Petition — Ponciano v. United Farm Workers Organizing Committee
Supreme Court brief1976
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Supreme Court of the United States
October Term, 1975
NO. Sm ] 8 5 6
LARRY PONCIANO, et al.,
Petitioners,
vs.
UNITED FARM WORKERS ORGANIZING COMMITTEE,
et al.,
Respondents.
Petition for a Writ of Certiorari to the Court of Appeal
of the State of California, Fifth Appellate District.
Rex H. REED,
8316 Arlington Boulevard, Suite 600,
Fairfax, Virginia 22038,
RICHARD B. ISHAM,
1441 S. Mooney Boulevard, Suite B,
Visalia, Calif. 92377,
JONATHAN C., GIBSON,
707 Broadway, Suite 1212,
San Diego, Calif. 92101,
Counsel for Petitioners.
Dated: June 22, 1976.
Parker & Son, Inc., Law Printers, Los Augeles. Phone 724-6622
SUBJECT INDEX
Page
Ie BD ices pseinacsneeciniiniaieaniandeapeaiacnnmientiencine 2
BI siiicsiccsiaslticticnsostiiamenitnhskininigbonsssidaisiaiapaasiadalaisl 2
I I ooistietrtresteincetceenciinnian 2
Constitutional and Statutory Provisions Involved .... 3
I GE Fe Ga scdnccecnteasonittcenicinniniesdaniinitibiinic 4
Reasons for Granting the Writ ........................0000000- 5
I
Decision Below Is Contrary to Decisions of This
III: suvsecssiiicinseiieesetineieniitaibideihebiiadiantisledieiildataiiii 5
1. California Has Taken State Action by
Authorization, Protection and Encourage-
I ar ee I viececilintesatianerninciesninciniicnss 5
2. Government Compulsion Not Necessary
Element of State Action .......................04. 6
3. Authorization by State Statute Constitutes
Governmental Action ...............022..s0-sccccsess 8
4. Other Cases Hold Official Authorization
of Private Conduct Constitutes State Ac-
a a al 13
5. Compulsory Full Union Membership Vio-
lates Constitutionally Protected Right to
EE“ cecieidldseinisiitaithilstiiinsmiisiitilesiasemienitidapebinie 15
6. Compulsory Full Union Membership Vio-
lates Freedom of Association .................... 17
il.
II Page
Case Presents Important Question of Constitution-
al Law Which Should Be Settled by This Court
1. Freedom of Association and Right to
Work Are Internationally Recognized .... 19
Ill
Case Presents Issue of Major Public Importance .. 21
I Sat a hs a a Ee 8 en 22
INDEX TO APPENDICES
Appendix A. Opinion of the Court of Appeal ....
Appendix B. Order of the Supreme Court of the
State of California Denying Petition for Hearing... 4
Appendix C. Opinion of the Court of Appeal in
Case Principally Relied Upon by Court Below,
Gabaldon v. United Farm Workers Organizing
Committee, 35 Cal.App.3d 757 (1973), hg.
denied, Cal.Sup.Ct. Jan. 31, 1974, cert. den.,
a Ey I IE series cicenscicsnitnsiicnhecanedainaeniciaiinine 5
Appendix D. Principal Constitutional and Statu-
tory Provisions Involved ......................cccceeeceeeeeeee 19
Federal Statutory Provisions ..................000000000..... 20
II iscniniisvsnintciesiveneienchanteniieveesetene 20
Union Shop Provisions of the Railway Labor Act
LEAMA La rh ae OER Oe Pe NNR ae NR 21
Union Shop Provisions of the National Labor
I IEEE Swsiceissbasitntieninssuaniiibtninaiienieiiaiitbndiebnainundes 24
California Statutes Authorizing, Encouraging and
Protecting Full Union Shop ........0000.000000000...... 25
iii.
TABLE OF AUTHORITIES CITED
Cases Page
American Communications Ass’n v. Douds, 339
kg REET RR Sn res Se 7
Anderson v. Martin, 375 U.S. 399 (1964) .............. 7
Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401
EE ccdachiusinscntiian ahaa aetna dhataiatibacidaiiaieadeiurninaeien 7
Bates v. Little Rock, 361 U.S. 516 (1960) .............. 17
Board of Education ». Barnette, 319 U.S. 624
I ea a enlinionanion 18, 19
Burton v. Wilmington Parking Authority, 365 U.S.
i ceria 7
Chavez v. Sargeant, 52 Cal.2d 162, 339 P.2d 801
RRA IRI SA aoe De RL 5, 8
Cummings v. Missouri, 71 U.S. (4 Wall.) 277
ra See a ae 15
DeJonge v. Oregon, 299 U.S. 353 (1937) .....2222..... 18
Elfbrandt v. Russell, 384 U.S. 11 (1966) -............... 18
Gabaldon v. United Farm Workers Organizing
Committee, 35 Cal.App.3d 757 (1973), hg. den.,
Cal.Sup.Ct. Jan. 31, 1974, cert. den., 416 U.S.
BE INE sccniensinetelenpenniswmiiiicins wii 6, 7, 10, 12, 14
Garland, Ey Parte, 71 U.S. (4 Wall.) 333 (1867) .. 15
Gibson v. Florida Investigation Committee, 372 U.S.
a selneeieeiiesiemeinsioniaiiadih 18
Griffiths, In Re, 413 U.S. 717 (1973) ..........0002...... 16
Griswold v. Connecticut, 381 U.S. 479 (1965) .... 18
Hebert v. Louisiana, 272 U.S. 312 (1926) .............. 11
International Association of Machinists v. Street,
£ | £; ) 8, 13, 20
Keyishian v. Board of Regents of New York, 385
EOE D sinvwicrensesdsetneneintcnuisianiandenmevebseoseees 18
iv.
Page
Louisiana v. NAACP, 366 U.S. 293 (1961) ............ 18
Marsh v. Alabama, 326 U.S. 501 (1946) ............ 7, 8
McCabe v. Atchison, T. & S.F. R. Co., 235 US.
BSE CUBES) ccnccccovccsvecedueieumeteneneiianniieaaan 8, 13
Mendoza v. United Farm Workers Organizing Com-
mittee, 487 F.2d 311 (9th Cir. 1973), cert. den.,
412 U.S. DIS CIDTE) —ncconcsncsvsssnaneee 6,
Meyer v. Nebraska, 262 U.S. 390 (1923) 00000000.
Minnesota Ex Rel. Pearson v. Probate Court, 309
Ue. 27 CDG) cccevcesccccececcpsesceniseeeeee
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)
NAACP v. Alabama, 357 U.S. 449 (1958) ............
NAACP vy. Button, 371 U.S. 415 (1963) ........ wl,
NLRB v. General Motors Corp., 373 U.S. 734
( BDGS ) ..ececccsesecsercsessncnsnnssniseneninnnnnnnnnnnnnnnn
Otten v. Baltimore & O. R. Co., 205 F.2d 58 (2d
CB. EGGS) .cnccceccococeccccesoncensassunesiinniennnnE
Pappas v. Stacey, 151 Me. 36, 116 A.2d 497, appeal
Gismissed, 350 U.S. 870 (1955) ....ccocccccccsssecoesenss
Public Utilities Commission v. Pollack, 343 U.S. 451
oo) ee eee -cooneennhenmanie
Railway Employe.*’ Dept., AFL v. Hanson, 351
J.D S20 CEGSOD —cacicssscosssssneeee 7, 8, 9, 10,
Reitman v. Mulkey, 587 U.S. 369 (1967) .0.0000000...
coccooceseseséunstontenanasensnbulnanenninnnnnnn 7, 13, 14,
Retail Clerks Union v. Superior Court, 52 Cal.2d
222, 339 P.2d S39 (IGRP). «cue 6,
Robinson v. Florida, 378 U.S. 153 (1964) .000000000..
Schneider v. Smith, 390 U.S. 17 (1968) o000000
Shelton v. Tucker, 364 U.S. 479 (1960) | 0.000.000...
12
15
v.
Page
Slochower v. Board of Education, 350 U.S. 551
BL IE ES 15
Smith v. Allwright, 321 U.S. 649 (1944) —.............. 7
Smith v. Texas, 233 U.S. 630 (1914) _.........000...... 15
Stephenson v. City of Palm Springs, 52 Cal.2d 407,
IE ED © BUI D occ ccceccnccccsercccccccsccconceee 5,6, 8
Sugarman v. Dougall, 413 U.S. 634 (1973) ............ 16
Takahashi v. Fish and Game Commission, 334 U.S.
ee nnnecennen Be
Terry v. Adams, 345 U.S. 461 (1953) -................... 7
Truax v. Raich, 239 U.S. 33 (1915) ........................ 16
United States v. Carver, 260 U.S. 482 (1923) ....... 7
United States v. Guest, 383 U.S. 745 (1966) -......... 7
United States v. Robel, 389 U.S. 258 (1967) .......... 18
Wicks v. Southern Pacific Co., 231 F.2d 130 (9th
Cir. 1956), cert. den., 351 U.S. 946 .........00......... 12
Wieman v. Updegralf, 344 U.S. 183 (1952) ............ 15
Williams v. Rhodes, 393 U.S. 23 (1968) -............... 18
Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............. 15
Statutes
California Business and Professions Code, Sec.
EES Se 3
California Constitution, Art. 1, Sec. 26 ............... 13
California Labor Code, Secs. 920-923 ~................. 5
California Labor Code, Secs. 921-923 —................ 3
California Labor Code, Sec. 1011 .~...............2....... 3
California Labor Code, Sec. 1012 -........2....2.222..... 3
California Labor Code, Secs. 1015-1018 -............ 3
California Labor Code, Sec. 1115. ........................ 5
=
Vi.
Page
California Labor Code, Sec. 1122 ..0..0.0.00002.0002..-. 5
California Labor Code, Sec. 1126 .2.0....0000000....00.. 3
Labor Management Act of 1947, 29 U.S.C., Sec.
