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


Civ. 14076.

Decided: June 28, 1943

V. P. Lucas and David Sokol, both of Los Angeles, for appellants. O'Melveny & Myers, of Los Angeles, by Pierce Works, of Los Angeles, and Franklin N. Smith, of Lompoc, for respondent.

Defendant labor unions have appealed from a judgment whereby they were enjoined from listing plaintiff as unfair to organized labor and from picketing and boycotting plaintiff and its business during the pendency of proceedings before the National Labor Relations Board for investigation and certification of a bargaining agent for plaintiff's employees. At the time of the rendition of the judgment from which the appeal is being prosecuted, Judge Henry M. Willis, who presided at the trial, filed with the clerk of the superior court a memorandum opinion in which he clearly set forth the pertinent facts, the issues and the principles of law involved and the reasons for the judgment. We are in accord with the views therein expressed and, with additions which will hereinafter appear, we adopt the opinion of Judge Willis as and for the opinion of this court. It is as follows:

“Plaintiff, a New York corporation, qualified to do business in California, brought this action against Wholesale Delivery Drivers and Salesmen's Union, Local 848, and Grocery Warehousemen's Union, Local 595 (both incorrectly named in the above caption), and Los Angeles Food and Drug Council to secure an injunction restraining defendants and their officers and agents and members from listing plaintiff as unfair to organized labor, from making any false or fraudulent statement, in connection with picketing or boycotting, concerning plaintiff or its officers or business, or concerning the wages, hours or conditions of labor at plaintiff's place of business; and from interfering with or preventing the sale or delivery of plaintiff's products by picket, boycott, strike or by threats thereof or by other concerted action for the purpose of inducing or compelling plaintiff to violate the National Labor Relations Act, commonly called the Wagner Act, 29 U.S.C.A. § 151 et seq.

“Within the scope of the pleadings and under admissions, stipulations and proofs the following facts are established:

“Plaintiff is engaged in the business of manufacturing, bottling, importing, distributing and selling distilled spirits and alcoholic liquors, maintaining its local and Western Division offices and place of business in Los Angeles, California, with charge over business in the eleven western states. It receives no merchandise from within the State of California, but imports all thereof from other states and some foreign countries. It sells and delivers from its warehouse approximately four per cent of its goods and products to outside states, the balance being sold and delivered to customers in California. It employs fifteen salesmen who solicit business in California, and four office clerks, a private secretary to the Division Manager, a confidential bookkeeper, a Branch Manager, a warehouse superintendent and two teamster–warehousemen. None of the salesmen or clerks were members of either of defendant unions, and none of them had authorized either of such unions to bargain for them with their employer. Sometime in 1941, without opposition from plaintiff, the defendant unions had ‘organized’ the two teamster employees. Of these two teamsters one was a member of Local 848 and the other was a member of Local 595.

“Beginning in January, 1942, and continuing thereafter, representatives of Local 595 approached plaintiff's Division Manager and its Branch Manager and asked permission to interview the four clerks with a view of inducing them to join Local 595. This permission was granted and several interviews were held with the clerks but they all declined to join the local. In the latter part of February, 1942, representatives of Local 595 presented to plaintiff a form of contract covering the office clerks as a unit with a request that plaintiff sign the same with the local. This form of contract (Ex. 1) is clearly what is called a union closed–shop contract. Plaintiff refused to sign such contract for the reason that the local's representatives admitted that it did not represent a majority of said clerks,––in fact, none of them. There upon said representatives stated that unless the plaintiff signed and the clerks became members of Local 595, the firm would be crucified, that there would be a picket line, the teamsters would be called out, and a boycott instituted. Upon the continued refusal of plaintiff to sign such contract, the representatives of Local 595, about March 15, 1942, informed plaintiff that if it did not persuade the office clerks to come into the union, they would call in the aid of Local 848, and proceed to organize the salesmen as well as the clerks. Shortly thereafter the representatives of Local 848 called with those of Local 595 and discussions concerning the salesmen were had. Permission was asked and granted to interview the salesmen and they were interviewed and all declined to join Local 848. At this juncture, Local 848 also presented its form of closed shop contract covering the salesmen (Ex. 2) to plaintiff with request for signature. This was refused on the ground that Local 848 did not represent a majority of the salesmen––in fact, none of them––and that plaintiff would violate the National Labor Relations Act if it signed such contract. After some further urgent requests by Local 595 and 848 that plaintiff persuade its clerks and salesmen to join those respective locals, which requests were refused, the locals called the two warehousemen–teamsters out on strike, established a picket line at plaintiff's place of business and began a secondary boycott on June 14, 1942, and such picketing and boycotting has continued up to date of submission of this case. At the same time the Los Angeles Food and Drug Council published plaintiff's name and business in its ‘Unfair List’ and the defendants jointly notified a large number of plaintiff's customers, orally and by circular letter; that plaintiff was ‘unfair’ and requested them not to purchase plaintiff's products. Many of such customers have ceased to patronize plaintiff and as a result of the concerted action above described, it has suffered irreparable damage and will continue to suffer such damages unless the picketing and boycotting ceases. In this connection it should be stated that all such concerted activities have been peaceful, and no violence or threats of violence have occurred, nor any false or fraudulent statements published by the locals, other than the questioned 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, concerning which more will be said hereinafter.

