# Garmon v. San Diego Building Trades Council

> California Supreme Court · January 16, 1958 · 49 Cal. 2d 595

URL: https://www.frixlaw.com/law-library/cases/9563734

## Case

- **Full name:** J. S. GARMON Et Al., Respondents, v. SAN DIEGO BUILDING TRADES COUNCIL Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** January 16, 1958
- **Citations:** 49 Cal. 2d 595; 320 P.2d 473
- **Precedential status:** Published
- **Opinion:** Dissent by Traynor
- **Judges:** Shenk, Traynor, Schauer, Spence, McComb, Gibson, Carter
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

TRAYNOR, J.
I dissent.
The United States Supreme Court remanded this case for a determination of the question whether plaintiffs have a cause of action under state law. The majority of this court now state that it is apparent from the remand that restrictions on the power of state courts to enjoin conduct that is an unfair labor practice are not applicable to an action for damages, and that if we did not have power to award damages, the Supreme Court would no doubt have so declared rather than remanded the case. The remand cannot bear such a construction. In its opinion, the Supreme Court specifically states that it does not reach the question whether an award of damages can be sustained under United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 [ 74 S.Ct. 833 , 98 L.Ed. 1025 ]. The court did not find it necessary to decide this question since our earlier opinion in the case did not state whether plaintiffs have a cause of action under state law. If no cause of action for damages exists under state law, it is of course immaterial whether the policy of the federal statute does or does not permit the enforcement *616 of such a cause of action in the state courts. The Supreme Court, pursuing its usual policy of judicial economy, declined to answer a problem when an answer was not strictly compelled. Whatever we may think of the wisdom of this policy, considering the burden it places on litigants and the lower courts, it furnishes a complete explanation for the remand in the present ease. Except insofar as earlier decisions of the Supreme Court provide guidance, the question is still open whether a state court has jurisdiction to award damages in the kind of case now before us.
Soon after Garner v. Teamsters etc. Union, 346 U.S. 485 [ 74 S.Ct. 161 , 98 L.Ed. 228 ], the Supreme Court qualified the broad rule of that case in United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 [ 74 S.Ct. 833 , 98 L.Ed. 1025 ], There the defendants employed threats of violence and an armed mob in an effort to compel the plaintiff to recognize them as the exclusive bargaining representative of its employees. The Supreme Court upheld state court jurisdiction to award damages for the injury to the employer’s business resulting from such conduct, in spite of the assumption that it was also an unfair labor practice under section 8(b)(1). ( 29 U.S.C. § 158 (b)(1).)
Language in the opinion suggested that jurisdiction to apply state law was preserved because the plaintiff sought damages rather than an injunction and that the case was distinguishable from the Garner case because there state law attempted to provide a preventive remedy paralleling the preventive remedy available under federal law, whereas “here Congress has neither provided nor suggested any substitute for the traditional state court procedure for collecting damages for injuries caused by tortious conduct.” ( 347 U.S. at 663-664 .) Some state and federal cases have relied on this distinction in holding that damages may be awarded under state law for conduct markedly different from that in the Laburnum case. (Benz v. Compania Naviera Hidalgo, S.A., [9th Cir.], 233 F.2d 62, 65-66 , rev’d on other grounds, 353 U.S. 138 [ 77 S.Ct. 699 , 1 L.Ed.2d 709 ] [peaceful picketing constituting tort under Oregon law]; Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 196-197 [ 287 P.2d 267 ] [peaceful picketing in violation of Colorado Labor Peace Act]; Benjamin v. Foidl, 379 Pa. 540 [ 109 A.2d 300 ] [common-law conspiracy to deprive of employment]; Dallas General Drivers v. Wamix, Inc. (Tex.Civ.App.), 281 S.W.2d 738, 745-746 , aff’d on other grounds, - Tex. - [ 295 S.W.2d 873 ] [peaceful picket *617 ing and secondary boycott in violation of Texas antitrust and antimonopoly statutes]; see International Sound Technicians v. Superior Court, 141 Cal.App.2d 23, 29-32 [ 296 P.2d 395 ]; New York, New Haven & Hartford R. R. v. Jenkins, 331 Mass. 720 , 734-735 [ 122 N.E.2d 759 ], rev’d sub nom. Local 25, Int’l Brotherhood of Teamsters v. New York, New Haven & Hartford R. R., 350 U.S. 155 [ 76 S.Ct. 227 , 100 L.Ed. 166 ] ; Selchow & Bighter Co. v. Damino, 146 N.Y.S.2d 874 , 876-877 [Sup.Ct.].)
