In re DeSilva
- Reporters:
- , , ,
- Before:
- Shenk
The petitioner sought his release from confinement pursuant to a conviction of contempt for violation *77of a preliminary injunction issued in an action brought by Lillian and Nathan A. Simons, doing business as Sureway Drug Company, against the Retail Clerks Union Local 770 and other defendants.
Sureway Drug Company is a retail drugstore in Los Angeles which employed two pharmacists and eight clerks. The employees were unorganized. In April, 1947, the union began to organize the employees and obtained membership applications and representation authorizations from a majority, namely six of the employees including one of the pharmacists. Subsequently all or some of the six employees were discharged from their employment and the company refused to sign the proffered collective bargaining agreement. The union commenced picketing the store on November 6, 1947. In January, 1948, the company filed with the National Labor Relations Board a petition for certification of a representative of the employees, designating the union as the claimant for recognition. The petition was denied by the board on the ground that the union had not filed the documents, reports and affidavits required by sections 9 (f) (g) and (h) of the Labor Management Relations Act, 1947 ([61 Stats. 143;
The court denied a motion to vacate the injunction. On May 7, 1948, the petitioner was convicted of contempt for the violation. He was committed to the county jail for a period of five days and ordered to pay a fine of $500. He was *78released on bail pending the determination of this proceeding.
The contempt order recites the foregoing procedural steps and the wording of the injunction. The court in the contempt order also found the interstate commerce character of the plaintiffs’ business which is assumed for the purpose of this proceeding.
At the contempt hearing the petitioner raised the question of the jurisdiction of the superior court to issue an injunctive order to restrain alleged unfair labor practices declared unlawful by the Labor Management Relations Act, 1947 (§§8(b),303(a)).
The record shows that the plaintiffs’ employees were not on strike, and that the picketing did not interfere with the performance of their duties. Admittedly the picketing was conducted in a peaceful manner. No secondary boycott activities as such were conducted. There was no active interference with the discharge of common carrier obligations such as was involved in Northwestern Pac. R. R. Co. v. Lumber & Sawmill Workers’ Union, 31 Cal.2d 441, 448 [189 P.2d 277], Failure of common carriers to deliver goods was due solely to the refusal of truck drivers to cross the picket line. Since the picketing was peaceful, and there was no unlawful objective under state law (see Gerry of California v. Superior Court, 32 Cal.2d 119 [194 .P.2d 689]), the sole purpose of the lawsuit, as to its injunctive features, was to obtain equitable relief for an object declared unlawful under the National Labor Relations Act (49 Stats. 339;
The question of the jurisdiction of the superior court to restrain unfair labor practices under the federal act was involved in Gerry v. Superior Court, supra. This court there held that the declared intent and purpose of the Labor Management Relations Act, 1947, was to vest exclusive jurisdiction in the National Labor Relations Board over unfair labor practices affecting interstate commerce and to vest in the courts generally jurisdiction only of actions for damages arising out of the commission of such practices, and that the act deprived the superior courts of original equitable jurisdiction in such cases. No distinction may be made here because the National Labor Relations Board had denied the com*79pany’s petition for certification of a union representative. By the denial the board did not divest itself of jurisdiction to determine whether the defendants were committing unfair labor practices affecting interstate commerce which should be enjoined pursuant to the procedure provided by the act. Its exclusive jurisdiction over that matter had not been invoked by the plaintiffs. And, assuming the interstate character of the commerce, the absence of the required reports and affidavits did not affect the jurisdiction of the board to act on such a petition of the plaintiffs had it been filed. It was observed in the Gerry case (32 Cal.2d at pp. 129-130), that since the federal act does not make the filing of the documents by labor organizations a prerequisite to the exercise of jurisdiction by the board on a charge of unfair labor practices presented by the employer, there is no inadequacy of the available administrative remedy merely because of the failure of the union to file the documents.
Habeas corpus is an appropriate remedy to obtain the release of the petitioner from confinement pursuant to a conviction of contempt based on violation of the void order. (In re Bell, 19 Cal.2d 488 [122 P.2d 22] ; In re Porterfield, 28 Cal.2d 91 [168 P.2d 706, 167 A.L.R. 675]; Kreling v. Superior Court, 18 Cal.2d 884 [118 P.2d 470].)
The respondents invoke the alternate ground of the judgment in United States v. United Mine Workers, 330 U.S. 258 [67 S.Ct. 677, 91 L.Ed. 884], as support for the injunction and therefore the contempt order. In that case the question was whether the Norris-LaGuardia Act [47 Stats. 70,
The respondents’ reliance on In re Fortenbury, 38 Cal.App. 2d 284 [101 P.2d 105] (1940) is also unavailing. The result there was based on the recognized validity of an injunctive order in a case where the trial court had jurisdiction of the subject-matter and of the parties. The distinguishing factor in that case was the existence of jurisdiction to issue the restraining order. That jurisdiction is lacking in the present case.
Other points and arguments do not require special notice.
The petitioner is discharged.
Gibson, C. J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J. concurred.