SEVEN UP BOTTING COMPANY OF LOS ANGELES v. GROCERY DRIVERS UNION LOCAL 848 42 942 203 578 595 306

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District Court of Appeal, Second District, Division 3, California.

SEVEN UP BOTTING COMPANY OF LOS ANGELES, Incorporated, Plaintiff and Respondent, v. GROCERY DRIVERS UNION LOCAL 848, a labor organization and an unincorporated association chartered by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, affiliated with the American Federation of Labor; Thomas L. Pitts, individually and as Secretary thereof; Joint Council of Teamsters No. 42, a labor organization and an unincorporated association; Ralph Clare, individually and as an officer and member thereof; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A.F.L.; Dave Beck, individually and as Executive Vice President and member thereof; Jack Annand, individually and as a member and representative thereof; Einar Mohn, individually and as a member and representative thereof; Ice Drivers, Helpers and Cold Storage Warehousemen Union Local No. 942, A.F.L., a labor organization and an unincorporated association; Irvin N. Gustafson, individually and as an officer and member thereof; Beer Drivers Union Local No. 203, A.F.L., a labor organization and an unincorporated association; George Leonard, individually and as an officer and member thereof; Steel, Paper House, Chemical Drivers & Helpers Union Local No. 578, A.F.L., a labor organization and an unincorporated association; John McGee, individually and as an officer and member thereof; Grocery Warehousemen Union Local 595, A.F.L., a labor organization and an unincorporated association; L. L. Sylvaine, individually and as an officer and member thereof; Wholesale Salesmen Dairy and Frozen Food Union, Local No. 306, A.F.L., a labor organization and an unincorporated association; John G. Marshall, individually and as an officer and member thereof; Doe One to Doe One Hundred (inclusive of all intervening numbers as though each said Doe was severally and separately designated), Defendants and Appellants.*

Civ. 20896.

Decided: September 18, 1956

John C. Stevenson, Los Angeles, and Clearence Todd, San Francisco, for appellants. Thomas P. Menzies, Harold L. Watt, Hill, Farrer & Burrill, and Carl M. Gould, Los Angeles, for respondent.

Plaintiff sought to enjoin defendant Grocery Drivers Union Local 848 and several other defendants from (1) soliciting the Seven Up Employees' Association to breach the collective bargaining agreement between plaintiff and said association; (2) picketing places where 7–Up is sold; (3) requesting transportation companies to refuse to deliver merchandise to customers of plaintiff; (4) soliciting plaintiff not to recognize the Seven Up Employees' Association as the exclusive collective bargaining agency for plaintiff's employees; (5) inducing purchasers of 7–Up to refrain from doing business with plaintiff; (6) publicly asserting that plaintiff is unfair to organized labor. Plaintiff also sought to recover damages based upon such alleged activities of defendants. The theory of plaintiff was that there was a jurisdictional strike involving the claim on the part of defendants that plaintiff should recognize defendants Teamster Unions as the collective bargaining agent of plaintiff's employees. Prior to the trial, the action was dismissed as to defendant Dave Beck. Judgment was in favor of plaintiff—injunction granted, and damages in amount of $4,000 awarded. Defendants appeal.

Appellants contend that the complaint does not state a cause of action under the Jurisdictional Strike Law.1 They argue that the allegations of the complaint, with respect to a jurisdictional dispute, fail to show that any controversy existed between the Seven Up Employees' Association and the Teamsters Union as to which of them has or should have the exclusive right to represent plaintiff's employees in collective bargaining with plaintiff. They also assert that, in all cases involving interstate commerce, the federal government has preempted the filed which the Jurisdictional Strike Law attempts to control; and that the federal government has preempted the field of labor relations covered by the actions described in the pleadings.

