GREENE v. HAWAIIAN DREDGING CO LIMITED ET AL

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

GREENE v. HAWAIIAN DREDGING CO., LIMITED, ET AL.*

Civ. 14371.

Decided: September 07, 1944

J. P. Nunnelley, of Los Angeles, for plaintiff and respondent. Thelen, Marrin, Johnson & Bridges, of San Francisco, and Cedric L. Brash, of Oakland, for defendants and appellants.

From a judgment in favor of plaintiff, after trial before the court without a jury, in an action to recover damages for breach of a contract of employment, defendants appeal.

These facts are undisputed:

Defendants, a group of contractors operating under the name of “Contractors, Pacific Naval Air Bases,” in October, 1940, were constructing naval air bases on Midway Island, T. H., for the United States Navy. On October 30, 1940, defendants entered into a written contract1 with plaintiff whereby they employed plaintiff as an iron worker at a salary of $200 per month. Shortly thereafter plaintiff left for Midway Island where he remained and worked for defendants until he was discharged on April 21, 1941.

In April, Mr. Sheik, the general superintendent for defendants on Midway Island, received instructions from the Navy Department to put into effect a “check–in, check–out” system. Under this system each employee was required to stop by a time booth on his way to work and pick up a small brass disk bearing his number and to stop by the time booth and deposit his brass disk in a box provided for such purpose on his way from work. A notice was posted on the employees' bulletin board announcing that the new system would go into effect on the morning of April 21, 1941. Thereafter plaintiff prepared, signed and had a number of his fellow employees sign a letter which was posted upon the bulletin board the morning of April 20, 1941. This document read as follows:

“April 19, 1941

“Mr. N. B. Sheik

“General Supt.

“NOy 3550

“Copy to

“Commander Bentrees, USNR

“Officer in Charge,

“Naval Construction Camp,

“Midway Island

“Dear Sir:

“We, the undersigned, understand that the new check–in and check–out plan requires the employee to be on the job when the whistle blows, both at starting and quitting time. Also, that he be required to check in and out on his own time.

“If this interpretation be correct, please be advised that we believe the plan to be both unfair and unwarranted. However, if in your opinion, we have misinterpreted the plan, we stand to be corrected.

“While it is not our intention or wish to, in any way, impede the preparedness program or to embarrass the management, we find it necessary to reject the plan as we understand it.

“A bulletin on the bulletin board will be sufficient to clarify the situation.

“Signed.”

On the night of April 20, 1941, plaintiff prepared and posted on the bulletin board a notice reading thus:

“April 20, 1941

“Notice

“To All Those Men Who Signed the Answer to the Bulletin in Reference to the Check–in and Check–out System.

“You are expected to report for work Monday, April 21, as per usual with no change in the procedure.

“(Signed)

“V. F. Greene.”

Plaintiff testified when his deposition was taken that on the morning of April 21, 1941, he went to the check–in, check–out booth and watched the other employees go up to get their brass disks, but he himself did nothing and when his turn came he did not get his disk but went to work without it. At the time of the trial plaintiff testified that he asked for his brass disk but it was refused him.

On the afternoon of April 21, 1941, defendants discharged plaintiff.

This is the sole question necessary for us to determine:

Under the foregoing undisputed facts, were defendants legally justified in discharging plaintiff?

This question must be answered in the affirmative and is governed by the following pertinent rules of law:

1) Where the relationship of employer and employee exists the employee is bound to obey all reasonable orders of the employer not inconsistent with the contract of employment. (May v. New York Motion Picture Corp., 45 Cal.App. 396, 402, 187 P. 785; Sec. 2856 Labor Code, St.1935, p. 259; Ernst v. Grand Rapids, etc., Co., 173 Mich. 254, 138 N.W. 1050, 1051, Ann.Cas.1916A, 1025; Von Heyne v. Tompkins, 89 Minn. 77, 93 N.W. 901, 903, 5 L.R.A.,N.S., 524; Rogers v. Rogers, 70 Ind.App. 659, 122 N.E. 778, 780; Development Co. of America v. King, 2 Cir., 161 F. 91, 93, 24 L.R.A.,N.S., 812; Lubriko Co. v. Wyman, 3 Cir., 290 F. 12, 15.)

