Sommer v. Metal Trades Council of Southern Cal.

• Decision Date: 10 March 1953
• Citation: 40 Cal.2d 392,254 P.2d 559
• Parties: , 32 L.R.R.M. (BNA) 2004, 23 Lab.Cas. P 67,455 SOMMER v. METAL TRADES COUNCIL OF SOUTHERN CALIFORNIA et al. L. A. 21757
• Court: California Supreme Court

Page 559

254 P.2d 559

40 Cal.2d 392, 32 L.R.R.M. (BNA) 2004, 23 Lab.Cas. P 67,455

SOMMER v. METAL TRADES COUNCIL OF SOUTHERN CALIFORNIA et al.

L. A. 21757.

March 10, 1953.

Rehearing Denied April 2, 1953.

Arthur Garrett, Los Angeles, Todd & Todd, San Francisco, John C. Stevenson, Los Angeles, and Clarence E. Todd, San Francisco, for appellants.

Charles P. Scully and Tobriner & Lazarus, San Francisco, amici curiae on behalf of appellants.

Gibson, Dunn & Crutcher, William French Smith, James R. Hutter and C. Robert Simpson, Jr., Los Angeles, for respondent.

Roth & Bahrs, San Francisco, amici curiae on behalf of respondent.

SHENK, Justice.

This is an appeal by the defendants from an order granting a preliminary injunction.

The controversy involves concerted union activities which bring into question the application of the Jurisdictional Strike Act of this state, Section 1115 et seq., Labor Code, added by Stats. 1947, p. 2952. The constitutional validity of that statute has been determined in Seven-Up Bottling Company v. Grocery Drivers, L.A. 21347, Cal.Sup., 254 P.2d 544. The question is whether the state court had jurisdiction to order the preliminary injunction and, if it had jurisdiction whether it properly exercised its discretion in directing that it should issue.

For thirty-one years the plaintiff has manufactured, distributed and installed auto service stations and equipment. He employs fifty persons. The defendant unions are affiliated with the American Federation of Labor. The individual defendants are members and officers of the unions.

Prior to July 1949 the plaintiff's employees were unorganized. In that month the defendants demanded of the plaintiff that he recognize the unions as the exclusive collective bargaining representatives of the employees, and that only members of the unions be employed by him. In September the employees held meetings to organize The Workers Association of Manufacturers and Builders of Auto Service Union Local No. 1, without A. F. of L. or other union affiliation, and demanded that the employer recognize it as their exclusive bargaining representative. The plaintiff refused to recognize either Local No. 1 or the unions as the employees' collective bargaining agent. Peaceful picketing and secondary boycott activities, including the representation that the plaintiff was unfair to organized labor, were commenced by the defendants on September 15, 1949.

Also in September the employees' Local filed a petition with the National Labor Relations Board for certification as the representative for collective bargaining purposes. The unions intervened and contested for recognition. On February 24, 1950, the National Board found that the plaintiff was engaged in commerce within the meaning of the federal labor relations law and ordered an election. The plaintiff alleges that an election was conducted by the Local; that twenty-five employees voted for the Local, seven of which votes were challenged by the defendants, and that five employees voted for the unions. It does not appear whether the election was pursuant to the board's direction or whether certification of a collective bargaining representative followed.

The defendants continued their concerted activities and the plaintiff commenced this action for injunctive relief and damages in March 1950. A hearing on the return to an order to show cause was had on the verified complaint and numerous affidavits. The court granted the preliminary injunction enjoining the defendants from conducting the picketing and secondary boycott activities and from representing to others that the plaintiff is unfair to organized labor.

The plaintiff's employees are not on strike. The dispute is between the two groups concerning union organization of the plaintiff's employees, collective bargaining representation and consequent work assignment. It is not questioned that the union picketing and secondary boycott activities substantially interfered with the conduct of the plaintiff's business.

The plaintiff contends that the concerted union activity presents a case of a jurisdictional strike which is in violation of and enjoinable pursuant to the Jurisdictional Strike Act of which the state court has jurisdiction. The defendants contend that their activity is not in violation of the act and in any event is governable solely pursuant to the federal law.