SISTINE > ‘itdctackacshunlaatiumesiimadibindindiemansitnamaamaamenie 8
Railway Labor Act, 45 U.S.C., Sec. 2, Fourth ...... 12
Railway Labor Act, 45 U.S.C., Sec. 2, Fifth —......... 12
Railway Labor Act, 45 U.S.C., Sec. 2, Eleventh
juntinietiniiaiiltahialviildidiiaiaddaasaa dana canis dae aetna 11, 12
Railway Labor Act, 45 U.S.C., Sec. 152, Eleventh
sccentecitgiteaiagi ills Nice In a i ea ae 8, 9, 20
Railway Labor Act, 45 U.S.C., Sec. 152, Eleventh,
SOU, GRR sasinchaaisscssidiiiciaimneidabmnigaeeticamianedinieapeneaaconeel 7)
Railway Labor Act, 45 U.S.C., Sec. 152, Eleventh,
ST SR <nisisinaetnsddnaliniababeeiiatcaesaitaiaenemtabeanaedieanas ite 9
United States Code, Title 28, Sec. 1257(3) ........ 2
United States Code, Title 29, Sec. 158(a)(3) .... 20
United States Code, Title 42, Sec. 1983 ...... a oe
United States Constitution, First Amendment ....2, 3
United States Constitution, Fifth Amendment ....2, 2
United States Constitution, Ninth Amendment ..2, 3
United States Constitution, Fourteenth Amendment
snnnneinebiataninitdmialiibas dsginmaimmsmnnials 2, 3, 4, 11, 16
Texts
Declaration of Human Rights of the United Nations
Fie: FUNG GOP sesevicsiscceneteccnngtesennsubasmseabamadaniaaaime 20
Declaration of Human Rights of the United Nations
Ces Se, Meee I © Setcvbichetistcaeccoamesusians ‘cua
5 Lenhoff, The Problem of Compulsory Unionism
in Europe, The American Journal of Comparative
Law, Winter 1956, No. 1, pp. 18-43 _ 20.20.0000... 19
IN THE
Supreme Court of the United States
October Term, 1975
I sidilaenaiesceisinne
LARRY PONCIANO, et al.,
Petitioners,
vs.
UNITED FARM WORKERS ORGANIZING COMMITTEE,
et al.,
Respondents.
Petition for a Writ of Certiorari to the Court of Appeal
of the State of California, Fifth Ajpellate District.
The petitioners, Larry Ponciano, Mary Delay, Albert
Martinez, Hazel Hernandez, Bob Elaydo, Gloria Muro,
Ofira Gracia, and Yolanda Silva, respectfully pray
that a writ of certiorari issue to review the final
judgment and opinion of the Court of Appeal of
the State of California for the Fifth Appellate District,
an intermediate appellate court, entered in this proceed-
ing on January 26, 1976, a copy of the opinion
being attached hereto marked Appendix “A”. Review
was denied by the Supreme Court of California in
an order dated March 24, 1976 denying a petition
for hearing (App. “B”).
a
Opinion Below.
The opinion of the Court of Appeal dated January
26, 1976 set forth in Appendix “A”, affirmed the
judgment of the Superior Court of Kern County, Cali-
fornia, which had sustained a demurrer on two grounds,
namely (1) the provisions of the collective bargaining
agreements have been declared not to violate any rights
of the federal or state constitutions; and (2) they
have been declared not to involve any “state action”
by California, and therefore “plaintiffs cannot invoke
the protection of the federal constitution.”
Jurisdiction.
This petition for a writ of certiorari is being filed
within ninety days of the time of final judgment of
the Court of Appeal. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1257(3).
Questions Presented.
1. Does a union shop agreement between employer
and union requiring full membership in the union
by all employees, coupled with an exclusive union
hiring hall, and forbidding everything regarded by the
union as anti-union activity, where such agreement is
entered into under the statutory and common law of
the state, violate the First, Fifth, Ninth and Fourteenth
Amendments to the Constitution of the United States
and the statute, 42 U.S.C. § 1983, making liable every
person who under color of any statute, custom or
usage of a state deprives another person of any rights,
privileges, or immunities secured by the Constitution?
2. Is there governmental action by California where
compulsory full membership in the union is required
mney,
as ern
onlin:
by an agreement between union and employer author-
ized, encouraged, protected and made enforceable at
law and in equity under the statutes of the state,
as well as under its common law, both as expressly
so construed to that effect by the highest court of
the state?
3. Does the case present important questions of
constitutional lzw which should be settled by this
Court?
4. Does the case present an issue of major public
importance?
Constitutional and Statutory Provisions Involved.
Petitioners invoked in the Superior Court and in
the Court of Appeai the protection of their rights
under the First, Fifth, Ninth and Fourteenth Amend-
ments to the Constitution of the United States. They
also invoked 42 U.S.C. § 1983, making every person
who under color of any statute, custom or usage of
a state deprives another person of any rights, privileges,
or immunities secured by the Constitution, liable to
the party injured in an action at law or suit in equity.
Petitioners claimed that they were subjected to injury
and damages by the respondents acting under the
Labor Code of California, §§ 921-923, 1011, 1012,
1015-1018, and 1126, the Business and Professions
Code of California, § 16703, as well as by the common
law of the State, all as authoritatively interpreted by
the Supreme Court of California, its highest court.
The constitutional and statutory provisions named
above appear at pages 19-29 of the Appendix.
a
Statement of the Case.
Petitioners are farm workers employed in the vine-
yards of respondent growers. They brought a class
action in the Superior Court of Kern County, California
against the employers and the union. They sought
relief because of an agreement between the employers
and the union requiring compulsory full union member-
ship as a condition of employment, asking for an
injunction, for declaratory relief and for damages. They
allege that the full union membership requirement is
accompanied by other harsh, arbitrary and illegal condi-
tions, including (1) an exclusive union hiring hall,
(2) priority of employment of strikers, and (3) the
right of the union to force the discharge of any employee
who is determined by the union to be engaged in
anti-union activities.
Plaintiffs allege that the union at no time has repre-
sented a majority or a substantial proportion of the
workers involved. They allege that they and members
of their class have been threatened with discharge
from employment, have, in fact, been discharged, de-
moted, subjected to job classification, discrimination
and transfer, and have been refused employment by
reason of the enforcement of the union shop contract.
They also allege violation of the constitutional pro-
visions already mentioned, and both in the Superior
Court and the Court of Appeal they invoked the
Equal Protection Clause of the Fourteenth Amendment.
-—5—
REASONS FOR GRANTING THE WRIT.
I
Decision Below Is Contrary to Decisions of This Court.
1. California Has Taken State Action by Authorization, Pro-
tection and Encouragement of Union Shop.
In concluding that California has taken a position
of benign neutrality towards the union shop and has
in effect left it unregulated, the Court of Civil Appeal
below has gone squarely contrary to the interpretation
by the Supreme Court of California of §§ 920-923,
1115, 1122, and other provisions of the Labor Code
of the State. The highest court of the state in Chavez
v. Sargeant, 52 Cal.2d 162, 559 P.2d 801 (1959),
said that the state laws “continue to permit, to encourage
and to protect collective bargaining agreements which
* * * must include reasonable union security clauses
* * *” 52 Cal.2d at 196-97. It condemned the
county right to work ordinance there in issue because
it contravened “the legislatively declared state-wide pol-
icy” to authorize negotiations for union security’ (52
Cal.2d at 213-14).
Similarly, the highest state court held in Stephenson
v. City of Palm Springs, 52 Cal.2d 407, 340 P.2d
1009 (1959), that a city ordinance prohibiting closed
and union shop agreements was invalid because it
was in conflict with the state Labor Code:
“It is the announced intention of the Palm Springs
ordinance (§ 2920) ‘to prohibit closed shop and
“Union security agreement” is a general term covering various
arrangements such as the closed shop, the union shop and the
agency shop under which workers are forced into a union as a
condition of employment or are forced to support it financially.
—_ =
union shop agreements of any type which are
neither prohibited nor authorized by state laws.’
But this stated intention * * * is immediately
contravened by the fact that * * * the subject
ordinance purport|s] to declare that all closed
and union shop agreements are illegal, void, and
criminal, whereas under state law (Lab. Code,
S$ 920-923, 1115-1122, 1126) * * *, such agree-
ments are encouraged and protected.” 340 P.2d
at 1010.
In the two cases just cited, as well as in Retail
Clerks Union v. Superior Court, 52 Cal.2d 222, 226,
339 P.2d 839 (1959), the Court held invalid city
and county right to work ordinances because of conflict
with the common law and the statutory law of the
state.
2. Government Compulsion Not Necessary Element of State
Action,
The principal ground of decision in the court below
was that state action was not present in the execution
and enforcement of the urion shop agreement because
California had not compelled such action. In so hold-
ing, its principal reliance was upon its own previous
decision in Gabaldon v, United Farm Workers Organiz-
ing Committee, 35 Cal.App.3d 757 (1973), hg. den.,
Cal.Sup.Ct. Jan. 31, 1974, cert. den., 416 U.S. 957
(1974), and the decision of the Court of Appeals
for the Ninth Circuit in Mendoza v. United Farm
Workers Organizing Committee, 487 F.2d 311 (9th
Cir. 1973), cert. den., 412 U.S. 918 (1974). But
this Court is obviously not precluded by the denial
of review by the Supreme Court of California. Nor
is it precluded by its own denial of certiorari in Gabal-
——
oz
don and Mendoza. This Court has frequently held that
the “denial of a writ of certiorari imports no expres-
sion of opinion upon the merits of the case, as the
bar has been told many times.” United States v. Carver,
260 U.S. 482, 490 (1923); Atlantic Coast Line R.
Co. v. Powe, 283 U.S. 401, 403, 404 (1931).
