Bautista v. Jones

18437. In Bank. Dec. A. No. 1944.] [L. Respondents, PAUL JONES al., et JAVIER BAUTISTA al., Appellants. et Appellants. John V. P. Lucas and C. Stevenson Jaffray for Respondents. Ben Van Tress and James R. enjoin Plaintiffs brought GIBSON, J. action to C. coercing preventing companies milk from from defendants products. By stipula supplying plaintiffs with milk or milk pleadings affidavits tion the submitted on the ease was an order parties. appealed Defendants have filed permanent awarding a of the trial court injunction] California, Macias, Plaintiffs, Bautista residents distributing milk and jointly engaged were business of Angeles for the County retail in Los products milk dealers milk and They purchased their eight years. past seven milk and distributed wholesalers from brokers or products operated them- owned in automobile trucks no need for and had They employed persons no other selves. money for They invested considerable sums employees. realizing will, good a business and equipment up and built profits. yearly substantial Union, Employees Dairy and Milk Drivers

The defendant It admits organization. unincorporated labor Local is an gen- “milk-wagon drivers, helpers and workers membership to Defendant Paul erally citizens the United States.” who are of Local secretary-treasurer of agent and is the business Jones about contracts -with shop” “union 93. The union has No. County, Angeles of the milk Los ninety-five cent brokers per of secretary-treasurer according the affidavit and, to agreed agreement have companies signing the union, the standing. in good employ only members they that will mem- one but union Thus, practically locality the entire provides agreement The also employees. may work bers dairy products dis- employers to that the will sell conditions of tributor unless he the same observes employers. required of the organized milk indus- union, having defendant so

The Local employ that members of try, proposed plaintiffs they so, but Plaintiffs declined to do No. 93 drive their trucks. member- applications for admission to union thereupon filed rejected “on the ship. applications by were the union The independent ground peddler were distributors.” plaintiffs rejection mentioned. No other of each of milk brokers with Thereafter the union sent to following communication: contracts the whom had Sir: For some time Local Union has been con- “Dear #93 independent dis- problem peddler fronted with taking been from time time business tributors who have of Local wage are members earners who 23rd, meeting Local on October regular At a #93 #93. by membership filed applications there were a number discussed were peddler distributors which independent meeting, after at that length present the members at some of Local rejected. The officers were they were #93 agreements employers who held to see that the instructed agreement on Paragraph of our comply Local #93 before November 1941. these men are As not members membership the Union and the not see admit them does fit to membership, left, way Union there is seems one independent peddler is to selling discontinue to these Hoping you cooperate cleaning up will distributors. ’’ matter, yours, Very truly Jones, ’y Paul D. Sec Treas. The trial found that the above notice and oral court statements the union demanded that de- brokers cease livering products plaintiffs, among milk milk inde- other pendent distributors, and the brokers understood if plaintiffs, notice to mean that continued to supply "apply union would economic re- enforce such ’’ quest strike, boycott. means picketing demand " the purpose court further found: That said Local agents prevent No. 93 and was to from ob taining any products carry milk on milk or with which to their independent distributing milk retail cus business of to their tomers, compel plaintiffs thereby employ as drivers Local discon their members said No. and to trucks doing work driving tinue their own trucks own (Italics conducting their own their business with hands.” added.) complied union, and with the

The brokers demands obtaining milk prevented from milk plaintiffs, thus They their business. compelled to discontinue products, were injunctive for brought this relief. action union purpose court, concluding The trial that the of activi- legitimate not related to reasonably unlawful enjoined the union organizations, permanently ties of labor from agents preventing plaintiffs from and its members obtaining products coercing milk and from brokers milk or Local No. selling plaintiffs. Defendants from refrain con- judgment, appealed have from 93 and Paul Jones trial union, by the as found tending that the activities of the court, were not unlawful. Gorp., page Marinship ante,

The v. case of James point the consid 329], starting P.2d for furnishes the [155 held herein. We problems presented the special eration that, closed arbitrarily maintain an case that a cannot union use cannot therefore it shop, and that a closed union and lack discharge of workers compel economic from them arbitrarily excludes membership when 749 rule the well-established membership. But we reaffirmed also reasonably related object 'if of a is employed are the means labor, interests concerted using enjoined union cannot be proper, enforce action to its demands. indepen work, either pro enjoys doubt, business, and,

dent is fundamental Fourteenth guarantee of the liberty personal tection more well Constitution, as the federal Amendment Const., (Cal. Constitution. state specific.provisions of our P. 182 247 Alderson, Cal. I, 1, 13; see v. [187 art. Suckow §§ 447].) Cal.App. 621 P. Bottorff, 76 ; Angelopulos v. [245 965] abso fundamental, is right, equally But this like others legislative dis action which safeguarded from lute. It is respect persons in against person or class criminates Wo (Yick opportunities or enter into business to obtain work 220]; Abe 1064, 30 L.Ed. 118 356 S.Ct. Hopkins, v. U.S. [6 P.2d Cal.App.2d 300 Commission, Fish & [49 v. Game against degree arbi 608]) protected and it some ; is also including employers by private organizations, trary action Marinship supra.) But (James Corp., and labor unions. v. many legislative familiar subject is restrictions minimum statutory working hours, all, such as on limitations safety age licensing wages, employment, acts, limits subject regulations, equally a host of others. It seeking organizations pressure by labor peaceful, economic rather legitimate ends, work, conditions collective such as privileges other bargaining, seniority individual than (See shop. closed advancement, and the union or methods of 16 Cal.2d McKay Retail Auto. L. Union No. v. S. ; Lyons, Smith Met. Market Co. P.2d S. C. 373] [106 Registered ; Pharmacists P.2d Cal.2d [106 414] Shafer ; P.2d American Federation Union, 16 403] Cal.2d 855].) 85 L.Ed. Swing, 312 U.S. 321 Lab or v. operating industry in an or field The businessman-worker organized like- competes workmen in which he persuasion as subjected the same means of be wise condi join the conform to the union other workman point is the deci Directly in labor. regulating tions Angelos (1943), 320 Employees Union v. sion of Cafeteria plain 88 In that case 293 L.Ed. U.S. S.Ct. 58]. [64 aid partners, cafeteria as without operated tiffs own ed a 750

of any employees. picketed The defendant attempt cafeteria "in organize an it." A New York court granted injunction an on the there "labor was no Antiinjunc- dispute" meaning within the York New tion Supreme act. The United States reversed the Court have judgment, stating (p. S.Ct.]): 126 as we "But [64 a working men in decided, heretofore a state cannot exclude industry public particular putting from their case to the compe peaceful way 'by drawing circle a of economic employer tition contain and those so small directly employed by him.' American Federation Labor Bakery 326. Swing, (Cf. at & P. Drivers U.S. ..." 1178].) Wohl, 315 L.Ed. Local v. U.S. [62 [86 sought employers obligations im- Some have evade security legislation, enacted posed social and similar employees, inducing protection the benefit indepen- employment relationship and become sever “peddler system” distributor dent distributors. The & Bakery evils are described Drivers Local asserted P. 1178], S.Ct. 816 wherein Wohl, 315 U.S. 769 L.Ed. [86 join to its union or refused to to conform peddlers six-day week. It held that the union’s rules, was enjoined. not peaceful could Emde v. San picketing Council, P.2d County 23 Cal.2d etc. Joaquin published calling an article atten- , the union A.L.R 916] agreement dairy of an violation tion to the asserted nonunion through hiring drivers, some of whom owners in- persuaded and were to become members had been union that, union had held, It dependent contractors. bona concerning the existence of a the facts publish damages judgment for libel controversy, and a fide labor although re- court was divided on the And was reversed. agreement that the decisions of the sult all members were general propo- establish the Court Supreme States United in- deliberately system, if peddler distributor sition that the legitimate interests injuring the the purpose troduced for effect, may if labor, operates organized the unions. concerted action appropriate met with distinguishable however, entirely case, is The instant First, case respects: eases, vital those two employers peddler system by attempted introduction of since work, conditions of lowering union’s means as a initiative plaintiffs on own both entered the business ago. dis- many peddler the years Second, it is a case of not un- attempting compete union on tributor workers em- terms, those the equal either for his own interests or of were ployer. sought two the but join union, The “ped- ground the were refused admission on sole then The and picket, threat strike was boycott, dlers.” prevent plaintiffs continuing made to as businessmen- from question Thus the does not relate to workers. before us reasonably necessary of the union take measures protect but, unequal competition, its members from unfair instead, possible to the asserted to make the evils system complete opportunity the basis deprivation particular individuals to work. dealing gravity take question with a of such must we far-reaching any notice of- effect of such decision as urges upon commodity Milk union one distributed us. en- delivery, retail and all businesmen-workers are gaged in the union’s retail distribution of commodities. and position would laundry have an identical effect on the dry-cleaning driver, watch- plumber, the barber and maker and the groceryman, operator, the service station operating In word, the farmer. all businessmen-workers the aid without will affected result be case, extinction a decision dooms them which powerfully organized at hands of cannot unions lightly Ironically, goals made. toward work- one of which ingmen strive, opportunity namely, greater security independent business, subject of an is the attack Nor very group may, many instances, profit which it. independent the elimination the small farmer can contemplated life serious our without most economic misgivings. question