“Incidental to the foregoing facts, it is established that in January, 1941, the salesmen employees of plaintiff had organized a labor union under the name of Park & Tilford Mutual Association as an unincorporated association, and informed plaintiff through its president that it represented the salesmen as a bargaining agent. No formal contract had ever been made between this association and plaintiff but discussions had been had in respect to certain wages. At the time that Locals 595 and 848 were pressing their demands for a contract they were informed of the existence of this association and that it had recently taken in the clerks also for bargaining purposes. Plaintiff had suggested to the defendant unions that the National Labor Relations Board be petitioned to call an election and for certification of a bargaining agent, but defendants refused to unite in such procedure. Then on September 1, 1942, plaintiff filed such a petition with the National Labor Board which assumed jurisdiction and started an investigation and on the next day, September 2, 1942, plaintiff commenced this action. However, on September 4, 1942, defendant Local 595 filed with such Labor Board its charges accusing plaintiff of committing an unfair labor practice as defined in the National Labor Relations Act, in that it interfered with and dominated the Park & Tilford Mutual Association and coerced its employees to become members thereof. By a rule of the Board it is provided that investigation on a petition for certification is temporarily suspended until such charges may be determined.

“The essentials of these same charges were pleaded by defendant Local 595 in its answer as a special defense, but at the trial such defense (which may be characterized as that of ‘unclean hands') was deliberately abandoned by defendant, and this feature of the case may be closed by stating that there is no evidence whatever in the record of the trial of this case relating to the facts constituting the basis of such charge, and that in so far as the issues in this case are concerned we may eliminate all further reference to or consideration of the origin or history of the Park & Tilford Mutual Association, other than its existence as such, and for the same reason all consideration of the charges filed by Local 595.

“On this state of the facts herein, defendant Local 595 claims that this court has no jurisdiction of the subject of this action on the stated ground that the National Labor Relations Board has exclusive jurisdiction to determine the issues herein by virtue of Section 10(a) of the National Labor Relations Act. Defendant Local 848 contends that this state court has no jurisdiction to enforce or administer the provisions of the National Labor Relations Act, nor to find on the question of commission of an unfair labor practice affecting commerce.

“Jurisdiction is the power to hear and determine, and jurisdiction of a particular case is the power to hear and determine that case. 7 Cal.Jur. 584. The jurisdiction sufficient to sustain a record in this case is jurisdiction over the cause and over the parties. Sec. 1917, Code Civ. Proc. It is manifest that this court has jurisdiction over the parties. The cause is one of injunctive relief from all picketing and boycotting by the appearing defendants in furtherance of an unlawful purpose and in violation of plaintiff's property rights. An action for injunction is a case in equity of which this court has original jurisdiction under Article VI, Section 5, of the State Constitution, Rickey Land & Cattle Co. v. Glader, 6 Cal.App. 113, 91 P. 414; County of Yuba v. North American, etc., Min. Co., 12 Cal.App. 121, 107 P. 138. In the case of Armstrong v. Superior Court, 173 Cal. 341, 159 P. 1176, on certiorari the jurisdiction of the Superior Court to enjoin ‘all picketing’ was challenged. Therein the court stated: ‘* * * We are satisfied that it cannot be held that a court of equity is without jurisdiction to enjoin any and all picketing, as it has done in this case, and that if there be any error in this regard, * * * it is simply error in the exercise of jurisdiction which can be reviewed by a higher court only upon direct appeal from the order.’

“Where a court has jurisdiction of the subject matter, as must be held in this case, it has a right to decide every question which occurs in the cause. Hibernia S. & L. Society v. Lewis, 117 Cal. 577, 582, 47 P. 602, 49 P. 714.

“There are three outstanding questions arising herein. (1) Is plaintiff corporation engaged in interstate commerce so as to render it subject to the provisions of the National Labor Relations Act? (2) Were the picket and boycott activities of defendants engaged in and prosecuted for an unlawful purpose? (3) Was the publication of the charge that plaintiff was ‘unfair to organized labor’ false, fraudulent or dishonest?

“(1) Is plaintiff subject to the Wagner Act?

