Sommer v. Metal Trades Council

CARTER, J.

I dissent.

The majority opinion concedes that the activities of defendants unions and Local 1 and its effect on plaintiff employer are within the jurisdiction of the National Labor Relations Board and the terms of the Labor Management Relations Act of 1947 ( 29 U.S.C.A., § 141 et seq.) and obviously that is true. It goes on to hold, however, that such activities are also within the purview of our statute known as the Jurisdictional Strike Act. (Lab. Code, § 1115 et seq.) It then concludes that the state act and state courts in enforcing it can operate concurrently on those activities. It attempts to distinguish Gerry of California v. Superior Court, 32 Cal.2d 119 [ 194 P.2d 689 ] and In re DeSilva, 33 Cal.2d 76 [ 199 P.2d 6 ], on the ground that in those cases there was no state statute or policy which regulated the activity. That, however, is immaterial for those cases further state that where the activity comes within the federal act, exclusive jurisdiction is conferred on the board under that act. That exclusive jurisdiction does not disappear merely because the state passes a statute on the same subject.

The fundamental premise of the majority opinion, that activities in connection with labor disputes although within the jurisdiction of the federal law and national board, may also be regulated and controlled by state statutes and enforced by state courts, is clearly erroneous as I will endeavor to demonstrate hereinafter. First, reference should be made to the most recent case called to my attention, of Capital Service, Inc. v. National Labor Relations Board, * where the premise of the majority opinion is squarely repudiated. There the federal district court had granted, at the request of the National Labor Relations Board, an injunction against an employer enjoining it from enforcing an injunction it had obtained in a California superior court enjoining concerted activities (a boycott and picketing) by a union. The federal court held that the activities violated the federal law and hence the California court had no jurisdiction to enjoin *404 the activities and the district court was correct in so holding. The court stated:

“The question then arises whether, since both these acts of picketing are in violation of the Taft-Hartley Act, the state courts are excluded from attempting to enjoin such acts where prohibited by the State or federal law?

“We think that the control by the federal tribunals is exclusive. 29 U.S.C.A. § 160 (a) of the original Act provided: ‘The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158) affecting commerce. This power shall be exclusive and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise. ’ (Emphasis supplied.)

“As amended by the Taft-Hartley Act, these two sentences remain save that the words ‘shall be exclusive and’ are stricken, and the states given power of enforcement by agreement with the board in certain eases by adding the following proviso after the word ‘otherwise’: ‘Provided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such eases by such agency is inconsistent with the corresponding provision of this subchapter or has received a construction inconsistent therewith. ’

“We construe this amendment as giving to a state a right of enforcement only by an agreement reached by it with the board. Here there was no such agreement.”

In the instant case it appears from the complaint that plaintiff is doing business under the fictitious name of Oomwel Company in Lynwood, California. His business consists of manufacture, distribution and installation of steel machinery and equipment, chiefly for service stations. Defendants are various local labor unions affiliated with the American Federation of Labor and members and officers of those unions. Plaintiff employs about 50 people.

An organization called Workers Association of Manufacturers and Builders of Auto Service Union Local No. 1 (hereafter called Local 1), not financed or controlled by plaintiff, *405 organized early in September, 1949, filed on September 16, 1949, a petition with the National Labor Relations Board, claiming the right to represent plaintiff’s employees in collective bargaining, in which plaintiff was a party, and one of defendant unions intervened. On February 24, 1950, the board ordered an election to determine whether the union or Local 1 should be the bargaining representative. It also determined that plaintiff was engaged in a business affecting interstate commerce. At the election a majority voted in favor of Local 1.

