SCHAUER, J., Dissenting. In my opinion the verified complaint, declarations (which, as authorized by Code Civ. Proc., § 2015.5, were filed in lieu of the “affidavits” mentioned in Code Civ. Proc., § 527) and testimony presented a sufficient showing to support the trial court’s determination that there was a “jurisdictional strike” as defined by the pertinent clause of Labor Code, section 1118,1 and reversal of the order granting the preliminary injunction is an unwarranted invasion of the fact-finding province of the trial court and of its discretion as to the granting of a preliminary injunction.
The majority base their conclusion (ante, p. 465) that ‘ ‘ the record does not sustain the finding of the trial court that there existed a ‘jurisdictional’ dispute” on the lack of any direct averment or testimony that the independent labor organization had asked plaintiff employer to recognize it as the exclusive bargaining agent of any or all of plaintiff’s employes, and the lack of any such showing that defendant union asked recognition as the representative of any employes except those who were already members of such union except upon future conditions which, in the words of the majority, “were not asserted to be either imminent or likely.” It is my view that, to support the determination that there was a jurisdictional dispute, there is no need to show that the competing unions made direct, verbally expressed, conflicting demands upon the employer. Rather, I think, it belies the [466]realities of union competition to say that the trier of fact could not determine that the concerted activity of defendant union was essentially “jurisdictional” in the following circumstances :
Discussions between representatives of defendant union and representatives of plaintiff employer began on September 11, 1958, before plaintiff corporation had commenced active operation as a restaurant. According to the uncontradicted averment of a business representative of the union, on September 16, 1958, he showed plaintiff’s representatives a form of contract which had been signed by other restaurants in the area, but stated that the union would not sign this kind of contract with plaintiff because the union did not represent a majority of plaintiff’s employes and sought to represent only its members; at this time three employes of plaintiff were members of defendant union.
As might be expected, there is considerable conflict between the declarations of union representatives and the declaration of the general manager of plaintiff as to what was said at their subsequent discussions. Among the averments of such declarations, the following are here pertinent: According to plaintiff’s manager, he insisted that plaintiff would not sign a contract with the union unless a majority of plaintiff’s employes wished plaintiff to do so. According to the union representatives, they made it clear to plaintiff that they “were not negotiating and . . . were not trying to negotiate for any employee who was not then a member of Local 535”; plaintiff’s manager at first orally agreed to requested conditions of employment of members of defendant union but then refused to sign a contract; it was plaintiff’s refusal to agree to any form of “union security clause”2 acceptable to the union which caused the union to eventually terminate negotiations.
Plaintiff restaurant opened for business about September 24, 1958. Efforts to organize the independent began in October, 1958. Representatives of defendant union discussed the formation of an independent organization with employes of plaintiff who were not members of defendant union and (quite naturally) defendant’s representatives opposed the formation of the independent. At the beginning of the meeting of plaintiff’s employes about October 22, when a majority voted for formation of the independent, a representative of defendant [467]union was present and vigorously protesting. To what purpose was this protest if not to gain as members of defendant union the very employes who, because they preferred to elect their own representatives (who would be responsible to the members), were endeavoring to organize an independent union ?
The purpose of the independent was to represent plaintiff’s employes in bargaining with plaintiff, but the only evidence as to the carrying out of this purpose consists of the following averments: According to the declaration of a representative of defendant union who negotiated with plaintiff, on October 27, 1958, plaintiff’s manager “informed me that a demand had been made upon him to sign an agreement with an independent union.” According to the declaration of a waitress who was an officer of the independent union, such independent “advised Surrey Restaurants prior to November 12, 1958, of its desire to represent the employees of Surrey Restaurants and requested contract negotiations for a collective bargaining agreement to that end.” This officer of the independent orally testified, however, that she had only “hearsay” knowledge of the facts stated in the foregoing averment, and that “we haven’t gotten around to” presenting contract proposals to plaintiff.
Plaintiff had 34 employes. At the time of the meeting of about October 22, when formation of the independent was agreed upon by a majority of plaintiff’s employes, 12 or 13 of the (nonagreeing) employes were members of defendant union. By November 12, 1958, at least 21 of plaintiff’s employes were members of the independent.
On November 12,1958, defendant union proposed and plaintiff refused to execute a form of contract which would have provided, among other things, that “The Employer hereby recognizes the [defendant] Union as the collective bargaining agent for all of his employees who are or become members in good standing of Local #535, employed in the classification listed in ' Schedule A’ [which includes the various types of kitchen, dining room, and bar employes] ... If at any time during the term of this agreement a majority of the employees of the employer employed in the classifications listed in ' Schedule A’ become members of the [defendant] Union in good standing the parties agree that thereafter this agreement shall apply to all persons employed in the classifications listed in ' Schedule A’, and that all such persons shall become and [468]remain members of the [defendant] Union in good standing as a condition of continued employment ...”
Plaintiff’s manager declared that he informed a representative of defendant union that he rejected the proposed contract because of its “union security clause,”3 Defendant union promptly began the picketing which the trial court found was a forbidden “jurisdictional strike.”
In the foregoing state of the record the trial court could make the following determinations: When the defendant union began to picket, all those concerned knew that almost all of plaintiff’s employes had been already organized, a majority by the independent and a minority by defendant union, and that each union sought to organize and to represent the same classes of workers in the same plant. The disagreements between the representatives of defendant union and the employes who organized the independent union included controversies as to eventual recognition as exclusive bargaining agent of all plaintiff’s employes. Plaintiff’s difficulty in reaching an agreement with defendant union centered around the proposed contract provision for such eventual recognition of the union and as soon as that difficulty came to a head defendant union began picketing and those employes of plaintiff who were members of defendant union went out on strike. Thus the trial court could infer from the circumstances, without direct evidence that a controversy as to recognition had been announced in words, that there was such a controversy and that the concerted activity of defendant, in the light of the climate of existing disputes, was essentially “jurisdictional” in the prohibited sense. The rules which ordinarily are accepted by reviewing courts as delimiting the respective fact-finding functions of such courts and trial courts are stated in my dissent in Messner v. Journeymen Barbers etc. International Union (1960), 53 Cal.2d 873, 890-891 [4 Cal. Rptr. 179, 351 P.2d 347], footnote 2, and need not be here repeated.
The breach of such rules, however, is accented here by the fact that the order appealed from is one of preliminary injunction. The granting or denial of such an injunction rests in the sound discretion of the trial judge and should not be disturbed in the absence of a showing that his discretion was abused. (People v. Black’s Food Store (1940), 16 Cal.2d 59, [46961] [4] [105 P.2d 361].) The preliminary injunction does not adjudicate the ultimate merits of the controversy but merely determines that the trial court, balancing the equities of the parties, has concluded that pending such ultimate adjudication the defendant should be restrained from doing the acts of which plaintiff complains. (Kendall v. Foulks (1919), 180 Cal. 171, 175 [5] [179 P. 886].) In a situation such as that here I see no abuse of discretion on the part of the trial court in concluding that more harm would be done to plaintiff by permitting defendant union to continue picketing than will be done to the union by restraining such picketing pending ultimate determination of its lawfulness.
Por the reasons above stated I would affirm the order appealed from.
McComb, J., concurred.
“. . . concerted interference with an employer’s operation or business, arising out of a controversy between two . . . 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 ...”
Just what sorts of “union security clause” the representatives of the parties referred to in their declarations does not appear.
See footnote 2, supra.