“The declared policy of the United States as stated in the National Labor Relations Act is to eliminate the causes of certain substantial obstructions to the free flow of commerce, resulting from denial by employers of the right of employees to self–organization and of collective bargaining, having the effect of burdening or obstructing commerce, or materially affecting the flow of raw materials or manufactured or processed goods from or into the channels of commerce. Sec. 1. The term ‘commerce’ is defined in the Act as meaning ‘trade, traffic, commerce, transportation, or communication among the several States * * * or between any foreign country and any State.’ Sec. 2, subd. 6.

“Under the skeleton recitation of facts herein concerning plaintiff's area and method of business, amplified by the probative facts in evidence, it is quite clear that plaintiff was, during all the times included in this case, and still is engaged in interstate commerce within the meaning and purview of the National Labor Relations Act and was and is an employer subject to the provisions thereof.

“(2) Were defendants' activities for an unlawful purpose?

“By express terms of the act it is declared to be an unfair labor practice for an employer, subject to the Act, to interfere with, restrain or coerce employees in the exercise of their rights of self–organization or of collective bargaining through representatives of their own choosing. Also it is declared to be an unfair labor practice for an employer to discriminate in regard to hire or tenure of employment so as to encourage or discourage membership in any labor organization, provided, this does not preclude the employer from making an agreement with a labor organization requiring membership in such organization as a condition of employment, if such labor organization is the representative of a majority of the employees in the appropriate collective bargaining unit covered by such agreement.

“Under the proofs herein this court is constrained to find that the defendants, acting in concert of purpose and activities, established and have maintained a peaceful picket line at plaintiff's place of business, and have instituted and carried on a secondary boycott of plaintiff's business relations and dealings with its customers for the purpose of coercing plaintiff to persuade its employees, both clerks and salesmen, to join the defendant unions, respectively as to units, as a condition of retaining employment. This persuasion, if successful in its purpose, would render plaintiff guilty of an unfair labor practice and a direct violation of the National Labor Relations Act. Incidental to and as a basis of such persuasion, defendant unions, each for itself, demanded of plaintiff that it execute with the respective union a closed–shop contract, by the terms of which plaintiff would be required to influence its employees to join the respective union as a condition of continuing employment. As the defendant unions did not represent a majority of either the clerks or the salesmen, employees of plaintiff, neither of them was authorized to bargain for or to execute such an agreement on behalf of such employees in their respective units, and it would have constituted an unfair labor practice on the part of plaintiff to have acceded to such demand and to have executed such contract. Such contract would not only be void and unenforceable but its execution by plaintiff would have been tantamount to the unfair labor practice first mentioned above. The obligation imposed by the Wagner Act to treat only with the true representatives is exclusive and hence imposes the negative duty to treat with no other. N. L. R. B. v. Jones & Laughlin Steel Co., 301 U.S. 1, 44, 57 S.Ct. 615, 81 L.Ed. 893.

“The purpose of the picketing and boycotting is thus definitely shown to be the coercing of plaintiff into commission of unfair labor practices, which, if committed under such coercion, would subject plaintiff to prosecution before the Labor Board on charges. When viewed from any angle, this purpose of defendants constituted illegal coercion. Picketing or boycotting for such purpose are but the weapons of such illegal coercion, and may be enjoined. Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682, 123 P.2d 20. And a secondary boycott must be exercised in pursuit of a lawful end. C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 395, 106 P.2d 414.

“A strike, boycott or other form of economic pressure activities, however peaceable and innocent on their face, may nevertheless be without legal justification and unlawful if the purpose behind and motivating such action is unlawful. Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248; Senn v. Tile Layers Protective Union, 301 U.S. 468, 478, 57 S.Ct. 857, 81 L.Ed. 1229; C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 395, 399, 106 P.2d 414; McKay v. Retail Automobile Salesmen's Local, 16 Cal.2d 311, 331, 106 P.2d 373; R. H. White Co. v. Murphy, 310 Mass. 510, 38 N.E.2d 685.

“Collective labor activity, represented by picketing and boycotting, is permissible only when conducted according to the requirements imposed by law, and if in violation of such requirements, picketing and boycotting are subject under ordinary circumstances to the restraint of a court of equity. Magill Bros. v. Building Service, etc., Union, 20 Cal.2d 531, 535, 127 P.2d 542. The federal law, embodied in the Wagner Act forbids an employer, whose business subjects him to the provisions of such act, from interfering with or coercing his employees in their rights of self–organization and collective bargaining, and to negotiate or enter into contracts with a labor organization which does not represent a majority of his employees in the appropriate bargaining unit. By necessary implication all others are forbidden to compel him so to do. To picket or boycott such employer for the purpose of coercing him into signing such a contract or to interfere with his employees' right of joining or not joining a union, is directly contrary to the spirit and purpose of the Wagner Act, and constitutes illegal coercion, and is subject to restraint by a state court of equity. Hudson Recreation Co. v. Bowling, etc., Union Local 209, 39 Pa.Dist.Co.R. 655; R. H. White Co. v. Murphy, 310 Mass. 510, 38 N.E.2d 685.

