# Garmon v. San Diego Building Trades Council

> California Supreme Court · December 2, 1955 · 45 Cal. 2d 657

URL: https://www.frixlaw.com/law-library/cases/9600414

## Case

- **Full name:** J. S. GARMON Et Al., Respondents, v. SAN DIEGO BUILDING TRADES COUNCIL Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** December 2, 1955
- **Citations:** 45 Cal. 2d 657; 291 P.2d 1; 37 L.R.R.M. (BNA) 2233; 1955 Cal. LEXIS 356
- **Precedential status:** Published
- **Opinion:** Dissent by Carter
- **Judges:** Edmonds, Carter
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9600414

## Opinion text

CARTER, J.
— I dissent.
In this ease defendant unions were enjoined from peaceful picketing to organize plaintiffs’ employees, have them join defendants and have defendants as their bargaining representatives ; damages were also awarded to plaintiffs for the picketing. The trial court found that plaintiffs’ business affected interstate commerce. Plaintiffs requested the National Labor Relations Board to hold an election to determine who should represent their employees. The board dismissed the proceeding. The majority opinion holds that the case is one in which the board would normally have jurisdiction and the state court would not, because defendants’ activity was an unfair labor practice under the National Labor Management Relations Act ( 29 U.S.C.A. § 151 et seq.) * but, says *668 the majority, in this case the state court has jurisdiction because the board refused to take jurisdiction by dismissing the representation proceedings and that federal law (Labor Management Relations Act) rather than state law is applicable; that under the federal law defendants ’ conduct being an unfair labor practice, the picketing was for an unlawful purpose. Hence defendants were properly enjoined and damages awarded against them. In other words, the state court is to enforce the federal law.
Those conclusions are fallacious for the following reasons: (1) The national board and the powers granted to it are an integral part of the federal law and that law is not intended to have application in a situation where the board plays no part; it is inescapable that the federal law is to be administered by the board, not by the state courts. (2) The board in refusing jurisdiction as it has power to do, has in effect determined that the federal law should not apply in this case. (3) It is neither feasible nor fair to apply the federal law. (4) There has not been such a refusal to exercise jurisdiction by the board here as to justify the conclusion that the state court has jurisdiction.
Before discussing those points it should be observed that under our law defendants’ activity is lawful and hence neither damages nor injunctive relief is proper. The majority does not question this proposition. The rule was stated with the citation of many supporting authorities in Park & Tilford I. Corp. v. International etc. of Teamsters, 27 Cal.2d 599, 604 [ 165 P.2d 891 , 162 A.L.R. 1426 ]: “The closed shop is recognized as a proper objective of concerted labor activities, even when undertaken by a union that represents none of the employees of the employer against whom the activities are directed. (McKay v. Retail etc. Union No. 1067, 16 Cal.2d 311, 319, 322 [ 106 P.2d 373 ]; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 382 [ 106 P.2d 403 ] ; C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389 [ 106 P.2d 414 ] ; Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92 [ 113 P.2d 689 ]; see Fortenbury v. Superior Court, 16 Cal.2d 405 [ 106 P.2d 411 ] ; Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682 [ 123 P.2d 20 ] ; Emde v. San Joaquin County etc. Council, 23 Cal.2d 146, 155 [ 143 P.2d 20 , 150 A.L.R. 916 ] ; Lisse v. Local Union, 2 Cal.2d 312 [ 41 P.2d 314 ] ; In re Lyons, 27 Cal.App.2d 293 [ 81 P.2d 190 ] ; J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581 [ 98 P. 1027 , 16 Ann. Cas. 1165, 21 L.R.A.N.S. 550 ]; Pierce v.,.Stablemen’s Union, 156 Cal. 70 [ 103 P. 324 ].) ... A union may picket and *669 boycott an employer’s business with the object of so discouraging public support of the business that the nonunion workers will face the prospect of the loss of their jobs. . . .
