Full opinion text
TRAYNOR, J. Defendant Automotive Employees, Laundry Drivers and Helpers Local Number 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. §§ 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 hás 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” 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 its burden of proving that the Association is a labor organization. Federal decisions construing section 8 (a) (1) and (2) of the Labor Management Relations Act 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 ont 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., National Labor Relations Board v. Bradford Dyeing Assn., 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 Assn, of M. T. D. M. L. v. National Labor Relations Board, 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.]; National Labor Relations Board 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, National Labor Relations Board v. Epstein, 203 F.2d 482 [cert, den., 347 U.S. 912 [74 S.Ct. 474, 98 L.Ed. 1068]]; Joy Silk Mills v. National Labor Relations Board, 185 F.2d 732, 740 [87 App. D.C. 360] [cert. den., 341 U.S. 914 [71 S.Ct. 734, 95 L.Ed. 1350] ]; solicitation by management of union withdrawal letters (Texarkana Bus. Co. v. National Labor Relations Board, 119 F.2d 480, 483; National Labor Relations Board v. United Biscuit Co., 208 F.2d 52, 55 [cert. den., 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 (National Labor Relations Board v. Wemyss, 212 F.2d 465, 471; National Labor Relations Board v. Summers Fertilizer Co., 251 F.2d 514, 518); and hasty recognition of the inside union, as contrasted with marked reluctance to recognize the outside union (National Labor Relations Board v. Clark, 176 F.2d 341, 342). