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

Ted CHAVEZ, Plaintiff and Appellant, v. O. E. SARGENT et al., Defendants and Respondents.*

Civ. 18012.

Decided: September 04, 1958

Garvin W. Hale, San Jose, for appellant. Severson, Davis & Larson, Nathan R. Berke, George Brunn, San Francisco, as amicus curiae for appellant. Morgan & Beauzay, San Jose, for respondent. Gladstein, Andersen, Leonard & Sibbett, Norman Leonard, San Francisco, as amicus curiae (I. L. W. U.). Charles P. Scully, Victor Van Bourg, San Francisco, as amicus curiae (AFL-CIO).

This case involves the validity of the so-called ‘Right to Work'1 ordinance of San Benito County. The trial court, on demurrer, held that such ordinance was unconstitutional, and entered its judgment for the defendants. From this judgment the plaintiff appeals.

The ordinance was enacted in July of 1957. It is entitled: ‘An ordinance relating to employment, prohibiting denial of employment because of non-membership in a labor organization, prohibiting agreements excluding any person from employment because of non-membership in a labor organization; * * * Making illegal compelling or attempting to compel a person to join a labor organization or leave his employment against his will; prohibiting conspiracy to cause the discharge of any person because of non-membership in a labor organization; providing right of action for damages for violations; and providing for injunctive relief.’

After setting forth several definitions, the ordinance provides that:

‘Section 3. * * * No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall * * * [any person or corporation] enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.

‘Section 4. * * * Any act or provision in any agreement entered into on or after the effective date hereof or any renewal or extension of any existing agreement entered into on or after the effective date hereof which is in violation of this ordinance shall be illegal and void. Any strike or picketing to force or induce any employer to make an agreement in writing or orally in violation of this ordinance shall be for an illegal purpose.

‘Section 5. * * * It shall be unlawful for any employee, labor organization, or officer, agent or member thereof to compel or attempt to compel any person to join any labor organization or to strike against his will * * *’

Section 6 prohibits and declares illegal any conspiracy to accomplish any of the prohibited acts. Section 7 provides that ‘any person who violates any provision of this ordinance, or who enters into any agreement containing a provision declared illegal by this ordinance, or who shall bring about the discharge or the denial of employment of any person because of nonmembership in a labor organization shall be liable to the person injured as the result of such act or provision for such damages as such person injured may have sustained thereby and may be sued therefor.’

Section 8 provides that ‘Any person injured or threatened with injury by any act declared illegal by this ordinance shall notwithstanding any other provision of this ordinance or any other ordinance to the contrary, be entitled to injunctive relief therefrom.’

The next section contains a broad severability provision. There is no provision making a violation of the ordinance a criminal offense.

The complaint alleges that the plaintiff, Ted Chavez, is a painting contractor doing commercial and residential painting in Santa Clara and San Benito Counties; that a majority of his employees are members of a designated painters' local union affiliated with the A.F.L.-C.I.O.; that Sargent is the secretary of that union, and that such union is the only painters' union in San Benito County; that the defendants demand that plaintiff sign a union contract similar to the one that he has in Santa Clara County with the painters' union there, providing for union membership after 30 days of employment; that the union members in San Benito County are conspiring to compel the non-union painters to join the union, and refuse to work with non-union painters; that these acts are in violation of the ordinance; that plaintiff ‘wishes to sign a union security contract but is subject to a suit for damages' under the ordinance if he does so. Plaintiff therefore prayed for a temporary and permanent injunction compelling the defendant union ‘to desist from their demands for any type of union security in San Benito County and compelling them to work with non-union building trades employees.’