This Court has held that governmental compulsion
is not an essential element of state action. Railway
Employees’ Dept., AFL v. Hanson, 351 U.S. 225,
231, 232 (1956); Reitman v. Mulkey, 387 U.S. 369,
379 (1967).
In Terry v. Adams, 345 U.S. 461 (1953), and
in Smith v. Allwright, 321 U.S. 649, 663-64 (1944),
the Court found governmental action in the exclusion
of Negroes from primaries of a private political organiza-
tion notwithstanding the circumstance, as stated in
Terry, that “no state law directed such exclusion.” 345
U.S. at 462.
Governmental regulation of a streetcar line permitting
but not requiring it to broadcast radio programs on
its cars was held to constitute governmental action
in Public Utilities Commission v. Pollack, 343 USS.
451 (1952).
The governing rule pronounced by this Court is
that sufficiently substantial participation by the state
is shown wherever it authorizes, permits, encourages,
or protects the practice or significantly involves itself
in its accomplishment. United States v. Guest, 383
U.S. 745 (1966); Robinson v. Florida, 378 U.S. 153
(1964); Anderson v. Martin, 375 U.S. 399 (1964);
Burton v. Wilmington Parking Authority, 365 US.
715 (1961); American Communications Ass'n _ v.
Douds, 339 U.S. 382, 401-402 (1950); Marsh v. Ala-
onlin
bama, 326 U.S. 501 (1946); McCabe vy. Atchison,
T. & S. F. R. Co., 235 U.S. 151 (1914).
3. Authorization by State Statute Constitutes Governmental
Action.
The decisions of the Supreme Court of California
in Stephenson, Chavez, and Retail Clerks Union men-
tioned supra, are closely analogous to Railway Em-
ployees’ Dept., AFL v. Hanson, supra, 351 U.S. 225,
231-32 (1956), where this Court considered whether
governmental action was present in a restricted form
of union shop agreement made pursuant to the Railway
Labor Act, 45 U.S.C. § 152, Eleventh. When that
Statute was enacted in 1926, it contained no provisions
with respect to compulsory union membership. When
it was extensively amended in 1934 it specifically pro-
hibited this arrangement. This action was taken largely
as the result of the recommendations of Joseph B.
Eastman, Federal Coordinator of Transportation, during
the great depression, who characterized any form of
compulsion of this sort as a “vicious practice.” /nt’l
Ass'n of Machinists v. Street, 367 U.S. 740, 752
(1961). In 1951, however, Congress following the
precedent set by the Labor Management Act of 1947,
29 U.S.C, § 168(a)(3), inserted in the Railway Labor
Act an amendment authorizing a carrier and a labor
organization to make an agreement requiring as a
condition of continued employment that all employees
shall become members of the labor organization repre-
senting their craft or class, except that no such agree-
ment shall impose such a requirement on employees
to whom membership is not available upon a non-
discriminatory basis, or with respect to whom member-
ship was denied or terminated for any reason other
than failure to pay the required dues, initiation fees,
a an
and assessments. 45 U.S.C. § 152, Eleventh. The amend-
ment specified that such an agreement “shall be per-
mitted * * * notwithstanding any other provisions
of this Act or of any other statute or law of the
United States * * * or of any state * * *.” It pre-
scribed in detail the way in which such an agreement
should be executed, differing in this respect from
state laws on the subject. Section 152, Eleventh, pars.
(b) and (c).
Counsel for the labor organizations seeking to sustain
the special form of union shop under attack there
advanced the same contentions about state action as
the court below here. They argued as one of their
principal defenses that the authorizing amendment was
a limitation upon the power of government, and not
a limitation upon the conditions that may be imposed
upon contracts between non-governmental parties. Con-
gress, they stressed, has not required union membership
by law and has not required the making of any union
shop agreements (351 U.S. 231-32). This Court over-
ruled those contentions, adding that neither lack of
such a mandatory requirement, nor the fact that inclu-
sion of a union shop clause in the collective bargaining
agreement was optional with the parties, demonstrated
the absence of governmental action, saying:
“The union shop provision of the Railway Labor
Act is only permissive. Congress has not compelled
nor required carriers and employees to enter into
union shop agreements * * *. The enactment
of the federal statute authorizing union shop agree-
ments is the governmental action on which the
Constitution operates, though it takes a private
agreement to invoke the federal sanction.” 351
U.S. at 231, 232.
=
The Court also held that governmental action was
present because the effect of the amendment was
to strike down the right to work provision of the
State constitution of Nebraska, where the litigation orig-
inated. 351 U.S. at 232. But it did more than that,
for the special kind of union shop authorized by the
federal statute was different from that of any of the
States and it superseded the laws on the subject of
all of them. Apparently for this reason the Court
held that congressional authorization of the agreement
was also conclusive evidence of state action.
Just as a state may not prohibit a railway union
shop agreement because the federal government has
occupied the field by authorizing such an arrangement,
so in California a county or a city may not pass
an ordinance banning such an agreement in other areas,
because the state has not only authorized the agree-
ment but has also approved, encouraged and protected
it and made it enforceable at law and in equity. The
state has obviously gone further than merely to occupy
the field with a policy of benign neutrality thereby
displacing county or municipal action on the subject.
It has struck down the local ordinances not on the
sole ground that the state had already occupied the
field, but also on the further ground that the city
and county action was in conflict with the statutes
of the state authorizing, approving, encouraging and
protecting the agreements, thus taking governmental
action equally as strong, if not stronger, than the
one considered by the federal court to be sufficient
in Hanson which merely permitted the arrangement.
The court below in Gabaldon went to considerable
length in attempting to draw distinctions between that
case and Hanson. None of them are valid.
anlttinn
First, it indicated that § 2, Eleventh was enacted
for the purpose of superseding inconsistent right to
work laws in seventeen states which then prohibited
union shops. But it ignored the fact that the federal
statute was of such a unique character that it super-
seded all state laws on the subject.
Second, it said that the California statute, which
has been interpreted to occupy the field and thus
preempt inconsistent right to work ordinances, does
not, as the Railway Labor Act, expressly refer to
union shops. The short answer here is that the Supreme
Court of California had interpreted those state statutes
as authorizing, encouraging and protecting union shops,
and the construction given to a state statute by the
highest court of the enacting jurisdiction is conclusive.
NAACP vy. Button, 371 U.S. 415, 432 (1963); Minne-
sota Ex Rel. Pearson v. Probate Court, 309 U.S. 270
(1940); Hebert v. Louisiana, 272 U.S. 312, 317
(1926). It was clearly inadmissible for an_ inter-
mediate Court of Appeal to overrule the construction
of the state statute by the Supreme Court of the state.
Third, the Court pointed out that the union shop
has always been lawful in California, and any ap-
proval given to it by the lower court did not change
the traditional policy of the state. But the California
Supreme Court relied primarily upon the provisions
of the Labor Code, and if those provisions deprived
the plaintiffs of their rights under the federal constitu-
tion the deprivation necessarily flowed in part from
the Labor Code so relied upon. Moreover, the Four-
teenth Amendment was passed to override the depriva-
tion of federal constitutional rights not only by state
statutes but also by their common law as well as
= =
by any of their ordinances, regulations, customs or
usages. It was not confined to the protection of these
rights of black citizens, but was deliberately made
universal in scope. Again, 42 U.S.C. § 1983 imposes
liability on every person “who, under color of any
statute, ordinance, regulation, custom or usage of any
State * * * subjects * * * any citizen * * * to
the deprivation of any rights, privileges or immunities
secured by the Constitution.” While the common law
of the state is not singled out for separate mention
under this statutory provision, it may hardly be doubted
that it has equal force with custom or usage.
Fourth, the lower court in Gabaldon relied upon
Otten v. Baltimore & O. R. Co., 205 F.2d 58 (2d
Cir. 1953), and Wicks v. Southern Pacific Co., 231
F.2d 130 (9th Cir. 1956), cert. den. 351 U.S. 946,
two cases which held that § 2, Eleventh of the Railway
Labor Act did no more than to repeal pro tanto
§ 2, Fourth and Fifth of RLA. But those cases were
overruled sub silentio in Hanson; they were based upon
the erroneous theory that the subsequent statute did
nothing more than this when, as already shown, it
authorized throughout the United States a special form
of union shop unknown to the common law.
The distinctions attempted to be drawn by the Court
in Gabaldon between Hanson and a case like the
present one, were dissipated when the Supreme Court
came to decide a case raising issues in large part
the same as those presented in Hanson, and clearly
recognized that the attenuated form of union shop
authorized by § 2, Eleventh of the Railway Labor
Act raised issues beyond those in Hanson relating to
payments for defraying the costs of collective bargaining
which constituted constitutional questions of the utmost
—
gravity. International Asssociation of Machinists v.
Street, 367 U.S. 740, 749 (1961). They are for the most
part the issues raised by the case at bar.
4. Other Cases Hold Official Authorization of Private Conduct
Constitutes State Action.
In McCabe v. Atchison, T. & S.F. R. Co., 235
U.S. 151 (1914), the Court held that state authorization
of private conduct constitutes state action for constitu-
tional purposes.
More recently, this Court in a consolidated case,
Reitman v. Mulkey, 387 U.S. 369, 379 (1967), consid-
ered the complaints of two Negro couples who claimed
that they had been discriminated against in housing.
