JOHN HUGHES et al., Petitioners, v. SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; LUCKY STORES, INCORPORATED, Real Party in Interest, 32 Cal. 2d 850

SCHAUER, J. Petitioners through certiorari seek annulment of a judgment of the Superior Court of Contra Costa County by which petitioners were found guilty of contempt of court for wilfully violating a preliminary injunction.

The injunction restrained petitioners and certain other individuals, as well as five named unincorporated associations, “from picketing or taking position in front of any of the places of business of Lucky Stores, Incorporated, for the purpose of compelling . . . [Lucky Stores, Incorporated, hereinafter termed “Lucky”] to do any of the following acts: “(1) the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize . . . [Lucky’s] stores.” We have concluded that, upon the principles enunciated in James v.

Marinship Corp. (1944), 25 Cal.2d 721, 745 [155 P.2d 329, 160 A.L.R. 900], and Park & Tilford I. Corp. v. International etc. of Teamsters (1946), 27 Cal.2d 599, 607, 614 [165 P.2d 891, 162 A.L.R. 1426], the injunction properly restrained picketing for the purpose described, and that the judgment of contempt should be affirmed. The controlling issue is whether the sole objective involved—■ the discriminatory hiring of a fixed proportion of Negro employes regardless of all other considerations—is lawful.

Relative to this issue it is to be particularly noted that here the only activity enjoined is “picketing . . . for the purpose of compelling . . . [Lucky] to . . . [engage in] the selective hiring of negro clerks . . . based on the proportion of white and negro customers who patronize . . . [Lucky’s] stores.” This is in contrast to the situation which was presented in Park & Tilford I. Corp. v. International etc. of Teamsters (1946), supra, 27 Cal.2d 599, wherein the injunction which had been issued broadly forbade “concerted activities” for any purpose.

As stated in that ease (p. 614 of 27 Cal.2d), “Since defendants, in connection with their concerted activities, made unlawful demands that plaintiff.sign a closed shop contract and coerce its employees to join defendant unions, it was permissible for the trial court to enjoin defendants from making such demands,” but (p. 607 of 27 Cal.2d), “The injunction . . . was not limited to enjoining such demands but prohibited defendant’s concerted activities and thus prevented defendants from exercising their right under the law of this state and of the federal government to engage in such activities for a closed shop. ” It is also to be borne in mind that the proceeding before us is not an appeal from the order granting an injunction but is a petition for certiorari to annul a contempt adjudication.

Petitioners allege that on June 21, 1947, approximately three weeks after the injunction issued, they picketed in front of Lucky’s Canal Store, “which store is located in the City of Richmond, County of Contra Costa, State of California, bearing placards which carried the following legend: ‘Lucky Wont Hire Negro Clerks in Proportion to Negro Trade— Dont Patronize’ that on the same day they were served with a citation to appear before the superior court on June 23, 1947, and show cause why they should not be adjudged in contempt; that on June 23 they were found guilty of “contempt of the aforesaid preliminary injunction” and received sentence.

Petitioners allege further that both on June 21, 1947, and prior to issuance of the injunction petitioners and the other defendants named in the injunction proceedings “were picketing to secure a change of employment policy and working condition of Lucky ... by seeking to have Lucky . . . hire at its Canal Store ... a number of Negro clerks proportionate to the number of Negro customers of said Canal Store ...

A demand for these changes in employment policy was made by your petitioners upon Lucky . . . before any picketing was done at the said Canal Store, which demand related to future vacancies and did not . . . contemplate the discharge of any of the present personnel of said Canal Store.” Each petitioner alleges that he is a member and officer of one of the associations named as defendants in the injunction and that each of such associations has a “substantial number of Negroes as members, in the City of Richmond.” It is also alleged that petitioners “individually, and as officers” of the associations “have an interest in promoting the employment by Lucky ... of Negro personnel and in improving the employment possibilities of Negro citizens, particularly of those Negro citizens who are members of the defendant organizations. “D.

The picketing conducted by your petitioners in their individual and representative capacities, and by the defendants . . . [named in the injunction] was designed to promote and foster the aforesaid interest in increasing the employment possibilities of Negro citizens. “E.

The City of Richmond, County of Contra Costa, State of California, has a large and growing Negro population in excess of ten thousand persons; unemployment among this Negro population is greatly disproportionate to the unemployment among the white persons in Richmond; traditionally, many industries and occupations are closed to Negroes and will remain closed until the Negro people can make effective their demand to obtain equality of opportunity for employment and to prevent economic discrimination against Negroes. “F.

