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

DIRECTORS GUILD OF AMERICA, INC., a corporation, Joseph C. Youngerman, Morris R. Abrams, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Joseph P. BYRNE, Real Party in Interest.

Civ. 29393.

Decided: June 24, 1965

Youngman, Hungate & Leopold, Richard Hungate and David E. Lindgren, Los Angeles, for petitioners. No appearance for respondent. Richard W. Lund and John S. Welch, Los Angeles, for real party in interest.

Directors Guild of America, Inc., and its officers seek a writ of prohibition to prevent further proceedings in an action for damages and injunctive relief against them now pending in the Superior Court of Los Angeles County. The application is based upon the contention that the court lacks jurisdiction in that the acts complained of in the complaint are arguably protected or prohibited conduct under the National Labor Relations Act and that exclusive jurisdiction over the cause rests in the National Labor Relations Board.

In the superior court action (Joseph P. Byrne, Plaintiff, v. Directors Guild of America, Inc., a California corporation; Joseph C. Youngerman; Morris R. Abrams, Defendants, No. 853556), plaintiff alleges that for a number of years he has been employed by Stage Five Productions, Inc., in various capacities, including that of actor, production assistant, and script supervisor; that Stage Five is now, and for many years has been, engaged in the production of the weekly television series known as ‘The Adventures of Ozzie and Harriet’; that in August 1964 Stage Five determined to employ him in the capacity of second assistant director, they so advised defendants and requested the defendants to admit plaintiff into membership in the defendant Guild; that the Guild is a labor union representing directors, assistant directors, and other classifications of employees in the motion picture, television, radio and similar entertainment industries; that on or about September 1, 1964, plaintiff duly made application to the Guild for membership therein, tendered the prescribed initiation fee and one year's dues in the total amount of $600, and performed all conditions set forth in the constitution and bylaws as a condition of membership; that on the same day the defendants refused to permit plaintiff to become a member of defendant Guild and returned to him the amount he had tendered. Plaintiff asserts that Stage Five then notified the Guild that it proposed to employ plaintiff in the capacity of second assistant director notwithstanding the refusal to admit plaintiff to membership; that defendants then threatened Stage Five that they would call its first assistant director off the job if it used plaintiff in such capacity; that on September 11, 1964, defendants delivered to each of the members of the Guild a letter advising them that Stage Five proposed to employ plaintiff as a second assistant director beginning September 14, 1964, and that plaintiff was not a member of the Guild, concluding with this statement: ‘Your attention is called to Article IX, Subparagraph 6 of the Guild's Bylaws which provide as follows: ‘No Guild member shall work with any director, assistant director, associate director, stage manager, and/or program production assistant who is not a member of the Guild in good standing, nor shall he work with a non-member doing the work of a director, and/or assistant director, and/or associate director, and/or stage manager, and/or program production assistant.’' It is alleged that defendants maintain closed shop conditions in the entertainment industry ‘by oral agreement of many producers that they will only employ directors or assistant directors who are members of defendant and by threats by defendants Youngerman and Abrams to the remaining producers that they will be faced with strikes, and/or picketing, and/or other labor troubles if they do not cooperate with the defendant Guild by employing as directors or assistant directors only persons who are members of the defendant Guild’; that defendants at all necessary times effectuate the above-quoted provisions of article IX of the bylaws.

The additional allegation is made that the Guild ‘maintains in effect a closed union, that is, it does not admit into membership all qualified individuals but only accepts into membership such individuals as the defendants arbitrarily determine so to admit. Plaintiff is informed and believes and therefore alleges the fact to be that for a number of years the defendant Guild has refused to accept into membership all individuals except those who are relatives of existing members of those who the defendants Youngerman and Abrams decide to have admitted for reasons of personal friendship or favoritism.’

Plaintiff alleges that as a result of the coercive action of defendants, ‘Stage Five was fearful that its production would be interrupted if it did use plaintiff as a Second Assistant Director, * * * solely becaue of such action by the defendants, on or about September 14, 1964, Stage Five did refuse, and has continuously refused, to employ plaintiff in such capacity, and did employ another individual as Second Assistant Director’; that beginning September 14, 1964, plaintiff was employed by Stage Five as a script supervisor; that the compensation paid by Stage Five to a second assistant director is $100 a week greater than that paid plaintiff as a script supervisor and that plaintiff has therefore suffered a loss of earnings in the amount of $100 a week for each of the twenty-six weeks Stage Five will be in production this season, or a total of $2,600. Plaintiff further avers that he has been damaged in an amount of not less than $50,000 by the action of defendants in that the position of second assistant director furnishes training for the positions of first assistant director, director, and other responsible positions at much higher salary than that paid a second assistant director.