The first couple had concededly been discriminated
against when refused the lease of an available apart-
ment. The second was brought by a couple seeking
to enjoin eviction frem their apartment allegedly because
of the race of the husband. In both cases, the acts
of discrimination were by private parties who sought
to justify their conduct by Article I, § 26, incorporated
in the Constitution of California through approval by
the voters of Proposition 14 in the General Election
of 1964, providing that neither the state nor any of
its agencies shall abridge the right of any person to
sell, lease or rent his residential property to such person
as he chooses. The immediate and direct purpose of
Proposition 14 was to reinforce the constitutional rights
of owners of real property. The real if indirect purpose
was to enable property owners to avoid compliance
with the Rumford and Unruh Acts directed against
racial discrimination. The Supreme Court of California
held state action to be present because it has been
consistently found where the state in any meaningful
yo
way has lent its processes to the achievement of dis-
crimination. This Court affirmed saying in part:
“The assessment of § 26 by the California court
is similar to what this Court has done in appraising
State statutes or other official actions in other
contexts. In McCabe v. Atchison, Topeka & Santa
Fe R. Co. * * * the Court dealt with a statute
which * * * authorized carriers to provide cars
for white persons but not for Negroes. * * *
!f}he Court made it clear that such a statute
was invalid under the Fourteenth Amendment be-
cause a carrier refusing equal service to Negroes
would be ‘acting in the matter under the authority
of a state law.’ This was nothing less than consid-
ering a permissive state statute as an authorization
to discriminate and as sufficient state action to
violate the Fourteenth Amendment in the context
of that case.” 387 U.S. at 379.
The lower court in Gabaldon considered the later
case of Moose Lodge No. 107 v. Irvis, 407 USS.
163 (1972) as being to the contrary and as governing.
But this Court in Moose Lodge cited with approval
its decision in Reitman v. Mulkey, supra, and clearly
idicated that there was no intention to overrule the
holding there made, saying:
“Our holdings indicate that where the impetus
for the discrimination is private, the State must
have ‘significantly involved itself with invidious
discriminations, Reitman v. Mulkey, * * * in
order for the discriminatory action to fall within
the ambit of the constitutional prohibition.” 407
USS. at 173.
anti
A little later on, the Court distinguished the ruling
of the Court in Moose Lodge from that in Reitman
v. Mulkey in a way connoting approval of both of
them as not only right but consistent with one another,
saying:
“However detailed this type of regulation [in
Moose Lodge] may be in some particulars, it
cannot be said to in any way foster or encourage
racial discrimination.” 407 U.S. at 176, 177.
5. Compulsory Full Union Membership Violaics Constitution-
ally Protected Right to Work.
Freedom of opportunity to engage in the common
occupations of life is a fundamental constitutional right
secondary in importance only to the right to life.
All save for a small fraction of mankind must work
for a living and denial of the opportunity to earn
a livelihood is one of the gravest infringements on
the liberty of the individual, Every man has an inherent
right to an opportunity to seek and retain the gainful
employment which he desires, for which he may be
fitted, and which is available in a free society and
in an economy of free enterprise. Just as it may
not be wholly denied, the right to work may not
be fettered by artificial and unnecessary restrictions
or the imposition of unreasonable or arbitrary conditions
such as a requirement of union membership.
Cummings v. Missouri, 71 U.S. (4 Wall.) 277
(1867); Ex Parte Garland, 71 U.S. (4 Wall.) 333
(1867); Yick Wo v. Hopkins, 118 U.S. 356 (1886);
Meyer v. Nebraska, 262 U.S. 390 (1923); Takahashi
v. Fish and Game Commission, 334 U.S. 410 (1948);
Wieman v. Updegraff, 344 U.S. 183 (1952); Slochower
v. Board of Education, 350 U.S. 551 (1956); Smith
v. Texas, 233 U.S. 630, 636, 638 (1914).
niin
In Truax v. Raich, 239 U.S. 33 (1915), this Court
affirmed an injunction against the enforcement of a
state quota law which deprived alien restaurant workers
of their right to work. Mr. Justice Hughes in holding
that the prescribed quota contravened the Fourteenth
Amendment, declared:
“It requires no argument to show that the right
to work for a living in the common occupations
of the community is of the very essence of the
personal freedom and opportunity that it was the
purpose of the Amendment to secure.” 239 U.S.
at 41.
The opinion of Mr. Justice Hughes in that case was
relied upon by the Court in Sugarman v. Dougall,
413 U.S. 634 (1973), in sustaining an injunction
against the enforcement of a section of the New York
Civil Service law disqualifying resident aliens from
employment. The Court stated:
“It is established, of course, that an alien is
entitled to the shelter of the Equal Protection
Clause. * * * This protection extends, specifi-
cally, in the words of Mr. Justice Hughes, to
aliens who ‘work for a living in the common
occupations of the community.’ Truax v. Raich,
239 U.S. at 41.” (413 U.S. at 641).
In a second recent case, Jn Re Griffiths, 413 U.S.
717, 719, 720 (1973), the principle of Truax v.
Raich was likewise relied upon by the Court in striking
down a rule of a state court refusing an alien the
right to engage in the practice of the law.
— =
6. Compulsory Full Union Membership Violates Freedom of
Association.
The freedom of association is a fundamental right
guaranteed by the Constitution of the United States.
It is a composite right derived from freedom of speech,
freedom of assembly, freedom of petition, as well as
the general right to liberty of action. It accords
to the individual the right to order his life as he
sees fit, to choose his occupation, his place of employ-
ment, and what, if any, political party, fraternal order,
club, union or other private organization he will join
and support.
This Court has repeatedly declared that the right
of association is not only guaranteed by the Federal
Constitution, but is one of the most fundamentally
important of the rights secured by that instrument.
In Bates v. Little Rock, 361 U.S. 516 (1960),
the Court said:
“Like freedom of speech and a free press, the
right of peaceable assembly was considered by
the Framers of our Constitution to lie at the
foundation of a government based upon the consent
of an informed citizenry—a government dedicated
to the establishment of justice and the preservation
of liberty. U. S. Const., Amend. I. And it is
now beyond dispute that freedom of association
for the purpose of advancing ideas and airing
grievances is protected by the Due Process Clause
of the Fourteenth Amendment from invasion by
the States.” 361 U.S. at 522-523.
= =
Many cases are to the same effect. United States
v. Robel, 389 U.S. 258, 263 (1967); Keyishian v.
Board of Regents of New York, 385 U.S. 589 (1967);
Elfbrandt v. Russell, 384 U.S. 11, 18 (1966); Williams
v. Rhodes, 393 U.S. 23, 30-31 (1968); Schneider
v. Smith, 390 U.S. 17 (1968); Griswold v. Connecticut,
381 U.S. 479 (1965); NAACP v. Button, 371 US.
415 (1963); Gibson v. Florida investigation Commit-
tee, 372 U.S. 539, 543-544 (1963); Louisiana vy.
NAACP, 366 U.S. 293 (1961); Shelton v. Tucker,
364 U.S. 479 (1960); NAACP v. Alabama, 357 U.S.
449 (1958); DeJonge v. Oregon, 299 U.S. 353, 364
(1937).
If men are to be free to join unions, they must
also be free not to join. They have not merely the
right of association, which might narrowly be construed
to give them the right to join an organization of
their choice. But the freedom of association is broader.
It gives the right to the individual to choose—to
elect to join or not to join available organizations.
Unless he is free not to join he has no real freedom
of association at all, but merely a duty or obligation
to join an organization selected not by himself but
by others, which is the essence of coercion and the
very antithesis of the freedom of choice of the individual
which is the core of American constitutional liberty.
The right to be free from a requirement to join a
union as a condition of employment is an essential
ingredient of the freedom of association just as freedom
of speech includes freedom to remain silent. Board
= =
of Education v. Barnette, 319 U.S. 624, 638 (1943).
As the Supreme Court of Maine declared in Pappas
v. Stacey, 151 Me. 36, 116 A.2d 497, appeal dismissed,
350 U.S. 870 (1955):
“Freedom to associate of necessity means as well
freedom not to associate.” 116 A.2d at 500.
II
Case Presents Important Question of Constitutional Law
Which Should Be Settled by This Court.
1. Freedom of Association and Right to Work Are Inter-
nationally Recognized.
The recognition of the fundamental character of
the freedom of association and the right to work is
not confined to the United States. In country after
country in the free world, especially in Western Europe,
the right to work or the freedom of association, or
both, are embedded in the law and are held to invali-
date compulsory union membership. Lenhoff, The Prob-
lem of Compulsory Unionism in Europe, The American
Journal of Comparative Law, Winter 1956, Vol. 5,
No. 1, pp. 18-43. One recent exception is England,
but it has beer attended by disastrous consequences.
When after World War II the General Assembly
of the United Nations in 1948 promulgated its Decla-
ration of Human Rights, it took pains to reaffirm
those fundamental rights of man that had been violated
under totalitarian, Nazi and Fascist regimes in Germany
and Italy. It declared that they should not be permitted
in the future. Article 20 of the Declaration states
that:
— =
“1. Every one has the right to freedom of peace-
ful assembly and association.
2. No one may be compelled to belong to an
association.”
The right to work is expressly protected in § |
of Article 23 which reads:
“Every one has the right to work, to free choice
of employment, to just and favorable conditions
of work, and to protection against unemployment.”
The Declaration, of course, is not binding on this
Court. But it goes to show the far-reaching and world-
wide importance of these rights and the gravity of
their violation is a reversion to ancient tyrannies revived
under Nazism and Fascism.
The constitutional principles of freedom of association
and the right to work as enunciated by this Court
are in accordance with the enlightened conscience of
mankind. The lower standards authorized, permitted,
encouraged and protected under California law, cannot
be continued in force without going contrary to rights
and freedoms not only protected by the Constitution
of the United States, but also expressly declared by
the Declaration of Human Rights of the Unit.d Nations.
They are contrary also to the principles governing
the large body of employees covered by the National
Labor Relations Act, 29 U.S.C. § 158(a)(3), and
the Railway Labor Act, 45 U.S.C. § 152, Eleventh,
where the union shop is restricted to a requirement
for the payment of initiation fees and dues, and in
some cases assessments, to cover the costs of collective
bargaining and the settlement of grievances. /nt’l Ass'n
of Machinists v. Street, 367 U.S. 740 (1961): NLRB
v. General Motors Corp., 373 U.S. 734, 742 (1963).
—21—
Il
Case Presents Issue of Major Public Importance.