“Picketing and boycotting unquestionably entail a hardship for an employer when they affect his business adversely. The adverse effect upon the employer’s business that may result from the competition among workers for jobs is comparable to the adverse effect on his business that may result from his own competition with other employers. It is one of the risks of business. (See C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 398 [ 106 P.2d 414 ].) ‘The law . . . permits workers to organize and use their combined power in the market, thus restoring, it is thought, the equality of bargaining power upon which the benefits of competition and free enterprise rest. Accordingly, the propriety of the object of workers’ concerted activity does not depend upon a judicial determination of its fairness as between workers and employers.’ (4 Rest. Torts, p. 118-) . . .
“[I]n Shafer v. Registered Pharmacists Union, supra, the court stated: ‘ The argument is . . . made that it is absurd to suppose that these provisions were written with the intention of restraining the employer from influencing his employee, while at the same time conferring upon other individuals the right “to coerce’’ the same employee through the employer. But the right of workmen to organize for the purpose of bargaining collectively would be effectually thwarted if each individual had the absolute right to remain “unorganized,’’ and using the term adopted by the appellants to designate the economic pressure applied against them through the employer, coercion may include compulsion brought about entirely by moral force. Certainly such compulsion is not made contrary to public policy by any statute of this state and is a proper exercise of labor’s rights. (Senn v. Tile Layers’ Union, 301 U.S. 468 [ 57 S.Ct. 857 , 81 L.Ed. 1229 ] ; Lauf v. E. G. Shinner & Co., 303 U.S. 323 [ 58 S.Ct. 578 , 82 L.Ed. 372 ] ; Fur Workers’ Union No. 72 v. Fur Workers’ Union No. 21238 (1940), 105 F.2d 1 , aff’d 308 U.S. 522 [ 60 S.Ct. 292 , 84 L.Ed. 443 ].)’’
Speaking to the first point, it is clear that the national board and not a state court is to administer the federal law, at least in situations involving unfair labor practices. It is the forum which is to decide what steps, if any, should be taken to interpret initially the law, to make rules and regulations amplifying the law, to decide what is best for inter *670 state commerce when activity in a labor controversy is claimed to interfere with it, to maintain uniformity in the treatment of cases, etc. The stated purpose of the federal law is to preserve certain rights and protect commerce ( 29 U.S.C.A. § 151 .) The national board is created and it must report to Congress on the cases it has heard. (Id., § 153.) It may make rules and regulations to carry out the act. (Id., § 156.) Unfair labor practices are defined. (Id., § 158.) The board “shall decide” “. . . whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of sections 151-166 of this title, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.
“(c) Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected.” (Id., § 159.) The board “. . . is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or 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 cases by such agency is inconsistent with the corresponding provision of this sub-chapter.” (Id., § 160.) If it is charged that an unfair labor practice is being committed the board “may” issue a complaint and shall decide the matter; it “may” ask a federal court for equitable relief in enforcing its decision, and its decision may be reviewed by a federal court. (Id., § 160.) Immunity from prosecution is accorded witnesses who are compelled to testify before the board. (Id., § 161.) These and many other provisions clearly envision that the federal law is not to operate without the national board. That proposition was pointed out in Garner v. Teamsters, Chauffeurs, & Helpers Local Union No. 776, 346 U.S. 485, 488 [ 74 S.Ct. 161 , 98 L.Ed. 228 ] : “Congress has taken in hand this par *671 tieular type of controversy where it affects interstate commerce. . . . [I]t has forbidden labor unions to exert certain types of coercion on employees through the medium of the employer. It is not necessary or appropriate for us to surmise how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body. The power and duty of primary decision lies with the Board, not with us. But it is clear that the Board was vested with power to entertain petitioners’ grievance, to issue its own complaint against respondents and, pending final hearing, to seek from the United States District Court an injunction to prevent irreparable injury to petitioners while their case was being considered. . . .
“Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint a/nd notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. ... 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. The same reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal board, precludes state courts from doing so. . . . And the reasons for excluding state administrative bodies from assuming control of matters expressly placed within the competence of the federal board also exclude state courts from like action.” (Emphasis added.) And it is said in Textile Workers Union of America v. Arista Mills Co., 193 F.2d 529 , 533: “ ‘It is perfectly clear, both from the history of the National Labor Relations Act and from the decisions rendered thereunder, that the purpose of that act was “to establish a single paramount administrative or quasi-judicial authority in connection with the development of federal American law regarding collective bargaining”; that the only rights made enforceable by the act were those determined by the National Labor Relations Board to exist *672 under the facts of each case; and that the federal trial courts were without jurisdiction to redress by injunction' or otherwise the unfair labor practices which it defined.’ ” It should be clear, therefore, that the Labor Management Relations Act in dealing with unfair labor practices can only be enforced by the intervention of the national board, and that state courts are not in a position to apply that law.
In regard to the second point it is settled that the national board may refuse jurisdiction because interstate commerce is not sufficiently affected. “Even when the effect of activities on interstate commerce is sufficient to enable the Board to take jurisdiction of a complaint, the Board sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case.” (Emphasis added; National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 684 [ 71 S.Ct. 943 , 95 L.Ed. 1284 ] ; see also Haleston Drug Stores, Inc. v. National Labor Relations Board, 187 F.2d 418 , cert, den., 342 U.S. 815 [ 72 S.Ct. 29 , 96 L.Ed. 616 ]; National Labor Relations Board v. Atlanta Metallic Casket Co., 205 F.2d 931 ; National Labor Relations Board v. Stoller, 207 F.2d 305 ; National Labor Relations Board v. Guy F. Atkinson Co., 195 F.2d 141 ; note, 98 L.Ed. 221 .) That power necessarily includes the power to determine that the federal law shall not apply in a particular case. When it refuses to take jurisdiction in a particular case because commerce is not affected and the “purposes of the Act will not be effectuated” by assertion of jurisdiction it has said that the case is not one for the application of the federal law and the state court should not override that decision as it has done in this case. It is true that the board is given power to cede jurisdiction to a state agency by agreement with such agency over any cases in any industry even though such cases may involve labor disputes affecting interstate commerce unless, however, the state’s applicable “statute” is “inconsistent” with the federal act. ( 29 U.S.C.A. § 160 (a).) There has been no cession here, * but the cession provision indicates that in such cases the state is in effect applying federal law because there can be no cession unless the federal and state law are consistent in both wording and interpretation. It thus may be inferred that the states are to apply the federal law only in the situation where the cession requirements are met. In other situations it is to apply its own law. When we come *673 tú the power of the federal board to refuse jurisdiction, as distinguished from cession, we find that power is to make such refusal because the board finds or states “that the policies of the Act would not be effectuated by” the board’s assertion of jurisdiction (emphasis added). (See National Labor Relations Board v. Denver Bldg. & Const. Trades Council, supra, 341 U.S. 675, 684 ; and cases cited supra, together with the statement in the decision by the regional director in this particular case as to why jurisdiction was refused.) In other words, the board has the power under its authority to refuse jurisdiction — to decide that the “policies” declared by the provisions of the federal act, shall not apply in a particular case. The board having made that determination, it follows that the state court should not apply the federal act where the board has refused to act. Implicit also in the power of refusal is the board’s conclusion that there is no need for uniformity of decision in order that businesses and labor in interstate commerce will be similarly treated. Moreover the board having exclusive jurisdiction generally, it also has exclusive jurisdiction to determine that interstate commerce is not sufficiently affected for the federal law to operate. The state court thus has no jurisdiction to decide to the contrary.
Thirdly, it is neither feasible nor fair to apply the federal law in this case. We have no agency such as a labor relations board in this state or anything like it. There are no facilities for conducting representation elections to determine whether a union shall be the collective bargaining agent for the employees, a question which may be basic in passing upon unfair labor practice charges. We have no body with the facilities nor expertness in the field. Our courts are at a disadvantage in sizing up the national picture — the impact upon interstate commerce — in deciding such controversies. The courts cannot make rules and regulations on the subject as may the national board. They cannot achieve the uniformity that is vital under the federal law, not having available to them, as does the national board, the nationwide circumstances.
