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District Court of Appeal, Fourth District, California.

G. E. RUSSELL, Plaintiff and Respondent, v. ELECTRICAL WORKERS LOCAL 569, INTERNATIONAL BROTHERHOOD OF AFL/CIO, et al., Defendants and Appellants.

Civ. 7417.

Decided: April 16, 1965

Wencke, Carlson & Kuykendall and Jerry J. Williams, San Diego, for defendants and appellants. Gary, Cary, Ames & Frye and Stephen L Newnham, San Diego, for plaintiff and respondent.

Appeal by defendant (hereinafter called Local 569) from a preliminary injunction granted to plaintiff pursuant to an order to show cause.

Plaintiff contracted to perform certain electrical work on an apartment building then under construction. He began work in March of 1963 with a three-man nonunion crew and in April the premises were picketed by members of Local 569, the defendant labor organization. Picket signs read, ‘AFL/CIO Pickets sanctioned by San Diego Building Trades Council.’ A business agent of defendant labor organization informed the owner of the building under construction that the Union considered plaintiff's use of non-union employees unfair, and solicited the owner's signature to a collective bargaining agreement. The owner declined. None of the plaintiff's employees belong to any labor organization. According to the plaintiff, his gross revenue in 1962 was approximately $19,000. Purchases of toggle switches, a main service switch and fans at a local outlet originated from out-of-state sources. Plaintiff's yearly business in-flow and out-flow, direct or indirect, is less than $50,000. On May 8, 1962, the superior court granted a preliminary injunction to plaintiff, enjoining further picketing and work stoppages pending trial.

From all that appears the jurisdictional amount involved here is below that adopted by the National Labor Relations Board as a basis for assuming jurisdiction over a labor dispute. It was argued by appellant in its original brief that under National Labor Relations Act, § 14(c)(1), and (c)(2), 29 U.S.C. § 164, state courts could assume jurisdiction over the cases which fall below the jurisdictional standard. The question then presented on appeal would be what law is to be applied by the state court when it assumes jurisdiction over a case under 29 U.S.C. § 64. The trial court apparently applied federal law.

Local 569 new contends that as a condition precedent to the acquisition of jurisdiction by the state court it was necessary that plaintiff-respondent first apply for relief to the NLRB. If that Board declined to assume jurisdiction, relief could then be sought in the state court. Local 569 also contends that in those cases where the state courts may assume jurisdiction, the court's duty to apply state law is made clear by the legislative history of the Act that amended § 14(c) of the N.L.R.A. It is urged that the Prouty Amendment was proposed, and would have required the states to administer the federal law, but the amendment was not accepted. Instead, § 14(c) was passed, allowing the states to assume jurisdiction thereby giving some relief in cases below the jurisdictional standard of the NLRB, and over which, prior to § 14(c), the states had no jurisdiction. It is also urged that in the non-acceptance of the proposed amendment, Congress showed its intention to allow the states to apply state law in those cases where they could assume jurisdiction.

Local 569 further argues that under the laws and decisions of the State of California, labor disputes are resolved by the free inter-action of economic forces and therefore picketing to secure a union contract may not be enjoined. (Citing Petri Cleaners, Inc. v. Automotive Employees etc. Local No. 88, 53 Cal.2d 455, 2 Cal.Rptr. 470, 349 P.2d 76; Messner v. Journeymen Barbers, etc. International Union, 53 Cal.2d 873, 4 Cal.Rptr. 179, 351 P.2d 347.)

Plaintiff maintains that it is unnecessary to first apply to the NLRB where the jurisdictional standards are plainly below those adopted by the Board and that a state court must apply federal law in cases falling within 29 U.S.C. § 164, and points to the following:

(1) Prior to the enactment of § 14(c), the states could not act as a forum for application of the N.L.R.A. and they could not apply state law to any labor dispute affecting interstate commerce if the activity was protected or prohibited under the N.L.R.A. This state of the law was the result of San Diego Building Trades Council etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.

(2) In 1959 Congress amended § 14 by allowing a state to assume jurisdiction over certain cases. This amendment still left the pre-1959 law prohibiting a state from applying state law in any labor dispute affecting interstate commerce, thereby retaining a method of securing maximum uniformity in the field of labor relations by requiring all courts to apply the federal law.

