Petri Cleaners, Inc. v. Automotive Emp., Laundry Drivers and Helpers Local No. 88

• Decision Date: 26 January 1960
• Docket Number: No. 88,A,88
• Citation: 2 Cal.Rptr. 470,53 Cal.2d 455,349 P.2d 76
• Court: California Supreme Court
• Parties: , 349 P.2d 76, 45 L.R.R.M. (BNA) 2664, 39 Lab.Cas. P 66,266 PETRI CLEANERS, INC. (a Corporation), Respondent, v. AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS AND HELPERS LOCAL NO. 88 et al., Defendants. Automotive Employees, Laundry Drivers and Helpers Localppellant. L. A. 25143

Page 470

2 Cal.Rptr. 470

53 Cal.2d 455, 349 P.2d 76, 45 L.R.R.M. (BNA) 2664,

39 Lab.Cas. P 66,266

PETRI CLEANERS, INC. (a Corporation), Respondent, v. AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS AND HELPERS LOCAL NO. 88 et al., Defendants.

Automotive Employees, Laundry Drivers and Helpers Local No. 88, Appellant.

L. A. 25143.

Jan. 26, 1960.

Rehearing Denied Feb. 24, 1960.

Stevenson, Hackler & Ansell and Herbert M. Ansell, Los Angeles, for appellant.

Rutan, Lindsay, Dahl, Smedegaard, Howell & Tucker, W. W. McCray and Milford W. Dahl, Santa Ana, for respondent.

TRAYNOR, Justice.

Defendant Automotive Employees, Laundry Drivers and Helpers Local No. 88 (hereinafter referred to as defendant) appeals from two orders of the trial court. One granted plaintiff's motion under the Jurisdictional Strike Act (Lab.Code, §§ 1115-1120, 1122) for a preliminary injunction against defendant's strike for recognition; the other denied defendant's motion for a preliminary injunction to compel plaintiff to bargain with defendant instead of the Independent Association of Petri Employees (hereinafter called the Association), an alleged company union.

Since plaintiff is not engaged in interstate commerce, the Labor Management Relations Act (29 U.S.C.A. §§ 141-197 (1947)) is not applicable. The governing statute is the Jurisdictional Strike Act. Plaintiff contends that there is a labor dispute between defendant and the Association as to which organization shall be the exclusive bargaining agent of plaintiff's employees and defendant's picketing therefore violates the Act. Defendant contends that there has been no violation on the ground that the Association is not a labor organization within the meaning of the Act.

This issue has not become moot by the passage of time. Although plaintiff urges that if the matter had proceeded to trial on the permanent injunction, facts relating to the formation of the Association would have been irrelevant because of the one-year limitation in section 1117, that limitation is measured from the date 'of the commencement of any proceeding brought under this chapter.' An action is commenced when the complaint is filed. Code Civ.Proc. § 350. Plaintiff filed its complaint on January 14, 1958, and all the facts bearing on the issue of the Association's independence took place from June 1957 to January 1958.

Section 1117 of the Labor Code provides in part:

'As used herein, 'labor organization' means 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 or to have been financed in whole or in part, interfered with, dominated or controlled by the employer or any employer association within one year of the commencement of any proceeding brought under this chapter. The plaintiff shall have the affirmative of the issue with respect to establishing the existence of a 'labor organization' as defined herein.'

Section 1115 provides that a jurisdictional strike is unlawful and section 1118 defines such a strike as

'* * * 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, or 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.'

If the Association was 'interfered with, dominated or controlled' ¹ by plaintiff, it is not a 'labor organization' within the meaning of section 1117 and there has been no jurisdictional strike within the meaning of section 1118. The determination of this issue is crucial to defendant's appeal from the order granting a preliminary injunction against defendant's strike. In deciding that issue we must first interpret the terms 'interfered with, dominated or controlled' and then in the light of our interpretation determine whether plaintiff sustained it burden or proving that the Association is a labor organization.