Relying on this same analysis, other courts in actions by employees against unions have refused to award damages under state law on the ground that the National Labor Relations Board was empowered to give substantially the same relief under federal law by a back pay order. (Born v. Laube, 214 F.2d 349 , denying rehearing in 213 F.2d 407 [9th Cir.], cert. denied, 348 U.S. 855 [ 75 S.Ct. 80 , 99 L.Ed. 674 ]; Sterling v. Local 438, Liberty Assn. of Steam & Power Pipe Fitters, 207 Md. 132, 144-146 [ 113 A.2d 389 ], cert. denied, 350 U.S. 875 [ 76 S.Ct. 119 , 100 L.Ed. 773 ], motion for leave to file petition for writ of prohibition denied, 351 U.S. 917 [ 76 S.Ct. 708 , 100 L.Ed. 1450 ]; Real v. Curran, 285 App.Div. 552, 553-555 [ 138 N.Y.S.2d 809 ]; Mahoney v. Sailors’ Union, 45 Wn.2d 453, 460-461 [ 275 P.2d 440 ], cert. denied, 349 U.S. 915 [ 75 S.Ct. 604 , 99 L.Ed. 1249 ].)
Still other courts have held that damages may be given under state law in cases involving violence, apparently singling it out as the critical factor distinguishing the Laburnum case from the Garner case. (International Longshoremen’s etc. Union v. Hawaiian Pineapple Co., 226 F.2d 875 , 883 [9th Cir.], cert. denied, 351 U.S. 963 [ 100 L.Ed. 1483 , 76 S.Ct. 1026 ]; International Union, United Automobile Workers v. Russell, 264 Ala. 456 [ 88 So.2d 175, 180-182 ], cert. granted, 352 U.S. 915 [ 77 S.Ct. 213 , 1 L.Ed.2d 121 ]; Tallman Co. v. Latal, 365 Mo. 552 [ 248 S.W.2d 547, 550-553 ]; see International Union of Electrical etc. Workers v. Underwood Corp., [2d Cir.], 219 F.2d 100 , 101 n. 3; but see Benz v. Compania Naviera Hidalgo, S.A., [9th Cir.], 233 F.2d 62, 66 , rev’d on other grounds, 353 U.S. 138 [ 77 S.Ct. 699 , 1 L.Ed.2d 709 ].) Under this analysis the reasons justifying jurisdiction to award damages would be substantially the same as those that justify state injunctive relief in cases of violence. (See 54 Columb.L.Rev. 1147, 1148.) It might seem self-evident, however, even in the absence of the Laburnum case, that if local interest in keeping public order is sufficient to preserve injunctions under *618 state law, it is sufficient to preserve the less drastic remedy of damages.
A third possible basis for distinction might be found in the court’s constant reiteration in its opinion that recovery is grounded on a common-law, apparently as distinguished from a statutory, tort. (See Friendly Society of Engravers v. Calico Engraving Co., [4th Cir.], 238 F.2d 521, 524 .) Why this distinction is relevant to the state’s right to grant relief is not clear, unless it suggests a difference between state laws of general application and laws aimed specifically at labor relations. (See Cox, Federalism in the Law of Labor Relations, 67 Harv.L.Rev. 1297, 1321-1324.)
When the Laburnum case is read against the background of the Garner case, it is clear that these factors are not themselves the ultimate tests of state court jurisdiction to apply state law, but indications of whether or not there is a likelihood of conflict between state and federal policy. The possibility of conflict of policies, pointed up in the Garner case, remains the principal consideration, whether damages or in-junctive relief, violence or peaceful picketing, common-law or statutory rights to recovery are involved.