“I am mindful of the decisions of our Supreme Court in the so–called McKay series of decisions of October 14, 1940 (McKay v. Retail Automobile Salesmen's Local Union No. 1067, 16 Cal.2d 311, 106 P.2d 373; E. H. Renzel Co. v. Warehousemen's Union I. L. A. 38–44, 16 Cal.2d 369, 106 P.2d 1; Lund v. Auto Mechanics' Union No. 1414, 16 Cal.2d 374, 106 P.2d 408; Shafer v. Registered Pharmacists Union Local 1172, 16 Cal.2d 379, 106 P.2d 403; C. S. Smith Metropolitan Market Co., Ltd., v. Lyons, 16 Cal.2d 389, 106 P.2d 414; Fortenbury v. Superior Court of Los Angeles County, 16 Cal.2d 405, 106 P.2d 411), the effect of which was to declare that the provisions of the California Labor Code had not had the effect of outlawing closed–shop contracts, and that peaceful picketing or boycotting for the purpose of securing such a contract were activities in pursuit of a lawful end. This is the law in California applicable to employers who are not subject to the provisions of the Wagner Act. That Act had outlawed closed–shop contracts between a labor organization and an employer engaged in interstate commerce, in all cases where the labor organization does not represent a majority of the employees in the affected unit. It follows logically that economic pressure applied by a labor union to coerce employers to execute such an outlawed contract, is unlawful because it is directed to an unlawful purpose, and to secure an unlawful result. This conclusion is not in conflict with that in the McKay cases, although it appears to present an anomaly. This, however, naturally results from the difference in statute law applicable to and binding on the two different classes of employers, namely, those engaged in intrastate business exclusively, subject only to state law as interpreted, and those engaged in interstate trade or commerce, subject to the Wagner Act.

“(3) Was the listing and publication of plaintiff's name and business on the unfair list truthful and honest?

“The use of the word ‘Unfair’, as employed by labor organizations generally, carries a technical meaning commonly understood by the courts, the parties and by all persons to whom labor organizations send notices that a certain employer had been declared unfair. Such meaning, ordinarily conveys the idea that the employer has refused to comply with conditions upon which union men would consent to remain in his employ, or other employers under contract with, or sympathetic to organized labor, would consent to purchase or handle material or merchandise supplied by him. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 592, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165.

“As commonly used by labor organizations the term ‘unfair’ or ‘unfair to organized labor’ does not mean and is not understood to mean that the employer, so charged, has been guilty of any fraud, breach of faith or dishonorable conduct, but that he has refused to comply with reasonable, honest and lawful conditions imposed or demanded by a labor organization. It is a prime prerequisite to support and give truth to such a charge that in some recognized lawful respect the employer has refused to comply with proper and lawful demands of a labor union. Thus if the demand made or condition imposed by the labor union upon an employer is opposed to reason, public policy or the law, and cannot be assented to without violating public policy or law, it cannot be truthfully and honestly said that the employer is unfair to organized labor, or unfair at all. Instead, to declare that an employer is unfair under such circumstances is clearly deceptive and fraudulent.

“In this case the plaintiff is shown by the evidence to have been fair to the defendant unions at all times. It furnished them every requested opportunity to ‘organize’ the clerks and salesmen, and placed no obstacles in their way to secure their applications for membership in, or their authorization to defendant unions to act as their bargaining agent. Failing in these efforts to organize the employees of plaintiff, not through any fault or opposition of plaintiff, but solely because the employees in question refused to join defendant unions, preferring to self–organize in their own union, and failing to persuade plaintiff to commit acts in violation of the Wagner Act for the purpose of influencing or coercing its employees to join such defendant unions, the defendants, acting in concert, called the strike of the two teamsters, established a picket line and published plaintiff's name on the Council ‘unfair list,’ and mailed to many customers of plaintiff a circular letter stating that plaintiff had been placed on the ‘official “unfair” list of the Los Angeles Food and Drug Council to which body our unions belong,’ and requesting such customers to cease patronizing plaintiff until the unions' dispute with plaintiff was settled.

“Under the facts and circumstances of this case it must be found that the publication of plaintiff's name and business as ‘unfair’ was untrue, deceptive and dishonest. It is manifest, and was equally manifest to the defendants, that plaintiff had not been, and is not unfair to organized labor in general or to these local unions in particular in any respect. No truthful or honest charge of ‘unfair’ or ‘unfair to organized labor’ can be predicated on refusal of an employer to accede to unlawful demands of a union. The picketing and secondary boycott which has occurred were founded exclusively on this refusal to commit unfair labor practices by plaintiff, and in combination with the publication of this charge of ‘unfair,’ and are inseparably entangled with such publication.