On September 22, 1949, plaintiff filed with the board a charge, later amended, against some of defendant unions, claiming the union was engaged in unfair labor practices affecting interstate commerce under and in violation of the Labor Management Relations Act of 1947 ( 29 U.S.C.A., § 158 [b][4][A] and [B]) in that the unions were inducing other employees of other employers to refuse to use and handle plaintiff’s products, with the object of forcing other employers to bargain with a union not certified as a representative, by picketing and otherwise. Plaintiff thus admitted that interstate commerce was affected. On December 28, 1949, the regional director of the board refused to issue a complaint in the matter for “lack of sufficient evidence of violations” of the act. No appeal was taken from such refusal.

On October 28, 1949, one of defendant unions filed a charge with the board alleging unfair labor practices affecting interstate commerce in violation of the Labor Management Relations Act ( 29 U.S.C.A., § 158 [a][1] and [2]) in that Local 1 was formed by plaintiff to influence his employees in an election by them to determine their bargaining representative. On December 13, 1949, the regional director of the board refused to issue a complaint for lack of evidence. On appeal to the general counsel, the refusal was affirmed.

The charge in the complaint and affidavits is that defendants demanded that plaintiff accept them as the exclusive bargaining representative for his employees and to that end defendants have picketed plaintiff’s place of business and his customer’s places of business where plaintiff was installing his equipment and otherwise sought to induce other employers and employees to refuse to deal with plaintiff or handle his products, which practices succeeded in injuring plaintiff’s business. According to plaintiff, he was approached during 1949, before Local 1 was formed, by defendants who demanded the right to be the exclusive bargainers for his employees *406 and to execute a contract to that end. He refused because his employees did not want to join the union. Threats of picketing and of preventing suppliers and subcontractors from working on the jobs were made by defendants. Defendants engaged in concerted action against plaintiff consisting of picketing and advising plaintiff’s customers not . to deal with him, and coercing the contractors by threatening to call off the men on their jobs if they continued to deal with plaintiff. The activity was successful, causing considerable damage to plaintiff’s business. The injunction restrained the foregoing activities.

Plaintiff seeks to justify the injunction on the basis of the Jurisdictional Strike Act (Lab. Code, § 1115 et seq.) considered in Seven Up Bottling Co. v. Grocery Drivers Union, ante, p. 368 [ 254 P.2d 544 ], Defendants claim the act is unconstitutional and that it does not apply here because their concerted activities did not arise out of a dispute between them and Local 1 (see Lab. Code, § 1118) but had been in existence prior to Local l’s formation. Plaintiff also relies upon section 923 of the Labor Code.

Beyond doubt the case is controlled exclusively by the National Labor Management Relations Act of 1947 and is within the jurisdiction of the National Labor Relations Board, and any state policy, legislative or judicial, must give way. The act sets up a comprehensive system dealing with representation in collective bargaining and unfair labor practices on the part of both management and labor organizations. Its declared policy is that industrial strife which interferes with the flow of interstate commerce can be avoided or minimized if employers, employees and labor organizations each recognize the other’s legitimate rights, and the purpose of the act is to preserve the legitimate rights of employers and employees and to provide for orderly and peaceful procedures to achieve these goals. ( 29 U.S.C.A. § 141 .) Rights are assured to employees “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.” (Id., § 157.) Certain activities on the part of the employer are de *407 dared unfair labor practices, such as “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; ... by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this sub-chapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 158(a) of this title as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made; and (ii) if, following the most recent election held as provided in section 159(e) of this title the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (a) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. ...” (Id., § 158 [a] [1] and [3]) Similarly it is unfair practice for a labor organization to “ (1) restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances; (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some *408 ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; . . . (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title; ... (e) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit. ’ ’ (Id., § 158 [b][1][2][4] and [c].) The board has jurisdiction to determine the proper bargaining representative on petition of employees, labor organization, or employer and for elections to that end. (Id., § 159.) Also, it is given power to prevent engaging in unfair labor practices and to invoke federal court jurisdiction to that end. (Id., § 160.) That jurisdiction excludes injunctive relief by the state courts. (Gerry of California v. Superior Court, 32 Cal.2d 119 [ 194 P.2d 689 ] ; In re DeSilva, 33 Cal.2d 76 [ 199 P.2d 6 ].)

