Voeltz v. Bakery & Confectionery Workers International Union , 40 Cal. 2d 382 ( 1953 )

SHENK, J.

This is an appeal from an order granting a preliminary injunction and an order denying a motion to vacate that order.

According to the complaint and affidavits viewed most favorably to plaintiff, it appears that plaintiff is engaged in the business of making and distributing bakery products to the wholesale trade, under the name Golden Krust Bakery. Defendants are labor unions and members thereof, the main ones being Bakery and Confectionery Workers’ International Union of America, Local Union No. 37 and Bakery Drivers Local Union No. 276. In 1948, plaintiff employed 49 persons, consisting of 45 production workers, two truck drivers and two miscellaneous. Plaintiff sells his products to independent “route dealers” who in turn sell to consumers, and to retail dealers in bakery products, delivery to the latter being made by plaintiff’s trucks and the product being picked up by the former at plaintiff’s place of business. In the latter part of 1948, defendants’ Locals 37 and 276, commenced a campaign to organize plaintiff’s employees and to induce them to join their unions and demanded that plaintiff sign a contract with them making them exclusive bargaining agents for his employees. Plaintiff refused, because a “substantial number” of his employees advised him that they would refuse to join the unions, and if he signed such a contract, they would quit. In August, 1948, it was claimed that plaintiff discharged one of his employees because of union membership and the unions filed charges with the National Labor Relations Board that such act was an unfair labor practice. Later in November, 1948, the employee was reinstated under a settlement in that proceeding and plaintiff was required to post notices that he would discontinue such practice. Defendants assert that the employee was again discharged. In September, 1948, Local 37 filed a petition with the National Labor Relations Board for certification as collective bargaining representative for plaintiff’s employees. The board held a hearing and dismissed the petition on November 23, 1948.

On December 7, 1948, the unions representing 10 of plaintiff’s employees threatened to and did place pickets around plaintiff’s plant, and continued to picket said plant until January 19, 1950, when this action was commenced; said unions also called a strike of plaintiff’s employees to which 10 responded and ceased work for a week. The unions advised plaintiff on occasions between December, 1948, and November, 1949, that unless he signed contracts with them they would destroy his business, although they knew plaintiff’s employees were against it. The unions placed plaintiff on the “blacklist” as unfair to organized labor. The pickets carried signs stating that plaintiff was unfair to organized labor. Some of the pickets followed the independent route dealers to their customers and displayed their signs. The unions contacted plaintiff’s retail customers and threatened to picket them unless they ceased to buy plaintiff’s products; some of plaintiff’s customers were picketed by defendants. As a result of defendant unions’ activities, plaintiff’s customers refused to buy from him, to the grave injury of plaintiff’s business.

On November 19, 1949, all but two of plaintiff’s then 39 employees (the others later consented) met and formed a labor organization, called Golden Krust Independent Employees Association, to represent them. It is not controlled or dominated by plaintiff. On November 21, 1949, the association petitioned the National Labor Relations Board for certification as exclusive bargaining agent. It was certified as a labor organization but the petition to be exclusive bargainer was dismissed on the ground that interstate commerce was not affected. Discussions were had between the association and the unions in the latter part of December, 1949, and January, 1950, the former requesting the latter to cease their concerted activities. On December 10, 1949, the association requested of the unions that a secret ballot election be held among plaintiff’s employees to determine the bargaining representative. This request was denied. The association informed plaintiff that if he signed a contract with the unions it would call a strike.

The trial court, in the preliminary injunction, enjoined defendants from picketing plaintiff’s plant, representing that his employees are unorganized, and his products are made by unorganized labor.

There is no indication that the dispute affected interstate commerce, hence the Labor Management Relations Act of 1947 (29 U.S.C.A. § 141 et seq.) is not involved. Defendants belatedly make the contention that the National Labor Relations Board said in one of its orders of dismissal above referred to that it did not agree with plaintiff that he was not engaged in interstate commerce, but it does not appear that such order was called to the attention of the trial court either before its order for the preliminary injunction or on the motion to vacate it. There is no allegation in the complaint or statement in any affidavit or defendants ’ answer that plaintiff is engaged in interstate commerce. The validity of the Jurisdictional Strike Law of California (Lab. Code, § 1115 et seq.) is questioned, but that point was settled in Seven Up Bottling Co. v. Grocery Drivers Union, ante, p. 368 [254 P.2d 544].