2) Disobedience of a reasonable order of an employer by an employee justifies an employer in discharging the employee. (May v. New York Motion Picture Corp., supra, 45 Cal.App. 403, 187 P. 785; Sec. 2924 Labor Code.)

3) A promise by an employee to obey the lawful and reasonable orders of his employer within the scope of his employment is implied by law in all contracts of employment. (May v. New York Motion Picture Corp., supra, 45 Cal.App. 402 et seq., 187 P. 785; Walker v. John Hancock Mut. Life Ins. Co., 80 N.J.L. 342, 79 A. 354, 356, 35 L.R.A.,N.S., 153, Ann.Cas.1912A, 526; Myers v. American Well Works, 4 Cir., 114 F.2d 252, 253).

From the foregoing undisputed facts it is clear that plaintiff by the notice he posted on the bulletin board the evening of April 20, 1941, indicated his refusal to comply with a reasonable order of defendants by refusing to accept the check–in, check–out system defendants had adopted. No other reasonable interpretation can be placed upon the statement of plaintiff in the notice which he had prepared reading in part as follows: “You are expected to report for work Monday, April 21 as per usual with no change in the procedure.” “As per usual with no change in the procedure” clearly meant one and one thing only, to wit, that the employees were to report without checking in. Defendants were entitled to assume from plaintiff's statement that he would not comply with the check–in system, and relying upon this statement defendants were legally justified in discharging him.

The facts of this case vividly portray the soundness of the above stated rules of law and their application to the facts of this case. At the time plaintiff refused to comply with the reasonable order of his employer the United States of America was on the brink of becoming involved in a cataclysmic war which was to threaten the very existence of our nation. Plaintiff and defendants were engaged in a frantic endeavor to prepare the country against a threatened attack by one of the most diabolically unscrupulous and utterly evil groups of war lords of which the world has any record. In an endeavor to expedite the preparation of our national defense the United States Navy through its duly authorized representative ordered defendants to install an unquestionably reasonable method of checking in and out the employees working on the national defense program at Midway Island. Upon plaintiff's statement of April 20th, which is only subject to the interpretation that he refused to comply with the orders of his employer, he was discharged.

Had the defendants followed a course other than that of discharging plaintiff upon his statement that he would not comply with their order it is highly probable that other employees would have followed plaintiff's lead (as he undoubtedly intended that they should) and refused to comply with the reasonable order of defendants, which would have resulted in a delay in the national defense program with the consequence that the battle which came a few months later near Midway Islands, and which signaled the turn of the tide of the present war in favor of the United States government, might have been lost and this country subjected to an invasion by the members of the Nipponese Empire, whose forces have repeatedly demonstrated by their unspeakable atrocities and depredations, in China and elsewhere, that they are possessed of bestial traits of such an unutterable nature and character as to defy the utmost flights of the imagination of man in the realm of cruelty and inhumanity.

It must be borne in mind that the present case does not in any way involve a labor union dispute or the special rules that have developed in the event of a labor dispute or which have been applied to trade unions. It is a simple case of an employee refusing to obey the reasonable order of an employer.

For the foregoing reasons the judgment is reversed.

I dissent.

October 30, 1940, at Los Angeles, by written contract defendants employed plaintiff to do iron construction on Midway Island, T. H., at a salary of $200 a month and board. After arriving there about November 14, plaintiff continuously and satisfactorily performed his work until he was discharged on April 21, 1941. Thereafter he instituted this action alleging that defendants without just cause refused to permit him to continue; that he demanded to know the reason why; that such information was denied him; that he had been damaged in the amount of (1) the costs of his transportation back to the mainland, (2) the amount of his board from the time of discharge until his arrival in California; (3) his wages for one calendar month. In addition to their denials of the charging part of the complaint, defendants admitted the employment and alleged that they had discharged plaintiff pursuant to paragraph 8 of the contract for the reason that his services were not satisfactory to defendants.

