PARK & TILFORD IMPORT CORPORATION (а Corporation), Respondent, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL NO. 848, A. F. of L. et al., Appellants.
L. A. No. 18653
In Bank
Jan. 31, 1946
Rehearing Denied February 25, 1946
27 Cal.2d 599 | 165 P.2d 891
The judgment of dismissal in favor of defendant Moore Drydock Company and the order denying a preliminary injunction are reversed.
Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.
Respondents’ petition for a rehearing was denied February 25, 1946.
Clarence E. Todd as Amicus Curiae, on behalf of Appellants.
O‘Melveny & Myers, Louis W. Myers, Pierce Works, W. B.
TRAYNOR, J.----Plaintiff, a New York corporation engaged in the manufacture, importation and sale of alcoholic beverages, maintains its local and western division offices in Los Angeles. All of its merchandise in California is brought into the state. Four per cent of the goods from its local warehouse is sold and shipped to other states and the rest is sold to customers in California. It is admittedly engaged in interstate commerce within the meaning of the National Labor Relations Act. (National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 [57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352]; Lyons v. Eagle-Picher Lead Co., 90 F.2d 321.) Its California employees include a division manager, secretary, bookkeeper, warehouse superintendent, fifteen salesmen, four office clerks and two teamster-warehousemen.
In January, 1941, plaintiff‘s salesmen formed a union called the Park & Tilford Salesmen‘s Association. In the same year, one teamster joined defendant Local 848; the other joined defendant Local 595. In January, 1942, representatives of Local 595, with plaintiff‘s permission, interviewed the office clerks and asked them to join the union. They refused. Toward the end of February, 1942, representatives of Local 595 requested plaintiff to sign a closed shop contract covering the clerks. When plaintiff refused, the union threatened to call the teamsters out on strike, establish a picket line, and boycott plaintiff unless it signed the contract. Plaintiff again refused and in March, 1942, Local 848 was asked by Local 595 to organize the salesmen. With plaintiff‘s permission Local 848 interviewed the salesmen, but they refused to join. Local 848 then submitted a closed shop contract to plaintiff, which it refused to sign upon the ground that to do so would be an unfair labor practice under the National Labor Relations Act, since the union did not represеnt the salesmen. On March 20, 1942, the Park & Tilford Salesmen‘s Association admitted the office clerks and changed its name to Park & Tilford Mutual Association. Additional requests by the unions failed to induce plaintiff to sign the contracts, and the unions called the teamsters out on strike and began to picket plaintiff‘s place of business. A boycott was instituted June 14, 1942. The Los Angeles Food and Drug Council published plaintiff‘s name and business in its “Unfair List” and defendant noti-
On September 1, 1942, plaintiff filed a petition with the National Labor Relations Board for the certification of a bargaining agent for its employees, and on September 2, 1942, brought an action in the superior court for an injunction. On September 3, 1942, Local 595 filed charges with the National Labor Relations Board that plaintiff was guilty of an unfair labor practice, namely, the domination of the Park & Tilford Mutual Association. The Regional Director refused to issue a complaint that plaintiff was guilty of an unfair labor practice, and his action was sustained by the board on an appeal by Local 595. Plaintiff‘s petition before the National Labor Relations Board was dismissed on the grounds that neither defendant labor unions nor the Park & Tilford Mutual Association presented any request for recognition and that plaintiff could not lawfully recognize defendants as exclusive bargaining representatives of plaintiff‘s employees since they did nоt even claim to represent a majority. (47 N.L.R.B., No. 55.)
In the superior court action, the court found that plaintiff suffered irreparable damage and will continue to do so unless the picketing and boycotting cease; that all activities of defendants have been peaceful; that no violence or threats of violence have occurred; and that no false or fraudulent statements were published by the unions other than the statement that plaintiff was “unfair to organized labor” and the publication of plaintiff‘s name and business on the “Unfair List” of the Food and Drug Council. The prayer of the complaint was that the defendants be enjoined from (1) denominating or listing plaintiff as unfair to organized labor or to defendants; (2) taking any concerted action that would affect the sale or delivery of plaintiff‘s products, “for the purpose of inducing or compelling plaintiff to violate the National Labor Relations Act.” The complaint does not on its face seek to restrain defendants from organizing plaintiff‘s employees, or to prevent the use of picketing, boycott, strike, or other concerted action for the purpose of securing membership in the Locals. The judgment, however, goes far beyond the relief sought in the complaint. The judgment expressly enjoins defendant: (1) From denominating or listing plaintiff as “unfair.” “(2) From interfering with or preventing or attempting to interfere with or to prevent, whether by picket . . . or other threat of concerted action, the sale or delivery оf products manufactured or distributed by Park & Tilford
In this state “a union may use the various forms of concerted action, such as strike, picketing, or boycott, to enforce an objective that is reasonably related to any legitimate interest of organized labor” but “the object of concerted labor activity must be proper and . . . must be sought by lawful means, otherwise the persons injured by such activity may obtain damages or injunctive relief.” (James v. Marinship Corp., 25 Cal.2d 721, 728, 729 [155 P.2d 329], and authorities there cited.)
