From this review of the cases it is clear that, as to labor disputes to which federal law is in no way applicable, picketing to compel an employer to sign a closed shop agreement is picketing for a lawful purpose even when none of the employees are union members. We are now told, however, that these cases have been superseded, in many respects by later law both statutory and decisional, and that to engage in the task of distinguishing and discussing them now would be a work of supererogation. It is true that the McKay case has been superseded on its precise facts by the Jurisdictional Strike Act, if the employees’ committee there resisting the union was not financed in whole or in part, interfered with, dominated or controlled by the employer. The McKay case did not hold, however, as suggested by the majority opinion in the present case, that the Labor Code was ineffective as against the constitutional rights of the defendants. Detailed discussion of section 923 was reserved by the majority in the McKay case for treatment in Shafer v. Registered Pharmacists, Union, decided at the same time, and as stated above, that case squarely held, not that the Labor Code was constitutionally ineffective, but that those sections lay no statutory restraints upon the workers' efforts to secure a closed shop contract from an employer. The court candidly recognized that the argument supporting the present majority's interpretation of section 923 had been accepted by several state courts, but it expressly concluded that such argument is not in accordance with the law of this state, as judicially declared for many years, nor is it based upon a fair construction of the California Labor Code, considering its history and purpose. Moreover, the controlling effect of the Shafer case cannot be avoided by the suggestion that perhaps the employees here involved had selected a committee to represent them and that therefore the Jurisdictional Strike Act is applicable. The pleadings and findings are barren of any suggestion that plaintiffs are seeking relief under the provisions of that act, and it may confidently be assumed that if there were any factual basis for such relief, plaintiffs would not have overlooked it. Accordingly, unless federal law has changed the rule of the Shafer case when interstate commerce is involved, there is no basis in state law for an award of damages in this case.
In Park & Tilford Import Corporation v. International Brotherhood of Teamsters we grappled with the effect of federal law on state law in this area. At the time of that decision the federal statute made it an unfair labor practice for an employer to enter into a closed shop agreement with a union that did not represent a majority of his employees. It was not an unfair labor practice, however, for a union to picket or use other concerted activity to compel an employer to sign such an agreement. The federal statute as then drawn embraced only employer unfair labor practices, and the National Labor Relations Board had no jurisdiction to provide a remedy for union conduct. We applied state law, but incorporated federal law.
We reasoned that since under federal law it was unlawful for the employer to acquiesce in the union's demand for a closed shop, the union's demand and picketing in support of that demand were concerted activities for an improper purpose. These activities were unlawful as a matter of state law because state law adopted the federal characterization of the objective as improper.