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District Court of Appeal, First District, Division 2, California.


Civ. 12227.

Decided: August 13, 1942

Brobeck, Phleger & Harrison, of San Francisco, for petitioners. Earl Warren, Atty. Gen., John J. Dailey, Deputy Atty. Gen., Maurice P. McCaffrey, of San Francisco, Leonard M. Friedman, of Sacramento, and Gladstein, Grossman, Margolis & Sawyer, of San Francisco, for respondents.

The petitioners, as employer-contributors under the Unemployment Insurance Act (Stats.1935, p. 1226, Deering's Gen.Laws, 1937 and Supp.1939, Act No. 8780d) have applied for a writ of mandate to compel respondents to deny payments of unemployment benefits to certain claimants and to vacate the order of the respondent commission awarding such benefits. An alternative writ and order to show cause was issued. The respondent commission filed a demurrer and answer by way of return. The employees affected by the decision, as the real parties in interest, filed a demurrer and answer together with a number of special pleas and motions. The order to show cause was submitted upon the demurrers and the record of the proceedings before the commission. No other evidence was offered and nothing in that record creates a conflict which is material to a decision of the controversy. The questions here involved are purely questions of law relating to the interpretation of the act. We may therefore treat the matter as though submitted upon the demurrers and deny all the pleas and motions of the respondents which do not go to the merits of the controversy.

All the petitioners are members of Waterfront Employers' Association of San Francisco, a corporation organized primarily for the purpose of representing petitioners in their labor relations with employees engaged generally in loading and discharging vessels at ports on San Francisco Bay. Many of the petitioners are also members of the Dock Checkers Employers' Association of San Francisco, an organization maintained primarily to represent the employers in their labor relations with dock checkers. These employees are all members of the same labor union––International Longshoremen's & Warehousemen's Union, District No. 1. The longshoremen belong to one local of this union, the dock checkers belong to another.

On November 10, 1939, the dock checkers' local branch of this union called a strike commencing at six p. m. of that day, that being the time when both checkers and longshoremen regularly left their employment for the day. Picket lines were maintained at all the docks affected by the strike; throughout the period of the strike both longshoremen and checkers refused to cross these picket lines; the strike continued from November 10, 1939, to January 3, 1940, during which time all these employees refused to work upon the docks, except to handle United States mail and some perishable goods under the permission of the officials of the union. The strike was the same as that involved in American–Hawaiian Steamship Co. v. California Employment Comm., Cal.App., 128 P.2d 627, hereafter referred to.

The longshoremen who were unemployed during the period of the strike filed claims with the respondent commission and, after hearings before the referee and before the commission, claims were allowed to approximately 4,500 longshoremen awarding benefits amounting to over $400,000.

The issues involved in this proceeding are so much like those involved in American–Hawaiian Steamship Co. v. California Employment Commission, supra, and W. R. Grace & Company v. California Employment Commission, Cal.App., 128 P.2d 632. this day decided, that there is no need for an elaboration of the views therein expressed. The commission based its ruling upon the ground that the claimants did not leave their work because of a “labor dispute,” but because they believed their employers had breached their collective bargaining contracts. The respondents do not now rely upon this clear evasion of the act, but rest their case mainly upon the ground that the employees did not leave their work because at 6 p. m. there was no work to do––that to refuse to return the following morning was not a leaving of work since there was then no employer–employee relation. It is also argued that the claimants did not refuse “suitable employment” within the meaning of section 56(b) of the act. These arguments were answered in the American–Hawaiian case (supra) and do not require extended discussion here.

In its decision the respondent commission divided the claimants into five groups––those who had not completed their work at 6 p. m., November 10th, and were ordered to report the following morning; (these men, numbering above five hundred, were denied compensation benefits); those who had not been working on the day the strike was called and who had not thereafter been dispatched; those who had been working on a job that was not struck, but who had refused to work on another job; 36 carmen who were unemployed during the period of the strike because, pursuant to a ruling of the longshoremen's union the work which was usually performed by the carmen was performed by registered longshoremen during the period; and claimants who had finished their previous work assignments and were awaiting dispatchment from the hiring hall at 6 p. m., November 10th.

