Full opinion text
EDMONDS, J. The question presented for determination in this case concerns the right of labor to picket an employer's place of business. The controversy arose over a demand upon the employer to sign a contract with a union. By a suit against the employer, the American Federation of Labor and a number of its affiliates, Retail Automobile Salesmen’s Local Union No. 1067 and its affiliate, Retail Clerks International Protective Association, Garage Employees Union Local No. 665 and its affiliate, Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, San Francisco Labor Council, and a number of officers of these organizations, the nonunion employees sought an injunction to prevent interference with their employment relations. The case is here upon the plaintiffs’ appeal from an order dissolving a temporary restraining order and denying an application for a preliminary injunction. The only evidence before the trial court in ruling upon the appellants’ right to injunctive relief was the verified complaint. It alleges the following facts: The plaintiffs, thirty-two in number, are employed as salesmen by the defendant Howard Automobile Company, which is a California corporation engaged in the business of selling and repairing automobiles in San Francisco “and elsewhere”. In May, 1937, in San Francisco, the plaintiffs, being then all the salesmen employed by the company, united and organized and designated three of their number a committee to negotiate terms and conditions of employment with the company “in accordance with the terms of the Wagner Labor Relations Act”. This committee forthwith notified the Regional Director of the National Labor Relations Board and the employer of its appointment, whereupon the employer recognized the committee as the bargaining agent for the entire sales force. Other allegations of the complaint are that the plaintiffs and the employer are mutually satisfied with the terms and conditions of employment and desire to continue the relationship. Between the plaintiffs and their employer no labor dispute of any kind exists, and none of the plaintiffs has been or is now on strike. None of the plaintiffs is or has any desire to be a member of any of the defendant unions. Neither the plaintiffs nor the company has ever been a party to any agreement with any of the defendant unions or any other labor organization, and neither has ever requested any of the defendant unions to act for any of the plaintiffs as a collective bargaining agency. The plaintiffs further assert that the Howard Company employs members of all of the defendant unions except members of the Salesmen’s Union, and each of these unions has rules and agreements, binding on their respective members and enforceable by fines and penalties, not to pass picket lines or to do business with persons under picket. The placing of a picket at the company’s plant will, pursuant to these rules and agreements, “compel” the members of these unions to abstain from visiting, delivering goods to, accepting delivery from, transacting business with, or working for the company. The complaint also states that the Salesmen’s Union has solicited the plaintiffs to join it and, in consequence of their refusal, has “placed a picket around the place of business of said company, and [its members] have congregated there in numbers, and annqunced their intention to maintain said picket until the said company compels plaintiffs to join said union or discharges said plaintiffs, and until said codefendants of said company have convinced said company that it is profitable for it to sign a contract with said union which would require plaintiff employees to join said union, and if they refuse to join said union, would require said company to discharge plaintiffs and each of them”. None of the pickets has been or is an employee of the company. The defendant Labor Council has by resolution approved of the picket, and plaintiffs allege upon information and belief that the council has appointed a “Board of Strategy” to devise ways and means of “exerting pressure and coercion” on the company and on plaintiffs to sign a contract with and join the Salesmen’s Union and has placed the company on its “We don’t patronize list”, a list of firms “boycotted throughout the nation by all organized labor”. Continuing their charges against the defendants,.the plaintiffs say that the continuance of the picket has had the effect of “closing down the company’s plant, stopping all work therein, and destroying its said business”. The unions and their officers have ‘ ‘ combined and confederated and conspired to aid, abet and carry out said boycott and said picket, and to fine, coerce and penalize any of their members who violate either boycott or picket”. The effect of the boycott and picket is “ruinous to the business of any plant so boycotted or picketed, and coerces said company to deprive plaintiffs and each of them of their right to earn a livelihood freely and unmolested”. Unless the codefendants of the company are restrained, the company intends to and will discharge plaintiffs or demand that each of them join the Salesmen’s Union. The prayer of the complaint is for a decree enjoining the labor organizations and their representatives from picketing or boycotting the company or “from in anywise threatening, coercing or intimidating” the company or any of its employees or customers for the purposes named in the complaint; from “in any manner interfering with” the business of the company; from inducing or compelling any of the company’s employees to leave its employ; from preventing others from entering the service of the company; and from acting in or aiding any combination or conspiracy to restrain the company in the free and unhindered control of its business. Upon the filing of this complaint the superior court issued a temporary restraining order in literal accordance with the terms of the prayer and an order to show cause why a preliminary injunction should not issue. All of the defendants except the employer joined in a demurrer to the complaint, which challenged it on both general and special grounds. The application for the injunction was heard with the demurrer and submitted upon the allegations of the verified complaint. The trial court sustained the demurrer with leave to amend, dissolved the temporary restraining order and denied the application for a preliminary injunction. The appeal has been taken only from the orders denying injunctive relief. Broadly stated, the position taken by the plaintiffs in their briefs is that in the absence of any dispute between themselves and their employer, the defendants have no right to interfere in any way with their employment relations. On the other hand, the labor organizations and their officers maintain that they collectively have a direct, substantial and legitimate interest in the employment relations of the company, and that since they are employing means which are entirely lawful, their activities may not be enjoined. The history of the law governing the right of workingmen to combine in order to bargain for better working conditions is marked by much divergence of opinion, with many changes through the years. In England, until 1824, combinations of laborers to raise wages or shorten hours