SURREY RESTAURANTS (a Corporation), Respondent, v. CULINARY WORKERS AND BARTENDERS UNION, LOCAL No. 535 (an Unincorporated Association) et al., Appellants, 54 Cal. 2d 461

WHITE, J. This is an appeal by defendants, Culinary Workers Union and several of its officers, from an order of the trial court granting plaintiff a preliminary injunction under the Jurisdictional Strike Act (Lab. Code, §§ 1115-1120, 1122) to halt defendant union’s reeognitional strike. Plaintiff has not filed any briefs herein and the cause was submitted for decision without argument pursuant to rule 17 of the Rules on Appeal.

By its complaint herein, plaintiff contends that a dispute exists between defendant union (hereinafter referred to as the union) and an independent employees organization (hereinafter referred to as the independent) as to which should have the exclusive right to engage in collective bargaining with plaintiff on behalf of its employees; that the union’s strike and picketing is, therefore, unlawful (Lab. Code, §§ 1115, 1118) and that therefore, the preliminary injunction was properly issued (Lab. Code, § 1116). Plaintiff restaurant is operated in the City of Riverside and employs approximately 34 people.

In September of 1958, several officers of the union approached plaintiff’s managers and discussed the possibility of organization of the restaurant. The union had already enrolled several of plaintiff's employees and plaintiff’s managers expressed themselves as favorable to the idea of unionization.

The union submitted a tentative contract in which it was provided that it be recognized as bargaining agent for only those of plaintiff’s employees that were already union members or would become so in the future; but that if ever a majority of plaintiff’s employees joined the union then, and only then, would it be recognized as bargaining agent for the entire restaurant. Plaintiff delayed signing the proposed contract for several months for various reasons, during which time some of plaintiff’s employees formed the independent.

Upon plaintiff’s further and final refusal to sign the contract due, it alleged, to the existence of the independent the union called a strike and placed pickets around the restaurant. The independent was formed in the following manner: At some time after the union had first contacted the plaintiff and requested a contract, a petition was circulated among plaintiff’s employees on the premises and during working hours by several of the employees requesting the formation of au independent union. On October 22 or 23, 1958, a meeting was held in the restaurant to consider such proposal.

Due, however, to the presence of Joseph Wollam (a union organizer) and those of plaintiff's employees who were alreády members of the union, the meeting was moved to an adjoining furniture store. The union alleges that one of plaintiff’s managers secured permission for the employees to use the furniture store but plaintiff denies this. During the course of this meeting a vote was taken which resulted in the approval, by a majority of those present, of the formation of an independent union for the purpose of dealing with the plaintiff in matters affecting employment.

None of the employees lost any pay due to their attendance at this, or later meetings of the independent during working hours. For this and other reasons the union alleges, but plaintiff traverses, that the independent is dominated and controlled by plaintiff. As will hereinafter appear we find it unnecessary to dispose of this contention. Although the formation of the independent apparently had been accomplished at the time this action was commenced it had made no contract proposals or demands upon the plaintiff.

Immediately upon the commencement of the union’s picket line plaintiff obtained a temporary restraining order against the former. Shortly thereafter a hearing was held pursuant to

section 527 of the Code of Civil Procedure to determine whether the temporary restraining order should be dissolved or a preliminary injunction granted. On the basis of the complaint, affidavits and testimony taken at the hearing the trial court granted a preliminary injunction pending trial of the cause on its merits. Defendants appeal from the order granting such injunction. An injunction is authorized by the Jurisdictional Strike Act (Lab.

Code, §§ 1115-1120, 1122) only to halt a “jurisdictional” strike which the act defines insofar as relevant to the instant case as a strike “arising out of a controversy between two or more labor organizations as to which of them . . . should have the exclusive right to bargain collectively with an employer on behalf of his employees or any of them. ...” (Lab. Code, §1118.) Thus, a dispute under this part of the act occurs only when two or more labor organizations each claim an exclusive right to represent the same employees. (See Seven Up etc. Co. v. Grocery etc.

Union, 40 Cal.2d 368, 372-373 [254 P.2d 544, 33 A.L.R.2d 327]; Aaron, The California Jurisdictional Strike Act, 27 So.Cal.L. Rev. 239, 240-241.) Where the labor organizations do not seek to -bargain for the same employees it is elementary that no such dispute can be said to,exist. In order to obtain preliminary injunctive relief, therefore, the existence of a “jurisdictional” strike must be tentatively established by the complaint and affidavits in the manner provided by

section 527 of the Code of Civil Procedure. (Voeltz v. Bakery etc. Union, 40 Cal.2d 382, 386 [254 P.2d 553].) The plaintiff alleged that the independent was formed for the purpose of “dealing with Plaintiff concerning grievances, labor disputes, wages, hours of employment and conditions of work” and that a majority of plaintiff’s employees are members thereof.

It does not aver that the independent has attempted to become the exclusive bargaining agent for all, or any of the restaurant’s employees and, as stated above, it appears that the independent had not submitted any proposals to plaintiff prior to the time of filing suit. It is consequently impossible to ascertain over which óf plaintiff’s employees the independent will seek exclusive bargaining rights.

Regarding the union, the complaint alleged only that it sought a contract that would call for all of the restaurant’s employees to become members thereof “upon the happening of certain conditions. ’ ’ As was previously indicated, the contract offered to plaintiff by the union established that the union was seeking at the time here in question to represent only those employees who were then its members or who would become so in the future. The “certain conditions,” a majority of all of plaintiff's employees becoming members of the union, were not asserted to be either imminent or likely.

Such a record does not establish that either the union or the independent was attempting to represent all of plaintiff’s employees, or that they were seeking to represent any of the same employees. Manifestly, therefore, the record does not sustain the finding of the trial court that there existed a “jurisdictional” dispute. The issuance of the preliminary injunction was thus erroneous.

In view of the foregoing conclusion at which we have arrived other contentions advanced by appellants do not warrant consideration since a determination thereof would serve no purpose for guidance of the trial court in subsequent proceedings, if any, in this litigation. Por the foregoing reasons the order appealed from is reversed. Gibson, C. J., Traynor, J., Peters, J., and Dooling, J., concurred.

"In case a temporary restraining order shall be granted without notice . . . the matter shall be made returnable on an order requiring cause to be shown why the injunction should not be granted . . . not later than ten days from the date of such order. ’ ’