The trial judge, the Honorable Stanley Lawson, held the ordinance to be unconstitutional. In doing so he wrote an opinion holding that the phase of the labor-management field here involved had been pre-empted by the Federal government by certain provisions of the Taft-Hartley Act (29 U.S.C.A. § 158(a)), and that, even if this were not so, the State of California has legislated on the subject and occupied the field. This being so, the judge declared, a county cannot lawfully pass an ordinance that conflicts with the general laws of the state, ‘Nor may it forbid what the State law allows or legislate when the State law occupies the field. (Pipoly v. Benson, 20 Cal.2d 366 [125 P.2d 482, 147 A.L.R. 515]).’ The judge concluded ‘that since the Federal and State Governments have per-empted the field, the ordinance is void.’ It is these determinations that are challenged on this appeal. In addition to the briefs of the litigants several amici curice have filed briefs on both sides of the controversy.

The holding that the federal government has pre-empted the field of legislation here involved was erroneous for at least two reasons. In the first place, even if it be assumed that the Taft-Hartley Act is applicable to this controversy, by reason of section 8(a) (29 U.S.C.A. § 158(a)(3)) which outlaws the closed shop but authorizes union shop2 agreements under certain conditions, section 14(b) of the Taft-Hartley Act (29 U.S.C.A. § 164(b)) provides:

‘Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.’

This section, on its face, apparently permits non-federal legislation and regulation in this field by state or territorial law3 when the problem involves interstate commerce.

In the second place, even if it be assumed that, in a case involving interstate commerce, the federal government has pre-empted the field on the subject involved, and that the section quoted above does not mean what it apparently says, this would not assist defendants. The Taft-Hartley Act, of course, can apply only to matters relating to interstate commerce. It has no application to commerce purely local in character, that is, to commerce that is entirely intrastate. In the instant case, the record before us is completely devoid of any allegation or claim by any party that interstate commerce is involved or affected. There is nothing in the record to indicate that plaintiff was engaged in interstate commerce. Where the record is barren as to interstate commerce the question of federal pre-emption does not arise. Thorman v. International Alliance, etc. Employees, 49 Cal.2d 629, 320 P.2d 494; Seven Up Bottling Co. of Los Angeles v. Grocery Drivers Union, 49 Cal.2d 625, 320 P.2d 492. We must, therefore, hold that, as to the problem here involved, inasmuch as interstate commerce is not involved, the trial court was in error in holding that the federal government has pre-empted the field.

The trial court also ruled that the State of California, by state law, has pre-empted the field, and that the ordinance is unconstitutional because contrary to state law and policy. This presents the pivotal issue presented on this appeal.

The Constitution of this state in Article XI, section 11, states: Any county * * * may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' Under this section the police powers conferred on cities and counties are ‘equal in extent to those of the state.’ McKay Jewelers v. Bowron, 19 Cal.2d 595, 600, 122 P.2d 543, 546, 139 A.L.R. 1188; see also an article by Peppin, ‘Municipal Home Rule in California,’ 32 Cal.L.Rev. 341. Therefore, if the state has not occupied the field here involved, the counties may legislate on tis subject. This is so no matter how logical and compelling the argument may be that laws permitting or prohibiting the union or closed shop should, for obvious reasons, be of statewide application. The problem is obviously one of statewide concern. But even as to such a concern, local regulation is permissible until state laws have been enacted to occupy the field. In re Porterfield, 28 Cal.2d 91, 168 P.2d 706, 167 A.L.R. 675; In re Iverson, 199 Cal. 582, 250 P. 681; Wilton v. Henkin, 52 Cal.App.2d 368, 126 P.2d 425; Sawyer v. Board of Supervisors, 108 Cal.App. 446, 291 P. 892. Except in a very limited field not here involved, power to act on such a question is concurrent between the state and counties and municipalities, with state law prevailing in the event that the local ordinance conflicts ‘with general laws.’

