Opinion
8-14-1951
28 L.R.R.M. (BNA) 2582, 20 Lab.Cas. P 66,522 SAFEWAY STORES Inc. v. RETAIL CLERKS INTERNATIONAL ASS'N et al. Civ. 14679.
James F. Galliano, C. Paul Paduck, Oakland, Benjamin Dreyfus, San Francisco, Alexander H. Schullman, Los Angeles, for appellants. Mitchell T. Neff, Willard S. Johnston, B. H. Parkinson, Jr., Orrick, Dahlquist, Neff & Herrington, San Francisco, John B. Rosson, Brown, Rosson & Berry, Oakland, for respondent. Roland C. Davis, J. D. Burdick, Carroll Davis & Freidenrich, San Francisco, for San Francisco Labor Council of the American Federation of Labor, amicus curiae in support of appellant's position.
SAFEWAY STORES Inc.
v.
RETAIL CLERKS INTERNATIONAL ASS'N et al.
Aug. 14, 1951.
Hearing Granted Oct. 11, 1951. *
James F. Galliano, C. Paul Paduck, Oakland, Benjamin Dreyfus, San Francisco, Alexander H. Schullman, Los Angeles, for appellants.
Mitchell T. Neff, Willard S. Johnston, B. H. Parkinson, Jr., Orrick, Dahlquist, Neff & Herrington, San Francisco, John B. Rosson, Brown, Rosson & Berry, Oakland, for respondent.
Roland C. Davis, J. D. Burdick, Carroll Davis & Freidenrich, San Francisco, for San Francisco Labor Council of the American Federation of Labor, amicus curiae in support of appellant's position.
DOOLING, Justice.
This is an appeal from the issuance of a preliminary injunction prohibiting defendants from further picketing or striking to compel plaintiff to bargain collectively with defendants for the working conditions of plaintiff's location store managers.
Plaintiff is in the retail food business, and operates 11 retail food stores in Contra Costs County and 65 in Alameda County. Defendants are unincorporated labor unions and the individuals named are officers of these unions.
There are employed in each store in the two counties from 4 to 23 clerks, in addition to the store manager, who are members of one of the defendant unions. There are also employed in the stores butchers who are members of another union. All of these employees are under the direction and supervision of the store manager.
All clerks in the stores involved have been members of the Clerks Unions, including the store managers, and these unions have since 1937 bargained collectively with Safeway for the wages, working conditions, etc., of these store managers. The unions were the exclusive bargaining agents, and a 'union shop' prevailed, i. e., employment was conditioned upon membership in the union.
In the summer of 1949 the parties negotiated for a new contract to replace the then existent contract which would expire on September 19, 1949. Plaintiff from the outset of these negotiations refused to bargain with the defendant unions for the conditions of employment of its store managers, although all other employers, who were represented in the negotiations along with plaintiff by a bargaining agent known as Retail Food Labor Relations Council, consented to bargain with defendants for like managers, and labor agreements between all such other employers and defendant unions, in which were included the terms of employment of their store managers, were in fact entered into.
All store managers of plaintiff were informed by plaintiff during the negotiations, through the medium of a prepared statement, that plaintiff would under no circumstances bargain with defendants for the terms of its store managers' employment and the store managers were thereby confronted with the thinly veiled threat that if they persisted in their attempt to bargain through defendant unions plaintiff would discharge them, as the following quotation from that statement makes clear:
'It has been established that supervisory employees may be excluded from the bargaining unit of the rank-and-file and the employer may insist that supervisory employees chose either the union or their employer. The law does not compel a supervisor to give up membership in his union. However, if a supervisor insists upon retaining his union membership, or having the union bargain for him, the Company will be within its right in discharging him for such action * * *
'Whether we reach an agreement with the Clerk's Union or continue operations otherwise, Location Managers no longer will be covered by the Clerks' contract * * * The above program is not one which will be abandoned.'
With the lines so drawn the defendant unions were out on strike and forty of the store managers joined them. At the time of the hearing thirty-six of these store managers still stood with the defendant unions and testified that they wished to be represented by the defendants in bargaining with plaintiff, two had swung to the employer's side and two were unaccounted for.
