Writers' Guild of America West, Inc. v. Superior Court

• Decision Date: 05 December 1975
• Citation: 53 Cal.App.3d 468,126 Cal.Rptr. 498
• Court: California Court of Appeals Court of Appeals
• Parties: , 91 L.R.R.M. (BNA) 2603, 80 Lab.Cas. P 12,030 WRITERS' GUILD OF AMERICA WEST, INC., Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Steven BOCHOCO et al., Real Parties in Interest. Civ. 46568.

Page 498

126 Cal.Rptr. 498

53 Cal.App.3d 468, 91 L.R.R.M. (BNA) 2603,

80 Lab.Cas. P 12,030

WRITERS' GUILD OF AMERICA WEST, INC., Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

Steven BOCHOCO et al., Real Parties in Interest.

Civ. 46568.

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

Dec. 5, 1975.

Hearing Denied Jan. 28, 1976.

Paul P. Selvin, Los Angeles, for petitioner.

No appearance for respondent.

Gold, Herscher & Taback, Joseph Taback and Michael S. Luros, Beverly Hills, for real parties in interest.

THOMPSON, Associate Justice.

This petition for writ of prohibition or mandate raises the issue of state court subject matter jurisdiction to entertain an action for damages filed by members of a labor union alleging conduct of the union disciplining or threatening to discipline its plaintiff members for crossing the union's picket line during a strike. The action proceeds on the theory that the union's constitution and bylaws do not prohibit the conduct of members or which discipline was threatened or imposed. Determining that the essence of the plaintiff members' causes of action consists of allegations of conduct arguably within the jurisdiction of the National Labor Relations Board, we conclude that the California courts lack subject matter jurisdiction. Accordingly, we direct that a writ of prohibition issue.

Facts

Petitioner, Writers' Guild of America West, Inc. (Guild), is a labor union representing writers in industry-wide collective bargaining agreements with motion picture and television studios and networks. It is certified as a labor organization under the National Labor Relations Act (NLRA). Real parties in interest are members of Guild who are producers and directors as well as writers in the television industry. In the jargon of the trade, they are called 'hyphenates,' i.e., 'writer-director' or 'writer-producer.'

In 1973, Guild engaged in a strike against employers of writers and hyphenates. Guild's strike rule required its members to honor the Guild picket lines and to refrain from rendering services as writers to struck employers. Real parties honored the Guild picket lines during the course of the strike and by doing so lost the benefit of contractual and other arrangements by which they would have received economic gain working as producers or directors for the struck employers.

Three struck employers and an employers' association filed charges with the National Labor Relations Board (NLRB) asserting that the conduct of Guild 'threatening to fine, blacklist, and otherwise discipline producers, executive producers, directors, executives and other supervisory personnel in the event said personnel continue to perform their supervisory and other responsibilities during (Guild's) strike' constituted coercion of the employers, an unfair labor practice proscribed by section 8(b), subsection (1) of the NLRA. Real parties were named as among those against whom Guild threatened discipline. The NLRB took jurisdiction of the charges. ¹ It determined that Guild was guilty of unfair labor practice as charged. The NLRB determination is now pending on judicial review in the federal Court of Appeals of the Second Circuit.

On January 11, 1974, real parties filed their complaint which is the subject of the application for writ of prohibition or mandate now before us. Framed in 45 causes of action asserted in favor of the 11 real parties, the complaint alleges that each of the real parties was, at the time of the strike, a party to a contract with a studioemployer pursuant to which he was to perform services other than as a writer. The pleading asserts that while the Guild constitution and bylaws did not permit Guild to regulate the conduct of real parties in the performance of services other than as writers, Guild contended that real parties could not work for the struck employers as producers or directors and threatened real parties with 'censure, fines, disciplinary proceedings and expulsion,' thereby forcing real parties to repudiate and not perform their contracts. The complaint seeks declaratory relief and damages for interference with contract, interference with business relationship, and breach of contract. Adding the allegation that Guild's assertion of authority to discipline was knowingly false, the complaint also includes causes of action seeking damages for fraud.

Guild filed a general demurrer to the complaint and a motion to strike and dismiss the pleading on the ground that the NLRA preempted to the NLRB jurisdition over the conduct which is the basis of the causes of action in the complaint. The motion is supported by unrebutted declarations setting forth the facts of the Guild's and real parties' status, the interstate commerce connection of the Guild and the production companies, the strike, the strike rule requiring that the picket line be honored, and the threat of discipline to Guild members who violated the strike rule. The declarations state that while disciplinary proceedings were instituted by Guild against some of real parties, they were dismissed except as to one, and that in the one instance the discipline took the form of a fine of $179.40.

