Messner v. Journeymen Barbers, Hairdressers and Cosmetologists, Intern. Union of America, Local 256

• Decision Date: 07 April 1960
• Citation: 4 Cal.Rptr. 179,53 Cal.2d 873,351 P.2d 347
• Court: California Supreme Court
• Parties: , 351 P.2d 347, 45 L.R.R.M. (BNA) 3135, 40 Lab.Cas. P 66,450 Ross MESSNER, Plaintiff and Respondent, v. JOURNEYMEN BARBERS, HAIRDRESSERS AND COSMETOLOGISTS, INTERNATIONAL UNION OF AMERICA, LOCAL 256, and Frank Butler, Defendants and Appellants. L. A. 25288

Page 179

4 Cal.Rptr. 179

53 Cal.2d 873, 351 P.2d 347, 45 L.R.R.M. (BNA) 3135,

40 Lab.Cas. P 66,450

Ross MESSNER, Plaintiff and Respondent, v. JOURNEYMEN BARBERS, HAIRDRESSERS AND COSMETOLOGISTS, INTERNATIONAL UNION OF AMERICA, LOCAL 256, and Frank Butler, Defendants and Appellants.

L. A. 25288.

April 7, 1960.

Todd & Todd, Henry C. Todd, San Francisco, for appellants.

Carroll, Davis, Burdick & McDonough, Roland C. Davis, San Francisco, John E. Thorne, Johnson, Thorne, Speed & Bamford, Morgan, Beauzay, Smith & Holmes, Robert Morgan, San Jose, Charles P. Scully, Victor Van Bourg, San Francisco, amici curiae on behalf of appellants.

Gray, Cary, Ames & Frye, Ward W. Waddell, Jr., San Diego, for respondent.

Severson, Davis & Larson, Nathan R. Berke, George Brunn, San Francisco, as amici curiae on behalf of respondent.

TRAYNOR, Justice.

Defendants appeal from a judgment of the trial court enjoining them from picketing plaintiff's barber shop to secure a union shop agreement.

Plaintiff is a barber, working with the tools of the trade. During the summer of 1957 defendants attempted to organize all the barber shops in the San Diego area. They submitted a contract to plaintiff that would have required him and his four barber employees to join defendants' organization. Defendants did not represent any of plaintiff's employees, and the employees do not wish to join the union or to be represented by defendants. Plaintiff's refusal to sign the contract led to defendants' peaceful picketing. After about a week the pickets were removed by stipulation pending the decision in this case.

Since plaintiff is not engaged in interstate commerce, this case must be decided under state law. It is clear that 'a union may use the various forms of concerted action, such as strike, picketing, or boycott, to enforce an objective that is reasonably related to any legitimate interest of organized labor. * * * It is equally well settled that the object of concerted labor activity must be proper and that it must be sought by lawful means, otherwise the persons injured by such activity may obtain damages or injunctive relief.' James v. Marinship Corp., 25 Cal.2d 721, 728-729, 155 P.2d 329, 333, 160 A.L.R. 900 and cases cited. If defendants' peaceful picketing was directed toward a proper object, the injunction was erroneously granted. The crucial issue in this case, therefore, is whether a closed or union shop agreement is a proper objective of a labor union that does not represent any of the employees directly involved.

That issue was decided in C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414, and McKay v. Retail Auto Salesmen's Local Union No. 1067, 16 Cal.2d 311, 106 P.2d 373 and was reaffirmed in Petri Cleaners v. Automotive Employees, 53 Cal.2d 455, 2 Cal.Rptr. 470. In the course of holding in the Petri case that an employer was not required to bargain collectively with a union representing a majority of his employees, this court said: '(w)e conclude that employers are not required by law to engage in collective bargaining and that closed or union shop agreements and concerted activities to achieve them are lawful in this state whether or not a majority of the employees directly involved wish such agreements.' Since the concerted activities in the Petri case were conducted by a union that represented a majority of the employees at the time the activities began, we were there concerned with the issue of tis case only inferentially. We deem it appropriate to set forth the law on this issue by a detailed discussion of the controlling authorities.

As early as Parkinson Co. v. Building Trades Council, 1908, 154 Cal. 581, 98 P. 1027, 21 L.R.A.,N.S., 550, this court held that it was not unlawful for a union to call a strike of employees and order a boycott to bring pressure on an employer who retained a nonunion worker and thereby to enforce a closed shop. The elimination of the competition of nonunion workers was held a proper objective of concerted labor activity, and the court was unanimous in holding a strike a proper method of attaining this end. The conclusion of the Parkinson case that a closed shop is a proper labor objective was reaffirmed in Pierce v. Stablemen's Union, 156 Cal. 70, 103 P. 324, even though the picketing in that case was enjoined because it involved force and violence.

