*1 аre, in this least, tions state at determinable the National Board.' jurisdiction, grant had no the in- therefore, court
junction and would reverse the order.
Gibson, J., Traynor, J., C. concurred. Appellants’ petition rehearing April 2, for a was denied 1953. Gibson, J., Carter, J., Traynor, J., C. were of opinion petition granted. that the should be 10, A. No. 21803. In Bank. Mar.
[L. 1953.] RUBIN, HARRY Respondent, v. AMERICAN SPORTS EQUITY al., Ap MEN TELEVISION et SOCIETY pellants. A. 21847. In Bank. No. Mar.
[L. 1953.] Respondent, MIKE ENTERPRISES, INC., HIRSCH EQUITY AMERICAN SPORTSMEN TELEVISION al., Appellants. SOCIETY et *2 A. Freiburghouse Richard Perkins and W. M. Appel for lants. and Lionel Richman as
John C. Stevenson Amici Curiae Appellants. on behalf of George Apрell Respondents. for
Cyril Moss and appeals in SHENK, J. The these cases are the de- preliminary injunction from fendants orders. The injunctive against commenced the actions for relief the same defendants to plaintiffs’ restrain after the refusal sign agreement tendered labor on behalf of wrestlers performing in Essentially television events. similar circum- stances are hearing involved in each The appli- case. on the cation preliminary injunction following for a disclosed the alleged and averred salient facts: promoters professional wrestling matches in Angeles County. They Los book the contestants pay wrestling them for as wrestlers. The events have been April, 1950, through televised since the offices telecasting corporation directly pays compensation to the participants licensing rights. television regulation wrestling jurisdiction are under the contests of the State Athletic Commission. Equity Sportsmen defendant Television American So-
ciety, Inc., Equity society, herein called Telеvision or the is a corporation organized principal in this state with its place Angeles County. of business in The individual Los defendants, at wrestler, least one of whom a are officers and directors of corporation. Equity Television is not affiliated *3 organization attempt with a labor although an unsuccessful was made to affiliate with the American Federation of Labor. society The Department has filed with the of United States copies reports Labor certain constitution, by-laws, of its and and rеquired by Labor-Management affidavits Relations the Act, These documents are not included record. 1947. The Labor Rela- by has been certificated the National complied requirements. tions Board Forms having as with the application membership Equity in Television and of a Play,” are agreement, designated of Fair as “Code ’ knowledge the plaintiffs the record. To the none of booked organizaiton. wrestlers is a member of the September and October 1950 the defendants asked sign plaintiffs the agreement the labor require would them only to book wrestlers who are or would become members Equity. plaintiffs of Television The refused request on ground that the not bona fide organ- Thereupon placed ization. the defendants or threatened to pickets place at the entrances to the arenas. plaintiffs complaints filed their and obtained an order to show cause. hearing complaints was had on verified and on affi- by filed appeals present davits the defendants. The for review pursuant action of the court propriety dis- its
415 pend- preliminary injunction ordering the (-.retionarypower in on merits. ing hearing argued. ques- jurisdiction is Since the of state matter organizational and of the defendants’ claimed
tion televised, whose rights concerns wrestlers contests commerce. events are in interstate This assumed that by the National implied is also in the certification involvement re- society’s compliance with Relations Board of the Labor quirements filing reports affidavits under thе for the any de- has not been federal labor relations law. But there employment termination board of the wrestlers’ relation status. 5, (3) 2 Labor Relations Act (July of the National
Section § 152(3)), 1935, 450, 372, 29 449, 49 ch. U.S.C.A. Stats. Act, Management Relations as amended the Labor (61 coverage an em 137) expressly excludes from Stats. ployee “any independent having individual the status of contractor.” The wrestlers are contend that independent contractors and therefore not covered judicial federal law. On thе other hand the defendants seek a “employees” determination because wrestlers are relating receive from the instruction to the some give kind color to the of holds and maneuvers to be used to contest.