It is undisputed that plaintiff's business sufficiently impinges on interstate commerce to make its labor relations subject to Federal statutory regulations and the present battle was precipitated by the adoption by Congress of the Labor Management Relations Act commonly known as the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq. Under the National Labor Relations Act or Wagner Act, 29 U.S.C.A. § 151 et seq., although the National Labor Relations Board had vacillated back and forth on the question, it was finally established that supervisory employees were within the coverage of the act and entitled as employees to bargain collectively with their employers under the act's provisions. Packard Motor Car Co. v. National Labor Relations Bd., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040. The earlier vacillations of the N.L.R.B. are noted in footnote 3 of that decision, 330 U.S. at page 492, 67 S.Ct. 789, 91 L.Ed. 1040. Despite these vacillations of the N.L.R.B. and the fact that during much of the period after 1937 (when plaintiff first bargained with the defendant unions for its store managers) the N.L.R.B. ruling was that supervisory employees were not covered by the Wagner Act, plaintiff continued to so bargain during the entire period. Against this background its statement now that it did so only under the compulsion of that act cannot escape the evocation of a shade of skepticism.
Be that as it may with the adoption of the Taft-Hartley Act supervisory employees were expressly removed from the coverage of the act. By section 2(3) of that act 'any individual employed as a supervisor' is expressly excluded from the definition of 'employee' and secion 14(a) provides: 'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.'
Supervisory employees in businesses subject to the act's provisions were thereby thrown back into the jungle of tooth-and-claw labor warfare which had characterized labor-management relations before the adoption of statutory procedures to regulate and ameliorate the strife. As a result of this new legislation the Court of Appeals, Sixth Circuit, held in National Labor Relations Bd. v. Edward G. Budd Mfg. Co., 169 F.2d 571, 579: 'We believe it is clear that Congress intended by the enactment of the Labor Management Relations Act that employers be free in the future to discharge supervisors for joining a union, and to interfere with their union activities.'
It is clear that by the adoption of sec. 14(a) the Congress intended to exclude supervisory employees from all the benefits of the Wagner Act as modified by the Taft-Hartley Act and from the like benefits of any state ('local') act which placed any compulsion or restraint upon employers in collective bargaining with their employees. It is equally clear that the Congress by this enactment did not place any restriction on the common-law or non-statutory rights of supervisory employees to organize for the purpose of bargaining with their employers and to use any of the recognizedly legal methods of pressure (striking, picketing etc.) which the common or non-statutory law accorded them as employees. Indeed the Congress went a step further and made explicit, what otherwise would only have been implicit, by expressly enacting in sec. 14(a): 'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization * * *.'
The Congress thus expressly recognized a constitutional right of supervisory employees which both the majority and minority of the United States Supreme Court in the Packard case had plainly declared (although sharply divided on the question as to whether supervisory employees were included in the coverage of the Wagner Act), the right as employees to organize or join a union of their choice for the purpose of bargaining for better terms of employment with their employers. Justice Douglas speaking for the minority in that case said on this question: 'What I have said does not mean that foreman have no right to organize for collective bargaining. The general law recognizes their right to do so. (Citing cases.)' 330 U.S. at page 500, 67 S.Ct. at page 797, 91 L.Ed. 1040.
The same view is implicit in Mr. Justice Jackson's opinion, written for the majority of the court, although since the majority held supervisory employees to be employees within the meaning of the Wagner Act they were under no necessity of spelling out their common law or constitutional rights as employees apart from the act. The implication is clear from the following language found in Mr. Justice Jackson's opinion in the Packard case: 'Even those who act for the employer in some matters, including the service of standing between management and manual labor, still have interests of their owns as employees. Though the foreman is the faithful representative of the employer in maintaining a production schedule, his interest properly may be adverse to that of the employer when it comes to fixing his own wages, hours, seniority rights or working conditions. He does not lose his right to serve himself in these respects because he serves his master in others.' 330 U.S. at pages 489-490, 67 S.Ct. at page 792, 91 L.Ed. 1040.
Indeed the plaintiff in this case does not dispute that supervisory employees are none the less employees for having supervisory powers. Its position, and that of the trial court, is basically that because a supervisory employee exercises as such employee some of the functions of management a sound public policy dictates that supervisory employees should not be permitted to attempt to enforce their demands through a rank-and-file union, even though it be the union of their voluntary choice, because standing between management and the rank and file they should give undivided allegiance to management and not be subject to the pressures and influence of membership in a rank-and-file union. This argument is buttressed by a copious citation of authorities, none of them from the field of private labor-management relations, wherein the duty of loyalty of an agent to his principal is expounded, never more simply or forcefully than in the language of Matthew VI, 24: 'No man can serve two masters.'
Nothing, however, can be more subtly misleading than the appearance of logic in applying a settled principle of law in one field to a different field of the law in which other opposing principles may exert an overbearing weight. The syylogism is simple and carries the superficial persuasiveness of simplicity: 'No man can serve two masters. If a supervisory employee seeks to enforce his labor demands through a rank-and-file union he is attempting to serve two masters, the union and his employer. Therefore a supervisory employee may not enforce his labor demands through a rank-and-file union.'
Some of the opposing factors, undisclosed in this simply syllogism, are forcefully expressed by Mr. Justice Jackson speaking for the majority of the Supreme Court of the United States in the Packard case. We recognize that the court was dealing in that case with a union made up exclusively of supervisory employees and that it was considering only the question whether supervisory employees were within the coverage of the Wagner Act but the broader application to the question of public policy presented by this case seems to us to be readily apparent. Accordingly we quote: 'The company's argument is really addressed to the undesirability of permitting foremen to organize. It wants selfless representatives of its interest. It fears that if foremen combine to bargain advantages for themselves, they will sometimes be governed by interests of their own or of their fellow foremen, rather than by the company's interest. There is nothing new in this argument. It is rooted in the misconception that because the employer has the right to wholehearted loyalty in the performance of the contract of employment, the employee does not have the right to protect his independent and adverse interest in the terms of the contract itself and the conditions of work.' 330 U.S. at page 490, 67 S.Ct. at page 792, 91 L.Ed. 1040.
Membership of supervisory employees in rank-and-file unions is nothing new in the history of labor-management relations in this country. In the newspaper and job-printing field foremen have been members of rank-and-file unions since 1889. 55 Yale Law Journal, 772; How Collective Bargaining Works, Twentieth Century Fund, 67; Collective Bargaining By Foremen, 12 Labor Relations Reporter 421, May 1943, Bureau of National Affairs.
'Nearly all the building trades unions require foremen to be union members. * * *
'While the practice is less uniform in the metal trades * * * the tradition * * * is to require foremen to be union members and to establish wage rates for them * * *
'General practice in the maritime industry is for the unlicensed seamen to make up one unit and for officers to be separately organized. * * * Practice is not uniform, however, and there are cases where agreements of the above officers' organizations cover unlicensed personnel * * *
'There is extensive organization of supervisory personnel in the railroad industry * * * Some foremen and supervisors are organized into unions of their own; in some crafts they belong to the same unions as the men they supervise.' (Collective Bargaining by Foremen, supra; cf. Daykin, Status of Supervisory Employees, 29 Ia.Law Rev. pp. 314-315.
Courts should not overlook history and experience when they are asked to hold that a practice which in some instances goes back for over 60 years is contrary to public policy. Nor can we close our eyes to practicalities. The industry-wide or vertical union has proved its effectiveness, particularly since the organization of the C.I.O. In the struggle for better working conditions if supervisory employees are denied the assistance of the rank-and-file who work with them they are denied the assistance of the only ally which they are apt to find. Their undivided loyalty to management will not better their bargaining power when management opposes their demands, and if they are divorced from their fellow workers at the same time that they are struggling with their employer they may well find themselves in the unfortunate position of Poland at the outset of the last war, beset and overrun from both sides by forces which under the normal circumstances of labor disputes would be more likely to be arrayed against one another.
Justice Holmes in his historic dissenting opinion in Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077, 1079, 35 L.R.A. 722 (an opinion which like many another of Justice Holmes' dissents has made a greater impress upon the development of the law than the opinion of the majority with which he disagreed; see 1 Teller, Labor Disputes and Collective Bargaining, p. 192, notes 57 and 59) has emphasized the difficulty facing courts which attempt to declare sharp rules of public policy with insufficient data in those areas where the complicated interplay of competing interests is difficult to discover and define: 'Nevertheless, in numberless instances the law warrants the intentional infliction of temporal damage, because it regards it as justified. It is on the question of what shall amount to a justification, and more especially on the nature of the considerations which really determine or ought to determine the answer to that question, that judicial reasoning seems to me often to be inadequate. The true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and general propositions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely, if ever, are capable of unanswerable proof. They require a special training to enable any one even to form an intelligent opinion about them.' Vegelahn v. Guntner, supra, 44 N.E. at page 1080.
Over twenty years ago Justice Frankfurter and Nathan Greene pointed out that questions of policy in this field are primarily for the legislature to determine and only within narrow limits should this function be exercised by the courts: 'Once we recognize that the right of combination by workers is in itself a corollary to the dogma of free competition, as a means of equalizing the factors that determine bargaining power, the consequences of making the power of union effective will be seen in truer perspective. Undoubtedly, hardships and even cruelties are involved in this phase, as in other aspects, of our competitive system. Wise statesmanship here enters to determine at precisely what points the cost of competition is too great. Primarily this is the task of legislatures. Only within very narrow limits is it the function of courts to apply their own notions of policy. And it is immaterial whether this is done by judges with the frank avowel that they also are organs of policy or under the subtler guise of enforcing constitutional coercions. To count the cost of union weapons is to count the cost of free competition in industrial controversy. Without breeding other ills and, above all, without hurting the prestige of law, that cost is not to be diminished by curtailing in the name of law the most effective union tactics.' Frankfurter & Greene, The Labor Injunction, p. 205.
This has become the declared policy of our own Supreme Court. Mr. Justice Edmonds, speaking for the court in C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414, quoted from the dissenting opinion of Justice Brandeis in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 448, 41 S.Ct. 172, 65 L.Ed. 349: 'All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. The conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest and to declare the duties which the new situation demands. This is the function of the legislature which, while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat.' C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 404, 106 P.2d 414, 422.
Mr. Justice Traynor speaking similarly for his court in a later case restated the same principle in his own language: 'Injunctions in labor disputes have not generally proved to be an effective means of settling them; frequently they have aggravated rather than allayed a conflict. They have the deceptive appeal of the quick and easy and therein lies their danger, for disputes between workers and employers, now often complicated by internecine disputes among workers themselves, are not always of a comparable simplicity. There are many currents of conflict in the mainstream of labor relations, variable, unpredictable, subsiding at times as quickly as they arise. For the most part they can best be controlled, not by the courts buy by the Legislature, whenever, the necessity arises and to whatever degree the public interest requires.' Park & Tilford Import Corp. v. Int. Bro. of Teamsters, 27 Cal.2d 599, 608-609, 165 P.2d 891, 897, 162 A.L.R. 1426.
The lessons of experience crystallized in the above quotations dictate that courts in shadowed areas of conflicting interests, with only the limited factual information available within the narrow confines of a particular case, and without the opportunity to see the picture as a whole either in its broad and sweeping outlines or in the infinite detail of all the complexes of human relations, should not attempt dogmatic and sweeping declarations of public policy for which the facts of the particular case are too apt to furnish incomplete and fragmentary data, and the repercussions of which in other situations not clearly or at all envisioned by the court may be extremely mischievous and unfortunate.
The injunction rests primarily, as previously stated, upon the right of a principal to demand undivided loyalty from his agent. This principle in the areas in which it has been applied embodies the wisdom of judicial experience. Even in those areas, as pointed out by amicus curiae, the law permits an agent to deal with a principal for his own advantage if he makes a full disclosure of the facts. It is the secret, the undisclosed, the surreptitious placing of his own interests above those of his principal upon which the law frowns. See 2 Restatement of Agency, sec. 390, p. 877 and comment a; 1 Mechem on Agency, 2d Ed., sec. 1206, p. 881; sec. 1221, p. 891; 1 Cal.Jur., Agency, sec. 81 p. 793; sec. 85, pp. 798-799. Here the fact that the 36 store managers are members of defendant unions and desire to bargain with plaintiff through those unions is no secret but is the very basis of plaintiff's complaint and the temporary injunction appealed from herein.
