DocketNumber： S. F. No. 18522
Citation Numbers： 43 Cal. 2d 788, 278 P.2d 905, 1955 Cal. LEXIS 386, 35 L.R.R.M. (BNA) 2391
Judges： Schauer, Traynor
Filed Date： 1/18/1955
Status： Precedential
Modified Date： 10/19/2024
Cutter Laboratories, Inc., appeals from a judgment entered upon the granting of an order confirming the award of an arbitration board. (See Code Civ. Proc., §§ 1291-1293.) By the award, rendered by two of the three arbitrators with the third dissenting, it was held that appellant (hereinafter sometimes termed the company) had discharged one of its employes in violation of a collective bargaining agreement between appellant and the Bio-Lab Union (hereinafter sometimes called the union) of Local 225, United Office and Professional Workers of America, and that the employe was entitled to reinstatement and to back pay limited by the bargaining agreement to eight weeks regular pay less any outside earnings or unemployment compensation received during such period. We have concluded that, upon the undisputed evidence and upon the facts found by the arbitration board, the company is correct in its contention that the arbitrators exceeded their powers, that the award is contrary to law, that it would'contravene public policy for the courts of this state to enforce reinstatement of the discharged employe, and that the judgment must therefore be reversed.
From extensive findings made by the arbitration board it appears that the employer, Cutter Laboratories, Inc., with offices and laboratories located in Berkeley, manufactures and sells throughout the United States and certain foreign countries vaccines, serums, antitoxins and other antibiotics for both civilian and military use. During World War II
The Bio-Lab Union of Local 225, United Office and Professional Workers of America C.I.O., was recognized in February, 1944, by the company pursuant to a National Labor Relations Board election. It is a union “generally denominated as 'left-wing”’ and it as well as the U.O.P.W.A. was expelled from the C.I.O. in March, 1950.
The discharged employe, Mrs. Doris Walker, graduated from the University of California School of Jurisprudence in 1942, and is an active member of The State Bar of California. She was elected to Phi Beta Kappa and to the editorial board of the California Law Review. From 1942 to 1944 she was employed as an enforcement attorney with the federal Office of Price Administration in San Francisco and from 1944 to 1946 as an attorney with a firm of lawyers in the same city. She left the law firm and secured employment as a cannery worker sorting and trimming vegetables in three canneries in Oakland and San Francisco and (later in 1946) as an organizer for the Food and Tobacco and Agricultural Workers Union. She testified that she went to law school “because I was interested in becoming a labor lawyer” and that she left the law firm because her “time was spent on routine civil matters . . . and I became dissatisfied with my work and felt that I would rather take a more active role in the field in which I was interested and so I quit in order to take a job in a plant.”
In October, 1946, Mrs. Walker sought employment at Cutter Laboratories and filled out an application form supplied by the company, on which under the heading of “Education” she concealed her attendance at law school, her law degree, and her admission to practice law in this state. Under the heading “Previous Employment” she concealed her entire previous employment record and showed a false employment as file clerk for six or eight months in 1939 by “John Tripp Att’y,” which the company later discovered to be a fictitious name. Mrs. Walker also gave a dentist and a lawyer in San Francisco as references, but at her request their letters
At the company plant Mrs. Walker became active in union affairs and in April, 1947, was elected shop chairman and also a member of the executive board of Local 225. Late in 1948 she was elected chief shop steward; her duties as steward took her to all departments in the plant except the executive and administrative departments and primarily entailed representing the union in grievances arising under its collective bargaining agreement with the company. In the spring of 1949 she was elected president of Local 225; her term expired December 15, 1949, and a new president was elected.
Meanwhile, in May, 1946, following proceedings before the National Labor Relations Board, the company and the union entered into a contract; in January, 1947, the wage provisions thereof were opened and a 10 cent hourly wage increase agreed upon. In April, 1947, Mrs. Walker had been elected shop chairman and during the same month she and another union official learned that they were being investigated by the company as to past employment, character, and Communist affiliation. In June, 1947, the union served notice of intention to amend the contract and at the same time filed with the National Labor Relations Board an unfair labor practice charge against the company based on the investigations. A week-long strike ensued in August, 1947, which was settled following the intervention of Harry Bridges and as a result of negotiation with him. June 9, 1949, the contract was again opened, solely as to wages, and November 30, 1949, a two-year contract was agreed upon; on October 6, 1949, during the negotiations and at a time when company officials were angry at certain activities of Mrs. Walker purportedly in connection with union demands, the company’s discharge of Mrs. Walker which is here involved took place.