The evidence in the record is neither clear nor con employees clusive that the wrestlers are contractors. Nor do the facts necessarily support a con clusive determination that the wrestlers have employment no plaintiffs. (Cf. relation with the National Labor Relations Board Publications, v. Hearst U.S. S.Ct. 1170].) present 88 L.Ed. showing On the trial court was justified coming to the tentative conclusion that the rela tionship falls into that characterized in the Hearst case as “entrepreneurial enterprise,” rather than employment into subject protections of the federal present act. The *4 suggests record no obstruction to the free flow of commerce by employment which would be served coverage under the Contrary federal labor law. to thе considerations involved case, the the Hearst economic factors of the relation be plaintiffs tween or the corporation television closely wrestlers do not bear more employment on they than independent do on contractual relationships. The factual problem involved because of exclusion con tractors from the federal act necessarily is not finally re-
416
solved preliminary issuance of the injunction. The question of the employment existenсe of the relationship is one which it is assumed will be determined on the trial of the action.
Assuming in
presently
accordance with
implied
con
clusion of the trial court that the
are independent
wrestlersa
contractors,
the defendants nevertheless contend that Tele
Equity
right
vision
has
power
to exercise
organ
as a labor
publicize
ization and to
labor interest
picketing the
rely
Bakery
arenas. They
on
&
H.,
P. Drivers &
I.B.T. v.
Wohl, 315
769
816,
U.S.
S.Ct.
86
;
L.Ed.
Riviello
[62
1178]
Journeyman
Union,
Barbers etc.
scrutiny organization into bona of the fides and its right represеntation. asserted fact issues ten require dered would seem to the court on the trial investi gate surrounding jurisdic all If circumstances. tional issue is resolved a determination independent contractors, judicial investigation are of the bona organization place fides of the a labor defendant as can take only in the state forum. attempt qualify organization as a labor under question act
the federal does not settle the (See here. Inter Brotherhood, national C.W. & H. Union v. Hanke, 339 U.S. 773, 995, 94 L.Ed. 13 ; S.Ct. A.L.R.2d Building [70 631] Emp. Gazzam, Intl. Union v. Service U.S. S.Ct. ; Jones, 94 L.Ed. Bautista v. supra, 25 1045] Cal.2d 746.) clearly pointed out-in cases, As those the issues are not so much matters of constitutional problems presented application policy to the state of state in an peaceful labor-management endeavor to maintain equilibrium. simple applied ques No test to determine the representation. or of of the labor interest tions As Labor in National Relations Board v. Hearst Publico- stated *5 in the supra, p. the wide variations tiоns, U.S. at self-organization complexities employee of forms of use in organization make difficult the of modern industrial rules as the test. flexible independent contractors in certain
It is contended that may unorganized. right to remain circumstances not assert a urge The.plaintiffs right. They the wrestlers have that any competitive is for control between state interest solely equal industrial combatants or lies within ranks question on the whether or unionize; of the wrestlers not to consequently legitimate shown, no lаbor interest has been no reasonable relation bargaining and therefore to collective Equity has been offered Television on behalf of the wres- tlers. ’ appears from the defendants purpose It affidavits that the Equity is engage of Television to in bargaining collective con- cerning wages employment other of conditions of various sports engage artists employed who appear in programs; sports television advance the welfare of artists appear in programs any who television nature, of and to preserve rights self-organization rights and their bargain collectively including rights to engage in concerted purpose. for that Equity Television became unincorporated association early in organized 1949 and corporation as a August, in by-laws 1950. Its constitution and were filed with the Labor Department in September, 1949, and it was certificated on 16, 1950, having complied October as report with and affi- requirements filing davit the federal law. The member- ship appliсation designates form Equity Television as the bargaining representative whether purpose bargain- ing relates to conditions televised events or otherwise; corporate but the objectives averred and the contract offered to the concern the relating conditions sports appearing artists in televised events. It is averred that the membership of at the hearing time of con- forty sisted of working Angeles the Los area. There no statement as to whether appear the mеmbers programs. television justifies
The record the inference that labor status Equity sought Television has been to facilitate its mem bership organization work in Angeles the Los area exercise of the coercive measures. The reasonable inferences defendants have support conclusion
from the facts competition yet interest and established the labor Equity’s posi Television organized might labor which secure bargaining appropriate recognition tion to demand plaintiffs’ arenas. The agent for televised wrestlers a serious presented far indicate doubt as facts so *6 support would the defend existence of the elements which bargaining agency on be of bona fide collective ants’ claim by in televised booked the half of the wrestlers objective which is Concerted for an events. any legitimate organized of reasonably related interest Emp. enjoined. (Building Intl. Union Service Gazzam, supra, 532.) thus v. The doubt cre U.S. desirability supports a of the to retain the ated conclusion quo parties pending hearing on the merits. of the status by pre the concluded the issuance of trial court has so liminary its discretion injunction orders. It did not abuse determination, making concluding in as be in nor that likely in plaintiffs were more to be parties tween the temporary jured by requested relief than denial likely injury the defendants were sustain injunction. (Riviello Journey granting preliminary of Union, supra, Cal.App.2d 499, 510.) men Barbers etc. are The orders affirmed. J., J., Spence,
Edmonds, Schauer, J., concurred. Gibsоn, J., judgment. in concurred C.