There was a former appeal in this action. Seven Up Bottling Co. v. Grocery, etc., Union, 40 Cal.2d 368, 254 P.2d 544, 33 A.L.R.2d 327. At the former trial, defendants' objection to the introduction of any evidence on the ground that the complaint did not state a cause of action was sustained and the trial court rendered judgment that plaintiff recover nothing. On the former appeal it was said in 40 Cal.2d at page 370, 254 P.2d at page 546: ‘The primary issue presented for decision in the court below and here is the validity of California's Jurisdictional Strike Law, infra. The Court, in rendering its judgment, did not purport to pass upon anything but the sufficiency of the complaint.’ It was also said therein, 40 Cal.2d at page 372, 254 P.2d at page 547: ‘The jurisdictional strike is ‘against the public policy’ of the state and is ‘unlawful,’ Id., § 1115, and any person suffering injury from a violation of the act is entitled to injunctive relief and damages. Id., § 1116.' It was also said therein, 40 Cal.2d at page 372, 254 P.2d at page 547: ‘There is no allegation showing that plaintiff was engaged in a business affecting interstate commerce and hence the Labor Management Relations Act of 1947 [29 U.S.C.A. § 141 et seq.], supra, has no application.’ It was also said therein, 40 Cal.2d at pages 372–373, 254 P.2d at page 547: ‘It should be clear that the activities of defendants, as alleged, fall within the terms of the act, Jurisdictional Strike Act. Defendants and the association are labor organizations and the latter is not financed, interfered with, dominated or controlled by plaintiff. There has been a concerted interference by defendants with plaintiff's-employer's business. That interference arises out of a controversy between two or more labor organizations—defendants and the association—as to which of them should have the right to collectively bargain with plaintiff-employer.’ It was held on the former appeal that the Jurisdictional Strike Act (of California) is valid. The judgment therein, based upon the ruling that a cause of action was not stated, was reversed. Since the substance of the allegations of the complaint is shown in the opinion on the former appeal, the allegations will not be set forth herein. During the trial, involved on the present appeal, plaintiff dismissed certain portions of the complaint as follows: paragraph II of the third cause of action; and paragraphs II, IV, V, and VI of the fourth cause of action. The allegations of these paragraphs are to the effect that defendants, by their activities, are endeavoring to induce plaintiff to breach its agreement with the Seven Up Employees' Association, and are endeavoring to compel plaintiff to recognize defendants as bargaining agents when it would be unlawful, under sections 921–923 of the Labor Code, for plaintiff to do so. The complaint states a cause of action.

The trial court found that defendant unions (referred to in the findings as Teamster Unions) are labor organizations which exist for the purpose of dealing with employers concerning grievances, labor disputes, and wages; that each individual named as a defendant is an officer and agent of a certain defendant union; that plaintiff employs a number of persons in the production, bottling and distribution of beverages; on March 4, 1949, a written collective bargaining agreement was executed by the plaintiff and the Seven Up Employees' Association; said association is a labor organization in which employees participate, and it exists for the purpose of dealing with plaintiff concerning grievances, labor disputes, wages, hours of employment and conditions of work; and said association is not financed in whole or in part, or interfered with, dominated or controlled by the plaintiff in any manner whatsoever; said agreement prescribes rates of pay, hours of employment and conditions of work for employees of plaintiff; said agreement was at all times and now is in full force and effect; defendants and their agents have been engaged in concerted interference with plaintiff's business; said concerted interference arises out of a controversy between defendant Grocery Drivers Union Local 848 and the Seven Up Employees' Association as to which of said labor organizations should have the exclusive right to bargain collectively with plaintiff on behalf of its non-supervisory production, bottling and distribution employees, and arises out of a controversy between said organizations as to which of them should have the exclusive right to have their members perform production, bottling and distribution work for plaintiff; the defendant labor organizations and the Seven Up Employees' Association are labor organizations as defined in section 1117 of the Labor Code, and said organizations are not found to be financed in whole or in part, interfered with, dominated or controlled by plaintiff, or by any of plaintiff's officers or agents, either in their organization or operation; plaintiff has no dispute or controversy of any kind with any of its employees; the effect of the unlawful activities, resulting in a refusal of retail markets to purchase and sell beverages produced and distributed by plaintiff, has been to impede the operation of plaintiff; plaintiff has been injured by the activities of defendants and is threatened with further injury by defendants, and this is a proper case for injunctive relief; said actions of defendants, particularly said labor organizations and their agents, are in violation of sections 1115 to 1120 inclusive of the Labor Code; plaintiff has been damaged in the sum of $4,000.