“ ‘There can be no doubt that untruthful picketing is unlawful picketing. Cases involving the right of labor to picket peacefully have consistently held that the picketing must also be honest and truthful.’ Magill Bros. v. Building Service etc. Union, 20 Cal.App. 506, 127 P.2d 542, 543. ‘Despite theoretical criticism * * * and despite the fact that the publication of false statements alone will not justify equitable relief, it is the nearly unanimous rule throughout the country that equity will intervene where false or fraudulent statements are combined with picketing and where, under local policy, this renders the picketing illegal.’ Id. 20 Cal.2d at page 509, 127 P.2d at page 544. ‘We find no suggestion in these cases, therefore, that a state policy characterizing untruthful picketing as unlawful and enjoinable is in violation of the constitutional provision. [Free Speech]’. Id., 20 Cal.2d at page 512, 127 P.2d at page 545. ‘Unless there is a statutory or constitutional restriction on the power of a court of equity under the circumstances here presented, therefore, it seems clear that plaintiff is entitled to a decree enjoining defendants from picketing falsely and untruthfully.’ Id., 20 Cal.2d at page 510, 127 P.2d at page 544.

“In the case, from which the above quotations are taken, it appeared that the defendant union, in an effort to organize the shop of plaintiff, placed a picket line at the shop, the pickets carrying signs stating: ‘This house on strike. A. F. L.’ In truth and in fact there was no strike on there and the statement was found to be false. The Supreme Court after declaring the law as above quoted concluded as follows: ‘Under the facts set forth in this case, therefore, plaintiffs are entitled to a decree restraining defendants from the use of false or untruthful statements in the exercise of their right to picket.’

“Ordinarily false or fraudulent statements, either oral or in writing, may be disassociated from picketing, but not from boycotting when made in connection or combination with boycott activities. In this case, however, the picketing is founded on and maintained in direct combination with the false charge of unfairness and cannot stand if the false charge is eliminated by decree of injunction. To use an old western adage, ‘The tail goes with the hide.’ As to the boycott it is manifest that the false charge cannot be disentangled from the boycott activities and both must stand or fall together.


“From the foregoing it is demonstrated that in no wise has this court encroached upon any subject of litigation committed to the exclusive jurisdiction of federal tribunals under the Wagner Act. Nor is this court in any wise proceeding to enforce or administer any of the provisions of that act. In a case in which it clearly has jurisdiction over the parties and subject matter, it has, in the exercise of its inherent equity powers, made findings on material facts which constitute the cause of action, and its conclusions based on such facts when viewed in the light of existing law. It has, in brief, only found that defendants are seeking, by conventional economic pressure activities, to coerce plaintiff, engaged in interstate commerce, to influence its employees to join the defendant unions, against their will, and to execute closed–shop contracts with local unions which do not in fact represent a majority of such employees by appropriate unit. Applying the existing law to these facts, this court simply concludes that the purpose of such activities is unlawful and therefore subject to injunction in this state court of equity.

“Also, and on a separate and distinct basis of equitable relief recognized by our state courts, this court has found that the charge that plaintiff was ‘unfair’ was false and dishonest, and being published in combination with the picketing and boycott activities, rendered such picketing and boycotting as untruthful and dishonest, and therefore unlawful and enjoinable.

“The sanction granted a court of equity to administer justice and enforce rights in novel and unprecedented cases arising under changes in the social and business world, where there is no remedy save in a court of equity, is as broad as the necessities of the case demand. Dougherty v. Creary, 30 Cal. 290, 297, 89 Am.Dec. 116; Times–Mirror Co. v. Superior Court, 3 Cal.2d 309, 331, 44 P.2d 547.

“Under the facts and the law, measuring the necessities of this case, upon either or both of the grounds hereinabove set forth, plaintiff is entitled to an injunction restraining defendants from all picketing and boycotting of plaintiff and its business during the pendency of the proceedings before the National Labor Relations Board for investigation and certification of bargaining agent for plaintiff's employees, and thereafter until modification or vacation of such injunction, the court reserving the power so to do on application of any party accompanied by sufficient showing.”

The judgment of the trial court does not infringe upon the jurisdiction of the National Labor Relations Board. In the Act by which the Board was created Congress provided for the protection of the collective bargaining rights of employees, but it did not protect the employer against such coercive action as is shown to exist in the present litigation. The matter of the protection of the employer was left open by Congress for state control. Allen–Bradley Local v. Wisconsin E. Rel. Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154. The prevention of the picketing and other activities condemned in the judgment does not impair any of the rights which are protected or granted by the federal Act. The trial court was within its jurisdiction in awarding the equitable relief granted in the judgment. The Allen–Bradley case, supra, arose in Wisconsin, where a state statute, the Wisconsin Employment Peace Act, Laws 1939, chap. 57, Wis.Stat.1939, chap. 111, pp. 1610–1618, resembles the National Labor Relations Act with the addition that it is therein declared to be unfair labor practice for employees to use methods of coercion. An employer filed a petition under the Act charging a union and its members with unfair labor practices. The Wisconsin Board entered an order in favor of the petitioner, which was sustained by the Supreme Court of Wisconsin. 237 Wis. 164, 295 N.W. 791. In affirming the order the Supreme Court of the United States held that Congress had not made such employee and union conduct as was involved in the case subject to regulation by the federal Board.