CARTER, J. dissent. I agree reasoning I or with either the the result cannot opinion in majority opinion. reached would write the in this as follows: case most complaints affidavits,
From verified viewed favorably plaintiffs, pro- appears for it Long professional wrestling of in Beach and moters matches Park, respectively. Tele- Ocean Defendants are American society. Equity Society, vision and officersand directors of the society’s According president, of it is the affidavit corрoration- organized nonprofit under of the laws Cali- acting primarily purpose for of bar- fornia as collective agent respect improving for gaining its members condi- “sports appear of employment tions of various artists” who In programs play. on television and to establish rules of fair unincorporated September, an associa- predecessor, its ap- Board an tion, with the National Labor Relations filed plication organization under recognition for as a labоr Management Later filed National Labor Relations Act. application recognition a similar and was accorded pro- organization. Among board its members are as such fessional State wrestlers licensed the California membership application Commission. its form of applicant appoints bargain- he as states that his ing agent. allege complaints, however, in their Plaintiffs organization, agency, that the is not “an em- or or ployee representation any thereof, in committee, or local unit which employees participate whole purpose, or exist for the or part, of dealing employers concerning grievances, disputes, wages, employment, of hours conditions work, provided in Section 1117 of the Labor Code State . Society, Inc., California. . . was or- [S]aid ganized purpose for the of compelling professional certain wrestlers in the State California to of, become 'members or affiliated with, said defendant so defend- *7 ants cоuld and percentage would receive money paid a of the to said wrestlers rights.” for their television dispute a
There is as to whether the wrestlers appearing plaintiffs’ in employees arenas are their independent or con- tractors. complaints allege that relationship of employer-employee exist; plaintiffs does not that “book” the performances wrestlers for agreement and have an with a “certain” corporation under which the latter right has the matches, to televise the for which pays the wrestlers; plaintiffs that exercise no control over the manner or performance method by of De- wrestlers. fendants’ affidavits are contrary. to the
Further, alleged it is that none of perform- the wrestlers promoted by ing plaintiffs belong in matches society. In September, defendants injure to plain- combined businesses, claiming falsely tiffs’ that the society was a organization safeguard bona fide labor to the interests of a employees, dispute and that plaintiffs between and society existed, purpose when its fact compel was to wrestlers to become members it of so it could per- receive centage money paid of for them television rights, and dispute (This that no labor exists. is denied defendants.) carry To its purpose out obtaining percentage of the sign an that pay, defendants demanded
wrestlers’ only use society would agreement with society. members are or will become wrestlers who picketed and defendants have agrеe to and Plaintiffs refused to com- picket places of business to their threaten to continue pickets carried a agreement. The sign them pel such result of labor.” As a stating organized sign “unfair lose will continue to plaintiffs have and picketing, lost plaintiffs and dispute between There is no labor business. "preliminary arenas. The performing at the wrestlers picketing. injunctions enjoined the ap complaint affidavits is sharp in the conflict injunction issued, however, and preliminary parent. The plaintiffs, accept most favorable as the I the view must credibility resolve the judge of and must court is the trial & (Northwestern Pac. R. v. Lumber S. W. Co. conflicts. 