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District Court of Appeal, First District, Division 1, California.

SILVA et al. v. MERCIER et al.

Civ. 13384, 13450.

Decided: December 02, 1947

Rogers and Clark, Webster V. Clark, and Bruce F. Allen, all of San Francisco, for appellants. James F. Galliano and C. Paul Paduck, both of Oakland, for respondents.

Plaintiff John I. Silva is the secretary-treasurer of Dairy and Creamery Employees Local Union No. 304, while defendant Clem Mercier is the owner and operator of a dairy farm. Plaintiff, individually and on behalf of the union, brought this action for an injunction to compel defendant to abide by the terms of a collective bargaining agreement, and to prevent defendant from retaining in his employ two non-union workers in claimed violation of that contract. The issue was determined on a demurrer to the complaint. A preliminary injunction issued substantially as requested, and from two orders made in connection therewith these appeals have been taken.

Before discussing the problems involved on these appeals on their merits some reference must be made to the state of the record. On August 29, 1946, the court made a minute order to the effect that the preliminary injunction issue as prayed for. There is no direction in that minute order that a formal order was later to be filed. Timely notice of appeal from that order was filed October 26, 1946. That is appeal No. 13,384. On January 23, 1947, the court made and filed a formal written order granting the preliminary injunction. Timely notice of appeal from that order was filed February 6, 1947. That is appeal No. 13,450. The only differences in the records of the two appeals is that affidavits of Joe Borges, business agent of the union, and of Zekie Smith, a member of the Trade Board set up under the contract to settle disputes, appear in the record of No. 13,450 and are not in the record of No. 13,384. Neither affidavit, however, is essential for the determination of the questions presented. Since the order granting a preliminary injunction is admittedly appealable, and since both appeals here involved were timely, from a practical standpoint, it is immaterial whether we review the correctness of the order of August 29, 1946, or the correctness of the formal order of January 23, 1947. However, in the interest of orderly procedure, and for the guidance of trial courts and of counsel, we deem it appropriate to call attention to certain changes in the Rules on Appeal that make it quite clear that in cases of this kind the appealable order is the minute order and not the subsequently entered formal order.

Rule 2(b)(2) provides that for the purpose of computing the sixty-day time limit within which to appeal ‘The date of entry of an order which is entered in the minutes shall be the date of its entry in the minutes, unless the entry in the minutes expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order.’ This rule, adopted in 1943, substantially changed the prior law. This court had the following to say about this change in the recent case of Pessarra v. Pessarra, 80 Cal.App.2d 965, 183 P.2d 279, 280:

‘This rule was adopted to clarify a most uncertain and confusing condition of the law existing prior to the adoption of this rule in July, 1943. Prior to that date, when orders were made by the trial court and entered in the minutes, and subsequently a formal written order was prepared, signed and filed by the judge, it was practically impossible for the lawyers to know when the time for appeal started to run. This was caused by the delusive simplicity of the language of sec. 939 of the Code of Civil Procedure which then controlled and which provided that the time to appeal began to run from the ‘entry of said judgment or order.’ Under this section the courts announced the rule that where the minute order was intended to be a mere memorandum from which a proper written order was to be drafted then the time for appeal started to run from the date of the filing of the last order. From a practical standpoint the cases, prior to 1943, held that the determinative factor was what the judge had in mind when he announced his first decision. [Citing cases.] Such a subjective test, depending as it did upon the personal and frequently only partially disclosed intent of the trial judge, proved highly unsatisfactory. It was to rectify this condition that Rule 2(b)(2) was adopted. In his article discussing the new Rules, in 17 So.Cal.L.Rev. 79, the draftsman of the rules, after first discussing the complexities and ambiguities existing under the old statute, has this to say about the purposes of the new rule (p. 86): ‘The rule proceeds upon the theory that under the statutes and practice the normal method of evidencing and authenticating an order is by entry in the minutes. Presumptively, therefore, the minute entry is the ‘entry of the order’ for the purpose of fixing time to appeal, and the parties may rely upon it unless the contrary is indicated on the face of the minute entry itself. It is immaterial that the court contemplates the filing of a formal order, and considers the oral pronouncement as preliminary and ineffective. The parties need not and cannot, speculate on such undisclosed intentions. For them the minute entry starts the time running unless the court as part of its oral pronouncement directs that a written order be prepared and filed, and this direction is made a part of the minute entry.' (Italics added.)

‘That this is the purpose and effect of the new rule is made crystal clear by its language. In provides that the date of entry of an order entered in the minutes ‘shall be the date of its entry in the minutes, unless the entry in the minutes expressly directs that a written order be prepared, signed and filed.’ There is no room for interpretation. The language is clear and certain.'

To this rule there are certain exceptions. One such exception is that if findings are essential then the minute order, as a matter of law, is a mere memorandum, the appealable order is the final order, and Rule 2(b)(2) has no application. Trubowitch v. Riverbank Canning Co., 30 Cal.2d 335, 182 P.2d 182. It is quite apparent that findings are not essential to the validity of an order granting a temporary injunction after a hearing pursuant to an order to show cause. See Hunt v. Steese, 75 Cal. 620, 17 P. 920; Monterey Club v. Superior Court, 44 Cal.App.2d 351, 112 P.2d 321. The Pessarra case, supra, held that no findings are necessary in making an order based upon a motion. It is well settled that an order to show cause is a notice of motion. See discussion 18 Cal.Jur. p. 648, § 3; 8 Cal.Jur. 10 Yr. Supp. p. 117, § 3.

Another situation in which Rule 2(b)(2) is not applicable is illustrated by Hirschberg v. Oser, 82 Cal.App.2d 282, 186 P.2d 53. It was there held that where statutory provisions require a detailed formal order to be filed, the preliminary minute order is not an appealable order. That exception has no application here.

In the instant case the parties have stipulated that the minute order was a mere preliminary memorandum of intention and not intended by the judge to be his final order, and for that reason, in their briefs, the parties agree that the order of January 23, 1947, is the proper one to review. However, on the oral argument, when the new rule was called to the attention of counsel it was stipulated that whichever order the court should find to be appealable should be reviewed. From what has been said it is obvious that the only appealable order properly before us is that of August 29, 1946, involved in appeal No. 13,384, that the order of January 23, 1947, is not appealable, and that appeal No. 13,450 must be dismissed.

As heretofore mentioned, this proceeding was instituted to prevent the defendant, an employer, from continuing to keep in his employ certain employees in claimed violation of a contract between the union and the employer. There can be no doubt, and no contention is made to the contrary, that in this state, in a proper case, the terms of a collective bargaining agreement may be enforced by injunction. § 1126, Labor Code.

The contract here involved was entered into between the union and the defendant on July 17, 1943, and by its terms it is provided that it ‘shall remain in full force and effect thereafter until six months after the cessation of the present war.’

The clauses of the contract in dispute are Section I and II, Particularly § II. They provide:

‘Section I. Recognition of the Union: The Employer hereby recognizes the Union as the sole collective bargaining agency for all employees working for the Employer and within the jurisdiction of the Union, who are, at the time of the signing of this agreement, or thereafter become members of the Union.

‘Section II. Employment: All non-union milkers presently employed or hereafter hired by the Employer shall make application for membership into the Union within seven (7) days from the date of the signing of this agreement, or from the date of hiring by the Employer (whichever the case may be), and each shall become a member of the Union in good standing within thirty (30) days from the date of said hiring unless the Union's action is delayed beyond said 30-day period. Whenever the Union is unable to furnish a milker in emergencies the Employer shall be free to provide his own emergency milker for the emergency but such milker must be replaced by a Union milker when one is available.

‘Any employee suspended or expelled by the Union for violation of the Constitution and By-Laws of the Union shall, upon seven (7) days written notice being given by the Union, be laid off until such time as he shall have become reinstated in the Union.’

