PARK TILFORD IMPORT CORPORATION v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS WAREHOUSEMEN AND HELPERS OFAMERICA LOCAL NO 848 (1944)

Plaintiff, a New York corporation engaged in the manufacture, importation and sale of alcoholic beverages, maintains its local and western division offices in Los Angeles. All of its merchandise in California is brought into the state. Four per cent of the goods from its local warehouse is sold and shipped to other states and the rest is sold to customers in California. Plaintiff is admittedly engaged in interstate commerce within the meaning of the National Labor Relations Act, 29 U.S.C.A. s 151 et seq. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Lyons v. Eagle-Picher Lead Co., 10 Cir., 90 F.2d 321. Its California employees include a division manager, secretary, bookkeeper, warehouse superintendent, fifteen salesmen, four office clerks and two teamster-warehousemen.

In January, 1941, plaintiff's salesmen formed a union named the Park & Tilford Salesmen's Association. In the same year, one of the teamsters joined defendant Local 848, the other defendant, Local 595. In January, 1942, representatives of Local 595, with plaintiff's permission, interviewed the office clerks and asked them to join the union. They refused. Toward the end of February, 1942, representatives of Local 595 requested plaintiff to sign a closed shop contract covering the clerks. When plaintiff refused, the union threatened to call the teamsters out on strike, establish a picket line, and boycott plaintiff unless it signed the contract. Plaintiff again refused and in March, 1942, Local 848 was asked by Local 595 to organize the salesmen. With plaintiff's permission Local 848 interviewed the salesmen, but they refused to join. Local 848 then submitted a closed shop contract to plaintiff, which it refused to sign upon the ground that to do so would be an unfair labor practice under the National Labor Relations Act, since the union did not represent the salesmen. On March 20, 1942, the Park & Tilford Salesmen's Association admitted the office clerks and changed its name to Park & Tilford Mutual Association. Additional requests by the unions failed to induce plaintiff to sign the contracts, and the unions called the teamsters out on strike and began to picket plaintiff's place of business. A boycott was instituted June 14, 1942. The Los Angeles Food and Drug Council published plaintiff's name and business in its ‘Unfair List’ and defendant notified many of plaintiff's customers verbally and by circular letter that plaintiff was ‘unfair’ and requested them not to purchase plaintiff's products.

On September 1, 1942, plaintiff filed a petition with the National Labor Relations Board for the certification of a bargaining agent for its employees, and on September 2, 1942, brought an action in the superior court for an injunction. On September 3, 1942, Local 595 filed charges with the National Labor Relations Board that plaintiff was guilty of an unfair labor practice, namely, the domination of the Park & Tilford Mufual Association. The Regional Director refused to issue a complaint that plaintiff was guilty of an unfair labor practice, and his action was sustained by the board on an appeal by Local 595. Plaintiff's petition before the National Labor Relations Board was dismissed on the ground that neither defendant labor unions nor the Park & Tilford Mutual Association presented any request for recognition. (47 N.L.R.B., No. 55.) In the superior court action, the court found that plaintiff suffered irreparable damage and will continue to do so unless the picketing and boycotting cease; that all activities of defendants have been peaceful; that no violence or threats of violence have occurred; and that no false or fraudulent statements were published by the unions other than the statement that plaintiff was ‘unfair to organized labor’ and the publication of plaintiff's name and business on the ‘Unfair List’ of the Food and Drug Council. Defendants appeal from the judgment enjoining them from picketing and boycotting plaintiff and from denominating or listing plaintiff as ‘unfair’ or ‘unfair to organized labor’ during the pendency of proceedings before the National Labor Relations Board, and thereafter until modification or vacation of the injunction.

It is settled that the acts complained of would not have been unlawful had they been directed against an employer who was not subject to the National Labor Relations Act. A closed shop agreement with such an employer is as proper an object of concerted action as the attainment of higher wages, shorter hours, or better working conditions, whether or not the labor union represents a majority of the employees that it seeks to bring within the closed shop agreement. McKay v. Retail, etc., Union No. 1067, 16 Cal.2d 311, 319, 106 P.2d 373; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 382, 106 P.2d 403; C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414; Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689; see Fortenbury v. Superior Court, 16 Cal.2d 405, 106 P.2d 411; Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682, 123 P.2d 20; Emde v. San Joaquin County, etc., Council, 23 Cal.2d 146, 155, 143 P.2d 20, 150 A.L.R. 916; Lisse v. Local Union, 2 Cal.2d 312, 41 P.2d 314; In re Lyons, 27 Cal.App.2d 293, 81 P.2d 190; J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98 P. 1027, 21 L.R.A., N.S., 550, 16 Ann.Cas. 1165; Pierce v. Stablemen's Union, 156 Cal. 70, 103 P. 324; Southern California Iron & Steel Co. v. Amalgamated Assn., 186 Cal. 604, 200 P. 1; Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200; Allen-Bradley Local v. Wisconsin etc. Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154; Stillwell Theatre v. Kaplan, 259 N.Y. 405, 409, 182 N.E. 63, 84 A.L.R. 6; Rest., Torts, s 788.

Plaintiff contends, however, that it could not yield to defendants' demand for a closed shop agreement without committing an unfair labor practice under the National Labor Relations Act, and that defendants' concerted action for such an agreement was therefore unlawful and should be enjoined.

The relevant provisions of the National Labor Relations Act, sections 8(3) and 9(a), 29 U.S.C.A. ss 158(3), 159(a), read as follows: ‘It shall be an unfair labor practice for an employer * * * By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in sections 151-166 of this title or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in sections 151-166 of this title as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective bargaining unit covered by such agreement when made. * * * Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or group of employees shall have the right at any time to present grievances to their employer.’

The National Labor Relations Act is based on the policy of encouraging collective bargaining and protecting the exercise of the workers' rights of association, organization and designation of representatives of their own choosing for negotiating terms and conditions of employment. N.L.R.A. s 1, 29 U.S.C.A. s 151. Congress has safeguarded labor's economic weapons by expressly providing that nothing in the act ‘shall be construed so as to interfere with or impede or diminish in any way the right to strike’ N.L.R.A. s 13, 29 U.S.C.A. s 163, and that ‘Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.’ N.L.R.A. s 7, 29 U.S.C.A. s 157. The act recognizes, among other rights, peaceful picketing and boycotting of an employer by a labor union, whether or not its members are employed by him. National Labor Relations Board v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 130 F.2d 503, 506; Montgomery Ward Employees Ass'n v. Retail Clerks, etc., Ass'n, D.C., 38 F.Supp. 321. Such rights may be exercised to secure a closed shop, for the act specifically designates the closed shop as one of the objectives of collective bargaining. N.L.R.A. s 8(3), 29 U.S.C.A. s 158(3). The act does not require that a union represent a majority during the period of its activities for a closed shop, but only that it represent a majority when the agreement is made. The National Labor Relations Board may exercise its power under section 9(c) of the National Labor Relations Act to take a secret ballot of the employees to determine which group has the required majority, and meanwhile any group may seek to win over a majority of the employees. It may resort to concerted activities to win over the employees with the object of gaining a majority (see Montgomery Ward Employees Ass'n v. Retail Clerks, etc., Ass'n, supra; National Labor Relations Board v. Dahlstrom, etc., Co., 2 Cir., 112 F.2d 756, 758; National Labor Relations Board v. Karp, etc., Co., 2 Cir., 134 F.2d 954) and at the same time engage in concerted activities against the employer until he signs a closed shop agreement. If a union could not picket or boycott an employer until it had the majority necessary for a closed shop agreement, it would be deprived of one of the most effective means of obtaining that majority. Meanwhile, the employer may apply to the board to hold an election and to certify the bargaining agent designated by the majority of the employees. Section 203.1 of the Rules and Regulations implementing the National Labor Relations Act, 29 U.S.C.A. Appendix. The day after plaintiff filed its petition with the board in this case, it brought this action for an injunction to put an end to the very activities of the union by which it hoped to gain a majority of the employees. Since neither the defendant unions nor the Park and Tilford Mutual Association requested recognition, the board denied plaintiff's application to institute certification proceedings.

