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District Court of Appeal, Second District, Division 2, California.

George SMYRNIOTIS and Katina Frudakis, Co-Partners, doing business under the Firm name of Olympia Cafe, Plaintiffs and Respondents, v. LOCAL JOINT EXECUTIVE BOARD OF HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION OF LONG BEACH AND ORANGE COUNTY, Culinary Alliance Local No. 681, Bartenders' Union Local No. 686, Defendants and Appellants.

Civ. 27905.

Decided: May 20, 1965

Gyler & Gottlieb, by Emanuel Gyler, Long Beach, for appellants. James P. Zarifes, Long Beach, for respondents.

This appeal is from a judgment (preliminary injunction) restraining appellant unions from picketing respondents' restaurant. The preliminary injunction is predicated on the theory that such picketing violated the California Jurisdictional Strike Act1 and that it is consonant with general equitable principles.

On July 9, 1957, the parties herein entered into a written collective bargaining agreement to expire on February 1, 1961, unless 60 days prior to the termination date either party gave 10 days' written notice to sooner terminate. Pursuant to this right respondents terminated and the written contract was ended on November 30, 1960.2

Prior to November 30, the Long Beach and Orange County Culinary Workers and Bartenders Welfare and Retirement Fund (Fund) instituted suit against respondents for the recovery of certain welfare payments due and owing the Fund. Appellants urged that they did not know of the termination of the collective bargaining agreement until July 25, 1962, following the decision of the trial court in the recovery suit brought by the Fund.

Shortly after said date appellants contacted respondents and requested that they sign a new bargaining agreement. On August 2, 1962, the parties met and discussed their differences. Respondents refused to sign a new agreement. Appellants testified by declaration that respondents' refusal to sign was based on the refusal of appellants to cancel respondents' past indebtedness to the Fund.

On or about August 10, 1962, respondents were notified that if the new agreement was not signed, a strike would be called and respondents' restaurant would be picketed. Respondents remained steadfast. On August 13 the picketing began. The picketing continued until a temporary restraining order was issued on December 20, 1962.

During the period of the collective bargaining agreement appellants represented all of respondents' employees, and new employees were required to join the union within 30 days after commencing work for respondents. After the date when respondents terminated the collective bargaining agreement, November 30, 1960, appellants did not represent respondents' employees. The sole purpose of the picketing commencing on August 13, 1962, was to force respondents to recognize appellants as the exclusive bargaining agent for all of respondents' employees and to force the employees to join or rejoin appellants.

On December 14, 1962, four months after picketing had begun, respondents entered into a collective bargaining agreement with Olympia Restaurant Employees Union (Olympia), an independent union formed October 15, 1962. Among other things the agreement with Olympia required respondents to recognize Olympia as the exclusive bargaining representative of all of respondents' employees and also that all of respondents' employees must belong to Olympia.

The trial judge found, in his written opinion granting the preliminary injunction, that appellants had been given appropriate notice of the creation of Olympia and of the signing of the collective bargaining agreement between respondents and Olympia. The trial judge further found that the respondents in no way, either directly or indirectly, authorized, financed, interfered with, dominated, or controlled Olympia.3 The trial court concluded that the Jurisdictional Strike Act and general principles of equity applied to the facts presented to and issued the preliminary injunction.4

The sole question presented by this appeal is whether the trial court correctly issued its injunction.

In pertinent part the Jurisdictional Strike Act provides that a jurisdictional strike is ‘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, 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.’ (Labor Code, § 1118.)

Petri Cleaners, Inc. v. Automotive Employees, etc., Local Number 88, holds ‘The Jurisdictional Strike Act * * * was designed, not to diminish free competition between labor and industry, but to release an innocent employer caught between the rival claims of two or more labor organizations. It does not apply unless there are at least two ‘labor organizations' within the meaning of section 1117, and the prohibited activity arises out of a dispute between them as to which has the exclusive right to bargain with an employer or to have its members work for him. [Citations.]’ (53 Cal.2d 455, 471–472, 2 Cal.Rptr. 470, 480–481, 349 P.2d 76, 86–87.)

Thus, in addition to section 1118, the Act provides ‘A labor organization is ‘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.’ * * * Nothing in the act shall ‘interfere with collective bargaining subject to the prohibitions herein set forth, nor to prohibit any individual voluntarily becoming or remaining a member of a labor organization, or from personally requesting any other individual to join a labor organization.’ * * *' (Seven Up Bottling Co. v. Grocery, etc., Union, 40 Cal.2d 368, 372, 254 P.2d 544, 547.)

The decisions of our Supreme Court interpreting the Act, though criticized in dissenting opinions5 and by law review writers (see Comments, 6 Stan.Law Rev. 183), are controlling on the application of the Act herein. There of these cases decided in 1953 are squarely in point.