or to affect business in any way were criminal even if there was no resort to a strike (5 Geo. IV C. 95; 6 Geo. IV C. 129; 34 Edw. III C. 9; Rex v. Journeymen-Taylors, 8 Mod. 10, 88 Eng. Repr. 9), and until after the middle of the nineteenth century it was a crime to threaten a strike for any purpose (Walsby v. Anley, 3 El. & El. 516, 121 Eng. Repr. 536; Skinner v. Kitch, 10 Cox, C. C. 493, L. R. 2 Q. B. 393), or to combine peacefully to persuade employees to leave work without picketing (Reg. v. Rowlands, 2 Den. C. C. 363, 17 Q. B. 671, 117 Eng. Repr. 1439). The sanctions of the criminal law against combinations of workingmen in furtherance of their interests were not finally relaxed until 1875 (The Conspiracy and Protection of Property Act, 38 & 39 Vict. C. 86, sec. 3). Development of the early law in this country shows a similar trend. Workingmen who combined for any purpose opposed to the interest of their employer were indicted and punished as members of a criminal conspiracy. (People v. Melvin, 2 Wheeler C. C. (N. Y.) 262 (1810) ; People v. Fisher, 14 Wend. 9 (N. Y. 1835) [28 Am. Dec. 501]. See, also, Nelles, The First American Labor Case, 41 Yale L. J. 165 (1931) ; Witte, Early American Labor Cases, 35 Yale L. J. 825, 826 (1926); Landis, Cases on Labor Law, p. 28 et seq.) And although in 1842 Massachusetts held that workingmen who quit work in concert to compel an employee to join their association were not guilty of a crime (Commonwealth v. Hunt, 45 Mass. 111 [38 Am. Dec. 346]), until the end of the nineteenth century the criminal conspiracy doctrine was applied to associations of workmen to prevent strikes for any purpose. (State v. Donaldson (1867) 32 N. J. L. 151 [90 Am. Dec. 649]; Commonwealth v. Curren, (1869) 3 Pittsb. Rep. 143; Commonwealth v. Sheriff, (1881) 15 Phila. 393; People v. Wilzig, (1886) 4 N. Y. Cr. 403.) In the meantime the labor injunction had come into general use in this country. (See Frankfurter & Greene, The Labor Injunction, p. 17 et seq.; Bonnet, The Origin of the Labor Injunction, 5 So. Cal. L. Rev. 105 (1931).) In recent years the courts have gradually recognized that immediate betterment' of working conditions is a legitimate object of concerted activities by employees, but there has been a wide diffeience of opinion as to what means may be lawfully used for the attainment of labor’s ends. The parties are entirely correct in their agreement that, under the law as it has developed in recent years, an intentional interference with the advantageous economic relations of others by the members of labor organizations is not tortious unless violence is used or the object sought to be accomplished has no reasonable relevance to labor conditions. Therefore, the issues in the present controversy include only two questions: Whether the specific activities carried on by the defendants are peaceful, and, further, whether there is any legal justification for their conduct in view of the- objects which they seek to attain. Concerning the means used, it must be taken as settled in this state, that workmen may associate together and exert various forms of economic pressure upon employers, provided they act peaceably and honestly. The conventional means of exerting this economic pressure which have been held lawful are the strike (Pierce v. Stablemen’s Union, (1909) 156 Cal. 70 [103 Pac. 324]; Parkinson Co. v. Building Trades Council, (1908) 154 Cal. 581 [98 Pac. 1027, 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550] ; Southern Calif. Iron & Steel Co. v. Amalgamated Assn., (1921) 186 Cal. 604 [200 Pac. 1] ; Lisse v. Local Union, (1935) 2 Cal. (2d) 312 [41 Pac. (2d) 314]); the boycott, both primary and secondary (Parkinson Co. v. Building Trades Council, supra; Pierce v. Stablemen’s Union, supra; Southern Calif. Iron & Steel Co. v. Amalgamated Assn., supra) ; and the picket (Lisse v. Local Union, supra; In re Lyons, 27 Cal. App. (2d) 182 [80 Pac. (2d) 745]). It is true that the early cases in the state intimated that picketing in any form was illegal (Rosenberg v. Retail Clerks’ Assn., (1918) 39 Cal. App. 67 [177 Pac. 864] ; Pierce v. Stablemen’s Union, supra), and that Moore v. Cooks etc. Union, 39 Cal. App. 538 [179 Pac. 417], held that peaceful picketing was per se unlawful. However, those conclusions were expressly renounced by this court in Lisse v. Local Union, supra. Indeed, the modern trend of decision clearly indicates that the right to picket peacefully and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. (Carlson v. California, (1940) 310 U. S. 106 [60 Sup. Ct. 746, 84 L. Ed. 668]; Thornhill v. Alabama, (1940) 310 U. S. 88 [60 Sup. Ct. 736, 84 L. Ed. 659] ; In re Lyons, supra (1938); People v. Harris, (1939) 104 Colo. 386 [91 Pac. (2d) 989, 122 A. L. R. 1034] ; 48 Yale L. J. 308, 312 (1938).) But the law clearly requires that concerted action by union workers be peaceful. Acts of violence or “acts amounting to physical intimidation” will be enjoined. (Goldberg etc. Co. v. Stablemen’s Union, (1906) 149 Cal. 429 [86 Pac. 806, 117 Am. St. Rep. 145, 9 Ann. Cas. 1219, 8 L. R. A. (N. S.) 460] ; Southern Calif. Iron & Steel Co. v. Amalgamated Assn., supra; Lisse v. Local Union, supra.) There is nothing in the complaint now being considered which indicates that the activities of the defendants were anything other than peaceful and honest within the meaning of the controlling authorities. The complaint alleges merely that the Salesmen’s Union had placed a picket around the place of business of the employer and that persons acting for it have congregrated there in numbers and announced their intention to maintain this picket until their demands are complied with. Such conduct is not per se unlawful. (Lisse v. Local Union, supra; In re Lyons, supra.) True, the plaintiffs use the words “compel” and “coerce” in connection with the activities of the defendants, but by these words, in the light of the only specific activities alleged, the pleader does no more than to charge that the compulsion or coercion, though peaceful, was unlawful, which, of course, is only a conclusion. It is a fundamental principle that the drastic sanctions of equity may not be invoked without a detailed showing of specific facts justifying such relief. (Golden State Glass Gorp. v. Superior Court, 13 Cal. (2d) 384 [90 Pac. (2d) 75].) This rule is applicable to suits for injunctions in labor controversies and has been so applied in this state. In Davitt v. American Baker’s Union, 124 Cal. 99 [56 Pac. 775] (1899), the plaintiffs sought injunctive relief against a labor union charging interference with their business by “force, menace and threat” and by the circulation of “false and malicious publications” at and near their place of business. Such averments were held to be too general to warrant relief, the court saying: “Conceding the formation of a conspiracy is charged, having for its object a common design and purpose, still we find no statement in the bill as to any specific overt act done by defendants in pursuance o£ that design and purpose. A conspiracy, however atrocious its purpose, is not the subject of a civil action, for it does not damage. (Herron v. Hughes, 25 Cal. [555] 560.) There is no allegation whatever showing the particular threats defendants made, what amount or kind