MacKay v. Loew's, Inc., 12346.

Decision Date01 May 1950
Docket NumberNo. 12346.,12346.
Citation182 F.2d 170
PartiesMacKAY v. LOEW'S, Inc., et al.
CourtU.S. Court of Appeals — Ninth Circuit

Zach Lamar Cobb, Los Angeles, Cal., for appellants.

O'Melveny & Myers, Homer I. Mitchell, W. B. Carmen, Los Angeles, Cal., for all appellees.

Loeb & Loeb, Los Angeles, Cal., for appellees Loews' Inc. et al.

Mitchell, Silberberg & Knupp, Los Angeles, Cal., for appellees Columbia Pict. and R.K.O.

Wright & Garrett, Los Angeles, Cal., for appellee Twentieth Century-Fox Film.

Freston & Files, Los Angeles, Cal., for appellee Warner Bros. Pictures, Inc.

Before ORR and POPE, Circuit Judges, and WEINBERGER, District Judge.

ORR, Circuit Judge.

Appellants, formerly employed as carpenters by appellees, brought separate actions in the United States District Court alleging the breach of certain collective bargaining contracts. Each complaint contains identical allegations. The cases have been consolidated on appeal for all purposes.

The original complaints for declaratory relief were dismissed because they disclosed upon their face that the contracts sued upon had theretofore expired by reason of provisions in said contracts contained. Thereafter amended complaints for damages were filed. The amended complaints were also dismissed on motion. From the judgments of dismissal these appeals were taken. The amended complaint alleged that appellants were members of Carpenters Studio Local No. 946 and were employed by appellees pursuant to certain collectively bargained contracts between the union and appellees. The contracts contained certain provisions for wage scales, working conditions and for a closed shop. Appellants were employed through the union hiring hall. It is further alleged that on September 23, 1946, appellees, in violation of the contracts, ordered appellants and all other members of the union then on the job to leave their work and the premises, and thereafter replaced the members of appellants' union with non-members. The non-members worked under an open shop and less favorable working conditions than those specified in the contracts in question here. Appellees have at all times since refused to permit members of appellants' union to work under the terms of the contracts and have refused to bargain collectively with the union. Diversity of citizenship is present, and the amount in controversy exceeds $3,000.

The insufficiency of the amended complaints to state causes of action under any federal law, including § 301 of the Taft-Hartley Act, 29 U.S.C.A. § 185, and § 7 of the National Labor Relations Act, 29 U.S.C.A. § 157, is established by our decision, filed this day, in Schatte v. I.A.T. S.E., 182 F.2d 158, which involved the same violations of contract alleged in this case. Section 301 of the Taft-Hartley Act is inapplicable because the alleged breaches occurred before its enactment. Section 7 of the National Labor Relations Act creates no remedy for a refusal to bargain collectively except through unfair labor practice proceedings before the National Labor Relations Board.

Since this is a diversity case, and since no claim for relief under federal law is stated, the sufficiency of the complaint must be governed by the law of California, where the actions are brought and where the execution, performance and breach of the contracts allegedly took place. The question presented is whether or not an employer who "lays off" from work all persons employed by him who are members of a union with which he has a closed shop agreement then in force and effect, and then replaces those members with non-members, is liable in an action for damages brought by one of the individual members of the aggrieved union. We hold that under California law the employer is not so liable.

A collective bargaining agreement is not a contract of employment. Rather it is an agreement between the union and...

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26 cases
  • Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp
    • United States
    • U.S. Supreme Court
    • March 28, 1955
    ...Mo.App., 270 S.W.2d 104; Marranzano v. Riggs Nat. Bank of Washington, D.C., 87 U.S.App.D.C. 195, 184 F.2d 349; MacKay v. Loew's, Inc., 9 Cir., 182 F.2d 170, 18 A.L.R.2d 348 (diversity case); II Williston, Contracts, § 379A (1954 Cum.Supp.). ...
  • McKenna v. Permanente Med. Grp., Inc.
    • United States
    • U.S. District Court — Eastern District of California
    • August 13, 2012
    ...in that the CBA “is not a contract of employment between an employer and a single employee.” Defendants cite MacKay v. Loew's, Inc., 182 F.2d 170, 172 (9th Cir.), cert. denied,340 U.S. 828, 71 S.Ct. 65, 95 L.Ed. 608 (1950), to support their claim that Ms. McKenna lacks third party beneficia......
  • Chavez v. Sargent
    • United States
    • California Supreme Court
    • May 19, 1959
    ...of a union shop clause in a collective agreement (under California law as interpreted by a federal court; MacKay v. Loew's, Inc., (9 Cir., 1950), 182 F.2d 170 (18 A.L.R.2d 348, 351)). As we have hereinabove indicated, the language used in section 921 11 is designed to cover only promises be......
  • Jefferson County School Dist. No. R-1 v. Shorey
    • United States
    • Colorado Supreme Court
    • March 10, 1992
    ...which, it is contemplated, are to be incorporated in the separate contracts of hiring with each employee." MacKay v. Loew's, Inc., 182 F.2d 170, 172 (9th Cir.1950) (applying California law). A basic rule of contract law is that "a person not a party to an express contract may bring an actio......
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