Section 1115 of the Labor Code declares a jurisdictional strike to be against the public policy of the state and unlawful. Section 1116 provides the remedies by injunction and damages. 'Labor organization' is defined as any organization or any agency or employee representation committee or any local unit thereof in which employees participate which exists for the purpose of dealing with employers concerning grievances and labor disputes and is not found to be financed, interfered with, dominated or controlled by the employer. Sec. 1117. Section 1118 defines 'jurisdictional strike' as a 'concerted refusal to perform work for an employer or any other concerted interference with an employer's operation or business, arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to bargain collectively with an employer on behalf of his employees or any of them, or arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to have its members perform work for an employer.' Section 1119 preserves, subject to the foregoing restrictions, the right of collective bargaining and the right of any individual voluntarily to become or remain a member of a labor organization or personally to request any other individual to join a labor organization.

As policy prohibiting concerted jurisdictional activity is also contained in the federal law. Section 8(b)(4) of the amended Wagner Act, National Labor Relations Act, July 5, 1935, 49 Stats. 452, c. 372, as amended by the Labor Management Relations Act, 1947, 61 Stats. 140, 29 U.S.C.A. § 158, specifies concerted jurisdictional activities which are declared to be unfair labor practices on the part of labor organizations, and section 303(a) of the amended act, 29 U.S.C.A. § 187(a), declares the conduct to be unlawful. See discussion Teller, Labor Disputes and Collective Bargaining, 1950 Supplement, pp. 111 et seq., pp. 121 et seq. For present purposes it is sufficient to note that section 8(b)(4)(C) declares it to be an unfair labor practice for a labor organization to engage in concerted activity (as here) for the purpose of forcing or requiring the employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as their representative under the provisions of the act.

The preliminary injunction was ordered in May 1950. The trial court appears not to have been informed as to any finality in the representation proceeding before the National Labor Relations Board. For the purpose of this appeal it is assumed that the plaintiff is engaged in interstate commerce and that there is no certification of a collective bargaining representative for his employees under the federal act. In the representation proceeding the unions sought to introduce evidence of employer domination of the Local, but the evidence was refused consideration because the issue was not subject to litigation in that proceeding. Subsequently the unions filed charges of employer coercion and domination of the Local in violation of sections 8(a)(1) and (2) of the federal act. In December, 1949, the evidence of domination was held to be insufficient to warrant investigation at that time. On September 22nd and December 5, 1949, the employer filed with the National Board charges of union jurisdictional activity in violation of section 8(b)(4) of the act. On December 28th the charges were dismissed for lack of evidence of violation at that time. It does not appear that the charges were renewed after a possible certification of the employees' Local as their representative for collective bargaining purposes.

It may also be assumed that the evidence which was relevant in the representation contest and to the several charges of unfair labor practices before the National Board bears on the issues here. But it does not follow that the state court does not have jurisdiction of this controversy.

Gerry of California v. Superior Court, June 1948, 32 Cal.2d 119, 194 P.2d 689, does not determine with finality the matter of jurisdiction on this appeal. The Gerry case involved interstate commerce but was not concerned with union jurisdictional activity as defined in our statute. Secondary boycott activities were there employed by A. F. of L. unions for the purpose of organizing the petitioner's nonunion employees. In view of the fact that the court in In re Blaney, 30 Cal.2d 643, 184 P.2d 892, had held invalid the hot cargo and secondary boycott act of 1941, Labor Code, § 1131 et seq., the petitioner agreed that there was no California statute which could furnish equitable redress. The petitioner contended that the state had concurrent jurisdiction with the National Labor Relations Board to enforce the provisions of the federal act. The decision rejecting the contention was a determination that in the absence of a valid applicable local statute affording relief, facts which amount to unfair labor practices under the federal act are cognizable exclusively in a proceeding before the National Board. This court in In re DeSilva, 33 Cal.2d 76, 78, 199 P.2d 6, again recognized that the Gerry case involved the question of the concurrent jurisdiction of the state court to enforce the federal act. Thus the problem now is not whether the state has concurrent jurisdiction with the National Board to enforce the federal act. The question is whether the state court has jurisdiction to enforce the...