Thus, if there is a conflict between state and federal substantive rules in terms of conduct condemned or protected, state law must of course give way no matter what remedy it provides. Likewise, even if state , and federal laws have an appearance of harmony, as applied by different tribunals they may become inconsistent and federal policy indirectly thwarted. This potential inconsistency was the consideration that lay behind the Garner decision and prompted the statement that, “A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” ( 346 U.S. at 490-491 .) The notion of “conflicting remedies” is a shorthand way of pointing up this potential conflict in the application of substantive policies. Conversely, the conclusion that there is no “conflict of remedies” would seem to indicate that the different substantive rules as applied by different tribunals will not conflict in terms of conduct condemned or protected, and that once this absence of conflict is assured, federal law does not envisage its preventive remedy as necessarily the only one available to an injured party. (See 53 Mich.L.Rev. 602, 606-609.)
The Laburnum case illustrates this last situation. There was no conflict between the federal and state substantive rules *619 because the conduct was a tort under Virginia law and an unfair labor practice under the federal statute. There could be no conflict in the application of these rules because of the violent nature of the conduct involved, an element whose presence is underlined by the later description of the Laburnum case in the Weber opinion. (348 U.S. at 477.) The Supreme Court’s decision in the present case, in stating that “Laburnum sustained an award under state tort law for violent conduct,” whereas the present case involves a “different situation,” further emphasizes the importance of violence in Laburnum, and that the rule of that case cannot be automatically extended to all awards of damages. The examples drawn by the court in the Laburnum case from legislative history to support the survival of state remedies all include references to violence ( 347 U.S. at 668-669 ), and the court’s review was specifically restricted to the question of state jurisdiction “in view of the type of conduct found by the Supreme Court of Appeals of Virginia. ...” ( 347 U.S. at 658 .) The type of conduct gave assurance that in no event would federal policy be expounded by the board to condone that which the state there condemned.
This assurance was strengthened by the fact that the state was enforcing a law of general application rather than one aimed specifically at labor relations; from Virginia’s point of view it was irrelevant that the defendants were labor organizations. Although this consideration is evidently not decisive (see Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 479 [ 75 S.Ct. 480 , 99 L.Ed. 546 ]), its importance is made clear in the last paragraph of the opinion where it is said that, “If petitioners were unorganized private persons, conducting themselves as did petitioners here, Virginia would have had undoubted jurisdiction of this action against them. The fact that petitioners are labor organizations . .. provides no reasonable basis for a different conclusion.” ( 347 U.S. at 669 .)
Finally, since the state sought to compensate for a completed wrong rather than parallel the preventive remedy available through the board, the danger of conflict with federal policy was further reduced. However, since damages are a means of enforcing policy and controlling conduct, although somewhat less direct than an injunction, the form of the remedy alone would not seem to be the consideration determining whether state law may conflict with federal law.
It is readily apparent that the present case provides no such assurance that there will not be conflict between state and *620 federal laws as applied. Defendants engaged in peaceful picketing, not threats and violence; their conduct was not of a type that gives any assurance how the National Labor Relations Board would view it under section 8(b), or that the board might not find it a protected activity under section 7. Furthermore, if recovery were permitted under state law, it would be based, not on law of general application, but on law aimed specifically at labor relations.
Section 303(b) ( 29 U.S.C. § 187 (b)), gives a right of action for damages to any person injured by certain secondary boycott activities described in section 303(a). ( 29 U.S.C. § 187 (a).) Damages can be awarded under this section by any court that has jurisdiction of the parties, without a prior determination by the National Labor Relations Board that there has been an unfair labor practice. (See International Longshoremen's Union v. Juneau Spruce Corp., 342 U.S. 237, 243-244 [ 72 S.Ct. 235 , 96 L.Ed. 275 ].) It could be argued that these provisions show a congressional willingness to take the risk of inconsistent application by different tribunals of standards bearing on labor relations for the sake of compensating injured persons. A state court awarding damages under section 303, however, would interpret and apply federal law, and its decision could be brought into harmony with board determinations under section 8(b), and federal court adjudications under section 303 on review by the United States Supreme Court. The danger of inconsistency would be considerably less than when recovery is under state law.
Because of the danger of conflict in the application of state law with the National Labor Relations Board’s application of the federal statute, the trial court was without jurisdiction to issue an injunction. I am of the opinion that for the same reason it was without jurisdiction to award damages.
Furthermore, even if the federal statute does not bar an award of damages, plaintiffs have no cause of action under the established law of this state. For almost 50 years it has been settled that a closed or union shop is a proper objective of concerted labor activity because reasonably related to union welfare and the betterment of working conditions. This problem has been exhaustively considered in numerous decisions of this court, and the balance of values found to weigh in favor of judicial self-restraint in enjoining or penalizing union activities reasonably calculated to achieve these ends. Nevertheless, a majority of this court now in *621 effect overrules these cases and abandons a policy whose wisdom is as clear now as it was when first adopted.