At the time of the discharge a company official read to Mrs. Walker the following notice:
“Mrs. Walker: As you are aware, the company has known for some time that when you applied for work with Cutter Laboratories on October 4 1946, you made a number of false representations on your ‘Application for Employment’.
*793 “As we know now, you falsified the statement of your education so as to conceal the fact that you had completed a law sheool [sic] course at the University of California’s School of Jurisprudence at Berkeley in May, 1942. You concealed the facts that you received the degree of Bachelor of Laws in May, 1942, and that you were admitted to the State Bar of California on December 8, 1942. You concealed that since that date you have at all times been admitted and entitled to practice as an attorney before all of the-Courts of California.
“We know now that by falsification of the name of a previous employer, you concealed the fact that from June, 1942 to February, 1944 you were employed by the Federal Government’s Office of Price Administration, including employment as an Enforcement Attorney at a salary of about $3,200.00 a year.
“We know now that you deliberately concealed from us that from February 1944 to December, 1945 you were employed as an attorney by Gladstein, Grossman, Sawyer and Edises, a well-known firm of lawyers specializing in labor cases.
“You know that a few weeks ago the ‘Labor Herald’, the official CIO newspaper, stated that the National Labor Relations Board had sustained a cannery firm that had discharged you for refusing to answer whether or not you were a Communist.
“We have checked the records. We know now that you deliberately concealed that in 1946, just before you applied for work here, you were employed by a series of canneries and had been discharged by them.
“Ordinarily, an employee of the Company would be discharged immediately for falsifying material facts on an ‘Application for Employment’. Because you were an officer of the Union we kept you on the pay roll rather than open ourselves to a charge of persecuting a union officer. We have given your case careful consideration because we know very well that no matter how strong the case against you there will be a claim of discrimination because of union activities.
“Because no employer wants to become involved in a dispute of that kind we have been patient and deliberate in our consideration of your misconduct.
“On October 1, 1948, when you testified under oath before a Trial Examiner of the National Labor Relations Board, you refused to answer the question as to whether or not you were a member of the tiommunist Party.
“You refused to answer under oath the question as to*794 whether or not you were or had been a member of the Federal Workers’ Branch'No. 3 of the Communist Party.
“You refused to testify under oath whether or not you were or had been a member of the South Side Professional Club of the Communist Party.
“We are convinced now, that you were and still are a member of the Communist Party, that you were a member of the Federal Workers’ Branch No. 3 of the Communist Party, and that you were a member of the South Side Professional Club of the Communist Party.
“Our recent investigation of your past record has uncovered previously unknown conduct that goes far beyond a mere concealment of material facts. We have just completed a thorough investigation and have a full report upon your past activities. We realize now the importance of the facts that you concealed from us. We realize the full implications of your falsification and misrepresentations. A follow-up and investigation of the ‘Labor Heralds’ recent revelations has uncovered a situation far more grave than we expected.
“We are convinced now that for a number of years, you have been and still are a member of the Communist Party. We are convinced beyond any question that for a number of years you have participated actively in the Communist Party’s activities.
“The nature of our company’s business requires more than the usual precaution against sabotage and subversion. Upon a disclosure that any employee is a member of the Communist Party, or has participated in other subversive or revolutionary activity, we conceive it to be the responsibility of management to take action.
“Confronted with such a situation, any inclination to be lenient or to grant a union official special consideration is out. In the face of your record there is no alternative open to us except to terminate your services at once. Accordingly, you are notified now that you are discharged for the causes mentioned. You will be paid the full amount due to you promptly.”
“Shortly after” the notice was read to Mrs. Walker, it was likewise read to plant employes at a meeting called by the company. At the meeting statements were made by company officials “either to the entire group or in private discussion afterward, advising employees ‘to get out of that left-wing union’ and telling them that ‘nothing but a left-wing union would press for wage increases at this time.’ ” Following the discharge of Mrs. Walker negotiations between the union and*795 the company continued, and as already mentioned a two-year contract was agreed upon on November 30, 1949; it provided for wage increases and other contract changes. The company also agreed to, and did, pending the holding of a union-shop election, join the union in urging all eligible employes and all newly-hired eligible employes to become and remain members in good standing of the union.