The judgment is affirmed.

I concur in the judgment. In view of the circumstances presented by this case and of the authorities hereinafter cited as well as of the Wagner Act, there was no alternative other than to order the issuance of the injunction.

The question for decision is whether a state court, on the petition of an employer engaged in interstate commerce, can enter a valid judgment perpetually controlling a picketing union which seeks to coerce the employer to sign a contract with the union to employ only its members and to have the union act as the bargaining agent of the employer. By virtue of the sovereign powers reserved to the state, U.S. Constitution Xth Amendment, historically California has hitherto afforded injunctive relief against irreparable injury threatened to her citizens. By the same fundamental law the national government was granted full authority over interstate commerce, Art. I, Sec. 8. Pursuant to such granted power, exclusive in scope, the Congress enacted the National Labor Relations Act. By virtue of the Constitution the judges in every state are bound to uphold and follow that Act (Art. VI) in its exclusive control with respect to labor controversies of employers engaged in interstate commerce.

Appellants assert that because of the exclusive jurisdiction of the Board created by the Act the Superior Court of California has no power to enjoin unlawful picketing of such employer or to determine whether he is engaged in interstate commerce. Respondent on the contrary maintains that the court has unlimited power by final judgment to enjoin those who would disrupt the orderly processes provided by the federal statute. It is the purpose of this discussion to demonstrate that neither the thesis of appellants nor the conclusion of the majority is wholly in accord with the law.

Under the facts found, amply supported by the proof, plaintiff is engaged in interstate commerce and is therefore subject to national legislation affecting its relations with its employees or with those seeking to interfere with such relations. By section 160(a) of the Wagner Act, 29 U.S.C.A., section 10, the National Labor Relations Board, hereinafter referred to as the National Board, is granted “exclusive” power to prevent “any person from engaging in any unfair labor practice” and such power “shall not be affected by any other means of adjustment or prevention * * *.”

The very fact that the jurisdiction of the Board is exclusive would appear to forbid a state court to enter a judgment whose design is to forestall the exercise of its jurisdiction by the National Board to enforce the federal statute. If the state court may entertain the suit, whence does it derive its power? Not from the federal constitution, for by that instrument such power was delegated to the central government with respect to matters affecting interstate commerce. The National Labor Relations Act hereinafter referred to as the Wagner Act specifically provides for the regulation or control of labor relations that affect the free flow of “commerce * * * among the several states,” Subd. 6, sec. 152, 29 U.S.C.A., by the National Board according to the provisions of the Act. But because of the grant of such judicial power by the states to the national government in the federal constitution must it be said that an employer engaged in interstate commerce is to have no judicial relief from his threatened irreparable injuries when the national agency is inadequate for the task? It must have been the intention of Congress that all interstate employers should seek relief from their grievances arising out of employment relations through the medium of state courts or that the National Board should give the Act such a construction as would result in a fair administration of that law to all persons, groups or corporations that might become involved in labor disputes. In the light of the history of legislation framed to meet acute social problems, it is not reasonable that the Congress of the United States would have adopted an Act solely for the relief of one of two classes of disputants and leave the other to the mercies of other jurisdictions. In this view it was a rational act of the respondent first to petition the National Board for the order provided by section 160(b) before seeking an injunction from a state court. For the same reason it is not disappointing that, likewise, appellants are contending for a total want of jurisdiction in the state courts in support of their conclusion that the Act is the sole repository of both substantive and adjective law relating to the problem at hand. Confronted as it was with a grave peril to its survival because of its inability to effect speedy and adequate relief, respondent sought the aid of equity for an adjudication of major grievances that might beset such an institution in respect to its manifold relations within the commonwealth of California.

The superior court was thus faced with a situation where the threatened irreparable damage of plaintiff was without adequate and speedy remedy under the controlling national statute and was therefore constrained to issue the injunction. Three facts of compelling force operated upon the conscience of the chancellor. For two reasons is this true: (1) The successive sections of the Act provide for investigation and certification by the National Board upon the petition of the employees only when it is made to appear that the employer is guilty of some unfair labor practice toward his employees. 29 U.S.C.A. §§ 158, 160. (2) If the plaintiff has suffered and still suffers irreparable damage to the extent alleged and found by the court, its existence as a commercial entity would probably be erased before an effective order granting relief might be entered by the National Board. (3) The method of enforcing the orders of the National Board are so complicated as to render difficult if not impractical the realization of legislative aims.