As early as Parkinson Co. v. Building Trades Council (1908), 154 Cal. 581 [ 98 P. 1027 , 16 Ann.Cas. 1165, 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. Exclusion of competition from nonunion workers was held a proper objective of concerted labor activity, and the court was unanimous in considering a strike a proper method of attaining this end.
McKay v. Retail Automobile Salesmen’s Union, 16 Cal.2d 311, 315-325 [ 106 P.2d 373 ], presented the precise question involved in the present case: “Is it lawful for a labor union by peaceful picketing to attempt to induce an employer to employ only persons who are members of the picketing union when there is no strike and the employees of the picketed employer are satisfied with their employment and do not desire to join the union.” (See dissenting opinion at 338.) The court held that the objective was lawful and had a reasonable relation to the betterment of the conditions of labor, thus reaffirming and extending the principle of the Parkinson case. Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 383-388 [ 106 P.2d 403 ], decided at the same time as the McKay case, made it clear that sections 920-923 of the Labor Code do not restrict the right of labor to engage in concerted activity to attain a closed shop. These sections were enacted as a result of the efforts of organized labor, and their purpose was to outlaw the yellow-dog contract, not the closed shop or union activities to obtain a closed shop.
The reasons for permitting picketing to compel a closed shop even when none of the employees belong to the picketing union were articulated in C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 401 [ 106 P.2d 414 ]: “The 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 *622 union to extend its membership to the employments in which it has no foothold is not an unreasonable aim.” The importance of attaining substantial equality in the economic struggle between unions and employers led to the conclusion that picketing to enforce a closed shop should be permitted notwithstanding possible injury to the employer or the nonunion worker.
Magill Brothers, Inc. v. Building Service Emp. Intl. Union, 20 Cal.2d 506, 508 [ 127 P.2d 542 ], and James v. Marinship Corp., 25 Cal.2d 721, 730 [ 155 P.2d 329 , 160 A.L.R. 900 ], restated the law as established by the earlier cases, and in Park & Tilford Import Corp. v. International Brotherhood of Teamsters, 27 Cal.2d 599, 604 [ 165 P.2d 891 , 162 A.L.R. 1426 ], it was declared once again, and without dissent, that under state law, considered alone, concerted activity for a closed shop is lawful even when undertaken by a union representing none of the employees. In Charles H. Benton, Inc. v. Painters Local Union No. 333, 45 Cal.2d 677, 681 [ 291 P.2d 13 ], a decision handed down at the same time as our first decision in the present case, a majority of the court, obviously with the concurrence of those who dissented on other grounds, stated that, “independently of rights given under the federal statutes, under California decisions an employer may not obtain relief from economic pressure asserted in an effort to compel him to sign a union shop agreement.” This proposition was not questioned by the majority in their earlier opinion in the present case.
From this review of the cases it is clear that, as to labor disputes to which federal law is in no way applicable, picketing to compel an employer to sign a closed shop agreement is picketing for a lawful purpose even when none of the employees are union members. We are now told, however, that these cases “have been superseded, in many respects by later law both statutory and decisional,” and that to “engage in the task of distinguishing and discussing them now would be a work of supererogation.” It is true that the McKay case has been superseded on its precise facts by the Jurisdictional Strike Act (Lab. Code, §§ 1115-1120), if the employees’ committee there resisting the union was not “financed in whole or in part, interfered with, dominated or controlled by the employer. . . .” (Lab. Code, § 1117.) The McKay case did not hold, however, as suggested by the majority opinion in the present case, that section 923 of the Labor Code was ineffective as against the constitutional rights *623 of the defendants. Detailed discussion of section 923 was reserved by the majority in the McKay case for treatment in Shafer v. Registered Pharmacists Union, supra, 16 Cal.2d 379 , decided at the same time, and as stated above, that case squarely held, not that sections 920-923 of the Labor Code were constitutionally ineffective, but that those “sections lay no statutory restraints upon the workers’ efforts to secure a closed shop contract from an employer. ...” (16 Cal.2d at 388.) The court candidly recognized that the argument supporting the present majority’s interpretation of section 923 had been accepted by several state courts, but it expressly concluded that such argument “is not in accordance with the law of this state, as judicially declared for many years, nor is it based upon a fair construction of sections 920 to 923 of the California Labor Code, considering their history and purpose.” (16 Cal.2d at 388.) Moreover, the controlling effect of the Shafer case cannot be avoided by the suggestion that perhaps the employees here involved had selected a committee to represent them and that therefore the Jurisdictional Strike Act is applicable. The pleadings and findings are barren of any suggestion that plaintiffs are seeking relief under the provisions of that act, and it may confidently be assumed that if there were any factual basis for such relief, plaintiffs would not have overlooked it. Accordingly, unless federal law has changed the rule of the Shafer case when interstate commerce is involved, there is no basis in state law for an award of damages in this case.