of force defendants used, what kind or character of menace was exercised, or how the business was to be boycotted.” So the acts charged against the defendants are not unlawful because of the plaintiffs’ allegation that they amount to coercion. One is not intimidated or coerced, in the sense of unlawful compulsion, by being induced to forego business relations with A rather than lose the benefit of more profitable relations with B. As Justice Angellotti said in his concurring opinion in the Parkinson case, an employer who yields to his employees’ demands “may be said to have been coerced into doing so by fear that if he does not, he will not be able to obtain such employees as will enable Mm to properly carry on his business, but this is not the kind of coercion of which the courts can take notice”. In the opinion written by Justice Sloss the same view is expressed. It is equally beside the question to speak of threats, where that which is threatened is only what the party has a legal right to do. In one of his dissenting opinions Mr. Justice Holmes succinctly commented upon the use of such terms as follows: “I pause here to remark that the word ‘threats’ often is used as if, when it appeared that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even if subject to some exceptions, what you may do in a certain event you may threaten to do, that is, give warning of your intention to do in that event, and thus allow the other person the chance of avoiding the consequences. So as to ‘compulsion’, it depends on how you ‘compel’ ... So as to ‘annoyance’ or ‘intimidation’.” (Vegelahn v. Guntner, (1896) 167 Mass. 92, 107 [44 N. E. 1077, 57 Am. St. Rep. 443, 35 L. R. A. 722].) In many of the decided cases where injunctive relief was granted, facts were alleged or proved which showed that violence had been threatened either expressly or impliedly. The complaint here in controversy includes no allegations concerning such acts, and it states no cause of action if the object of the defendants’ conduct was a lawful purpose. It is the well-established law of this state that members of a union or group of affiliated unions are privileged to refuse to work in the same shop or on the same job with other workmen irrespective of whether the latter have united or organized themselves into a separate trade union. And competition for work being an entirely lawful activity, whether the competing groups be unions, or unions and individuals, a court of equity may not interfere by restraining the use of any lawful form of concerted action used in the struggle. (Parkinson Co. v. Building Trades Council, supra.) The principle that a closed union shop is a proper object of concerted action by employees has been widely recognized in other jurisdictions (Williams v. Quill, (1938) 277 N. Y. 1 [12 N. E. (2d) 547] ; Fenske Brothers v. Upholsterers’ International Union, (1934) 358 Ill. 239 [193 N. E. 112, 97 A. L. R. 1318]; Bayonne Textile Corp. v. American Federation of Silk Workers, (1934) 116 N. J. Eq. 146 [172 Atl. 551, 92 A. L. R. 1450] ; Seymour Ruff & Sons v. Bricklayers etc. Union, (1933) 163 Md. 687 [164 Atl. 752] ; Grant Construction Co. v. St. Paul Building Trades Council, (1917) 136 Minn. 167 [161 N. W. 520, 1055] ; Scofes v. Helmar, (1933) 205 Ind. 596 [187 N. E. 662]; Cohn & Roth Elec. Co. v. Bricklayers etc. Union, (1917) 92 Conn. 161 [101 Atl. 659, 6 A. L. R. 887] ; Meier v. Speer, (1910) 96 Ark. 618 [132 S. W. 988, 32 L. R. A. (N. S.) 792]; Jetton-Dekle Lumber Co. v. Mather, (1907) 53 Fla. 969 [43 So. 590]; contra, Hotel & Railroad News Co. v. Clark, (1922) 243 Mass. 317 [137 N. E. 534]; Cooks’ etc. Union v. Papageorge, (1921) (Tex. Civ. App.) 230 S. W. 1086) and has been adopted by the American Law Institute in its Restatement of the Law of Torts. (Vol. 4, see. 788.) To the contrary, many other courts have decided that the forcing of such a choice upon employees by labor unions is itself an unlawful interference with the “absolute, inherent and indefeasible right” of the individual employee to work under such conditions as he may choose. But the Supreme Court of the United States holds that there is no constitutional right inhering in individuals to work as nonunion employees. (Senn v. Tile Layers Protective Union, 301 U. S. 468 [57 Sup. Ct. 857, 81 L. Ed. 1229].) And the law of California, as stated in Parkinson Co. v. Building Trades Council, supra, is that the members of a labor union are privileged to bring such lawful pressure to bear, as is within their control, in order to induce nonunion employees to join their union. The defendant unions and their officers contend that the facts of that case are exactly the same in principle as those alleged in the plaintiffs’ complaint, and that the conclusion there reached is determinative of the present controversy. In the Parkinson case, the plaintiff, which was the employer, maintained a lumber yard, mill and plumbing and tinning shop and employed a nonunion tinner. Its other employees, who belonged to several affiliated unions of the American Federation of Labor, demanded that the tinner be compelled to join the Tinner’s Union or be discharged. Both the tinner and the employer refused to accede to the unions’ demands, with the result that the community labor council called a strike and secondary boycott against the employer. “Unfair notices” were sent to contractors and other customers of the employer, which according to union rules precluded the employees of these customers from working on or with materials furnished by the employer. The resulting strike and boycott were conducted peaceably, and, with minor exceptions, no threats of force or harm to anyone. A short time after the strike, the employer was able to secure nonunion men and resume operation of its plant, but the secondary boycott against its customers was continued in force by the unions. The employer brought suit against them for injunctive relief and damages, and after a trial the superior court issued a permanent injunction broadly restraining the defendants from interfering with its business. Upon appeal this court reversed the judgment and held, six justices concurring in three separate opinions and one justice dissenting, that the plaintiff was not entitled to relief. All of the members of the court agreed, however, that the attempt by the defendants to secure a closed union shop was a legitimate object of collective action and the right of workingmen to combine in order to better the terms and conditions of their employment was fully recognized. Such combination was found to be the “necessary and desirable counterpart” of business combinations in order to enable workmen to compete in a “fair and equal way” in the struggle for existence. The ultimate motive for their activities was self-interest— “to secure employment on more favorable terms for themselves”, and in pursuit of that purpose they could lawfully attempt “to secure employment by the plaintiff, to the. exclusion of those not associated with them”. And there was said to be no valid distinction between union members withholding labor from their employer, with whom they had some dispute arising out of his treatment of workers, and withholding business from his customers, against whom they had no other dispute than that they were