The trial court overruled the demurrer and denied the motion to dismiss the complaint. Guild filed its petition for writ of prohibition or mandate with this court. We, with one dissent, denied an alternative writ. Guild petitioned for hearing in our Supreme Court. The high court granted the petition and transferred the matter back to us with direction to issue an alternative writ, citing Hill v. United Brotherhood of Carpenters, etc., of America, Local 25, 49 Cal.App.3d 614, 122 Cal.Rptr. 722, hearing denied September 10, 1975. We issued the alternative writ.

Preemption

'3] When it is clear or may fairly be assumed that the activities which a States purports to regulate are protected by § 7 of the National Labor Relations Act (29 U.S.C. § 157, establishing the rights of employees to organize and bargain collectively), or constitute an unfair labor practice under § 8 (29 U.S.C. § 158) due regard for the federal enactment requires that state jurisdiction must yield.' When it is not clear whether or not activities are governed by section 7 or section 8, the initial determination must be made by the National Labor Relations Board. (San Diego Unions v. Garmon, 359 U.S. 236, 244--245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775; Magallanes v. Local 300, Laborers' Internat. Union of North America, 40 Cal.App.3d 809, 813--814, 115 Cal.Rptr. 428, cert. Den. 419 U.S. 1121, 95 ,.s.Ct. 803, 42 L.Ed.2d 820.) If it may be reasonably asserted that the conduct called into question is subject to NLRB jurisdiction, state power is preempted. (Plumbers' Union v. Borden, 373 U.S. 690, 694, 83 S.Ct. 1423, 10 L.Ed.2d 638.) Thus there is federal preemption where 'it is reasonably 'arguable' that the matter comes within the (National Labor Relations) Board's jurisdiction.' (Plumbers' Union v. Borden, supra, 373 U.S. 690, 696, 83 S.Ct. 1423, 1427, 10 L.Ed.2d 638; Hill v. United Brotherhood of Carpenters, etc., of America, Local 25, supra, 49 Cal.App.3d 614, 623, 122 Cal.Rptr. 722.) Where union action and resulting inability of a union member to obtain employment are in some way 'based on (the employee's) actual or believed failure to comply with internal union rules, it is certainly 'arguable' that the union's conduct violated § 8(b)(1)(A), by restraining or coercing (the employee) in the exercise of his protected right to refrain from observing those rules . . ..' (Plumbers' Union v. Borden, supra, 373 U.S. 690, 694, 83 S.Ct. 1423, 1426, 10 L.Ed.2d 638.)

6] Federal preemption exists 'to shield the system (of regulation of labor relations) from conflicting regulation of conduct. It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.' (Motor Coach Employees v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, 1920, 29 L.Ed.2d 473, rhg. den. 404 U.S. 874, 92 S.Ct. 24, 30 L.Ed.2d 120.) Thus state jurisdiction is preempted despite the proposition that a state lawsuit sounds in breach by a union of the contract with its members embodied in its constitution and bylaws (Motor Coach Employees v. Lockridge, supra, 403 U.S. 274, 292, 91 S.Ct. 1909, 29 L.Ed.2d 473), or tortious interference with a contract relationship (Iron Workers v. Perko, 373 U.S. 701, 702--703, 83 S.Ct. 1429, 10 L.Ed.2d 646). Preemption is not avoided by allegation of incidental misconduct so long as the crux of the action concerns employment relationships and is arguably within NLRB jurisdiction. (Hill v. United Brotherhood of Carpenters, etc., of America, Local 25, supra, 49 Cal.App.3d 614, 627, 122 Cal.Rptr. 722.) State courts lack jurisdiction of the dispute despite the proposition that the plaintiff is a supervisor asserting exemption from the scope of the Board's jurisdiction if the presence of NLRB jurisdiction is arguable. (Iron Workers v. Perko, supra, 373 U.S. 701, 706--707, 83 S.Ct. 1429, 10 L.Ed.2d 646.)

Here the complaint filed by real parties in interest asserts causes of action based on conduct which is at least arguably within the jurisdiction of the NLRB.

Section 7 of the National Labor Relations Act embodied in section 157 of title 29 of the United States Code states: 'Employees shall have the right to self-organization, . . . to bargain collectively through respresentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining . . . and shall also have the right to refrain from any or all of such activities . . ..' Section 8 of the Act embodied in section 158, subsection (b) of title 29 of the United States Code provides: 'It shall be an unfair labor practice for a labor organization or its agents--(1) to restrain or coerce (A) employees in the exercise of the rights guaranteeed in ...