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


No. 16816.

Decided: March 13, 1957

Tobriner, Lazarus, Brundage & Neyhart, Mathew O. Tobriner, Irving S. Rosenblatt, Jr., San Francisco, 4, for appellants. Pembroke Gochnauer, San Francisco, 4, for respondent.

Defendants appeal from a judgment granting a peremptory writ of mandate compelling admission of plaintiff to membership in Moving Picture and Projecting Machine Operators, Local 162, retroactively to March 5, 1953, and granting plaintiff damages for loss of earnings and $1,500 as damages for attorney's fees necessarily incurred by him.

The findings on which the judgment appealed from is based are in part to the following effect:

Local 162 is a constituent local of the International Alliance of Theratrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (hereinafter called I.A.T.S.E.) and has jurisdiction over and members among employees in the theatrical and picture industries in San Francisco. Local 162 has contracts with at least sixty-six of the seventy motion picture theaters of San Francisco to employ in said theaters only projectionists dispatched by Local 162, so that a projectionist like plaintiff cannot obtain employment as such in said theaters without obtaining membership in Local 162 or being dispatched by its office. For many years only a limited number of journeyman members (at the time 112) have been admitted to Local 162; they possess the primary security of employment and seniority, and are the only ones who have voting power as to the organization of the local, its contracts and working conditions. They are all employed and the remainder of the approximately 175 jobs available are filled by members of other locals of I.A.T.S.E. and members of Local B18, a subsidiary local whose membership includes certain machine operators and projectionists. The latter are required to pay, over and above the dues to Local B18, a ‘working fee’ to Local 162 in the same amount as the journeymen members thereof.

Plaintiff is a competent and qualified moving picture machine operator and projectionist who entered the jurisdiction of Local 162 in February 1942, and work as such in San Francisco ever since, except that from October 1942 until February 1946, he was a motion picture machine operator in the United States Army. On his return from army service plaintiff applied to Local 162 for work assignment. He was told to join Local B18. He joined that local and the I.A.T.S.E. in February 1952 and ever since has been dispatched to work by Local 162. In January 1953, plaintiff filed with Local 162 his written application for journeyman membership accompanied by half of the initiation fee, all as required by its constitution, after having been informed by an office employee that his application would be entertained by the Executive Board. He was notified in writing to take the entrance examination conducted by the local, passed it, filed a doctor's certificate showing good physical condition, and appeared at the next regular membership meeting (on March 5, 1953). When his application was put to a vote on March 12, 1953, it did not receive the favorable two-thirds vote of the members voting, required by the constitution of the local. Plaintiff meets all lawful and reasonable requirements for membership in Local 162 and has performed or offered to perform all that the constitution and by-laws of that local require for admission to journeymen membership, except the required membership vote. Since March 5, 1953, defendants have arbitrarily refused to admit plaintiff to journeyman membership in Local 162. The court also found that there is no right of appeal within I.A.T.S.E. and Local 162 from the rejection of plaintiff's application for membership.

There are also findings as to plaintiff's damage by loss of earnings when defendants dispatched a newly admitted journeyman on March 12, 1953, to take over the job in which plaintiff had been regularly employed. Thereafter, plaintiff was dispatched for occasional employment only.

From the conclusions of law we note the following: Local 162 has a monopoly in San Francisco of the work of motion picture machine operators and projectionists in motion picture theaters. Since 1946 it has maintained an arbitrarily closed union. The requirement that a candidate for membership must receive a favorable two-thirds vote of the members voting is contrary to public policy, arbitrary and illegal and deprives plaintiff of his right to earn a livelihood in his trade.

Appellants attack the judgment on a number of grounds. They urge that the trial court lacked jurisdiction of the subject matter since exclusive jurisdiction for relief rests with the National Labor Relations Board (further called the N.L.R.B.).