It is charged in the complaint, and defendant by his demurrer admits that, at the time of filing the complaint and at the time the minute order was entered, defendant had in his employ two non-emergency non-union workers who failed to complete their membership in the union within the thirty-day period specified in § II of the contract. All notices required to be given by the union were served on the employer.

The trial court interpreted § II as requiring the employer to see to it that all non-union men hired by him should apply for membership in the union within seven days of the date of hiring, and should become members within thirty days of such date, and further, as requiring the employer to discharge non-union men who failed to comply with these conditions. Defendant contends that literally and properly interpreted § II does not make membership in the union a condition of hiring his milkers (which is undoubtedly correct), and he further contends that the section does not place upon him the duty to discharge employees who do not apply for, secure, and maintain union membership, except in the cases of expelled or suspended union members, or emergency employees as defined in the last paragraph of the section.

It is quite clear that the question of interpretation here presented, no evidence of the intent of the parties having been introduced, is one of law and not of fact, and that this court is not bound by the interpretation of the trial court, even though reasonable, if it believes that there is a more reasonable interpretation. In re Estate of Platt, 21 Cal.2d 343, 131 P.2d 825; Moffatt v. Tight, 44 Cal.App.2d 643, 112 P.2d 910; In re Estate of Wunderle, 30 Cal.2d 274, 181 P.2d 874; Trubowitch v. Riverbank Canning Co., 30 Cal.2d 335, 182 P.2d 182; Briggs v. Superior Court, 81 Cal.App.2d 240, 183 P.2d 758. However, exercising an independent judgment as to the proper interpretation of the clause in question, and giving no weight to the interpretation of the trial court, we are of the opinion that the trial court gave the clause the only reasonable interpretation possible.

We are here dealing with a union shop agreement, not a closed shop agreement. Fundamentally a closed shop contract requires the employer to hire only union members and to discharge non-union members. Employees, as a condition of employment, must remain union members. That is not the present contract. The union shop contract gives the employer a free hand in hiring, but requires that within a specified time, the non-union employees hired must join the union, and maintenance of such membership is a condition of continued employment. It is quite obvious that the present contract was intended to fall within this category. While it is true that § II does not expressly provide that if the non-union employees fail, within thirty days of hiring, to join the union, the employer must discharge them, such a provision must be implied from the very nature and purpose of the contract. Otherwise § II might just as well not have been included within the contract. The agreement gave the employer an unlimited right of hiring. He could hire union or non-union employees as he in his uncontrolled discretion determined. But once hired, except in circumstances not involved here, the employer was required to see to it that the employees joined the union within the prescribed period, and, if they did not, to discharge them. The disputed provisions of § II could have been inserted for no other purpose. To contend, as does defendant, that such clause was inserted only to induce action on the part of non-union employees, with no duty on the employer to require such employees to comply as a condition of employment, is to disregard the fact that this contract is between the union and the employer, and the non-union employees are not parties to it. Obviously, the contract imposes obligations on the union and the employer, and not on persons who are not parties. If § II was not intended to impose an obligation on the employer it would serve no purpose at all.

Defendant, in an attempt to interpret § II out of the contract, points out that § I provides that the union shall be the sole bargaining agent for those employees ‘within the jurisdiction of the Union, who are, at the time of signing this agreement, or thereafter become members of the Union,’ and that II provides for discharge only in cases of suspended, expelled or emergency workers, and contends that the contract contemplates that he would have employees not within the jurisdiction of the union, who, so he urges, would be those who did not comply with the provisions of § II. Of course the contract contemplated that the defendant would have non-union workers not within the jurisdiction of the union. As already pointed out, the employer could hire all the non-union men he might desire, and for thirty days these employees would not be subject to the jurisdiction of the union. This period might be extended if the union delayed action. Moreover, the ‘emergency workers' provision of § II contemplated the possibility of the hiring of non-union men. It is apparent, therefore, that § I is entirely consistent with § II as here interpreted, and that § I by no means suggests, far less compels, a construction that the employer could retain in his employ non-emergency non-union workers beyond the thirty-day period.