assisting the employer by trading with him. In other words, said the court, members of affiliated unions who were not employees of the employer, might lawfully engage in concerted activities against him for no other motive than that they considered him unfair to their associates. There was damage to the employer, to his customers and to his nonunion employees, but this damage was held to be merely one of the consequences of the “struggle of competition” and was therefore justified in law. The plaintiffs do not challenge the soundness of these principles but urge that they do not apply here because there is no ¡“strike” and no “labor dispute”. It is said that the related craft members “only ceased working because of the penalty imposed for passing a picket line” placed around the company’s premises by the “irresponsible” Salesmen’s Union. Such an interpretation of the facts assumes a lack of solidarity among the affiliated crafts and an unwillingness on the part of the members to cooperate in the action directed against the employer—an assumption which is negatived by every circumstance in the case. Moreover, as has been pointed out in C. S. Smith Metropolitan Mkt. Co. v. Lyons (post, p. 389 [106 Pac. (2d) 414]), the term “labor dispute” is a broad one, and, in the absence of statutory definition, may be properly applied to any controversy “which is reasonably related to employment and to the purposes of collective bargaining”. The complaint alleges that all the unions and their officers have ' ‘ combined, confederated and conspired to aid, abet and carry out said boycott and said picket” and that the defendant Labor Council “has by resolution approved of said picket” and has “appointed a Board of Strategy for the purpose of devising ways and means of exerting pressure and coercion on said company and plaintiffs, and has placed said company on the ‘We don’t patronize list’, a list of firms boycotted through the nation by all organized labor”. These averments show that all of the defendants are acting in harmony in their effort to secure a union shop contract. The further allegations that the unions are “conspiring . . . to fine, coerce and penalize any of their members who violate either boycott or picket” mean no more than that the union members by contract and pledge have bound themselves to join in any unified action affecting their interests. In this there is no more “coercion” than there is in compelling the performance of any contract. The fact that the defendant unions are craft organizations does not preclude them from consolidating to obtain an industrial bargaining unit. (See 6 Chicago L. Rev. 675.) The complaint alleges that these unions are affiliated with the American Federation of Labor, and also that they are members of the defendant Labor Council. This indicates that they are proceeding with some unity toward the objectives they seek. To hold, as the plaintiffs insist the court should, that separate organizations may not join forces in labor controversies for the purpose of obtaining a closed shop would establish a rule of law discriminating against the labor groups in this state which are organized horizontally, or into crafts, and in favor of the vertical or industrial type of union. For if the other employees of the company belonged to a single union they would be privileged, under the California authorities, to engage in any peaceful and lawful activities in order to compel the members of the sales department to. join their union. Viewed in this light the present case cannot be distinguished from the Parkinson case so far as the acts of organized labor are concerned. The facts in the two cases are parallel. There the tinner was satisfied with his job and his services were satisfactory to the employer; here the plaintiffs and the company are mutually satisfied with the terms and conditions of employment. There, as here, the defendants, who were members of affiliated trade unions employed in the company’s plant and elsewhere, engaged in activities which were not per se unlawful in order to induce nonunion employees of the company to join a union affiliated with the defendants. In each case the defendants’ purpose was to obtain a closed union shop. That some of the defendants in the present case are not employees of the company does not render their conduct unlawful; there was the same situation in the Parkinson case. If anything, the Salesmen’s Union here has a more direct self-interest in organizing the company into a closed union shop than did the “outsiders” in the Parkinson case. The picketing here is merely a concomitant of the strike, just as the secondary boycott was the concomitant of the strike in that ease. In both cases the concerted activities of the various unions were undertaken at the instigation and with the approval of a labor council, which appears to be the organization responsible for formulation of the policy and coordination of activities of the affiliated unions. Nor does the fact that in the present ease relief is sought by nonmember employees rather than by the employer serve to distinguish the two eases. This court in the Parkinson case found justification for the defendants ’ conduct in the workingman’s struggle for existence, Chief Justice Beatty saying: “In order to secure employment on more favorable terms for themselves, individuals have an absolute right to combine for the purpose of preventing employment and competition of others”. Justice Sloss, in a concurring opinion, summarized the position of union labor as follows: ‘ ‘ The defendants were seeking, in all they are shown to have done, to secure employment by the plaintiff for themselves, to the exclusion of those not associated with them, and to secure that employment upon terms deemed satisfactory or advantageous to them. That is the effort of every dealer in goods: it is the struggle of competition and is no more frowned upon where the subject of trade is labor than where it is a specific commodity.” Stated in another way, the principle or rationale involved is that a court should not use its coercive implements to aid one party in an economic struggle in which the other party has a substantial interest at stake and is employing means which are not in themselves unlawful. The interest of the defendant unions in the present controversy is direct and obvious. The closed union shop is an important means of maintaining the combined bargaining power of the workers. Moreover, advantages secured through collective action redound to the benefit of all employees whether they are members of the union or not, and members may resent nonmembers sharing in the benefits without liability for the obligations Hence a closed shop policy is of vital importance in maintaining not only the bargaining power but also the membership of trade unions. These considerations serve to justify the defendants’ conduct as much against the complaint of nonmember employees as against the complaint of an employer. (See authorities cited in C. S. Smith Metropolitan Market Co. v. Lyons, supra.) Counsel for the employer contend that by the decision in Overland Publishing Co. v. H. S. Croaker Co., Inc., 193 Cal. 109 [222 Pac. 812], this court has limited the principles established and applied in the Parkinson case. However, in the Overland case the plaintiff, who was engaged in the stationery business, brought suit for damages under the Cartwright Act (Stats. 1907, p. 984, as amended, Deering’s Gen. Laws, Act 4166 [Deering’s Gen. Laws 1937, Act 8702]) against the members of the Printers’ Board of Trade, an association of stationers which, it was charged, constituted a combination in restraint of trade. The complaint alleged, among other things, that the defendants had entered into agreements with the printers, pressmen, and bookbinders’ unions in San Francisco by which the union members agreed to work for only such stationers as were members of the defendants’ association, and pursuant to that agreement all plaintiff’s union employees were called out on strike “solely pursuant to an order of the defendants” in order to compel plaintiff to join defendants’ association. The court held that these acts were in violation of the Cartwright Act. That determination has no bearing upon the facts of the present case. The attempt to induce an employer to become a member of an employers’ association is not reasonably related to either the working conditions or the bargaining power of the union members and was plainly an unlawful object of concerted action on their part. Nor can the contention be sustained that, whatever justification may exist for defendants’ conduct under the general principles of equity, sections 920-923, inclusive, of the California Labor Code compel the conclusion that the defendants’ actions are unlawful interference with their rights. In the case of Shafer v. Registered Pharmacists Union Local 1172, S. F. No. 16200 (post, p. 379 [106 Pac. (2d) 403]), which was considered and decided concurrently with the appeal in the present case, it was held that this legislation does not prohibit closed union shop contracts nor lay any restrictions upon labor in its efforts to compel employees to join a particular union. Considering other allegations of the complaint, the defendants are charged with a conspiracy to cause damage to the plaintiffs and their employer. However, the employer is seeking no relief, although the threatened injury to it may affect the plaintiffs; that is, as the complaint charges, unless the defendants are restrained, the employer intends to and will discharge plaintiffs if they do not join the Salesmen’s Union. The threatened damage to the employer, therefore, has significance only in so far as it may, by reason of economic pressure and choice, result in damage to the plaintiffs. Moreover, the damage to the plaintiffs may not accurately be characterized as loss of their jobs or absolute denial of their “right to work”, as much of the argument in some of the briefs implies. The extent of the damage to the plaintiffs is no more than presentation of a choice between leaving the work of their present employer, either voluntarily or upon its demand, or joining the Salesmen’s Union. This choice is forced upon them by the concerted action of other salesmen who are competing with them in the sale of automobiles and by the .members of allied trade unions. It is also urged that the complaint shows that the plaintiffs have established their own labor organization to bargain collectively with the employer and that under such conditions any attempt by the defendants to “unionize” them or to interfere with their employment relations is unlawful. But there are two fundamental and equally conclusive reasons why this contention cannot be sustained. First, this is a suit in which the employees only are seeking relief. The employer, although named as a party defendant, did not make an appearance in the trial court. Assuming, without deciding, that an employer may be entitled to equitable protection from injury to his business as the result of a true jurisdictional dispute between rival unions, it is, nevertheless, the settled law of this state that a group of the employer’s workers can claim no such protection. This conclusion follows inescapably from the principles established in Parkinson Co. v. Building Trades Council, supra. The interest of the defendant unions in inducing the plaintiffs to join a union satisfactory to them is just as substantial as it would be if the plaintiffs were unorganized. The element of competitive struggle between workmen is still present, except that the group of thirty-two self-organized salesmen in the present case is a stronger competitor than was the lone tinner in the Parkinson ease. The case of Greenwood v. Building Trades Council, 71 Cal. App. 159 [233 Pac. 823], is squarely in point and decisive of the question. There a dispute had arisen between two rival unions in the building trades industry. Sheet Metal Workers Union, Local 162, had been chartered by the American Federation of Labor; Sheet Metal Workers Union, Local 2, was not affiliated with the A. F. of L. but it was a member and had the recognition of the local Building Trades Council, a group of A. F. of L. unions. Local No. 162 refused to pay dues to the Building Trades Council, which in turn sent notices to all the building trades employers that its members would refuse to work on construction jobs where members of Local No. 162 were employed. In a suit for injunctive relief brought by the members of Local No. 162 it was held, upon the authority of the Parkinson case, that the boycott instituted by the members of the Building Trades Council could not be enjoined. It must be deemed settled, therefore, that one labor union may not have the protection of equity against the lawful competitive activities of a rival union. Moreover, the facts alleged by the plaintiffs do not sufficiently show that they have organized a bona fide independent labor union. The complaint alleges only that they have “united, organized and designated three of their number a committee ‘to bargain with the company’ in accordance with the terms of the Wagner Labor Relations Act”; that the committee notified the company and the Regional Director of the National Labor Relations Board of plaintiffs’ choice of bargaining representative; and that the “company then and there recognized said committee as bargaining agents for the entire sales force ...” The effect of the averments concerning the National Labor Relations Act need not be considered, for nowhere in the complaint does it appear that the National Labor Relations Board has certified the plaintiffs’ organization as a bargaining agent, or even that the Howard Automobile Company is engaged in interstate commerce. Moreover, the allegations that they formed a labor organization “in accordance with the Wagner Labor Relations Act” is a mere legal conclusion. The remaining allegations fall far short of affirming the existence of a freely organized and independent trade union. The plaintiffs constitute only a portion of the employees of a single plant; they have no affiliation with any external labor organization; and they apparently have no constitution, bylaws, pledges or rules. In addition there is an apparent unity of interest between the plaintiffs and the defendant employer which negatives any inference that the plaintiffs have a bona fide and independent bargaining organization. The need for specific allegations concerning the nature of such an organization is clear where, as here, the