City and County of San Francisco v. Evankovich

• Decision Date: 19 April 1977
• Citation: 137 Cal.Rptr. 883,69 Cal.App.3d 41
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 L.R.R.M. (BNA) 3403, 96 L.R.R.M. (BNA) 3370 CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. George EVANKOVICH et al., Defendants and Appellants. CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. SAN FRANCISCO BUILDING & CONSTRUCTION TRADES COUNCIL, Defendant and Appellant. Civ. 39753, 40133.

Page 883

137 Cal.Rptr. 883

69 Cal.App.3d 41, 95 L.R.R.M. (BNA) 3403,

96 L.R.R.M. (BNA) 3370

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. George EVANKOVICH et al., Defendants and Appellants.

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. SAN FRANCISCO BUILDING & CONSTRUCTION TRADES COUNCIL, Defendant and Appellant.

Civ. 39753, 40133.

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

April 19, 1977.

Hearing Denied June 30, 1977.

Van Bourg, Allen Weinberg & Roger, San Francisco, for appellants George Evankovich Laborers Intern. Union No. 261, John F. Crowley, San Francisco Labor Council, Machinists Lodge 68, Intern. Ass'n of Machinists and Aerospace Workers.

Jerome M. Garchik, Neyhart & Anderson, San Francisco, for appellants Franz E. Glen, Intern. Broth. of Electrical Workers, Local Union No. 6.

Rosenthal & Leff, Inc., San Francisco, for appellants Lawrence B. Martin, Transport Workers Union, Local 250A.

Brundage, Beeson & Pappy, Los Angeles, for appellants United Ass'n of Journeymen and Apprentices of the Plumbing & Pipefitting Industry, Local 38, Joseph P. Mazzola.

John Hardy, San Francisco, for appellants Glaziers and Glass Workers Local No. 718.

Neyhart & Anderson, San Francisco, for appellant San Francisco Building and Const. Trades Council.

Thomas M. O'Connor, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for respondent City and County of San Francisco.

TAYLOR, Presiding Justice.

On these appeals taken by several San Francisco labor organizations and their officers ¹ (hereafter unions) from an order dated April 12, 1976, granting a preliminary injunction to the City and County of San Francisco (hereafter City), the major questions are the application of newly enacted Code of Civil Procedure section 527.3, and whether the injunction was based on a proper evidentiary showing. ² For the reasons set forth below, we have concluded that the order granting the preliminary injunction must be affirmed.

The City's complaint initially alleged, so far as pertinent, that the City was a subdivision of the State of California (hereafter State) engaged in furnishing governmental and other services to its citizens and the public, and employed members of the unions. Paragraph VII alleged that since March 30, 1976, the unions, in order to force the City to capitulate to their wage demands, were threatening, as of midnight, to '(a) strike, call, induce, and give notice of a strike, against plaintiff;

'(b) picket plaintiff's facilities, buildings and properties, and hinder, delay and interfere with the work thereat, in support, promotion and advocacy of said strike; and

'(c) coerce, compel, induce and encourage plaintiff's employees to strike against plaintiff and to picket plaintiff in support of said strike.'

Paragraph VIII alleged that since public employees have no right to engage in the above described acts, these acts were illegal and will interfere with and hinder the City in furnishing governmental and other services to its citizens and the public, including the operation of sewage treatment plants, hospitals (S.F. Hospital, Laguna Honda Home), the Municipal Railway, the San Francisco Airport, and will cause irreparable harm to the City, its citizens and the people of the State. The complaint was verified by the city attorney. A temporary restraining order and order to show cause were issued after a hearing shortly after midnight on March 31; the order was modified after a hearing on April 5.

Subsequently, on April 6, 1976, the complaint was amended to include Martin and Transport Workers Union and added allegations that: 1) as a result of the refusal of members of the previously named unions to cross picket lines, the Municipal Railway system had been shut down and the City was without Municipal Railway service; 2) beginning April 5, striking unions of City employees picketed the bus company under contract with the San Francisco Unified School District, with the result that thousands of pupils were unable to attend school. ³

After an additional hearing, the court issued the injunction here in issue, enjoining and prohibiting the unions from: '1. Striking, or calling or inducing or giving notice Of a strike, against the plaintiff, City and County of San Francisco;

'2. Picketing said plaintiff's facilities, buildings, and properties In support, promotion, or advocacy of a strike against said plaintiff;

'3. Hindering, delaying or interfering with work at the facilities, buildings and properties of said Plaintiff, in support, promotion, or advocacy of a strike against said plaintiff.' (Emphasis supplied.)

