# Petition — Ponciano v. United Farm Workers Organizing Committee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 833

## Text

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 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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0142%3A1. Public record. Not legal advice.