The arbitration board further found that on October 5, 1949, following a grievance meeting with union representatives earlier in the day and prior to discharging Mrs. Walker on October 6, officials of the company met with its attorneys and considered evidence which the attorneys had marshalled and which may be summarized as follows:
a. State Bar records showed no California lawyer named John Tripp (a name given by Mrs. Walker to the company, as a previous employer), but that there was such a lawyer with the given names of John Tripp; it developed that he was Mrs. Walker’s supervisor in the O.P.A. (1942-1944).
b. A transcript of N.L.R.B. hearings of September 30 and October 1, 1948, in proceedings by discharged cannery workers, including Mrs. Walker, for reinstatement with back pay, showed a refusal by Mrs. Walker to answer the question, “are you or were you ever a member of the Communist Party?”
e. Statements to the following effect which appeared in certain of the Reports of the Joint Fact-Finding Committee on Un-American Activities in California for the years 1943, 1945, 1947, 1948 and 1949: That Mrs. Walker’s O.P.A. supervisor associated with persons said to be “members of the Communist Party organization”; that “attorneys for the Communist Party are” the firm of labor lawyers by whom Mrs. Walker was employed in 1944 to 1946; reporting the identity of the Communist Political Association with the Communist Party despite a change of name “for strategic reasons May 20-23 1944”; giving a biography of one Archie Brown, an admitted Communist Party member and a candidate for various public offices on that ticket and mentioning sponsors of his from various unions including the United Office and Professional Workers of America; and indicating that the “People’s Daily World,” a newspaper, is “the official organ of the Communist Party on the west coast.”
d. Four issues of the “People’s Daily World” contained items concerning Mrs. Walker: her employment by the labor law firm in February, 1944, was mentioned; she was listed as*796 a 1944 alternate delegate to a State Committee of “the Communist Political Association”; and in October, 1946, a radio program was noted which she conducted on behalf of a committee “for Archie Brown for Governor . . . the Communist write-in candidate.”
e. A photostatic copy of an unaddressed handwritten letter dated “7/10/46” and signed with Mrs. Walker’s maiden name discussed the propriety of the introduction of a resolution on the maritime strike at the Cannery Workers Club by the writer and another, and stated that “I tried to evaluate my action, as I try to evaluate whatever I do, from the point of view of the welfare of the working class and the strengthening of the Party.”
f. Two “unidentified undated documents contained biographical material” about Mrs. Walker and stated, among other things, that she was issued 1945 Communist Party membership card No. 40360, that she joined the Communist Party in 1942 and had held various positions in various clubs and sections of the party including the “Cannery Club,” that her present husband was a Communist Party member and organizer, and that, in February, 1946, she listed on a Communist Party interview form the information that “she gave up law practice because it was frustrating to work with people she had to work with (namely, professional people).”
Mrs. Walker was not shown the above described evidence when she was discharged, but was confronted with it at the arbitration board hearing, and company attorneys asked her a series of questions concerning it and her Communist affiliations and activities, including the • questions, “Are you now or have you ever been a member of the Communist Party?” and “Isn’t it a fact, Mrs. Walker . . . that the reason why you sought employment ... at Cutter Laboratories was because you felt and believed, and had it in mind, that by obtaining that employment at that plant you could more actively and more effectively carry on the program and the activities of the Communist Party?” Mrs. Walker’s attorney objected to the questions on the grounds, among others, that the political affiliations of an employe are immaterial and that by not acting more promptly the company had waived the Communism issue as a ground for discharge. The board overruled the objections but also announced that Mrs. Walker would not be instructed to answer the questions “if she did not care to do so, but that if she refused to answer we would draw all justifiable inferences from the refusal. ’ ’ Mrs. Walker
It was further found by the board that the company’s 1947 investigation of Mrs. Walker indicated that she was a Communist and also disclosed most of the omissions and falsifications in her application for employment, that “a strong ease” had been made out that in 1948 the company learned of her cannery activities and of the cannery hearings, and that there was “at least a general indifference on the part of the Company about Doris Walker’s activities until the autumn of 1949 and a specific indifference about obvious . . . clues to her background.” The company stated that the reason they did not discharge Mrs. Walker in 1947 was because of a desire to “lean over backward” rather than to be accused of harassing union officials and because company attorneys advised that there was at that time insufficient evidence to support a discharge.
Under the provisions of the collective bargaining agreement in effect when Mrs. Walker was discharged, the company had agreed not to interfere with, restrain or coerce employes or discriminate against them because of membership or lawful activity in the union. It further agreed that, except for personnel reductions for lack of work or to effect economies, it would not discharge an employe “except for just cause.” Both the union and the company also agreed that they will not discriminate against “a present or prospective employee or member because of race, color, creed, national origin, religious belief, or Union affiliation”; formerly “political” as well as “religious belief” was listed in this contract provision, but by negotiation the word “political” was amended out of the agreement. The board held that although removal of the word “political” seemed to authorize the practice of discrimination because of “political belief,” “we are unable to conclude” that the company’s agreements not to discriminate because of union activity and not to discharge except for just cause were thereby limited or modified “in such a way as to dispose of this dispute.” In this connection it is to be noted that the old hoax that the Communist Party is but a political
The company at the board hearings advanced two grounds as the basis for discharging Mrs. Walker: “the omissions and falsifications in the Application for Employment and membership in the Communist Party, with the full implications of dedication to sabotage, force, violence and the like, which Party membership is believed to entail.” Although finding that the company “honestly believed all of these things,” and that the “accuracy of those beliefs is established in the record,” the board further found that the company had not satisfactorily explained the delay of two years (from 1947 to 1949) in asserting the grounds for discharge presented to the board and that such grounds were therefore stale. Finally, it was found by the board that the reasons assigned by the company were not its real reasons for discharging Mrs. Walker, and that actually the discharge, which occurred during wage negotiations, was “retaliatory in nature” and “interfered with, restrained and coerced an employee because of participation as an officer and negotiator on behalf of the Union in a wage negotiation.” As already stated, the board’s award, based on the above findings, was that the company’s discharge of Mrs. Walker violated the collective bargaining contract provisions against discrimination because of union activity and against discharging except for just cause, and that she' is entitled to reinstatement and to limited back pay. The company failed to comply with the award, the union petitioned the superior court for its confirmation, and the company asked the court that it be vacated. (See Code Civ. Proc., §§ 1287, 1288.) After a hearing the trial court confirmed the award, and this appeal by the company followed.
Section 1288 of the Code of Civil Procedure provides, so far as here material, that “In either of the following cases the superior court . . . must make an order vacating the award, upon the application of any party to the arbitration: . . .
“(d) Where the arbitrators exceeded their powers . . .”
As ground for reversal the company contends, among other things and as it contended before the trial court in seeking vacation of the award, that an arbitration award which directs that a member of the Communist Party who is dedicated to that party’s program of “sabotage, force, violence and the like” be reinstated to employment in a plant which produces antibiotics used by both the military and
In the case of Loving & Evans v. Blick (1949), 33 Cal.2d 603 [204 P.2d 23], this court reversed a judgment confirming an arbitrator’s award of a disputed sum owing under a building contract where it appeared that only one of the partners of the contracting firm was licensed as required by statute, and that neither the other partner nor the partnership held such a license. After referring to the principles that (p. 607) “a contract made contrary to the terms of a law designed for the protection of the public and prescribing a penalty for the violation thereof is illegal and void, and no action may be brought to enforce such contract” and that (p. 609) “ordinarily with respect to arbitration proceedings ‘the merits of the controversy between the parties are not subject to judicial review’ [citation] and that ‘arbitrators are not bound by strict adherence to legal procedure and to the rules on the admission of evidence expected in judicial trials,” it was held (p. 610) that the “power of the arbitrator to determine the rights of the parties is dependent upon the existence of a valid contract under which such rights might arise,” that “Section 1281 of the Code of Civil Procedure, providing for submission to arbitration of ‘any controversy . . . which arises out of a contract,’ does not contemplate that the parties may provide for the arbitration of controversies arising out of contracts which are expressly declared by law to be illegal and against the public policy of the state,” that (p. 611) “an unlawful transaction cannot be given legal vitality by the arbitration process,” that (p. 614) “the only evidence before the trial court showed without contradiction that the contract upon which the award was based was illegal and void because of respondents’ failure to comply with the licensing requirements,” and that therefore that court had erred in confirming the award. And in Franklin v. Nat C. Goldstone Agency (1949), 33 Cal.2d 628, 630-633 [204 P.2d 37], a judgment confirming an arbitration award in favor of unlicensed contractors was likewise reversed upon the ground that the basic contract was illegal because in violation of the statutes and of “the public policy of this state.”
