De Gonia v. Building Material and Dump Truck Drivers Local Union 420

• Decision Date: 27 November 1957
• Court: California Court of Appeals Court of Appeals
• Parties: , 41 L.R.R.M. (BNA) 2264, 33 Lab.Cas. P 71,162 Dean DE GONIA, Don F. Moehlman, Merrill A. Townsend, Larry Fickle, Plaintiffs and Appellants, v. BUILDING MATERIAL AND DUMP TRUCK DRIVERS LOCAL UNION 420, an unincorporated association; Wallace Holt, Individually and as President of said Union; Earnest Metzinger, individually and as Secretary of said Union; Alex Robertson Construction Company, a corporation; S. E. Pipe Line Construction Company, a corporation; Pacific Pipeline Construction Company, a corporation; J. E. Young Pipe Line Contractor, Inc., a corporation, Defendants and Respondents. Civ. 22461.

Page 486

318 P.2d 486

155 Cal.App.2d 573, 41 L.R.R.M. (BNA) 2264,

33 Lab.Cas. P 71,162

Dean DE GONIA, Don F. Moehlman, Merrill A. Townsend, Larry Fickle, Plaintiffs and Appellants, v. BUILDING MATERIAL AND DUMP TRUCK DRIVERS LOCAL UNION 420, an unincorporated association; Wallace Holt, Individually and as President of said Union; Earnest Metzinger, individually and as Secretary of said Union; Alex Robertson Construction Company, a corporation; S. E. Pipe Line Construction Company, a corporation; Pacific Pipeline Construction Company, a corporation; J. E. Young Pipe Line Contractor, Inc., a corporation, Defendants and Respondents.

Civ. 22461.

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

Nov. 27, 1957.

Hearing Denied Jan. 23, 1958.

Frank A. Mouritsen, Los Angeles, for appellant.

Meserve, Mumper & Hughes, Lewis T. Gardiner, Los Angeles, for respondents Alex Robertson Const. Co., Pacific Pipeline Const. Co., and J. E. Young Pipe Line Contractor, Inc.

Stevenson & Hackler, Los Angeles, for respondents Building Material and Dump Truck Drivers Local Union 420, Wallace Holt, as President of said Union, and Earnest Metzinger, as Secretary of said Union.

WHITE, Presiding Justice.

This is an appeal by plaintiffs from a judgment in favor of defendants upon the latters' motion for judgment on the pleadings. The action is one for injunction and damages. Plaintiffs are employed as foremen by defendant companies and are members of defendant union. They instituted this action on behalf of themselves and approximately 100 other foremen similarly situated and interested. The amended complaint is in three counts. The pertinent facts of the first cause of action are as follows:

'For a number of years last past prior to March 5, 1956, plaintiffs and those similarly situated, were required as part of there duties to drive a company truck. Their duties started prior to the starting time of the employees whom they supervise. They were required to report to the company yard where they received instructions concerning the day's work, picked up a company truck containing tools, supplies and materials and drive it to the job site. At the job site they supervised the work of the crew, and at the end of the work day for the crew, they were required to return the truck to the company yard. For the time which the foremen spent in excess of eight hours per day they were compensated at the rate of one and one-half times their foremen's rate. For such overtime work prior to March 5, 1956, plaintiffs and those similarly situated, received as compensation an average payment of between $26.50 and $50.00 per week, depending on the distance of the jobsite from the yard.' It is then alleged that plaintiffs are members of defendant union which owes to them 'the duty of not taking action which is detrinmental to plaintiffs'. That 'Commencing in October, 1955, the defendant Union, the individual defendants Jack Todd, a business representative of the defendant Union, disregarding the duties which it as collective bargaining agent owed plaintiffs and those similarly situated, demanded of the defendant companies that they remove plaintiffs and those similarly situated from their duties in driving truck and give such duties to others not members of the defendant Union. That on March 5, 1956, the defendant companies, solely because of defendant Union's demands and threats discharged plaintiffs and others similarly situated from their duties in driving trucks, and such duties were assumed by others who theretofore had not been members of defendant Union, and said employees have continued to perform such duties up to the date of this complaint. Since said date plaintiffs and those similarly situated have been deprived of the truck driving work and the overtime pay incident thereto.' It is then alleged that 'defendant union caused the defendant companies to discharge plaintiffs and those similarly situated as aforesaid for the purpose of financial gain to said Union, in that said Union is thereby enabled and has started to collect $50.00 initiation fee from approximately one hundred new members, or approximately $5,000.00.'

The second cause of action incorporates all of the first cause of action and adds an allegation that 'between plaintiffs and those similarly situated and defendant Union, their collective bargaining agent, there exists an implied contract that said agent will diligently, honestly and fairly do everything possible to further their interest; etc.' and then alleges a breach of such implied contract.

