Gantner & Mattern Co. v. California Employment Commission

I dissent.

This proceeding in mandamus was decided on the merits by the District Court of Appeal, is here pursuant to an order of transfer, and is now decided by this court likewise on the merits. The principal question, as I see it, is whether the statutory remedy of appeal to the commission after decision by the referee is an adequate remedy on behalf of petitioner in the light of the admitted facts and the proper construction of the statute. That the administrative remedy afforded by statute must be an adequate remedy is not disputed.

The rule of exhaustion of remedies does not require blind enforcement. It is an outgrowth of the rule that a petitioner may not invoke the extraordinary redress of the courts if he has another adequate legal remedy, exemplified in the rules governing the issuance of the writ of mandamus (sec. 1086, Code Civ. Proc.) and the writ of review (sec. 1067, Code Civ. Proc.). The basis of the rule excluding the petitioner from the redress sought is that his legal remedy is adequate. In contemplating the question of adequacy, realities as well as theories must be considered. This is the point at which I depart from the opinion of the majority.

In the…

This case was ordered transferred to this court on our own motion, after decision by the District Court of Appeal, Third Appellate District, in order that it might be considered together with the case of Abelleira v. District Court of Appeal, S. F. 16357, then pending before us. Our decision in the Abelleira case, this day filed, reaches the same conclusion as did the District Court of Appeal in the instant case. Accordingly, we hereby adopt its opinion, with minor changes, as the opinion of this court. It reads as follows:

On October 10, 1939, petitioner discharged a janitor then in its employment, who was a member of the Building Service Employees’ International Union heretofore referred to. Thereafter the union demanded of petitioner that it reemploy and reinstate the janitor, which demand was, by petitioner, refused. On October 16, 1939, the Building Service Employees’ Union declared a strike against said petitioner, and established a picket line at the factory of the Gantner & Mat-tern Company, in which picket line the several unions, except the Knitgoods Workers, joined and participated.

Upon the declaration of the strike and the establishment of the picket line the…