DOTSON v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYES AND MOVING PICTURE MACHINE OPERATORS OF UNITED STATES AND CANADA LOCAL 162

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District Court of Appeal, First District, Division 1, California.

DOTSON et al. v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYES AND MOVING PICTURE MACHINE OPERATORS OF UNITED STATES AND CANADA, LOCAL 162, et al.*

Civ. 13520.

Decided: April 09, 1948

Bodkin, Breslin & Luddy, Peter E. Giannini, and Michael G. Luddy, all of Los Angeles, for appellant. Gladstein, Andersen, Resner & Sawyer by Herbert Resner, all of San Francisco, for respondents.

Plaintiffs, Leslie Dotson and Walter J. Murrah, brought this action against Local 162 of the International Alliance of Theatrical Stage Employes and Moving Picture Machine Operators of the United States and Canada (hereafter referred to as I.A.), certain of its officers, and the members of its executive board to compel the union by mandate to admit plaintiffs to full membership as projectionists into the local, for an injunction to restrain the local's officers from preventing plaintiffs' employment in this area, for general damages for alleged loss of wages, for exemplary damages for an alleged conspiracy on the part of the officers of defendant local to prevent plaintiffs from working in this area, for the restitution of certain sums for claimed overcharges in dues.

After a lengthy trial the court, by its findings and judgment, denied plaintiffs any damages for loss of wages, and denied any recovery for exemplary damages, finding that there was no conspiracy on the part of the officers of defendant union. From these portions of the judgment plaintiffs appeal. The court, by writ of mandate and by its judgment, directed defendants to admit plaintiffs ‘to full and equal journeymen membership in Local Union 162 with seniority and membership rights and privileges of said plaintiffs to commence as of June 29, 1945, and said plaintiffs' membership in said Local Union 162 shall be deemed for all intents and purposes to commence with, and shall be retroactive to, the date of June 29, 1945.’ The lower court also granted an injunction restraining defendants from interfering with plaintiffs' employment ‘as moving picture machine operators and projectionists within the jurisdiction of Local Union 162, or refusing to allow or permit said plaintiffs to have and keep employment as moving picture machine operators and projectionists within the jurisdiction of Local Union 162, or refusing to dispatch them to and keep them on employment * * * with seniority, status, and membership rights and privileges the same as and equal to those possessed by journeymen members of Local Union 162, said plaintiffs' seniority, status and membership rights and privileges to commence as of and be retroactive to June 29, 1945.’ From these portions of the judgment the defendants appeal. The lower court also determined that the defendant local union had overcharged the plaintiffs certain amounts of money, and judgment was given in favor of plaintiffs for these sums. The defendants have not appealed from these portions of the judgment and admittedly, since the entry of judgment, have paid to plaintiffs these sums. The propriety of the ruling of the trial court as to these found overcharges is therefore not involved on this appeal.

The Pleadings.

The complaint, so far as pertinent here, alleged that defendant local union was a voluntary unincorporated association affiliated with the I.A.; that each plaintiff was a qualified projectionist and member in good standing of the I.A.; that defendant local exercised jurisdiction over moving picture projectionists in the counties of San Francisco and Marin; that the individual defendants were officers and members of defendant local executive board and dominated, controlled, managed and operated its business; that defendant local for many years maintained and exercised a monopoly in the employment of moving picture machine operators in San Francisco and Marin Counties, and possessed closed shop agreements with the moving picture theaters in those counties; that in order to obtain work in such territory it was necessary to acquire membership in defendant local; that each plaintiff had transferred from the jurisdictions of their home locals and worked in San Francisco out of defendant local; that defendant local thereby accepted said plaintiffs into membership but refused to issue to them an indicia of such membership or to allow them the rights and privileges of membership; that on July 13, 1945, defendants expelled plaintiff Murrah from the jurisdiction of defendant local and deprived him of his right to work within the jurisdiction of such local, and that the same thing was done to plaintiff Dotson on July 25, 1945; that the reason for such expulsion was that plaintiffs opposed payment of an overcharge of 1% of their salaries imposed upon them as outside members of Local 162, and complained because they were allowed no voice or vote in the affairs of defendant local; that on or about March 15, 1945, the defendants formed a conspiracy to expel plaintiffs from the jurisdiction of defendant local and to deprive them of their right to earn a livelihood; that pursuant to such conspiracy defendants informed employers within their jurisdiction not to employ plaintiffs, and refused to dispatch plaintiffs to any employment; that on or about October 15, 1945, plaintiffs petitioned the I.A. for a redress and correction of their grievances, but the I.A. refused to aid them; that it was impossible for the plaintiffs to get relief from defendant local and they could not therein get a fair hearing because the defendants had already prejudged the matter and were prejudced against plaintiffs.