Appellants assert in effect that the plaintiff was not entitled to rely on the Jurisdictional Strike Law as a basis for an injunction and damages. They argue that plaintiff interfered with the affairs of the Seven Up Employees' Association, and that such interference removed that association from the classification of a ‘labor organization,’ as defined in section 1117 of the Labor Code. That section states that a “labor organization' means any organization * * * in which employees participate, and exists for the purpose * * * of dealing with employers * * * which labor organization is not found to be financed in whole or in part, interfered with, dominated or controlled by the employer.' Appellants also argue that the court did not find on the issue as to whether the Seven Up Employees' Association was financed, interfered with, or controlled by plaintiff; that said issue is jurisdictional; and until there is a conclusive showing by findings of fact that the association was not financed in whole or in part, interfered with, dominated or controlled by plaintiff, the court has no jurisdiction of the action. They argue further that the finding that the defendant labor organizations and said association ‘are not found’ to be financed or interfered with by plaintiff is not a valid finding—it is not a finding that they were not financed or interfered with—but it is a negative legal conclusion which leaves the record with no finding on the subject of interference. That finding follows the language of section 1117 of the Labor Code wherein it is stated, ‘which labor organization is not found to be financed in whole or in part, interfered with, dominated or controlled by the employer.’ In other words, the court has made a finding, in the words of the statute, that the association is not found to be financed or interfered with by the plaintiff (employer). Also, it is to be noted that the court did find (at another place in the findings) that the association was not financed in whole or in part, or interfered with, dominated or controlled by the plaintiff. (This is finding V which states that the allegations of paragraph VI [of the first cause of action] of the complaint are true. One of the allegations therein is: ‘* * * said labor organization [Seven Up Employees' Association] is not financed in whole or in part, or interfered with, dominated or controlled by the plaintiff employer in any manner whatsoever.’) In view of those two findings, it is clear that, contyrary to appellants' argument, the court did find on the issue as to whether the association was financed or interfered with by plaintiff.

Appellants assert further that a finding that a labor organization is ‘not interfered with’ is a legal conclusion, and that the court should have made findings with respect to specific acts on the part of plaintiff, so that a determination could be made from a consideration of the acts whether plaintiff interfered with the association. The court made findings as to ultimate facts. It was not required to make findings as to various evidentiary matters. In Petersen v. Murphy, 59 Cal.App.2d 528, at page 534, 139 P.2d 49, at page 52, it was said: ‘[S]pecial facts need not be detailed in the findings if a general finding necessarily embodies an implied finding on such special facts.’ Some of the evidence presented by appellants, with reference to such alleged specific acts on the part of plaintiff, was as follows: that plaintiff spied on the activities of the company union (association) and the teamsters union; that plaintiff induced new employees (before and at the time they were employed) to sign a wage deduction authorization or card2 by which the employee directed that dues in the company association be deducted from his wages each month and turned over to the association, and the association had no other application forms for membership; that plaintiff deducted all such dues and remitted them to the association, together with a list of the new employees paying such dues; that plaintiff maintained control of the official positions in the association ‘because of an association by-law that no employee could be a candidate for association office’ unless he had been an employee for one year; that plaintiff maintained control of the association officers by an arrangement with the association that when the officers were discharged by plaintiff their removal from office in the association was automatic; that plaintiff removed the vicepresident of the association while he was a negotiator in negotiations which were in progress; that plaintiff discharged an employee (White) for protesting the discharge of the vice-president; that the association had no procedure for expulsion or suspension of a member, and the association officers did not know who the new members were until they received the duesdeduction check from plaintiff at the end of each month; that the contracts between the association and the company were never discussed at length in association meetings, and every president of the association who remained in the employment of the company was made a supervisor after he had served in one of the contract sessions.