Picketing and boycotting for a closed shop, if peacefully carried on, are lawful not only under the National Labor Relations Act, but under the Clayton and Norris-LaGuardia Acts. Section 20 of the Clayton Act, 29 U.S.C.A. s 52, prescribes not only that peaceful picketing and boycotting shall be immune from injunctions of federal courts, but that such activities shall not be ‘considered or held to be violations of any law of the United States.’ The section was construed in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196, to protect labor activities only of employees of the employer against whom they are directed. After enactment of the Norris-LaGuardia Act, 29 U.S.C.A. s 102, however, limiting the enjoining power of the federal courts in labor disputes irrespective of whether the members of a union engaged in labor activities are employees of the employer affected by their activities, the United States Supreme Court read into section 20 of the Clayton Act the public policy declared by Congress in the Norris-LaGuardia Act. Whatever the scope of that section before the Norris LaGuardia Act, it now makes picketing and boycotting lawful even when performed by others than employees of the particular employer, if they are unenjoinable in a federal court under the Norris-LaGuardia Act. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788. In reaching the conclusion that these activities are lawful, and not simply unenjoinable, the court stated in the Hutcheson case: ‘The Norris-La Guardia Act removed the fetters upon treadeunion activities, which according to judicial construction of s 20 of the Clayton Act had left untouched, by still further narrowing the circumstances under which the federal courts could grant injunctions in labor disputes. More especially, the Act explicitly formulated the ‘public policy of the United States' in regard to the industrial conflict, and by its light established that the allowable area of union activity was not to be restricted, as it had been in the Duplex case, to an immediate employer-employee relation. * * * If the facts laid in the indictment come within the conduct enumerated in s 20 of the Clayton Act they do not constitute a crime within the general terms of the Sherman Law because of the explicit command of that section that such conduct shall not be ‘considered or held to be violations of any law of the United States.’ So long as a union acts in its self-interest and does not combine with nonlabor groups, the licit and the illicit under s 20 are not to be distinguished by any judgment regarding the wisdom or the unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means. There is nothing remotely within the terms of s 20 that differentiates between trade union conduct directed against an employer because of a controversy arising in the relation between employer and employee, as such, and conduct similarly directed but ultimately due to an internecine struggle between two unions seeking the favor of the same employer.' 312 U.S. 219, 231, 232, 61 S.Ct. 463, 466, 85 L.Ed. 788.

The result of the Hutcheson case is a complete ‘identification of legislatively declared unenjoinability with complete legality.’ 146 A.L.R. 1252. By declaring lawful, and therefore beyond interference by state courts, union activities that are unenjoinable in the federal courts under the Norris-LaGuardia Act, the Hutcheson case obviates the inconsistencies that would arise if state courts, in labor disputes involving a business engaged in interstate commerce, could enjoin conduct as being in violation of the federal law, even though the conduct is not enjoinable in a federal court. See 2 Teller, Labor Disputes and Collective Bargaining, s 416. Under the Norris-LaGuardia Act peaceful picketing and boycotting for a closed shop by an outside union are not enjoinable in a federal court, Lauf v. E. G. Shinner & Co., 303 U.S. 323, 329, 58 S.Ct. 578, 82 L.Ed. 872, and are therefore lawful, United States v. Hutcheson, supra. Since these acts are made lawful by federal law, they are immune from injunctions of state courts as well as federal courts.