Count II of the complaint is directed to defendant Youngerman, the National Executive Secretary of the Guild, and to Abrams, his assistant. It incorporates the allegations of the first count, and alleges that said defendants by such conduct tortiously interfered with and prevented plaintiff from being able to enter into such advantageous employment contract with Stage Five. Plaintiff alleges that defendants have continued to the date of said complaint to refuse to accept plaintiff into membership and to coerce Stage Five into refusing to employ plaintiff as second assistant director, and seeks injunctive relief in these respects. He also claims that the action of defendants was malicious and seeks punitive damages in addition to general damages.

After defendants' special demurrer was overruled, a motion was filed on March 29, 1965, by defendants Directors Guild and Abrams for an order dismissing the complaint and for a summary judgment. It is argued therein that the complaint charges defendants with the commission of an unfair labor practice within the meaning of the National Labor Relations Act, over which the National Labor Relations Board has exclusive jurisdiction under the preemption doctrine as enunciated in San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, and Fullerton v. International Sound Technicians, 194 Cal.App.2d 801, 15 Cal.Rptr. 451. In support of the motion a declaration was filed by which it was shown that plaintiff, on March 9, 1965, filed a charge against these defendants with the National Labor Relations Board, complaining that they had engaged in unfair labor practices within the meaning of certain provisions of section 8 of the National Labor Relations Act (29 U.S.C.A. § 158). A copy of the charges so filed is attached to the declaration and shows that the alleged unfair labor practices arose out of the same facts alleged in the complaint filed in this action. It is also therein alleged by plaintiff that his employer, Stage Five Productions, Inc., is engaged in an industry affecting commerce, and that defendants' alleged conduct constitutes unfair labor practices under the National Labor Relations Act. This charge is still pending and no final disposition has been made.

By stipulation, defendant Youngerman on April 28, 1965, joined in said motion to dismiss and for a summary judgment, and on said date respondent court denied the motion. In the court's minute order, it is stated: ‘While Congress has preempted the field of unfair labor practices, there are certain areas of labor union relations specifically excluded from National Labor Relations Board jurisdiction. As pointed out in the Gonzales case, the retention of membership in a labor organization is a matter within the exclusive jurisdiction of the State Court, citing 29 U.S.C. § 158(b)(1). International Association of Machinists v. Gonzales, 326 U.S. 617 [78 S.Ct. 923, 2 L.Ed.2d 1018].

‘Under the above cited section of the NLRA the labor organizations are not subject to NLRB jurisdiction for internal practices ‘with respect to the acquisition or retention of membership therein.

‘The complainant in the instant case alleges that the defendant labor organization has unlawfully withheld the right to membership from him. This would seem to bring the complaint under the Gonzales ruling.

‘While there may be other issues raised which come within the cxclusive jurisdiction of the NLRB a partial summary judgment for defendant is not contemplated by CCP 437c. Witkin, 2 Cal. Proc. 1717.’

The petition herein for a writ of prohibition was then filed wherein petitioners1 contend that the acts of which plaintiff complains in his complaint are unfair labor practices within the purview of section 8(b) of the act.2

Plaintiff contends that ‘there is no preemption removing the Superior Court from all jurisdiction in this matter unless it is found that the entire case of plaintiff, * * * is within the exclusive jurisdiction of the NLRB. Contrariwise, if any phase of plaintiff's complaint is not within the exclusive jurisdiction of the NLRB, the Superior Court has jurisdiction.’ Thus, plaintiff does not contend that the state court has jurisdiction over his entire claim; rather, his position is that defendant must show that no part of the conduct complained of may be remedied by a state court. Reliance is placed upon Grunwald-Marx, Inc. v. Los Angeles Joint Board, 52 Cal.2d 568, 343 P. 2d 23. In that case the union had contended that whenever there is a mere possibility of potential conflict between the substantive laws, remedies or procedures of the state and federal authorities, the National Labor Relations Board preempts jurisdiction. As to this contention, the court stated (p. 584, 343 P.2d p. 32): ‘That assertion is too broad. The real test is to ascertain the nature of the activity or conduct that is involved.’ (Emphasis added.) We think that, likewise, plaintiff's above contention herein is too broad. As the court in Grunwald-Marx states: ‘The Supreme Court of the United States was most careful to point out that in cases of violent conduct or threats to the peace, state courts have jurisdiction. Reference is also made to an area ‘where the activity regulated was a merely peripheral concern of the Labor Management Relations Act.’ These are referred to as situations touching interests ‘deeply rooted’ in ‘local feeling’ or ‘responsibility.’ As to these, state jurisdiction is retained.' Grunwald-Marx involved the breach of a collective bargaining agreement and refusal to arbitrate and, as the court points out, ‘[s]uch conduct does not involve a violation of sections 7 or 8 of the act.’ The court states at page 585, 343 P.2d at page 32: ‘We emphasize that this is not a situation where the same act constituting a breach of contract is also an unfair labor practice. As to such a situation we express no opinion.’