We think the to this will be found true answer in the constitute realization that businessmen-workers minority group, fundamentally inim activities are not whose organ special public interest ical to the interest labor, same treat therefore are entitled to the ized who group. minority The elimination of ment as other legitimate object life more a from our economic is no persons Negroes ; activity be the elimination of than would of union obtain any exerts economic discharge of the such, businessman-worker as and at the same time excludes him from union membership on that alone, transcends the activity. bounds of (See James v. Marinship ante, Corp., p. 721, supra.).

The case of Senn v. Tile Layers Union, Protective 301 U.S. L.Ed. 1229], is not inconsistent this view. In that case the defendants unionize sought to plaintiff’s employees, persuade plaintiff sign and to Senn to agreement an lay that all work should be done union tile ers, which would prevented doing have Senn from further work layer. as a tile Wisconsin court Senn denied injunction against peaceful picketing, and the States United Supreme Court, in affirming judgment, that held was that it a matter for the state to determine whether permit to unions to endeavor to an employer agree induce to using to refrain from hands, his and that “Whether it was wise for per the state to mit the unions question to do is a so public policy- of its not our npt concern. The pro Fourteenth Amendment does hibit it.” Thus the Senn merely case determines there is no absolute right constitutional of an individual federal hands, legitimacy with his work and it declares that the objects of union concerted action state is a matter of policy. is,

It of course, improper in proceeding to consider what may adopt means the union alleged to eliminate the peddler evils of the system. distributor The record shows nothing attempted of this sort but, instead, flatly accept plaintiffs refused to membership, into upon offered no permitted terms would be work. position This may of the union with numerous contrasted instances which our economic history discloses of business- men-workers, including of retail commodities distributors drivers, service who are members of labor unions very have in harmony employees. worked with union In the opinions upon by relied defendants as establishing their against peddler concerted action distributors, appears peddlers that efforts were made the union to induce the join comply working or to hours conditions other or. (See to union members. applicable Bakery & P. Drivers 769, supra; Wohl, Employees Local 315 U.S. v. Cafeteria Angelos, Union 320 U.S. 293 88 L.Ed. 58] supra; Joaquin County Council, Emde San etc. 23 Cal.2d 146, supra.)

Defendants secu inapplicability assert the' of social compensation rity peddler and workmen’s gives laws special bargaining advantage permit employer ting him to work for lower This but true, return. entirely problem presented thus must be solved without eliminating add businessmen-workers from the of labor ranks concerned, industry. unemployment Insofar as insurance is provisions not come law would within the if they workmen, even were to hire one since or two the stat employers greater apply utes who hire number p. employees. (Unemployment Act Insurance [Stats. Deering’s Laws, amended], 1226 as 8780d, §9; Gen. Act U.S.C.A., Code, §1607.) Title Internal Revenue If the unemployment cri applicability insurance laws were the terion, weapons then labor would have the to use its merchant, the small to force the small barber and the corner grocer out because, of business since their trade does not war it, they enough employees cannot afford come rant to hire bring the terms of the statute. within If seems desirable to peddlers similarly purview others within situated relating unemployment the laws insurance work compensation, proposals accomplish men’s must that end Legislature to the or addressed the voters. may, course, impose

The requirements union reasonable membership, regulations adopted for if the proper peddler comply the must relinquish therewith or favored his position in order to avoid pressure. union If .peddler the the imposed, meets conditions accept the union must him! give up membership shop. its or demand a closed The peddler interests of the member be identical men, other the but the inequali- resultant conflicts and organized must be objectives ties overcome if the to be achieved and labor are the attaining means them preserved arbitrarily without depriving small business- operates man who without aid of to work with rights his hands. The involved are too fun- group; ignored damental to be either cannot be flouted regardless reconciled, but must be of the difficulties which may confront those faced with the task.

Defendants injunction-are contend terms broad, too in it restrained them.from “preventing” obtaining milk “in any manner or 754 conditions language was, course, directed to

means.” This relationship at If existing of the decree. time justify a modifica a manner parties is altered made there application may he decree, tion or vacation v. Meadowmoor (See Wagon Milk Drivers for. Union 836, 552, 85 287, 312 298-299 L.Ed. Dairies, U.S. [61 1200].) 132 A.L.R. judgment is affirmed. Curtis,

Shenk, J., J., concurred. has EDMONDS, this state Under the law of J. deci developed years, particularly since the recent 154 Building Council, sion in J. Co. Trades F. Parkinson 550], 16 21 L.R.A.N.S. Cal. P. Ann.Cas. [98 the advan the intentional interference tageous pro economic is not tortious relations of others ob peaceful vided means used are and truthful ject sought relevance accomplished has reasonable boycott, held that labor conditions. And it has been primary secondary, form of economic either or is a purpose. employed accomplish any may be lawful which (McKay Retail No. Cal.2d Auto. S. L. Union Lyons, 16 373]; Met. Market Co. v. P.2d C. Smith S. [106 Court, Superior ; Fortenbury v. Cal.2d 389 P.2d 414] ease, the present 411].) But in the Cal.2d P.2d agents judge purpose of union and trial found the establish one it related was neither a lawful nor was employment. hours, wages, ment of or conditions of better effect to giving I judgment concur in the affirmance of record, the because, evidence as I read the those conclusions ordered, findings upon injunction was compels the which the appellants, taking most position favorable the. conflicting upon evidence rests decision of the trial court ap an reach of places beyond the determination pellate tribunal. organi- right of a labor

By court, the the decisions of this boycott person under picket a third employer zation excep- recognized specified been certain conditions has present In our general of tort law. principles tion to organ- employers day highly society, industrialized both operation of their respective labor fields of ized invade the interests, the inten- economic competitors. group Each has prima tional invasion of which facie tortious and is is action- privileged. competition able unless is an essen- But because disregard tial private enterprise, property element of this rights justified purpose has held rea- been to be when is sonably invading related to the economic interests group. particularly, proposition More a court should person struggle intervene to aid in an one economic which another has a substantial interest at stake and is em- ploying upon weighing lawful means is founded of the bene- against fits society obtained person the detriment and the injured. applying involving these rules to cases labor controver-

sies, it organized has become the settled of this state that law labor has the constitutional right, speech, an incident free fully publicize dispute facts of labor and invite public support (C. position. its S. Smith Met. Market Co. v. Lyons, supra; McKay v. Auto. S. L. Union No. Retail supra.) And the exercise of its constitutional of free speech, a privileged' intentionally others, is to induce in their relation an employer, apply economic upon him resulting injury. However, privilege interfere competitor’s with a legally protected valuable and economic interests is one, not an qualified absolute but is conditional.