The trend of the decisions of the courts is that state regulation is. not applicable either on the theory of occupation of the field of regulating strikes, picketing and boycotts by the Labor Management Relations Act of 1947, or that such concerted action falls within the protection of section 157 of the law quoted supra; that minority picketing for recognition is not subject to state regulation. One phase of the problem *409 was considered by this court in Gerry of California v. Superior Court, supra, 32 Cal.2d 119 , and In re DeSilva, supra, 33 Cal.2d 76 . In both of those cases picketing of an employer was done by a union to organize the employer’s employees. An injunction was sought on the ground that the conduct consisted of an unfair labor practice under the Labor Management Relations Act, no state law being violated. It was decided in the Gerry case that there was an unfair labor practice and in the DeSilva case that was “assumed.” We held that an injunction could not stand because the exclusive jurisdiction to prevent a violation of the act rested with the National Labor Relations Board. While we were primarily concerned with whether the state courts had jurisdiction to enforce a violation of the national act rather than whether a state could enforce its own labor regulation where interstate commerce was affected, we reviewed the whole field as to the place occupied by the federal law and that left to the states. We stated in the DeSilva case, summarizing the holding of the Gerry case (p. 78) : “This court there [in the Gerry case] held that the declared intent and purpose of the Labor Management Relations Act, 1947, was to vest exclusive jurisdiction in the National Labor Relations Board over unfair labor practices affecting interstate commerce and to vest in the courts generally jurisdiction only of actions for damages arising out of the commission of such practices, and that the act deprived the superior courts of original equitable jurisdiction in such cases.” (Emphasis added.) In the Gerry case the holding of the United States Supreme Court in Amalgamated U. Workers v. Consolidated Edison Co., 309 U.S. 261 [ 60 S. Ct. 561 , 84 L.Ed. 738 ] was summarized: “The Supreme Court pointed out that the course of procedure was definite and restricted; that the board and the board alone could determine whether an employer had engaged in an unfair labor practice; that the board was chosen as the instrument or agency, exclusive of any private person or group, to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce, and that the board alone was authorized to take proceedings to enforce its order. The sole authority of the board to secure prevention of unfair labor practices affecting commerce was thus recognized. That section 10 of the National Labor Relations Act committed to the board the exclusive power to decide whether unfair labor practices by the employer had been engaged in *410 and to determine the action that should he taken to remove or avoid the consequences thereof was again stated. . . . The most recent pronouncement of the Supreme Court to come to our attention is in Bethlehem Steel Co. v. New York State Labor Relations Board, supra ([ 330 U.S. 767 , 91 L.Ed. 1234 ] 67 S.Ct. 1026 , reversing 295 N.Y. 601 and 607 [ 64 N.E.2d 350 ]), wherein it was held that state and federal action covering the subject matter of the National Labor Relations Act could not coexist.” (Emphasis added.) (Gerry of California v. Superior Court, 32 Cal.2d 119, 124 [ 194 P.2d 689 ].) That discussion means that in cases such as this it rests with the board to determine, at least at this stage of the proceeding, whether an unfair labor practice has been committed and to take such action as it deems advisable. This court cannot, therefore, be concerned with the question of whether in fact there have been unfair labor practices committed.

