Kaplan's Fruit & Produce Co. v. Superior Court

NEWMAN, J., Concurring.

The words of the Moscone Act that I think encase the Legislature’s intent are these (italics added): “(a) In order to promote the rights of workers to engage in concerted activities for the purpose of. ..picketing. . ., and to prevent the evils which frequently occur when courts interfere with the normal processes of dispute resolution between employers and recognized employee organizations, the equity jurisdiction of the courts in cases involving or growing out of a labor dispute shall be no broader than as set forth in subdivision (b) of this section, and the provisions of subdivision (b) of this section shall be strictly construed in accordance with existing law governing labor disputes with the purpose of avoiding any unnecessary judicial interference in labor disputes.

“(b) The acts enumerated in this subdivision, whether performed singly or in concert, shall be legal, and no court nor any judge nor judges thereof, shall have jurisdiction to issue any restraining order or preliminary or permanent injunction which, in specific or general terms, prohibits any person or persons, whether singly or in concert, from doing any of the following: (1) Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace. (2) Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers. (3) Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests....

“(d) Nothing contained in this section shall be construed to alter the legal rights of public employees or their employers, nor shall this section alter the rights of parties to collective-bargaining agreements under the provisions of Section 1126 of the Labor Code.

“(e) It is not the intent of this section to permit conduct that is unlawful including breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises where a labor dispute exists, or other similar unlawful activity.”

Unfortunately, in effect the majority here rule that passage of the Moscone Act in 1975 had no significant impact on California labor law. That hardly comports with the act’s origins and history. It was patterned after the Norris-LaGuardia Act, whose pertinent aims have briefly been summarized as follows: “... Congress was dealing only with the problem of the labor injunction. See H. R. Rep. No. 669, 72d Cong. 1st Sess. (1932) Ser. No. 9492; Sen. Rep. No. 163, 72d Cong. 1st Sess. (1932) Ser. No. 9487; (1932) 75 Cong. Rec. 5464, 5467; Frankfurter and Greene, [The Labor Injunction (1930)] at 215: ‘But the immunity accorded is circumscribed; it is not immunity from legal as distinguished from equitable remedies,—hitherto unlawful conduct remains unlawful.... ’ ‘The measure under discussion merely deals with the most insistent issues presented by the labor injunction as utilized by the federal courts.’ Ibid, at 226; Frankfurter and Greene, Congressional Power Over the Labor Injunction (1931) 31 Col. L. Rev. 385, 408: ‘... the bill only withdraws the remedy of injunction. Civil action for damages and criminal prosecution remain available instruments. Illegal strikes are not made legal.’ Norris, Injunctions in Labor Disputes (1932) 16 Marq. L. Rev. 151; cf. Frankfurter and Greene,.. .at 226, n. 61: ‘.. .one of the present writers, at the suggestion of the Senate Subcommittee on the Judiciary, collaborated with others... in drafting the. bill.... ’ Moreover, section 3 of the Norris-LaGuardia Act deals with ‘yellow dog’ contracts. Here, Congress thought it necessary expressly to refer to ‘legal,’ as distinguished from ‘equitable,’ relief. Cf (1932) 75 Cong. Rec. 4767.” (Note, Labor Disputes and the Sherman Act (1941) 29 Cal.L.Rev. 399, 403, fn. 18(c).)

That, even as amended, the bill that became Code of Civil Procedure section 527.3 was comparably designed is evidenced by its subdivision (d): “Nothing contained in this section shall be construed to alter the legal rights of public employees or their employers, nor shall this section alter the rights of parties to collective-bargaining agreements under... Section 1126 of the Labor Code.” (Italics added.) That first clause excludes equitable rights. The second, contrastingly, protects both equitable rights and legal rights. (Section 1126 of the Labor Code states, “Any collective bargaining agreement. . .shall be enforceable at law or in equity ....”)

Subdivision (e) of section 527.3 is parallel: “It is not the intent of this section to permit conduct that is unlawful....” By no means do any clauses of the Moscone Act “permit” breaches of the peace, disorderly conduct, the blocking of access or egress to premises where a labor dispute exists, or similar unlawful activity. Why not? Because by obvious implication the draftsmen carefully preserved traditional recourse to criminal prosecution and damages in tort.

These words in the majority opinion (at p. 78, ante) appear to me to lack perception: “The Union’s proposal compels a strained construction of subdivision (b). That subdivision states that the acts there enumerated—essentially peaceful picketing not involving fraud, violence, or breach of the peace—‘shall be legal.’ The ordinary, common sense meaning of this declaration is that such acts are lawful. From that construction it follows that the obstruction of access, being unlawful both under prior law and subdivision (e), does not fall within the conduct protected by subdivision (b). Under the Union’s interpretation, when the Legislature declared an act to be ‘legal,’ it did not mean that such acts were ‘lawful,’ but that they are subject to the jurisdiction of courts of common law instead of equity. We think it improbable that the Legislature intended to use the term ‘legal’ in such a narrow, technical, and unusual fashion.”

True, subdivision (b) does declare that certain conduct is “legal”. Yet it also confirms that fraud, violence, and breach of the peace are not legal. Further, subdivision (e) adds that disorderly conduct, certain blockings of access or egress, and similar activities are not legal. Criminal prosecution and actions for damage caused by all those illegal activities are, therefore, appropriate. Because of differences in wording between subdivision (b) and subdivision (e), however, only breach of the peace, fraud, and violence may be enjoined.

The words in subdivision (b) that “no court nor any judge nor judges thereof, shall have jurisdiction to issue any restraining order or preliminary or permanent injunction”—as well as related words in subdivision (a) and in the statute’s preamble¹ —indicate that the aim that did survive in the Legislature, notwithstanding last-minute amendments to the bill,² indeed was to relegate the employer to (1) complaints to the police, and (2) his common law remedies—even when those recourses might, under the equity precedents, technically be regarded as “inadequate.”

It is disappointing that the Supreme Court of California, after more than half a century and notwithstanding the recent, plausibly incompatible, California legislative history, now appends this decision to the judicial history that Messrs. Frankfurter and Greene in 1930 assailed so graphically and devastatingly in their book The Labor Injunction. My opinion is that the court thus appears needlessly regressive. (Cf. Christ, Is the Norris Act Constitutional? (1932) 19 Va.L.Rev. 51; Shatz, Picketing Injunctions in California. . .(1977) 28 HastingsL.J. 801, 836: “It would be anomalous indeed to conclude that the legislature, after reciting a litany of complaints as to the present injunction practice, enacted a statute which codified the status quo. The broader ‘union’ interpretation receives some further support from what little legislative history there is.” Also cf. Wilson & Co. v. Birl (3d Cir. 1939) 105 F.2d 948 and Alliance Auto Service v. Cohen (1941) 341 Pa. 283 [19 A.2d 152].)

I concur in the majority’s disposition of this proceeding (part 4 of Justice Tobriner’s opinion). I have stated my separate views, though, because I do not believe that the superior court has been correctly instructed regarding its proposed new proceeding.

1 Section 1 of Statutes 1975, chapter 1156, page 2845, provides: “In the interpretation and application of this act the public policy of this state is declared as follows:

“Equity procedure that permits a complaining party to obtain sweeping injunctive relief that is not preceded by or conditioned upon notice to and hearing of the responding party or parties, or that issues after hearing based upon written affidavits alone and not wholly or in part upon examination, confrontation and cross-examination of witnesses in open court, is peculiarly subject to abuse in labor litigation for each of the following reasons:

“(a) The status quo cannot be maintained, but is necessarily altered by the injunction.

“(b) The determination of issues of veracity and of probability of fact from the affidavits of the opposing parties which are contradictory and, under the circumstances, untrustworthy rather than from oral examination in open court, is subject to grave error.

“(c) The error in issuing the injunctive relief is usually irreparable to the opposing party.

“(d) The delay incident to the normal court of appellate procedure frequently makes ultimate correction of error in law or in fact unavailing in the particular case.”

2 For comment on “the final, hectic days of that legislative session’” and the likely impact on last-minute amendments see People v. Tanner (1979) 24 Cal.3d 514, 542 [156 Cal.Rptr. 450, 596 P.2d 328].