It will be noted that the main theory of the complaint was that, by assigning plaintiffs to work in this jurisdiction for many years, defendant local had in fact accepted plaintiffs into membership, and that plaintiffs were in fact members of defendant local but had been deprived of the benefits of such membership by an alleged conspiracy among the individual defendants.

The answer of defendants denied all of the allegations that plaintiffs were members of defendant local or had been accepted into membership; admitted that plaintiffs were members in good standing in the I.A.; admitted that plaintiffs, while working out of defendant local, had paid to defendant local 2 1/2% of their salary, whereas members of defendant local paid but 1 1/2%; admitted that plaintiffs were not allowed to participate in the affairs of the local, but alleged that this was because they were not members of such local; alleged that plaintiffs were allowed all of the rights of visiting members or outside members of other locals of the I.A.; denied all of the allegations of conspiracy; denied that plaintiffs had been expelled from the jurisdiction of the local union; denied that plaintiffs had been deprived of their right to work in the jurisdiction of defendant local; alleged, by way of affirmative defense, that plaintiffs, before commencing this action on November 5, 1945, had not exhausted their remedies within the I.A. The other alleged defenses are no longer in issue herein.

Facts.

The plaintiffs, for approximately twenty years, have been motion picture projectionists and have been members of the I.A. in good standing. The home local of Dotson is Fort Smith, Arkansas, while the home local of Murrah is Bartlesville, Oklahoma. At all times after being admitted to their respective locals, and down to the time of trial, plaintiffs have paid their regular does to their respective local unions. Under the constitution of the I.A. it is permissible for members to enter jurisdictional areas other than those of their home locals, and, subject to certain limitations, to secure work in such areas through the officers of the union located there. Such I.A. member working outside the area of his home local is referred to as an ‘outside member.’ Preference in employment, however, must be given to local members. In this connection § 16 of Art. 19 of the I.A. constitution provides: ‘Affiliated locals are required to insist that all positions within their jurisdiction be filled by their own members. In the event of the local membership being unable to care for all vacancies, preference must be given to members of sister locals affiliated with this Alliance. Not until the available members of the resident and out-of-town locals have been employed shall the engagement of non-members be permitted.’

After being admitted into their respective home locals the plaintiffs worked out of their respective locals for a while and then worked in various other cities, being assigned to work as outside members by the locals in such cities. Murrah arrived in San Francisco in November, 1938, and immediately was assigned to work by officials of Local 162 as an outside member. He was continuously employed as an outside member from that date until July 13, 1945. Dotson arrived in San Francisco in February, 1939, and was immediately assigned to work by officials of Local 162 as an outside member. He was continuously employed as an outside member from that date until July 25, 1945. From July, 1945, to date of trial plaintiffs have not worked within the jurisdiction of Local 162, but have secured intermittent employment in various other cities not within the area jurisdiction of Local 162. In this connection the trial court found that in July, 1945, the plaintiffs ‘picked up or took back from Local 162 their respective membership cards which theretofore each plaintiff had deposited with the office of Local 162, and plaintiffs therefore were not available for work within the jurisdiction of Local 162 from said dates until the time of trial.’ As already pointed out, it was the theory of the complaint, and plaintiffs sought to prove at the trial, that a conspiracy existed among the individual defendants, all officials of Local 162, to deprive them of the benefits of membership in Local 162, and to prevent them from being employed as projectionists in this area. In this connection the trial court found that ‘it is not true that a conspiracy existed or that fraud, malice, intimidation or coercion was practiced by or on the part of defendants, or any of them, to deprive plaintiffs of their livelihood as motion picture operators or of their membership in the International union, or to deny them admission into Local 162.’