277].) Plainly, the fore 441, 443 P.2d Union, 31 Cal.2d to establish alleged plaintiffs are sufficient going matters rather wrestlers are contractors professional might seem show also that the sole employees. It than society and de purpose of the its working employees to advance the conditions mands is not independent contractors. It professional or of organization in order compel them to be members of its is to compensation percentage of the receive it consenting to the broadcast of the receive such wrestlers only object purpose If this is the matches on television. appear lacking in society, to be lawful ob of the it would whereby being merely will jective, a scheme anything giving from them in return. profit wrestlers without how the members of the would share do not know if money obtained, all, equally, so if at but share compensation of eаch portion then a wrestler would by all, resulting wrestlers who be shared commanded sharing part receiving higher compensation with those less. only possibility presents other itself is that *8 society profits consume in would officers defendant the. themselves, picket that their in paid salaries ing interfering plaintiffs’ with businesses has as its ob or “racket,” money wrestlers, ject is, extorting from a that hurting plaintiffs’ object all, except or at that of has no businesses. interpretation complaint of the that such an not think
I do so intended to con- that the trial court reasonable, nor is alleged foregoing purpose was It is not that strue it. part quotation from the in the latter the sole one alleged complaint, part, the first is that the and'in it organization employees participate, in which is not an independent I that are contractors construe to mean employees and the members of con- rather than alleged that sist of the former. the same tenor it is also dispute and the wres- there is not a between performing in tlers their arenas. But constitutes what dispute indecisive, being vague that term at the best. pertinent As from the later will seen discussion herein the phrases factors do involve such indefinite as “labor dis- pute,” “independent organizations.” contractors” and “labor question is, whether the of defendants as such are acts justified of the turn, therefore, because circumstances. the detailed president statement affidavit society showing part organized that it is in improve working professional wrestlers, conditions of they whether employees be called independent contractors, and to deal on behalf of its members with those who services, use their adopt and to rules of play among fair wrestlers, and that here was bring done to the wrestlers used plaintiffs into its ranks. Thus there is a situation where commodity contractors whose for sale is services —wrestling—join in an improve association to bargain- ing position buyer with the of their they talents in order that may obtain more advantageous working com- conditions and pensation. To they picket prospective end user of compel their services to the ones using whose services he is join association, and to deal it regard to com- pensation, working conditions and the selection of those who participants shall be in the exhibitions. observed, plaintiffs
Preliminarily, it should be assert that wrestlers, there was no economic relation between paid were a “certain” because the wrestlers television matches, for the to televise the hence there relationship no them and between the wrestlers at all. however, they allege, Plaintiffs “book” the wrestlers put appear them. performances on Thus it would they perform, they choose who shall and as promotion exhibiting matches, such business there is a between them and direct connection the wrestlers. More- over, they allege also made contract with a tele-
422 corporation whereby they granted
vision of tele- “mutually compensation agreed vision to the for a ’’ upon. party agrеement. All wrestlers were not a alleged corporation pays compensation that is is to certainly rights. wrestlers for television It be cannot bringing place said that concerted action at the where the performed televised, matches are under circum- and these stances, assuming is so remote justified, is not legitimate. concerted is otherwise injunction, picket- inasmuch basis for the as the There is no object. object thereof an unlawful is to ing is not for join engaged plaintiffs to the wrestlers persuade plaintiffs agree it and to have en- represented and be to. through society. The fact that are gage wrestlers dispute is not a labor contractors or there not a labor union the sense that is ordinary employees employer-employee are not They offering not alter the ease. are relation, does labor—for sale and have a definite economic services—their effectively together negotiate more banding interest questions price, working purchasers on prospective