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District Court of Appeal, Third District, California.


Civ. 6415

Decided: April 04, 1940

Milton Marks, of San Francisco, for petitioner. M.B. Plant and Brobeck, Phleger & Harrison, all of San Francisco, amici curiae. Earl Warren, Atty. Gen., John J. Dailey, Deputy Att. Gen., and Maurice P. McCaffrey, of San Francisco, for respondent California Employment Commission. Gladstein, Grossman & Margolis, of San Francisco, for interveners.

Petitioner herein is a corporation engaged as a manufacturer and wholesaler of knit goods. Among its many employees were janitors, who were members of the Building Service Employees' International Union, Local No. 87; some 150 others were engaged as employees in the manufacturing, packing and shipping of knit goods and were members of Knitgoods Workers' Union, Local No. 191, International Ladies' Garment Workers' Union; still other employees, according to their particular craft or occupation, were members of Office Employees' Union, Local No. 21320, Machinists Lodge No. 68, Warehousemen's Union, Local No. 860, and Building Service Employees' International Union, Local No. 87.

On October 10, 1939, petitioner discharged a janitor then in its employment, who was a member of the Building Service Employees' International Union heretofore referred to. Thereafter the union demanded of petitioner that it re-employ and reinstate the janitor, which demand was, by petitioner, refused. On October 16, 1939, the Building Service Employees' Union declared a strike against said petitioner, and established a picket line at the factory of the Gantner & Mattern Company, in which picket line the several unions, except the Knitgoods Workers, joined and participated.

Upon the declaration of the strike and the establishment of the picket line the members of the Knitgoods Workers' Union left their work at the establishment of petitioner and refused and still refuse to return to their work at the plant of petitioner.

Thereafter these employees, members of the Knitgoods Union, made application to the respondent commission for the payment to them of unemployment benefits, and pursuant to an order of respondent commission, petitioner filed a list of its employees, members of the Knitgoods Union who were in its employment at the time the strike was declared, and who had left their work because of the strike and picket line. Subsequent to the filing of such list of employees, respondent commission, through its adjustment unit, ordered and directed the payment of unemployment benefits to the employees of petitioner, members of the Knitgoods Workers' Union. Thereafter, and within the time fixed by the Unemployment Insurance Act (Stats.1935, chap. 352, p. 1226) petitioner filed with respondent commission an appeal in writing from the decision of the adjustment unit of the respondent commission, setting forth that the jobs of said employees were then and there at all times open to said employees, and that these employees had left their work because of a strike and the maintenance of a picket line and were disqualified to receive benefits under the provisions of the act, and particularly section 56 thereof, St.1939, p. 8.

Upon the filing of this appeal with respondent commission, it was referred to a referee who, after a hearing, recommended that unemployment benefits be paid to said employees, members of Knitgoods Workers' Union, Local No. 191.

To prevent such payments, petitioner, by this writ of mandate, seeks to prevent respondents from paying any unemployment benefits to the members of the Knitgoods Workers' Union, to recover back all benefits already paid to them, and to enforce the provisions of the Unemployment Insurance Act.

Many of the points urged by respondents in answer and opposition to the application for this writ are fully considered in the case of Bodinson Manufacturing Co. v. California Employment Commission et al., Cal.App., 101 P.2d 165, filed this day. We need not again discuss the principles there established, but one point urged in this proceeding did not there arise, and we will direct our attention to that matter.

The point so urged in this proceeding is that petitioner has failed, without justifiable excuse, to exhaust his statutory remedies, and for that reason this court should refuse to issue its writ of mandate.

Section 72 of the Unemployment Act as amended in 1939, St.1939, p. 3013, provides that any party to a decision by a referee may appeal to the commission from such decision, and the commission may, on its own motion, affirm, modify or set aside any decision of the referee on the basis of the evidence previously submitted in such case or direct the taking of additional evidence.

We are of the opinion that where a procedure is provided, as here, that a party must first exhaust his statutory remedies before this court can intervene.

San Joaquin, etc., Company v. County of Stanislaus et al., 155 Cal. 21, 99 P. 365, holds that a water company engaged in the business of furnishing water for irrigation cannot maintain an action to have declared void orders of the board of supervisors establishing the maximum rates for water, and to enjoin the enforcement of such rates, on the ground that the same were unfair and unreasonable, if the company had made no attempt within a year to secure a readjustment of the rates by petition to the supervisors.

In re Kehr, 190 Cal. 401, 212 P. 913, in which a writ of mandate to compel a superior court to hear a petition for distribution, where money had been paid to the state treasurer under the provisions of section 1737 of the Code of Civil Procedure, was denied on the ground that the remedy of petitioner was first by proceedings found in section 1272a of the Code of Civil Procedure.

Teeter v. Los Angeles, 209 Cal. 685, 290 P. 11. Here a property owner attempted to enjoin a city from carrying out the terms of a contract to improve certain streets. He failed, however, to first file his protest before the city council, as required by the Street Improvement Act of 1911, and a writ was denied.

Collier v. Astor, 9 Cal.2d 202, 70 P.2d 171, “Any action involving a controversy arising under the Private Employment Agency Act [Stats.1913, p. 515] brought in the superior court, without first referring the controversy to, and securing the determination of, the labor commissioner, is prematurely brought, and cannot be maintained.” (Syllabus.)

It is here argued by petitioner that by a long line of decisions the commission has made plain its views as to the law applicable to a situation similar to the one now before us, and that it would have been an idle act to have asked for a review by the commission. But be that as it may, we cannot presume that the commission, having adopted a particular rule or policy in like cases in the past, would necessarily have applied the same rule in the case at bar. The exhaustion of remedial procedure as laid down by the statute is required unless the petitioner can positively state that the commission has declared what its ruling will be in the particular case, and that petitioner is unable to do.

For that reason, and upon that ground, the writ of mandate is denied.


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