The phrase ‘general laws' implies that for a conflict to exist such conflict must be between the local ordinance and a state statute, and that a conflict between the ordinance and general common law principles is not sufficient to constitute the conflict referred to in the constitutional provision. The phrase used in that provision is ‘general laws', not ‘general law.’ The fact that the plural of the term was used implies that the framers were referring to statutes and not to the common law. Although we have been referred to no case directly passing on this subject, it is significant that most of the cases discussing the problem have stated that the local units may act until the ‘legislature’ has entered the field, or have stated that the local ordinance is valid unless it is in conflict with the ‘statutes' of this state. In re Porterfield, 28 Cal.2d 91, 168 P.2d 706, 167 A.L.R. 675; Pipoly v. Benson, 20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515; In re Iverson, 199 Cal. 582, 250 P. 681; Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172. The determination of this point in the instant case is of importance because long prior to the passage of the ordinance here involved in 1957, and at least as early as 1908, the legality of the closed and union shop was recognized and approved under general common law principles. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98 P. 1027, 21 L.R.A.,N.S., 550. This case has been consistently followed. But for reasons already stated, the rule of these many decisions cannot be held to create a conflict between the local ordinance and the ‘general laws.’

Thus, the key question presented is whether the ordinance in question is in conflict with the statutory law of the state. Such a conflict may exist not only where the ordinance directly forbids what a state statute permits, or permits what the state law prohibits, but also where the ordinance purports to operate in a field already fully occupied by state legislation. See Pipoly v. Benson, 20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515, for a full discussion of this principle. Inasmuch as the state has not, by legislation, directly authorized the union shop, the real question presented is whether the state has generally occupied the field so as to preclude local ordinances on the subject. Certainly it is the law that a conflict may exist and the state will be deemed to have occupied the field, not only where the ordinance and statute are in direct conflict but also where, realistically, the effect of the ordinance would defeat the basic objectives of the state legislation. In re Porterfield, 28 Cal.2d 91, 168 P.2d 706, 167 A.L.R. 675; Agnew v. City of Culver City, 147 Cal.App.2d 144, 304 P.2d 788; Lynch v. City of Los Angeles, 114 Cal.App.2d 115, 249 P.2d 856. As was said in Wilson v. Beville, 47 Cal.2d 852, 859, 306 P.2d 789, 793, quoting from Tolman v. Underhill, 39 Cal.2d 708, 712, 249 P.2d 280: “Althought the adoption of local rules supplementary to state law is proper under some circumstances, it is well settled that local regulation is invalid if it attempts to impose additional requirements in a field which is fully occupied by statute * * * [Citing a case.] Determination of the question whether the Legislature has undertaken to occupy exclusively a given field of legislation depends upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate. [Citations.] Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulations is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme. [Citation.]” Thus, the question presented is whether or not the state by legislation has ‘occupied the field’ of collective bargaining within the meaning of the principles above discussed. On this subject the litigants and the competing amici curiae, and the legal commentators are in disagreement. See Berke and Brunn, ‘Local Right to Work Ordinances,’ 9 Stanford L.Rev. 674, contending that the state has not ocupied the field, and Finman, ‘Local ‘Right to Work’ Ordinances: A Reply', 10 Stanford L.Rev. 53, urging that the state has occupied the field.

The State of California has not seen fit to adopt a detailed statutory scheme for the regulation of collective bargaining or for the regulation of the relations between unions and management, but the state has passed some legislation in this field. There are several statutes that have been enacted on these subjects, but, for the purposes of the problems presented, it is necessary to consider only sections 920 through 923 of the Labor Code. Section 920 defines the word ‘promise.’ Section 921 declares that promises ‘between any employee or prospective employee and his employer’ are contrary to public policy if either party promises:

‘(a) To join or to remain a member of a labor organization or to join or remain a member of an employer organization,

‘(b) Not to join or not to remain a member of a labor organization or of an employer organization,

‘(c) To withdraw from an employment relation in the event that he joins or remains a member of a labor organization or of an employer organization.

‘Such promise shall not afford any basis for the granting of legal or equitable relief by any court against a party to such promise * * *’.

Section 922 provides that: ‘Any person * * * who coerces or compels any person to enter into an agreement, written or verbal, not to join or become a member of any labor organization, as a condition of securing employment or continuing in the employment of any such person is guilty of a misdemeanor.’