It is at once apparent that the controversy now before us presents an even stronger case for refusal to confirm the award than was involved in the Loving & Evans and in the Franklin cases. There the illegality was held to exist in the
The Congress of the United States, in adopting the Internal Security Act of 1950, declared the dangers of the Communist movement in the following jerms_C(Act of Sept. 23, 1950, ch. 1024, tit. 1, § 2, 64 Stats. 987; 50 U.S.C.A. §781) :
“As a result of evidence adduced before various committees of the Senate and House of Representatives, the Congress finds that—
“(1) There exists a world Communist movement which in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.
“(2) The establishment of a totalitarian dictatorship in any country results in the suppression of all opposition to the party in power, the subordination of the rights of individuals to the state, the denial of fundamental rights and liberties which are characteristic of a representative form of government, such as freedom of speech, of the press, of assembly, and of religious worship, and results in the maintenance of control over the people through fear, terrorism, and brutality. . . .
“ (9) In the United States those individuals who knowingly and willfully participate in the world Communist movement, when they so participate, in effect repudiate their allegiance to the United States, and in effect transfer their allegiance to the foreign country in which is vested the direction and control of the world Communist movement. . . .
“(15) The Communist movement in the United States is an organization numbering thousands of adherents, rigidly*801 and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government, enact appropriate legislation recognizing the existence of such world-wide conspiracy and designed to prevent it from accomplishing its purpose in the United States.”_____
And in the Smith Act (Act of June 25, 1948, ch. 645, 62 Stats. 808; 18 U.S.C.A. § 2385) it was provided that “Whoever knowingly or willfully advocates, abets, advises, or teaches ' the . . . overthrowing or destroying the government of the United States or ... of any State ... by force or violence, or . . . Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who . . . encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such . . . assembly of persons, knowing the purposes thereof” is guilty of a crime.
More recently, in adopting the Communist Control Act of 1954 (Public Law 637, eh. 886, approved August 24, 1954), our Congress further expressed its, and necessitates our, awareness of the true nature of the party program and methods,fhiTEese findings of fact: “Sec. 2. The Congress hereby finds and declares that the Communist Party of the/ United States, although purportedly a political party, is ix( fact an instrumentality of a conspiracy to overthrow the Government of the United States. It constitutes an authoritarian dictatorship within a republic, demanding for itself the rights and privileges accorded to political parties, but denying to all others the liberties guaranteed by the Consti
nilar awareness was shown by the President of the United States in his State of the Union message delivered before a joint session of the Senate and the House of Representatives on January 7, 1954 (100 Congressional Record 62, H. Doc. 251), wherein he declared, “The subversive character of the Communist Party in the United States has been clearly demonstrated in many ways, including court proceedings. We should recognize by law a fact that is plain to all thoughtful citizens—that we are dealing here with actions akin to treason—that when a citizen knowingly participates in the Communist conspiracy he no longer holds allegiance to the United States.”
The Legislature of California itself has found as facts, and has so declared in section 1027.5 of the Government Code, that “. . . (a) There exists a world-wide revolutionary movement to establish a totalitarian dictatorship based upon force and violence rather than upon law. . . .
“(d) Within the boundaries of the State of California there are active disciplined communist organizations presently functioning for the primary purpose of advancing the objectives of the world communism movement, which organizations promulgate, advocate, and adhere to the precepts and the principles and doctrines of the world communism movement. These communist organizations are characterized by identification of their programs, policies, and objectives with those of the world communism movement, and they regularly and consistently cooperate with and endeavor to carry into execution programs, policies and objectives substantially identical to programs, policies, and objectives of such world communism movement. . . .
