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


Civ. 16047.

Decided: July 28, 1947

Hill, Morgan & Farrer, Carl M. Gould and Richard A. Perkins, all of Los Angeles, for appellants. Shibley, Wanzer & Litwin, of Long Beach, for respondents.

The action in which the preliminary injunction herein was issued grew out of a controversy between the petitioner-appellants who operate cleaning and dyeing establishments in the los Angeles-Long Beach area, and the respondents, International Ass'n of Cleaning & Dye House Workers, Local No. 36, hereinafter called the Union, and certain individuals including officers of the Union. The petition alleges that for some time prior to February 18, 1947, petitioners were under certain contractual arrangements with the Union alleged to constitute a ‘standard uniform labor agreement,’ which by its terms was to continue to December 3, 1948. This agreement contained provisions against strikes and lockouts, arbitration provisions, and other provisions not here material.

It is further alleged that ‘the Union on February 18, 1947, without previous notice of warning to petitioners called a strike and established pickets in front of the plants of said Petitioners, which purported to affect only two of the Petitioners but which your Petitioners understood to be and was in effect a strike and picketing against all the Petitioners, a breach of the no-strike provisions of said agreement and a repudiation of said agreement, giving the Petitioners a right to terminate said agreement.’ The petition then states that, upon refusal of the Union to call off the strike in compliance with the agreement, ‘and after threats by the Union that Petitioners would be struck next, Petitioners closed their plants on February 19, 1947, in order to avoid peculiar economic loss * * * and to protect the clothing of customers.’ The Union Then established pickets in front of Petitioner's establishments. ‘Thereafter, on March 3, 1947,’ continues the petition, ‘Petitioners requested the Union again to call off the strike and invited the persons who had last worked for Petitioners on February 18, 1947, to return to work upon the terms and conditions which prevailed on February 18, 1947. The Union refused to comply with that request, as did many of the persons who had last worked for Petitioners on February 18, 1947.’ It is then alleged that petitioners ‘reopened their plants on March 3, 1947, hired certain new employees to replace certain employees who terminated employment * * * by refusal to report for work when requested, and rehired all former employees who were willing to return,’ and that on March 5, 1947, petitioners terminated ‘said agreement by notice to the Union upon the ground of the Union$hs breach and repudiation thereof. On or before April 15, 1947, Petitioners' plants were completely staffed and in full operation.’

On March 17, 1947 the Union commenced an action for specific performance, injunction and damages, alleging that petitioners had ‘locked out’ employees and otherwise breached the employment agreement which was alleged to be in full force and effect. Petitioners then answered and cross-complained, denying any lock-out, alleging breach of the no-strike clause and other breaches of the agreement, and prayed for an injunction and damages. After a hearing in the Superior Court on an order to show cause, a preliminary injunction in fafor of the Union was issued on May 27, 1947, which on June 4, 1947, was amended nunc pro tunc. As amended, the defendants, Petitioners herein, were ‘absolutely enjoined and restrained during the pendency of the above entitled action and until its final determination, or until the Court shall otherwise order;

‘1. From locking out their respective employees * * *;

‘2. From failing, refusing, or neglecting to rehire their said respective employees, or any of them, * * * in violation of the said respective bargaining agreements * * *;

‘3. From hiring, or discharging any employees * * * except in accordance with the provisions of the respective collective bargaining agreements * * *;

‘4. From locking out their respective employees * * * in violation of the terms of the respective collective bargaining agreements * * *;

‘5. From preventing the employees * * * from resuming work as such employees in accordance with (said agreements) * * *;

‘6. From failing, refusing, or neglecting to recognize the existence of, or to perform, carry out, or comply with (such agreements) * * *;

‘7. From failing, neglecting, or refusing to recognize or deal with Richard Myers and Victor Masters, the duly authorized representatives (of the Union) * * *;

‘8. From refusion to comply with the terms of said collective bargaining agreements with reference to arbitration and/or conciliation * * *;

‘9. From in any manner failing, neglecting, or refusing otherwise to comply in any respect with (said agreements) * * *;

‘10. From doing, or failing to do, directly or indirectly, by any manner, means or device whatsoever, any and/or all of the last above-mentioned acts set out in subparagraphs 1 to 9 hereof, inclusive.’

