SURREY RESTAURANTS v. CULINARY WORKERS AND BARTENDERS UNION LOCAL NO 535 (1960)

The defendants appeal from the order of the Superior Court granting a preliminary injunction. The plaintiff corporation alleged in its complaint that it operated a restaurant in the City of Riverside and that it employed approximately thirty-four people. It alleged that in November, 1958, its employees organized themselves into a labor union which was not financed in whole or in part or interfered with or dominated or controlled by the plaintiff. It alleged that at least twenty-one of its employees were members of that organization. It further alleged that the defendant labor organization presented to plaintiff a proposed agreement providing, among other things, that ‘upon the happening of certain conditions' all of the employees should become members of the defendant union, and the defendant union further demanded the exclusive right to represent and bargain for plaintiff's employees. It alleged that upon refusal of plaintiff to enter into said agreement, the defendant union caused the place to be picketed, resulting in damage; that the pickets falsely represented that the employees were ‘on strike’ and that the picketing arose out of a jurisdictional dispute. Plaintiff sought damages and temporary and permanent injunctions. The defendants by answer admitted that they caused plaintiff's business to be picketed but denied the remaining material allegations of the complaint.

A hearing was had, at which considerable evidence by way of affidavits and parol testimony was introduced, and as a result of which the trial court entered its order granting a temporary injunction against picketing plaintiff's business pending the trial of the action. An appeal is taken from this order.

The plaintiff and respondent has filed no brief, and it has therefore become necessary for this court to carefully examine the entire record in order to ascertain whether the trial court abused its discretion in granting a temporary injunction.

It is first contended that the complaint fails to state sufficient facts to justify injunctive relief. In this connection it is first asserted that the complaint is uncertain in that reference is made to the proposed agreement alleged to have been presented by defendant union containing provisions that upon the happening of certain conditions the ‘defendant's employees' should become members of the union. Throughout the complaint there is frequent mention of plaintiff's employees and if this uncertainty was called to the attention of the trial court it is obvious that the trial court must have treated it as a typographical error. The text of the entire complaint is such that it is obvious that in preparing the complaint the pleader intended to refer to plaintiff's employees. No demurrer for uncertainty was filed and we feel that the trial court exercised a sound discretion in disregarding such uncertainty. It is further contended that the complaint is uncertain because in referring to the contract proposed by the defendant union it was alleged that the employees should become members of the union ‘upon the happening of certain conditions'. If this is a defect in the pleading, it is again a mere matter of uncertainty which should have been reached by demurrer upon that ground. The terms of the agreement are not of great materiality insofar as a temporary injunction is concerned. The gist of the action is that plaintiff's employees had formed a union, that the defendant union sought to compel the plaintiff to recognize defendant union as the sole and exclusive agent for its employees and that as a result there was a jurisdictional dispute and therefore the picketing was illegal. If it be the fact that defendants presented to the plaintiff a proposed contract, it would seem to follow that defendants must be familiar with its terms. In any event, in the absence of a demurrer upon the ground of uncertainty, this language in the complaint furnishes no impediment to the granting of a temporary injunction.

The main contention of appellants is that the alleged ‘company union’ does not constitute a bona fide labor organization in accordance with the requirements of section 1117 of the Labor Code, and that therefore there existed no jurisdictional dispute. In considering this question it is necessary to bear in mind that we are concerned here with the granting of a temporary injunction for the purpose of avoiding damage to litigants until the merits of the case can be determined.

‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that pending a trial on the merits the defendant should or should not be restrained from exercising the rights claimed by him. * * * The universal rule is that the granting or denial of a preliminary injunction is not a matter of right but rests in the sound discretion of the trial court. * * * Such discretion will not be disturbed on appeal in the absence of a showing of abuse.’ State Compensation Ins. Fund v. Maloney, 121 Cal.App.2d 33, 43, 262 P.2d 662, 668.

The principal contention made by appellants is that the individual selected by the employees as president of the organization which they formed had in fact sufficient authority in and about the business that he was to some extent connected with the management and that therefore the organization was not free from domination by the employers. There is a conflict in the evidence in this regard. Whether or not upon a trial of the issues the court will determine as an ultimate fact that the union formed by these employees was a legitimate labor organization is to be determined from a consideration of all of the evidence.

Squarely in point is Voeltz v. Bakery and Confectionery Workers International Union, 40 Cal.2d 382, 254 P.2d 553. There it was held that a temporary injunction was properly issued under circumstances very similar to those involved in the instant case. In that case, as in the instant case, it was contended that the organization formed by the employees was not a bona fide labor union and that therefore there was no jurisdictional dispute rendering picketing unlawful. It was held that for the purposes of a preliminary injunction the matter was addressed to the sound discretion of the trial court and that it was within the province of the trial court to resolve all conflicts for the purpose of granting such temporary order.

As provided in section 1118 of the Lobor Code, it is the policy of the State that jurisdictional strikes or picketing be not permitted. By section 1116 of the Labor Code a party injured by such action may have injunctive relief. Should it develop at the trial that an election was held by the employees, pursuant to an agreement with the defendant union, such agreement would be enforcible. Gentry v. Culinary Workers, Bartenders and Hotel Service Employees, Local 535, 157 Cal.App.2d 766, 321 P.2d 799. Bearing in mind that the purposes of a temporary injunction are to retain the status quo and to prevent injury or damage to either litigant until their rights can be finally determined, it is obvious that the trial court acted with sound discretion.

Order granting the preliminary injunction affirmed.

MONROE, Justice pro tem.

GRIFFIN, P. J., and SHEPARD, J., concur.