Plaintiff contends that if it entered into a closed shop agreement with defendants or coerced its employees to join defеndant unions it would commit an unfair labor practice under the National Labor Relations Act* and that defendants’ activities were therefore directed at an unlawful objective. It relies on section 794 of the Restatement of Torts, which declares that it is not a proper objective of concerted labor activities to induce an employer to commit an act that would violate a legislative enactment or be contrary to public policy.
Defendants concede that they did not represent a majority of plaintiff‘s employees in an appropriate bargaining unit when they demanded that plaintiff sign a closed shop agreement and coerce its employees to join defendant unions. It cannot be seriously questioned that their demands were not only ill-advised but unlawful, and that plaintiff not only had the right but was under the legal duty to reject those demands. There is no merit in the contention that in reaching this conclusion this court is encroaching upon the exclusive jurisdic-
The closed shop is recognized as a proper objective of concerted labor activities, even when undertaken by a union that represents none of the employees of the employer against whom the activities are directed. (McKay v. Retail etc. Union No. 1067, 16 Cal.2d 311, 319, 322 [106 P.2d 373]; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 382 [106 P.2d 403]; C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389 [106 P.2d 414]; Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92 [113 P.2d 689]; see Fortenbury v. Superior Court, 16 Cal.2d 405 [106 P.2d 411]; Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682 [123 P.2d 20]; Emde v. San Joaquin County etc. Council, 23 Cal.2d 146, 155 [143 P.2d 20, 150 A.L.R. 916]; Lisse v. Local Union, 2 Cal.2d 312 [41 P.2d 314]; In re Lyons, 27 Cal.App.2d 293 [81 P.2d 190]; J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581 [98 P. 1027, 16 Ann. Cas. 1165, 21 L.R.A.N.S. 550]; Pierce v. Stablemen‘s Union, 156 Cal. 70 [103 P. 324].)
Under the National Labor Relations Act a union may engage in concerted activities to win over a majority of the employees to a closed shop, even though it does not then represent a majority. In section 1 of the National Labor Relations Act (
Plaintiff contends, however, that such activities are divested of their lawfulness in this case by the findings of the trial court as to their purpose. The trial court found all allеgations of the complaint to be true. The complaint alleges that defendants threatened to undertake concerted action “for the purpose of inducing plaintiff to violate the National Labor Relations Act by coercing its salesmen and clerical employees to join unions which had not, at the time said threats were made, and have not at any time, been designated as collective bargaining agent by the majority of either said salesmen or said clerical employees.” The complaint also alleges that “Thereafter and in pursuance of such statements and threats, and by reason of such refusal on the part of plaintiff, and with the intent and purpose of coercing plaintiff into interfering with the rights of sеlf organization of its salesmen and clerical employees, as hereinbefore set forth, said Local 595 and said Council, and each of them, took the following action. . . .”
The trial court, like the plaintiff, assumed that since defendants undertook their concerted activities after the rejection of their demands, the purpose of the activities was simply to compel acceptance of the demands. The demands, however, were but a means to an end, and that end was the closed shop. When they failed and other means were undertaken, the end was still the closed shop. It was not scaled down to an immediate and lesser end. There is no evidence that defendants were preoccupied with so futile a purpose as compelling plaintiff‘s acceptance of their demands merely to place it in the position of violating the law. They were not seeking an empty victory; they were seeking to surmount successfully the hurdles that stood between them and the closed shop. In the early stages of the struggle for a closed shop they made demands that the employer was bound to reject. Having failed in their attempted short-cut to a closed shop, they turned to picketing and boycotting, long recognized as legitimate activities, to achieve that objective. Their abortive attempt to attain the closed shop by means that would have required plaintiff‘s unlawful participation did not preclude defendants from attempting to win over the majority of plaintiff‘s employees necessary to make a valid closed shop agreement.