The evidence presented by appellants with reference to those alleged matters was in conflict with evidence presented by plaintiff with reference thereto. Some of such evidence presented by plaintiff was as follows: the company association was formed in 1940 by the employees at their own instance without the knowledge of the company; the meetings of the association have been held off the premises of plaintiff; the officials of plaintiff first knew of the existence of the association when the association requested plaintiff to recognize it; plaintiff had nothing to do with the preparation of the constitution or bylaws or the amendments thereto; the association issued membership cards and maintained membership rolls; plaintiff never contributed any money to the association; dues-deduction cards and membership cards are printed and paid for by the association; meetings of the association are not attended by officers or supervisors of plaintiff; no official or supervisor of plaintiff has had anything to do with the administration of the affairs of the association; plaintiff has not expressed to any employee any preference in favor of any union or any opposition to any union; plaintiff had nothing to do with spying or attempted spying on the teamsters union; there was no discriminatory practice by plaintiff, based on union activities, with reference to employing or dischargaing employees. Many witnesses testified that there was no such discriminatory practice by plaintiff. An offer of proof was made by plaintiff and accepted by appellants that 32 witnesses would testify that there was no such discriminatory practice by plaintiff, that there was no spying by plaintiff, that there was no opposition by plaintiff to the teamster union, and that at various meetings of the association various members spoke up in the same manner as White and others had spoken, and such employees were not discharged.

The reporters' transcript consists of 3,781 pages. It is not necessary to state the details of the testimony. The question as to whether plaintiff interfered with the company union or the defendant unions was a question of fact for the determination of the trial judge. The above general references to the testimony are sufficient to show that there was substantial evidence in support of the finding that plaintiff did not interfere with the association or the defendant unions.

Appellants also contend that the finding to the effect that there was a jurisdictional dispute, between the company association and the defendant unions as to which of them should represent the employees of plaintiff, is unsupported by the evidence. They assert that the teamster unions were in ‘a dispute over company [plaintiff] violations of every principle of our Labor Code’—that the picketing or activity of the teamsters in 1949 was conducted solely as a protest against discharges, spying and discrimination by plaintiff against employees who were favorable to the teamsters' union; that it was a typical ‘unfair labor practice’ protest, which had no relation to a controversy over representation. They also argue that there was no evidence that anyone asserted on behalf of defendant unions that the defendant unions claimed the right to represent plaintiff's employees; and that on the contrary there was testimony that the defendants did not assert that they claimed the right to represent plaintiff's employees. The Seven Up Employees' Association is a labor organization and it has had a collective bargaining agreement with plaintiff since 1940 which requires plaintiff to recognize it as said association's exclusive bargaining agent. There was evidence (testimony of a witness on behalf of defendants, and stipulations) that the picketing and boycotting was for the purpose of adversely affecting plaintiff's business so that plaintiff would make a contract with defendant unions whereby those unions would be the bargaining agents of plaintiff's employees. There was evidence (testimony of a witness on behalf of defendants, and stipulations) to the effect that picketing, boycotting, and listing as unfair by defendant unions cease when a company makes a bargaining contract with defendant unions. There was no controversy between plaintiff and its employees. In order to prove that a jurisdictional dispute existed, it is not necessary to prove that someone on behalf of the defendant unions stated that the unions claimed the right to represent plaintiff's employees. It was stipulated that the appellants were engaged in concerted activity involving plaintiff. The court found, upon substantial evidence, that appellants have been engaged in concerted interference with plaintiff's business and that such interference arises out of a controversy between defendant Grocery Drivers Union Local 848 and the company association as to which of them should have the exclusive right to bargain with plaintiff. There was substantial evidence in support of the finding to the effect that there was a jurisdictional dispute.