The petition for supersedeas affirms that on May 27, 1947, when the preliminary injunction was issued, ‘petitioners' plants were in full operation and completely staffed with employees, some of whom had been newly hired after March 3, 1947, and others of whom had subsequently been rehired and returned to work,’ and alleged that on May 27, 1947, ‘Petitioners still maintained their position which they had consistently maintained since March 5, 1947, that said agreement had been properly terminated by Petitioners because of plaintiff-respondents' breach and repudiation thereof and that Petitioners' plants were no longer being operated under the agreement.’ It is further alleged that the effect of the preliminary injunction ‘is to require Petitioners to take affirmative action,’ namely ‘to dishcarge certain of its employees now working; to rehire certain employees who are termed ‘employees' but who were not on May 27, 1947’; in other words that petitioners are required ‘to change their position from that which existed at the time said injunction was issued.’ The respondents are alleged to have construed the injunction not merely as prohibiting lockouts which might occur after the issuance of the order, but in the mandatory sense hereinbefore mentioned. Attached to the petition is a copy of a notice in which the Union demands ‘that each and every employee heretofore locked out by you and/or who is now being locked out by you, be immediately re-hired’; and notifying petitioners that notwithstanding petitioners' appeal from the order granting the injunction, ‘should you fail in any particular to comply with the terms of said Preliminary Injunction, we shall immediately apply to the Court for an order citing you for contempt of court.’

In reference to the appeal which has been taken by petitioners from the preliminary injunction, the petition sets forth that: ‘The appeal herien presents questions of substantial importance, including questions as to the construction and effect of the agreement, the adequacy of the evidence to support the preliminary injunction, and the propriety of granting a preliminary injunction (1) where the material facts are in dispute, (2) where the relief granted exceeds any benefits which plaintiffs-respondents could have secured by complete performance of the agreement, and (3) where the effect of the preliminary injunction is substantially to dispose of the cause on its merits and to do the Petitioners injury irreparable by any subsequent disposition of the cause on its merits.’ Unless petitioners are granted supersedeas, the petition alleges that ‘they will be required either to defend contempt prosecutions or to comply with said preliminary injunction notwithstanding their appeal. Enforced compliance with said injunction would effectively frustrate Petitioners' appeal, render their right to appeal of no substantial value, and oust this court of * * * appellate jurisdiction.’

The answer filed by the Union admitted calling a strike but ‘only against the plants of the said Michael Jaffe, Winona Q. Jones and Earl H. Jones, and that the plants of the other petitioners were picketed only after the respondents were locked out’; and alleged that ‘petitioners closed their plants and locked out the respondents in violation of petitioners' contracts with respondents; and for the purpose of breaking the Union an establishing an open shop.h It is respondents' contention that ‘the injunction is wholly prohibitory,’ and that ‘any so-called affirmative acts required of the petitioners are merely incidental to the creation of the proper status quo.’ The answer further avers that petitioners' legal ‘position’ alleged to have been ‘consistently maintained since March 5, 1947,’ was created by ‘breaches of contract only about two weeks before respondents filed their action to restrain such breaches, and about one month before the * * * temporary injunction, and is not a position of status quo that petitioners are entitled to maintain pending appeal.’

The controversy as to whether the injunction should be deemed merely ‘prohibitory’ in nature, or ‘mandatory’ and requiring ‘affirmative’ acts on the part of petitioners, stems from the proposition, apparently conceded by both parties, that, if the injunction is mandatory then petitioners' appeal itself acts as a stay under Section 949 of the Code of Civil Procedure which provides that ‘In cases not provided for in sections 942, 943, 944 and 945, the perfecting of an appeal stays proceedings in the court below.’ It is petitioners' contention that, regardless of its form, the injunction was actually mandatory in substance; further, that if it be regarded as merely prohibitory, then supersedeas should issue to preserve the petitioners' rights pending determination of the appeal, and to prevent irreparable injury which would result from the Union's threatened contempt proceedings. On the other hand, respondents take the position that the injunction was merely prohibitory and that petitioners will suffer no injury by a denial of the writ whereas respondents will be irreparably injured by its issuance. Certain other contentions will be hereinafter referred to.

