Majority
This appeal is from a judgment denying a petition for a writ of mandate. Petitioners seek reinstatement in respondent union, having been expelled for “conduct unbecoming a member.’’ The conduct involved is their “peaceable, open, public, active, and vigorous campaign and support” for Proposition 18, the “right-to-work” law, in contravention of the expressed official policy of the union. (Respondents will be referred to in the singular.)
Petitioner Mitchell was a member of respondent from 1942 to July 8, 1959, the date of his expulsion. Petitioner Mulgrew was a member from 1953 until his expulsion on July 8, 1959. Both petitioners have been continuously employed by the California Division of Lockheed Aircraft from 1942 and 1953 respectively to the present time. Pursuant to an agreement between respondent union and Lockheed, the former is the exclusive bargaining representative of the company’s employees in the bargaining unit described therein. Petitioners are
Proposition 18 was an initiative measure placed on the 1958 ballot for the general election held in California on November 4. It sought to alter the state Constitution so that both closed shops and union shops would be prohibited in this state. The proposition was defeated by a majority of the voters. The trial court found that respondent was reasonable and justified in regarding the effect of the initiative measure as a serious threat to its best interests, strength, welfare, and existence.[1]
It was further found that petitioners, as individual citizens and “as union members” supported Proposition 18 in the manner stated above by, among other things, issuing releases to the press, distributing handbills, and making speeches on television and before groups in various parts of the State of California. It was not found that they purported to represent their union. They conducted their campaign although they were aware of the union’s opposition to the measure and the union’s recommendation that its members oppose adoption in every possible legal way.[2]
Petitioners were charged with conduct unbecoming a member of the union and tried on January 13, 1959. They were found guilty as charged. Petitioners waived in open court any claims relating to the regularity of the internal union trial or appeal procedure. The trial court affirmed the union’s determination that petitioners’ acts constituted conduct unbecoming a member and concluded as a matter of law that the expulsions were justified and not in contravention of public policy or petitioners’ constitutional rights.
1 Support for this conclusion may be found in the opinion of Justice Shenk in DeMille v. American Fed. of Radio Artists, 31 Cal.2d 139 , 145-146 [ 187 P.2d 769 , 175 A.L.R. 382 ],
2 Although respondent asserts in its briefs that petitioners publicly ridiculed and criticized their union, and further hints that they purported to represent their union in the course of their campaign, it does not appear that they were so charged, and the trial court did not so find. Any attempt to justify the expulsions must be founded solely upon petitioners’ public campaign as 1!individual citizens and as union members.” (Finding of fact No. IX, O.T. p. 172.)
It would seem proper to begin by dispelling two troublesome illusions. The first is that unions are purely voluntary organizations like Republicans, Democrats, Elks, and church groups. A modern labor union, both in structure and in function, bears little resemblance to other voluntary associations. (Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 , 1051.) “It is this omnipotent analogy that leads the courts astray.” (Williams, The Political Liberties of Labor Union Members, 32 Tex. L. Rev. 826 , 829.) Unions can be distinguished from other voluntary organizations in many respects. Most importantly, a large part of their power and authority is derived from government which makes it exclusive bargaining agent. Further, they are not primarily social groups which require homogeneous views in order to retain smooth functioning. They are large, heterogeneous groups, whose members may agree on one thing only—they want improved working conditions and greater economic benefits. The union’s power, when considered together with its source, imposes upon it reciprocal responsibilities toward its membership and the public generally that other voluntary organizations do not bear. (James v. Marinship Corp., 25 Cal.2d 721 , 731 [ 155 P.2d 329 , 160 A.L.R. 900 ]; Chavez v. Sargent, 52 Cal.2d 162 [ 339 P.2d 801 ] ; Betts v. Easley, 161 Kan. 459 [ 169 P.2d 831 , 166 A.L.R. 342 ].)