The third cause of action reallleges all of the first cause of action and adds a paragraph as follows: 'Plaintiffs and those similarly situated have a fundamental and inalienable right to sell their labor, and of liberty of contract, which right is guaranteed by the Constitution of the United States of America, and of the State of California' and alleges the union defendant's actions a violation of this right.

As against defendant union, plaintiffs' prayer was for an injunction enjoining it from:

'(a) Demanding of defendant companies that they discharge plaintiffs and those similarly situated from their duties in driving truck, and the resultant overtime work and pay;

'(b) Threatening defendant companies with picketing or causing abolition of the 'composite crew' arrangement if they do not discharge plaintiffs and those similarly situated from their duties in driving truck, and the resultant overtime work and pay;

'(c) Causing the defendant companies to discharge plaintiffs and those similarly situated from their duties in driving truck and depriving them of the compensation they received therefor, as such duties and compensation existed prior to March 5, 1956.'

Plaintiffs' prayer against defendant companies is that they be enjoined from: '(a) Depriving the plaintiffs and those similarly situated of their duties in driving truck and the compensation derived therefrom, as such duties and compensation existed before March 5, 1956. (b) Intimidating, threatening, or discriminating against plaintiffs and those similarly situated in any manner, because they have filed and are prosecuting this action.'

The prayer further sought injunctive relief restraining both defendant union and defendant companies from: '(a) Carrying out or performing any agreement whereby plaintiffs and those similarly situated are deprived of or denied the duties performed as truck drivers and the compensation they received therefor, as such duties and compensation existed prior to March 5, 1956.'

The prayer also sought, 'Judgment for damage in the amount of $20,100.00 actual damages, and for such additional amount as is necessary to compensate plaintiffs and those similarly situated for damages suffered after the date hereof.'

The defendants filed general demurrers to the foregoing amended complaint which, as to the three counts now under consideration, were overruled. Answers were filed on behalf of all defendants, and when the cause was called for trial they moved for a judgment upon the pleadings which motion was granted. From the judgment accordingly entered, plaintiffs prosecute this appeal.

It is first contended by appellants that the trial court erred in considering the Constitution and By-laws of defendant union in as much as they were both incorporated in the union's answer. It is argued that a motion for judgment on the pleadings must be determined upon the same principles as those governing determination of a general demurrer, and that therefore, the court may not consider any matter outside the complaint or any defense thereto contained in the answer (21 Cal.Jur., sec. 166, p. 240; Hibernia Savings & Loan Soc. v. Thornton, 117 Cal. 481, 49 P. 573; Weisz v. McKee, 31 Cal.App.2d 144, 87 P.2d 379, 88 P.2d 200; Gross v. Bank of America Nat. T. & S. Ass'n, 4 Cal.App.2d 353, 41 P.2d 178). While it is true that a motion for judgment on the pleadings tests the sufficiency of the complaint, we are here confronted with a situation wherein the authenticity and due execution of the written document set forth in the answer was not denied by an opposing affidavit (Code Civ.Proc. sec. 448). The contents thereof are therefore admitted. Failure to file such an affidavit has been held an admission for the purpose of a motion for a summary judgment (Zepeda v. International Hodcarriers, etc., Union, 143 Cal.App.2d 609, at page 612, 300 P.2d 251, at page 253, wherein it was stated, 'There was no denial of the claimed affirmative defenses set forth in the verified answer which set up the written documents. Accordingly, the genuineness and due execution of such instruments are deemed admitted. Code Civ.Proc. § 448.' We perceive no reason why the same rule should not apply to motions for judgment on the pleadings (Witkin, California Procedure, p. 1704).

Furthermore, when the matter was before the trial court on the motion for judgment on the pleadings, the court remarked, 'Very well. I am interested particularly, Counsel, in your position regarding the Constitution and by-laws'. With regard to this remark from the bench counsel for appellant stated, 'Now, first, so there may be no misunderstanding, I agree with Mr. Hackler (one of counsel for respondent Union)--I mean it is not denied that the Constitution is there, so factually, I think it is fair to say that it is before this Court, as well as the contract to which he alluded (Collective Bargaining Agreement, 'Southern California Utilities Pipe Trade Agreement between the Peipeline Contractors Association of Southern California and Southern California Pipe Traders District Council No. 16 of the United Association.'). Now, they weren't attached to my copy, but I have copies of them, and I do not make a point that, so we understand ourselves, I know what they are speaking about and I am acquainted with the constitution.' The record reflects that appellant's counsel thereupon argued at...