The first limitation which has been applied by this court is union, compelling compliance demands through application pressure, economic induced publication of the facts and the support, solicitation of is privileged to invade the interests of others where it em- ploys peaceful (Magill and truthful means. Bros. v. Build- ing Union, Service etc. 20 Cal.2d 506 542]; P.2d Steiner Long v. Beach Local No. Cal.2d P.2d 20]; C. S. Smith Met. Market Co. v. supra; McKay Lyons, Retail Auto. L. Union 1067, supra; S. No. J. F. Parkinson Co. Building Trades Council, supra.) general The second con- necessary dition justify the invasion of economic interest is that the end “Any be lawful. injury to a lawful business prima ... actionable, upon but be defended facie merely it was the result of a lawful effort of the promote defendants to (J. own welfare.” F. Parkinson Building Co. v. Council, supra.) Trades purpose of labor must be reasonably relevant to conditions controversy labor in which the union has-“a substan-

.the o.ne activity tial” and a “direct obvious” interest. The and directly” workers, the said, been must “benefit them it has bargaining example, or power”; “enhance for the con- their reasonably action certed must have the direct effect of and higher wages, shorter hours relevant to “the attainment of working labor or better conditions.” case, Considering parties present the in the situation of the appellant union, general purpose in accordance with organized labor, has a direct substantial interest- and hours, obtaining wages, maximum minimum and better work- ing and, maintaining advantageous conditions, shop conditions, achieved, once the workers obtain closed adapted to reasonably or means contracts devise other securing advantageous position. bargaining On the other busi- hand, person to own and control his own has hands, ness, work in business with his own refuse need, procure whom he has and to employ for workers could products merchandise without which the business conflicting economic interests which operate. It is these rights weighed determining respective must parties. union stated

By Jones, agent, its business an affidavit.of against boycott particular position that the the basis for According purpose. for respondents was lawful Macias, refusing to Bautista and admit reasons .affidavit distributors,” “independent peddler persons termed and other political, or personal, and not membership are economic engaged in industries companies national. declared that Jones by automotive at retail are delivered where commodities sold encouraged a form re- and transportation have fostered ‘-independent peddlers’, delivery “variously tail known as ‘venders’, companies distributors', and that said ‘independent encouraged products this form distributing have among reasons; distributing delivery for various economic and company responsibility others, it eliminates the Un-employment Insurance Age payment of the Old and .the carrying necessity em- paying tax and it eliminates the responsibility ployers liability insurance evades safety compensation, insurance imposed by the workmen’s n acts liability under the master servant and .further evades growth development of this result of the law; peddler many union system ‘independent distributors’ wage deprived benefits of the social secur- earners laws, other ity laws, compensation and various workmen’s and' legislation progress the benefit and beneficial enacted for . . . people of the State of social welfare of California long ‘independent peddler these so-called distributors’ work mem- hours in the union for their excess of the hours fixed fail bership ‘venders’, said otherwise to observe regulations the union for reasonable rules and established working . betterment of conditions. . It of organized dissatisfaction conceded that system distributing labor a which avoids milk-products with wages hours, compensation minimum and so- and workmen’s dispute security legitimate cial labor benefits is a matter.of (Emde Joaquin Council, San County etc. Cal.2d 916]). plan P.2d A.L.R But is no present were, shown in the we case. Here have two men who effect, carrying retail merchants on their business their own efforts. The union not claim does that Bautista and directly indirectly Macias are now or have ever con- been nected with the milk purchas- brokers were from whom ing products milk boycott instituted; at the time the on the contrary, affirmatively appears that for some seven or eight years respondents have carried on milk a distribut- ing business, buying dairy products from various brokers. any Nor is showing Creamery there Challenge either Butter Dairies, against Association nor Associated whom boycott was directed, encouraged has fostered the sale of products by independent its vendors; indeed there is no evi- dence companies that these to such sold vendors other than Bautista and Macias. very

This a is different situation from that shown Emde case it appeared where without contradiction that the dairy, notwithstanding providing with the contract for drivers, of its exclusively members as truck change operation negotiated decided to the method of then men in its employ milk to distribute to the same agreement providing customers under an compensation upon a percentage By establishing arrange- basis. new ment for the delivery dairy products, escaped of its com> pliance with imposed by the- conditions union labor' as' wages working However, conditions. unless' one sub- having proposition, that a retail merchant scribes broad buys he which the wholesaler

no direct connection with subterfuge, must any carrying goods, business his nor on regardless his need organized employ labor members in the shown them, purpose has been then no lawful present ease. proper organized labor, is

True, a matter which within working condi- citizen, interest in the every has an concern industry. persons engaged in business tions of all who some of performs who Also, every proprietor of a business the usual employees, even within those his the same tasks as employee within the day, business from those hours of a takes But done them. part the work which could be group is to reasonable interest of labor union secure employees, working who, as wages conditions for those energy life of the industrial contribute andVskill to a business community. requirement proprietor A working hours and conditions to stand- must restrict his advantage- by a union has reasonable relevance to ards set no monop- organized have ous labor conditions unless more oly all work of the owner to do on useful assured. provide capital by wages may than which fully find- justified in For these reasons the trial court was ing agents “was not purpose that the union and controversy affects reasonably connected with any industry generally, milk workers em- workers the reasonably ployed by employ- it plaintiffs, nor was related to bargaining; purpose ment or collective was essen- that such tially repugnant selfish and of and unreasonable and outside purposes the of labor unions activities - respect improving such; as that the workers’ condition purpose public in- the subserved no results thereof public terest and was not for welfare.'” There is substantial boycott solely evidence to effect was that the instituted citizens, because and Macias were not American Bautista conflicting relating addition to that to the economic interests weighed determining which were required respec- to be rights parties. tive of the appellants rely upon not decisions this organized

court which it labor, speci- was held that under conditions, privileged upon fied is to appjy economic employers Supreme but assert that conclusions

759 compel judgment Court United States reversal present controversy. They particular in the call attention Employees Angelos, 320 Union v. U.S. [64 Cafeteria Bakery 58], & P. Drivers Local v. S.Ct. L.Ed. 1178],'in 86 L.Ed. Wohl, U. S. S.Ct. abridgement down, speech, the court struck of free an injunctions granted by prohibiting New York broad courts picketing any against persons having employees nature upon dispute” that no “labor was involved within meaning state statute. Brandeis, by Layers

Mr. Tile Justice dictum Senn v. Union, 301 1229], Protective U.S. 468 L.Ed. suggested the first time picket that labor to peacefully speech was incident free under the Four teenth Amendment to the federal Constitution. Senn’s com plaint charged picketed place that the unions had his of busi ness and also had sent letters to architects and contractors requesting patronize them not him because he was conduct ing shop threatening they picket nonunion if them Through did agreed so. the unions counsel would send other communications of that kind nor would they resort picketing. significantly, Most States United Supreme emphasized Court in its statement of the facts judge agreement the case that the trial treated dispos ing of the claim for boycott. relief on account of the For that reason, said, regard boycott was the union’s acts in to a were not material.

Considering upon decided, facts which the case appears Senn, proprietor business, of a small employees, also join his layers’ declined to the tile union. When he sign refused working a contract which barred him from at his trade with his peacefully picketed the place of injunction business. Denied an under Wiscon allowing sin statute labor to use that form of press economic ure, upon certiorari Supreme Court he contended abridged the statute his under the Fourteenth Amend ment to the United States Constitution work under condi affirming tions of his judgment, own choice. Mr. Jus tice Brandéis, speaking ques court, observed: “The tion for our either the means or the determination whether sought end Clearly is forbidden Federal Constitution. the means authorizes—picketing which the statute peac

n 760 Amend Fourteenth publicity—are prohibited not eful .. n . publicity did picketing The peaceful. ment. was involve, sought . . The .misrepresentation á fact. . end not ’’ was This conclusion is not unconstitutional. unioiis finding the union had interests upon based in conflict with those protect that Senn’s action was decision, summarizing Succinctly the basis (cid:127)interests. high by its Wisconsin, as declared laws of it was heldThe employer, induce an permit unions endeavor court, to: est working agree refrain unionizing shop, his when although hands—so to endeavor his own business in his union. Whether is a member his none o.f. permit ques is a the unions to do so for the state was' wise policy—mot our concern. The Fourteenth public of -its tion . prohibit it.” not Amendment does case, employer Senn was present Unlike place his of business after abandon picketed peacefully .union boycott. But a more secondary there is fundamental ing its situation of Senn that of Bautista between the distinction case, Supreme United States present for the Macias the Wisconsin Labor Code violated merely decided .that Court principle because the Fourteenth Amend constitutional injunction guarantee against peace not ment does (cid:127) connection, the court held that In this picketing. ful public policy of Wis with the wisdom concerned consin;.- authority is not -case therefore The Senn injunction prohibiting application that an proposition against carrying on person a business of economic guarantees efforts violates constitutional entirely -by his own contrary, the decision is consistent speech. On the free (cid:127) organized which restrict cases labor’s with the California More, injure competitors. par intentionally privilege privilege held that this did not stem federal court ticularly, declaring: Code, Labor the Wisconsin provisions of from the might, special statutory without authori of a union ‘‘Members dispute, make known the facts of a labor State, aby zation guaranteed the Federal speech Consti freedom of -for ” tution. California, U.S. Nor are Carlson S.Ct. Alabama, Thornhill U.S. 88 1104], and L.Ed. 1093], present determinative con L.Ed. e . an Alabama statute and a concerned troversy Thes cases respectively. Bach enact- California, county ordinance of challenged any form, was ment, prohibited in picketing speech under the Fourteenth denial of the of free as a stat- The court held both to the Constitution. Amendment case, pointed In the court the Thornhill utes unconstitutional. for no legislation against picketing room out that the “leaves engaged exceptions upon persons number of based either the character of proscribed activity, peaceful demeanor, employer, dispute the nature of their with of the terminol- the restrained character and the accurateness ’’ ogy notifying disphte. of the public used of the facts pointed The court that “the of information out dissemination concerning dispute regarded the facts of a labor must guaranteed within that area of free discussion that is Constitution,” and condemned the Alabama law because “whatever publicize the means the facts used of a labor dispute, activity ... all exception without is within the inclusive prohibition of the statute. ...” But the court recognized, general terms, required that a state not was permit picketing under all circumstances. In the Carlson case “sweeping because ordinance, of the and inexact” terms it was rights. held be violative of constitutional