(3) The failure to adopt the Prouty Amendment is not equivalent to the affirmative legislative action required to overrule the law as it then stood, that is, prohibiting the state courts from applying state law in labor disputes.

(4) The proper deduction is then, that federal law should be applied, since § 301 of the N.L.R.A. grants jurisdiction to the state as well as district courts, but cases interpreting that section have indicated that federal law must be applied to all cases arising under that action. Plaintiff further argues that even if a state court may apply state law, the prevailing rule in California requires application of the federal law in all cases affecting interstate commerce.

During argument the point was first raised concerning the necessity of one seeking such relief as is involved here, to initially make an unsuccessful application to the NLRB as a condition precedent to conferring jurisdiction upon a state court. Request was made and granted to submit additional authorities on this point. Both sides did submit authorities and from the most recent decisions it appears that in those cases falling within the purview of the N.L.R.A. and involving interstate commerce, even though the jurisdictional amount involved would appear to be below the commonly observed lower limit adopted by the NLRB, still an application should first be made to the Board and denied as a pre-requisite to the assumption of jurisdiction by a state court.

The most recent pronouncement on the subject is by the United Ststes Supreme Court in Radio and Television Broadcast Technicians, Local Union 1264 et al v. Broadcast Service of Mobile, Inc., 85 S.Ct. 876, filed on March 15, 1965. In a per curiam decision striking down an injunction issued by an Alabama state court, the United States Supreme Court held:

‘Although a state court may assume jurisdiction over labor disputes over which the National Labor Relations Board has jurisdiction but declines to assert it, 29 U.S.C. § 160(a)(1958 ed.), there must be a proper determination of whether the case is actually one of those which the Board will decline to hear.’ [Italics added.]

In the case of Colorado State Council of Carpenters v. District Court of Eighth Judicial District, Colo., 392 P.2d 601 (1964), the Colorado Supreme Court, in vacating an injunction said:

‘We think it sufficient to say in justification of this decision that the matters in controversy are practically the same as those present in Building Construction Trades Council v. American Builders, Inc. [36 LC ¶65, 354], 139 Colo. 236, 337 P.2d 953, in which it was held that the state courts have no jurisdiction to enjoin peaceful picketing in the absence of a showing that the National Labor Relations Board has declined to accept jurisdiction over the controversy.’ [Emphasis added.]

Respondent's position on this point of assumption of jurisdiction by state courts is that by published rule of the NLRB, Release No. R–576, October 2, 1958, the Board has indicated the lower business volume limit below which it will not assume jurisdiction and since appellant concedes that respondent's business volume falls below such limit, this amounts ipso facto to a declination to assume jurisdiction. But in Radio and Television Broadcast Technicians, Local 1264 v. Broadcast Service of Mobile, Inc., supra, the court indicates that factors other than those affecting mere money volume of business of the particular party making application may enter into the determination of whether it will assume jurisdiction. Whether other factors are present in this case which would enter into such a determination is not before this court. But even so, such a determination is not one for the state courts to make, but one for the Board itself. In the Colorado case, cited above, citing Building Construction Trades Council v. American Builders, Inc., 139 Colo. 236, 337 P.2d 953, appears the following:

‘[I]t is held that the state courts have no jurisdiction to enjoin peaceful picketing in the absence of a showing that the National Labor Relations Board has declined to accept jurisdiction over the controversy.’ [Emphasis added.]

We do not consider that the pointing to a published rule, which the United States Supreme Court has said is subject to variables, constitutes a showing that the NLRB has declined to accept jurisdiction. The emerging rule apparently is that in order to confer jurisdiction upon the state courts in those cases falling within the N.L.R.A., an application or petition must first be filed with the NLRB. If the Board then declines to assert jurisdiction, the state courts may then be called upon to step into the vacuum thus created. As stated by the court in San Diego Building Trades Council etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773 (1959):

‘When an activity is arguably subject to section § 7 or § 8 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board, if danger of state interference with national policy is to be averted.’

Thus, it appears that in this action the prerequisite application had not been first made by plaintiff-respondent to the NLRB and jurisdiction declined by the Board. Such procedure having been a condition precedent to conferring jurisdiction upon the state court, the order granting the injunction was without authority and therefore must be vacated.

The order is reversed.

FINLEY, Justice pro tem.

GERALD BROWN, P. J., and COUGHLIN, J., concur.

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