The California Court of Appeal in a decision denied
review by the Supreme Court of the State has enforced
a rule directly contrary to the decisions of this Court
on important questions of constitutional law. This Court
in case after case, for instance, has decided that where
private parties are acting under the authority of a
state or where their action presents some other form
of significant state involvement, governmental action
is present. The court below has decided to the contrary
in holding that governmental action is not present
unless the private parties are acting under compulsion
of the state. This question and the related questions
of violations of freedom of association and the right
to work are of too much importance in our national
life <> be left unsettled. They should be settled by
this Court in keeping with its past decisions.
The question whether a citizen of the United States
in modern times may be compelled against his will
to belong to a private organization as a condition
of employment and to be subject to its direction and
control in important matters affecting his livelihood,
is one of major public importance. It is sharply raised
in the case at bar.
Millions of employees, including agricultural workers
such as petitioners, as well as public employees, are
excluded for one reason or another from the coverage
of the two federal labor relations statutes, and the
protection of their fundamental rights is a matter of
serious national concern, and one justifying the inter-
vention of this Court.
— =
Conclusion.
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the Court of
Appeal, Fifth Appellate District of the State of Cali-
fornia.
Dated: June 22, 1976.
Respectfully submitted,
Rex H. REED,
RICHARD B. ISHAM,
JONATHAN C. GIBSON,
Counsel for Petitioners.
— ee ow ee
APPENDIX A.
Opinion of the Court of Appeal.
In the Court of Appeal of the State of California,
Fifth Appellate District.
Larry Ponciano et al., Plaintiffs and Appellants,
v. United Farm Workers Organizing Committee et al.,
Defendants and Respondents. 5 Civil No. 2419 (Sup.
Ct. No. 111447).
Filed: January 26, 1976.
APPEAL from a judgment of dismissal* of the
Superior Court of Kern County entered after sustaining
of the demurrer of defendants without leave to amend
Walter Osborn, Jr., Judge. Affirmed.
Rex H. Reed, Gibson & Kennerson, Jonathan C.
Gibson and Richard B. Isham for Plaintiffs and Appel-
lants.
Jerome Cohen, Barbara Rhine, Peter Haberfeld and
Deborah A. Volimer for Defendants and Respondents.
Plaintiffs appeal from an order’ sustaining a demur-
rer to their complaint without leave to amend.
*See footnote 1.
1An order sustaining a demurrer without leave to amend
is non-appealable. In the interest of the orderly administration
of justice, however, we decline to dismiss on that ground and
will order the trial court to enter a judgment of dismissal
nunc pro tunc and will treat the notice as a notice of appeal
from the judgment to be entered. (Evola v. Wendt Construction
Co. (1958) 158 Cal.App.2d 658, 660-661; Zellers v. State
of California (1955) 132 Cal.App.2d 56, 57.)
colin
The named plaintiffs are farm workers. The defend-
ant United Farm Workers Organizing Committee (here-
inafter “union”) is an unincorporated labor organiza-
tion, and the other defendants are major growers of
agricultural crops in the southern San Joaquin Valley
of California. In sum, plaintiffs seek to invalidate a
union shop provision in a collective bargaining labor
contract between the union and the growers on the
ground that it violates various constitutional rights ac-
corded to them by the United States Constitution. They
pray for damages, a declaration of rights and an injunc-
tion against enforcing the provisions of the contract.
This case is companion to Gabaldon v. United Farm
Workers Organizing Committee (1973) 35 Cal.App.3d
757 (hg. den. January 31, 1974, cert. den. (1974)
416 U.S. 957 [94 S.Ct. 1972; 40 L.Ed. 307]), which
was commenced against the same defendants, regarding
the same collective bargaining agreement and seeking
the same relief by different party plaintiff farm workers.
The case at bench therefore presents identical issues
as those that were before us in Gabaldon.
In what we thought to be a definitive opinion, the
court decided the Gabaldon case in favor of the defend-
ant union and growers on the ground that “
state action was not involved in the making or imple-
mentation of the collective bargaining contract between
the union and the growers [and] plaintiffs cannot
invoke the protection of the federal Constitution. . . .”
(35 Cal.App.3d at 768.)
aniun
Plaintiffs have presented no new authorities or issues.”
They merely re-present and reargue the same issues
and authorities thet were thoroughly briefed and dis-
cussed in Gabalden, and we consider that case and
the authorities therein dispositive.
The superior court is ordered to enter a judgment
of dismissal nunc pro tunc as of the earliest date
it could have been entered; the notice of appeal will
be deemed an appeal from said judgment, and said
judgment is affirmed.
/s/ Brown (Geo. A.), P. J.
We concur:
/s/ Gargano, J.
/s/ Carkeet, J.*
*It is true that in Gabaldon we expressed doubt “that plaintiffs
have sufficiently alleged action under color of state law .. .”
(Gabaldon v. United Farm Workers Organizing Committee,
supra, 35 Cal.App.3d at p. 762, fn. 4) and that in the case
at bench plaintiffs alleged what they considered to be state
action. However, we did not decide the Gabaldon case on
the ground of inadequate allegations of state action but assumed
those allegations to be present. The inclusion therefore of the
allegations of state action in the instant complaint, which we
assumed to be present in the Gabaldon action, does not change
the result herein.
*Retired judge of the superior court sitting under assignment
by the Chairman of the Judicia! Council.
a
APPENDIX B.
Clerk’s Office, Supreme Court
4250 State Building
San Francisco, California 94102
March 24, 1976
I have this day filed Order Hearing Denied.
In re: 5 Civ. No. 2419, Ponciano vs. United Farm
Workers Organizing Committee.
Respectfully,
G. E. Bishel
Clerk
— oe
APPENDIX C.
Opinion of the Court of Appeal.
In the Court of Appeal of the State of California,
Fifth Appellate District.
Josephine Gabaldon et al., Plaintiffs and Appellants,
v. United Farm Workers Organizing Committee et al.,
Defendants and Respondents. 5 Civil No. 1736 (Sup.
Ct. No. 70106).
Filed: December 4, 1973.
APPEAL from a judgment of the Superior Court
of Tulare County. John Locke, Judge. Affirmed.
Rex H. Reed, Gall, Lane, Powell & Kilcullen, John
L. Kilcullen, Gibson & Kennerson, Jonathan C. Gibson,
Jacobus, Isham & Humpal, Frederic A. Jacobus and
Richard B. Isham for Plaintiffs and Appellants.
Cohen, Farnswort’ Denison, Carder & Engelhardt
and Stephen Engelhardt for Defendants and Respond-
ents.
Plaintiffs appeal from a judgment on the pleadings
in favor of the defendants rendered on the ground
their complaint does not state facts sufficient to consti-
tute a cause of action.
A motion for judgment on the pleadings is treated
identically to a demurrer. (Welshans v. City of Santa
Barbara (1962) 205 Cal.App.2d 304, 305.) Conse-
quently, the facts alleged in the complaint must be
assumed to be true and liberally construed in favor
of the party against whom the motion is made. (Gill
v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275:
Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)
~~
The named plaintiffs are farm workers. The defend-
ant United Farm Workers Organizing Committee (here-
inafter “union”) is an unincorporated labor oganiza-
tion; the other defendants are 26 major growers (here-
inafter “growers” ) of agricultural crops in the southern
San Joaquin Valley. The plaintiffs commenced this
class action on behalf of themselves and others similarly
situated, alleging that on July 29, 1970, the union
and growers entered into a collective bargaining agree-
ment; they complain that some of the provisions of
the contract, hereinafter summarized, have deprived
the plaintiffs of their constitutional rights. It is alleged
that the union is designated as the sole collective bar-
gaining agent for the workers, although they do not
represent a “majority or substantial portion of the
agricultural workers including plaintiffs. . . .” It is
further alleged that plaintiffs “. . . for several years
have worked for and have been employed by defendant
growers on terms and conditions freely arrived at be-
tween themselves and said growers while enjoying the
freedom to work and contract individually with said
defendant growers without restraint, obstruction, inter-
ference or hindrance from any source.” The complaint
continues that plaintiffs are required to work under
the terms of the contract, among the requirements
of which are four provisions of which they make
special complaint. These in summary are:
(1) Membership in defendant union is a condition
of employment with defendant growers and that the
employees of the growers as of the date of the contract
must become members of the union within seven days
of the execution of the contract or suffer termination.'
‘Union security provisions similar to the one here involved
are often given different labels depending on the degree of
=
(2) Whenever any grower requires workers he shall
notify the union, which will use its best efforts to
furnish the required workers; if unable to do so, the
grower may then procure workers from other sources,
but they too must become union members within seven
days. The hiring clause of the contract provides referral
priority in the order of (a) strikers, (b) the growers of
prior employment, (3) new registrants.
(3) The union is given the right to require the
grow: ~ to discharge any worker whom the union charges
with antiunion activity when it presents to the employer
written evidence of such activity. The worker is given
the right to a hearing, but the union is granted the
power to make the final decision with respect to the
discharge.
(4) The grower is required to deduct or “check
off” union initiation fees, dues and assessments from
the empioyees’ wages upon presentation of the individual
authorization of the worker.
It is then alleged in substance that by virtue of
the execution of the contract, defendant union and
growers have and will continue to enforce the terms
of this contract, in violation of plaintiffs’ freedom
union security provided. A “union shop” provision, for example,
is one under which the employer is free to hire nonunion
employees but they must become employees within a specified
period of time. A “closed shop,” on the other hand, is one
under which all employees must be union members unless
the union is unable to furnish workers. If the union is unable
to furnish workers, the employer can get nonunion workers
but only if they become union members before the work com-
mences. (Chavez v. Sargent (1959) 52 Cal.2d 162, 177-178,
fn. 4.) Appellant characterizes the agreement herein as a “full
union shop” or one in between a “closed shop” and a “union
shop.” Regardless of the tag put on the clause of this collec-
tive bargaining agreement, it is basically a “union security
provision” and is treated almost identically to the others. (See
Chavez, supra, fn. 4.)
