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District Court of Appeal, Fourth District, California.

Ross MESSNER, Plaintiff and Respondent, v. JOURNEYMEN BARBERS', HAIRDRESSERS' AND COSMETOLOGISTS' INTERNATIONAL UNION OF AMERICA, LOCAL 256 and Frank Butler, Defendants and Appellants.*

Civ. 6127.

Decided: September 02, 1959

Todd & Todd, by Henry C. Todd, San Francisco, for appellants. Gray, Cary, Ames & Frye, San Diego, for respondent.

This is an appeal from a judgment granting an injunction enjoining appellants from picketing a barber shop (plaintiff's place of business), inducing or attempting to induce persons to refrain from entering therein to compel respondent to execute a contract with the Union under which all barbers working therein would join the Union, including the shop owner and his employees.

This case arose as a result of peaceful picketing of the plaintiff's barber shop during the days on and near July 29, 1957, by defendant Union. The factual background is that appellant Union, acting through its local representative, appellant Butler, commenced, in April, 1957, to call upon plaintiff, demanding that plaintiff sign a union-shop contract. Under the proposed contract plaintiff would be required to compel all of his employee barbers, none of whom belonged to the Union, to join the Union or be subject to discharge, and would himself be required to take like membership. Each of plaintiff's employees stated he had no desire to join any union. Appellant Butler subsequently repeated his demands and about July 25, 1957, presented a final demand for signature to said agreement. Plaintiff refused and about July 29, 1957, the Union started picketing plaintiff's barber shop. After a few days the picketing was stopped on stipulation of counsel pending the results of the present litigation. Wages and working conditions do not appear to be an issue in the picketing. In conjunction with said picketing an indeterminate number of patrons failed to enter the shop, and in addition, appellants induced the management of the hotel in whose building the barber shop was located to close the inside door between the barber shop and the hotel lobby with resulting inconvenience and probable loss of some customers. By means of said picketing appellants interfered with respondent's business and his relationship with his customers to his detriment. The evidence clearly shows that appellants intended to and did interfere with respondent's business for the purpose of compelling respondent himself to join the Union and to coerce his employees against their will to join the Union.

The various contentions of appellants are largely disposed of by two cases recently decided by the Supreme Court of California. They are Retail Clerks' Union, etc., v. Superior Court, 52 Cal.2d 222, 339 P.2d 839; and Chavez v. Sargent, 52 Cal.2d 162, 339 P.2d 801.

Preliminarily, it should be noted that there is no substantial contention in this case that a conflict ‘arguably’ exists between the state and federal jurisdictions. Since this is so, it is clear that the state courts have jurisdiction and that the rules of National Labor Relations Board priority, as expressed in San Diego Building Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618; and San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, do not apply. Grunwald-Marx, Inc. v. Los Angeles Joint Board, 52 Cal.2d 568, 343 P.2d 23; Riviello v. Journeymen Barbers, etc., Union, 1948, 88 Cal.App.2d 499, 500, 199 P.2d 400, 404.

The legislature of the State of California has clearly enunciated the policy of this state respecting the right of the individual to work and to be free from coercion in his selection of the bargaining agent, and the repetition herein of that policy is worthwhile. The California Labor Code provides:

‘Sec. 923. ‘Declaration of public policy. In the interpretation and application of this chapter, the public policy of the 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.’

Sec. 1122. ‘Employee group financed or dominated by employer: action for damages. Any person who organizes an employee group which is financed in whole or in part, interfered with or dominated or controlled by the employer or any employer association, as well as such employer or employer association, shall be liable to suit by any person who is injured thereby. Said injured party shall recover the damages sustained by him and the costs of suit.’

‘Sec. 1116. ‘Injunction; damages. Any person injured or threatened with injury by violation of any of the provisions hereof shall be entitled to injunctive relief therefrom in a proper case, and to recover any damages resulting therefrom in any court of competent jurisdiction.’

The Chavez case discusses and analyzes the various authorities which impinge or apparently impinge upon the whole subject. The Supreme Court there points out that its former opinions in McKay v. Retail Auto. S. L. Union No. 1067, 16 Cal.2d 311, 106 P.2d 373; and C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414, ‘have been superseded to the extent that they are inconsistent with the Jurisdictional Strike Law’. Quoting from Senn v. Tile Layers P. Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, the Chavez decision also says [339 P.2d 824, 827, 828, 832]:

“Whether it was wise for the State to permit the unions to do so (picket) is a question of its public policy—not our concern. The Fourteenth Amendment does not prohibit it.' Thus a state may impose limitations upon picketing or other concerted action if the ‘end sought’ is not permissible under state law and public policy * * *'

The Chavez case further quotes from 4 Restatement, Torts, p. 135:

“An act by an employer which would be a crime or a violation of a legislative enactment or contrary to defined public policy is not a proper object of concerted action against him by workers.'