“There is a clear and present danger, which the Legislature of the State of California finds is great and imminent, that in order to advance the program, policies and objectives of the world communism movement, communist organizations in the State of California and their members will engage in concerted effort to hamper, restrict, interfere with, impede, or nullify the efforts of the State and the public agencies of the State to comply with and enforce the laws of the State of California ...”
Further evidencing the implications of membership in the Communist Party and the policy of the state in respect thereto, the Legislature has declared that (Gov. Code, § 1028) : “It shall be sufficient cause for the dismissal of any public employee when such public employee advocates or is knowingly a member of the Communist Party or of an organiza
Graphically depictive of the nature of the Communist conspiracy and of the extremes to which it is prepared to resort are the following statements by Mr. Justice Jackson, concurring in Dennis v. United States (1951), 341 U.S. 494, 564-565 [71 S.Ct. 857, 95 L.Ed. 1137,1181]: “The Communist Party, nevertheless, does not seek its strength primarily in numbers. Its aim is a relatively small party whose strength is in selected, dedicated, indoctrinated, and rigidly disciplined members. Prom established policy it tolerates no deviation and no debate. It seeks members that are, or may be, secreted in strategic posts in transportation, communications, industry, government, and especially in labor unions where it can compel employers to accept and retain its members. It also seeks to infiltrate and control organizations of professional and other groups. Through these placements in positions of power it seeks a leverage over society that will make up in power of coercion what it lacks in power of persuasion.
‘ ‘ The Communists have no scruples against sabotage, terrorism, assassination, or mob disorder; but violence is not with them, as with the anarchists, an end in itself. The Communist Party advocates force only when prudent and profitable. Their strategy of stealth precludes premature or uncoordinated outbursts of violence, except, of course, when the blame will be placed on shoulders other than their own. They resort to violence as to truth, not as a principle but as an expedient. Force or violence, as they would resort to it, may never be necessary, because infiltration and deception may be enough.
Other instances of recognition by the courts of the clear and present danger to this country and to its institutions presented by the Communist Party and its adherents may be found in decisions upholding the provisions of the Labor Management Relations Act of 1947, also Imown as the TaftHartley Act, (Act, June 23, 1947, ch. 120, § 1 et seq.; 61 Stats. 136 et seq.; 29 U.S.C.A. § 141 et seq.), which deny the privilege of being chosen as exclusive bargaining agent to a union whose officers have not filed with the National Labor Relations Board their affidavits denying membership or affiliation with the Communist Party and denying belief in the overthrow of the United States Government by force (see American Communications Assn., C.I.O. v. Douds (1950), 339 U.S. 382 [70 S.Ct. 674, 94 L.Ed. 925]; National Maritime Union of America v. Herzog (D.C., 1948), 78 F.Supp. 146, affirmed 334 U.S. 854 [68 S.Ct. 1529, 92 L.Ed. 1776]; Inland Steel Co. v. National Labor Relations Board (C.C.A. 7, 1948), 170 F.2d 247, 264-267, affirmed 339 U.S. 382 [70 S.Ct. 674, 94 L.Ed. 925]), as well as in eases sustaining other legislation or Congressional inquiry directed at exposing and controlling Communist activities in this country. (See Lawson v. United States (C.C.A., D.C., 1949), 176 F.2d 49, certiorari denied, 339 U.S. 934 [70 S.Ct. 663, 94 L.Ed. 1352]; United States v. Dennis (C.C.A., 2, 1950), 183 F.2d 201, 212-213, affirmed, Dennis v. United States (1951), supra, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137]; Barsky v. United States, (C.C.A., D.C., 1948), 167 F.2d 241, 247, certiorari denied, 334 U.S. 843 [68 S.Ct. 1511, 92 L.Ed. 1767]; Galvan v. Press (1953), 347 U.S. 522, 529 [74 S.Ct. 737, 98 L.Ed. 911].) In the Douds case, supra, the court pointed out that before enacting the Taft-Hartley Act “Congress had a great mass of material before it which tended to show that Communists and others proscribed by the statute had infiltrated union organizations not to support and further trade union objectives, including the advocacy of change by democratic methods, but to make them a device by which commerce and
Also relevant are the following comments of the court in Garner v. Board of Public Works (1950), 98 Cal.App.2d 493, 498 [220 P.2d 958], affirmed, (1951), 341 U.S. 716 [71 S.Ct. 909, 95 L.Ed. 1317], in upholding an ordinance requiring a loyalty oath for municipal employes: 1 ‘ One of the foundation stones of private business is that the employe must be loyal to his employer. Loyalty is implicit in the contract of hiring. No private business can long succeed without the conscientious, undivided support of its employes. The man or woman who denies allegiance to his employment is, and should be, soon separated from it. . . . And, so long as the employment continues, every employer has the right at any time to ask his employe to declare his loyalty.” To the same effect is the holding in National Labor Relations Board v. International Brotherhood of Electrical Workers (1953), 346 U.S. 464, 472 [74 S.Ct. 172, 98 L.Ed. 195], “There is no more elemental cause for discharge of an employee than disloyalty to his employer.” (See also National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937), 301 U.S. 1, 45-46 [57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352] ; RKO Radio Pictures, Inc. v. JArrico (1954), 128 Cal.App.2d 172 [274 P.2d 928] .) SFrom the array of congressional and legisla- " tive"ffin5iñgswEích have been quoted above, if not from the common knowledge of mankind, it must be accepted as conclusively established that a member of the Communist Party cannot be loyal to his private employer as against any directive of his Communist master.