Since the DeSilva case the Supreme Court of the United States has continued in the same direction. It held in La Crosse Tel. Corp. v. Wisconsin Emp. Relations Board, 336 U.S. 18 [ 69 S.Ct. 379 , 93 L.Ed. 463 ], that the federal act controlled questions relating to representation of employees. Algoma Plywood & Veneer Co. v. Wisconsin Emp. Relations Board, 336 U.S. 301 [ 69 S.Ct. 584 , 93 L.Ed. 691 ], seemed to take a step backward, but in Plankinton Packing Co. v. Wisconsin Emp. Relations Board, 338 U.S. 953 [ 70 S.Ct. 491 , 94 L.Ed. 588 ], the decision of the Supreme Court of Wisconsin holding that Wisconsin’s labor relations law as to unfair labor practices controlled, was reversed without opinion. In International Union of U. A., A. & A. & I. W. v. O'Brien, 339 U.S. 454 [ 70 S.Ct. 781 , 94 L.Ed. 978 ], a Michigan strike control law which required a prior notice and a majority vote before a strike, was held inapplicable because of the federal act, in that it attempted to limit a federal right of employees to engage in concerted activities and to strike, and that the federal act regulated such rights. The court concluded the opinion by referring to certain areas in which state action was proper, including a discussion of the cases, such as International Union, U. A. W. v. Wisconsin Emp. Relations Board, 336 U.S. 245 [ 69 S.Ct. 516 , 93 L.Ed. 651 ], heavily relied upon by plaintiff and showing that the Jurisdictional Strike Law is not in the class of activity reserved for state action. The court said: “International Union, U.A.W. v. Wisconsin Emp. Relations Board, 336 U.S. 245 [ 69 *411 S.Ct. 516 , 93 L.Ed. 651 ] (1949), upon which Michigan principally relies, was not concerned with a traditional, peaceful strike for higher wages. The employees’ conduct there was ‘a new technique for bringing pressure upon the employer, ’ a ‘recurrent or intermittent unannounced stoppage of work to win unstated ends.’ Id. at 249, 264 . That activity we regarded as ‘ coercive, ’ similar to the sit-down strike held to fall outside the protection of the federal act in National Labor Relations Board v. Fansteel Metallurgical Corp. (1939), 306 U.S. 240 [ 59 S.Ct. 490 , 83 L.Ed. 627 , 123 A.L.R. 599 ] (1939), and to the labor violence held to be subject to state police control in Allen-Bradley Local v. Wisconsin Emp. Relations Board, 315 U.S. 740 [ 62 S.Ct. 820 , 86 L.Ed. 1154 ] (1942). In the Wisconsin Auto. Workers case, we concluded that the union tactic was ‘neither forbidden by federal statute nor was it legalized and approved thereby. ’ 336 U.S. at 265. ‘ There is no existing or possible conflict or overlapping between the authority of the Federal and State Boards, because the Federal Board has no authority either to investigate, approve or forbid the union conduct in question. This conduct is governable by the State or it is entirely ungoverned. ’ Id. at 254. Clearly, we reaffirmed the principle that if ‘Congress has protected the union conduct which the State has forbidden . . . the state legislation must yield.’ Id. at 252.” (Emphasis added.) (International Union of U. A., A. & I. W. v. O' Brien, supra, 339 U.S. 454, 459 .) The court summarized the area still open to state action in Allen-Bradley Local No. 1111 v. Wisconsin Emp. Relations Board, 315 U.S. 740 [ 62 S.Ct. 820 , 86 L.Ed. 1154 ], stating that: “ [T]he state’s exercise of its police power (e.g., the prevention of mass picketing of the employer’s factory, threatening personal injury or property damage to employees desiring to work, obstructing entrance to and egress from the employer’s factory, obstructing the streets and public roads, picketing the homes of employees, and other breaches of the peace in connection with labor disputes) was not intended to be excluded by the provisions of the National Labor Relations Act, and that the exercise of that power by the state could stand consistently with the operation of the federal act.” (Gerry of California v. Superior Court, supra, 32 Cal.2d 119, 125 .) The conduct here involved does not fall in that category. I believe it is clear that the circumstances existing here present either a case of an unfair labor practice, or that the conduct is protected by the national act ( 29 U.S.C.A. § 157 ), which ques *412 tions are, in this state at least, determinable by the National Board.'

The court had no jurisdiction, therefore, to grant the injunction and I would reverse the order.

Gibson, C. J., and Traynor, J., concurred.

Appellants’ petition for a rehearing was denied April 2, 1953. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.

A rehearing was granted.