Appellants assert further that the court erred in denying their motion to amend their answer to allege that plaintiff operates under a franchise granted by the Seven Up Company of St. Louis, Missouri, which gives plaintiff exclusive right to make and distribute 7–Up in the Los Angeles area; that the syrup and extract necessary to manufacture 7–Up is shipped from St. Louis; and that exclusive jurisdiction over the acts alleged in the complaint is in the National Labor Relations Board. Appellants stated that under the amendment they desired to raise the issue of interstate commerce and to submit evidence showing exclusive jurisdiction in federal agencies. The motion to amend was made more than four years after the complaint was filed, and of course was made after the first appeal in this case.

In Sommer v. Metal Trades Council, 40 Cal.2d 392, 254 P.2d 559, the defendant unions demanded that plaintiff recognize them as the bargaining representative of plaintiff's employees. At that time the employees were not organized. A few months later the employees formed an association or union and demanded that plaintiff recognize it as their bargaining representative. Plaintiff refused to recognize either of them. Defendant unions commenced picketing and boycotting, which interfered with plaintiff's business. The employees' union filed a petition with the National Labor Relations Board for certification as a representative for collective bargaining purposes. Defendant unions intervened and contested for recognition. The Board found that plaintiff was engaged in commerce within the meaning of the federal labor relations law and ordered an election. An election was conducted which resulted in favor of the employees' union, but it did not appear whether certification followed. Defendant unions continued their concerted activity, and plaintiff obtained an injunction. Plaintiff contended on appeal that the activity of defendants constituted a jurisdictional strike in violation of the Jurisdictional Strike Act of which the state court had jurisdiction. The defendants contended that their activity was not in violation of that act and in any event was governable solely pursuant to federal law. The court said in 40 Cal.2d at page 396, 254 P.2d at page 563, that it may be assumed that evidence before the National Labor Relations Board bears on the issues before the court, ‘[b]ut it does not follow that the state court does not have jurisdiction of this controversy.’ It was also said in 40 Cal.2d at pages 399–400, 254 P.2d at page 564: ‘[T]he factors of protection and condemnation under the federal act largely determine whether the area is one closed to state control. The decisions indicate that the presence of those factors are deemed to disclose an intention on the part of Congress to place exclusive jurisdction in the National Board. They also demonstrate that the problem is not one which in every case is resolved solely by looking to the provisions of the federal act; but that if the subject matter of the local statute is otherwise one within the area of permissible exercise of state power in the maintenance of industrial peace, and state policy is consistent with federal policy, the state does not necessarily encroach upon the area of control vested in the National Board.’ It was also said in 40 Cal.2d at pages 400–401, 254 P.2d at page 565: ‘If the union activity here involved is not protected under the federal act it is not immunized from state action. The union concerted activity was not protected under the federal act if another union was certified by the national board as the collective bargaining representative of the plaintiff's employees. And in the absence of such certification there is no immunity under the state law if the employees' Local constitutes a collective bargaining representative within the meaning of the anti-jurisdictional strike provisions. [Citation.] Since the certification of a union other than the defendant is not shown, a case of condemnation of the union activity under the federal act is not presented. And as it does not appear that the National Board has seen fit to act finally in eigher the representation or the unfair charges proceedings there is involved a possible area of activity which is neither protected nor condemned under the federal act, and pursuant to the foregoing decisions is subject to state action under the anti-jurisdictional strike provisions of the Labor Code. Thus, there is here an area open to the state for the exercise of its police power.’ The order granting the injunction was affirmed. In the present case none of the unions involved had been certified as the representative of plaintiff's employees. The trial court in the present case did not err in denying defendants' motion to amend.