Picketing and boycotting unquestionably entail a hardship for an employer when they affect his business adversely. The adverse effect upon the employer‘s business that may result from the competition among workers for jobs is comparable to the adverse effect on his business that may result from his own competition with other employers. It is one of the risks of business. (See C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 398 [106 P.2d 414].) “The law . . . permits workers to organize and use their combined power in the market, thus rеstoring, it is thought, the equality of bargaining power upon which the benefits of competition and free enterprise rest. Accordingly, the propriety of the object of workers’ concerted activity does not depend upon a judicial determination of its fairness as between workers and employers.” (4 Restatement: Torts, p. 118.) In Stillwell Theatre Inc. v. Kaplan, 259 N.Y. 405 [182 N.E. 63, 84 A.L.R. 6], an employer, bound by a closed shop agreement with one union, suffered great hardship when his theatres were picketed by another that sought to win over his employees. The New York Court of Appeals denied injunctive relief, declaring: “The Court of Appeals has for many years been disposed to leave the parties to peaceful labor disputes unmolested when economic rather than legal questions were involved. The employer, if threatened in his business life by the violence of the unions or by other wrongful acts, might have the aid of the court to preserve himself from damage threatened by the recourse to unlawful means, but the right of the workmen to organize to better their condition has been fully recognized. The fact that such action may result in incidental injury to the employer does not in itself constitute a justification for issuing an injunction against such acts.” (See United States v. Hutcheson, 312 U.S. 219, 232 [61 S.Ct. 463, 85 L.Ed. 788]; Fur Workers’ Union No. 72 v. Fur Workers’ Union No. 21238, 105 F.2d 1.)
The outcome of concerted activities for a closed shop depends largely on public sentiment. No competitive business can endure indefinitely without good will; no group of workers сan long define the terms of its employment without public support. In seeking to enjoin defendants’ lawful activities, plaintiff in effect asks the court to preclude any possibility that public sentiment will crystallize in favor of a closed shop in plaintiff‘s business. The court could not do so without denying to defendants their constitutional right of freedom of speech. (American Federation of Labor v. Swing, 312 U.S. 321 [61 S.Ct. 568, 85 L.Ed. 855]; Cafeteria Employees’ Union v. Angelos, 320 U.S. 293, 296 [64 S.Ct. 126, 88 L.Ed. 58]; Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093]; Carlson v. California, 310 U.S. 106 [60 St.Ct. 746, 84 L.Ed. 1104].)
Injunctions in labor disputes have not generally proved
Invoking section 8(3) of the National Labor Relations Act instead of sections 921 and 923 of the California Labor Code in support of the trial court‘s injunction, plaintiff seeks to revive an issue settled by this court in McKay v. Retail etc. Union No. 1067, 16 Cal.2d 311 [106 P.2d 373]; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379 [106 P.2d 403], and C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389 [106 P.2d 414].* It was there contended that the concerted
“The argument that provisions similar to those now being considered guarantee employees freedom ‘from all interference’ in their selection of a collective bargaining agent has been accepted by several state courts. (Roth v. Local Union, 216 Ind. 363 [24 N.E.2d 280]; Fornili v. Auto Mechanics Union, 200 Wash. 283 [93 P.2d 422]). Such reasoning wаs also adopted by the Circuit Court of Appeals in its decisions in Lauf v. E. G. Shinner & Co., 82 F.2d 68; 90 F.2d 250, and by the dissenting members of the Supreme Court upon a review of the case, but was rejected by the majority. (303 U.S. 323.) It is not in accordance with the law of this state, as judicially declared for many years, nor is it based upon a fair construction of sections 920 to 923 of the California Labor Code, considering their history and purpose. These sections lay no statutory restraints upon the workers’ efforts to secure a closed shop contract from an employer, hence the appellants’ picketing was lawful and should not have been enjoined.” (16 Cal.2d at 387-388; see, also, McKay v. Retail etc. Union, supra, at 327; C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 392, 396, 400 [106 P.2d 414].)