Picketing again justified was upon guar- speech antee of free in the case of American Fed. Labor Swing, U.S. S.Ct. 85 L.Ed. In 855], case, enjoined the state court peacefully picket- the union from ing parlor a beauty in an upon endeavor unionize it ground that the proprietor dispute had his and none of the picketing members of the union had ever employed by been Swing. In reversing the decree, Su- preme Court declared: “A workingmen state cannot exclude peacefully exercising of free communication by drawing competition a circle of employ- economic between ers and workers small only so as to contain an employer and directly employed those by him.” But neither of these deci- presents sions injunction constitutional obstacle to the against appellant case, stand proposition for the organized labor has the constitutional right, as an incident of speech, peacefully free picket em- ployers, including those with membérship whom the union no prior employment had And, relation. noted, it should be general employed the court language in announcing the rule. to subse- according not declare, the court did Certainly, hold, announced was quent that the rule decisions not did might prop- exceptions, state courts without whereunder & Drivers (Bakery P. erly enjoin picketing.” peaceful “even supra.) Local Wohl, Dairies, 312 Wagon

In Meadowmoor Milk Drivers Union v. gen 1200], 132 A.L.R. U.S. 287 L.Ed. Thornhill placed upon eral limitation doctrine ‘‘acts concerned with and Carlson cases. The court was there contemporane peaceful” themselves “enmeshed but ously holding state court vio violent conduct.” that the by the union from principle, enjoining lated no constitutional utter “But declared: picketing, Mr. Justice Frankfurter all significance as an ance in a can lose context violence force. appeal part of an instrument to reason become Consti the Such utterance was meant to be sheltered . leaves the state tution. . . Fourteenth Amendment still The in the ample dealing of force with manifestations discretion . these liberties . But settlement of industrial conflicts. . not be advanced even speech press] will [freedom resources, denying to the states with all maintained courts, power including instrumentality of their Although the deal coercion due to extensive violence.” placed upon of the con decision, by necessity, was guarantee would speech, the same result stitutional of free state, recognized in applying long this be reached the rule means picketing violence is an unlawful conducted with exerting Meadowmoor deci pressure. By economic that, enjoining sion, plainly Supreme declared Court picketing (Steiner v. has was unlawful what this court said Magill Building Long Bros. v. supra; Beach No. Local Union, supra), etc. is no violation the federal Service there Allen- Moreover, implicit in the decision of Constitution. 1111 Relation Bradley Employment Local No. v. Wisconsin 1154], Board, 315 86 L.Ed. is the fur U.S. S.Ct. reasonably plac ther that a state restrict limitation e on, court had picketing is for there the state where carried among things, picketing in front of em enjoined, other ployee’s home. again Allen-Bradley case, the court

Concurrently with the In regulate disputes. labor sustained the of a state to Carpenters Cafe, Union v. Ritter’s U.S. & Joiners engaged an in- 1143], because Ritter L.Ed. labor, dependent contractor, employ who did not picketed carpenters’ peacefully structure, build a con- cafe, place his located a mile and one-half from induced Ritter’s cafeteria struction work. The union also dispute, to strike. The employees, whom he had picketing enjoined the Texas law. under antitrust so, sustaining power to do Hr. Justice the state court said; con- Frankfurter, speaking court, “The economic for the employer employee test has never concerned between merely immediate The clash of such conflict- disputants. ing well-being implicates com- inevitably interests munity. Society compelled has therefore to throw its been weight into the has undertaken to balance contest. law from, carry employer his effort of the on business free against the interference of the effort of labor to fur- others ther its economic And intervention of every self-interest. government struggle respect abridged has in some freedom of action one or the other or both. mediating

“The task of competing between these interests has, recently, largely judicial lawmaking until been left legislation. and not to . . . The deter- state to mine whether the imposing common interest best served upon inflicting some restrictions weapons the use of eco- struggle nomic injury conflicting industrial forces previously has not been doubted.

“But the dispute circumstance that a labor is the occasion of exercising freedom expression of give does not free- any greater dom constitutional or sanction render it com- pletely Where, here, inviolable. as claims on behalf of free speech are met with claims on authority behalf of the impose state to regulations protection reasonable for the of community the duty as a whole, the of this plain. Court- is “Texas has undertaken by to localize industrial conflict prohibiting the exertion of concerted at the directed business, wholly outside the economic context of the real dis- pute, person of a whose relation dispute arises from his dealings business disputants. with one of the The state has attempted psychological pressure outlaw whatever may be in involved the mere communication by an individual of the relating facts to his differences with another.

“It by peaceful is true picketing workingmen communi-

7.64 communicating facts the grievances. a means of

cate their Ás the phase a of dispute peaceful picketing be óf a labor of recognition But free utterance. constitutional of imply peaceful speech of does not picketing exercise free sphere power confine the must without states be that.the Re- dispute. the directly of related to communication to that industry within which picketing striction of the area the disputants other tra- open a labor arises the dispute leaves communication. ditional modes of cir- neutrals, in forbidding conscription “In the us, represents prevail- Texas the of"the case before cumstances ’’ ing, unanimous, policy probably states. Conforming case of to the doctrine of these decisions is the Bakery Wohl, supra, Drivers wherein the trial & Local P. enjoined peaceful court the sole “secondary picketing” involved, mean dispute” reason “labor was within the that'no ing Upon ruling was appeal, New York statutes. connection, In the Su opinion. written affirmed without these preme called attention to fact that each of Court ‘‘ cases, opinions delivered far as we can ascertain from So ., . were concerned courts . those courts state dispute a question there involved whether meaning In con within New York statutes. ...” enjoined peaceful demning manner in which the courts picketing, Supreme that “one need not Court declared dispute’ defined state law have the ‘labor grievance express under the Fourteenth Amendment by publication violence, coer á' labor matter unattended ’’ Although cion, oppressive. or otherwise unlawful or conduct case, required in' the Wohl that “A state is not conceding, places peaceful tolerate in all and all circumstances even picketing,” New attitude was assailed because “there York’s findings can are no' from which we draw no circumstances likely publication that the was attended or inference violence, coercion, conduct otherwise attended force oppressive. case, apparently unlawful or ...” the Wohl response Appeals New to the assertion that the Court of affirming subsequently York the decree disclosed basis ‘‘ court, Supreme respon the trial Court observed: dents say that basis for decision below was revealed subsequent Appeals, the Court it was where opinion regard to it was present said with case that ‘we held that peddler objective attempt an unlawful to coerce a employing making approxi no his business and mately thirty-two nine employee a week to hire an at dollars ’ Weber, Opera day day dollars a on Tour one a week. 267], 285 N.Y. 348 N.E.2d 136 A.L.B. writ of certio [34 495], rari denied in U.S. 615 L.Ed. But S.Ct. certification, formality this lacks of a the deliberateness and question was uttered a case where the of the existence speech to free the Fourteenth Amendment under was neither raised or considered.” From this it con cluded that if the case had basis for the decision the Wohl clearly court, been stated the New York the United States Supreme might Court well have reached different conc n lusi o . Opera Weber, In supra, employer on Tour v. an because refused to hire place musicians to take the of mechanical music, although dispute plaintiff existed between and such employees, the musicians’ union “ordered mem- and coerced” stagehands’ bers of the employ union “to leave the of the plaintiff, causing ruin plaintiff’s business.’’ The musi- enjoined cians’ union was from inducing the members stagehands’ striking, union from upon the that their conduct amounted secondary boycott, unlawful insti- gated for an purpose. affirming judgment, unlawful Appeals the Court of made clear the fact that it did not con- boycott sider that “any had reasonable connection with wages, hours of employment, health, safety, of col- lective bargaining, other employment....” condition of Upon Supreme certiorari States, Court of the United petition court denied the because “It does appear from question record that the presented by federal petition was necessarily decided Appeals.” (Opera Court of Weber, on Tour v. supra; rehearing denied, 314 U.S. 570].) implication L.Ed. justified denial, by Supreme Court, certiorari that case compels the conclusion remedy that the invoked Bautista and Macias violates guarantee. no federal constitutional