complaint itself is the only evidence before the court in deciding the issue of temporary injunctive relief. It has been demonstrated that the granting of temporary injunctions in labor disputes usually has the effect of determining and terminating the entire controversy. (Frankfurter and Greene, The Labor Injunction, p. 47 et seq.) The legislature has declared that interference by an employer in the collective bargaining processes of his employees is contrary to the public policy of this state. (Labor Code, sec. 923.) This necessarily means that employee organizations are unlawful when they are formed, subservient to the employer’s will, chiefly in order to forestall the unionization of his plant by independent labor unions. To be sure, the functional weakness of a single-department organization like the present one is not itself proof of employer domination. But it is a factor which should lead a court to scrutinize carefully all the circumstances surrounding its formation. (See 40 Columb. L. Rev. 278.) If the legislative policy is to be made effective courts cannot close their eyes to the subtle realities of industrial strife. Of course, the employer and its salesmen argue that the appellants have no right to interfere with relations which are entirely satisfactory to them. This position ignores the broader rights of labor in seeking to advance the interests of the worker by more thorough and complete organization. And although it is undeniable that many unworthy persons within labor’s ranks have abused their power, on the other hand, the record of employers is not one of entirely altruistic purposes. Labor insists that in a free economy, the right to tell the public, upon whose patronage both depend for existence, the facts concerning employment in any particular business, is essential to its welfare and entirely consistent with democratic principles. The public ultimately pays the full cost of every labor dispute and better la^or relations must be established. But if they cannot be brought about by enlightened self-interest the remedy lies with the legislature—not in the courts—in so far as contests peaceably conducted for a purpose legitimately connected with the welfare of labor as a whole is concerned. The orders are, and each of them is, affirmed. Gibson, C. J., and Carter, J., concurred.
MOORE, J., pro tem., Concurring. I concur. The question involved in this case is whether the picket line around defendant employer’s establishment is illegal. If the picket line be maintained by threat to use force or if its aim be to achieve an illegal purpose, it should be enjoined. But if it is maintained by neither immoral nor illegal means and if its purpose is to effectuate a lawful end, it should not be subjected to any restrictive order of the court. The allegations of the complaint do not set forth that any act has occurred whereby plaintiffs suffer any fear of violence. Hence, upon that ground defendants cannot be enjoined. We have, therefore, to determine (1) whether defendants purpose to effectuate the execution of a contract between the employer and the union be an illegal practice, and (2) whether the peaceful picketing by defendants to persuade the employer to execute such a contract gives occasion for equity to interfere. In order to enforce a demand reasonably related to labor conditions a union is justified, by a long line of decisions, in resorting to any peaceable legal means. The courts have supported the union’s right to strike, picket and boycott in the enforcement of such demands including the right to induce those in sympathy with its cause to withdraw patronage from an employer. (Parkinson Co. v. Building Trades Council, 154 Cal. 581 [98 Pac. 1027, 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550]; Pierce v. Stablemen’s Union, 156 Cal. 70 [103 Pac. 324] ; Lisse v. Local Union, 2 Cal. (2d) 312 [41 Pac. (2d) 314].) If the motive actuating a strike is immaterial (Greenwood v. Building Trades Council, 71 Cal. App. 159 [233 Pac. 823]) we must then determine whether the fact that union and individual defendants are not employees of the defendant automobile company renders their picket line illegal. If the acts of defendants are to be condemned, such condemnation must be founded upon statute or upon court decisions or it must be shown to violate good morals. We find no language in the Labor Code that outlaws a contract between union and employer. The chief aim of sections 921-923 was to remove from the path of labor the yellow dog contract at first canonized in some court decisions but later repudiated by legislatures and by the highest courts. Section 921 inhibits the promise at the time of employment of either worker or employer to join or not to join or withdraw from an employer or an employee organization. Section 922 forbids anyone to coerce an applicant for employment not to join a labor organization. This is an apparent effort of the legislature to preserve the economic freedom of the toiler from the oppression of the employer. But the legislature could not have intended to suppress competition among workers. They have the same right to carry on their struggle as they have always had since the decision by this court in the Parkinson case. A part of the program of every labor group is to gain the favor of employers and the effort of any group will not be interrupted by the courts because such effort may result in the defeat of a minority or of a majority. The struggle for existence and the struggle for supremacy of labor groups, as among themselves, should continue unhindered by judicial interference so long as they maintain peace and order. Nowhere have the lawmakers suggested that an organized group of workers shall not seek to induce an employer, by peaceable means, to enter into a contract to the effect that he will employ only members of their organization or affiliated bodies. The argument is made that the success of the union’s picket will require the Howard Automobile Company to violate public policy as defined by section 922. But section 923 clearly indicates that it was the employer against whom the workers are to be protected. After there declaring why negotiation between employer and employee " should result from voluntary agreement between employer and employees”, it proceeds: “Therefore, it is necessary that the individual workman have full freedom of association” etc., and “that he shall be free from the interference, restraint or coercion of employers ’ ’ etc. That the legislature could not have intended to limit the activities of any labor union in seeking advantage over another is emphasized by the facts: (1) That the right to do so was vouchsafed by the Parkinson decision more than thirty years ago, and (2) that said sections of the Labor Code are the fruit of the effort of organized labor. The Norris-La Guardia Act, which is a fair attempt to express the public policy of the nation in regard to labor controversies, makes provision that a labor dispute includes any controversy seeking to arrange terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee. In Lauf v. E. G. Shinner & Co., 302 U. S. 669 [58 Sup. Ct. 41, 82 L. Ed. 516], the Supreme Court held that while an employer cannot coerce his employees, yet the union may compel him to do