RUBIN v. AMERICAN SPORTSMEN TELEVISION EQUITY SOCIETY (1951)

The complaints allege that respondents (plaintiffs) are promoters of professional wrestling matches, licensed by the State Athletic Commission; Harry Rubin conducting such matches on certain evenings in the Long Beach Municipal Auditorium, and Mike Hirsch conducting similar matches at Ocean Park Arena. It is averred that the appellant American Sportsmen Television Equity Society, not a bona fide labor organization and not affiliated with either the American Federation of Labor, the Congress of Industrial Organizations, or other parent organization, and the officers thereof, conspired to injure plaintiffs' business in the promotion of wrestling matches. The complaints further allege that appellants attempted to coerce the respondents into signing agreements to only use wrestlers who are or will become members of or affiliate with appellant Society, and for that purpose unlawfully picketed the wrestling matches, and threatened that respondents would be boycotted and picketed.

Other allegations of the complaint are that no employer-employee relation exists between respondents and professional wrestlers but that the wrestlers are paid for performances as independent contractors under regulations of the State Athletic Commission, and that respondents exercise no control over manner or method of the wrestling performances. It is also alleged that respondents had entered into written agreements with certain corporations granting the privilege to televise the wrestling matches; that ‘For the television rights of wrestlers performing in said televised matches, said corporation pays a compensation directly to said wrestlers'. Respondents ‘emphasize the proposition that insofar as the televising of wrestling matches is concerned, that no economic relationship of any kind exists between respondents and the wrestlers'.

It is also alleged that none of the wrestlers, whose performances are televised, ‘are members of nor have they contracted with’ the appellant Equity Society, and that the wrestlers ‘are among the foremost and so called top name wrestlers in the United States'; that respondents had refused to sign any agreement to only use wrestlers who are members or become affiliates of the corporate appellant, and that no labor controversy or dispute exists between respondents and said wrestlers. Damage in the loss of business and patronage resulting from appellants' picketing activities is alleged.

Appellants filed no answers to the complaints, demurrers thereto were overruled; preliminary injunctions as prayed for in the complaints were granted after extended arguments in reference thereto. Motions to dissolve the preliminary injunctions and for stay pending appeal, were denied. A writ of supersedeas was also denied.

In opposition to the applications for preliminary injunction, counter affidavits were filed by appellant Lou Goodman, president of appellant Equity Society, and by Ed Don Lewis, appellant and wrestler. Respondents submitted the affidavit of 11 wrestlers to the effect that such wrestlers were independent contractors and not employees; that no social security or unemployment deductions were made from compensation, and that plaintiffs exercised no control over the wrestlers' methods of performance or results to be obtained in the wrestling matches.

Appellants' general position is stated in the following words: ‘The appellants acknowledge having picketed substantially as alleged except for the characterizations of conspiracy, illegality, falsity, etc. They assert their right to picket under the constitutions and laws of this State and of the United States.’

The first point raised in appellants' brief asserts the right to picket even ‘if it be true that there is no labor dispute between respondents and the wrestlers'. In support of this proposition is cited C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414, 419, where it is said that ‘the term ‘labor dispute’ is not the criterion for decision of this case under California law'. However, as pointed out in respondents' brief, that case does not involve a situation comparable with the present controversy, merely holding that ‘Peaceful picketing is commonly used by unions to advertise labor's grievances and may not be enjoined when the purpose is reasonably connected with a controversy which affects workers in an industry generally as well as those employed by the person against whom it is directed’. Appellants' second point, citing the same case, avers that ‘if it be true that none of the wrestlers employed by respondents is a member of Television Equity that does not render the picketing tortious'.

Point III of appellants' brief, argues that ‘if it be true that the wrestlers who perform for respondents are independent contractors and not their employees, that does not render the picketing tortious or subject to suppression by injunction’. Citing Emde v. San Joaquin County Central Labor Council, 23 Cal.2d 146, 143 P.2d 20, 150 A.L.R. 916; Riviello v. Journeymen Barbers Union, 88 Cal.App.2d 499, 199 P.2d 400, and Bautista v. Jones, 25 Cal.2d 746, 155 P.2d 343, 348, it is stated that ‘Picketing and other concerted labor activity to enroll independent contractors as union members and bring about observance of uniform working conditions are recognized as legitimate’. Again it may be said that the cases cited in no manner resemble the present situation, nor do any of them purport to justify picketing under circumstances at all analogous to those here presented. In the main, such cases merely reiterate certain well recognized rules appertaining to labor controversies about which there is little if any dispute.