In order to understand the contentions of the parties, brief reference must be made to certain provisions of the I.A. constitution. It is therein provided, in effect, that an outside member may apply for membership in the local in which he is working in either of two ways, that is, by applying directly for membership therein, or by the transfer method, that is, by securing a transfer card from his home local and submitting his transfer application to the local he desires to join. In either event the member desiring to join the local where he is working has no absolute right to membership in that local. He can be admitted only after a favorable vote of the members of the local he desires to join. Under the I.A. constitution (§ 2 of Art. 19) all affiliated locals are granted so-called home rule privileges defined ‘to confer upon each local union the authority to exercise full and complete control over its own affairs' so long as nothing is done in conflict with the I.A. constitution and by-laws.

Art. 21 of the I.A. constitution provides the procedure for initial entry into a local by original application filed by the member with the local he desires to join. It is an admitted fact that plaintiffs at no time have attempted to secure membership in Local 162 under Article 21.

With respect to the transfer method, § 11 of Art. 21 provides that ‘members of this Alliance shall be entitled to the transfer privileges set forth in § 18 of Article Nineteen of this Constitution.’ That mentioned section of Art. 19 provides that: ‘Local unions shall be obliged upon request to issue to any member in good standing a transfer card to enable him to gain admission to another affiliated local union.’ It is further therein provided that: ‘After obtaining a transfer card from his local union the member desiring to transfer shall deposit the card with the local union with which he wishes to become affiliated, which local union shall, within sixty days thereafter, either accept or reject such applicant.’ In later provisions of that same section it is provided that: ‘If the local union to which the member desires to transfer rejects his application, it shall return to him his transfer card. The member shall, within ninety days of its date of issue, return the transfer card to the local union which issued it.’ It is an admitted fact that plaintiffs at no time have attempted to secure membership in Local 162 under this transfer method. Thus, at all times it must be kept in mind that while the writ of mandate and the judgment direct that plaintiffs be made members of Local 162, they have, at no time, applied for membership in that local in either of the ways permitted by the I.A. constitution.

The constitution of the I.A. contains detailed provisions for the handling of all controversies between the members and their local unions, or between members and the I.A. After providing for the presentation of disputes to the local union, § 1 of Art. 17 provides: ‘Any member aggrieved by the decision of a tribunal of this Alliance may appeal his case in the following order (1) from the decision of the local union to the International President of this Alliance; (2) from the decision of the International President to the General Executive Board; (3) from the ruling of the General Executive Board to this Alliance in convention assembled and the latter body shall be the tribunal of ultimate judgment. However, in the interim, rulings of any proper tribunal of this Alliance shall be enforced pending disposal of appeal.’ Section 2 allows thirty days within which to file the appeal with the next highest appeal authority. Section 3 provides that the appeal must be in writing, must be signed by the appellant, and must set forth the grounds upon which he relies for a reversal. Section 4 provides for service upon the lower tribunal and gives it a fixed period in which to answer. It likewise requires the lower tribunal within the same fixed period to forward to the appellate tribunal the record in the case. Section 6 provides: ‘The members of this Alliance shall submit all their rights within the Alliance to the determinations of its proper tribunals, and agree that the decisions of these tribunals shall be conclusive as to all rights and privileges accruing from membership.’ Section 7 provides: ‘The members of this Alliance further consent to be disciplined in the manner provided by this Constitution and By-Laws, and under no circumstances to resort to the civil courts until all the remedies therein provided shall have been exhausted.’

