All the members of the court agree that we are bound by the determination of the arbitrators* that for two and one-half years Doris Walker’s com*810munist affiliations were a matter of indifference to Cutter, that Cutter therefore waived her communist affiliations as a ground for discharging her, that it discharged her solely because of her lawful union activity, and that in doing so it violated its collective bargaining agreement with the Union. (Code Civ. Proc., §§ 1280-1293; Pacific Vegetable Oil Corp. v. C.S.T., Ltd., 29 Cal.2d 228, 233 [174 P.2d 441] ; Sapp v. Barenfeld, 34 Cal.2d 515, 523 [212 P.2d 233]; Crofoot v. Blair Holdings Corp., 119 Cal.App.2d 156, 185 [260 P.2d 156]; see Loving & Evans v. Blick, 33 Cal.2d 603, 609 [204 P.2d 23].) It would seem necessarily to follow that we should affirm the judgment of the superior court confirming the award. The majority opinion holds, however, “that an arbitration award which directs that a member of the Communist *811Party who is dedicated to that party’s program of ‘sabotage, force, violence and the like’ be reinstated to employment in a plant which produces antibiotics used by both the military and civilians is against public policy, as expressed in both federal and state laws, is therefore illegal and void and will not be enforced by the courts.” Thus, even though an employer is indifferent to the fact that an employee is a Communist and is therefore no longer free under a collective bargaining contract to discharge him for being a Communist, it can nevertheless violate its contract not to discharge him for lawful union activity and use the fact that he is a Communist as an excuse for its unlawful action. It can do so because this court holds that the employment of a Communist poses such a threat to the security of the country that a contract by an employer with a union to keep a known Communist in-its employ is against public policy and is therefore illegal. A fortiori such a contract by an employer with the employee is illegal. Thus by judicial fiat, but without the temerity to declare that Communists are deprived of civil rights (see Civ. Code, § 1556), the court abrogates not only the right of employers and unions to contract for the employment of Communists, but the right of Communists as a class to enter into binding contracts. It does so by invoking public policy in violation of clearly stated policies of the Legislature (Civ. Code, § 1556; Lab. Code, § 923; Code Civ. Proc., §§ 1280-1293) and in a field in which Congress and the Legislature have clearly indicated their competence to deal with the problems involved.
Section 1556 of the Civil Code provides that “All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.” (See also 1 Williston on Contracts [rev. ed.] § 222, pp. 669-670.) To deny persons other than those mentioned in this section the right to enter into employment contracts is to repeal pro tanto its provisions with respect to the class of contracts of greatest importance to those who must work for a living. Even if this court were at liberty so to repeal the statute, there are compelling reasons why it should not do so.
It is true that in this case only an employment contract is involved. There is nothing in the rationale of the majority opinion, however, that limits its application to such contracts. If it is illegal to employ a Communist, is it illegal to allow a Communist unemployment benefits 1 If the threat of communist activity makes an employment contract with a known *812Communist illegal as against public policy, does it not also invalidate other contracts ? Thus, can a landlord break his lease with a Communist on the ground that his building may be sabotaged? Can a buyer refuse to accept and pay for goods purchased from a Communist on the ground that they may contain cleverly concealed defects? Can a seller refuse to deliver goods sold to a Communist on the ground that they may be used to promote communist activities ? Can an owner refuse to pay for construction work by a licensed contractor who is a Communist? Indeed, can a Communist be licensed as a contractor? If contracts with Communists are illegal, cannot Communists themselves violate them with impunity ?
If breaches of contract can be defended on the ground that one of the parties is a Communist, certainly a hearing will not be denied the alleged Communist on the issue of whether or not he is a Communist. The communist problem, which the court has thus injected into private litigation, may therefore dominate all such litigation and become one of the principal preoccupations of courts. To what end? Certainly private litigation does not lend itself to the formulation of a solution to the problem of what to do with Communists. It is a rash assumption that Congress and the Legislature have been inept in their consideration of the problem, or are incapable of meeting it, or that astride the “unruly horse” of public policy (National Auto. Ins. Co. v. Winter, 58 Cal.App.2d 11, 22 [136 P.2d 22]) courts are better able to meet it.
It is obvious that Cutter cannot properly invoke public policy on its own behalf. Doris Walker’s work was satisfactory and her union activities were consistent with legitimate trade-union objectives. Her presence at Cutter presented at most a threat that she might attempt to use her position for subversive activities. That risk, however, was one that Cutter itself did not consider serious enough to disqualify her for employment, and it has been materially lessened by the fact that her communism has been thoroughly exposed. As an afterthought, Cutter now uses this threat as an excuse not only for discharging her for lawful union activity in violation of its contract, but for attacking an arbitration award that it had agreed should be “final and binding” upon it. By sanctioning these violations of Cutter’s contract this court not only defeats the public policy in favor of employee organization free of employer interference and coercion (Lab. Code, § 923; National Labor Relations Act, 29 U.S.C.A. § 151 et seq.) and the public policy in favor of the settlement of *813disputes by arbitration (Code Civ. Proc., §§ 1280-1293) but needlessly introduces confusion into a field in which Congress has already undertaken to formulate a workable policy. (50 U.S.C.A. § 781 et seq.)