The picketing ... [at all times] was peaceful and orderly, without force or violence; the pickets did not prevent the customers and employees of Lucky ... in going to and from the said Canal Store; the picketing was unaccompanied by misrepresentation, threats or intimidation of any sort.” Petitioners urge that the preliminary injunction violated their constitutional right of free speech and was therefore in excess of the court’s jurisdiction and void. If their position is sound, a judgment holding them guilty of contempt of the injunction will be annulled upon certiorari. (Fortenbury v.

Superior Court (1940), 16 Cal.2d 405, 407-409 [106 P.2d 411]; Kreling v. Superior Court (1941), 18 Cal.2d 884 [118 P.2d 470].) After the alternative writ issued, respondent superior court and Lucky, the real party in interest, joined in filing an answer and return.

They admit that the picket: ing by petitioners was without force or violence, but deny that it “was unaccompanied by misrepresentation.” They allege that Lucky’s “policy throughout has been to hire employees on their individual merit and capacity” and deny that Lucky has discriminated against the Negro race; certain affidavits in support of this allegation and denial are attached to the answer and return.

Respondent and Lucky contend, among other points, that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.

It is now established as the law 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.” (McKay v. Retail Auto. S. L. Union No. 1067 (1940), 16 Cal.2d 311, 319 [106 P.2d 373], and cases there cited; see also Magill Bros. v. Bldg. Service etc. Union (1942), 20 Cal.2d 506, 511-512 [127 P.2d 542]; People v. Dail (1943), 22 Cal.2d 642, 651 [140 P.2d 828]; In re Blaney (1947), 30 Cal.2d 643, 647 [184 P.2d 892].) Nevertheless, as emphasized in James v.

Marinship Corp. (1944), supra, 25 Cal.2d 721, 728-729 (see also authorities there cited), the state may protect against abuses of the right; “the object of concerted labor activity must be proper and . . . must be sought by lawful means, otherwise the persons injured by such activity may obtain damages or injunctive relief.” (See also Park & Tilford I. Corp. v. International etc. of Teamsters (1946), supra, 27 Cal.2d 599, 603; Northwestern Pac. R. R. Co. v. Lumber & S. W.

Union (1948), 31 Cal.2d 441, 446 [189 P.2d 277].) In the Marinship case the court was concerned with the “fundamental question . . . whether a closed union coupled with, a closed shop is a legitimate objective of organized labor.” (P.'730 of 25 Cal.2d.) We held that a union which holds a closed shop contract or other form of labor monopoly must admit Negroes “to membership under the same terms and conditions applicable to non-Negroes unless the union and the employer refrain from enforcing the closed shop agreement against them.” There was not in that ease any contention that the number of Negroes admitted to membership in the union or hired by the employer must be proportional, regardless of all other considerations, to the number of Negroes residing in the area or doing business with the employer.

The judgment awarding a preliminary injunction which “was clearly intended to do no more than eliminate discrimination upon the basis of race and color alone,” was affirmed. (P. 745 of 25 Cal.2d; see also Williams v. International etc. of Boilermakers (1946), 27 Cal. 2d 586, 588-593 [165 P.2d 903); Thompson v. Moore Drydock Co. (1946), 27 Cal.2d 595, 597-598 [165 P.2d 901].) It is apparent that the same principles which impelled affirmance of the judgment in Marinship require that the injunction and the contempt order in the ease now before us be upheld.

The parties in their briefs argue as to whether Lucky does or does not discriminate against Negroes in its employment of clerks, as to whether that matter was considered or determined by the trial court, and as to whether the affidavits treating of that matter and attached to the answer and return are properly before this court. It may be assumed for the purposes of this decision, without deciding, that if such discrimination exists, picketing to protest it would not be for an unlawful objective.

However, no such broad purpose is shown to have motivated the activities here and the judgment of contempt is not affected by such proposition.

Petitioners themselves specifically allege that their activities were “to secure a change of employment policy and working condition of Lucky ... by seeking to have Lucky . . . hire at its Canal Store ... a number of Negro clerks proportionate to the number of Negro customers of said Canal Store . . .”; the injunction which petitioners violated was directed at and limited to the narrow issue of “selective hiring of Negro clerks . . . based on the proportion of white and Negro customers”; and the placards carried by petitioners in the course of such violation bore the words: “Lucky wont hire Negro clerks in proportion to Negro trade—dont patronize.” The fact that the hiring by Lncky of a small proportion of Negro employes might tend to show discrimination against Negroes is beside the point; likewise it is immaterial here that Lucky denied any such discrimination.