And it should also be noted present that the issue in the vastly case is different from the one determined the Wohl Supreme decision in that the Court there limited to de- ciding enjoined whether picketing could be for lack of a “.labor dispute.” The facts of the two cases are so different as to Although grounds Wohl was

present other for distinction. independent dis- engaged, Bautista, much as an the same as system fostered bakery products, part tributor of he was City. stated encouraged by in York As and bakers New passage due to the Jackson, years, Mr. Justice within five laws, unemployment compensation security the social and insignificant from an independents the number increased during eighteen months And, number 500. to more than forcing great num- preceding suit, employers been Wohl’s had quit dismissal, to drivers, bers of union under the threat of in inde- an employment and continue thereafter relation capacity. pendent the con-

No case. To present such facts were shown indepen- trary, engaged had been Bautista and his associate years and it does dently distributing milk for some seven milk as a truck appear employed that either ever had been case, that, as the Wohl appear driver. Nor does it here competi- aggressive kind of there were “the inroads of this upon living standards of*’ tion and members. Angelos, supra, Employees In Union v. Cafeteria operated sev-

peacefully which was picketed a small cafe New York Court copartners employees. eral union on the Appeals enjoining the affirmed a decree meaning of the dispute” within the that there was no “labor Supreme court, the reversing statutes. In York New cases, that work- Court, Swing declared citing the and Wohl public support appeal for ers “state their cases and im- regardless the area of orderly peaceful manner noted, it should munity policy.” state But defined picketing, union was pressure applied by the the economic boycott. secondary and not a do not com-

Certainly Supreme Court the decisions objective, unlawful pel permit a union to seek an this court to bar- having working conditions or no reasonable relation to has decided gaining power. Supreme that the Court All speech freedom of peaceful being an incident of picketing, guaranteed Amendment, cannot be under the Fourteenth arbitrarily prohibited enjoined by blanketly courts, state legislative definition. or limited under all circumstances although re- Moreover, Angelos different, case concerns boycott involves much more lated, principles. secondary A threat persuasion, consists of the that economic than having upon person, no dis- applied will be the third controversy, pute principals unless with either joins upon the one from union labor is he in the attack whom endeavoring to obtain certain action deemed desirable.

SCHAUER, court, J. I dissent. this suit the trial sit judgment ting jury, rendered favor without Adjudged whereby an!d Decreed “Ordered, Dairy Employees defendant Milk Local Union, Drivers agents, employees Union, said No. and the and members of Jones, hereby said defendant Paid enjoined permanently preventing plain restrained obtaining products tiffs from milk or milk from brokers or supply products, milk and milk and those who and sell such coercing selling plaintiffs from milk sup brokers from and plying plaintiffs products any with such milk and milk any manner means. ...” Defendants contend that they any have neither done nor threatened to do act which I plaintiffs injunctive granted. would entitle relief so opinion am of the position defendants’ is well taken. The dispute. material facts are not in As the trial found court, upon pleadings evidence, they and affidavit are as eight years follows: prior For some seven or commence- (on 31, 1941) plaintiffs ment December suit of this had been jointly engaged in the business of milk and milk distributing products in Angeles County Los to retail dealers. Plaintiffs performed labor, all of their purchasing own and their milk products milk making from brokers or wholesalers and deliv- ery to retail trucks customers two automotive plaintiffs individually appealing operated. owned organization defendants a labor as Milk Driv- are known Jones, Union, Paul Dairy Employees ers and Local No. secretary-treasurer. membership its consists The union milk-wagon helpers generally who drivers and and workers engaged in han- dairy are the milk business dling by-products of milk. shop

Defendant union union had entered into contracts ninety-five with whole- per about milk brokers and cent Angeles salers in County Los was the sell- whose business ing among of milk products distributors, and milk whom plaintiffs. Paragraph shop were contracts follows; dairy not sell “Employer agrees reads as that it will corporation firm or platform person, .at products its Agriculture Department of as a by the licensed California and causes such distributor observes milk distributor unless conditions of the same observe ’’ by employer. as those observed 23, 1941, proposed Prior to October plaintiffs’ the union to drive employ the latter members of driving declined, preferring to continue trucks. Plaintiffs membership apply for admission trucks, own but did 23, 1941, plaintiffs’ applica- in defendant union. On October “plain- rejected by the union on the tions were distributors,” on Novem- independent peddler tiffs were of the milk brokers and 21, 1941, ber the union to each sent contracts, reading it had letter with whom wholesalers salutation) (aside from follows: the date and confronted with “For Local has been some time Union #93 who have problem independent peddler distributors taking been from time to time business Local wage earners members of who are #93. 23rd, there regular meeting on October “Ata of Local #93 membership the in- filed applications were a number of at discussed some dependent which were peddler distributors meeting, length after which by the at that present members n rejected. were to see that Local were instructed “The officers of #93 comply Local employers agreements held who #93 agreement on or November Paragraph of our before 1941. the mem- Union and

“As these men not members of the membership, it admit them to bership does see fit to Union way left, that' is to discontinue and seems there is one distributors. selling peddler independent to these cleaning matter, “Hoping you cooperate up will Very truly yours, Jones, Sec’y Treas.” Paul D. ‘‘ and That the said notice further trial court found or,al 93 and Local No. its said suggestions and statements they that cease said brokers required officers demanded of and among plaintiffs, to products or milk any to deliver milk brokers under- distributors; that said independent other notice, to continued the event said to mean stood supply milk products plaintiffs, milk and to the the said Local No. 93 to apply request would economic enforce such strike, picketing boycott. and demand means of and “That direct result of notice and as a said communications all Angeles County complied re- brokers Los with the quest notice, and demand said and after December plaintiffs any refused sell or furnish or deliver to milk or milk products, plaintiffs and that that date since have been prevented any from securing products milk or milk and have been compelled business, great discontinue their their and irreparable damage. purpose

“That agents of said Local 93No. and its was to prevent plaintiffs obtaining any from milk or milk prod- carry ucts with which to on independent their business of milk distributing thereby to their retail customers, compel and plaintiffs employ their as drivers of trucks members said Local No. and discontinue driving their own trucks and doing their own of conducting work their their business with own hands.

“That said purpose was not related to the establishment wages, better or employment hours conditions of plaintiffs’ business, had no had need any for employees; purpose that the real of defendant Local agents No. 93 and reasonably was not any connected with controversy which affects workers industry gen- in the milk erally, or employed by plaintiffs, workers nor it rea- was sonably related to bargaining; collective purpose such essentially selfish and unreasonable and out- side of repugnant purposes and activi- ties of labor in respect unions to improving the workers’ con- dition such; purpose and the results thereof sub- public served no interest public and was not for welfare. ‘ ‘ That unless restrained the Court the defendant' Union Local No. 93 agents and its officers by peace- will continue persuasion ful through economic deprive plain- coercion to right tiffs their purchase milk and products milk the milk distributing Angeles County, brokers Los thereby deprive plaintiffs their indepen- to work as dent milk distributors living themselves and families.”