The superior court was required to act. In the first place, it owed a duty under the supreme law of the land to make such orders as would maintain a free flow of commerce. Article VI supra. Also, there is no specific inhibition in the National Labor Relations Act against the orders of state courts in the enforcement of the statute. Unless the act of Congress indicates an intention to displace local laws in the exercise of the commerce power, such intention is not to be inferred unless clearly indicated by those considerations which are persuasive of the statutory purpose. Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969, 980, 135 A.L.R. 1347. The purpose of Congress to displace the local law must be definitely expressed. Welch v. New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500, 504. In construing federal statutes enacted under the power conferred by the commerce clause, it must be borne in mind that Congress did not intend to supersede the exercise of the reserved powers of a State unless its purpose so to do is clearly manifested. Illinois C. R. Co. v. State Pub. Utilities Commission, 245 U.S. 493, 510, 38 S.Ct. 170, 22 L.Ed. 425. In view of the reservation of all judicial power not granted to the National Government by the Federal Constitution and in view of the cumbersome procedure of the National Labor Relations Act it was incumbent upon the Superior court to enter, as in fact it did enter, such a judgment as would protect the injured party from further irreparable injuries and at the same time concede the paramount jurisdiction of the national agencies in the enforcement of the Wagner Act. While the authorities cited in the majority opinion exemplify the broad powers of equity as represented by state courts, it must be kept in mind that they are not authority for the displacement of the federal tribunals established for the interpretation, administration, and enforcement of a federal statute enacted for the purpose of resolving those economic and social problems the solution of which primarily devolve upon the central government. It was therefore proper that the relief granted by the judgment under review be confined to the period prior to the exercise of the jurisdiction by the National Board over the issues here involved.

Under the law of this state relating to controversies between labor unions of propagandic activities and employers of labor in a distinctly intra–state establishment, no conduct of appellants enjoyed by the court may be the subject of injunctive relief. The acts of defendants were found to have been peaceful. The right peacefully to picket is held to be a lawful means whereby organized labor may advertise its grievances or its advantages. Such picketing is not unlawful because it may coerce. The unions may bring such lawful pressure to bear as is within their control. The right of picketing may extend to and beyond a dispute between an employer and his employees. It is proper in any controversy which is reasonably related to employment and to the purposes of collective bargaining. McKay v. Retail Auto S. L. Union, and associated cases, 16 Cal.2d 311, 106 P.2d 373. In order to secure employment on more favorable terms for themselves, any persons or group may, in concert, attempt to prevent the employment of other individuals in order to gain such employment for themselves. They may be as bold in asserting their superior excellence as is any dealer on the Venice pier in acclaiming the qualities of his merchandise in competition with his neighbors. See concurring opinions of Justice Sloss and Chief Justice Beatty in Parkinson Co. v. Building Trades Council, infra.

Not only are unions allowed in California to compete with one another and with non–union workers in strictly intrastate affairs, but they may, when their requests with reference to employment subjects are denied, advertise the employer as “unfair to organized labor”. Parkinson v. Building Trades Council, 154 Cal. 581, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165. Such holding was evidently based upon the recognition of either the limited vocabulary of strikers and picketers or on the poverty of our language, rendering difficult the appropriation of precise terms for indicating merely the existence of a dispute.

However, in applying a federal statute we pass to a new plane as if from the Code of Solon to the laws of Cyrus. In a situation controlled by a federal statute, state courts in awarding relief also are governed by the provisions of the federal statute. Under the Wagner Act it is declared to be unfair labor practice for an employer to coerce his employees in the exercise of their right to self organization or to bargain collectively and to engage in concerted activities or to dominate the formation of any labor organization. National Labor Relations Act, 29 U.S.C.A. §§ 157, 158. If an employer in interstate commerce may not do so, certainly any person or group who might engage in an economic pressure activity to coerce the employer to do what he is thus forbidden to do may be enjoined from continuing such activity. Such injunction is the only course to be pursued that may preserve from such illegal coercion the business of the employer and the employment at his disposal for the application of the federal Act. The injunction is issued “to protect against future irremedial harm.” Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682, 123 P.2d 20, 25. A state court may give protection against future injuries on an inference from past misconduct that it will continue. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200. Since the Wagner Act professedly makes no provision for the protection of employers against injurious acts of labor unions, it might be so construed as to make it operable on behalf of either party when the enforcement of the Act is necessary to the achievement of justice, and in all fairness if such was not the intention, state courts should exercise their equity jurisdiction. So also must it have been intended that equity as administered by state courts should be invoked in aid of the preservation of rights of an employer existing at the commencement of a controversy. Inasmuch as the Act forbids the employer to coerce his employees, Congress must have intended that a union should not be permitted to compel an employer by economic pressure or otherwise to dominate his employees with respect to their self organization.