‘Section 923 in proscribing employer interference with the freedom of his workmen to act as they choose in labor organization matters makes no distinction between organized and unorganized workmen. The freedom of the workmen from employer influence is the same in both cases.

‘Pressure by a union or its organizers to compel an employer, whose employees are not organized and do not wish to be organized, to execute a closed or union shop agreement with the unauthorized union, is essentially a jurisdictional dispute pressure. The object of such pressure is not to gain security protection in respect to an existing collective bargaining contract or for the employees' authorized labor organization; rather, its objective is to secure jurisdiction over (to displace and replace through employer compulsion) an employer-employee relationship to which the union is not a party. It is clear that this type of concerted activity—this objective—is contrary to the policy of California * * *

‘Section 1122, being in pari materia with sections 921 and 923 and further implementing the policy therein established, provides additional protection of the individual workman, ‘Any person who organizes an employe group which is financed in whole or in part, interfered with or dominated or controlled by the employer or any employer association * * * shall be liable to suit by any person who is injured thereby.’ (Lab.Code, § 1122; Italics added.) The proscription in this language extends not alone to the act of organizing an employe group financed by an employer but also to organizing any group of employes wherein the act of organizing such group, i. e., obtaining the consent of the employes to join in the organization, is either ‘interfered with or dominated or controlled by the employer.’ Each of the quoted words must be presumed to have been used intelligently and designedly and for an express purpose by the Legislature. (Clements v. T. R. Bechtel Co. (1954), 43 Cal.2d 227, 233 [9], 273 P.2d 5; Read v. Rahm (1884), 65 Cal. 343, 4 P. 111; Bakersfield Home Bldg. Co. v. J. K. McAlpine etc. Co. (1938), 26 Cal.App.2d 444, 448 [2], 79 P.2d 410.) For an employer to notify his employes that he has agreed with a union which is, and which he knows to be, unauthorized and unwanted by his employes, that they must join such union and be represented by it or be dismissed from employment would appear to constitute an unlawful interference by the employer and subject him to the liability imposed by section 1122. * * *

‘An agreement freely negotiated and voluntarily accepted by and between a union and an employer is likely to be mutually respected and, assuming lawful objectives, can be specifically enforced through arbitration or court action, if the impelling forces of self-respect, honesty and public opinion prove insufficient. Such an agreement can scarcely be reached, and the climate for its duration will likely be unpleasant, if it is the product of coercion starting with a jurisdictional assault. And the combat is no less in truth jurisdictional where the assault is made by an organizer upon a relationship between an employer and his satisfied unorganized or self-organized employes than where the attack is on a formally organized union-employer agreement * * *.

‘From the preceding discussion it appears that section 923, by its terms in context with the in pari materia statutes, recognizes and encourages collective bargaining contracts which result from ‘voluntary agreement between employer and employees' but forbids an employer (whether acting alone or in concert with an unauthorized union or organizer who has not been chosen by a majority of the freely participating workmen he seeks to represent) from coercing his unwilling employes to accept a particular union or person as their bargaining agent. If it is unlawful for the employer to so coerce his employes it must also be unlawful for him to agree that he will coerce them to that end. Mistakenly calling such a compact a ‘union security’ agreement does not alter its character * * *.

‘Although the Legislature has not stated what procedures as to the attainment of union designation or authorization can or shall be followed by a union which represents some but not all of the employes of an employer, who may or may not desire union representation, it has unequivocally declared a general policy favoring the right of voluntary organization and voluntary security measures and forbidding coercion or compulsion of employes by employers in the choosing of representatives.’

It seems apparent to us that the trial court's conclusion in its memorandum that ‘In essence, defendants in general are requesting that this court permit them to continue their efforts to injure plaintiff's business. As pointed out by plaintiff, if they wish to continue because they hope for success, they are not entitled to ask the court to assume that they cannot succeed’ is correct, and that the rules governing a matter of this character are adequately and succinctly set forth by our Supreme Court in its discussion in the Chavez case, and that we are bound by those expressions. We see no value in reviewing the numerous cited cases as they have already been thoroughly analyzed by our Supreme Court in the Chavez case.

The judgment is affirmed.

SHEPARD, Justice.

GRIFFIN, P. J., and MUSSELL, J., concur.

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