Nevertheless, peacefully induce, of the union to endeavor persuade, persons other to cease doing business

770 complied plaintiffs

with unless with not unlawful demands, decisively union been established decisions has Supreme of both court the this Court of United States. the County (1943), v. 23 Joaquin See Emde San etc. Council Cal. 146, 155 20, 916]; 2d 150 American Fed. P.2d. A.L.R. [143 Swing (1941), 321, 568, Labor v. 312 325 S.Ct. U.S. [61 of 85 570, 855, 857]; Bakery L.Ed. & P. Drivers Local v. Wohl (1942), 315 86 769, 816, 818-819, S.Ct. U.S. 774-775 L.Ed. [62 1178, Angelos ; Employees (1943), Union v. 1183] Cafeteria 320 293 88 U.S. L.Ed. S.Ct. [64 58]. the finding purpose so-called that of defendants was legitimate purposes of and repugnant

“outside of the respect improving activities labor workers’ unions such; purpose condition that results thereof ’’ welfare, public public subserved no interest and was not for part at least in a conclusion law rather than of fact. In case, supra (decided tried), the Emde since-this case was p. at “it expressly (23 155) court held Cal.2d organized . with be denied . . dissatisfaction system of distributing products milk which avoids minimum wages, compensation security hours, and social workmen’s benefits, dispute. of labor is a matter [Citations.] Therefore, in and directly interested con- union, and those urge public nected cause, the labor had organized labor, refrain and, course, from members dairy’s dairy unless buying products abandoned system had and rehired undertaken distribution which existing con- union drivers accordance terms of then ex- tract, employer-employee relation whether not the dairy. isted between the members [Cita- ” tions.] supra, (1942), Local Wohl Bakery And in & Drivers P. Supreme 1178], 86 L.Ed. U.S. S.Ct. enjoin labor union held Court of States the .United distrib- independent “peddler” peacefully picketing own performed all their work bakery products, utors who securing employ- employees, purpose and had no for the infringe unconstitutionally members, was to ment federal Con- right upon speech guaranteed free Em- reaffirmed in stitution. The same principle Cafeteria supra, ployees Angelos (1943), Union U.S. 126, 88 L.Ed. 58]. Gibson, although recog opinion of Mr. Justice

The Chief right work, in (pp. 748, 749) either em nizing that “The to many subject to ... ployment independent business or statutory all, legislative familiar to such as restrictions [italics age wages, working hours, on minimum limitations added] regulations, acts, safety and employment, licensing limits for a of . . . to economic peaceful, host others [and] seeking ends, conditions organizations such as seniority work, bargaining, of rather than collective individual advancement, the union privileges and and other methods injunction or on the shop,” attempts justify closed to (see plaintiffs being deprived pp. claim completely that are 751, 752) and of an inalienable to work themselves living. plaintiffs earn Actually operators a of an are independent being subjected simply business and are competition enterprise. Obviously plaintiffs vicissitous of free deprived living are not earn to work or their they merely conducting particular in because their business practical are employing faced alternative of union labor, choosing engage, in another business which to continuing in employee the same line in the of work but status workers, independent peddlers. union rather than The as plaintiffs manifestly distinguishable situation of here is from Negro plaintiff that and race his coworkers of the same Marinship Corp. ante, (1944), p. James v. 721 P.2d [155 329], In Negro arbitrarily case workers were excluded membership full union because of their color—an inher they ent attribute which powerless alter, are to even should they wish to so, do one which bears no rele reasonable vancy to maintenance or advancement of the interests of labor generally—while plaintiffs here were denied union member ship on the they independent sole peddler “were distributors,” e., engaged activity i. in a type were justifiably may be considered labor as a whole as inimical to its own economic sugges interests. There is no claim tion if plaintiffs independent had peddling ceased applied milk and for union membership on the same basis they as other members not have admitted would been and ac opportunities corded for both voice in equal affairs of other those members. not arbitrarily flatly plaintiffs closed as was done case James certain other (such cases therein cited as 772' (1938), Union 123 Newspaper

Wilson v. & Mail Deliverers’ 720]; Dorrington Manning (1939), N.J.Eq. 347 A. [197 Carroll v. Local 269 Pa.Super. 886]; A.2d No. (1943), N.J.Eq. 223, 225], and Cameron A.2d (1935), Stage Employees Theatrical International Alliance of cer N.J.Eq. 692, 701, 594]), A. 97 A.L.R. 11 [176 it is court assume to determine the wis tainly not for this dom, respect union labor or with respect either with adopted by the public whole, policy here union of as businessmen-workers, or refusing independent membership upon determination. base decision case businessmen, prefer if did even should Such able, at far least perform here to their own work so accepted and therefore the capitalist-employers, the status of whole, can opponents of labor and we and traditional as a. either admit justifiably pronounce that unions must taking else refrain from eco membership opponents such or against nomic measures them. (p. 736)

In the James case it is stated that “Defendants all compelled per- not to admit argue that a should be union may persons have membership, to some such sons because destroy it may from inimical to the union and interests reject expel persons who within. The of the union to or regulation policy or lawful to reasonable refuse abide (Brown (1940), 141 Pa. adopted v. Lehman Torts, b Super. 513], supra; see Rest. comment A.2d 810) remedy against persons.” to affords it an effective § reject may expel per- or general proposition that The a regulation by any who to or sons refuse abide reasonable policy Again, conceded. adopted by the union lawful however, regu- it not that a union is for this court to determine be, potentially occupy that policy lation or its must members is of, employees independent the status and not businessmen Nor the authorities either unreasonable or unlawful. would sup- case upon quotation relied in the James above port such a determination. Brown v. Lehman had to do with expulsion nonpayment dues, of union for a member reads, comment b section 810 of Restatement of Torts open to entirety, the union is em- its follows: “If ployee on reasonable terms and he refuses to be member job. it, the loss of no cause of action him from his accrues' to fact in each question Whether is the terms reasonable they They may require unreasonable because him to ease. high in pay unduly proportion an initiation fee is earnings industry, in the initiation is or because the un- fee reasonably higher for him for On hand, than others. the other it for is not a labor union to unreasonable set standards proficiency require applicants for its members for mem- and to bership conform to these standards. Nor is it unreasonable it engages retain as member one uiho ac- refuse antagonistic tivities organiza- to it or a member of a is rival Again, tion. unreasonable the union to distribute among available it is pro- work members when scarce or to vide that the senior the union preference members of have a taking jobs they (Italics appear.” added.) None depicted “unreasonable” situations exists here. opinion (p. 750) Chief Justice Gibson asserts that

“the decisions of the Supreme United States Court estab- general lish proposition peddler distributor system, deliberately pur- introduced for [italics added] if pose injuring interests of organized labor, if operates effect, may be met appropriate concerted action unions,” attempts then distin- guish the instant on grounds case “First, it is not a attempted case of introduction peddler system by em- ployers as a of lowering means the union’s conditions of work, since both entered the business on their own many years ago. initiative Second, it is not a case ped- dler attempting distributor compete with union workers on unequal terms, either for his interests own or those of the em- ployer. plaintiffs sought The two join the union, but were refused admission on the sole ‘ped- were ” dlers.’ No such propositions, general limited otherwise, pronounced by are the mentioned decisions. In each of them it merely was decided that upon particular its facts labor had nothing done might unlawful and enjoined not be from con- tinuing picketing, publishing, again, etc. And, it is not the province of this court to declare that the action taken union here not “appropriate.” Also, was as above, discussed fact, stated Chief Justice opinion, Gibson’s that the de- nial of union membership plaintiffs on sole they that “peddlers” were patently left door open to them join if would assume the same status as other mem- that the namely, employees. It obvious

bers, seems plaintiffs here, by insisting upon continuing their activities on peddlers, actually competing as with workers were unequal not un- terms under conditions which objects. justifiably be obnoxious to its considered to that, suggested Nor appear it does it as Chief Justice opinion contrary (p. 751), Gibson’s a decision to that reached by such decision will “doom to extinction” all “business- ” men-workers, including barbers, farmers, plumbers, etc. expressed aim neither nor manifested Such an has been here, The facts to character unions. involved of voca- tion, basically examples men- are different from those of the engage selling tioned. A a plumber primarily barber and services; engages farmer personal primarily own skilled a raising products selling from his land them. But these primarily conducting business, buying a selling goods program a profit. type If and when a suggested by apparent, may Chief Justice becomes legislative fully gov- should dealt arm of the piecemeal by If, ernment—not courts. the absence of legislation, presenting problem a case should arise a type the occasion will be sufficient itself unto for consid- eration and determination of powers and duties of the court in premises. Moreover, that, fact as also noted opinion Gibson, suggested Justice pro- of Chief gram, pursued, place if would additional hazard in the path of may hope ultimately those union members who independent businessmen, primarily become problem raises a policy, legislative internal union or of outside action; this court propriety paternally advise unions concerning policies may might we consider be most advan- tageous to certain of their members. It would be in the showing event of clear private rights unlawful invasion public policy that the courts should interfere. Chief Justice opinion (p. 753) Gibson’s next declares although “may true . . . the inapplicability [that] security social and workmen’s compensation gives laws peddler special bargaining advantage with the employer by permitting him to work for [italics added] lower problem return . . . the presented thus must be solved eliminating without entirely businessmen-workers from the industry. ranks of unemployment labor and Insofar insur- concerned, not within provi- anee is would come the or workmen, if sions of to hire the law even were one two employers only greater since to hire a apply the statutes who applicability employees. of of number If the [Citations.] criterion, then unemployment were the labor would insurance merchant, weapons have force the small the to use to grocer because, the small barber and the corner out of business it, they since their trade does not cannot to warrant afford enough employees to of hire come within terms statute. If similarly it to bring peddlers seems desirable and others purview relating unemploy- situated within laws to compensation, ment insurance proposals and workmen’s accomplish that end must be to the Legislature addressed or may, course, The union impose voters. re- reasonable quirements regulations if membership, adopted peddler comply are proper relinquish must therewith position his pressure. favored in order avoid union If peddler meets the imposed, accept conditions the union must him for membership give up its demand for a shop. closed peddler may The interests member not be identical with men, the other union inequali- but the resultant conflicts and ties if objectives must overcome of organized labor are be achieved and of attaining pre- the means them arbitrarily depriving served without the small man business operates who without aid

work with his hands.”