respects conditions, In there is no substantial dif- etc. those independent contractor one with between an and the ference employer-employee relation. whom he contracts seeking personal person is a market for his both cases obtainable, pros- terms and in both the on the best services is, generally speaking, of those services an em- pective user engager personal ployer, a user and services. economic fundamentally positions Indeed, the same. interests and plaintiffs’ privileged businesses interference with purposely per- who causes a third under a rule that: “One into or continue a business relation with an- son not to enter policy influence the other’s in the conduct other in order to (a) privileged, if the actor has an economic of his business in the matter with reference to he wishes interest policy (b) policy other the desired influence competition illegally restrain or otherwise violate does not (c) policy employed the means are not public a defined (Rest., Torts, 771.) improper.” § factors, having the labor relations Thus common cases “if picketing Peaceful is lawful reason pertinent. field are working bargaining” collective ably relevant to conditions and dispute employer picketed though there is no between the even 16 employees (C. Lyons, S. Smith Met. Market v. and his Co. 423 compel inde 414]) as is 389 P.2d Cal.2d [106 being appropri union, there join a pendent сontractors Joaquin County etc. (Emde v. San connection. ate economic ; Riv A.L.R. P.2d 150 Council, 916] 23 Cal.2d Union, Cal.App. Journeymen H. Intl. Barbers v. C. iello Jones, And, in Cal. 400].) Bautista P.2d 2d 499 [199 *10 injunction held valid an 343], this court 2d 746 P.2d [155 milk enjoin milk to independent peddlers of granted to supplying from milk brokers preventing union from drivers’ permit not milk, the union would with because them (the work peddlers join union, said: “It to to but subject peaceful, eco business) equally is ends, by seeking legitimate pressure organizations nomic work, rather than collective individual such as сonditions seniority privileges other ad bargaining, and methods of (See shop. McKay v. vancement, and the or closed Re union 1067, L. No. 311 tail Auto S. Union 16 Cal.2d P.2d [106 Lyons, 16 ; Smith Met. Market v. 389 C. S. Co. Cal.2d 373] ; Registered Union, P.2d v. 16 Pharmacists 414] [106 Shafer ; 379 Labor v. Cal.2d P.2d American Federation [106 403] Swing, 568, 855].) 312 321 L.Ed. U.S. S.Ct. 85 [61 operating industry businessman-worker in an “The or field competes organized in which he workmen likewise subjected persuasion any same means of other join and workman the union conform to the conditions ’’ regulating union labor. any relying upon I am not and statute none hаs been suggested prohibits conduct of Nor defendants. Iam concerned with the recent decisions of the United States Supreme Court, Building Emp. such as Service Intl. Union Gazzam, 784, 1045], v. 339 532 94 L.Ed. Inter U.S. S.Ct. [70 Brotherhood, Hanke, Union v. 470 national C.W.H. 339 U.S. 773, Hughes 94 v. 995, 13 A.L.R.2d and S.Ct. L.Ed. [70 631] Court, 718, Superior 985], 460 94 339 U.S. S.Ct. L.Ed. [70 policy expressed where the state court decision or statute policy expressed by Congress valid, or national were found although peaceful picketing was Here no involved. there is decision, or policy, state either statute court which makes contrary, analogous defendants’ unlawful. On the actions fields, exists, relation employer-employee where the strict policy permit to is such conduct. urged organized
It is banner “unfair labor” false, pickets there carried because was no dispute employees; are inde- not
pendent pointed I out, however, contractors. have position substantially organized is the same as labor. More- over, phrase “is not a falsification of facts and use ‘to slogans language part loose or undefined that are of the con- give-and-take political ventional in our economic con- falsify troversies— like “unfair” “fascist” (Cafeteria Employees Angelos, supra; facts.’ Union v. see ” Park Corp. Teamsters, supra.) & International T.I. etc. of (In Blaney, 643, 892].) re Cal.2d P.2d therefore, would, reverse orders.
Traynor, J., concurred. 2, Appellants’ petition April rehearing for a was denied Carter, J., opinion Traynor, J., 1953. were petition granted. should be Nos. 5264,
[Crim. 5265. Bank. Mar. 1953.] In re P. JOHN KELLEHER al., Corpus. et on Habeas