Then comes section 923 which clearly and unequivocally sets forth the state's public policy as to labor organizations. It declares:

‘In the interpretation and application of this chapter, the public policy of this State is declared as follows:

‘Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’

This legislation was passed in 1933 (Stats. of 1933, p. 1478, Chap. 566) and placed in the Labor Code in 1937, and was passed at a time when there was a nationwide controversy over so-called ‘yellow dog'4 contracts, over company unions, and over the use of injunctions in labor disputes. California did not see fit to adopt some of the legislation adopted in other states and nationally aimed at correcting these evils, and failed to adopt the model anti-injunction bill adopted in many states. But it did adopt the declaration of policy contained in that proposed bill (§ 923 of the Labor Code) and the provisions which declar anti-union and company union contracts to be contrary to public policy. Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 385, 106 P.2d 403.

The question to be decided is whether the county ordinance here involved is contrary to the provisions above quoted, or, stated another way, whether the ordinance attempts to legislate in a field already occupied by the state legislation.5

On this subject there is no reasonable basis for any real controversy. A reading of section 923 demonstrates that there is a direct conflict between the public policy of the state as there declared, and the public policy of the county of San Benito as set forth in the ordinance. Section 923 declares that it is the public policy of this state to leave the negotiation of labor contracts to voluntary agreement, and to give to the individual workman freedom in negotiating the terms and conditions of his employment. The ordinance declares, however, that it is the policy of San Benito County to abolish voluntary agreement on the issue of the union shop, and to limit the workmen's freedom of contract by prohibiting negotiation with respect to that part of his contract of employment. Thus, the policy of section 923 is clearly contrary to the policy of the ordinance. This is not only clear from the general policy of section 923 but is also demonstrated by the precise language used. Section 923 states that ‘Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees.’ This amounts to a prohibition of local regulation of the terms of collective bargaining agreements. Otherwise, the approval given by the statute to ‘voluntary agreement’ would be meaningless. If cities and counties can regulate union shop provisions of collective bargaining agreements, then they can regulate and prohibit other provisions relating to the terms and conditions of employment, and thus destroy, completely destroy, the right of labor and management to determine these matters through voluntary agreement.

This meaning of section 923 is not only clear from the language of the section, but it is also the interpretation that the Supreme Court of this state has placed on the language used.

In Levy v. Superior Court, 15 Cal.2d 692, at page 704, 104 P.2d 770, at page 776, 129 A.L.R. 956, Mr. Justice Shenk speaking for a unanimous court, after first quoting section 923, stated: ‘This declaration evidences the existence of a policy to uphold the freedom of employees to organize and to enter into collective bargaining contracts for their own protection.’

In Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d 403, the Supreme Court held that union shop contracts are valid in this state and not contrary to the provisions of section 921. The precise holding was that picketing by a union to force an employer to execute a closed shop agreement which obligated the employer to require that all employees, present and prospective, must designate the union as their collective bargaining agent and to become and to remain members of the union as a condition of employment, was lawful and did not violate sections 920 through 923 of the Labor Code. After holding that the sections did not prohibit a promise on the part of employees to join an independent labor union, the court stated (16 Cal.2d at page 387, 106 P.2d at page 407.):

‘These and other considerations render untenable the contention that union shop contracts in California are void under section 921. * * * Considering all of these circumstances, a legislative intention to declare the closed shop contract unlawful will not be presumed.

‘The argument is also made that it is absurd to suppose that these provisions were written with the intention of restraining the employer from influencing his employee, while at the same time conferring upon other individuals the right ‘to coerce’ the same employee through the employer. But the right of workmen to organize for the purpose of bargaining collectively would be effectually thwarted if each individual had the absolute right to remain ‘unorganized’, and using the term adopted by the appellants to designate the economic pressure applied against them through the employer, coercion may include compulsion brought about entirely by moral force. Certainly such compulsion is not made contrary to public policy by any statute of this state and is a proper exercise of labor's rights. [Citing cases.]