Even if the activities in question were not made lawful by the federal statutes discussed above, a state court would have no power to enjoin labor activities on the ground that they might induce the employer against whom they are directed to commit an unfair labor practice, for only the National Labor Relations Board can determine what constitutes an unfair labor practice under the act and take steps to prevent it. Section 10(a) of the National Labor Relations Act, 29 U.S.C.A. s 160(a) provides: ‘The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158) affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.’ This provision, together with section 10(c) of the National Labor Relations Act giving the board power to take testimony and make findings of fact, ‘commits to the Board the exclusive power to decide whether unfair labor practices have been committed.’ National Licorice Co. v. National Labor Board, 309 U.S. 350, 365, 60 S.Ct. 569, 578, 84 L.Ed. 799. Since the board decides what is ‘necessary to effectuate the policies of the Act’ (Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 704, 64 S.Ct. 817, 88 L.Ed. 1020) and may even order an employer to bargain collectively and make a closed shop agreement with a union that has lost its majority after the employer has refused to deal with it (44 National Labor Relations Board, 898, 917, Frank Bros. Co. v. Labor Board, supra), it is not within the jurisdiction of a court to conclude that because a union represents a minority, the employer would commit an unfair labor practice by entering into a closed shop agreement with it. See, also, Seventh Annual Report of The National Labor Relations Board, 1942, p. 47, note 9; Eighth Annual Report of the National Labor Relations Board, 1943, p. 34. A court does not even have jurisdiction to determine whether a union represents a majority in a unit appropriate for the purposes of collective bargaining at the time of the making of the agreement, let alone at any previous time, for it is within the exclusive province of the board to determine the bargaining unit that has the required majority. As the court stated in Fur Workers Union, Local 72 v. Fur Workers Union, 70 App.D.C. 122, 105 F.2d 1, 12; affirmed 308 U.S. 522, 60 S.Ct. 292, 84 L.Ed. 443; ‘Neither the National Labor Relations Act nor the Norris-LaGuardia Act confers upon the Federal courts power to determine what is the appropriate and lawfully selected collective bargaining unit for employees. * * * it seems clear that by the National Labor Relations Act Congress intended to confer exclusive initial jurisdiction upon the Board to determine the appropriate and lawfully selected bargaining unit for employees, and intended to give to the Board alone appropriate machinery, to wit, elections machinery, for making such determination. * * * we should not, unless, upon consideration of the Act and its language and purpose, we find it mandatory to do so, put such a construction thereon as would result in the anomalous existence of concurrent initial jurisdiction in both the courts and the Board. In the absence of a principle that, as between administrative tribunals and courts, the jurisdiction first attaching shall prevail and we know of no such principle the consequence of such double jurisdiction would be most serious.’ See, also, Lund v. Woodenware Workers Union, D.C., 19 F.Supp. 607; Blankenship v. Kurfman, 7 Cir., 96 F.2d 450; Reilly v. Millis, D.C., 52 F.Supp. 172; Weyerhaeuser Timber Co. v. Everett District Council, 11 Wash.2d 503, 119 P.2d 643, distinguishing Bloedel Donovan Lumber Mills v. International Woodworkers, 4 Wash.2d 62, 102 P.2d 270; Green v. Obergfell, 73 App.D.C. 298, 121 F.2d 46, 138 A.L.R. 258; Sharp & Dohme v. Storage Warehouse, etc., Union, D.C., 24 F.Supp. 701; Montgomery Ward Employees Ass'n v. Retail Clerks International, etc., Ass'n, D.C., 38 F.Supp. 321; Stone Logging, etc., Co. v. International Woodworkers, 171 Or. 13, 135 P.2d 759; 41 Mich.L. Rev. 1143; 15 Tex.L.Rev. 344.

Plaintiff, relying on Magill Bros. v. Building Service, etc., Union, 20 Cal.2d 506, 127 P.2d 542, contends that references to it as ‘unfair’ and ‘unfair to organized labor’ were untruthful and that the use of these terms and the placing of its name on the ‘Unfair List’ of defendants' trade paper should be enjoined. In the Magill case the signs carried by the pickets stated: ‘This house on strike. A. F. L.’ There was in fact no strike; the statements were held to be false; and defendants were enjoined from making them. In the present case there has been no falsification of facts. It has been repeatedly held that the terms ‘unfair’ and ‘unfair to organized labor’ carry no odious connotation that an employer is guilty of fraud or dishonorable conduct, but merely connote that an employer is conducting his business in a manner unfavorably regarded by the union. J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 592, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165; C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 395, 106 P.2d 414; Emde v. San Joaquin County, etc., Council, supra, 23 P.2d at pages 143, 155, 156, 143 P.2d 20, 150 A.L.R. 916; Cafeteria Employees Union v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 88 L.Ed. 58; Steffes v. Motion Picture Machine Operators Union, 136 Minn. 200, 202, 161 N.W. 524; Labor Review Publishing Co. v. Galliher, 153 Ala. 364, 373, 374, 45 So. 188, 15 Ann.Cas. 674; John R. Thompson Co. v. Delicatessen & C. W. Union, Local 410, 126 N.J.Eq. 119, 123, 8 A.2d 130; Cinderella Theater Co. v. Sign Writers' Union, D.C., 6 F.Supp. 164, 172; Watters v. Retail Clerks Union No. 479, 120 Ga. 424, 427, 47 S.E. 911; Campbell v. Motion Picture Mach. Operators' Union, 151 Minn. 220, 226, 186 N.W. 781, 27 A.L.R. 631; see 1 Teller, op.cit. s 126, pp. 389, 392, s 152, pp. 472-473; see 43 Words and Phrases, Perm. Ed., 1940, p. 195. In Cafeteria Employees' Union, etc. v. Angelos, supra, the Supreme Court of the United States reversed the judgments of the New York Court of Appeals, which had approved an injunction restraining peaceful picketing in which the term ‘unfair’ had been used, declaring: ‘to use loose language or undefined slogans that are part of the conventional give-and-take in our economic and political controversies like ‘unfair’ * * * is not to falsify facts.'