The above underlined language of the injunction here is identical to the language of the injunction sustained by this court (Division Four) in Trustees of Cal. State Colleges v. Local 1352, S.F. State, etc., Teachers,13 Cal.App.3d 863, 866, 92 Cal.Rptr. 134. ⁴ Thus, we can briefly dispose of the unions' contentions that by enjoining picketing and advocacy in support of a strike, the injunction violated their First Amendment rights and is facially invalid and overbroad. In the S.F. State case, Justice Rattigan (at p. 867, 92 Cal.Rptr. 134) reviewed the numerous recent appellate decisions ⁵ in this state that have held that in the absence of an authorizing statute, public employees do not have a right to strike, and rejected an argument based on the Thirteenth Amendment proscription of involuntary servitude. The opinion also rejected a contention that the injunction was overbroad as it enjoined all picketing, ⁶ as follows at page 868, 92 Cal.Rptr. at page 137: 'While peaceful picketing is clearly recognized as an incident of the First Amendment right of free speech (Thornhill v. Alabama (1940) 310 U.S. 88, 101--104, 60 S.Ct. 736, 84 L.Ed. 1093, 1101--1103; Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union (1964) 61 Cal.2d 766, 769--774, 40 Cal.Rptr. 233, 394 P.2d 921; In re Berry, supra, 68 Cal.2d 137 at p. 152, 65 Cal.Rptr. 273, 436 P.2d 273), it is equally clear that the right to picket is constitutionally subject to limitation where the legitimate interests of the state require such action. (Thornhill v. Alabama, supra, 310 U.S. at pp. 104--106, 60 S.Ct. 736, 84 L.Ed. at pp. 1103--1104; Hughes v. Superior Court (1950) 339 U.S. 460, 468--469, 70 S.Ct. 718, 94 L.Ed. 985, 994). The picketing here involved was properly enjoined because it supported a strike by public employees, which (as we have seen) is not a permissible objective under state law (City of L.A. v. Los Angeles, etc., Council (1949) 94 Cal.App.2d 36, 41--42, 210 P.2d 305); and because, as conducted, it included and incited actual violence and disrupted the operation of the college. (Steiner v. Long Beach Local No. 128 (1942) 19 Cal.2d 676, 682--685, 123 P.2d 20; San Diego Gas & Elec. Co. v. San Diego Congress of Racial Equality (1966) 241 Cal.App.2d 405, 407, 50 Cal.Rptr. 638.)

'The judgment enjoins only picketing in support of an actual strike at the college (as distinguished from informational picketing for the purpose of airing employee grievances), and at the college itself (where the violence occurred). So limited, the injunctive language is not unconstitutionally overbroad. (See its text, quoted supra. See (and compare) In re Berry, supra, 68 Cal.2d 137 at pp. 152--155, 65 Cal.Rptr. 273, 436 P.2d 273; San Diego Gas & Elec. Co. v. San Diego Congress of Racial Equality, supra, 241 Cal.App.2d at p. 408, 50 Cal.Rptr. 638.)'

We think identical reasoning applies here, as the injunction was limited to picketing and advocacy of an actual strike against the City, an unlawful objective, under the public policy of this State. The unions attempt to distinguish the S.F. State Teachers case, as here there was no showing of a strike that was violently conducted or induced violence. However, even peaceful means of concerted action are improper and may be enjoined if the object is unlawful (City of L.A. v. Los Angeles, etc., Council, 94 Cal.App.2d 36, 210 P.2d 305).

As the objective of the strike was unlawful, we hold that the strike and picketing were properly enjoined at the Facilities, buildings and properties of the City. The unions argue that this latter portion is also unnecessarily broad in scope, as it includes all of the City's facilities and buildings and properties used to provide governmental and other services to its citizens and the public. While a distinction between the City's overall services and those necessary for the protection, health and welfare ⁷ of its citizens and the public would have been preferable and more accurate, and clearly necessary in any final order, we do not think the trial court abused its discretion as to the scope of the preliminary injunction. As we indicated in California State University, Hayward v. National Collegiate Athletic Assn.,47 Cal.App.3d 533, 545, 121 Cal.Rptr. 85, 92: "Generally, a preliminary injunctive order does not reach the merits of the permanent injunctive relief sought in the complaint. The court, at this stage, balances the equities of the parties and determines whether the defendants should be restrained from exercising the right claimed by them pending a trial on the merits. The general purpose is to preserve the status quo until the merits of the action are determined. The court considers who will bear the greater injury should the preliminary injunction be granted and whether a reasonable probability exists the plaintiff will prevail. (Continental Baking Co. v. Katz, 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889.)' (State Bd. of Barber Examiners v. Star (1970) 8 Cal.App.3d 736, 738, 87 Cal.Rptr. 450. . . .)' We think that under the circumstances, the order could be reasonably interpreted as to have provided adequate notice of the proscribed areas (cf. City of L.A. v. Los Angeles, etc., Council, 94 Cal.App.2d 36, 41--42, 210 P.2d 305, where eight different city projects were...