The trial court found that ‘from March, 1945, until October, 1945, plaintiffs made repeated efforts to obtain a hearing in connection with their grievances, namely, their grievances as ‘outside men’ desiring membership in Local 162. That plaintiffs attempted to get a hearing and a redress of these grievances from Local 162, from the officers and Executive Board of Local 162, and from the International Officers of the International union, particularly the International President Richard F. Walsh. That none of the persons or agencies so mentioned gave any hearing or made any effort to consider or grant a redress of plaintiffs' grievances. That insofar as it was possible for them to do so, plaintiffs exhausted their remedy within Local 162 and the International union prior to the commencement of the present action on November 5, 1945.' So far as this finding is concerned, the parties dispute as to whether plaintiffs ever applied to Local 162, its officials or to the international president for a redress of their grievances as outside members. The evidence on this matter will be later discussed. Regardless of that dispute, however, it is an admitted fact that plaintiffs at no time, in any fashion, directly or indirectly, formally or informally, ever applied to the general executive board or to the convention of the international for a redress of any grievance. Admittedly, the general executive board holds two regular meetings a year and the convention meets once every two years. A convention was had in 1946.

Exhaustion of Remedies Within the Union.

The basic contention of defendants, which contention is stated in various ways, is that plaintiffs, as members of the I.A., were bound by the constitution and by-laws of that organization, including the provisions to which reference has been made relating to the exhaustion of remedies within the I.A. before resorting to the civil courts for a settlement of grievances. It is urged that the finding of the trial court on this issue above quoted is unsupported by the evidence, and that, since plaintiffs did not exhaust their remedies within the framework of the union, the trial court was without jurisdiction to proceed.

As is usual in such controversies the dispute does not involve so much the applicable law, but more the application of that law to the facts. It is now too well settled to be subject to dispute that the constitution and by-laws of an unincorporated association constitute a contract between the association and it members, and that the rights and duties of the members as between themselves and in relation to their associates, in matters affecting its internal government, are measured by the provisions of such constitution and by-laws, provided they do not contravene public policy or the law of the land. DeMille v. American Federation of Radio Artists, 31 Cal.2d 139, 187 P.2d 769; Stoica v. International etc. Employees, 78 Cal.App.2d 533, 178 P.2d 21; Bush v. International Alliance, 55 Cal.App.2d 357, 130 P.2d 788 (the last two cases involved the same constitution and union here involved); Levy v. Magnolia Lodge, I.O.O.F., 110 Cal. 297, 42 P. 887; Lawson v. Hewell, 118 Cal. 613, 50 P. 763, 49 L.R.A. 400; Smith v. Kern County Medical Assn., 19 Cal.2d 263, 120 P.2d 874.

It is also well settled, as a part of the above basic rule, with certain exceptions not here involved, that an officer or member of either a parent or affiliated voluntary association may not resort to the courts for relief for grievances until he has first exhausted the rights afforded him by the tribunals of the association. Killeen v. Hotel & R. Emp. etc. League, 84 Cal.App.2d 87, 190 P.2d 30; Stoica v. International etc. Employees, 78 Cal.App.2d 533, 178 P.2d 21; Bush v. International Alliance, 55 Cal.App.2d 357, 130 P.2d 788, Hughes v. American Trust Co., 134 Cal.App. 485, 25 P.2d 491; Simpson v. Salvation Army, 49 Cal.App.2d 371, 121 P.2d 847; Dingwell v. Amalgamated Ass'n, etc., 4 Cal.App. 565, 88 P. 597; Coffey v. Los Angeles Firemen's Relief Ass'n, 22 Cal.App.2d 510, 71 P.2d 328; Greenwood v. Building Trades Council, 71 Cal.App. 159, 233 P. 823.

As already pointed out, the trial court has found that ‘insofar as it was possible for them to do so, plaintiffs exhausted their remedy within Local 162 and the International union prior to the conmencement of the present action.’ Defendants assert that this finding is not supported by evidence.