In Park & Tilford Import Corp. v. International Brotherhood of Teamsters, 27 Cal.2d 599, 603-606, 614 [ 165 P.2d 891 , 162 A.L.R. 1426 ], we grappled with the effect of federal law on state law in this area. At the time of that decision the federal statute made it an unfair labor practice for an employer to enter into a closed shop agreement with a union that did not represent a majority of his employees. It was not an unfair labor practice, however, for a union to picket or use other concerted activity to compel an employer to sign such an agreement. The federal statute as then drawn embraced only employer unfair labor practices, and the National Labor Relations Board had no jurisdiction to provide a remedy for union conduct. We applied state law, but incorporated federal law. We reasoned that since under federal law it was unlawful for the employer to acquiesce in the union’s demand for a closed shop, the union’s demand and picketing in support of that demand were concerted *624 activities for an improper purpose. These activities were unlawful as a matter of state law because state law adopted the federal characterization of the objective as improper.
Much has happened in the field of labor law since our decision in the Park & Tilford case, especially in regard to the relation between state and federal law. In the Park & Tilford case we felt it necessary indirectly to enforce federal law through our own rule prohibiting concerted activity for an unlawful purpose, since there appeared to be no other way to protect federal policy from union encroachment. Section 8(3) (now §8 (a) (3)) of the federal act prohibited an employer from signing a closed shop agreement with a union that did not represent a majority of his employees, but the board had no authority to proceed against a union bringing pressure on an employer to do what the act prohibited. This reason for our intervention in support of federal policy was removed by the enactment of the Labor Management Relations Act. That statute makes the union conduct itself an unfair labor practice subject to board control: section 8(b)(2) makes it an unfair labor practice to attempt to force an employer to violate section 8(a) (3). Thus the board is now fully able to assess the impact of union conduct on the federal policy embodied in 8(a)(3), and to vindicate that policy by proceeding directly against the union.
Furthermore, decisions of the United States Supreme Court since the Park & Tilford case, notably Garner v. Teamsters Union, 346 U.S. 485 [ 74 S.Ct. 161 , 98 L.Ed. 228 ], and Weber v. Anheuser-Busch, Inc., 348 U.S. 468 [ 75 S.Ct. 480 , 99 L.Ed. 546 ], have made it clear that the definition and vindication of rights created by the federal act rest exclusively with the National Labor Relations Board. As Mr. Justice Carter pointed out in the earlier dissent in the present case, the board is an integral part of the federal law, and that law is not intended to apply when the board is not present. ( 45 Cal.2d at 668 .) Congress has not created abstract rights to be free from unfair labor practices; it has created rights whose scope and nature depend on board definition. Federal policy does not require vindication in state tribunals. On the contrary, it requires that they not conflict with board action by attempting to enforce federal rights either directly, or indirectly by purporting to incorporate them into state law. Thus the very reasons that preclude us from giving injunc-tive relief for the violation of federal rights indicate that, assuming we could give damages, we should not do so if we *625 are intelligently to apply our own unlawful purpose doctrine. In no meaningful sense is the purpose unlawful.
The object of defendants’ conduct in the present case is unlawful only if we look to federal law to characterize it as such. From what has been said, it is clear that there is no reason to do so. The policy establishing the lawfulness of the purpose under state law is as valid now as it was when this court decided the McKay, Shafer, and C. S. Smith cases. They should not be overruled.
Gibson, C. J., and Carter, J., concurred.
Appellants’ petition for a rehearing was denied February 13, 1958. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563734. Public record. Not legal advice.