The discrimination which results from the majority holding is manifest. An employer, although engaged in business affecting interstate commerce, yet not enough in the board’s view to justify taking jurisdiction and applying the federal law, is essentially a local operator and such business should have applied to it the state law the same as its competitors whose business is purely intrastate. There is no rational basis for discriminating between the two classes of business or the *674 employees or unions concerned. Neither has any meaningful impact on interstate commerce and thus both should be amenable to the same law — the state law governing intrastate commerce — employer-employee-union relations.
In the foregoing discussion it has been assumed that there was a refusal by the national board to take jurisdiction of the case and that such refusal is ground for saying the state court has jurisdiction. The latter question has not been settled by the United States Supreme Court. In Garner v. Teamsters, Chauffeurs, & Helpers Union No. 776, supra, 346 U.S. 485, 488 , the court held, as above indicated, that the board had exclusive jurisdiction but in discussing the question, mentioned that “Nor is there any suggestion that respondents’ plea of federal jurisdiction and pre-emption was frivolous and dilatory, or that the federal Board would decline to exercise its powers once its jurisdiction was invoked.” In the later case of Building Trades Council v. Kinard Const. Co., supra, 346 U.S. 933 , the court reversed (in a memorandum opinion) the state court’s (Supreme Court of Alabama) affirmance of an injunction on the basis of the Garner ease and in so doing stated: “Since there has been no clear showing that respondent has applied to the National Labor Relations Board for appropriate relief, or that it would be futile to do so, the Court does not pass upon the question suggested by the opinion below of whether the state court could grant its own relief should the Board decline to exercise its jurisdiction.” It was pointed out in the decision by the Alabama Supreme Court (Kinard Const. Co. v. Building Trades Council, supra, [ 258 Ala. 500 ] 64 So.2d 400, 402 ) that the board had made the general criteria statement, the same as it did here, as to the cases in which it would take jurisdiction. I interpret the Kinard case as holding, therefore, that such a general pronouncement as that made by the board here is not sufficient to show that the board would refuse to exercise jurisdiction. We have, therefore, the first question as to whether there has been a sufficient showing of refusal to exercise jurisdiction in this case, assuming such refusal would leave the matter open to state action. It would appear that there is not sufficient showing of refusal here. Although the regional director mentioned the scope of plaintiffs’ business, it may well have been that his investigation revealed the facts as found by the court, that none of plaintiffs’ employees desired representation by the unions and hence an election would be futile. Also the director said that no action would be taken at “this time” implying that *675 a change of conditions might bring a different result or that the charge of an unfair labor practice, a condition the court here found to exist, might result in board action. While it may have been that because of the smallness of the business here involved a representation election would not be ordered by the board and for the same reason a complaint for unfair labor practices would not be considered, it would appear that an effort should be made to have the board take jurisdiction of the precise question involved in the state court action, rather than the side issue of representation, before it may be said the board has refused to assume jurisdiction. That precise question is whether there has been an unfair labor practice for which a remedy may be obtained. We said in hi re De Silva, 33 Cal.2d 76, 78 [ 199 P.2d 6 ] : “No distinction may be made here because the National Labor Relations Board had denied the company’s petition for certification of a union representative. By the denial the board did not divest itself of jurisdiction to determine whether the defendants were committing unfair labor practices affecting interstate commerce which should be enjoined pursuant to the procedure provided by the act. Its exclusive jurisdiction over that matter had not been invoked by the plaintiffs.”
