (1) their employment, (2) their joining the union, and (3) the termination of the employment. It was further alleged that the termination of employment was solely because of the appellants' union activity. True, the appellants have not expressly alleged that 'an agreement, written or verbal, not to join * * * any labor organization' existed. However, liberally construing the complaint and pre-trial order, as we must, such an allegation is necessarily implicit in both of them.

Many cases are cited to support appellants' contention that section 922 provides a basis for civil as well as criminal liability. Be that as it may, it is not necessary to decide this contention, because a fair reading of section 923 is persuasive that by that section appellants are afforded all necessary protection and relief. The criminal sanction imposed by section 922 is not the sole remedy afforded an aggrived employee.

The pertinent provisions of Labor Code, § 923, read: 'In the interpretation and application of this chapter, the public policy of this State is declared as follows: * * * Therefore it is necessary that the individual workmen have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection'.

Under this section did appellants have any compensable right which was destroyed by termination of their employment? They concede that their contracts of employment were at will and thus could be so terminated by either party. They contend, however, that this rule is modified by an exception which prevents a contract of employment at will from being terminated where the reason for termination is one which violates established public policy. Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 188, 344 P.2d 25, 27. In the Petermann case, this court stated that "[t]he term 'public policy' is inherently not subject to precise definition. * * *' * * * [W]hatever contravenes good morals or any established interests of society is against public policy.' Assuredly, the language of section 923 can and must be construed as a declaration of this state's public policy as it affects persons in the position of appellants here.

By the enactment of section 923 it is apparent that the Legislature has modified the normal right of discharge by employers to the extent that no employer may discharge an employee solely because of his membership or activity in a labor union.

The right to relief for violation of section 923 was expressly recognized by Justice White, speaking for the District Court of Appeal in Elsis v. Evans, 157 Cal.App.2d 399, 408-409, 321 P.2d 514, 520, where he said: 'We are not here concerned with litigation involving purely private rights as were the aforementioned cases relied upon by appellant, but are confronted with a situation wherein there is presented the question of whether certain respondents have been subjected to conduct on the part of appellant which it is urged is not only unfair to them, but contrary to the declared public policy of the state of California. In such a case, the courts have full power to afford necessary protection [citation].

'From a mere reading of Labor Code, section 921 and 923, there can be little if any doubt that a question of public policy is primarily involved in this litigation. * * * 'This purpose is plainly evidenced by section 923, which commits the state, as a matter of public policy, to the principles of collective bargaining. * * *''

The fact that damages are sought here, rather than equitable relief, does not impair...