~~
of association, right to work, freedom to pursue the
occupation of their choice, freedom of thought, freedom
of political action, freedom from unwarranted invasion
of their right to privacy and other fundamental rights
and liberties in violation of their constitutional rights
secured under the First, Fifth, Ninth and Fourteenth
Amendments to the United States Constitution, and
sections 1, 9, 10 and 13 of article I of the California
Constitution;? and that as a consequence of the enforce-
ment of the agreement plaintiffs and members of the
class have been threatened with discharge, have in
fact been discharged, demoted, subjected to job classi-
fication, discrimination, transfer, and have been refused
employment.
Plaintiffs pray for damages in excess of $5,000,
a declaration of rights and responsibilities of all the
“Although appellants allege violation of rights under the Cali-
fornia Constitution, they made no serious argument in support
thereof in the trial court and have totaliy abandoned any
argument in support thereof on appeal, placing their sole reliance
upon the United States Constitution. This shift is probably
dictated by the fact that union security covenants have been
approved in California as a proper union objective. (C. S.
Smith Met. Market Co. v. Lyons (1940) 16 Cal.2d 389;
McKay v. Retail Auto S.L. Union No. 1067 (1940) 16 Cal.2d
311, cert. den. 313 U.S. 566; Petri Cleaners, Inc. v. Automotive
Employees etc. Local No. 88 (1960) 53 Cal.2d 455; Messner
v. Journeymen Barbers etc. International Union (1960) 53
Cal.2d 873; Shafer v. Ree’ tered Pharmacists Union (1940)
16 Cal.2d 379, 387; Stephenson v. City of Palm Springs (1959)
52 Cal.2d 407; Chavez v. Sargent, supra, 52 Cal.2d 162 (disap-
proved on other grounds, Petri Cleaners, Inc. v. Automotive
Employees etc. Local No. 88, supra, 53 Cal.2d 455, 475).)
Secondly, appellants desire to use such approval in support
of their position that such encouragement and protection con-
stitutes state action for the purpose of bringing them within
the protection of the federal Constitution. Whatever the reason,
since the California Constitution was not relied upon in the
brief or on oral argument, it will be treated as waived. (Coronet
Credit Corp. v. West Thrift Co. (1966) 244 Cal.App.2d 631,
641-642; 6 Witkin, Cal. Procedure (2d ed. 1971), Appeal,
§ 425, p. 4391.)
_
parties that the contract between the union and the
growers is void and, thirdly, for an injunction against
enforcing the provisions of the contract.
At the threshold we must determine if the cause
has become moot by reason of the expiration of the
contract between the union and growers of July 29,
1973.*
Events which occur during the pendency of an appeal
may cause a matter to be moot (Paul v. Milk Depots,
Inc. (1964) 62 Cal.2d 129; Callie v. Board of Super-
visors (1969) 1 Cal.App.3d 13), making it permissible
to dispose of the appeal on that ground. In the case
at bench, however, while the expiration of the contract
has rendered the cause moot as to the declaratory
and injunctive relief prayed for because no effectual
relief could be granted (See Paul v. Milk Depots,
Inc., supra, at pp. 132-133), the cause with respect
to damages during the term oi the contract is not
moot; we therefore proceed to consider the matter on
the merits with respect to the issue of damages only.
We turn to the controlling question of whether there
is sufficient state action or action under color of state
law to bring plaintiffs within the protection of the
United States Constitution inasmuch as that instrument
erects no shield against purely private conduct. (The
Civil Rights Cases (1883) 109 U.S. 3; Shelly v.
Kraemer (1948) 334 U.S. 1, 13.)*
8This fact is before us by virtue of the terms of the contract
which is part of the pleadings and is conceded by plaintiffs
in their affidavit submitted in opposition to a motion to dismiss
on the ground that the cause is moot.
‘Though not raised or argued by the parties, we have serious
doubt (1) that plaintiffs have sufficiently alleged action under
color of state law or (2) that they can state a cause of
action for damages under the federal constitutional provisions
(This footnote is continued on next page)
— =
California has no statute or policy either requiring
that collective bargaining agreements include union
shop provisions or invalidating such agreements. No
facts are alleged in the pleadings to indicate other
than that the growers and union entered into the
collective bargaining agreement herein through private
negotiations and through the normal give and take
of collective bargaining without any compulsion of
California law.
pursuant to which they seek protection in a state court absent
federal statutory authorization therefor.
Under the Civil Rights Act (42 U.S.C. § 1983) a state
court probably has concurrent jurisdiction with the federal courts
to entertain an action (Long v. District of Columbia (D.C.
Cir. 1972) 469 F.2d 927, 937; International Prisoners’ Union
v. Rizzo (E.D. Pa. 1973) 356 F.Supp. 806, 810; contra:
Beauregard v. Wingard (S.D. Cal. 1964) 230 F.Supp. 167,
185). However, the complaint does not allege the crucial require-
ment that the alleged deprivation of rights was “under color
of state law.” (Place v. Shepard (6 Cir. 1971) 446 F.2d
1239, 1244-1245; Enrlich v. Van Epps’(7 Cir. 1970) 428
F.2d 363, 364; see Seeley v. Brotherhood of Painters, Decora-
tors, etc. (5 Cir. 1962) 308 F.2d 52, 58.)
Aside from the Civil Rights Act, we find no federal statutory
authorization for the instant action for damages. While Bivens
v. Six Unknown Named Agents of Fed. Bur. of Narc. (1971)
403 U.S. 388 {91 S.Ct. 1999] held for the first time that
a damage action may be maintained in the federal court for
an invasion of Fourth Amendment rights, we are persuaded
that this authority probably cannot be invoked here because
(a) that remedy is restricted to violation of Fourth Amendment
rights (Smothers v. Columbia Broadcasting System, Inc. (C.D.
Cal. 1972) 351 F.Supp. 622, 625-626; Davidson v. Kane
(E.D. Va. 1972) 337 F.Supp. 922, 924), and (b) the remedy
is a federal court remedy (see Bivens, supra, at pp. 396-
397; Breitwieser v. KMS Industries, Inc. (5 Cir. 1972) 467
F.2d 1319) cert. den, ..... U.S. ..... |93 S.Ct. 1445]; Mon-
arch Insurance Co. of Ohio v. District of Columbia (D.D.C.
1973) 353 F.Supp. 1249; Larez v. Oberti (1972) 23 Cal.App.
3d 217, 223-225).
In any event, we do not reach or pass upon these questions
because of our disposition of the cause on the ground that
there is not sufficient state action to invoke federal constitutional
protections.
—
What constitutes state action under a given set of
facts is to be determined on a case-by-case basis. As
stated in Burton v. Wilmington Parking Authority
(1961) 365 U.S. 715, 722:
“It is clear, as it always has been since the Civil
Rights Cases . . . that ‘Individual invasion of
individual rights is not the subject-matter of the
amendment,’ [citation] and that private conduct
abridging individual rights does no violence to
the Equal Protection Clause (and thus the Four-
teenth Amendment in general) unless to some
significant extent the state in any of its manifesta-
tions has been found to have become involved
in it. Because ..< virtue of the right to equal
protection of the laws could lie only in the breadth
of its application, its constitutional assurance was
reserved in terms whose imprecision was necessary
if the right were to be enjoyed in the variety
of individual-state relationships which the Amend-
ment was designed to embrace. For the same
reason, to fashion and apply a precise formula
for recognition of state responsibility under the
Equal Protection Clause is an ‘impossible task’
which ‘this court has never attempted.’ [Citation.]”
Evans v. Newton (1965) 382 U.S. 296, 299, instructs:
“What is ‘private’ action and what is ‘state’ action
is not always easy to determine. [Citation.} Con-
duct that is formally ‘private’ may become so
entwined with governmental policies or so impreg-
nated with a governmental character as to become
subject to the constitutional limitations placed upon
state action.”
Appellants argue that the action of the union and
owners in entering into the agreement constitutes state
action because California has encouraged and protected
union shop agreenients. They point to Labor Code
section 921 outlawing yellow-dog contracts (Petri
Cleaners, Inc. v. Automotive Employees etc. Local
No. 88 (1960) 53 Cal.2d 458, 470), Labor Code
section 922 making it a misdemeanor for any person
to coerce or compel any person to agree not to join
a labor organization as a condition of employment,
and Labor Code section 923 declaring it to be public
policy that the individual workman shall have freedom
of association, self-organization and designation of rep-
resentatives of his own choosing to negotiate the terms
and conditions of his employment, free from interfer-
ence of employers. They also point to Labor Code
section 1126, making collective bargaining agreements
enforceable in law and equity. Reference is also made
to certain California decisions which uphold the validity
of union security agreements (see C. S. Smith Met.
Market Co. v. Lyons, supra, 16 Cal.2d 389; Park
& T.1. Corp. v. Iat. etc. of Teamsters (1946) 27
Cal.2d 599; McKay v. Retail Auto §.L. Union No.
1067 (1940) 16 Cal.2d 311, cert. den. 313 US.
566; Petri Cleaners, Inc. v. Automotive Employees
etc. Local No. 88, supra, 53 Cal.2d 455; Messner
v. Journeymen Barbers, etc. (1960) 53 Cal.2d 873),
and finally to certain decisions which have held that
local “right to work” ordinances are invalid because
the above referred to statutes preempt such local action.
(Stephenson v. City of Palm Springs (1959) 52 Cal.2d
407: Chavez v. Sargent (1959) 52 Cal.2d 162 (dis-
approved on other grounds, Petri Cleaners, Inc. v.
Automotive Employees etc. Local No. 88, supra, 53
Cal.2d 455, 475): Retail Clerks’ Union vy. Superior
Court (1959) 52 Cal.2d 222 (disapproved on other
=
grounds, Petri Cleaners, Inc. v. Automotive Employees
etc. Local No. 88, supra, 53 Cal.2d 455, 475).)