To extend the principle of the right to undivided loyalty to cover a court-made doctrine of public policy that no supervisory employee may openly bargain with his employer through a rank-and-file union of his choice is to disregard the caution of Justice Holmes quoted with approval in C. S. Smith Met. Market Co. v. Lyons, supra, 16 Cal.2d at page 403, 106 P.2d at page 422: 'But the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.'
Plaintiff's citation of certain cases drawn from the field of public employment is not helpful. The relations between government and its employees stand on a different plane from those between labor and private industry. The distinction is clearly made in Nutter v. City of Santa Monica, 74 Cal.App.2d 292, 297-298, 168 P.2d 741, 745: "The distinction between private employment and public service is an important one. Private employers if not restrained by law, are free to adopt any policy toward their employes which they believe calculated to promote the success of their enterprises, without regard to its effect upon the welfare of the employes * * *.
"In the field of public employment, on the other hand, altogether different conditions prevail. Public officers do not have the same incentive to oppress the worker; and fair treatment sought to be coerced by collective bargaining in the field of private employment, is in the public field, to a large extent, compelled by law."
More tersely the court said in Perez v. Board of Police Com'rs, 78 Cal.App.2d 638, 647, 178 P.2d 537, 543: 'Nothing can be gained by comparing public employment with private employment; there can be no analogy in such a comparison.'
We attach no importance in this case to the fact that the 36 store managers who sought to bargain through defendant unions, after the effect of the competing pressures of the parties had crystallized, are slightly less than 50% of the total number of store managers involved. By sec. 14(a) of the Taft-Hartley Act supervisors are removed from the coverage of the act. The provisions of that act requiring collective bargaining exclusively with the union representing a majority of the employees affected is therefore no longer applicable to these store managers. The unions of their choice were thereby freed in acting on their behalf from the statutory restraint which otherwise might have made such conduct illegal. Park & T. I. Corp. v. Int. Bro. of Teamsters, supra, 27 Cal.2d 599, 603, 165 P.2d 891, 162 A.L.R. 1426. In the absence of such statutory prohibition there is nothing in the public policy of our state to prevent strikes or picketing by a minority for a union-shop contract. Park & T. I. Corp. v. Int. Bro. of Teamsters, supra, 27 Cal.2d page 604, 165 P.2d 891, 162 A.L.R. 1426; Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 387-388, 106 P.2d 403; McKay v. Retail Auto S. L. Union No. 1067, 16 Cal.2d 311, 327, 106 P.2d 373.
The argument grounded on section 921, 922, 923, Labor Code, that those sections clearly set management's representatives on the side of management is not convincing. In bargaining for terms of employment supervisory employees are opposed to management, not its representatives. This dual position was clearly stated by Justice Jackson in the Packard case in the passages above quoted. As employees they are entitled to exercise the rights of employees, and sec. 923, Labor Code is clear in its declaration: 'Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees.' The Shafer case spells out that the prohibition of secs. 921-922 do not prevent picketing to compel an employee to join an independent, as distinguished from a company, union. Shafer v. Registered Pharmacists Union, supra, 16 Cal.2d 379, 386-388, 106 P.2d 403.
Under the by-laws of defendant unions members of those unions who in their employment have the right 'to hire or fire' are not eligible to hold office in the unions. It is disputed between the parties whether the store managers of plaintiff have the right to hire and fire. Taking the position that they do have this right plaintiff argues that the injunction is supportable under the principle of James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900, and Riviello v. Journeymen Barbers etc. Union, 88 Cal.App.2d 499, 199 P.2d 400, prohibiting a closed union and a closed shop. The principle was thus announced in James v. Marinship Corp., supra, 25 Cal.2d at pages 736-737, 155 P.2d at page 338, 160 A.L.R. 900: 'But if the union imposes unreasonable and discriminatory restrictions upon Negroes not placed upon members of Local No. 6, and if the auxiliary does not afford its members privileges and protection substantially equal to that afforded to the members of Local No. 6, then to compel the Negroes to join the auxiliary, upon penalty of discharge, is the equivalent of a complete denial of union membership.' (Emphasis ours.)