On this issue the record shows the following: By March of 1945 plaintiffs had been continuously working in this jurisdiction since 1939. They were outside members and, as such, had no voice in the affairs of Local 162. They paid their local dues to their respective home locals and were assessed 2 1/2% of their total salaries by Local 162, Local 162 members paying but 1 1/2%. As outside members, their position, so far as job preference was concerned, was inferior to Local 162 members. Local 162 had an apprentice affiliation, and, as a result, certain junior apprentice members were assigned to work as projectionists by Local 162. In addition, there were certain ‘B’ and other locals in the San Francisco area consisting of various types of employees working in the amusement field, other than projectionists, that were affiliated with the I. A., in which there were some qualified projectionists. The local business agent of Local 162, Floyd Billingsley, had interpreted the I. A. constitution to mean that such ‘B’ local members who were qualified projectionists were on a parity with outside members who were connected with projectionists' unions so far as job preferences were concerned. This interpretation was later confirmed by the international president of the I. A. Outside members had not been taken in as members of Local 162. These various facts had caused the plaintiffs and several other outside members to feel that they had been discriminated against. The plaintiffs seemed to feel, with some cause, that Billingsley controlled the membership policies of Local 162, that he was opposed to outside members becoming members of Local 162, and that he favored the ‘B’ local and the junior members. Plaintiffs seemed to feel that they could not secure redress of their grievances from Local 162 or from Bilingsley. Up until this time (March of 1945) they had never attempted formally or informally to present their grievances to Local 162, to its executive board, or to its officers. Early in March of 1945 the two plaintiffs, and several other outside members, retained the services of the law firm of Andersen & Resner, and talked their problems over with Herbert Resner of that firm. Resner, under date of March 7, 1945, wrote a letter to Richard F. Walsh, International President of the I. A., on behalf of his clients, without, however, disclosing the identity of his clients. In this letter Resner told Walsh that he had been consulted by several of the outside members working out of Local 162 relative to what they felt were abuses of administration in that union. The letter listed as the complaints made to him (1) the overcharge of 1ade against outside members; (2) that they desired membership in Local 162 but had been denied this right; (3) that local ‘B’ union members were being extended equal rights to projectionist work with outside members who were members of ‘A’ projectionist unions. Receipt of this letter was acknowledged by the assistant international president in the absence of Walsh. Walsh made no other reply to Resner, but his office sent a copy of the letter to Local 162. On May 22, 1945, the Andersen & Resner legal firm again directed a letter to Walsh in which the same complaints of their clients were listed, but again they did not disclose the names of their clients other than to state that they were I. A. members working as outside members in the jurisdiction of Local 162. Walsh sent a copy of this letter to Local 162, and, under date of June 12, 1945, wrote to the law firm of Andersen & Resner advising them to first take up the complaints of their clients with Billingsley, and that, if the problems could not be worked out with him, to communicate again with him, Walsh. The lawyers did not see fit to follow this suggestion, and at no time communicated on this subject with Billingsley or with Local %☐.

It is quite apparent that plaintiffs and the other outside members who had consulted Resner felt that if they disclosed their identities Billingsley would take revenge by depriving them of work in this area. Although Billingsley and the other defendants denied any such intent, it is a possible and reasonable inference from the record that just that might have happened. At any rate, when copies of the two lawyer-written letters were received by the officers of Local 162 a great deal of resentment grew up among the officers against the writers of these letters. A part of the resentment seems to have been based upon the fact that charges had been made anonymously, part upon the fact that charges had been made to the international president without first presenting them to Local 162, and, it is very likely, part upon the fact that outside members had presumed to make any charges at all against the officials of Local 162. At various union meetings, at which plaintiffs were present but not permitted to vote, Billingsley expressed himself most forcefully on this subject and threatened to ‘run out of town’ the instigators of the letters upon discovery. Plaintiffs were suspected of being mixed up in the affair, and Billingsley finally, in conversation, accused them of being two of those who had retained Resner. Both plaintiffs sought interviews with Billingsley and Noriega, the president of Local 162, and both hotly and persistently denied that they were connected in any way with the transaction, and offered to execute affidavits denying participation. Both testified that they denied retaining Resner because they feared that if they admitted their connection with the letter they would be denied employment in this area. Finally, plaintiff Murrah told Billingsley that if he, Murrah, was suspected of instigating the letter, Billingsley had better give him some time off to loaf around while the officers of the union investigated the matter. Murrah testified that Billingsley replied that it would do Murrah no good to leave town because he could always be located and charges could be preferred against him. Billingsley finally asked Murrah if he wanted to give his ‘two weeks' notice,’ it being customary in this jurisdiction for those who desired to leave their empoyment to give such a notice to the business agent. Murrah replied that he did, it being his testimony that he was scared and wanted to get out of town. He worked the two weeks and quit on July 13, 1945. Shortly thereafter he requested, by letter, that his working card, which all outside members had to deposit with the local from which they were working, be returned to him, and it was. He left this area and at no time since has deposited his working card with Local 162, and at no time since has he requested work here nor has he applied for membership in this local.