Federal decisions construing section 8(a)(1) and (2) of the Labor Management Relations Act ² are persuasive in interpreting section 1117, for the language and policy of the two acts are similar. See In re Porterfield, 28 Cal.2d 91, 119, 168 P.2d 706, 167 A.L.R. 675; Nutter v. City of Santa Monica, 74 Cal.App.2d 292, 298, 168 P.2d 741. The federal cases have singled out typical activities condemned by the federal act. Findings that an employer dominated an inside union are usually based on obvious employer intrusion such as statements by the employer to employees on company time and property that he will not recognize an outside union but will deal with an inside association, discharging employees who solicit members for the outside union, openly leading the drive for an inside association by supplying literature and lists of the employees' names and addresses, permitting organizational meetings on company property, and directly soliciting members for the inside association. E. g., N. L. R. B. v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; see Note, Employer-Dominated Unions Illusory Self-Organization, 40 Columb.L.Rev. 278, 283-290. Activities that constitute interference include manifestations by the employer that he favors one union over the other (International Ass'n of Machinists, Tool and Die Makers Lodge No. 35 v. N. L. .R. B., 311 U.S. 72, 78, 61 S.Ct. 83, 85 L.Ed. 50 (Slight suggestions as to the employer's choice between unions may have telling effect among men who know the consequences of incurring that employer's strong displeasure.); N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 600, 61 S.Ct. 358, 85 L.Ed. 368 (Intimations of an employer's preference, though subtle, may be as potent as outright threats of discharge.)); interrogation of employees as to their union sympathies, especially when coupled with threats of discharge for supporting the outside union or promises of economic benefits for remaining loyal to the company (Top Mode Manufacturing Co., 97 N.L.R.B. 1273, 1290-1292, affirmed N. L. R. B. v. Epstein, 3 Cir., 203 F.2d 482, certiorari denied 347 U.S. 912, 74 S.Ct. 474, 98 L.Ed. 1068; Joy Silk Mills v. N. L. R. B., 87 U.S.App.D.C. 360, 185 F.2d 732, 740, certiorari denied 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350); solicitation by management of union withdrawal letters (Texarkana Bus Co. v. N. L. R. B., 8 Cir., 119 F.2d 480, 483; N. L. R. B. v. United Biscuit Co., 8 Cir., 208 F.2d 52, 55, certiorari denied 347 U.S. 934, 74 S.Ct. 629, 98 L.Ed. 1085); unequal advantages conferred upon the inside union that are denied to the outside union, such as use of company time and property (N. L. R. B. v. Wemyss, 9 Cir., 212 F.2d 465, 471; N. L. R. B. v. Summers Fertilizer Co., 1 Cir., 251 F.2d 514, 518); and hasty recognition of the inside union, as contrasted with marked reluctance to recognize the outside union (N. L. R. B. v. Clark, 3 Cir., 176 F.2d 341, 342). Moreover, when an inside union is formed behind picket lines close scrutiny of its genesis is required. N. L. R. B. v. Brown Paper Mill Co., 5 Cir., 108 F.2d 867, 871, certiorari denied 310 U.S. 651, 60 S.Ct. 1104, 84 L.Ed. 1416; N. L. R. B. v. Summers Fertilizer Co., supra, 251 F.2d at page 518. ³ The Fourth Circuit, finding employer domination even though the employees signed an affidavit stating that their choice was not coerced, pointed out that '(s)eldom does the domination and interference with employee representation which the Act prohibits take the form of threats or coercion. More often it is to be found in the guise of friendly cooperation; * * *' American Enka Corp. v. N. L. R. B., 119 F.2d 60, 62. Virtually all of these condemned activities occurred in the present case. The trial court's finding that the Association was not interfered with, dominated or controlled by plaintiff can only be attributed to its failure to appreciate the legal significance of plaintiff's conduct. See In re Estate of Madison, 26 Cal.2d 453, 456, 159 P.2d 630; Sapp. v. Barenfeld, 34 Cal.2d 515, 518, 212 P.2d 233; Pac. Pipeline Const. Co. v. State Bd. of Equal., 49 Cal.2d 729, 735-736, 321 P.2d 729; McNeil v. Board of Retirement, 51 Cal.2d 278, 284-285, 332 P.2d 281.

The undisputed evidence establishes plaintiff's background of hostility to any A.F.L.-C.I.O. union. Jeffrey Winfrey, who once served as plaintiff's route supervisor, testified that he personally aided in installing a tape recorder in the drivers' locker room to discover the men's response to a union organizational drive in 1952, and that Otto Petri, plaintiff's president, instructed him not to hire any union men. Plaintiff has operated as a nonunion shop since approximately 1950. It concedes that Otto Petri is opposed to bargaining with any A.F.L.-C.I.O. union and that his opposition is well known to the employees. Of these, ten were route drivers and twenty- one worked inside the plant at cleaning, pressing, and dyeing machines. During June and July of 1957 defendant attempted to organize plaintiff's drivers, but not the inside employees. Nine of the drivers signed authorization cards with defendant.

Plaintiff knew of defendant's activities, and during the first week in July, Otto Petri questioned Archie Fraser, one of the drivers, as to his union sympathies. Fraser, a witness for plaintiff, testified that Petri indicated that '* * * he did not want to have anything to do with any union and as far as in his present mind, he was not going to sign a contract with any union or international union and that if I had taken the union as my choice why...