‘The argument that provisions similar to those now being considered guarantee employees freedom ‘from all interference’ in their selection of a collective bargaining agent has been accepted by several state courts. [Citing cases.] * * * It is not in accordance with the law of this state, as judicially declared for many years, nor is it based upon a fair construction of sections 920 to 923 of the California Labor Code, considering their history and purpose. These sections lay no statutory restraints upon the workers' efforts to secure a closed shop contract from an employer, hence the appellants' picketing was lawful and should not have been enjoined.'

The least that can be said of the Shafer case is that it holds that sections 920–923 of the Labor Code do not place any restraint upon the efforts of workers to obtain a union shop contract from the employer, and that these sections recognize the validity and propriety of union shop agreements.

Whatever doubt may have existed as to the meaning of the sections after the decision in the Shafer case, was set at rest by the decision of In re Porterfield, 28 Cal.2d 91, 168 P.2d 706, 167 A.L.R. 675. This case held that section 923 was not simply a statutory declaration of policy to guide the courts in interpreting other provisions of the code, but contained pronouncements that have an independent meaning and effect of their own. There the court was presented with a city ordinance of Redding making it a crime to solicit members for a dues-paying organization without first paying a fee to procure a license. Porterfield was a paid union organizer, one of whose duties was to solicit memberships for his union. He solicited such memberships in Redding without securing a license, and was convicted. On habeas corpus, the Supreme Court held that the ordinance was unconstitutional because it was in conflict with the public policy of California as declared in section 923. In so holding Mr. Justice Schauer, speaking for the majority of the court, held in clear and cogent language that the tax provisions of the ordinance ‘are not consistent with the public policy of California as declared in section 923 of the California Labor Code.’ (28 Cal.2d at page 115, 168 P.2d at page 721.) After quoting the major portion of the section, and citing the Shafer case, supra, Mr. Justice Schauer continued (28 Cal.2d at page 116, 168 P.2d at page 772):

‘Where a matter is of state-wide concern, local regulation upon the subject may be enforced only if it is not in conflict with the statutes of the state. [Citing authorities.] Respondent concedes that the ordinance in question is both a regulatory and revenue measure. We think that because it is the latter as well as the former it is incompatible with the state legislation.

‘The imposing of a license tax upon the exercise of the privilege of membership solicitation places an impediment in the way of realization of the state's declared policy of ‘full freedom’ for association and self-organization of workers. A part of the right of self-organization of employes is the right of reasonable solicitation of others to join their union. [Citing a case.] The solicitation of members is one of the most important activities of a union. Such solicitation is to a union akin to what breathing is to a human being. It is axiomatic to say that without members a union cannot function. In the development and apposition of a trade union the paid organizer usually has the duty to widely and systematically solicit workers for membership. A tax on solicitation of memberships thus tends to smother the workers' united existence. A revenue tax could be made so onerous as to proximately affect collective bargaining and the successful carrying on of concerted activities for other mutual aid or protection. The legitimate objective of the closed shop and consequent employer recognition can generally be obtained only by increase of membership and expansion of organization.'

The ordinance was declared invalid because it operated in a field already occupied by state legislation. The state legislation did not refer to the power of licensing, the subject matter of the ordinance. But the court held that there was a conflict because freedom from licensing was reasonably necessary to secure the freedom of action guaranteed by the state legislation. The Porterfield case stands for the proposition that section 923 declares that it is the state's policy that no impediment may be set up by local ordinance that will stand in the way of the union's ability to bargain on a basis of equality with management, that is, that no local ordinance may interfere with voluntary collective bargaining agreements. The Shafer and Porterfield cases have never been questioned or overruled. This court, as an intermediate court, is bound by them.

Certainly the point need not be labored that the prohibitions contained in the San Benito ordinance directly impede the ability of the unions to bargain with their employers on a basis of reasonable equality, and that such impediment is more direct and substantial than the impediment to the same objective found in the Redding ordinance.