Plaintiff Dotson had deposited his working card with Local 162, and from 1939 to 1945 he had deposited his dues for his home local with Local 162, and the office girl of Local 162 then sent such dues on to the home local. He testified that in July, 1945, he was delinquent in the payment of his dues to his home local, and that that local had, for that reason, delayed sending him his current working card. A few days prior to July 25, 1945, he gave the girl in the office of Local 162 a $30 money order to forward to his home local. On July 25, 1945, according to his testimony, Billingsley told him to pick up the money and to send for his current card himself. Dotson called for his money order but did not pick up his delinquent working card. He thereupon left this area. Since that date he has not deposited his current work card with Local 162, has not requested work here, and has not applied for membership in this union. Since July of 1945 both plaintiffs have secured but intermittent employment in various areas removed from San Francisco.

After the two plaintiffs had quit work in San Francisco they joined in writing two letters to Billingsley, one dated September 27, 1945, and the other dated October 9, 1945, in which they made inquiries concerning the possibility of their facing their accuser on the ‘Resner letter’ matter, and asked that they be allowed to appear and defend themselves before the union with regard to what they termed ‘the misinformation upon which you have based your accusations against us.’ They also stated: ‘we went you to know we are not making these requests with any intention or hope of your placing us back to work, but only to remove this stigma cast upon us.’ One of the plaintiffs, during this same period, talked to Noriega and demanded a hearing on the charge that he and the other plaintiff were back of the Resner letter. No hearing on this issue was granted to them by Billingsley or by the executive board of Local 162. Plaintiffs contend that they were demanding a hearing before Local 162 on all of the charges contained in the Resner letter, but a reading of the two letters and of the oral testimony relating to the conversations with Noriega indicates that the only request for a hearing was on the suspicion that plaintiffs had instigated the writing of the Resner letter. The record fails to show that at any time plaintiffs requested even informally, far less in the manner provided in the I. A. constitution, a hearing by Local 162 on the charges contained in the Resner letter. The executive board of Local 162 denied plaintiffs' requests for a hearing on the charge that they were the clients on whose behalf Andersen & Resner had written the letters to Walsh on the ground that no charges were pending against plaintiffs on this issue, and therefore there was nothing to hear.

After the executive board of Local 162 had turned down the requests of plaintiffs for a hearing, the two plaintiffs telegraphed Walsh under date of October 16, 1945. They informed Walsh that Billingsley ‘has placed oral accusations against us as a result we are out of work and our reputation as members of the IATSE is in jeopardy. Our oral demand through President Noriega to the Executive Board of Local 162 for a hearing was met with the reply that there could not be a hearing as there were no charges and that we were entitled to enjoy all the rights and benefits of any IA man in good standing.’ They demanded therein that an ‘impartial investigator’ be appointed to investigate the matter immediately. The I.A. acknowledged receipt of the wire, but did nothing about it.

This is a fair summary of the evidence on the ‘exhaustion of remedies' issue. It is at once apparent that at no time did plaintiffs make any pretense of following the provisions of the I.A. constitution for the presentation of grievances and appeal from one tribunal to another within the union. A fair reading of the record demonstrates that the plaintiffs made no real attempt to present their grievances to Local 162 and did so only anonymously so far as the international president is concerned. Even if it be assumed that the letters from plaintiffs to Billingsley, and the discussions with Noriega and Billingsley, constituted petitions for a hearing on the charge that outside members had been improperly denied membership in Local 162 (although in fact they did not), and if it be assumed that the telegram to Walsh of October 16th should be interpreted as the second step in the appeal process set up by the I.A. constitution (although in fact it did not), such assumptions would in no way assist plaintiffs. There is not one word of testimony that plaintiffs ever attempted to comply with the requirements that they appeal to the I.A. executive board or to the Alliance in convention. These steps, under the rule of the cases already cited, were indispensable conditions precedent before the plaintiffs were entitled to seek the aid of a court. The finding of the court that, insofar as it was possible for them to do so, plaintiffs have exhausted their remedies, is not only not supported by the evidence but is contradicted by the evidence.