In holding that the superior court has jurisdiction we are not without precedent. The state of Wisconsin enacted a statute patterned after the Wagner Act. Under it a manufacturer procured an order to be made by the state board forbidding mass picketing or the threatening of its employees with bodily injury or the picketing of their homes. The petitioner was subject to the National Labor Relations Act. It was held by the United States Supreme Court that the federal statute was not designed to preclude a state from enacting legislation to govern the type of union activity condemned and that “state action should not be foreclosed in absence of a finding by the federal Board, * * * that an employer's labor practice so affects [the flow of] interstate commerce * * * that it should be prevented.” No “employee was deprived of rights protected or granted by the federal Act.” Allen–Bradley Local v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 824, 85 L.Ed. 1154. Appellants attempt to distinguish the Wisconsin case on the ground that the proceeding arose under a state statute providing for the regulation of industrial units and for settling controversies between labor and employer. There is no advantage gained by a state tribunal's acting under a special statute over the position of a state which leaves the solution of such problems to its courts. If the tribunal in one instance is the creature of a statute, the statute is no more than the expression of the sovereign power of the state while a court is the creature of the constitution which is the state's fundamental law. Until courts are stripped of jurisdiction of actions in equity by appropriate laws, their disposition of causes requiring injunctive relief has all the sanctity that might surround the decision of a board especially created to arbitrate causes formerly adjudicated by the courts. This is exemplified in a case litigated in Massachusetts which also has a labor relations law. R. H. White Co. v. Murphy, 310 Mass. 510, 38 N.E.2d 685. The company sued to enjoin certain unions and their members from picketing plaintiff's store. Two locals 829 and 82 demanded a contract for a closed shop and threatened a strike unless it be signed. On January 31, 1941, plaintiff yielded and signed, although neither union represented a majority of the employees and proceedings for certification were still pending with the state commission on the petition of the C. I. O. Union. The commission ordered an election which was held on February 21. The C. I. O. Union prevailed in the election and was, on February 25, certified as the bargaining representative of the employees. Three days later the two locals demanded compliance with their contract theretofore exacted. On plaintiff's refusal to discharge those employees not members of the locals, the defendants in concert attempted to compel plaintiff to discharge such employees, and to refuse to bargain with the representative, certified by the commission. Had plaintiff done as thus requested by defendants, it would have violated Sec. 4(5) of the state labor relations law. It was held that, under the state law, identical in its provisions with the National Labor Relations Act, the contract relied upon was inefficacious because the law determines which, as between competing unions, shall have the contract to be the collective bargaining agent of the employees. Citing International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50. The locals were enjoined because the picketing was unlawful. Its purpose was “to disrupt and disorganize a settled situation.” It is thus demonstrated that the act of an employer in yielding to the demands of a maverick group in violation of the labor relations law is a nullity. “It was an unlawful act,” said the Massachusetts' Court [310 Mass. 510, 38 N.E.2d 692], “for the defendants to picket the plaintiff's places of business for the purpose of persuading or inducing it to conform to the contract in question, and thus to engage in an unfair labor practice condemned by the governing statutes.”

By the force and reasoning of the Wisconsin and Massachusetts' cases, one is convinced that not only was plaintiff herein entitled to an injunction to inhibit the practices condemned by the Wagner Act, but also that the superior court was a proper agency in California for upholding the integrity of the national statute when a dealer in interstate commerce is beset by picketers who have attempted to coerce him to disregard the provisions of that law. Appellants cite Brotherhood of Railroad Trainmen v. Owens, Tex.Civ.App., 165 S.W. 128, as authority for the want of jurisdiction of the state court. But that was an action by employees against the Brotherhood to enjoin it and its agent from acting as the bargaining agents for the plaintiffs or representing them before the National Labor Relations Board or contracting for them with the defendant Bus Company. That case presents just such a situation as was contemplated by the Wagner Act. It was an action by workers; not a suit by an employer against a union. There was no reason why the complainants should not have presented their claim directly to the federal board where the brotherhood was already the certified agent of the employees.

In view of what is said above, there seems to be no question of the propriety of the judgment which has been entered. A decree in similar form was entered by the United States Supreme Court in the case of State of Wisconsin v. State of Illinois, 281 U.S. 696, 698, 50 S.Ct. 331, 74 L.Ed. 1123 in an original proceeding. Upon the hearing of a written application, the scope of the judgment was subsequently enlarged. 289 U.S. 395, 710, 53 S.Ct. 671, 77 L.Ed. 1283, 1465. By such procedure state courts may render a service in the administration of a federal statute without a clash of the two jurisdictions.

W. J. WOOD, Justice.

McCOMB, J., concurs.