Furthermore, there is also an insufficiency of a showing that the board would not act, in that, as pointed out by the regional director, plaintiffs could have appealed the dismissal of their representation petition to the national board in Washington, D. 0. This they did not do. The dismissal may have been reversed. “There is no doubt that the administrative remedy is not exhausted where a party fails to appeal from an administrative decision to a higher tribunal within the administrative machinery, or, having filed an appeal, fails to await a determination thereon before his resort to the courts.” (42 Am.Jur., Public Administrative Law, §202; see Woodard v. Broadway Fed. Sav. & Loan Assn., 111 Cal. App.2d 218 [ 244 P.2d 467 ]; 2 Cal.Jur.2d, Administrative Law, § 187.) It is suggested, however, that an appeal would consume an amount of time that would render any remedy from the board ineffective, and that the criteria statement of the board above quoted indicates an appeal would be futile. Neither point has merit.
The delay is one of the incidents of the procedure before the board established by Congress to handle certain labor controversies. In a situation in which it was held that a federal court would not enjoin a state court from giving relief in a case under the Labor Management Relations Act *676 and the union had to follow the state action through the state appellate procedure and then apply to the Supreme Court, the court stated in regard to the delay caused by following the state appellate procedure, “Misapplication of this Court’s opinions is not confined to the state courts, nor are delays in litigation peculiar to them. To permit the federal courts to interfere, as a matter of judicial notions of policy, may add to the number of courts which pass on a controversy before the rightful forum for its settlement is established. A district court’s assertion of equity power or its denial may in turn give rise to appellate review on this collateral issue. There may also be added an element of federal-state competition and conflict which may be trusted to be exploited and to complicate, not simplify, existing difficulties.” (Amalgamated Clothing Workers v. Richman Brothers, 348 U.S. 511 [ 75 S.Ct. 452, 457 , 99 L.Ed. 600 ].)
The statement of criteria is no more reason to declare that an appeal to the board would be futile than that it makes an application to the regional director unnecessary. The same reasons, that is, that there should be a final determination by the director and board before it can be said the board has refused to exercise its jurisdiction, apply to the necessity for an appeal. The board as such has not acted until an appeal is taken and determined. The essence of state jurisdiction if the board refuses to act is an unequivocal final determination by the board that it will not act. Indeed, the board may on appeal determine that a representation election, the only thing asked by plaintiffs, is not appropriate because none of their employees belong or desire to join the union rather than that the policies of the federal law will not be effectuated by taking jurisdiction. As heretofore pointed out, the United States Supreme Court has in effect held that a general criteria statement is not enough to amount to a refusal by the board to take jurisdiction. (Building Trades Council v. Kinard Const. Co., supra, 346 U.S. 933 .)
In the foregoing discussion I have assumed that the majority adheres to the state law as stated in Park & Tilford. I. Corp. v. International etc. of Teamsters, quoted supra, 27 Cal.2d 599 , and the many cases there cited, and I trust there is no thought of overruling those cases without saying so although it applies the federal law by using the ritual of unlawful purpose, † However, it is not clearly pointed out *677 that under our law the purpose of the picketing here involved is not unlawful or that the court is applying the federal law only because interstate commerce is affected.
The judgment should be reversed.
Gibson, C. J., and Traynor, J., concurred.
Appellants’ petition for a rehearing was denied December 28, 1955. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.
That is clearly the law. (Weber v. Anheuser-Busch, Inc., 348 U.S. 468 [ 75 S.Ct. 480 , 99 L.Ed. 546 ]; Garner v. Teamsters, Chauffeurs, & Helpers Union No. 776, 346 U.S. 485 [ 74 S.Ct. 161 , 98 L.Ed. 228 ]; United Const. Workers v. Laburnum Const. Corp., 347 U.S. 656 [ 74 S.Ct. 833 , 98 L.Ed. 1025 ]; Building Trades Council v. Kinard Const. Co., 346 U.S. 933 [ 74 S.Ct. 373 , 98 L.Ed. 423 ].)
We have neither statute nor agency covering the field.
Picketing for an unlawful purpose may be enjoined under state law; the purpose here is unlawful under the federal law, and hence enjoinable, but is lawful under state law and therefore not enjoinable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9600414. Public record. Not legal advice.