Upon a trial the court found the allegations of the complaint to be true; that plaintiff was arbitrarily and unjustly and in violation of paragraph 8 discharged, and that he had been damaged to the extent of $396.2 No point is made of the amount of the judgment, but the total fire of appellants is directed at the finding of discharge without cause. They now maintain that his discharge was warranted by reason of his disobedience of reasonable orders and of his inciting his fellow workmen to disobey such orders.

The contract is clear and unambiguous and was evidently prepared solely by defendants. Its term was determinable at the will of appellants. In the following discussion we must bear in mind the language of paragraphs 7 and 8 of the contract. While appellants magnify in their brief their claim of respondent's disobedience to a reasonable order of their superintendent, there is no issue tendered on that score. The only findings pertinent to the controversy on appeal are those which determined the issues presented by the pleadings, towit:

“That pursuant to, and in conformance therewith, plaintiff entered upon the performance of said contract and continued therein, doing all things necessary and called for, until prevented from further performance by the said defendants.

“That on or about the 21st day of April, 1941, defendants arbitrarily and without just cause, contrary to Paragraph 8, or any other provision in said contract, refused to permit the plaintiff to continue performance of said contract.”

The basis of appellants' contention that the discharge was justifiable is presented by appellants substantially as follows: In April 1941 appellants maintained a construction crew of about 1200 employees on Midway for the construction of a Naval Air Base. Respondent was one of a crew of 18 men. An industrial section had been established by the erection of a number of buildings, living barracks and a mess hall near which was a bulletin board. On receipt of instructions from the Navy to institute a new cost–accounting system on the island, it was decided to install a “check–in, check–out” system to effectuate a closer check on the workers. Under the new system each employee was required to stop at a time booth before going to the place of work to get a small disk bearing his number and to return it to the booth after leaving work. In order to operate the system a booth was built for the check–in, check–out station on one corner of the main intersection of the two most prominent streets. When it was ready for use a bulletin was posted by the superintendent announcing that the use of the system would be commenced by the employees on the morning of April 21, 1941. Respondent objected to it and, with the assistance of a group of fellow employees, prepared a type–written petition of protest against its use which was signed by about 175 men. The protest expressly disavowed an intention to impede the preparedness program or to embarrass the management, but firmly avowed its rejection of the check–in system because it required the employee to be at work when the whistle blew, both at starting and quitting time, and also required him to check in and out on his own time.

Respondent attached the petition to the bulletin board on April 20. On the same day he posted there another document in words and figures as follows:

“April 20, 1941

“Notice

“To All Those Men Who Signed the Answer to the Bulletin in Reference to the Check–In and Check–Out System.

“You are expected to report for work Monday, April 21, as per usual with no change in the procedure.

“(Signed) V. F. Greene”

On the morning of the 21st, the other employees collected their brass time checks, but respondent did not. When he undertook to get his, he could not do so because the person in charge “had a ‘jack’ sticking over the top if it and said they could not give it” to him. He worked until 2 p.m. when he was discharged. The superintendent testified to having received reports that respondent advised his coworkers to disregard the notice but no competent proof of respondent's activities was offered other than as above recited and the testimony of respondent who established (1) that the booth was at first built two and a half blocks from the mess hall; (2) that following the protest it was moved up to the mess hall the night before the system went into effect after the workers had gone to bed; (3) that the men walked to the job; (4) that at times the booth was on the other side of the island; (5) that he never told the superintendent that he did not care to work even though the Navy required the installation of the system; (6) that he had never refused to work.