In Seven Up Bottling Co. v. Grocery, etc., Union, supra, 40 Cal.2d 368, 372, 254 P.2d 544, the employer entered into a collective bargaining agreement with its undominated employees association in March 1949. In June 1949 the defendant union began concerted interference with the employer's business as to which union should have the right to collectively bargain with the employer by making the employer disregard the agreement entered into with the association. The court held: ‘It may reasonably be inferred that the cause of such activity [the picketing] was a dispute between defendants and the association, for their demands to be exclusive agents would necessarily be to replace the association, * * *. * * * In addition to the above it is alleged that defendants, * * * and the association claim bargaining rights on behalf of plaintiff's employees; that the bargaining agreement with the association was in full force and satisfactory to the association, and that defendants ‘knew of the existence of said contract and of the arrangements between plaintiff and its employees thereunder.’' (at p. 373, 254 P.2d at p. 548.) The Jurisdictional Strike Act was thus held applicable.

In Voeltz v. Bakery, etc., Union, 40 Cal.2d 382, 254 P.2d 553, defendant union representing ten employees picketed the employer in order to force him to sign an agreement recognizing it as the exclusive bargaining agent of his employees. Eleven months later the remaining employees formed an independent association which subsequently informed the employer that if he signed a contract with defendant, a strike would be called. The court, in rejecting defendant's argument that the dispute was between the union and the employer since the dispute arose 11 months prior to the formation of the association, held ‘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.’ (at pp. 386–387, 254 P.2d at p. 556.)

Finally, In re Kelleher et al., 40 Cal.2d 424, 254 P.2d 572, defendant union had a contract with the employer which upon termination was not renewed because of the employer's refusal to accede to the defendant's demands. Defendant struck and picketed the employer who then signed a contract with a rival union which had previously attempted to recruit defendant's members. In sustaining an injunction against defendant under the Act, the court held that though the dispute may have originally begun between defendant and the employer, it had become a dispute between the two unions as to which should represent the employees, and that since the second union had a contract with the employer, the strike was between two unions as to which would be the exclusive bargaining agent of the employees.

In the case at bench appellants' contract with respondents expired; they sought a new collective bargaining agreement designating them as exclusive bargaining representatives for all of respondents' employees; Olympia, a new union uncontrolled by the employer, signed a collective bargaining agreement with the employer making it the exclusive representative of all of respondents' employees. Appellants continued to picket in order to gain the recognition it sought. Under the authorities cited above, the Jurisdictional Strike Act was clearly applicable.

Appellants seek to avoid consequences of the Act by arguing that the Act does not apply where, as here, there has been no claim on the respondents' part that appellants represent or have claimed to represent any of their employees who are represented by the independent union. However, appellants' purpose in picketing respondents' restaurant was to achieve a collective bargaining agreement making them the sole bargaining agent for all of respondents' employees and hence to achieve representation over the entire group of employees.

Surrey Restaurants v. Culinary Workers & Bartenders Union, 54 Cal.2d 461, 6 Cal.Rptr. 18, 353 P.2d 730, does not require a contrary result. In that case the defendant union sought recognition as bargaining agent for only those of the plaintiff's employees who were union members, but if ever a majority of the employees joined the union then, and only then, would it be recognized as bargaining agent for the entire restaurant. An independent union was formed and the employer refused to sign defendant's contract because of the existence of the independent. However, at the time the injunction was sought, the independent had made no contract proposals or demands upon the employer. On these facts the court held that a dispute under the Act ‘occurs only when two or more labor organizations each claim an exclusive right to represent the same employees . Citations. Where the labor organizations do not seek to bargain for the same employees it is elementary that no such dispute can be said to exist.’ (at p. 464, 6 Cal.Rptr. at p. 20, 353 P.2d at p. 732.) Surrey is thus clearly distinguishable on its facts from the case at bench.

While our decision gives meaning to the specter raised by Justice Carter in his dissent in Voeltz v. Bakery, etc., Union, supra, 40 Cal.2d 382, 387, 254 P.2d 553, we are nevertheless bound by the above authorities until such time as the legislature acts to rationalize this state's labor laws. (cf. Petri Cleaners, Inc. v. Automotive Employees, etc., Local Number 88, supra, 53 Cal.2d 455, 472, 2 Cal.Rptr. 470, 349 P.2d 76; Messner v. Journeymen Barbers, etc., International Union, 53 Cal.2d 873, 880, 4 Cal.Rptr. 179, 351 P.2d 347.)

The judgment (preliminary injunction) is affirmed.


1.  Labor Code, §§ 1115–1122.

2.  Although appellants never received actual notice of said termination from respondents, the trial court in an independent action brought by the Fund, referred to in the opinion, found that respondents' letter to the Fund had terminated the collective barganing agreement. The efficacy of respondents' notice to the Fund is not questioned.

3.  Appellants concede that the bona fides of the independent union were not questioned in the court below.

4.  The trial court in its opinion found: ‘There has been no showing that plaintiff's restaurant is engaged in interstate commerce * * *. The affidavits indicate that * * * a Petition was filed with the National Labor Relations Board and that it willingly failed to accept jurisdiction. * * *’ In these circumstances the court had exclusive jurisdiction. (Russell v. Electrical Workers Local 569, 233 A.C.A. 753, 755, 43 Cal.Rptr. 725.)

5.  See dissent by Carter, J. and Traynor, J. in Voeltz v. Bakery, etc., Union, 40 Cal.2d 382, 387, 254 P.2d 553, and In re Kelleher, 40 Cal.2d 424, 429, 254 P.2d 572.

ROTH, Presiding Justice.

HERNDON and FLEMING, JJ., concur.