Under section 923, as interpreted by these cases, it is basic state policy ‘to balance the industrial equation * * * by placing employer and employee on an equal basis.’ Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 385, 106 P.2d 403. To accomplish this purpose the right to develop unions was granted because otherwise ‘the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment.’ § 923, Labor Code. The section declares that it is an affirmative objective of state policy to equalize the bargaining power as between labor and management by means of encouraging the maintenance of effective unions. Any local ordinance that tends to obstruct this policy is directly in conflict with the state act. That is the necessary interpretation of the Porterfield case. The appellant argues that the collective bargaining powers of the unions are not affected by the ordinance, and are as fully effective now as they were before the ordinance was adopted. Such argument completely loses sight of the realities of life as they pertain to the labor-management field. Laws in this field do not operate in a vacuum. The field of labor-management relations is a highly dynamic and realistic one. By prohibiting voluntary agreements relating to union security, the ordinance necessarily and inevitably adversely affects the power of the union to bargain effectively. This is obvious. Effective collective bargaining, so far as labor is concerned, depends upon labor's negotiating agents representing all or most of the workers. Under so-called ‘right to work’ ordinances labor's representatives would no longer be able to speak for all the workers in the field of intrastate commerce. Inevitably, a large portion of the labor force would become non-union. This would result not only because many employers would prefer non-union help and would encourage new employees not to join a union, but because many new employees would not join a labor union for the obvious reason that under the ordinance they would be entitled to all the benefits in working conditions gained by the unions without the necessity of paying union dues. Thus, unions would not only lose the revenue from dues necessary to support their activities, but when it came time to discuss a new contract, management would have a single spokesman while the employees would be divided between union and non-union representatives and would necessarily have to speak through multiple spokesmen. Bargaining strength is necessarily dependent on the employee's ability to act collectively. The net result would be a significant lack of equality in bargaining power.6 This would be in direct conflict with state policy as set forth in section 923.

The conclusion that this ordinance conflicts with the general state law as set forth in section 923 is not affected by the recent Supreme Court decision of Garmon v. San Diego Building Trades Council, 49 Cal.2d 595, 320 P.2d 473. This was a second appeal in this case. On the first appeal the Supreme Court of California had affirmed an injunction and a judgment of damages against the union there involved. Garmon v. San Diego Building Trades Council, 45 Cal.2d 657, 291 P.2d 1. The Supreme Court of the United States ‘vacated’ this determination and ordered the cause remanded for further proceedings. San Diego Bldg. Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618.

In the Garmon case the plaintiff's employees did not belong to a union, and did not desire to join one. The plaintiff employer, for that reason, refused to sign a union shop agreement with defendants. The latter picketed plaintiff's place of business. The majority of the Supreme Court of California found that the picketing was unlawful. The majority reasoned that the picketing was an attempt to force upon plaintiff's employees terms and conditions of employment which they did not want and had specifically rejected. This activity violated the philosophy and policy of the Jurisdictional Strike Act (§§ 1115–1120, Labor Code), a statute not here involved and also violated the policy of section 923 of the Labor Code. There was a strong dissent in the Garmon case joined in by three of the justices, and the United States Supreme Court has granted certiorari in the case.

We do not find it necessary to engage in a lengthy discussion of the Garmon case. Assuming that the law stated in that case by the majority of the court is correct, it is not here even remotely applicable. That case involved a problem in interstate commerce. The instant case deals only with intrastate commerce. That case involved the Jurisdictional Strike Act, the instant one does not. But of even more importance, in the Garmon case all of the employees involved had refused to join the union that was picketing for a closed shop. In the instant case the employees want a union shop agreement and the employer wants a union shop agreement, but both are prevented from entering into such a voluntary agreement by the terms of the ordinance. The Garmon case in no way involved restraints upon labor organizations and employers who voluntarily desired to enter a union shop agreement. It dealt with a form of economic coercion being forced on both the employer and his employees against their wills. The vice of the San Benito ordinance is that it prohibits voluntary agreements in a field where the state has already pre-empted the field by declaring that the public policy of the state favors such voluntary agreements. Thus the Garmon case and the instant one involve not only different facts, but completely different legal principles.

The parties and amici curice argue many other points in their briefs. These need not be discussed because for reasons already stated we are convinced that the trial court correctly decided that the ordinance attempts regulation in a field already fully occupied by state law, and is, therefore, unconstitutional.