The precise issue of this case was raised and decided in C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414, a suit to restrain a union from picketing and boycotting a food market to organize the nonunion butchers and to obtain a closed shop agreement. No labor dispute existed between the employer and the butchers in that case and none of them wished to join the picketing union. The court held that the concerted activity was proper because '(t)he members of a labor organization may have a substantial interest in the employment relations of an employer although none of them is or ever has been employed by him. The reason for this is that the employment relations of every employer affect the working conditions and bargaining power of employees throughout the industry in which he competes. Hence, where union and nonunion employees are engaged in a similar occupation and their respective employers are engaged in trade competition one with another, the efforts of the union to extend its membership to the employments in which it has no foothold is not an unreasonable aim.' Id., 16 Cal.2d at page 401, 106 P.2d at page 421.

In McKay v. Retail Auto Salesmen's Local Union No. 1067, 16 Cal.2d 311, 106 P.2d 373, this court held that a labor union that represented none of an employer's salesmen could lawfully engage in concerted activity to obtain a closed shop agreement since that objective had a reasonable relation to the betterment of the conditions of labor. Substantially the same conclusion was reached in Lund v. Auto Mechanics' Union No. 1414, 16 Cal.2d 374, 378, 106 P.2d 408.

In Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d 403, involving a strike by plaintiff's union pharmacists to obtain a closed shop agreement, the propriety of the closed shop as a labor objective under common-law principles was conceded and the crucial question was whether sections 920, 921, and 923 of the Labor Code outlawed closed shop agreements. Recognizing that these sections were enacted to outlaw yellow-dog contracts, the court held that they 'lay no statutory restraint upon the workers' efforts to secure a closed shop contract from an employer. * * *' Id., 16 Cal.2d at page 388, 106 P.2d at page 408.

In Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689, the court followed its earlier decisions by holding that the superior court had exceeded its jurisdiction in permanently restraining a union from peacefully picketing to obtain a union shop agreement. The principle that a union may use economic pressure to achieve a closed or union shop agreement even though the employees in the picketed shop do not belong to the union and have no dispute with their employer, established in the foregoing cases, has been restated in many cases not directly concerned with the point. Magill Bros. v. Building Service etc. Union, 20 Cal.2d 506, 508, 127 P.2d 542; James v. Marinship Corp., 25 Cal.2d 721, 730, 155 P.2d 329, 160 A.L.R. 900; Park & Tilford Import Corp. v. International etc., of Teamsters, 27 Cal.2d 599, 604, 165 P.2d 891, 162 A.L.R. 1426 and cases cited; DeMille v. American Federation of Radio Artists, 31 Cal.2d 139, 144-145, 187 P.2d 769, 175 A.L.R. 382; Charles H. Benton, Inc. v. Painters Union, 45 Cal.2d 677, 683, 291 P.2d 13; see Fortenbury v. Superior Court, 16 Cal.2d 405, 409, 106 P.2d 411; Williams v. International etc. of Boilermakers, 27 Cal.2d 586, 165 P.2d 903; Thompson v. Moore Drydock Co., 27 Cal.2d 595, 165 P.2d 901.

Thus, for fifty years, until the four-to-three decision of this court in Garmon v. San Diego Building Trades Council, 49 Cal.2d 595, 320 P.2d 473, in 1958, it was the settled law of this state that union labor could freely compete for jobs in the labor market and seek to improve wages and working conditions by engaging in lawful concerted activities such as strikes and picketing. The law moreover recognized that union labor has a legitimate interest in organizing workmen in competing nonunion shops to insure the benefits of collective bargaining in union shops. Concerted activities such as picketing to achieve that goal were legitimate even when the employees in the nonunion shops did not wish to join or to be represented by the union. Just as the union had to reckon with the risk that it might lose its struggle for organization, so the nonunion employer risked loss of business, and hence his employees risked loss of employment, in resisting organization.

Such risks, grim as they are, are the price of lawful competition in a free enterprise system. The union plays for the high stakes of holding the gains it has made in union shops. The nonunion shop plays for the high stakes of holding the competitive advantages it has against union shops. The nonunion workers must then decide between alternatives neither of which is of their own choosing. They may welcome organization or merely accede to it as the lesser of two evils. On the other hand they may dislike organization, or merely regard it as a lost cause, or resist it out of fear of losing what they presently hold or out of hope that they will emerge as free- riding beneficiaries of organizations which their fellows will join and support.

In the absence of statutory regulation the struggle can be bitterly hard on all sides. The hardship does not render less legitimate the objectives of the union in seeking organization or the objectives of the nonunion shop in resisting it, or the objectives of the nonunion workers who may either join or resist. Confronted with the legitimate objectives of all parties...