Public Policy Issue.

But, say plaintiffs, even if it be admitted that we did not exhaust our remedies within the union, and even if it be assumed that that is normally necessary before resorting to the courts for a redress of grievances, such was not required in this case because the evidence shows that Local 162 had a closed membership and was operating under closed shop agreements with substantially all employers in this area; that this is contrary to the public policy of this state; and that, as a result of this violation of public policy, plaintiffs have been deprived of membership in Local 162. Under such circumstances, so it is urged, it was not necessary for plaintiffs to have exhausted their remedies within the union before resorting to the courts.

Before directly discussing these contentions reference must be made to state of the record on this issue.

The evidence shows, and the trial court found, that within the geographical area over which Local 162 possesses jurisdiction there are about 80 motion picture theaters; that Local 162 has closed shop agreements with 75 of these theaters; that in order to secure employment as a projectionist in any of these 75 theaters the employee must be dispatched through Local 162; that, as of the date of trial, Local 162 had 103 journeymen members; 15 junior or apprentice members; 48 outside members; 37 ‘B’ union members; and 3 permit men (the latter requiring no union affiliation); that at said time there were 178 jobs available within the jurisdiction of Local 162; that between 1909 and 1924 eight outside members were admitted into membership in Local 162; that between 1924 and July, 1945, no outside members were admitted into membership in Local 162; that in August, 1945, five outside men, and in March, 1947, six more outside men, were admitted into membership in Local 162 as new members; that from 1919 to the date of trial no transfer members have been admitted into Local 162; that prior to 1945 only a limited number of junior or ‘B’ local men were admitted into membership, but in 1945 and 1946, prior to the trial of this action, ten junior and ‘B’ local men were admitted. These findings are not challenged by defendants. Based on these facts the trial court concluded that Local 162 has a monopoly of employment of motion picture projectionists in this area, and that since 1919 the union has maintained an arbitrarily closed union.

The court also found, however, that ‘it is not true that a conspiracy existed or that fraud, malice, intimidation or coercion was practiced by or on the part of defendants, or any of them, to deprive plaintiffs of their livelihood as motion picture operators or of their membership in the International union, or to deny them admission into Local 162.’ While the evidence and the reasonable inferences therefrom on this issue are conflicting, and would support a finding either way, the trial court has found that there was no conspiracy, fraud or coercion to deny plaintiffs membership in Local 162, and that finding, being supported by competent and substantial evidence, is binding upon us.

In addition, it is an admitted fact, although no finding was made on the issue, that neither plaintiff at any time ever applied for a transfer or new membership into Local 162.

Now, what is the law applicable to that set of facts? It is the law of this state that ‘the right to earn a living is deemed to be property within the concept of the Fifth Amendment to the Federal Constitution, and a union, in the service of its interest, may not deprive a person of his constitutional rights of liberty and property.’ DeMille v. American Federation of Radio Artists, 31 Cal.2d 139, 187 P.2d 769, 778. It is also now settled, as a result of the well reasoned case of James v. Marinship Corporation, 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900, and the cases following it, that it violates the public policy of this state for a union to maintain a closed union and a closed shop and to thus deny the right to work to otherwise qualified individuals. The rule was thus stated in the Marinship case, 25 Cal.2d at page 730, 155, P.2d at page 335, 160 A.L.R. 900:

‘It does not follow, however, that a union may maintain both a closed shop agreement or other form of labor monopoly together with a closed or partially closed membership. We have found no case in this state that supports such a right and there is no decision of the United States Supreme Court that compels its recognition as a proper labor objective. * * *

‘In our opinion, an arbitrarily closed or partially closed union is incompatible with a closed shop. Where a union has, as in this case, attained a monopoly of the supply of labor by means of closed shop agreements and other forms of collective labor action, such a union occupies a quasi public position similar to that of a public service business and it has certain corresponding obligations. It may no longer claim the same freedom from legal restraint enjoyed by golf clubs or fraternal associations. Its asserted right to choose its own members does not merely relate to social relations; it affects the fundamental right to work for a living.’