Secondly, it cannot be assumed that the only value in membership is job retention. Even though a member may keep his job when expelled, his expulsion causes him to suffer a detriment the apprehension of which would no doubt have a coercive effect on the membership. First of all, it is not clear what his rights would be if he quit his job to seek another, at least in intrastate commerce. Also, he has a financial
A review of the case law in and around this area will serve to orient the reader. There are two important cases dealing with the power of the union to use dues or assessments for political purposes opposed by individual contributing members. The most recent is International Assn, of Machinists v. Street, 367 U.S. 740 [ 81 S.Ct. 1784 , 6 L.Ed.2d 1141 ]. This was an action to enjoin enforcement of a union shop agreement entered into pursuant to the permissive language of section 2, eleventh, of the Railway Labor Act, which also permits expulsion for nonpayment of dues. Certain members contended that the union could not use, over their objections, their dues to support political candidates and doctrines which they opposed. The Supreme Court held in favor of the members, interpreting the Railway Labor Act as prohibiting the use of members’ contributions for the support of political causes which they oppose, when they make their objection known. The history of the Railway Labor Act was reviewed, and at page 764 the opinion concludes that the purpose of section 2, eleventh was merely to permit coercion of all employees to share the expenses incurred by the union in the pursuit of its economic objectives. Therefore the use of funds for political purposes falls outside of the very reasons underlying adoption of the legislation. Mr. Justice Frankfurter wrote a dissenting opinion. Distinguishing that ease from ours, he conceded that “a totally different problem than the one before the Court would be presented by provisions of union constitutions which in fact prohibited members from sponsoring views which the union opposed, ...” (Pp. 805-806.) The other case is DeMille v. American Fed. of Radio Artists, 31 Cal.2d 139 [ 187 P.2d 769 , 175 A.L.R. 382 ], It
Other groups of cases involving the question of the extent of the limitation on personal rights imposed by union membership have been fairly well categorized by the writers. At one extreme there are the “treason” cases in which an individual’s acts are patently antagonistic to the continued existence of the union as a collective bargaining agent. Company spies and dual unionists are two examples. (See Summers, supra, at p. 1059 et seq. See also Davis v. International Alliance etc. Employees, 60 Cal.App.2d 713 [ 141 P.2d 486 ].) Similar eases are those in which members impair adherence to the collective bargaining agreement by violating work rules, working below scale, and engaging in wildcat strikes. (See Williams, supra, at p. 831.) The courts lose no time in such cases in upholding union discipline. At the other extreme are cases in which the courts frustrated union attempts to inter
3 Or, conversely, the extent to which a member may express political views contrary to the union position and still insist upon membership.
Somewhere between these two extremes lies the small group of eases involving political activity by members, obligatory only in the moral sense, which the union as a whole opposes. Spayd v. Ringing Rock Lodge No. 665, 270 Pa. 67 [ 113 A. 70 , 14 A.L.R. 1443 ], involved an action by a member of the union to compel reinstatement following expulsion for violation of a rule prohibiting any member from using his influence to defeat any action taken by union officials concerned with legislation. Plaintiff was expelled because he signed a petition asking the Legislature to reconsider its adoption of the “full crew law.” Using every legal theory available under the circumstances, the court held that the union’s action violated plaintiff’s property rights, the Constitution, and public policy. Concluding, the opinion states, at page 73 [113 A.], “The right here involved, and the voting franchise, are the only means by which peaceful changes in our laws and institutions may be sought or brought about, and they cannot, with safety to the state, or the whole body of the people, be gathered into the hands of the few for any purpose whatsoever.”
There are two eases which appear to be opposed in principle to the Spayd case. In Pfoh v. Whitney (Ohio App.), 62 N.E. 2d 744 , the plaintiff had been suspended from the union for supporting Wendell Wilkie for President when the union officially supported Roosevelt. Plaintiffs had circulated a letter with a letterhead which appeared as follows: “Labor’s Wilkie for President National Committee.” It was signed:
“E.E.Pfoh
E. E. Pfoh, Past President
B. of R. T. Lodge No. 132.”
4 Williams, supra, at p. 832, describes Pfoh v. Whitney as an aberration which was probably decided by a rabidly pro-F.D.R. judge.
With respect to the second, few subjects in the history of western civilization have drawn such a unanimity of support. In a dissenting opinion Mr. Justice Brandéis observed, “The right of a citizen of the United States to take part, for his own or the country’s benefit, in the making of federal laws and in the conduct of the Government, necessarily includes the right to speak or write about them; . . . Full and free exercise of this right ... is ordinarily also his duty; for its exercise is more important to the Nation that it is to himself. ” (Gilbert v. Minnesota, 254 U.S. 325 , 337-338 [ 41 S.Ct. 125 , 65 L.Ed. 287 ].) In Sweezy v. New Hampshire, 354 U.S. 234 , 250-251 [ 77 S.Ct. 1203 , 1 L.Ed.2d 1311 ], it was said, “Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. . . . History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. . . . The absence of such voices would be a symptom of grave illness in our society.” Further quotation is unnecessary. Suffice it to say that the unlimited freedom to express political views is the very heart of a democratic body, pumping the lifeblood of ideas without which our system could not survive.