In our view, however, the state policy so announced
and the case decisions referred to do not change the
fundamental fact that California has taken no action
either to require the inclusion of a union shop provision
in a collective bargaining agreement or to invalidate
such a provision. A collective bargaining agreement
without a union shop covenant is entitled to legal
protection. The position of the state can best be charac-
terized as one of benign neutrality in that labor and
management are free from any hindrances upon oppor-
tunities to bargain collectively. The Legislature has
in effect left the field unregulated, neither requiring
nor prohibiting union shop provisions but lending its
support and encouragement to collective bargaining
agreements freely entered into and making them equally
enforceable in the courts whether such agreements do
or do not contain union shop provisions. Such passivity
falls far short of the state action required to bring
the federal constitutional protections into operation.
Mendoza v. United Farm Workers Organizing Com-
mittee (9 Cir. 1973) .... F.2d. ....° is a class action
companion to the case at bench, commenced against
the same defendants, regarding the same collective bar-
gaining contract and seeking the same relief by a
different party plaintiff farm worker The Circuit Court
affirmed the judgment of dismissal entered by the Fed-
eral District Court on the ground that the complaint
failed to allege such state action as the Fourteenth
Amendment of the United States Constitution requires.
The court said:
‘Slip opinion filed September 7, 1973, No. 71-1930, United
States Circuit Court for the Ninth Circuit.
—_"
“The present complaint does not allege that
the defendants entered into and performed their
union shop agreement under any compulsion of
California law rather than through the normal
give and take of collective bargaining and labor-
management relations. We add that we have found
nothing in California law that coerces parties to
include union shop provisions in a labor contract.
In these circumstances, we agree with the district
court that the complaint was inadequate.”
In Adams v. Southern California First National Bank
(9 Cir. 1973) .... F.2d ....,° the court held that the
enactment of sections 9503 and 9504 of the California
Commercial Code authorizing, codifying and recogniz-
ing a preexisting prejudgment self-help remedy by re-
possession and sale of secured property did not con-
stitute sufficient state action to establish a federal cause
of action under protections afforded by the United
States Constitution. The court pointed to the fact that
the codification was of a preexisting policy and
“lt|here is no ‘pervasive’ state action directed to self-
help repossession to require its use. It is simply named
as one of two already existing alternatives.” The court
further stated that the State of California had not
“significantly involved” itself in self-help repossession
by virtue of having authorized such action in the statu-
tory enactment under the test laid down by the Supreme
Court in Moose Lodge No. 107 v. Irvis (1972) 407
U.S. 163, 173, where the court said: “Our holdings
indicate that where the impetus for the discrimination
is private, the State must have ‘significantly involved
“42 Law Weekly 2230, slip opinion filed October 4, 1973,
United States Circuit Court of Appeals for the Ninth Circuit,
Nos. 72-1484 and 72-1888.
—
itself . . .. to fall within the ambit of the constitu-
tional prohibition.”
In Moose Lodge No. 107 v. Irvis, supra, 407 U.S.
163, a black guest was denied service in the Moose
Lodge bar, which was licensed as a private club by
the Pennsylvania Liquor Control Board. Licenses were
limited and the control board imposed a detailed regu-
latory scheme upon licensees. The court stated that,
“The court has never held, of course, that discrimination
by an otherwise private entity would be violative of
the Equal Protection Clause if the private entity receives
any sort of benefit or service at all from the state,
or if it is subject to state regulation in any degree
whatever” (407 US. at p. .... [92 S.Ct. at p. 1971]),
and continues that “. . . the operation of the regulatory
scheme enforced by the Pennsylvania Liquor Control
Board does not sufficiently implicate the State in the
discriminatory guest policies of Moose Lodge so as
to make the latter ‘State action’ within the ambit of
the Equal Protection Clause of the Fourteenth Amend-
ment.” (407 U.S. at p. .... [92 S.Ct. at p. 1973]).
In effect the court held that even a clear, detailed
regulation and licensing control system, including quo-
tas, does not represent state action where the precise
rules or conditions limiting conduct are voluntarily
agreed upon by the private parties engaged in private
affairs. While this expression may demonstrate a trend
away from prior expressions of the Supreme Court
of the United States, we are nevertheless bound by
it.
Appellants’ reliance is placed principally on Railway
Employees’ Department v. Hanson (1956) 351 USS.
225 |76 S.Ct. 714]). In that case Congress had enact-
ed the Railway Labor Act, 45 U.S.C.A. § 151 et seq.,
—
which provided in part that a union shop was permis-
sible notwithstanding the law of any state. (45 U.S.-
C.A. § 152 (Eleventh).) The court found that this
Statute was enacted for the purpose of superseding
inconsistent “right to work” laws in seventeen states
which prohibited union shops. (351 U.S. 225, 231-
232 [76 S.Ct. 714, 718|.) Thus the court held that
by. so allowing union shop clauses, action undertaken
pursuant to these contract clauses constituted govern-
mental action sufficient to invoke the protection of
the Constitution because without such congressional
action the union shop clause would have been unlawful
in those seventeen states.
Appellants assert that the Hanson situation is anal-
ogous to the situation in California because the Legis-
lature has enacted laws which have been interpreted
to preempt local “right to work” ordinances. (See Retail
Clerks’ Union v. Superior Court, supra, 52 Cal.2d
222: Stephenson v. City of Palm Springs, supra, 52
Cal.2d 407; Chavez v. Sargent, supra, 52 Cal.2d 162.)
Nevertheless, there are crucial distinctions between Han-
son and the situation here presented which dictate the
conclusion that there is not sufficient state action here
involved. To begin with, the California statute which
has been interpreted to occupy the field and thus
preempt inconsistent right to work ordinances does
not, as did the Railway Labor Act, expressly refer
to union shops. (See Lab. Code, $§ 921-923.) Secondly,
the union shop has always been lawful in California
and thus the enactment of the above referred to Labor
Code sections did not divert from the traditional policy
of the state. (Shafer v. Registered Pharmacists Union,
supra, 16 Cal.2d 379, 387.) Furthermore, the local
right to work ordinances did not originate until well
= =
after the enactment of the controlling sections of the
Labor Code, while in Hanson the right to work laws
were enacted prior to the union shop provision of
the Railway Labor Act which was designed to supersede
them. These distinctions were recognized in Otten
v. Baltimore & O. R. Co. (2 Cir. 1953) 205 F.2d
58 and Wicks v. Southern Pac. Co. (S.D. Cal. 1954)
121 F.Supp. 454 (affirmed 231 F.2d 130 (9 Cir.
1956), cert. den. 351 U.S. 946). In the Often case,
the plaintiffs sought an injunction prohibiting the de-
fendant railroad from discharging him pursuant to a
union shop provision authorized by the Railway Labor
Act. The district court declined to convene the three-
judge district court on the grounds that the constitution-
ality of the Railway Labor Act was not called into
question. On appeal, the court, per L. Hand, J., held
that it was proper not to convene the three-judge
court because the constitutionality of the act could
in no way have been called into question. The court
reasoned that if the union shop had originally been
unlawful in New York where the case arose and the
Railway Labor Act was to the contrary, then there
may have been sufficient governmental action to call
into question the validity of the act. The court held,
however, that since the union shop had always been
valid under New York common law, then Congress’
enactment of the Railway Labor Act was not suf-
ficient governmental action as to this New York plain-
tiff to call into question the constitutionality of the
act. (205 F.2d at pp. 60-61). The facts presented
in the Otten case were almost identical to those presented
in Wicks v. Southern Pac. Co., supra, 121 F.Supp.
454. In Wicks, the court held that since California.
like New York, had always permitted the union shop,
then the constitutionality of the act could not be ques-
_—
tioned in that proceeding. (231 F.2d 130, 135-137; 121
F.Supp. 454, 456-457.)
It is thus concluded that the California policy of
allowing union and closed shops and the consequent
preemption of subsequently enacted inconsistent local
ordinances does not constitute sufficient state action
to invoke the sanctions of the federal Constitution.
Inasmuch as we have concluded that state action
was not involved in the making or implementation
of the collective bargaining contract between the union
and the growers, plaintiffs cannot invoke the protection
of the federal Constitution, and we need not treat
the other questions raised.
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
/s/ Brown (Geo. A), P. J.
We concur:
/s/ Gargano, J.
/s/ Franson, J.
witive
APPENDIX D.
Principal Constitutional and Statutory
Provisions Involved.
FEDERAL CONSTITUTIONAL PROVISIONS:
l.
First Amendment to the Constitution of the United
States:
“Congress shall make no law respecting an es-
tablishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Govern-
ment for a redress of grievances.”
Fifth Amendment to the Constitution of the United
States:
“No person shall be held to answer for a capital,
of other infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the
Militia, when in actual service in time of War
or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal offense to be a witness against himself,
nor be deprived of life, liberty, or property, without
due process of law; nor shall private property
be taken for public use, without just compensa-
tion.”
Ninth Amendment to the Constitution of the
United States:
“The enumeration in the Constitution, of certain
rights, shall not be construed to deny or dispar-
age others retained by the people.”
a
4. Fourteenth Amendment to the Constitution of the
United States:
“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or en-
force any law which shall abridge the privileges
or immunities of citizens of the United States;
nor shall any State deprive any person of life,
liberty or property without due process of law;
nor deny to any person within its jurisdiction
the equal protection of the laws.”
Federal Statutory Provisions.
Civil Rights Statutes:
28 USC § 1343:
The district courts shall have original jurisdiction
of any civil action authorized by law to be commenced
by any person:
(1) To recover damages for injury to his person
or property, or because of the deprivation of any
right or privilege of a citizen of the United States,
by any act done in furtherance of any conspiracy
mentioned in section 1985 of Title 42;
(2) To recover damages from any person who fails
to prevent or to aid in preventing any wrongs men-
tioned in section 1985 of Title 42 which he had
knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured
by the Constitution of the United States or by any
Act of Congress providing for equal rights of citizens
a
or of all persons within the jurisdiction of the United
States;
(4) To recover damages or to secure equitable
or other relief under any Act of Congress providing
for the protection of civil right: “© ‘4ing the right
to vote. June 25, 1948, c. 646, 62 Stat. 932; Sept.
