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District Court of Appeal, Fourth District, California.


Civ. 4808.

Decided: December 03, 1953

P. H. McCarthy, Jr., F. Nason O'Hara, Herbert S. Johnson, San Francisco, for appellants Painters Union and Roofers Union. Thomas Whelan, San Diego, for appellant Truck Drivers Union. Gray, Cary, Ames & Frye, James W. Archer, Ward, W. Waddell, Jr., San Diego, for respondent.

The plaintiff is engaged in business as a paint dealer, and as a roofing contractor. It is admitted that its activities as a paint dealer affect interstate commerce, within the meaning of the National Labor Relations Act, 29 U.S.C.A. § 141 et seq. The plaintiff had a contract with the defendant roofers' union, by which it was agreed that there should be no strikes and that all controversies should be settled by arbitration. It had no contract with the other defendants. The painters' union and the truck drivers' union demanded that the plaintiff sign a contract declaring those unions to be the exclusive bargaining agent for all employees, and requiring all employees to join the union. The plaintiff refused to sign this contract and sought a National Labor Relations Board election. Its application was denied because the unions admitted that they did not represent any of plaintiff's employees. The painters' and truck drivers' union then started picketing operations, and the roofers' union joined them in inducing the roofers to strike, in violation of the existing contract. None of plaintiff's employees had designated either the painters' or truck drivers' unions as their collective bargaining representative, and neither of these unions had been certified by the National Labor Relations Board as the bargaining representative of the employees. The plaintiff made no effort to file an unfair labor practice charge, as provided for by the National Labor Relations Act as amended.

The plaintiff brought this action asking that the defendants be enjoined from picketing or interfering with its business in order to compel the execution of such a contract as that demanded until the unions were properly designated as the bargaining agent of the employees; that the roofers' union be restrained from refusing to furnish roofers so long as its contract remained in effect; and for damages for a violation of that contract. The court found in favor of the plaintiff, finding among other things that plaintiff's paint business affects interstate commerce; that the picketing was for an unlawful purpose, to compel the plaintiff to sign a contract that would require it to unlawfully discriminate with respect to conditions of employment; and that the contract with the roofers' union had been violated. A judgment was entered restraining the painters' and truck drivers' unions from picketing or interfering with plaintiff's business in order to compel the plaintiff to execute any contract of that nature until such unions, or one of them, was properly designated as the collective bargaining representative of plaintiff's employees; restraining the roofers' union from inducing any work stoppage among the roofers employed by plaintiff so long as that contract remained in effect; and awarding damages in the sum of $2,243.78 against all defendants. All three unions have appealed from the judgment.

The sole question raised is whether the trial court had jurisdiction to grant an injunction or to award damages because of activities of the defendants which constituted an unfair labor practice under the provisions of the National Labor Relations Act, as amended. The main question presented is whether the court had jurisdiction to enjoin those union activities, one purpose of which involved a demand for a contract requiring a violation of the federal law, when the decision of the controversy would necessarily involve and be based upon the effect and application of the provisions of the federal act. The appellants contend that their actions were not in violation of any law of this state; that any unlawfulness would arise only from the provisions of section 158(a)(3) and (b)(2) of the National Labor Relations Act as amended, which forbid an employer or a labor organization to discriminate or cause a discrimination against an employee in violation of other provisions of the act; that the National Labor Relations Act, as amended, provides the only remedy; and that the trial court had no jurisdiction to enjoin acts of the appellants which constituted unfair labor practice under the federal act, but which were otherwise lawful in this state.

The respondent contends that the act of the appellants in seeking this contract was not expressly forbidden by the federal statute; that the contract they sought would have forced the respondent to violate the federal law; that the purpose of appellants' strike was, therefore, illegal because it was to procure a contract which by virtue of the federal law it would be illegal to carry out; that since its purpose is unlawful under the federal law the activity of appellants is not protected by that law; that since this activity is neither forbidden by nor protected by the federal law it is subject to regulation by the state; and that the appellants may be enjoined by a state court since it is unlawful in this state to picket for an unlawful purpose, as declared in many decisions. It is then argued that this activity of the unions has never been held in any case to be an unfair labor practice under the National Labor Relations Act; that even if this conduct was in violation of the federal law this would not prevent a state court from enjoining a violation of its own law; and that it was held in Sommer v. Metal Trades Council, 40 Cal.2d 392, 254 P.2d 559, that any activity which is neither forbidden nor protected by federal law is subject to state regulation.

The real purpose of this action was to restrain activities claimed to be for an illegal purpose, in that they were intended to compel the respondent to execute a contract which would require it to violate the National Labor Relations Act. It clearly appears that the demand made was unlawful under the federal act. The effect of the injunction as ordered was to forbid picketing activities, although the unlawful demand for a contract was not the only or ultimate purpose of those activities. This unlawful demand may be separated from the later activities, and we regard certain decisions of the Supreme Court of this state as controlling here. In the Park & Tilford case (Park & Tilford Import Corp. v. Internaional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers), 27 Cal.2d 599, 165 P.2d 891, 162 A.L.R. 1426, the unions presented a closed shop contract which the employer refused to sign on the ground that to do so would be an unfair labor practice, under the federal act, since the union did not represent the salesmen. The trial court enjoined the defendant from picketing or interfering in any way with the sale or delivery of products. The Supreme Court held that while the union's demand for a contract was unlawful, its later activity was lawful since its purpose was to secure a closed shop, and modified the judgment by limiting the injunction to restraining the defendant from making any unlawful demand so long as it did not represent the requisite majority of the plaintiff's employees. While that decision, on its face, supports the form of injunction granted here, that case was decided prior to the 1947 amendment of the federal act. Under that amendment a different question is presented with respect to the matter of jurisdiction.