It thus appears that the court's finding is well fortified by proof that respondent performed his contract in a satisfactory manner until his discharge and that his services were resentfully and arbitrarily discontinued. Appellants make no contention in their brief that the services of respondent were not satisfactory. Their sole argument is that respondent was disobedient and that for that reason they were justified in discharging him. There was neither allegation nor proof of his ineptitude for his tasks or that he had failed to meet the specified requirements of his employment. Indeed, he had actually worked at his job without criticism for more than five months. The only positive declaration of a breach of the contract, towit, that his services “were not satisfactory,” was not proved. While disobedience had no relation to the character of his performance as an artisan, “unsatisfactory service” meant inefficiency at his work. The grounds for discharge enumerated in paragraph 8 have to do with the employee's skill for the work to be done. They are (1) services to be satisfactory; (2) he must be qualified; (3) must not be negligent in his duties, display bad temper, or immoderately use liquor. Having specified in their answer the sole ground of “unsatisfactory service,” other grounds for discharge were not put in issue. Rosenberger v. Pacific Coast Ry. Co., 111 Cal. 313, 317, 43 P. 963; 39 C.J. p. 100, § 118.

It is true that many duties other than those specified in a contract of employment are implied, such as loyalty and obedience to reasonable orders with reference to the work to be done (sections 2856 et seq., Labor Code; 16 Cal.Jur. 961), but neither was a breach in either of those respects alleged or proved. The sole point urged for reversal of the judgment is the insubordination of respondent. On this point, Mr. Sheik, the superintendent, testified substantially as follows: “After learning that respondent had posted his Notice on the bulletin board on April 20, I interpreted this notice to mean that the men were to disregard the notice I had previously posted advising them to use the check–in system and to disregard that procedure. I then summoned Greene to my office and asked him if it was his signature on the Notice. He stated that it was and that he had posted it. He did not believe the notice was fair because the men in camp had not been consulted about it. On being advised that the notice was posted on the direct orders of the United States Navy and that it was therefore necessary to put the procedure into effect, Greene still maintained that he did not care to work on that basis and would not; that he would not be willing to work under it. Thereupon I discharged him.”

In rebuttal of the foregoing testimony respondent testified in substance as follows: “I did not tell Sheik * * * that I did not care to work and would not work on the basis that the notice was posted on direct orders of the U. S. Navy. He did not ask me if I cared to work on that basis. I was in fact working at that time. I neither refused to go to work nor told him I would not work. I did not say to him that I would not work under that system because I had never worked under such a system. I did not say to him I would not be willing to work under the system there. I did not make that statement.”

Nothing appears in the testimony of respondent to render it inherently improbable. Neither is it of such character as to warrant a holding here that the trial court was arbitrary in accepting the denials of Greene rather than the story of Sheik. They might have had equal weight in the mind of the court. If so, the appellants failed since the burden was on them to establish a justification for the discharge. However eloquent may be the testimony which was rejected by the trial court, it is unavailing on appeal so long as the finding is supported by some substantial proof. Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576, 581, 81 P.2d 894.

Aside from the fact that the evidence supports the finding that the discharge was without just cause, the finding against appellants' claim of the insubordination of Greene is supported by competent evidence. His implied duty was substantial compliance with all directions of his employer. But such duty was owing to his employer with reference to the construction work at which he was employed. Sec. 2856, Labor Code. While performing his duties in that respect there was no restraint imposed upon his reasonable activity in preparing protests against a working condition, obtaining his fellow workers to sign it and in posting it or presenting it to the superintendent. The justice of the protest was shown (1) by the unnecessary delay of appellants in installing the check–in system after being requested by the Navy to do so and (2) by the removal of the booth to a location near the mess hall after the protest had been promulgated. On this point Mr. Sheik testified as follows:

“So after the squawks were beginning to come to me about the location of the thing, I said, ‘Well, let's move it over towards the mess hall.’ * * * this moved the building about 400 feet closer to the mess hall main entrance * * * but it did seem to be probably the more logical location, and as long as it served that purpose, we let it stay there.”