First, may be noted though unemployment that even in surance not apply employers does with less than em four ployees (Deering’s Laws, 1937, p. Gen. 9), Act 8780d, § every pays salary individual who a single even worker employments within the covered Federal Insurance (26 U.S.C.A., Contribution Act 1400, 1410, Code), Int. Rev. §§ popularly more Age known as the Old Insurance or Pension Law, required (as employee also is the of with means holding employer) to contribute to provided the fund per such act sum now paid. fixed at one salary cent compensation And workmen’s insurance, also, applies to having those employee. (Cal. one Code, IV.) Lab. div. Second, it may properly said “peddler,” other- ‘independent wise termed businessman-worker,” has an “employer.” ordinarily He is free to secure his merchandise to him- advantageous most he deem sources as

from such whom, when, and at such where, dispose self I at dictates. am good sense profit to himself as his business a union requirements” “reasonable to a loss understand what inequalities and that “conflicts adopt could to end employee and union mem- “peddlers” overcome” as between peddlers require who seek admission Is the bers. union to attempting they charge prices (thus to higher to rolls that in- anticipated field), with their price-fixing enter and insurance, for themselves accident profits purchase creased available) unemployment insur- annuity, (if retirement and advantages social (thus degree paralleling the ance to some charge security compensation) workmen’s ? Or is it and to itself higher peddler from and undertake dues members imagination given A furnish for them such benefits? fertile field, legion in this but play suggestions offer free could their “reasonable- is union to determine what standard independent businessman of peddler ness”? Would or complain, requirements made the union whom such were case, his in the James that plaintiff as did the and eoworkers being in not being against union he was discriminated I membership accorded basis as other members ? on same suggests think that the answer these Chief Justice Gibson problems thought should control decision and the our following language: in in “If it seems desirable case, this bring peddlers similarly situated within the and others security purview relating workmen’s of the laws social accomplish end compensation, proposals that must be ad- Legislature to me dressed to the or It seems that voters.” problem presented legislative one for whole case is control, any, in if and I fear set forth decision more confu- opinion Chief Justice Gibson will tend toward litigation sion than meantime. otherwise problem apparent. Still another is If the unions are to be independent businessmen, forced to admit or membership effectively refrain from the latter’s interfering else busi- nesses, path open breaking then the for the down will be working higher advantages wage scale other men gaining years. which the unions recent have succeeded During However, present jobs plentiful. era if war during periods employment, unemployed widespread less peddler (or union to enter if members wish field brought employed it, on members force them to enter case), by was done Bmde what means union, could the prohibited expelling them, if it is from or else shutting from supply, off or effectively their markets their sources of prevent producers from dealing peddlers, or wholesalers with such in turn forcing thus other union members out of peddler into the field with its uncertain and hazardous income levels and its lack of the social benefits en- joyed by regularly employed workers?

Furthermore, for this court to hold that the unions must peddlers independent admit (or businessmen else take against them) economic requiring measures without give up independent position changes such other make of doing reasonably their methods business as the demand, tacitly holding would amount although may peacefully if shop, must, strive to secure a closed successful, accept as members the closed of such at shop salary whatever or working other conditions such em- ployees may accept, regardless he to of stand- satisfied explicit ards. Such an holding would, course, of never be suggested.

A further reason for not requiring that as an unions must to alternative invoking peddlers against economic sanctions admit them membership, to in universally accepted lies purpose understood and raison d’etre of unions: the maintenance (in- and enhancement of favorable conditions cluding, of course, wages) for men That working as a class. purpose may clearly also be in discerned the efforts of labor to shops, unionize nonunion even dispute where no exists be- employer (See tween employees. comment c Torts, Best. 788.) may to truth, that to each of its members said § improve Union duty exerting owes the of best efforts position. past his economic But such efforts have been primarily working confined at least betterment con- to the of laboring of ditions men who were the status of operated independent businesses, —not of who those employees. without Chief this By opinion Justice Gibson’s impose upon court will choice of per- unions the anomalous mitting peddlers they to operate their businesses as wish and endanger many working thus benefits men has which labor long struggles, secured admit after and arduous or else to peddlers, duty owing membership these same and then as improve members, attempt their inter- them lot. The independent ests and of labor on the hand businessmen one businessmen-workers,' any they peddlers, —be called other, other not appellation—on conflicting and are they in a to be solved of this court that must unite decree joint union. court, through

As Justice speaking declared this Mr. Lyons Edmonds, (1940), Smith C. S. Met. Market Co. they 403-404 Cal.2d P.2d “The fear that : 414] grown endanger have so as to vital strong [labor unions] disrupt functioning civil our economic liberties argument system exclusively is an for the consideration legislature. Upon point aptly Mr. Justice Brandéis come dissenting opinions: stated in one of his ‘Because I have of a conclusion that common both law state industrial statute of the United States declare the struggle justi- push combatants to their to the limits of the at- self-interest, I fication do wish to be understood All right. taching constitutional or moral to that sanction rights purposes society are derived from rights duty community. all exist; above rises industry may en- developed conditions such that those danger gaged struggle in it cannot their continue without community. judges But it is not for to determine whether to set limits exist, such conditions is function nor. new permissible contest which the declare duties legislature, situation function demands. This rights aggres- which, limiting group individual and while justice processes of defense, sion and substitute ’ Printing (Duplex primitive more trial method'of combat. Deering (1921), Press U.S. Co. 196].)” 349, 16 A.L.R. L.Ed. in by defendants here

So as concerns the methods used far to maintain at union standards efforts real distinction appears to union, there be members of commonly other used methods and those between such in a market seek free and honest who peaceful businessmen competitors. away from their to take business 1060], Kapper (1935), Cal.App.2d P.2d Katz to question as it a Appeal had of before the District Court for un- of action state cause sufficiency complaint of a to complaint fair competition. alleged, among things, other (see p. Cal.App.2d) 3 of that “the defendants deal- [fish maliciously meetings called of plaintiff, the customers ers] they threatened them that driven would be out of business they purchase ruined if to continued fish from plaintiff, but promised they if purchased that fish from defendants, they given would be substantial in price, reductions so that successfully compete could plaintiff and drive him out business; if buy said customers continued plaintiff, the open defendants would a retail store and would plaintiff’s sell fish to the customers of at such customers low prices plaintiff’s customers would be driven out of busi- ’’ allegations ness. There were further the effect that defen- store, opened dants very advertised and sold fish at low prices, anat actual to themselves, deprived plaintiff loss of part 4): of his business. The court (p. declared “In de- ciding defendants, alleged whether the conduct of in com- plaint actionable, necessary apply it is certain well-set- relating tled competition may rules in business. be These ‘ generally Competition though stated business, as follows: carried ruining rival, extent of ordinarily is not ac- tionable, but every trader is left to conduct his business way, long his own so as employs he not methods do in- wrongful fraud, misrepresentation, volve in- conduct such as timidation, coercion, or obstruction, molestation of the rival or his workmen, procurement servants or or the- the viola- tion of contractual If as relations. disturbance or loss comes of competition, rights by the result or exercise like oth- ers, as neighbor, where a merchant undersells or oversells his injuria.’ absque it is (15 R.C.L., damnum p. and eases cited.) . . . The fact that methods used were ruth- [P.6] less, unfair, sense, stamp illegal. or in a moral does not them as duty It never regarded province has been regulate courts practices beyond business world point applying legal involv- equitable remedies cases ing Any ex- oppression acts of or deceit are unlawful. jurisdiction through legislative tension of ac- come must holding tion.” I am approving disapproving neither nor case, theory enterprise Katz long but so free applied defined is capital equally there to activities of should applied suggesting those competi- of labor. I am not subject organizations tive activities 780 applica- definitely to opposed control I am

reasonable but organizations deny of a double standard which would to tion one in the other. of character activities which condones competitors plaintiffs in that here