In Gerry of California v. Superior Court, 32 Cal.2d 119, 194 P.2d 689, 694, the situation presented was very similar to that in the instant case. Although the plaintiff was willing to enter into a contract if the unions were properly certified by the National Labor Relations Board, the uncertified unions carried on picketing and boycotting activities before that was done, and the plaintiff sought an injunction. It was there held that under the National Labor Relations Act, as amended in 1947, a state court has no jurisdiction, at the suit of a private person, to enjoin union activities affecting interstate commerce and covered by the federal act. The court said: ‘The provisions of the 1947 Act show an intent to preserve the functional purposes of the National Labor Relations Act with increased objectives, and an intent not to confer powers on the courts at the suit of private parties with the exception of the jurisdiction expressly granted, which does not include the exercise of equity powers.’ After pointing out that the language used in the Park & Tilford case, supra, indicating a contrary holding, had been rendered inapplicable by the 1947 amendment, the court said: ‘The employer as well as the union is now required by the 1947 Act to proceed before the board to obtain appropriate relief from unfair labor practices affecting interstate commerce. The alleged cause of action for injunctive relief presents matters for the board to determine in the first instance pursuant to the exercise of power vested by the National Labor Relations Act as amended by the 1947 act.’

In the case of In re De Silva, 33 Cal.2d 76, 199 P.2d 6, 8, the employer had secured an injunction on the ground that the picketing was unlawful under the Labor Management Relations Act, 1947, since there had been no certification of a union representative. It was there held that the injunction issued was void, its object being to accomplish something which was within the exclusive jurisdiction of the National Labor Relations Board under the terms of the federal act. In commenting on the Gerry case, supra, the court said: ‘This court there held that the declared intent and purpose of the Labor Management Relations Act, 1947, was to vest exclusive jurisdiction in the National Labor Relations Board over unfair labor practices affecting interstate commerce and to vest in the courts generally jurisdiction only of actions for damages arising out of the commission of such practices, and that the act deprived the superior courts of original equitable jurisdiction in such cases.’

The decision of the Circuit Court, Ninth Circuit, in the case of Capital Service, Inc., etc., v. National Labor Relations Board, 204 F.2d 848, involving an unfair labor practice under the National Labor Relations Act, confirms the position taken by the State Supreme Court with respect to the principles here involved.

The case of Sommer v. Metal Trades Council, 40 Cal.2d 392, 254 P.2d 559, 563, involved a claimed violation of the Jurisdictional Strike Act, Section 1115 et seq., Labor Code, which was also prohibited by the National Labor Relations Act as amended. After pointing out that the decision in the Gerry case ‘was a determination that in the absence of a valid applicable local statute affording relief, facts which amount to unfair labor practices under the federal act are cognizable exclusively in a proceeding before the National Board’, the court held that the state statute there in question was consistent with the policy expressed in the federal act; that since the union activity involved was not protected by the federal act it was not immunized from state action; that since the national board had not finally acted on proceedings brought there, a possible area of activity was involved which was neither protected nor condemned under the federal act, and which was subject to state action; and that, since the requisite factual elements could not be determined until a trial on the merits, the court was justified in maintaining the status quo, through a preliminary injunction, until the questions as to the lawfulness of the union activity could be decided. In the instant action no state statute forbidding these union activities is involved. While the demand for this contract was illegal under the federal act, the subsequent activities were not illegal under the state law. There was no area of activity involved which was neither protected nor condemned by the federal act; and the activity in question, which must be separated from the illegal demand under the holding in the Park & Tilford case, was not illegal under the decisions in this state. There being no local statute affording relief, there was no factual element dependent upon a trial, which would justify a preliminary injunction.

The real purpose of this action was, in effect, to invoke the protection of the federal law in order to obtain an injunction restraining activities which were not illegal under the state law. Under the circumstances, in view of the decisions cited, we feel bound to hold that the trial court had no jurisdiction to issue this injunction.

The appellants further contend that the trial court was likewise without jurisdiction to award damages. It is argued that the purposes of the union activities here did not come within the matters condemned in subsection (a) of section 303 of the Federal Act; that section 303 did not create any rights of action for damages in classes of cases falling outside the definition therein set forth; and that it follows that subsection (b) of that section does not authorize the exercise of jurisdiction by a state court in the matter of damages here involved.

Aside from the ultimate purpose of the union activities here in question the appellants, working together, brought about a violation of the no-strike provision of the contract between the respondent and the roofers' union, which was then in force. Not only were some of the activities in question sufficient to bring the matter within the intent and meaning of section 303, but aside from that phase of the case, there was also a clear-cut violation of the roofers' union contract in which the other unions took an active part. These elements were separate and distinct, and could be separately treated. Moreover, the roofing business did not affect interstate commerce, and the question as to the violation of the roofers' union contract was a matter which was within the jurisdiction of the state court. While the idea is somewhat startling in these days, there is nothing inherently illegal in requiring a labor organization to live up to its written contracts. In the closing brief the appellants argue, for the first time, that the entire contract between the respondent and the roofers' union was illegal and unenforceable, since it contained a hiring clause which would be forbidden by the National Labor Relations Act if interstate commerce was affected. Aside from other considerations, including the matter of severability, no lack of jurisdiction appears in this connection, and that is the only question raised.

That part of the judgment awarding damages is affirmed, and the portion which orders the issuance of an injunction is reversed. Each party to pay its own costs.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.

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