The judgment is reversed.

As I read the record, the evidence clearly shows that at the time the controversy which occasioned this litigation arose, Park & Tilford was engaged in interstate commerce within the meaning of the National Labor Relations Act, commonly known as the Wagner Act, 49 Stat. 449, 29 U.S.C.A. s 151 et seq., and was an employer subject to its provisions. I agree with the reasoning of Judge Henry M. Willis, who enjoined the appellant labor organizations from picketing, that because of the federal statute, the unions' activities were for an unlawful purpose and that the listing and publication of the employer's name and business on the unfair list was neither truthful nor honest.

Concerning the first ground of his decision Judge Willis said:

‘By express terms of the act it is declared to be an unfair labor practice for an employer, subject to the Act, to interfere with, restrain or coerce employees in the exercise of their rights of self-organization or of collective bargaining through representatives of their own choosing. Also it is declared to be an unfair labor practice for an employer to discriminate in regard to hire or tenure of employment so as to encourage of discourage membership in any labor organization, provided this does not preclude the employer from making an agreement with a labor organization requiring membership in such organization as a condition of employment, if such labor organization is the representative of a majority of the employees in the appropriate collective bargaining unit covered by such agreement.

‘Under the proofs herein this court is constrained to find that the defendants, acting in concert of purpose and activities, established and have maintained a peaceful picket line at plaintiff's place of business, and have instituted and carried on a secondary boycott of plaintiff's business relations and dealings with its customers for the purpose of coercing plaintiff to persuade its employees, both clerks and salesmen, to join the defendant unions, respectively as to units, as a condition of retaining employment. This persuasion, if successful in its purpose, would render plaintiff guilty of an unfair labor practice and a direct violation of the National Labor Relations Act. Incidental to and as a basis of such persuasion, defendant unions, each for itself, demanded of plaintiff that it execute with the respective union a closedshop contract, by the terms of which plaintiff would be required to influence its employees to join the respective union as a condition of continuing employment. As the defendant unions did not represent a majority of either the clerks or the salesmen, employees of plaintiff, neither of them was authorized to bargain for or to execute such an agreement on behalf of such employees in their respective units, and it would have constituted an unfair labor practice on the part of plaintiff to have acceded to such demand and to have executed such contract. Such contract would not only be void and unenforceable but its execution by plaintiff would have been tantamount to the unfair labor practice first mentioned above. The obligation imposed by the Wagner Act to treat only with the true representatives is exclusive and hence imposes the negative duty to treat with no other. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 44, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352.

‘The purpose of the picketing and boycotting is thus definitely shown to be the coercing of plaintiff into commission of unfair labor practices, which, if committed under such coercion, would subject plaintiff to prosecution before the Labor Board on charges. When viewed from any angle, this purpose of defendants constituted illegal coercion. Picketing or boycotting for such purpose are but the weapons of such illegal coercion, and may be enjoined. Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682, 123 P.2d 20. And a secondary boycott must be exercised in pursuit of a lawful end. C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 395, 106 P.2d 414, supra.

‘A strike, boycott or other form of economic pressure activities, however, peaceable and innocent on their face, may nevertheless be without legal justification and unlawful if the purpose behind and motivating such action is unlawful. Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248; Senn v. Tile Layers Protective Union, 301 U.S. 468, 478, 57 S.Ct. 857, 81 L.Ed. 1229; C. S. Smith Metropolitan Market Co. v. Lyons, 16 Cal.2d 389, 395, 399, 106 P.2d 414; McKay v. Retail Automobile Salesmen's Local, 16 Cal.2d 311, 331, 106 P.2d 373; R. H. White Co. v. Murphy et al., 310 Mass. 510, 38 N.E.2d 685.