so. If then the picket line of the defendants is peaceably maintained and if its purpose is to enforce a demand of the workers upon the employer of labor, wherein lies its illegality? Certainly the right of a worker to publish his criticism, and to speak freely of an employer’s attitude toward union labor will not be denied even though the legislature may attempt by statute to curb such criticism. (De-Jonge v. State of Oregon, 299 U. S. 353 [57 Sup. Ct. 255, 81 L. Ed. 278] ; Herndon v. Lowry, 301 U. S. 242 [57 Sup. Ct. 732, 81 L. Ed. 1066] ; 14th Amendment, United States Constitution.) If labor should be prohibited from publishing all the facts concerning employment by an. employer, the worker would be deprived of rights emphatically and often declared. The assertion that defendants “conspired” to injure the employer could have no significance unless they were engaged in a criminal or unlawful enterprise. (Parkinson Co. v. Building Trades Council, supra.) The demands of a union to strengthen its forces cannot be deemed unlawful even though there be no controversy between the employer and his employees. (In re Lyons, 27 Cal. App. (2d) 293 [81 Pac. (2d) 190].) There is no provision in the organic law which forbids the unions of organized labor from competing with unorganized workers. In the case of Senn v. Tile Layers Protective Union, 301 U. S. 468 [57 Sup. Ct. 857, 81 L. Ed. 1229], Justice Brandeis said: “Earning a living is dependent upon securing work; and securing work is dependent upon public favor. To win the patronage of the public, each may strive by legal means. Exercising its police power, Wisconsin has declared that in a labor dispute peaceful picketing and truthful publicity are means legal for unions. It is true that disclosure of the facts of the labor dispute may be annoying to Senn even if the method and means employed in giving publicity are inherently unobjectionable. But such annoyance, like that often suffered from publicity in other connections, is not an invasion of the liberty guaranteed by the Constitution. ... It is true that disclosure of the facts may prevent Senn from securing jobs which he hoped to get. But the hope for a job is not property guaranteed by the Constitution. The diversion of it to a competitor is not an invasion of a constitutional right.” Also, in the case of Nann v. Raimist, 255 N. Y. 307 [174 N. E. 690, 73 A. L. R. 669], it was declared by Justice Cardozo that the legality of defendant’s conduct is not affected by the fact that no strike was in progress in any of the plaintiff’s shops; that if the defendant believed in good faith that the policy pursued by plaintiff and by the shops united with the plaintiff was hostile to the interests of organized labor and was likely, if not suppressed, to lower the standards of living in the trade, defendants had the privilege by the pressure of notoriety and persuasion to bring its own policy to triumph. See Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260 [157 N. E. 130], where it was held that in order that a union may prevail, it may call a strike and picket the premises of an employer with the intent of inducing him to employ only union labor. “Picketing without a strike is no more unlawful than a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured.” (Ibid.) If the legislature had intended to outlaw a contract between a union and an employer, obligating the employer to hire only members of the labor organization, it would have said so in terms unmistakable, for the subject has been aired in the American courts for more than a generation and has long been the theme of the publicist and the editor. Men engaged in the serious undertaking of enacting laws for a great commonwealth could not have overlooked a matter of such universal importance. On the contrary, the lawmakers have afforded to organized labor every reasonable device for the conduct of its campaign to effectuate its plan of procuring employment for union members to the exclusion of other workers. For illustration, section 1011 of the Labor Code inhibits an employer from misrepresenting the bind of labor in his employ. Section 1110 upholds an agreement between two or more persons to do or not to do any act in furtherance of any trade dispute between employers and employees. In the Parkinson case, supra, the entire court agreed that the attempt by defendant to secure a closed union shop was a legitimate objective. Therefore, since there is no statutory inhibition against the contract which defendant union seeks to have defendant automobile company enter into with said union, and since this court has already held that such a contract is a legitimate objective, for this court now to deprive an organized group of workers from procuring the execution of such a contract, where they are using only peaceful persuasion to achieve their purpose would render the court a law-making body instead of a law-interpreting tribunal.
CURTIS, J., Dissenting. I dissent. This is an action by certain individuals, thirty-two in number, employed as salesmen by defendant Howard Automobile Company, to enjoin defendant Retail Automobile Salesmen’s Local Union, No. 1067, its members, and those acting on its behalf from picketing the place of business of the Howard Automobile Company and advertising the business as unfair to labor. A demurrer interposed by the defendants to the joint complaint filed by the plaintiffs was sustained with leave to amend by the trial court, and the temporary restraining order theretofore issued was dissolved and the application for a temporary injunction was denied. This appeal is taken from the order dissolving the temporary restraining order and denying the application for a temporary injunction. As the case was decided upon the sustaining of a demurrer, by virtue of which fact the allegations of the complaint are necessarily accepted as true, a brief résumé of the complaint is necessary. The pertinent facts therein alleged are as follows : (1) Plaintiffs are all salesmen of the Howard Automobile Company, a corporation engaged in the auto selling and repairing business in San Francisco and elsewhere and are all satisfied with the terms, pay, hours of work, conditions of employment, and desire to continue therein, and the company is satisfied with the terms, pay, hours and conditions of employment and with plaintiffs ’■ services and desires to continue plaintiffs in its employ. (2) In May of 1937, at San Francisco, plaintiffs then and there all of the salesmen of said company organized and designated three of their number a committee to negotiate rates of pay, wages, hours of labor and other conditions of employment with the company in accordance with the terms of the Wagner Act and said committee notified the company and the Regional Director of the Labor Relations Board of their choice of a bargaining representative and the company then and there recognized the committee as the bargaining agent for the entire sales force, to wit, all of the plaintiffs. (3) No labor dispute of any kind, nor any controversy concerning terms or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, existed between any of the plaintiffs and the company. (4) None of the plaintiffs has been or now is engaged in any dispute with the company concerning