It is true that there are sensitive areas in which no Communist should be employed. We cannot assume, however, that the security system established by the federal government is not adequate to protect these areas from subversive persons. As the very authorities cited in the majority opinion make clear, neither Congress in enacting subversive control legislation nor the executive department in enforcing it has been insensitive to the nation’s security. To date, however, Congress has not seen fit to make mere membership in the Communist Party a crime or to prohibit persons from entering into employment or other contracts with Communists. Similarly, the executive department has not undertaken to prosecute all Communists under the Smith Act. (18 U.S.C.A. § 2385.) It is not the policy of the United States that all Communists are without legal rights and should be interned. So long as they may legally remain at large they should be allowed to earn a living. Even resident enemy aliens, whose activities have not been restricted by Congress or the President, may engage in time of war in ordinary activities and make binding contracts of employment or other contracts. (Ex parte Kawato, 317 U.S. 69, 74 [63 S.Ct. 115, 87 L.Ed. 58]; Heiler v. Goodman’s Motor Express Van & S. Co., 92 N.J. 415 [105 A. 233, 235-236, 3 A.L.R. 336]; Techt v. Hughes, 229 N.Y. 222, 239 [128 N.E. 185, 11 A.L.R. 166] ; State v. Darwin, 102 Wash. 402 [173 P. 29, 30-31, L.R.A. 1918F 1012].)
It must be obvious that in passing on the validity of ordinary employment contracts in litigation between private parties, courts are in no position effectively to evaluate the security factors that should determine what jobs Communists should or should not hold. In its finding of necessity for the enactment of the Internal Security Act of 1950 (50 U.S.C.A. § 781 et seq.) Congress demonstrated its awareness of the communist problem and specifically established in that act the policy of the United States with respect to the employment of Communists. It did not prohibit all hiring of Communists nor did it leave to the courts the decision as to what jobs Communists might hold. It provided instead that the Secretary of Defense should determine and designate the defense facilities in which members of Communist-action *814organizations should not he employed.* Cutter has not been so designated, and we may therefore assume that the employment of a Communist at Cutter poses no threat to the security of the country. I see no evidence of congressional incompetence or of executive negligence in this respect, nor do I see any evidence of superior wisdom, facilities, or techniques available to this court that would justify its intrusion into policy malting in this field. It is my opinion that we can still safely leave to the legislative branch of the government the formulation of policies for the security of the country, and I would therefore affirm the judgment.
Gibson, C. J., and Carter, J., concurred.
Respondents’ petition for a rehearing was denied February 16, 1955. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.
‘‘While there is a work stoppage and a strike in this collective bargaining history [during Doris Walker’s employment], both were directed at wage and contraet issues. There is no evidence of any work stoppage, strike or other interference with production, the avowed objective of which was political, philosophical, subversive or revolutionary. . . .
‘‘It is admitted that Doris Walker’s conduct and the quality of her work were no different in 1949 from what they were in 1947. It is uneontradieted on the record that all of the essential facts upon which the discharge was based were in existence in 1947 and some years before. . And finally, it is established to our satisfaction, by admission of the Company and by proof, that the reasons assigned in 1949 by the Company for the discharge were both known and believed by the Company in 1947.
‘‘This state of the record raises a doubt that the Company ever took the assigned grounds for discharge seriously. ...
‘‘Finally, it appears, by admission of the Company, that notwithstanding the 1947 investigative report, there was no further investigation until the autumn of 1949. This is inexplicable to us if there was real concern about the combination of Communist Party membership and the omissions and falsifications disclosed by the 1947 investigative report.
‘‘From all of this we are unable to find any satisfactory excuse for *810the Company’s delay of over two years in asserting the grounds for discharge presented here. Contract relationships lose effectiveness if grievances about performance are not promptly discussed, settled or brought to an issue. This cuts both ways: unadjusted dissatisfactions of either employer or employees cumulate and exaggerate the importance of ensuing minor dissatisfactions. It seems to us that a commonplace of any ‘just’ system of discipline is the swift imposition of the penalty upon the heels of discovery of the offense. Under an agreement like this one, an employer should not be entitled to carry mutually known grounds for discharge in his hip pocket indefinitely for future convenient use.
“In view of the foregoing considerations, we find that the grounds asserted by the Company for the discharge were stale. . . .
‘ ‘ The discharge of a top Union official and negotiator at a passionate climax in the middle of a stubbornly contested wage negotiation, standing alone, raises an inference that the discharge is retaliatory in nature and designed to restrain, coerce or interfere with the employee because of lawful Union activity. And we find convincing circumstantial evidence to support this inference.
“Two things that had lain fallow appear to have come to life when the Union opened the agreement for wage adjustment in June of 1949. The Company then put into use a new form of Application for Employment which for the first time asked questions about religion and Communist affiliation. Then also, for the first time in over two years, the Company ordered a fresh investigation into Doris Walker’s Communist affiliations.
“The discharge took place in a wave of heat over a radio broadcast and a newspaper advertisement, neither of which was complimentary. But they do not appear to have made any original contribution to the usual exchanges that go on during most wage negotiations.
“While the quality of Doris Walker’s conduct and performance on the job remained unchanged for three years, her position of importance in the Union had progressively increased. It was only a few months before the wage negotiation opened that she was elected President of the Local; and she was a member of the Union negotiating committee. . . .
“In view of all of the foregoing considerations, we find that Doris Walker was unjustly discharged, that the reasons assigned by the Company for the discharge were not the real reasons • and had been waived, and that the discharge interfered with, restrained and coerced an employee because of participation as an officer and negotiator on behalf of the Union in a wage negotiation.”
Section 784(a) of the act provides that “When a Communist organization ... is registered or there is in effect a final order of the [Subversive Activities Control] Board requiring such organization to register, it shall be unlawful- (1) For any member of such organization ... (D) if such organization is a Communist-action organization, to engage in any employment in any defense facility.’’ Section 784(b) provides that “The Secretary of Defense is authorized and directed to designate and proclaim ... a list of facilities . . . with respect to the operation of which he finds and determines that the security of the United States requires the application of the provisions of subsection (a) of this section.’’