The controlling points are that the injunction is limited to prohibiting picketing for a specific unlawful purpose and that the evidence justified the trial court in finding that such narrow prohibition was deliberately violated. If Lucky had yielded to the demands of petitioners, its resultant hiring policy would have constituted, as to a proportion of its employes, the equivalent of both a closed shop and a closed union in favor of the Negro race.

It would have had no choice but to employ only members of the Negro race in a fixed number of clerical positions, thus effectuating a closed Negro shop as to those positions. Moreover, because race and color are inherent qualities which no degree of striving or of other qualifications for a particular job could meet, those persons who are born with such qualities constitute, among themselves, a closed union which others cannot join.

It was just such a situation—an arbitrary discrimination upon the basis of race and color alone, rather than a choice based solely upon individual qualification for the work to be done —which we condemned in the Marinship ease, supra (25 Cal.2d 721, 737, 745).

The fact that those seeking such discrimination do not demand that it be practiced as to all employes of a particular employer diminishes in no respect the unlawfulness of their purpose; they would, to the extent of the fixed proportion, make the right to work for Lucky dependent not on fitness for the work nor on an equal right of all, regardless of race, to compete in an open market, but, rather, on membership in a particular race. If petitioners were upheld in their demand then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis.

Yet that is precisely the type of discrimination to which petitioners avowedly object. There has been some suggestion that the ease of New Negro Alliance v. Sanitary Grocery Co. (1937), 303 U.S. 552 [58 S.Ct. 703, 82 L.Ed. 1012], is in some way in point in this litigation, and isolated excerpts of the language in that opinion have been quoted to us.

But there is no serious contention that the Norris-LaGuardia Act (Act of March 23, 1932, ch. 90, 47 Stats. 70, 73, 29 U.S.C. §§ 101-115) operates in this ease to divest the state courts of jurisdiction in the premises and, in the New Negro Alliance ease, the only “matter in controversy,” as expressed by the court, was (p. 554 of 303 U.S.) “whether the case made by the pleadings involves or grows out of a labor dispute within the meaning of

section 13 of the NorrisLaGuardia Act” and, consequently, whether the United States District Court, by sections 4 and 7 of the act, was deprived of jurisdiction to issue an order in the premises. The question involved in the cited case is not one which we reach, and as that case contains neither a discussion of any of the considerations which impel our decision nor of any controlling constitutional principle, it provides no precedent of value in resolving any issue now before us. Petitioners assert that in Park & Tilford I. Corp. v.

International etc. of Teamsters (1946), supra, 27 Cal.2d 599, 607, we “held that peaceful picketing could not he enjoined regardless of the object of such picketing.” No such sweeping license was announced in that case.

The judgment there enjoined defendants from, among other activities, “any and all picketing or boycotting of plaintiff or of plaintiff’s business, products or merchandise.” (P. 603 of 27 Cal.2d.) We held, as previously shown, that at least one of the purposes of defendants in picketing was unlawful and that the judgment should be modified by limiting the injunction to the enjoining of defendants from continuing their activities in connection with that purpose; defendants’ activities in connection with lawful demands and purposes were freed from the injunction.

By contrast, the injunction in the case now ^ before us is limited to enjoining picketing for a specifically designated unlawful purpose, viz.: discrimination in favor of persons of the Negro race, based on race alone, and hence, arbitrary. Such injunction appears to have been properly issued, and the judgment of contempt based thereon will be / affirmed.

Lucky contends, further, that the picketing here in issue was not “a lawful exercise of the right” and not within the constitutional guarantee of free speech, because the defendants had “no relation to the labor contract,” the picketing was not directed at working conditions, and the dispute “is solely racial.” Lucky also urges that acceding to petitioners’ demands for proportional hiring would necessarily result in breach of its collective bargaining contract with the Retail Clerks Union.

However, by reason of the conclusion we have reached as to the unlawfulness of petitioners’ objective in their activities, and in view of the narrow limit of the injunction which issued and was violated, we do not reach these or other contentions of the parties. The judgment of contempt is affirmed. Shenk, J., Edmonds, J., and Spence, J., concurred. The injunction also restrained picketing for the purpose of compelling Lucky to discharge certain employes who had participated in the apprehension of a man accused of theft from one of Lucky’s stores located in the city of Richmond.

However, at the oral argument before this court counsel for the respective parties agreed that the issue concerning the discharge of such employes had been dropped from the case. We therefore treat the injunction as being directed solely against “selective” or “proportional” hiring.