‘Collective labor activity, represented by picketing and boycotting, is permissible only when conducted according to the requirements imposed by law, and if in violation of such requirements, picketing and boycotting are subject under ordinary circumstances to the restraint of a court of equity. Magill Bros. v. Building Service, etc., Union, 20 Cal.2d 506, 127 P.2d 542. The federal law, embodied in the Wagner Act forbids an employer, whose business subjects him to the provisions of such act, from interfering with or coercing his employees in their rights of self-organization and collective bargaining, and to negotiate or enter into contracts with a labor organization which does not represent a majority of his employees in the appropriate bargaining unit. By necessary implication all others are forbidden to compel him so to do. To picket or boycott such employer for the purpose of coercing him into signing such a contract or to interfere with his employees' right of joining or not joining a union, is directly contrary to the spirit and purpose of the Wagner Act, and constitutes illegal coercion, and is subject to restraint by a state court of equity. Hudson Recreation Co. v. Bowling etc. Union Local 209 (Penn.), 3 C.C.H. Labor Cases, Par. 60300; R. H. White Co. v. Murphy et al., 310 Mass. 510, 38 N.E.2d 685.’

The conclusions of Judge Willis upon the issue as to the boycott instituted by the union organizations, to me, are also unanswerable under the rule of decision which has been laid down in this state. ‘The use of the word ‘unfair,’ as employed by labor organizations generally,' he declared, ‘carries a technical meaning commonly understood by the courts, the parties and by all persons to whom labor organizations send notices that a certain employer had been declared unfair. Such meaning ordinarily conveys the idea that the employer has refused to comply with conditions upon which union men would consent to remain in his employ, or other employers under contract with, or sympathetic to organized labor, would consent to purchase or handle material or merchandise supplied by him. J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 592, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165.

‘As commonly used by labor organizations the term ‘unfair’ or ‘unfair to organized labor’ does not mean and is not understood to mean that the employer, so charged, has been guilty of any fraud, breach of faith or dishonorable conduct, but that he has refused to comply with reasonable, honest and lawful conditions imposed or demanded by a labor organization. It is a prime requisite to support and give truth to such a charge that in some recognized lawful respect the employer has refused to comply with proper and lawful demands of a labor union. Thus if the demand made or condition imposed by the labor union upon an employer is opposed to reason, public policy or the law, and cannot be assented to without violating public policy or law, it cannot be truthfully and honestly said that the employer is unfair to organized labor, or unfair at all. Instead, to declare that an employer is unfair under such circumstances is clearly deceptive and fraudulent.

‘In this case the plaintiff is shown by the evidence to have been fair to the defendant unions at all times. It furnished them every requested opportunity to ‘organize’ the clerks and salesmen, and placed no obstacles in their way to secure their applications for membership in, or their authorization to defendant unions to act as their bargaining agent. Failing in these efforts to organize the employees of plaintiff, not through any fault or opposition of plaintiff, but solely because the employees in question refused to join defendant unions, preferring to self-organize in their own union, and failing to persuade plaintiff to commit acts in violation of the Wagner Act for the purpose of influencing or coercing its employees to join such defendant unions, the defendants, acting in concert, called the strike of the two teamsters, established a picket line and published plaintiff's name on the Council ‘unfair list,’ and mailed to many customers of plaintiff a circular letter stating that plaintiff had been placed on the ‘official ‘unfair’ list of the Los Angeles Food and Drug Council to which body our unions belong,' and requesting such customers to cease patronizing plaintiff until the unions' dispute with plaintiff was settled.

‘Under the facts and circumstances of this case it must be found that the publication of plaintiff's name and business as ‘unfair’ was untrue, deceptive and dishonest. It is manifest, and was equally manifest to the defendants, that plaintiff had not been, and is not unfair to organized labor in general or to these local unions in particular in any respect. No truthful or honest charge of ‘unfair’ or ‘unfair to organized labor’ can be predicated on refusal of an employer to accede to unlawful demands of a union. The picketing and secondary boycott which has occurred were founded exclusively on this refusal to commit unfair labor practices by plaintiff, and in combination with the publication of this charge of ‘unfair,’ and are inseparably entangled with such publication.'

For these reasons, in my opinion, the judgment should be affirmed.

TRAYNOR, Justice.

GIBSON, C. J., and CARTER, and SCHAUER, JJ., concurred.