3, 1954, c. 1263, § 42, 68 Stat. 1241; Sept. 9,
1957, Pub.L. 85-315, Part III, § 121, 71 Stat. 637.
42 USC § 1983:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding
for redress.
R.S. § 1979.
Union Shop Provisions of the Railway Labor Act:
45 USC § 152, Eleventh:
Eleventh. Notwithstanding any other provisions of
this chapter, or of any other statute or law of the
United States, or Territory thereof, or of any State,
any carrier or carriers as defined in this chapter and
a labor organization or labor organizations duly desig-
nated and authorized to represent employees in accord-
ance with the requirements of this chapter shall be
permitted—
(a) to make agreements, requiring, as a condition
of continued employment, that within sixty days follow-
ing the beginning of such employment, or the effective
—_— =
date of such agreements, whichever is the later, all
employees shall become members of the labor organiza-
tion representing their craft or class: Provided, That
no such agreement shall require such condition of
employment with respect to employees to whom mem-
bership is not available upon the same terms and
conditions as are generally applicable to any other
member or with respect to employees to whom member-
ship was denied or terminated for any reason other
than the failure of the employee to tender the periodic
dues, initiation fees, and assessments (not including
fines and penalties) uniformly required as a condition
of acquiring or retaining membership.
(b) to make agreements providing for the deduction
by such carrier or carriers from the wages of its
or their employees in a craft or class and payment
to the labor organization representing the craft or
class of such employees, of any periodic dues, initiation
fees, and assessments (not including fines and penalties )
uniformly required as a condition of acquiring or retain-
ing membership: Provided, That no such agreement
shall be effective with respect to any individual em-
ployee until he shall have furnished the employer with
a written assignment to the labor organization of such
membership dues, initiation fees, and assessments, which
shall be revocable in writing after the expiration of
one year or upon the termination date of the applicable
collective agreement, whichever occurs sooner.
(c) The requirement of membership in a_ labor
organization in an agreement made pursuant to sub-
paragraph (a) of this paragraph shall be satisfied,
as to both a present or future employee in engine,
train, yard, or hostling service, that is, an employee
engaged in any of the services or capacities covered
in the First Division of paragraph (h) of section
=
153 of this title defining the jurisdictional scope of
the First Division of the National Railroad Adjustment
Board, if said employee shall hold or acquire member-
ship in any one of the labor organizations, national
in scope, organized in accordance with this chapter
and admitting to membership employees of a craft
or class in any of said services; and no agreement
made pursuant to subparagraph (b) of this paragraph
shall provide for deductions from his wages for periodic
dues, initiation fees, or assessments payable to any
labor organization other than that in which he holds
membership: Provided, however, That as to an employee
in any of said services on a particular carrier at
the effective date of any such agreement on a carrier,
who is not a member of any one of the labor organi-
zations, national in scope, organized in accordance
with this chapter and admitting to membership em-
ployees of a craft or class in any of said services,
such employee, as a condition of continuing his employ-
ment, may be required to become a member of the
organization representing the craft in which he is em-
ployed on the effective date of the first agreement
applicable to him: Provided, further, That nothing here-
in or in any such agreement or agreements shall prevent
an employee from changing membership from one or-
ganization to another organization admitting to mem-
bership employees of a craft or class in any of said
services.
(d) Any provisions in paragraphs Fourth and Fifth
of this section in conflict herewith are to the extent
of such conflict amended, May 20, 1926, c. 347, § 2,
44 Stat. 577: June 21, 1934, c. 691, § 2, 48 Stat. 1186:
June 25, 1948, c. 646, § 1, 62 Stat. 909; Jan. 10,
1951, c. 1220, 64 Stat. 1238.
=
Union Shop Provisions of the National Labor
Relations Act:
29 USC 158(a) (3):
(a) It shall be an unfair labor practice for an
employer—
* * *
(3) 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 or-
ganization: Provided, That nothing in this subchapter,
or in any other statute of the United States, shall pre-
clude an employer from making an agreement with a
labor organization (not established, maintained, or as-
sisted by any action defined in this subsection as an un-
fair labor practice) to require as a condition of employ-
ment membership therein on or after the thirtieth day
following the beginning of such employment or the effec-
tive date of such agreement, whichever is the later, (1)
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) unless following
an election held as provided in section 159(e) of
this title within one year preceding the effective date
of such agreement, the Board shall have certified that
at least a majority of the employees eligible to vote
in such election have voted to rescind the authority
of 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
A mh es!
— =
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;
California Statutes.
1. LABOR CODE, § 921:
“Every promise made after August 21, 1933, between
any employee or prospective employee and his employer,
prospective employer or any other person is contrary
to public policy if either party thereto promises any
of the following:
(a) To join or to remain a member of a labor
organization or to join or remain a member of an
employer organization.
(b) Not to join or not to remain a member of
a labor organization or of an employer organization.
(c) To withdraw from an employment relation in
the event that he joins or remains a member of a
labor organization or of an employer organization.
Such promise shall not afford any basis for the
granting of legal or equitable relief by any court against
a party to such promise, or against any other persons
who advise, urge, or induce, without fraud or violence
or threat thereof, either party thereto to act in disregard
of such promise.”
2. LABOR CODE, § 922:
“Any person or agent or officer thereof who coerces
or compels any person to enter into an agreement,
written or verbal, not to join or become a member of
—
any labor organization, as a condition of securing
employmeut or continuing in the employment of any
such person is guilty of a misdemeanor.”
3. LABOR CODE, § 923:
“In the interpretation and application of this chap-
ter, the public policy of this State is declared as fol-
lows:
Negotiation of terms and conditions of labor should
result from voluntary agreement between employer and
employees. Governmental authority has permitted and
encouraged employers to organize in the corporate and
other forms of capital control. In dealing with such
employers, the individual unorganized worker is help-
less to exercise actual liberty of contract and to protect
his freedom of labor, and thereby to obtain acceptable
terms and conditions of employment. Therefore it is
necessary that the individual workman have full free-
dom of association, self-organization, and designation
of representatives of his own choosing, to negotiate
the terms and conditions of his employment, and that
he shall be free from the interference, restraint, or
coercion of employers of labor, or their agents, in
the designation of such representatives or in self-organi-
zation or in other concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion.”
4. LABOR CODE, § 1011:
“A person engaged in the production, manufacture,
or sale of any article of merchandise in this State,
shall not, by any label placed or impressed upon such
article, or upon its container, misrepresent or falsely
state any of the following as to the production of
such article:
hie teal Ui Witenes
— =
(a) The kind, character, or nature of the labor
employed.
(b) The extent of the labor employed.
(c) The number or kind of persons exclusively
employed.
(d) That a particular or distinctive class or char-
acter of laborers was wholly and exclusively em-
ployed, when in fact another class, or character,
or distinction of laborers was used or employed
either jointly or in any wise supplementary to
such exclusive class, character, or distinction of
laborers.
Violation of any provision of this section is a mis-
demeanor punishable by a fine of not less than one
hundred dollars ($100) nor more than five hundred
dollars ($500) or by imprisonment for not less than
20 nor more than 90 days, or both.”
5. LABOR CODE, § 1012:
“Any person engaged in the production, manufac-
ture, or sale of any article of merchandise in this
State, or any person engaged in the performance of
any acts or services of a private, public, or quasi-
public nature for profit, who wilfully misrepresents
or falsely states that members of trades unions, labor
associations, or labor organizations were engaged or
employed in the manufacture, production, or sale of
such article or in the performance of such acts or
services, is guilty of a misdemeanor punishable by
a fine of not more than five hundred dollars ($500),
or by imprisonment in the county jail for not more
than 90 days, or both.”
6. LABOR CODE, § 1015:
“Any person who, without having an unrevoked
written authority from such trade union, labor associa-
tion or labor organization, wilfully forges or procures
to be forged such label or trademark, with intent to
sell or assist other persons to sell, any goods to which
such forged label is affixed as having been made,
manufactured, or produced in whole or in part by
labor, laborers, or employees who are members of,
or allied or associated with, such trade union, labor
association, or labor organization, is guilty of a misde-
meanor, punishable by a fine not more than five hundred
dollars ($500) or imprisonment for not more than
90 days, or both.”
7. LABOR CODE, § 1016:
“Any person who wilfully uses or displays the gen-
uine label, trademark, insignia, seal, device, or form
of advertisement of any association or labor union,
in any manner not authorized by such association or
labor organization or not in conformity with the by-
laws thereof, is guilty of a misdemeanor punishable
by a fine not exceeding one hundred dollars ($100)
or imprisonment for not more than three months, or
both.”
8. LABOR CODE, § 1017:
“Any person who wilfully uses the card of any
labor union to obtain aid, assistance, or employment,
unless entitled to use such card under the rules and
regulations of a labor union within this State is guilty
of a misdemeanor.”
«Sie el Sa cen ee aT
9. LABOR CODE, § 1018:
“Any person who wilfully wears the button of any
labor union of this State, unless entitled to wear the
button under the rules of such union, is guilty of
a misdemeanor, and is punishable by imprisonment
in the county jail for not more than 20 days or by
a fine of not more than twenty dollars ($20), or
by both fine and imprisonment.”
10. LABOR CODE, § 1126:
“Any collective bargaining agreement between an
employer and a labor organization shall be enforce-
able at law or in equity, and a breach of such collec-
tive bargaining agreement by any party thereto shall
be subject to the same remedies, including injunctive
relief, as are available on other contracts in the courts
of this State.”
11. BUSINESS AND PROFESSIONAL CODE,
§ 16703:
“Within the meaning of this chapter, labor, whether
skilled or unskilled, is not a commodity.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.