The judgment appealed from is affirmed.


1.  See In re Petition of Idaho State Federation of Labor (A.F.L.), 75 Idaho 367, 272 P.2d 707, 708, holding that such a title was so deceptive that it could not be used properly as the title of a proposed initiative measure.

2.  A ‘union shop’ agreement means a contract under which an employer may hire non-union employees, but such employees are required to join the union within a specified time after they are employed. A ‘closed shop’ agreement is a contract under which only union members may be hired.

3.  There is a disagreement between commentators on this subject. Berke and Brunn in an article ‘Local Right to Work Ordinances' in 9 Stanford L.Rev. 674, take the position that the above-quoted section clearly demonstrates that Congress did not occupy the field of regulation of compulsory unionism. On the other hand, Finman in ‘Local ‘Right to Work’ Ordinances: A Reply' in 10 Stanford L.Rev. 53, comes to a contrary conclusion. See also United Const. Workers, affiliated with United Mine Workers of America v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; Garmon v. San Diego Building Trades Council, 49 Cal.2d 595, 320 P.2d 473, certiorari granted by U. S. Supreme Court generally discussing the problem as it relates to organizations involved in interstate commerce. The parties and amici curiae also discuss the question of whether the permission granted by the quoted section to states and territories includes counties, which are, of course, legal and political subdivisions of the state for purposes of government. 13 Cal.Jur.2d p. 347, § 2. The trial court in the instant case, in support of its holding that the federal government had pre-empted the field, held that political subdivisions are not included within the grant of power to state and territories. Certainly the normal and customary construction of ‘State Law’ encompasses county ordinances. There is nothing in the legislative history of the Taft-Hartley Act or in the Act itself to indicate that Congress left the field open for state legislation but pre-empted it as to county legislation.

4.  A ‘yellow dog’ contract, definitely anti-union, is an agreement between an employer and his employee that the employer will maintain his business on a ‘non-union’ basis, and that the employee will not join a labor union during term of his employment.

5.  There can be no doubt that a state constitutional or a state statutory enactment containing right to work provisions does not violate the United States Constitution. They constitute a proper exercise of the police power, even though they invalidate existing union security contracts and operate to weaken the bargaining power of unions. Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co. (Whitaker v. State of North Carolina), 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212, upholding a Nebraska constitutional amendment and a North Carolina statute, and American Federation of Labor Arizona State Federation of Labor v. American Sash and Door Co., 335 U.S. 538, 69 S.Ct. 260, 93 L.Ed. 222, upholding an Arizona constitutional amendment. In their briefs and on oral argument counsel place reliance on the state court decisions involving the Arizona constitutional provision (67 Ariz. 20, 189 P.2d 912), and the Nebraska constitutional provision (149 Neb. 507, 31 N.W.2d 477). Those cases do not involve in any way the problem with which we are here concerned. They involve, solely, the question as to whether the state constitutional provisions violated the provisions of the federal Constitution. It was held that they did not in that they were a proper exercise of the police power. In the present case we assume that the ordinance would be valid unless it operates in a field already occupied by the state. Obviously, this is an entirely different question than the one presented in the cited cases. They are not relevant on the issue here involved.

6.  This is not a mere surmise or conjecture. The Supreme Court has recognized that union security arrangements are of basic importance to the maintenance of equality in bargaining power. Thus in McKay v. Retail Automobiles Salesmen's Local Union, No. 1067, 16 Cal.2d 311, 326, 106 P.2d 373, 381, the Supreme Court states: ‘The closed union shop is an important means of maintaining the combined bargaining power of the workers.’ In Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 388, 106 P.2d 403, 408, the same court stated that ‘the right of workmen to organize for the purpose of bargaining collectively would be effectually thwarted if each individual had the absolute right to remain ‘unorganized.” Obviously, the court may properly take judicial notice of these economic facts.

PETERS, Presiding Justice.

BRAY, J., and ST. CLAIR, J. pro tem., concur.

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