Thorman

This is an appeal by the defendants from a judgment granting to the plaintiff a writ of mandate to compel his admission to membership in the defendant Local 162 of the Moving Picture and Projecting Machine Operators of the City and County of San Francisco. Damages in the sum of $1,289.70 and $1,500 attorney fees were also awarded to the plaintiff.

Local 162 is a member of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. Through contracts with 66 of the 70 motion picture theaters in San Francisco it controlled working conditions for projectionists and machine operators. It limited the number of journeymen members to 112 all of whom were regularly employed, and in addition dispatched machine operators and projectionists for another 175 jobs from the membership of other locals. The plaintiff is an experienced and qualified machine operator, having been engaged in that work since 1942 except for Army service. He is a member of Local B18, a subsidiary of Local 162. Over and above his dues to Local B18, he is required to pay a "working fee" to Local 162 in the same amount as its journeymen members.…

This is an appeal by the defendants from a judgment granting to the plaintiff a writ of mandate to compel his admission to membership in the defendant Local 162 of the Moving Picture and Projecting Machine Operators of the City and County of San Francisco. Damages in the sum of $1,289.70 and $1,500 attorney fees were also awarded to the plaintiff.

Local 162 is a member of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. Through contracts with 66 of the 70 motion picture theaters in San Francisco it controlled working conditions for projectionists and machine operators. It limited the number of journeymen members to 112 all of whom were regularly employed, and in addition dispatched machine operators and projectionists for another 175 jobs from the membership of other locals. The plaintiff is an experienced and qualified machine operator, having been engaged in that work since 1942 except for Army service. He is a member of Local B18, a subsidiary of Local 162. Over and above his dues to Local B18, he is required to pay a “working fee” to Local 162 in the same amount as its journeymen members. However,…

I dissent.

The crucial question in this case is whether the union is committing an unfair labor practice that affects interstate commerce within the meaning of the Labor Management Relations Act. If it is, exclusive jurisdiction is vested in the National Labor Relations Board. (Garner v. Teamsters etc. Union, 346 U.S. 485, 501 [ 74 S.Ct. 161 , 98 L.Ed. 228 ].) Jurisdiction of the subject matter may not be conferred upon the court by the parties (Sampsell v. Superior Court, 32 Cal.2d 763, 773, 776 [ 197 P.2d 739 ]), and lack of such jurisdiction may be raised for the first time on appeal. (Costa v. Banta, 98 Cal.App.2d 181, 182 [ 219 P.2d 478 ].) In the present case the jurisdictional question was not only raised on appeal but before, during, and after the trial; and proof was taken on that issue. Seven Up Bottling Co. v. Grocery Drivers Union, 40 Cal.2d 368, 372 [ 254 P.2d 544 , 33 A.L.R.2d 327 ], is not in point, for there the question of interstate commerce was not raised. (See Seven Up Bottling Co. v. Grocery Drivers Union, ante, p. 625 [ 320 P.2d 892 ].) In the present case the defendants raised the issue in a demurrer, which was overruled, wherein it was pleaded that the…