Defendant correctly points out that an injunction will normally not issue to restrain the breach of a contract which cannot be specifically enforced (§ 3423(5) of the Civ. Code) and urges that the terms of this contract are so obscure and uncertain with respect to the duties of defendant that they could not be specifically enforced. This contention is inseparably connected with the point in reference to interpretation. We find no uncertainty in the language of § II. The contract is clear and certain and capable of specific enforcement.

Defendant also makes another contention inseparably connected with his forced and unnatural interpretation of § II. He points out that an obligation to procure action on the part of a third person not a party to the contract cannot be specifically enforced (§ 3390(5) of the Civ. Code) and contends, therefore, that an injunction will not issue to prevent its breach (§ 3423(5) of the Civ. Code). As already pointed out, the obligations of § II are not upon the non-union employees, but upon defendant as employer. Under that section it is the duty of defendant, after thirty days, not to retain in his employ non-union workers. The fact that to perform this obligation he would have to persuade non-union employees to join the union is only incidental to his main obligation.

The last contention of defendant has to do with that clause which provides that the contract ‘shall remain in full force and effect, thereafter, until six months after the cessation of the present war.’ Defendant urges that the period specified in the contract has elapsed because the war is at an end and that there is no contract existing between the parties. To this contention there are two answers. In the first place, § X of the contract provides for the setting up of a Trade Board to settle ‘all disputes and questions between employer and employee or between the parties hereto relative to the meaning, interpretation or alleged violation of the provisions of this contract * * * and the decision of the majority of the members of the Board upon any matter referred to it pursuant to the terms of this agreement shall be final.’ The complaint for the injunction alleges (and no counter-affidavits were filed, the defendant submitting the issue on demurrer) that a Trade Board was set up under this section and that on December 26, 1945, there was submitted to the Board the question of what was meant and intended by the words ‘cessation of the present war,’ and the Board determined that this clause meant ‘six months after a joint declaration by The Congress of the United States that said war is terminated.’ This ruling was reaffirmed by the Board in March, 1946. No such formal resolution of termination has, as yet, been made by The Congress.

In the second place, we are of the opinion that the interpretation of the Trade Board, even if not conclusive, was correct. Defendant urges that while no formal resolution of termination has as yet been made, in view of the revocation of most of the war powers, and termination of many, but not all, of the war time controls, by such resolutions as Public Law 239, 61 Stat. 449, passed July 25, 1947, the continuance of the war is a mere fiction, and contends that by this clause the parties were not referring to the fictional continuance of the war. The fact that a state of war still exists between this country and the axis powers is by no means a fiction. Until treaties of peace are executed or until The Congress by joint resolution sees fit to declare the war terminated, in a very real sense there had been no ‘cessation of the present war.’ There can be no doubt at all, and defendant so admitted in the oral argument, that if the phrase under construction or one similar to it appeared in a statute that it would be interpreted to mean that the statute was to continue until the execution of peace treaties or until a joint resolution of The Congress declared the war over. A few of the cases so holding are Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194; Hijo v. United States, 194 U.S. 315, 24 S.Ct. 727, 48 L.Ed. 994; First Nat. Bank of Pittsburgh v. Anglo-Oesterreichische Bank, 3 Cir., 37 F.2d 564; Ex parte Sichofsky, D. C. 273 F. 694; Citizens Protective League v. Byrnes, D. C., 64 F.Supp. 233.

In the instant case no evidence of what the parties intended other than the contract itself was introduced before the trial court. What defendant is asking us to do is to determine, as a matter of law, that the parties intended something different from what various legislatures have intended by identical or similar language. The reason that the courts interpreted the language appearing in statutes at they did is that such interpretation is the natural, ordinary, and practical meaning of the words. The same reasons compel the same interpretation of the same or similar language in contracts. There is no merit in the contention.

Appeal numbered 13,450 is dismissed. The order from which the appeal is taken in appeal numbered 13,384 is affirmed.

PETERS, Presiding Justice.

BRAY, J., and FINLEY, Justice pro tem., concur.

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