Plaintiff relies principally upon the case of International Ass'n of Machinists v. Gonzales, supra, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. Under the principles declared in that case, state courts have jurisdiction over purely internal union matters. Gonzales was a suit against a labor union by an individual who claimed that he had been expelled in violation of his contractual rights and who was seeking restoration of membership. He also sought consequential damages flowing from the expulsion, including loss of wages resulting from loss of employment and compensation for physical and mental suffering. It was recognized in that case that restoration of union membership was a remedy that the National Labor Relations Board could not afford and that, in fact, the internal affairs of unions were not in themselves a matter within the board's competence. The court states (p. 620, 78 S.Ct. p. 925): ‘But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8(b)(1) of the Act states that ‘this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.’ 61 Stat. 141, 29 U.S.C. § 158(b)(1). The present controversy is precisely one that gives legal efficacy under state law to the rules prescribed by a labor organization for ‘retention of membership therein.’ Thus, to preclude a state court from exerting its traditional jurisdiction to determine and enforce the rights of union membership would in many cases leave an unjustly ousted member without remedy for the restoration of his important union rights.' The court then went on to hold that, in the presence of admitted state jurisdiction to order restoration of membership, the state was not without power ‘to fill out this remedy’ by an award of consequential damages, even though these damages might be for conduct that constituted an unfair labor practice under federal law; that the Taft-Hartley Act did not require mutilation of ‘the comprehensive relief of equity.’

It is clear that the Gonzales decision turned on the court's conclusion that purely internal union matters were involved. It is stated that the petition alleged a breach of contract between the union and plaintiff; that no charge of unfair labor practices appeared in the petition (p. 621, fn. 1, 78 S.Ct. 923). The court points out the ‘important distinction’ between the purposes of federal and state regulation when it states (pp. 621–622, 78 S.Ct. p. 926) that ‘the subject matter of the litigation in the present case, as the parties and the court conceived it, was the breach of a contract governing the relations between respondent and his unions. The suit did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under § 8(b)(2).’

In San Diego Bldg. Trades Council etc. v. Garmon, supra, 359 U.S. 236, page 244, 79 S.Ct. 773, page 779, the court states: ‘When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.’ Further (pp. 244–245, 79 S.Ct. p. 779): ‘At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.’ The court further says (p. 247, 79 S.Ct. p. 781): ‘It is true that we have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. [Citations.] We have also allowed the States to enjoin such conduct. [Citations.] State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overriden [sic] in the absence of clearly expressed congressional direction. We recognize that the opinion in United Construction Workers, etc. v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 835. 98 L.Ed. 1025, found support in the fact that the state remedy had no federal counterpart. But that decision was determined, as is demonstrated by the question to which review was restricted, by the ‘type of conduct’ involved, i. e., ‘intimidation and threats of violence.’ In the present case there is no such compelling state interest.'

With reference to its holding in the Garmon case, the Supreme Court, in Local 100 of United Association of Journeymen and Apprentices v. Borden, 373 U.S. 690, 693–694, 83 S.Ct. 1423, 1425, 10 L.Ed.2d 638, states: ‘This Court held in San Diego Bldg. Trades Council v. Garmon * * * that in the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8 of the National Labor Relations Act. This relinquishment of state jurisdiction, the Court stated, is essential ‘if the danger of state interference with national policy is to be averted,’ 359 U.S., at 245, 79 S.Ct., at 780 and is as necessary in a suit for damages as in a suit seeking equitable relief. Thus the first inquiry, in any case in which a claim of federal preemption is raised, must be whether the conduct called into question may reasonably be asserted to be subject to Labor Board cognizance.' (Emphasis added.) The court, in the Borden case, points out at page 697, 83 S.Ct. at page 1427 that, in contrast to the lawsuit in Gonzales which ‘was focused on purely internal union matters, i.e., on relations between the individual plaintiff and the union not having to do directly with matters of employment,’ the action involved in Borden was focused on the union's actions with respect to Borden's efforts to obtain employment; that the crux of the action ‘concerned Borden's employment relations and involved conduct arguably subject to the Board's jurisdiction.’