As petitioners state, ‘This court has the constitutional power to issue the writ of supersedeas, as one of the writs necessary and proper to the complete exercise of its appellate jurisdiction.h Calif. Constitution, Art. VI, Sec. 4; People v. Associated Oil Co., 211 Cal. 93, 294 P. 717. There can also be no doubt of inherent power to issue a writ of supersedeas for the purpose of preserving the status quo of the subject of litigation until the final determination of an appeal from an order granting a prohibitive injunction. See Ohaver v. Fenech, 206 Cal. 118, 273 P. 555, 557. And, as said in the Ohaver case, and elsewhere: ‘The character of an injunction, * * * whether it is prohibitive or mandatory * * *, is determined not so much by the particular designation given to it * * * as by the nature of its terms and provisions, and the effect upon the parties against whom it is issued.’ Also, as mentioned in that case, the same injunction may be dual in character, granting both prohibtive and mandatory relief, in which situation, under the rule hereinbefore mentioned, a mere appeal would not act as a stay of the prohibitive features of the injunction. In this connection, however, it should be noted that regardless of the terminology employed in describing an injunction, the power of the appellate court to issue a writ of supersedeas is not dependent upon such distinction or terminology. The question here presented is, to again quote from the Ohaver opinion, ‘whethere the appellants have presented such a state of facts as will justify this court in exercising this power in their behalf.’

The propriety or impropriety of granting the preliminary injunction herein is not an issue in the present proceeding; that question is one to be decided on the petitioners' appeal. So also, the charges and counter charges concerning alleged strikes, lock-outs, breach of bargaining contracts, and the like, are important matters to be determined in such appeal, not here. The petition herein presents but the single question whether a writ of supersedeas should issue for the purpose of staying all proceedings in this cause until the final determination of petitioners' appeal.

Among other cases, Feinberg v. One Doe Co., 14 Cal.2d 24, 92 P.2d 640, 641, has been cited by both parties. This case involved a controversy between representatives of the International Ladies' Garment Workers Union, and the defendants who were manufacturers of ladies' coats and suits. An agreement had been entered into for the purpose of securing general stabilization of the industry and pursuant thereto there had been an arbitration award requiring that a certain employee should be released ‘from further employment.’ Upon defendant's failure to comply therewith the Union secured a court order confirming the award and enjoining the defendants ‘from employing, or continuing to employ’ the said employee. Defendants appealed from this order and thereafter the lower court issued an order to show cause for contempt, following which the defendants petitioned, as in the present case, for a writ of supersedeas. The court held that the defendants were entitled to the writ ‘as a matter of right,’ and again called attention to the fact that ‘this court will not be bound by the form of the order but will look to its substance to determine its real nature.’ In respect to the particular order there involved, the court said: ‘In view of the fact that the gist of the whole controversy in the instant case was the continuance or noncontinuance of said employee in the employment of defendants, and in view of the fact that the order appealed from was directed solely to this issue, no contention may be legitimately made that the order although mandatory was only ancillary to or subsidiary to another or main order which was prohibitive and therefore not automatically stayed by the * * * appeal.’

The factual situation in the Feinberg case just referred to is not fundamentally different from that in the instant case, with the one exception, mentioned by the respondent Union, that in the present case, no order to show cause for contempt had been issued. Since this step had not been taken, the Union contends that ‘The issuance of a writ under such circumstances will constitute an invitation for application for supersedeas upon each and every occasion that an appellant in an injunction suit becomes offneded by the comments of his adversary made outside of court.’ It should be noted, however, that the Union's written notice to petitioners of June 5, 1947, which ‘demands' that petitioners immediately rehire all employees ‘heretofore locked out by you,’ and gives unqualified notice that compliance with the injunction is not excused by petitioners' appeal and that upon failure to comply therewith, ‘we shall immediately apply to the Court for an order citing you for contempt of court,’ is much more than a mere comment; there can, in fact, be no doubt that it meant exactly what it said. The actual mechanics of securing such an order to show cause in re contempt would require no more than a few minutes.