wages, hours, conditions of labor or otherwise. None has been or now is on strike. There has been and now is no discussion or negotiations concerning terms of employment, hours of labor, wages or working conditions. None of the plaintiffs is a member of any of the defendant unions and none of them has any desire or has signified any desire or intention of becoming a member of any of the defendant unions. None of the plaintiffs has been or is now a party to any agreement with any of the defendant unions, or any other labor organziation, and none of the plaintiffs has ever requested any of the defendant unions to act or negotiate for any of the plaintiffs as a permanent agency or otherwise. (5) All of the defendant unions have rules, regulations, by-laws and agreements enforceable by fines and penalties binding upon their respective members not to pass picket lines or to do business with plants and firms under picket, and said company employs members of all of said associations. The placing of a picket on the company’s plant will, pursuant to such by-laws, rules, regulations and agreements, compel all of the members of each of the unions to abstain from visiting, delivering goods to, accepting goods from, or transacting business with or working for said company. (6) The Retail Automobile Salesmen’s Local Union, No. 1067, has solicited plaintiffs to join the union, but plaintiffs have refused to do so and in consequence of plaintiffs’ refusal, the said union has placed a picket around the place of business of the company, the members thereof congregated there in numbers and announced their intention to maintain the picket until the company compels plaintiffs to join said union or discharge them. (7) The continuance of the picket on the company’s plant .has closed it down, stopping all work and destroying its business and the company will, unless the defendant union is restrained, discharge all of plaintiffs or require them to join the union. None of the pickets is an employee of the defendant Howard Automobile Company. The Labor Council has approved the picket and has appointed a Board of Strategy to devise ways and means of exerting pressure and coercion on the company and plaintiffs to sign a contract with and join the union, and has placed the company on the “We don’t patronize” list. At the outset, in order to prevent “irrelevant sparring with ghosts” as one of the attorneys herein aptly phrased it, it is essential that we state the issue exactly, definitely and clearly eliminate from consideration all extraneous matters, and avoid the pitfall of assuming to be facts certain assumptions which are wholly unwarranted. It should first be noted that plaintiffs salesmen employees are not unorganized, but are a group of organized employees who have selected three of their number to deal with their employer as their representatives to negotiate rates of pay, wages, hours of labor, and other conditions of employment with the company. And for the purpose of presenting a precise picture of the situation, it should be pointed out that the unions of craft workers did not strike in order to compel the unionization of the entire Howard plant, but that their refusal to work was merely occasioned by the existence of the picket line which union rules forbade them, under severe penalties, to cross. It is also to be borne in mind that none of the plaintiffs salesmen is a membei of the Retail Salesmen’s Local Union, No. 1067, and that the defendant Retail Salesmen’s Local Union, No. 1067, is a total stranger seeking to compel the plaintiffs salesmen employees to join its organization and select it as its representative to negotiate with their employer. It is also highly important to note that there is absolutely nothing in the pleadings to warrant any assumption that the present organization of the plaintiffs employees is what is called a “company union” or is dominated by the employer. Certainly the" allegation that the relations between employer and employees are harmonious and no dispute exists between them with reference to wages, salaries, or hours of employment does not afford any basis whatever for such an assumption. Much of the arguments seeking to justify the union’s action in this controversy is based upon the fundamental error of assuming that the present organization is a “company union”. As before stated, there is not one iota of reason for such an assumption, and any arguments based thereon are, of course, spurious. It should also be stated that there are no allegations in the complaint charging the pickets with violence, physical coercion, or intimidation, and hence it must be taken for granted that such picketing has been peaceful. The sole question involved in this case was phrased by the trial judge as follows: “Is it lawful for a labor union by peaceful picketing to attempt to induce an employer to employ only persons who are members of the picketing union when there is no strike and the employees of the picketed employer are satisfied with their employment and do not desire to join the union?” In one of respondents’ briefs, it is stated that the activities of the union are not directed toward the employer, and are not directed toward an effort to induce the employer to do anything, but are directed solely toward “inducing and persuading” the salesmen, who have refused to join the union, to join the union. However, facing facts squarely, the conclusion is inescapable that the activities in which the Retail Automobile Salesmen’s Local Union, No. 1067, are engaged are directed toward a coercion of the employer, Howard Automobile Company, to compel the members of its automobile sales force to join the Retail Automobile Salesmen’s Local Union, No. 1067. Any other statement of the purpose of such activities is merely an evasion of the issue. The question may, therefore, be more correctly stated as follows: Is it lawful for a labor union to picket an employer’s place of business for the purpose of compelling the employer to coerce his employees to join the picketing union, when the employees are definitely opposed to joining said union, and there is no controversy between the employer and those employees ? While sections 921 and 923 of the Labor Code remain on the statute books in California, the answer, in our opinion, must be in the negative. Section 921 of the Labor Code provides: “Every promise made after August 21, 1933, between any employee or prospective employee and his employer, prospective employer or any other person is contrary to public policy if either party thereto promises any of the following: “ (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 granting of legal or equitable relief by any court against a party to such promise, or against any other persons who advise, urge, or induce, without fraud or violence or threat thereof, either party thereto to act in disregard of such promise. ’ ’ Section 923 of the Labor Code furnished the rule of construction for the interpretation of section 921 and the other two sections which comprise this chapter of the Labor Code. Said section is as follows: “In the interpretation and application of this chapter, the public policy of this state is declared as follows: “Negotiations 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 condition