Under the liberal policy of industrialists in vogue generally throughout the United States and under legal principles declared in statute and enunciated by courts of last resort, employers do not now resent the boldness of a worker to advocate changes or to object to existing conditions. It was superfluous to fill these pages with citations or with quotations of high courts and legalistic authorities to show that workers in all industries by organized effort and by their official spokesmen participate in the actual operations of the employer's industry with respect to all measures affecting workers. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Bakery & Pastry Drivers, etc., Brotherhood v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; Pierce v. Stablemen's Union, 1909, 156 Cal. 70, 103 P. 324; Parkinson Co. v. Building Trades Council, 1908, 154 Cal. 581, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165. One need not be in a labor dispute as defined by law to have a right peaceably to express a grievance to his employer. Bakery and Pastry Drivers, etc., Brotherhood v. Wohl, supra; 14th Amendment. The preservation of the right of the toiler to protest the maintenance of a working condition is as vital to the existence of an industrial democracy as is the right of petition to the legislature essential to the preservation of a political democracy. Both are essential to the effective exercise of democratic processes. If all the employees of a house may peaceably withdraw from their stations for the purpose of exerting economic pressure (Pierce v. Stablemen's Union, supra; Carlson v. California, supra; McKay v. Retail Auto S. L. Union, 16 Cal.2d 311, 106 P.2d 373), we see no reason why one single employee should be driven from his work solely because he, peacefully, decorously, and in good faith, dared to demand a change in, or the total abolition of, a device, system, or method which he reasonably conceived to affect the comfort or the happiness of himself and his fellow workers. The illegality of an employee's conduct in protesting a condition is not established by the fact that not all of his fellow employees were insurgent because of the presence of the objectionable condition. Nann v. Raimist, 255 N.Y. 307, 174 N.E. 690, 73 A.L.R. 669.

While an individual worker may not enjoy the privilege of peaceful picketing in all such places and circumstances as may be exercised by an organized group, (Bakery & Pastry Drivers & Helpers Local, etc., v. Wohl, supra), yet he should not be denied a reasonable freedom in conferring with his associates and in discussing with his employer a condition that affects his happiness while at his work. Construing the contract with reference to the circumstances under which it was made (Shoemaker v. Acker, 116 Cal. 239, 48 P. 62), namely, for respondent to sojourn for an indefinite period on a tropical island of the Pacific, thousands of miles from his home, the court correctly interpreted the contract of employment in disapproving the employer's conduct in discharging the employee because of the latter's expressing displeasure at a working condition.

Surely, it will not be said that respondent's contract should have been cancelled and his rights forfeited merely because, subsequent to the protest, he posted the Notice over his own signature advising the signatories of the petition to “report for work on April 21, as per usual with no change in procedure.”

The significance to be attached to such Notice posted by respondent is not to be determined by the interpretation given to it by the superintendent in charge of the works. It was a matter for the trial court to determine from all of the evidence what interpretation it justly deserved. It was determined in that forum, in the light of all of the evidence, that the Notice had no such sinister meaning as that ascribed to it by Mr. Sheik. It did not purport to come from one in authority. Its innocuous character was evidenced by the fact that not a solitary workman failed to comply with the request of the employer. Upon the explanation given by respondent the trial court found neither treachery nor disloyalty. Every signer of the protest withdrew his time–check from the check–in booth and respondent's failure to remove his own was due to the acts of appellants. In all that he did, respondent was attempting to do no more than to remove a condition which irked at least 175 of his fellow workers. Under the law respondent was free to join with the employees in a protest and to announce to his employer his distaste for the innovation. That his zeal might have made him offensive to the superintendent did not destroy the merit of his cause. His acts and words under the circumstances did not justify his discharge.