The dilemma in these cases arises from a failure to understand that the basic conflict is between the union and nonunion workers. Until that conflict is resolved, the employer is in the unhappy position of a neutral suffering its repercussions. When he seeks to enjoin concerted union activities for a closed shop on the ground that their purpose is to drive him to unlawful interference with his nonunion employees, he is in fact seeking to translate a conflict between groups of workers in which union workers have an even chance of achieving their objective lawfully, into a conflict in which he would become the contestant ad hoc for the nonunion workers, armed with a formula that would make the very objective of the union workers unlawful. The real issue of the closed shop would thus be shunted off the field to be replaced by the meretricious issue of the nonuniоn workers’ right to freedom from employer interference. That right, evaluated within the context of the right of workers and unions to take concerted action for a closed shop, does not
Substantial protection to the employees is afforded by the National Labor Relations Act, which makes it unlawful for an employer to compel his employees to accept a closed shop when the union demanding the closed shop does not represent the required majority. Though the employer may run the gamut of inconveniences and uncertainties, and even disruption of his business, he is under the harsh duty to maintain his position as a neutral. “Economic hardships imposed upon an employer as a result of jurisdictional labor disputes do not excuse the employer from compliance with the [Natiоnal Labor Relations] Act.” (National Labor Relations Board v. John Engelhorn & Sons, 134 F.2d 553, 557; National Labor Relations Board v. Hudson Motor Car Co., 128 F.2d 528; McQuay-Norris Mfg. Co. v. National Labor Relations Board, 116 F.2d 748, 752, cert.den. 313 U.S. 565 [61 S.Ct. 843, 85 L.Ed. 1524]; National Labor Relations Board v. Star Pub. Co., 97 F.2d 465, 470.) Nevertheless he is as free as any group of workers to inform the public fully as to the difficulties of his position and to enlist public opinion to speed the settlement of the conflict by lending its support to one side or the other as he cannot. Settlement may also be expedited if the National Labor Relations Board exercises its power under section 9(c) of the National Labor Relations Act to take a secret ballot of the employees to determine which group has the required majority. The employer may apply to the board tо hold an election and to certify the bargaining agent designated by the majority of employees. (Section 203.1 of the Rules and Regulations implementing the National Labor Relations Act, 29 U.S.C.A. appendix.) Since neither the defendant unions nor the Park & Tilford Mutual Association requested recognition in this case, the board denied plaintiff‘s application to institute certification proceedings.
If the legality of defendants’ concerted action is determined on the basis of state law without regard to federal law, Shafer v. Registered Pharmacists Union, 16 Cal.2d 379 [106 P.2d 403], and the other California cases cited above are controlling. If their legality is determined on the basis of federal law without regard to state law, the National Labor Relations Act, and the numerous federal cases cited above are controlling. Acts that are lawful under the law of this state and of the United States when considered separately cannot be made unlawful when those laws are considered together without repudiating the policy of each in order to impose state sanctions not wanted by the federal government to protect federal law from possible violation.
Plaintiff, relying on Magill Bros. v. Building Service etc. Union, 20 Cal.2d 506 [127 P.2d 542], contends that references to it as “unfair” and “unfair to organized labor” were untruthful and that the use of these terms and the placing of its name on the “Unfair List” of defendants’ trade paper should be enjoined. In the Magill case, the signs carried by the pickets stated: “This house on strike. A. F. L.” There was in fact no strike; the statements were held to be false; and defendants were enjoined from making them. In the present case there has been no falsification of facts. It has been repeatedly held that the terms “unfair” and “unfair to organized labor” carry no odious connotation that an employer is guilty of fraud or dishonorable conduct, but connote only that an employer is conducting his business under con-
Since defendants, in connection with their concerted activities, made unlawful demands that plaintiff sign a closed shop contract and coerce its employees to join defendant unions, it was permissible for the trial court to enjoin defendants from making such demands. The judgment is therefore modified by limiting the injunction to the enjoining of defendants from making demands in connection with their concerted activities that plaintiff sign a closed shop contract with defendants or coerce its employees to join defendant unions so long
Gibson, C. J., Carter, J., and Schauer, J., concurred.
EDMONDS, J.-I concur in the conclusion of my associates that the demands of the unions were ill-advised and unlawful, and that the employer was under the legal duty to reject them. But under those circumstances, and in view of the uncontradicted evidence that, after both the picketing and the boycott had been instituted, the unions continued to demand a closed shop contract, in my opinion, the judgment should be affirmed.
The decision modifying the judgment, in effect, declares that because the unions might picket the employer and institute a boycott for the purpose of influencing its employees to join their organizations and thereby obtain a closed shop, the same activities may not be enjoined when carried on to achieve an end openly and admittedly unlawful. Labor unions, as well as employers, should be required to deal in good faith and held accountable in accordance with their stated purposes. The judgment of the trial court was based upon uncontradicted evidence concerning the demands made by the unions and should not now be modified by approving the economic pressure upon grounds different from those declared.
Shenk, J., and Spence, J., concurred.
Respondent‘s petition for a rehearing was denied February 25, 1946. Shenk, J., Edmonds, J., and Spence, J., voted for a rehearing.