As to the union’s interest in excluding obnoxious members, it would be completely unrealistic to assume that unions are composed of like-thinking individuals. It is only when dissident views are expressed in a forum where they have a chance of acceptance that the member becomes “undesirable.” But expulsion cannot serve to quiet the individual. It can
As to the interest of the union in presenting a unified front, this cannot be gainsaid. And where activity of the union is directly designed to attain economic goals, such as the decision to strike or not to strike, or adherence to the collective bargaining agreement, judicial regard for this interest has already been demonstrated. And it is 'no doubt true that economic and political objectives of unions frequently cannot be treated as completely separate things.[5] The DeMille case is an outstanding example of judicial cognizance of the connection. But still a distinction should be made in this context. Where purely economic activity is concerned, the community interest is not so deeply involved as it would be if the entire union membership in the nation were limited in its political expression (on matters of legitimate union interest) to the opinions of the majority or the union leadership. If this were the case we would be deprived of an immeasurably important source of political thought. Furthermore, so long as the individual member purports to represent only himself, and not his union, the union’s public position is not diluted.[6]
5 Archibald Cox, professor of law at Harvard and presently Solicitor general of the United States, says, “It is difficult, if not impossible, to separate the economic and political functions of labor unions. Right-to-work laws affect union organization and collective bargaining. Legislation subjecting unions to the antitrust laws or confining their scope to the employees of a single company would greatly weaken their bargaining power, if it did not destroy them altogether. Although it seems unlikely that the LMRDA will seriously impair the strength of labor organizations, many union leaders hold an opposite view which time may prove correct. Political action in these spheres of union interest is hardly more than incidental to the union’s economic activities. A similar link exists even when a union takes political action upon a broader front. The basic philosophy of a President and his party affects appointments to agencies like the National Labor Relations Board, which in turn exerts tremendous influence upon the course of labor relations; Even the tariff impinges on labor negotiations. The bargaining power of the Hatters Union, for example, is affected by the competition of low-cost foreign goods.’’ (Cox, Law and the National Labor Policy IT960] p. 107.)
6 “For many years labor unions were extraordinarily fragile. Dissent created strains which might easily cause disintegration. The risks of dissension were increased by the unions’ vulnerability to attacks by employers. Conformity to group decisions was the price of survival. It seems doubtful, however, whether this factor should be given as much weight under modem conditions. Labor unions have achieved strength and stability. The centrifugal forces are counterbalanced by full-time *806 officials, professional staffs, and, often, closely-knit internal organization. Furthermore, disagreement upon political issues, even upon the desirability of a right-to-work law, does not go to the heart of a labor union’s functions.” (Cox, supra, note 5 at p. 110.)
With respect to the manner in which the campaign was conducted, petitioners did speak as union members. But they did not purport to represent their union as did the expelled members in the Pfoh and Harrison cases.
It could not be more apparent where the balance lies. On this point, Cox, supra, page 111, has this to say: “It needs no argument to demonstrate the importance of freedom to pursue personal political activities. It begs the question to say that a man has a right to engage in whatever political activity he wishes but no right to be a union member. The question is whether there will be an excessive loss of freedom
In support of its contention that a union has the same right as any voluntary organization to determine its membership, respondent cites Steele v. Louisville & N.R. Co., supra; Ross v. Ebert, 275 Wis. 523 [ 82 N.W.2d 315 ] ; and Oliphant v. Brotherhood of Locomotive Fire & Eng., 156 F.Supp. 89 . The Steele case merely interpreted the Railway Labor Act as requiring that a union designated as sole bargaining agent must represent all members of the bargaining unit without discrimination—specifically nonmember Negroes. In dictum it was stated that the Railway Labor Act did not deny a union the right to determine eligibility of its membership. The Boss and Oliphant cases held that a union cannot be compelled to take members it does not want. Again Negroes were involved. But these cases did not involve the policy question here presented. Exclusion of minority groups does not have the coercive effect which inheres in the threat of expulsion for advocacy of political views.[7]
Respondent further contends that petitioners failed to exhaust their internal remedies. They conducted their
7 It is interesting to note that with respect to the right of an employer to attempt to influence his employee’s political activities, the California legislature has spoken. Labor Code, section 1101, reads: "No employer shall make, adopt, or enforce any rule, regulation or policy: . . . "(b) Controlling, or directing, or tending to control or direct the political activities or affiliations of employees.” Section 1102 reads: "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity. ’'
The judgment is reversed.
Ashburn, J., and Herndon, J., concurred.
A petition for a rehearing was denied December 8, 1961, and respondents’ petition for a hearing by the Supreme Court was denied January 9, 1962.
8 The trial court's finding of fact to the contrary is merely a conelusion of law, with which we disagree.
9 Petitioners did pursue their appeal and lost after this action was filed.
Cases cited
- James v. Marinship Corp. 25 Cal.2d 721 at 731 p. 799
- Chavez v. Sargent 52 Cal.2d 162 p. 799
- Steele v. Louisville & Nashville Railroad 323 U.S. 192 p. 800
- International Ass'n of Machinists v. Street 367 U.S. 740 p. 800
- DeMille v. American Federation of Radio Artists 31 Cal.2d 139 p. 800
- Davis v. International Alliance of Theatrical Stage Employees 60 Cal.App.2d 713 p. 801
- Angrisani v. Stearn 167 Misc. 731 p. 802
- Gilbert v. Minnesota 254 U.S. 325 at 337-338 p. 804
- Sweezy v. New Hampshire ex rel. Wyman 354 U.S. 234 at 250-251 p. 804
- American Federation of Labor v. American Sash & Door Co. 335 U.S. 538 p. 806
- Hook v. Southern California Waiters Alliance 158 Cal.App.2d 556 p. 808