Plaintiff contends that the basis of his complaint is that the defendant union has refused to admit him into membership, and that he seeks a decree requiring the union to admit him into membership; that the state court has exclusive jurisdiction over that portion of his complaint and, apparently, that it may then award consequential damages to ‘fill out this remedy’ pursuant to the Gonzales case. He states that ‘this is true even though unfair labor practices are arguably involved.’ It would appear that the real gist of the action is that the Guild maintains, in effect, closed shop conditions in the entertainment industry, and at the same time maintains a closed or partially closed union, and that by coercion the Guild has caused the employer to refuse to employ him as a second assistant director. This is the evil condemned by the state court in James v. Marinship Corp., 25 Cal. 2d 721, 743, 155 P.2d 329, 160 A.L.R. 900, upon which plaintiff relies. It is to be noted that the court, in the last cited case, specifically pointed out that section 158 of 29 U.S.C.A., as it existed at that time, embraced only ‘such unfair labor practices as are committed by employers. There is no reference to acts of employees or members of labor unions, and the board is not given jurisdiction to prevent such acts.’ Subsequent to that decision in 1944, section 158 was amended (1947) by stating what were unfair labor practices by a union as well as by an employer (fn. 2, p. 249).

International Sound Technicians, etc. v. Superior Ct., 141 Cal.App.2d 23, 296 P.2d 395, involved a complaint by which plaintiff Fullerton, in the first count, sought (1) a mandatory injunction requiring the union to admit him to membership, and (2) to enjoin the union and employers from requiring him to be a member of the union as a condition to being employed by said employer-defendants so long as the union denied him membership therein. The court granted a writ of prohibition enjoining the superior court from taking any proceedings under this cause. At page 28, 296 P.2d page 398, the court states: ‘There can be no doubt that the facts alleged in the First Cause of Action of Fullerton's complaint, if proven, would establish an unfair labor practice on the part of the Union in that it has, while denying Fullerton membership in the Union, prevented him from securing employment because of his nonmembership in the Union; and it is also clear that the relief which Fullerton seeks by his First Cause of Action is the same relief which the National Labor Relations Board is empowered to give by section 10 of the Act.’

This case was again before this court in Fullerton v. International Sound Technicians, supra, 194 Cal.App.2d 801, 15 Cal.Rptr. 451, after the trial court dismissed the second and sixth causes of action of the complaint upon the ground of federal preemption. Both of these causes sounded in tort, under which plaintiff Fullerton sought damages based upon allegations that the defendants' conduct was a violation of section 8 of the act, and in addition that it constituted a wrongful interference with plaintiff's right to work in violation of state statute and constitutional provisions. The court therein states (pp. 808–809, 15 Cal.Rptr. pp. 455–456): ‘While plaintiff has pleaded that the acts of defendant Union constitute a tort under our Civil Code and the Federal Constitution, for which he seeks damages, it is clear from the face of the complaint, and certainly not subject to argument, that the same union activity also constitutes an unfair labor practice under and contrary to Section 8 of the Act. Thus it is apparent from the language of the Supreme Court in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546, and San Diego Bldg. Trades Council etc., v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, plaintiff having specifically pleaded the acts of defendant Union to be contrary to Section 8 of the Act, that he has brought his case directly within the purview of Board jurisdiction; it is well settled that where the activity involved, for which redress is sought, is within the jurisdiction of the National Labor Relations Board, state courts must defer to the primary jurisdiction of the Board. Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228. As to when the activity comes within the Board's jurisdiction, the Supreme Court has summarized the rule in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, at page 488, 99 L.Ed. 546: ‘But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.’ This rule is restated in San Diego Bldg. Trades Council etc., v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, at page 782: ‘When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield’; and again, 359 U.S. at page 245, 79 S.Ct. at page 780, 3 L.Ed.2d at page 783: ‘When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.’' The court further states that the additional allegation of a tort under state law does not aid state court jurisdiction if the same activity, absent threats of force or violence, constitutes an unfair labor practice. Plaintiff herein claims that the Fullerton case is inapplicable since it was there specifically alleged in the complaint that the conduct was in violation of section 8 of the act.

It would seem, however, that the within complaint upon its face alleges union activity which is ‘arguably subject’ to and prohibited by section 8 of the act, and under the above-cited authorities state jurisdiction is thereby displaced.3

Let the peremptory writ issue as prayed.


1.  For convenience, petitioners hereinafter will be referred to as ‘defendants,’ and real party in interest as ‘plaintiff.’

2.  Section 8 of the act sets forth what are ‘Unfair labor practices.’ In subdivision (b) thereof it is provided: ‘It shall be an unfair labor practice for a labor organization or its agents—— ‘(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; * * * ‘(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; * * * ‘(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment * * * to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—— * * * (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: * * *.’

3.  It should be pointed out that there are no specific allegations by either party that the employer here involved is engaged in interstate commerce. Plaintiff makes no contention to the contrary and, as indicated, has asserted in the claim filed with the National Labor Relations Board, which is a part of the record, that such is the case.

FRAMPTON,* Justice pro tem.