We will not assume the burden of considering separately the status of each of the large number of claimants involved. The principles of law involved are fully considered in the two cases this day filed. Referring to the claimants by the groupings made by the commission––those in the first group left their work because of the labor dispute and are not entitled to benefits; those in the second group “refused to accept suitable employment” within the provisions of section 56(b) of the act and are not entitled to benefits during the period in which they were voluntarily unemployed; those in the third group are covered by the same ruling as that applied to the second; those in the fourth group were unemployed by reason of a ruling of the local longshoremen's union and hence are entitled to the benefits since their unemployment was not of their own choosing; those in the fifth group were found to have been unemployed either because they refused to accept assignments and cross the picket lines or because the local dispatcher, at the instigation of the union which he represented, declined to make any further assignments to “unfair” jobs, that is, places on the waterfront which were covered by the checkers' strike.

In all these cases, except the carmen, as to whom the parties stipulated at the time of the oral argument that no contention is made, the claimants voluntarily made the labor dispute of the checkers their labor controversy and no specious reasoning can alter the conclusion that they either left their work because of that dispute or that they refused suitable employment because of it. In either case the provisions of section 56 of the act apply.

All the parties argue the case upon section 56(a) of the act and overlook the equally important provisions of section 56(b). It is therein declared that an employee is not entitled to benefits “If without good cause he has refused to accept suitable employment when offered to him * * *.” Now “suitable employment” is defined in section 13 of the act as “work in the individual's usual occupation or for which he is reasonably fitted * * *.” (Italics ours.) Subdivision (b) of this section declares that an employee shall not be denied benefits when otherwise eligible “for refusing new work * * *. If the position offered is vacant due directly to a strike, lockout, or other labor dispute.” (Italics ours.) We have emphasized the words “usual” and “new” and in reading the two sections together we are compelled to conclude that the Legislature intended to deny benefits to those employees who voluntarily refused to accept employment in work of their “usual occupation” where such work is available, but that benefits should not be denied to those who refuse to accept employment in a “new” job which has become vacant because of a strike or labor dispute. The clear purpose of these provisions is to excuse those employees who refuse new employment as “strike breakers” where their union principles, or fear of violence, compels them to refuse to assume a “new” position which is beyond the scope of their “usual occupation.”

This situation does not confront us here. No one of the claimants was asked to accept a “new” job, and no one was offered employment outside of his “usual occupation.” All voluntarily refused to accept employment in the jobs which they had occupied for many years before the strike was called. There was no shortage of employment. To the contrary, the commission found that when the strike was called on November 10th the hiring hall dispatcher had “an abnormally large number of orders and a consequent shortage of available men.” It is undisputed that the refusal of these men to accept assignments, and the failure of the dispatcher to make further assignments, were both due to the deliberate action of members of the longshoremen's union who announced that they would not work on “struck” jobs while the checkers' strike was in progress. All the longshoremen who are claimants in this proceeding voluntarily refused to perform their customary work because their own union branded their places of employment “unfair,” and it must be inferred that, as members of the union, they joined in this inhibition. There is no evidence that any of them were forceably restrained from pursuing their customary calling. Their situation is the same as that referred to in Bodinson Mfg. Co. v. California E. Comm., 17 Cal.2d 321, 327, 328, 109 P.2d 935, 940, where the court said: “They were unemployed solely because, in accordance with their union principles, they did not choose to work in a plant where certain of their fellow employees were on strike. Their own consciences and faith in their union principles dictated their action. This choice is one which members of organized labor are frequently called upon to make, and in the eyes of the law this kind of choice has never been deemed involuntary.”

Respondents argue that, because of the provisions of section 67 of the act, that “such benefits shall be paid regardless of any appeal which may thereafter be taken,” no proceeding to review the award of the commission should be permitted to stay the payment of these benefits. The argument is that after a “double affirmance” of the award the payments must be made and that the commission is without power to withhold. The question is not before us in this proceeding. A restraining order was issued with the order to show cause on the alternative writ of mandate. If this were improper the question is now moot, because all preliminary orders fall with the peremptory writ. The restraining order was the customary order made in these cases to continue the status quo of the controversy until the matter is determined. Of course, it is inconceivable that the commission would pay from the trust fund any benefits which are known to be prohibited by the act, but, if valid payments were restrained, then the rights of the parties under section 67 of the act would become a subject of controversy. Until a final decision is reached it is to the interest of all parties that nothing be done which would entail a multiplicity of litigation.

Other questions raised by these respondents do not require consideration.

As to all respondents other than the carmen the allowance of their claims was improper and in violation of the act. These claims should be denied and the award should be vacated and annulled.

Let a peremptory writ issue as prayed.

NOURSE, Presiding Justice.

STURTEVANT and SPENCE, JJ., concurred.