The cases following the Marinship case have reaffirmed this most salutary and fundamental rule of public policy. Bautista v. Jones, 25 Cal.2d 746, 155 P.2d 343; Williams v. Int. etc. of Boilermakers, 27 Cal.2d 586, 165 P.2d 903; Thompson v. Moore Drydock Co., 27 Cal.2d 595, 165 P.2d 901. But before these principles can or should apply it must appear that the persons complaining have arbitrarily been denied membership and the right to work. Here the court has found that there was no conspiracy, and no fraud or coercion, to deny plaintiffs membership in the union. From 1939 to 1945 plaintiffs worked continuously out of such union and at no time applied for membership in the union. Never having applied, plaintiffs were, of course, never denied membership. Since July, 1945, plaintiffs have not even applied for work through Local 162 as outside members. While the record shows that this union failed to admit into membership outside members from 1924 to July of 1945, and admitted but eight outside members from 1909 to 1924, it fails to show how many outside members applied for membership during those periods. The record also shows that in August, 1945, five outside men were admitted as new members. This was about three months before this action was filed. In March, 1947, six more outside members were admitted. The record shows that several outside members, not the plaintiffs, were turned down for membership, but the reasons for such refusal to admit into membership do not appear. Under such circumstances how can we say that plaintiffs have been arbitrarily denied membership into the union? How can we say, in the absence of a finding on the issue, that, had the plaintiffs applied for membership, their applications would have been arbitrarily denied? While there can be no doubt that this union has substantially a monopoly of projectionists jobs in in this area, and has maintained, for many years, substantially a closed membership, and while there can be no doubt that such actions, if they result in denying to qualified persons the right to earn a living, would violate the public policy of this state, the indispensable condition precedent for the application of such rule is that qualified persons have been denied membership in the union. That indispensable condition precedent was not here found to exist. It is very difficult to see how plaintiffs could have been wrongfully denied membership into Local 162 unless there was a conspiracy among the officers to deny them membership, or at least collusion among such persons. Yet the trial court has found that no such conspiracy or collusion existed. Moreover, as already pointed out, the evidence shows that neither plaintiff has ever applied for membership or has ever been denied membership. We cannot assume, in the absence of a finding on the issue, that it would have been useless for plaintiffs to have applied for membership, nor can we assume that, had such an application been made, it would have been arbitrarily denied. There is evidence in this record, denied by defendants, which would have supported a finding that before August of 1945 this union was run in a quite arbitrary fashion by Billingsley and the other officers, and there is, in addition, evidence, also denied by defendants, that outside members were, to say the least, discouraged from applying for membership. Not only are there no findings on these issues, but the uncontradicted evidence shows that since August of 1945 a substantial number of outside members have been admitted into membership. This admission of outside members into the union, both before and after the filing of this suit, is some indication that the officers and members of Local 162, whatever their attitudes may have been prior to August of 1945, may now desire to comply with the law and the public policy of this state.

Under these facts, and primarily because the evidence does not show that plaintiffs ever applied for membership in the local, and so of course does not show that they ever were denied, arbitrarily or otherwise, membership in the union, we think the plaintiffs have failed to prove their cause of action, and that the rulings of the trial court to the contrary must be reversed.

This conclusion makes it unnecessary to consider in detail plaintiffs' appeal. If the plaintiffs have failed to prove a cause of action, obviously it was not error to have denied them actual or exemplary damages based on such presumed cause of action.

The order directing the issuance of the peremptory writ of mandate is reversed, and the writ discharged; the protions of the judgment appealed from by defendants are reversed; the portions of the judgment appealed from by plaintiffs are affirmed.

PETERS, Presiding Justice.

WARD and BRAY, JJ., concur.