The judgment should be affirmed.

FOOTNOTES

1.  The contract read thus:“Contract of Employment“Hawaiian Dredging Company, Ltd., Raymond Concrete Pile Company, Turner Construction Company, Morrison–Knudsen Company, Inc., J. H. Pomeroy and Company, Inc., the ‘Employer,’ employs the ‘Employee’ hereinafter named upon the following terms and conditions to which he agrees:“1. Name of Employee: Victor Fenemore Greene.“2. The position for which the Employee represents he is qualified and for which he is engaged is that of Iron Worker (Sash and Ornamental) on a construction job on Pacific Islands.“It is understood that although the employee is engaged for the above mentioned class of work, he may be used, at the option of the employer, in any other class of work at the place of employment without any reduction in pay.“3. The period of services shall be such period as the employer may desire the services of the Employee, it being understood that the Employee may be transferred to another job if desire by the Employer, with the understanding that he will not be required to remain on Pacific Islands more than twelve months without his consent.“4. Salary or wages per calendar month shall be Two Hundred Dollars ($200.00) and shall be the whole salary and compensation agreed upon for the entire period of service.“5. Salary to commence on date of sailing and cease on return to Mainland except as provided in Paragraphs 7 and 8.“6. Transportation from the United States to Midway Island, T. H. and all incidental expenses such as medical examination, vaccinations, photographs etc., will be paid by the Employer.“7. It is understood that the Employee will pay his own expenses and transportation costs back to the United States if he does not complete this contract, or if he is discharged in accordance with Paragraph 8.“8. If for cause the services of the Employee are not satisfactory to the Employer, or if he is not or does not show himself qualified for the position for which he is hired, or is negligent in his duties, or displays bad temper, or in the case of the immoderate use, in the opinion of the Employer, of alcoholic drinks, or the contraction or development of venereal disease, the Employee may be discharged without any further obligation resting upon the Employer. In such case his term of service will then end and he forfeits his right to salary and expense allowance for returning to the United States. It is understood that the Employee may be dismissed if requested by any Government official.“9. The Employee, before departure, is to submit to the required physical examination, furnish in duplicate the certificates of the examining physician (a satisfactory medical certificate being a condition of this employment), submit to and furnish certification of the required vaccination for smallpox.“10. Room, board and laundry will be supplied free of charge to the employee.“11. The Employee hereby authorizes and directs the Employer to deposit his salary as follows: One Hundred Seventy–Five Dollars ($175.00) per month payable to (Mrs.) Alberta Greene (wife), 218 1/2 E. 60th St., Los Angeles, California.“12. The Employee understands that other men from his trade, or other trades or crafts, may be employed on the work to be done in the Pacific Islands, and that these men may be either union or nonunion. The Employee agrees that the employment of such men will not be used as a reason for failure to carry out this contract.“13. Medical attention will be furnished free of charge to the Employee at the site of the work.“14. The Employee agrees to work forty–eight hours per week.“15. The Employer will carry compensation insurance for the Employee in accordance with the laws of the state where this Employee is hired.“In the event of accident or emergency please notify Mrs. Alberta Greene (wife) at 218 1/2 E. 60th St., Los Angeles, Calif. This address may be considered as my permanent home address, or the address of the person with whom you may communicate concerning personal matters relating to me.“Dated at Los Angeles, Cal., in triplicate, this sailing date day of November 1940.“Signed and acknowledged in presence of:“Hawaiian Dredging Company, Ltd.“Raymond Concrete Pile Company“Turner Construction Company“Morrison–Knudsen Company, Inc.“J. H. Pomeroy and Company, Inc.“By V. F. Jamison“Employer Employment Officer“R. Carlson“As to the employer“V. F. Greene“Employee”

2.  A second count alleged damages by reason of certain misrepresentations made to induce the contract, but relief on that count was denied.

McCOMB, Justice.

W. J. WOOD, J., concurs.