It is to be observed that the opinion emphasizes unreasonable restrictions and substantial equality of treatment, not complete or absolute equality. In both the James and Riviello cases the courts were dealing with situations wherein one class of members were denied the right to any voice or vote in any union matter. In the case before us it is not contended that union members who have the right to hire or fire are denied full freedom of expression in union meetings or the equal right to vote on any matter before the union. It needs no citation of authorities from the field of constitutional law to establish the principle that classifications, if they have a substantial basis, are not unreasonably discriminatory. The denial by the unions of the right to hold office to members with the right to hire or fire is grounded on a sound basis of classification. Officers of the union, whose duties might to be insist on the hiring or retention of employees by employers would be put in the extreme position of divided loyalty, so emphasized by plaintiff in its main argument, if they had the right to hire or fire in the very cases under dispute between the union and their employer. The unions by this by-law have shown a wise restraint in making such extreme situations impossible. Under the circumstances, we cannot hold that the denial of the right to hold office to such members is not reasonable or that it deprives those members of substantial equality within the unions. It is true that in the Riviello case the court arguendo referred to the fact that the plaintiff was denied the right to hold office in the union, Riviello v. Journeymen Barbers etc. Union, supra, 88 Cal.App.2d page 506, 199 P.2d 400, but the true basis of that decision was, as in the Marinship case, the denial of 'the right to participate in the determination of union policies.' Id., 88 Cal.App.2d at page 507, 199 P.2d at page 405. Here the store managers, assuming they cannot hold office in the defendant unions (a point which the unions dispute), have otherwise full and equal rights with all other members of the union 'in the determination of union policies.'
Plaintiff emphasizes certain instances in which their store managers were put under pressures by defendant unions in their dealings with plaintiff. If we are right in our conclusion that this is a legislative question rather than one for the courts no purpose will be served by discussing these incidents. Courts cannot undertake the piecemeal and detailed regulation of the complicated relations between labor and management. We will remark that the few instances cited are impressive that on the whole the evils that plaintiff envisions as arising from the membership in defendant unions of its store managers have in practice been kept to the minimum.
Certain instances of illegal threats and violence at the outset of the strike were proved. The trial judge said of these, in oral findings made at the close of the extended hearing:
'I am inclined to believe, based solely upon the fact that most of the affidavits filed related to either acts prior to the strike or during October and November and that, as I recall, none of them related to recent instances, that as time has gone on the acts have diminished and that a realization that the restraining order was in force probably had something to do with that.
'I am inclined to believe that the restraining order--that there should be a restraining order restraining violence, intimidation and coercion. Certainly it deprives no one of any lawful right when it is issued and there may be, if it is not issued, on the basis of the evidence * * * a flare-up of these things if it is not continued in force.'
While extreme or studied acts of violence and lawlessness in the conduct of a strike may justify an injunction prohibiting all picketing, Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682, 123 P.2d 20; Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, it is clear that this is not such a case, nor did the trial court so consider it.
The injunction insofar as it enjoins unlawful acts in the conduct of the strike was proper and should be continued. Insofar as it enjoins defendants from attempting to bargain, by strike and picketing, for the terms of employment of its store-manager members it should be modified.
The order granting the temporary injunction is accordingly modified by striking from the preliminary injunction the paragraphs numbered, a, b, c and i (all of which enjoin defendants' activities on behalf of plaintiff's store managers) and as so modified the order is affirmed, defendants to have their costs on appeal.
GOODELL, J., concurs.
NOURSE, Presiding Justice.
I dissent.
I cannot concur with the opinion of the majority as it nullifies the provisions of section 14(a) of the Taft-Hartley Act which provides that no employer shall be compelled to treat a supervisor as an employee 'for the purpose of any law, either national or local, relating to collective bargaining.' This was one of the most controversial provisions of the Taft-Hartley Act, and has been uniformly upheld by the federal courts and National Labor Relations Board. These rulings are binding on us. Assuming that the employer went too far in notifying the supervisors to withdraw from the union, the strike was not called in relation to such membership. It is conceded that the union demanded that the employer grant the supervisors the right of collective bargaining contrary to section 14(a).
If an employer is not required by the terms of the act to treat a supervisor as an employee for the purpose of collective bargaining as to the supervisors' working conditions, a strike called to compel him to do so is called for an illegal purpose. That an injunction to prevent a strike under such circumstances is proper is supported by uniformity of decisions. --------------- * Subsequent opinion 261 P.2d 721.