Plaintiff rests his support for the injunction and the court granted it on the basis of the Jurisdictional Strike Law. The main contention of defendants, aside from the claimed invalidity of the Jurisdictional Strike Law, is that there was no violation of that law, because their picketing and concerted activity did not arise out of a dispute between two labor organizations, they and the association, because the dispute between them and plaintiff had been in existence some 11 months before the association was organized. Involved herein is the interpretation and application of sections 1117 and 1118 of the Labor Code, reading: “As used herein, ‘labor organization’ means any organization or any agency or employee representation committee or any local unit thereof in which employees participate, and exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, hours of employment or conditions of work, which labor organization is not found to be financed in whole or in part, interfered with, dominated or controlled by the employer.” (§ 1117.) “As used in this chapter, ‘jurisdictional strike’ means a concerted refusal to perform work for an employer or any other concerted interference with an employer’s operation or business, arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to bargain collectively with an employer on behalf of his employees or any of them, or arising out of a controversy between two or more labor organizations as to which of them has or should have the exclusive right to have its members perform work for an employer.” (§ 1118.)

It should first be observed that the defendants speak of the association as a “company” union, suggesting that as such it is excluded from consideration under the Jurisdictional Strike Law. But it is only a company union “financed in whole or in part, interfered with, dominated or controlled by the employer” that is excluded. (Lab. Code, §§ 1117, 1118, supra.) While the evidence is conflicting, plaintiff's verified complaint and affidavits offered by him show the association not to be such an organization. Defendants claim that the one who organized the association was the brother of one of plaintiff’s foremen, that some of plaintiff’s supervisory employees attended a meeting of the association, and that such organizations must be carefully scrutinized, citing McKay v. Retail Auto Salesmen's Local Union, 16 Cal.2d 311 [ 106 P.2d 373]. Nevertheless, the court granted the injunction, thereby impliedly finding that the association was not company dominated, and stated in its memorandum opinion: “As to defendant’s second contention, it cannot be said, at this stage of the proceedings, that the employee organization is not a bona fide union and that it is not free from company domination and control. It appears from the affidavits that the idea of an employee union has been discussed between at least some of the employees as early as April of last year, and that in November a person who was experienced in labor organization problems and who was in no way connected with plaintiff was consulted by the employees and invited to meet with them. Such a meeting was held on November 19th and the union of non-supervisory employees was formed and officers elected.” The trial court was the judge of the credibility of the affidavits and it was its province to resolve all conflicts. (Northwestern Pac. R. Co. v. Lumber & S.W. Union, 31 Cal.2d 441, 443 [189 P.2d 277].) The complaint alleged that there was no domination or control by plaintiff over the association and the affidavits submitted by him are to the same effect.

In their argument that their concerted interference did not arise out of a controversy between them and another labor organization (Lab. Code, § 1118, supra) because the controversy existed prior to the formation of the association, they stress the assertion that the latter was an excluded company union. It was not, however, so far as the preliminary injunction is concerned, and hence the case must be treated as if there are two wholly independent labor organizations.

We do not believe that the fact that a dispute existed between defendants and plaintiff before the association was formed and came into the picture, takes the case out of the act requiring that the interference with the employer’s business arise out of a controversy between unions, for after the association was formed and plaintiff’s employees became members thereof, it endeavored to have defendants withdraw from the arena and to induce plaintiff to bargain with it exclusively, yet defendants continued their activities, interfering with plaintiff’s business. It may be inferred that what began as a dispute between employer and the union became a dispute between unions as to which should .be exclusive bargaining agent. To place defendants’ construction on the act would make it practically never applicable, for the unions would have to act simultaneously in their demands or disputes with the employer before there would be an interference with the employer’s business arising out of a controversy between the unions as to which should be exclusive bargaining agent. If one of them made the demand any time before the other, then the interference would arise out of a dispute between the employer and that union rather than between the unions. It would rest wholly within the power of the unions to arrange the chronology of their demands, and escape the force of the act. We do not believe such an interpretation of the act is reasonable.

The orders are affirmed.

Gibson, C. J., Edmonds, J., Schauer, J., and Spence, J., concurred.