Defendants of are for mem are seeking the defendants secure to plaintiffs are very of union to work which bers do gain as in doing, or, aspect matter, to how another organized persons who those customers members of However independent now customers of businessmen. enterprise costly may be, some of the attributes of free is in freedom ... “Competitive is established state in importance competitor justify of sufficient one induc to ing party competitor if no con a third forsake another to (Impe tractual two.” relationship exists between the latter P.2d (1941), 33, rial Ice Rossier Co. [112 Cal.2d plaintiffs 631], cited.) and cases there No claim is made plaintiffs any that defendants here induced customers of the any the milk breach contract them induced to or brok to breach a brokers contract between not ers, and it was or for the brokers to determine whether request peaceful they wished to accede defendants’ to selling labor— plaintiffs. weapons cease to strikes, picketing, boycotts—are persuasion, means of economic, thereby moral and action induced con (See templation voluntary. Mat possibility thereof is Terminals, Emp. (1944), 24 son Inc. v. Com. Cal. California ; 2d P.2d Bodinson Mfg. Co. 202] California Emp. 935].) P.2d (1941), 17 Cal.2d Com. exposes enterprise This case the institution free operation test for and administra democratic fairness in its If it lawful, tion. is enterprise, the interests of free gain power capital organizations wield their economic gain competitors customers from control seek to supply merchandise, though sources of items even par practical may competitor result force out of the preclude handling him a certain ticular business or organiza item, equally then it should lawful for a labor con power tion to similar end. That which is wield to a organization merely when done an sidered smart business injunctive pro capital give rise relief when should not purpose Admittedly posed by organization labor. seeking ease is a one the sense that each selfish each Certainly promote there the welfare of its own members. may may pre be a state public interest both and the cases beyond in personal scribe reasonable which the limitations on organized trespass public terests of groups private each perhaps interest and not on the interests other. mere purpose But the fact that the is selfish does make it In case of McKay unlawful. v. Retail Auto. L.S. 373], 311, 1067 323 No. 16 Cal.2d P.2d Union [106 (1940), discussing Building in case J. F. Parkinson Co. supra, 1027, Trades 16 (1908), Council 154 Cal. 581 P. 550], this Ann.Cas. L.R.A.N.S. court declared: self-interest— “The ultimate motive for their activities was employment secure for them ‘to on more favorable terms lawfully selves’, purpose could pursuit they and in of that attempt the exclu by plaintiff, ‘to secure case Hence, sion of those not associated with them’.” as to the bar, legislative at rest rather than with the must judicial government branch establish limits which compass ordains. the fundamental law itself narrower than here, a argued plaintiffs, It is for that this is not contro that employer employee and and hence versy between an an controversy. strange legitimate not a It a it is labor is organized concept labor to work which limit unnatural would ing employers. organized cannot fields labor in the If non- weapons against unorganized direct workers will, against employers as well employer businessmen as indeed, shackles, forged if be be shackled. Such are to Legislature wrought and not all, at should be true, declared this case it for If in the Emde courts. that Cal.2d), 155 of 23 (p. Justice Edmonds court Mr. organ dissatisfaction of may denied that . “it not be . . products milk which system distributing ized labor a wages compensation hours, minimum avoids workmen’s labor security matter of benefits, is and social a Cer equally true here. dispute,” then declaration engaging case had been tainly plaintiffs the fact as in the only, of for few weeks years—instead for a several ‘‘ products which distributing system milk Emde case—in a compensation wages hours, minimum workmen’s avoids ’’ lessen benefits, expected should not security and social plain system stopping or interest organized labor's regard Even we in it. if participation tiffs’ as workers just it is much organized interest of principle have the recognized of the Emde ease re- spected by workers—and persuade to seek to end them that —as it is to have such principle accepted employers. organized If labor may lawfully picket boycott or em ployer employs because he equally nonunion may labor then it lawfully picket boycott the nonunion worker. absence of a valid proscribing statute practice, such if secondary boycott is lawful one case it is in the other. That boycott, primary either secondary, is form persuasion economic employed accomplish purpose lawful is firmly (McKay established. v. Retail L. Auto. Union No. 1067 (1940), 319; S. supra, Cal.2d C. Market Lyons S. Smith Met. Co. v. (1940), supra, 16 Cal. 389, 395; 2d Fortenbury Superior (1940), Court Cal. 2d 411].) P.2d plaintiffs places arguments

One advanced operate private business without operate employees. above a similar business with I perceive making no reasonable distinction. distributing employees If the business milk operated of (as as is admitted must because of such decisions Layers (1937), 468, Senn Tile Protective Union 301 U. S. 857, 863, 1229, 481 81 ; S.Ct. L.Ed. American 1237] Swing (1941), Labor v. 312 supra, Fed. 321 U.S. of 855]; Joaquin County L.Ed. Emde v. San hours (1943), supra, 146) 23 Cal.2d that the etc. Council distributing work, etc., and of of actually conditions those legitimate subject the milk as are of interest labor Indeed, in Emde Edmonds and action. the case Mr. Justice says (p. Cal.2d) specifically union, 155 of “the and and connected labor directly those interested in with the organi- the case [including cause cited certain other labor officers, newspaper], had the zations, their and a certain of urge and, course, organ- the members right public to the of of dairy’s unless buying products the labor, ized to refrain had system the distribution which it dairy abandoned of in accordance with union drivers and rehired undertaken contract, not the existing whether or em- terms between the members then existed ployer-employee relation added.) Surely (Italics dairy.” and the union of quoted above enforcing organized labor interest against businessmen nonemployer proposition extends to and members industry are not workers who public employer, organization just labor as much as to an quoted generally, And if the the union. and members of rehiring of union proposition applied is sound when to induc- application to workers it should be sound equally dispute’ broad is a ing original hiring. The “term ‘labor prop- one,'and, definition, may be statutory in the absence of reasonably related erly applied any controversy ‘which is bargain- purposes employment of collective to the ing’.” (1940), (McKay Retail L. Union Auto. S. No. con- organization 324.) which supra, Cal.2d A contracts protecting existing tented itself with exten- did not seek the establishment new or the contracts employment sion of hardly for its members would measure up scope commonly action exhibited and standard of If labor unions. the extension of such contracts seeking and if means further are lawful purposes lawful, used to attain those otherwise then pressure designed applied to attain the desired ends can be nonconforming nonemployer businessman and to the just employer. worker well as as to an I have to make it clear we here endeavored do not any question have before us as union arbitrarily plaintiffs refuse membership to the on a basis request equality with its other members or equitable question relief in which the its refusal might pertinent membership touching on its equity. invoke It is not contended sought employment employees, membership in the employees. upon con- They are, in the status and insist tinuing be, independent sought mem- businessmen. They to, in the union not to conform bership support, or to objects program, solely but further own interests competition businessmen in interests independent with objects of the union. McKay in the (supra,

As declared court case principle 311, 320), “It is a fundamental Cal.2d equity may drastic sanctions of not be a invoked without showing specific justifying detailed facts such relief.” plaintiffs here milk competing were defendants for distributing business, seeking get for the union’s defendant

members as plaintiffs business do- were ing independent peddlers. competition “And work for being an entirely lawful activity, competing whether the groups be unions, or unions and a individuals, equity court may not interfere restraining form the use lawful action used in struggle.” concerted (McKay Retail Auto. L. Union S. 1067 (1940), 322.) No. supra, p.

From apparent what has been said it defendants that the sought neither an unlawful end nor used unlawful means. had They compete plaintiffs in free market in the milk distributing business possible boycott had the aid use the In in- my judgment cause. opinion granting junctive sought relief should be reversed.

Carter, J., and Traynor, J., concurred. Appellants’ petition rehearing January was denied Carter, 1945. J., Traynor, J., Schauer, J., voted for rehearing. F. No. 17092. Bank. Dec.

[S. 1944.] ROBERT al., Petitioners, S. HOWARD et v. SUPERIOR al., Respondents.

COURT OF SAN MATEO et COUNTY

Case Details

Case Name: Bautista v. Jones

Court Name: California Supreme Court

Date Published: Dec 30, 1944

Citation: 155 P.2d 343

Docket Number: L. A. 18437

Court Abbreviation: Cal.