In Bautista v. Jones, supra, while recognizing the rule that ‘the intentional interference by union labor with the advantageous economic relations of others is not tortious provided the means used are peaceful and truthful and the object sought to be accomplished has reasonable relevance to labor conditions', the reviewing court affirmed a judgment enjoining a milk drivers union from coercing or preventing milk brokers from supplying plaintiff independent milk distributors with milk products, concluding that the purpose of the union was unlawful and not reasonably related to legitimate activities of labor unions.

In the instant case, respondents call attention to the fact that ‘The complaints and the affidavits disclose that no labor dispute at all exists between respondents and the relevised wrestlers, or between respondents and appellants (or even between appellants and the televised wrestlers). If any labor dispute exists (which we do not concode) between appellants and any entity, that entity would be the corporation which paid the wrestlers for being televised.’. In this connection it will be remembered that respondent promotors had granted to such a corporation the privilege to televise wrestling matches, which corporation paid a compensation directly to said wrestlers.

Respondents' brief likewise notes that respondents' auditoriums ‘were not picketed because the televised wrestlers refused to join appellant corporation (Equity Society)’, but ‘because respondents refused to negotiate with appellant corporation as the self-constituted bargaining agent for the wrestlers, when being televised’. There is no showing that appellants tried to enroll any of the televised wrestlers in the Equity Society either as independent contractors or otherwise, ‘or that appellants were blocked from so doing by any act of respondents. All the affidavits of Goodman and Lewis show is that appellants attempted to force an agreement from respondents that the latter would use only, in matches promoted by them, wrestlers who were members of appellant (Equity) corporation’.

It is argued in appellants' brief that ‘There is no substantial evidence to support any findings that the wrestlers are independent contractors rather than employees'. Since no testimony was taken, the injunctions in question being founded on the sworn allegations of the complaints and upon affidavits, substantial basis to support the trial court's decision must be found therein. Appellants saw fit not to file answers to the complaints but did present counter affidavits setting forth the matters relied upon. All these papers were before the trial court and the various issues appear to have been fully argued. That the issue of the wrestlers' status is fairly raised in the complaints can hardly be doubted; it is directly alleged that ‘the relationship of employer and employee does not now, and never has existed between said professional wrestlers and’ respondents, and that respondents ‘exercise no control over the manner or method of the wrestling performances'. This is denied by appellants who presented affidavits intended to convince the trial court that respondents were wrong.

The situation in this respect is analogous to that involved in a trial where conflicting evidence is before the court. The trial court after considering both sides of the controversy, saw fit to grant the injunction and by implication found that respondents' allegations were true. As said in Bautista v. Jones, 25 Cal.2d 746, 754, 155 P.2d 343, 348, in the concurring opinion of Edmonds, J., ‘the evidence compels the findings upon which the injunction was ordered, or taking the position most favorable to the appellants, the decision of the trial court rests upon conflicting evidence which places the determination beyond the reach of an appellate tribunal’. The same may be said in respect to appellants other similar assertions that respondents' charges of conspiracy, and that the Equity Society is not a bona fide labor organization, etc., are not supported by proper evidence.

Under allegations contained in the sworn complaints and supporting affidavit, a case was made out which would furnish justification for preliminary injunctive relief, a non-labor controversy involving activities on the part of appellants which threaten damage to the respondents' business in promoting wrestling matches, and which activities were for the purpose of coercing respondents into agreeing to only use wrestlers affiliated with appellant Equity Society. Despite the counter affidavits and arguments of appellants, it cannot be said that the trial court was wrong in granting the preliminary injunctions, whatever result may finally be reached after a trial of the case upon its merits. Appellants have been unable to cite any case dealing with a situation analogous to that here presented, and no merit is found in any of appellants' contentions.

The orders appealed from are affirmed.

I dissent:

Since peaceful means were adopted by the unionists in their picketing, such action was lawful if reasonably relevant to working conditions and the purposes of collective bargaining. That the activities of appellants were so relevant is established by the case of C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 394, 106 P.2d 414, and cases therein cited. I would therefore reverse the orders appealed from.

DORAN, Justice.

DRAPEAU, J., concurs.