Glenn v. Clearman's Golden Cock Inn, Inc.

McMURRAY, J. pro tem.

*

This is an appeal by certain plaintiffs from a judgment of dismissal entered by the trial court after the granting of defendant’s motion for judgment on the pleadings. A motion for judgment on the pleadings is tantamount to a demurrer and admits the material facts alleged in the pleadings of the adverse party and challenges their sufficiency to state a cause of action (39 Cal. Jur.2d, Pleading § 305). The main question on this appeal is, therefore, whether or not the facts alleged state a cause of action as a matter of law.

(Paraco, Inc.,

v.

Department of Agriculture,

118 Cal.App.2d 348, 351 [257 P.2d 981].)

Succinctly, the facts pleaded herein are that the appellants were employees of the respondent prior to September 2, 1958, at the respondent’s place of business in San Gabriel, California ; that on or before that date the appellants signed appli

[795]

cations for membership in the Culinary Workers and Bartenders Union, Local Number 531; and that on the above date the respondent discharged the appellants and since has refused to employ them for the reason that the appellants designated Local Number 531 to be their collective bargaining representative.

The question therefore arises whether the provisions of the Labor Code, specifically sections 922 and 923, provide a basis for civil liability where an employee at will is discharged for union activity. The respondent contends that the allegations of the complaint show only a criminal offense.

Section 922 of the Labor Code provides, in part, that “ [a]ny person or agent or officer thereof who coerces or compels any person to enter into an agreement, written or verbal, not to join or become a member of any labor organization, as a condition of securing employment or continuing in the employment of any such person

is guilty of a misdemeanor.”

(Emphasis added.)

The respondent takes the position that the statute above quoted and section 923 of the Labor Code outlaw only the so-called “yellow dog contract” and that the pretrial order contains no allegation that the parties entered into such a contract. The appellants’ allegations were (1) their employment, (2) their joining the union, and (3) the termination of that employment. It was further alleged that the termination of employment was solely because of the appellants’ union activity. True, the appellants have not expressly alleged that “an agreement, written or verbal, not to join . . . any labor organization” existed. However, liberally construing the complaint and pretrial order, as we must, such an allegation is necessarily implicit in both of them.