It is undisputed that respondent's action is based on the principle of James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900, and Dotson v. International A.T.S.E., 34 Cal.2d 362, 210 P.2d 5, that a labor organization may not properly maintain both a closed shop and an arbitrarily closed or partially closed union. It is appellant's contention that the violation of this rule constitutes an unfair labor practice as meant in the Labor-Management Relations Act. Taft Hartley Act, 29 U.S.C.A. §§ 160(a) and (c); 158(b)(2); that since the enactment of said Act, exclusive jurisdiction of the matter if its affects interstate commerce, has been given to the N.L.R.B.; that part of the theaters from the employment in which plaintiff is excluded in the manner here attacked belong to interstate theater chains operating all over the United States so that the unfair practice affects interstate commerce, and that therefore the state court lacks jurisdiction. Respondent does not dispute that interstate commerce is affected, but contends that nevertheless the state courts have jurisdiction, because the action is based on a rule of state law and the relief granted differs from that which the N.L.R.B. can provide. Both principles on which the parties rely have mainly been developed in recent cases. The leading case for the exclusive jurisdiction of the N.L.R.B. is Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, and the one for the restriction on which respondent relies, United Construction Workers v. Laburnum Corporation, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025. It may be doubted whether all the recent cases in this field are consistent and whether the exact borderline between the applicability of said principles has been clearly and definitely drawn. However, recent California cases establish the rule for decision of our question.

In International Sound Technicians v. Superior Court, 141 Cal.App.2d 23, 296 P.2d 395, like issues were presented upon a petition for writ of prohibition seeking to restrain the Superior Court's proceeding with an action against a labor union. The court there held that the cause of action for an injunction requiring plaintiff's admission to membership in the union was exclusively within the jurisdiction of the N.L.R.B., and therefore was not the proper subject of action in the state courts. That decision held, however, that plaintiff's action for damages was one for violation of his fundamental right to work, a right not founded solely in the Taft-Hartley Act. The court pointed out that, in the absence of application to the N.L.R.B. for preventive relief, the federal act does not attempt to provide any means for recovery of damages by one in plaintiff's position. (No application to the N.L.R.B. was made in the case at bar). It concluded, therefore, that the action for damages may properly be maintained in the courts of this state.

Each party attempts to distinguish the portion of the International Sound decision unfavorable to him. These attempted distinctions are based largely upon consideration of cases in the federal courts. But all this material is the subject of full discussion in the case just discussed, and the application of the current federal rule is there determined. Upon the authority of International Sound Technicians v. Superior Court, supra, we conclude that the decree for injunctive relief here must be reversed. Under the same authority, however, the claim for damages is cognizable, and we therefore review appellant's other assertions of error upon that issue.

Respondent did not attempt to resort to any remedies within the I.A.T.S.E. before filing the present action. Appellants assert that, in this situation, judicial relief cannot be granted. The rule is clear that a union member must first exhaust the remedies available within the union before resorting to the courts. Holderby v. International Union etc. Eng'rs, 45 Cal.2d 843, 846, 291 P.2d 463.

The principal question presented upon this point is whether, under applicable regulations of I.A.T.S.E., respondent had a remedy within the union. Appellants rely upon the decision of a District Court of Appeal in Dotson v. International A.T.S.E. Local 162, 191 P.2d 778. However, that decision did not become final. The Supreme Court granted a hearing and its opinion 34 Cal.2d 362, 210 P.2d 5, expressly refrains from discussion of the question of failure to exhaust remedies within the union. After transfer of a cause to the Supreme Court, no part of the opinion of the District Court of Appeal is of any authority as a precedent. Ponce v. Marr, 47 Cal.2d 159, 301 P.2d 837. Thus, this decision cannot be relied upon here.