Appellants contend further that the injunction exceeds the jurisdiction of the court. They argue that the injunction is not limited to the alleged controversy over representation, and that it blankets the activities of the unions as to free speech and other constitutional rights regardless of whether the activities relate to the matter of representation. The injunction provides in substance that defendants refrain from: preventing plaintiff from securing, selling or delivering merchandise; inducing any person or customer to refrain from using, transporting or selling any of plaintiff's products; representing to any person that plaintiff's employees are unorganized or that plaintiff's products are made by nonunion labor or that plaintiff is unfair to organized labor; maintaining plaintiff on any ‘we do not patronize’ list; taking part in any interference with the business of any person for the purpose of inducing the person to cease handling or selling plaintiff's merchandise; serving consumer, who requests plaintiff's beverage, a substitute beverage; interfering with plaintiff's business; intimidating or interfering with any employee of plaintiff. The matter of free speech with respect to the claim of unconstitutionality of the Jurisdictional Strike Act is discussed in the opinion on the former appeal. Seven Up Bottling Co. v. Grocery etc. Union, supra, 40 Cal.2d 368, 373–380, 254 P.2d 544, 33 A.L.R.2d 327. Also, in the opinion on the former appeal, 40 Cal.2d at page 380, 254 P.2d at page 552, there is a quotation, with respect to the breadth of a restraining order, which is applicable here. It was there stated, in part: “They contend that its language prohibits inducement not only of employees of Deltorto but also the inducement of employees of any other employer to strike, where an object thereof is to force Giorgi or any other employer or person to cease doing business with Langer. To confine the order solely to secondary pressure through Giorgi or Deltorto would leave Langer and other employers who do business with him exposed to the same type of pressure through other comparable channels. * * * ‘When the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed.”’ This contention of appellants is not sustainable.

Appellants also contend that there was no evidence to sustain the judgment as to many defendants. They named several defendants who, according to appellants' argument, were unconnected with the case. There is evidence (including stipulations) from which it could be concluded that the defendants participated in the concerted interference with plaintiff's business. There was evidence that appellant Joint Council of Teamsters No. 42 constitutes a co-ordinating body with which all teamsters local unions are affiliated, and that said council approved the picketing, boycotting and unfair listing of plaintiff. There were stipulations on behalf of defendants to the effect that the intention of defendants, unless restrained, was to continue to picket plaintiff. This contention is not sustainable.

By reason of the above conclusions, it is not necessary to discuss other points on appeal.

The judgment is affirmed.

FOOTNOTES

1.  Section 1115 of the Labor Code provides: ‘A jurisdictional strike as herein defined is hereby declared to be against the public policy of the State of California and is hereby declared to be unlawful.’ Section 1118 of the Labor Code provides: ‘As used in this chapter, ‘jurisdictional strike’ means a concerted refusal to perform work for an employer or any other concerted interference with an employer's operation or business, arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to bargain collectively with an employer on behalf of his employees or any of them, or arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to have its members perform work for an employer.' Section 1117 of the Labor Code provides: ‘As used herein, ‘labor organization’ means any organization or any agency or employee representation committee or any local unit thereof in which employees participate, and exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, hours of employment or conditions of work, which labor organization is not found to be financed in whole or in part, interfered with, dominated or controlled by the employer. ‘As used herein, ‘person’ means any person, association, organization, partnership, corporation, unincorporated association, or labor organization.'

2.  ‘Gentlemen: You are authorized to deduct from my pay or salary thirty (30) days from date below, the sum of $3.00, and then you are authorized to deduct from my pay or salary each and every month thereafter the sum of $1.00. All monies deducted under this authorization are to be forwarded to the Secretary-Trasurer of the Seven Up Employees Association.Dated: This ___ day of ___, 1948 Signed ________ Witness ________'

PARKER WOOD, Justice.

SHINN, P. J., and VALLEÉ, J., concur.