We are of the view, further, that the type of activity engaged in by the employe here—;membership in the Communist Party and sustained participation in its activities&emdash;is one which as a matter of public policy the company should not be held to havewaived by its failure to discharge her earlier than it did. In the first place, itis an established principle that parties cannot be estopped from relying on defenses based on considerations of public policy, such as illegal contracts. (See Newel & Dawes, Inc. v. Pratt (1941), 17 Cal.2d 85, 91 [109 P.2d 650]; American Nat. Bank v. A. G. Sommerville, Inc. (1923), 191 Cal. 364, 371 [216 P. 376].) In the second place, the employe’s party membership was not shown or even asserted by her to have been an instance of past error but appears, rather, to have been the studied and calculated choice of a person of some intellectual
The fact that the company was not specifically obliged by any governmental regulation to discharge Mrs. Walker affects in nowise its right to do so or the impelling public policy which militates against the order for her reinstatement; in this country, built as it has been upon the initiative and self-reliance of its citizens, the government is expected to step in only where the employer has failed or is unable to act for himself, and he is not obligated to await a governmental decree before taking steps to protect himself or to exercise his right to discharge employes who upon the established facts are dedicated to be disloyal to him, to be likewise disloyal to the American labor union they may purport to serve, and who constitute a continuing risk to both the employing company and the public depending upon the company’s products.
Lastly, in the light of the undisputed evidence and of the specific findings of fact made by the arbitration board, it clearly appears that the eonclusional finding that Mrs. Walker was discharged because of her labor union activities is untenable. We have here an exemplification of that which Justice Jackson (in Dennis v. United States (1941), supra, 341 U.S. 494, 564 [71 S.Ct. 857, 95 L.Ed. 1137, 1181]) so clearly envisaged when he said of the Communist Party: “From established policy it tolerates no deviation and no debate. It seeks members that are, or may be secreted in strategic posts in . . . industry . . . and especially in labor unions where it can compel employers to accept and retain its members, ’ ’ and of that to which the court referred when it stated in American Communications Assn., C.I.O. v. Douds (1950), supra, 339 U.S. 382, 389 [70 S.Ct. 674, 94 L.Ed. 925] : “Congress [in enacting the Taft-Hartley Act] had a great mass of material before it which tended to show that Communists and others proscribed by the statute had infiltrated union organizations not to support and further trade union objectives . . . but to make them a device by which comand industry might be disrupted ...” The issue of labor union activity herein is manifestly a false one, a subterfuge injected not to promote the cause of American labor but to further the Communist Party line. Mrs. Walker, as a Communist, was not at any time or in any of her activities truly serving the cause of an American labor union or the interests of an American laboring man; she was but doing the bidding and serving the cause of her foreign master who “tolerates no deviation and no debate.” Her activities, therefore, upon any reasonable view of the evidence and the specific findings of fact, were not in truth union labor activities but were Communist Party activities.
Of no small significance in this connection is the fact that
The judgment is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.
Shenk, J., Edmonds, J., and Spence, J., concurred.