Review of the constitution of I.A.T.S.E. indicates that under Article 17, Section 1, respondent, as a member of constituent Local B 18, may have the right to appeal to the International President; from him to the General Executive Board, and from that board to the Alliance in convention assembled. Appellants offered evidence that I.A.T.S.E. had entertained appeals of applicants rejected in many other similar cases. The trial court sustained objection to such offered evidence, on the ground that the constitution and laws of the union speak for themselves. But the provisions of Art. 17, Sec. 1, considered in the light of several other provisions of the constitution, are by no means free from ambiguity. The constitutions and laws of private organizations require construction as much as do those of the state and its subdivisions. It has been held that the practical and reasonable construction of the laws of a voluntary organization by its governing board is binding on the membership and will be recognized by the courts. DeMille v. American Federation of Radio Artists, 31 Cal.2d 139, 147, 187 P.2d 769, 175 A.L.R. 382. Thus, the offered evidence should have been admitted, and the judgment for damages must be reversed to permit consideration of these facts upon the issue of the existence of a remedy within the union.

There remain several questions which should be discussed for the benefit of the court below upon retrial. Appellants contend that evidence offered as to the physical condition of respondent should have been admitted for its bearing upon the issue whether respondent's rejection by the membership was arbitrary.

It is undisputed that respondent filed the required doctor's certificate, and that he was present at the meeting of March 5, 1953, where he was presented to the membership. However, he became ill immediately thereafter, underwent abdominal surgery March 7th (5 days before the vote by the members upon his application), and was unable to work for one and one-half months thereafter, and as late as October, 1953, and January 1954 he asked for time off or for change of assignment, relying on doctors' certificates specifying the state of his health as the ground for such requests. Appellants offered to prove that his poor physical condition was known to the membership when it voted on March 12th and was a reason for his rejection, and that the Executive Board had, in June 1953 invited him to appear before it for the purpose of clarifying his physical condition and to inform him that, in the event of his recovery, reapplication by him would be entertained. The evidence was denied admission. We cannot accept respondent's view that by filing the medical certificate he had complied with all requirements as to health, thus rendering the offered evidence irrelevant. The constitution does not affirmatively require that all persons presenting satisfactory medical certificates must be admitted to membership. It can hardly be contended that if an applicant becomes totally and permanently incapacitated after the date of the certificate and before balloting his rejection upon that ground would be arbitrary as a matter of law. Provided the local can show that it had a general policy not to accept persons whose ill health would adversely affect their occupational fitness such evidence should be admitted at retrial.

Similarly, if a general policy of rejection upon the ground of incompetence as a projectionist is shown, evidence of such incompetence should be admitted. The mere fact that respondent had passed an examination does not bar all proof of incompetency. However, the offer to prove that respondent had reflected discredit upon the local by remarks made after the balloting was properly rejected. The issue is whether the rejection in March, 1953 was arbitrary. Statements made a year after that event can hardly be relevant.

Several points are raised as to the award of damages. In general, the court awarded respondent the difference between his actual earnings from June 7, 1953 to April 7, 1954, and the earnings of the union member who replaced him on the former date. The somewhat speculative character of these damages is not ground for their denial, Harris v. National Union etc., 98 Cal.App.2d 733, 738, 221 P.2d 136. However, this computation included overtime earned by Forde, whereas respondent was unwilling or unable to perform overtime work during this period. Consideration should be given to this factor upon retrial. Also, appellants were refused credit for respondent's earning as a projectionist of 16 mm. films for others than theaters. At least to the extent that respondent performed this work at times when his replacement worked at the theater, and thus was work which could not have been performed by respondent if he were dispatched by the local, these items should have been included in the computation. Appellants complain also of the allowance of attorneys' fees paid or to be paid by respondent for representation in this action. Generally, such fees are not recoverable, Viner v. Untrecht, 26 Cal.2d 261, 272, 158 P.2d 3. We find no express statutory or contractual authority for such an award here. Attorneys' fees should not have been allowed.

Judgment reversed, with directions for new trial in accordance with the views expressed in this opinion.

DRAPER, Justice pro tem.

NOURSE, P. J., and DOOLING, J., concur.