Notwithstanding the appeal, therefore, petitioners, upon receiving this notice, were faced with an immediate dilemma; either the injunction, right or wrong, must be complied with forwith; or, as the only alternative, petitioners would be forced to defend contempt proceedings. Should the injunction terms be complied with, petitioners would be required to discharge the present employees and reinstate the so-called ‘locked-out’ employees, with the result that chaotic conditions would exist which could not be cured even if petitioners should obtain a reversal upon appeal. As a practical matter, petitioners' legal right to appeal and contest the propriety of the preliminary injunction might then be ‘effectively frustrated’ as alleged by the employers; the status quo disturbed, and the appeal rendered of no substantial value. The subject matter of the litigation and the vital questions connected therewith would, as it were, have become fait accompli by the mere issuance of what purports to be only a temporary injunction. This is a situation which should not be given judicial countenance. If the petitioners possessed the right to appeal from the order granting this preliminary injunction, exceedingly broad in its terms, then obviously there must be a corresponding right to have the matter remain without further complications until the appellate court has passed upon the question.

‘The purpose of the writ of supersedeas', according to Rosenfeld v. Miller, 216 Cal. 560, 562, 15 P.2d 161, 162, and many other cases, ‘is to preserve the rights of a ligitant until there is a final determination of his appeal.’ It is not asserted that the appellant is entitled to this writ as a matter of right, but rather, as was said in the Rosenfeld case just mentioned, that the appellate court ‘may properly, in the exercise of a sound discretion, grant him the writ upon such terms as will be just and will adequately protect the rights of the respondent. * * * under the circumstances, the writ should be so granted in order to preserve the status quo until the final determination of the action.’

Among other points raised by the respondents, it is argued that the issuance of the writ ‘will result in irreparable injury to the respondents'; that ‘supersedeas will not issue where the appeal is merely for the purpose of delay,’ and that appellants have raised no ‘substantial questions' on the appeal. It is sufficient to say that there is no merit in any of these contentions. The rights of the respondents appear to be adequately protected, and certainly the petitioners' appeal may be said to raise ‘substantial questions' which, in the interests of all parties concerned, merit a final determination.

It is therefore ordered that the writ of supersedeas issue as prayed for.

I dissent. As I read the record herein, it discloses that a strike was declared only against petitioners Jaffe and Jones, neither of whom were parties to the contractual arrangements with the union. Other members of an organization called Harbor Dry Cleaners Association, and who were parties to the union contract, elected, because of the strike against Jaffe and Jones, to rescind their contracts with the union, and thereupon proceeded to hire employees of their own choice, without regard to their several existing contracts with the union. For purposes of hearing on petition for a writ of supersedeas, the decree of the court below must be presumed to be correct. Ott v. Gotfried, 39 Cal.App.2d 397, 103 P.2d 207; Private Investors v. Homestake Mining Co., 11 Cal.App.2d 488, 54 P.2d 535; People v. City of Westmoreland, 135 Cal.App. 517, 27 P.2d 394. The only question presented by the instant controversy, as I see it, is whether, by declaring a strike against Jaffe and Jones, who were not parties to any contract with it, the union breached its contractual relations with the other employers who had contractual relations with such union. I am impressed that the preliminary injunction issued herein does in fact preserve the status quo of the parties until that question is finally determined. It is not the status quo created by appellants when they allegedly breached their contracts with the union that the court should strike to preserve, but the status quo existing by reason of the contracts with the union, until final determination of the legality of the action of parties to the contract in rescinding it. In my opinion, the petition for the writ of supersedeas should be denied.

DORAN, Justice.

YORK, P. J., concurs.

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