Jones v. Workmen's Comp. Appeals Bd.

• Decision Date: 20 September 1971
• Citation: 20 Cal.App.3d 124,97 Cal.Rptr. 554
• Court: California Court of Appeals Court of Appeals
• Parties: Hannah M. JONES, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents. Civ. 28593.

Page 554

97 Cal.Rptr. 554

20 Cal.App.3d 124

Hannah M. JONES, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents.

Civ. 28593.

Court of Appeal, First District, Division 4, California.

Sept. 20, 1971.

Hearing Denied Nov. 18, 1971.

Condon, Dolgin, Kully & Jameson, David A. Dolgin, Martinez, for petitioner.

Rupert Pedrin, Richard E. Ryan, Workmen's Comp. Appeals Bd., San Francisco, for respondent WCAB.

Hanna & Brophy, San Francisco, for respondents.

DEVINE, Presiding Justice.

Petitioner seeks annulment of a takenothing award. She is the widow of Richard E. Jones, who received fatal injuries while he was acting as picket captain during a strike of respondent Oil, Chemical and Atomic Workers International Union Local 1--5 against Phillips Petroleum Company. Respondents contend that he was not an employee of the union.

The facts are stated in the opinion and order denying reconsideration of respondent Workmen's Compensation Appeals (Board (hereinafter 'the Board'), thus: 'Deceased was a member of defendant local, a labor, benevolent and fraternal organization, which was affiliated with defendant international. The local has four regular full time employees, a financial secretary, a field representative and two clerical employees. It is governed by an executive board elected from its membership.

'Whenever a strike is called, the executive board, or the secretary-treasurer, appoints a strike committee which in turn selects picket majors, picket captains and pickets. A strike welfare committee is also formed. The majors man the telephones in the union office. The captains supervise the picket lines to see that those assigned to duty are present and that they are properly relieved. Pickets are generally scheduled by the strike committee for one four-hour shift every three days.

'After a strike has continued for 21 days, striking pickets are eligible for interest free loans of up to $40.00 a week. Strikers with emergencies and other special needs can obtain additional funds or help from the welfare committee. Pickets are furnished coffee and food while on duty and provided with rain gear in inclement weather. None of the strikers, however, are placed on the union payroll.

'Every member of the union is assigned to picket duty and failure to appear for this duty without a legitimate excuse results not only in a fine but in loss of eligibility for loans. The union did not hire nonmembers to perform picket duty.

'Deceased, an employee of Phillips Petroleum Company, was a member and past president of the local union. He was shop steward for the labor gang at Phillips and a member of the local's executive board.

'On January 4, 1969, defendant unions called a strike against Phillips and three other oil companies. Deceased was selected to be either a picket major or a picket captain. The following day while performing in the capacity of picket captain at one of the struck premises he was run over by an oil truck and sustained the injury for which petitioner seeks benefits.'

To this statement we add the detail that the assistance, besides interest free loans, available to a picket (and denied to a member of the union who fails to perform assigned duties) would be in the form of vouchers, on the basis of need, for food up to $50 a week and for medicines.

The question whether a person is an employee may be one of fact only, or of mixed law and fact or of law only where, as here, there is no dispute as to the facts. The ruling by the Board plainly is subject to our independent review. (Crown City Lodge, etc. v. Industrial Acc. Com., 10 Cal.App.2d 83, 86, 51 P.2d 143; Van Horn v. Industrial Acc. Com., 219 Cal.App.2d 457, 33 Cal.Rptr. 169.)

To begin with, we take note of Labor Code section 3351, which reads, in relevant part: 'Employee' means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.' Labor Code section 3357 states a presumption as follows: 'Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.' Following are sections which expressly exclude certain occupations from the status of employee (e.g., volunteer ski patrolmen, newspaper and periodical vendors when title to the periodical has passed to the vendor), and other sections which expressly include certain occupations, the status of which might otherwise be doubtful (e.g., jurors, fire department volunteers, disaster service workers). No reference is made to pickets.

Now, the presumption applies to those who perform work 'for another.' We find this condition to be met by an active picket. To be sure, he is working for himself in the sense that if the strike is won, he will participate in its benefit. To be sure, he is a member of the union, with a certain amount of the 'all for one and one for all' character imputed to him. But a labor union is considered an entity apart from its members where the interests of justice indicate that this should be so, as in a personal injury action allegedly caused by the negligence of the union in maintenance of its property. (Marshall v. International Longshoremen's & Warehousemen's Union, 57 Cal.2d 781, 782, 22 Cal.Rptr. 211, 371 P.2d 987.) We find no difficulty in regarding the picket during his course of duty as performing service 'for another.' The individual may have voted against the strike; he may not agree with the tactical orders for the picketing, or with picketing at all, but he must, unless excused, engage in the action of suffer loss of benefits (which he may need acutely during the suspension of pay) and a fine besides. Moreover, the active picket gains no more from the outcome of the strike itself than does the union member who is excused, for whatever reason, from picketing.

Nor do we find incongruous, or even unique, the status of the picket who may be on one day an employee of the company which is struck (here, Phillips Petroleum), and on the next an employee of the union, with the positions likely to be reversed at the end of the strike. In the case of a partnership, a working member of a partnership receiving wages irrespective of profits from the partnership is an employee for purposes of workmen's compensation. (Lab.Code, § 3359.) He may proceed against his own partnership if he is injured at work. His status may change from time to time.

So much for performing services 'for another,' bringing into play the statutory presumption. The presumption will be overcome if the essential contract of hire be not present, the burden of proof being on the one for whom the service was rendered. (Lab.Code, § 5705, subd. (a); Gale v. Industrial Acc. Com., 211 Cal. 137, 141, 294 P. 391.)

We hold that there was a contract of hire. Surely there would have been if outsiders had been employed at a stated wage, as often happens, to do the picketing. What is the difference between their status and that of the picket who is a striker? There are differences, of course. The 'stranger' has no direct interest in the outcome of the strike; he may simply hope the conflict, and with it his ambulatory employment, will not soon end. But, as we have pointed out above, a union mumber is not necessarily willing to picket, or even to strike. The status of the picket is not to be decided on the sentiments and the preferences of the individual.

There is a difference in the form of recompense, too. The picket does not receive wages as such. But the union, in making use of its own membership for the quasi-military duties of...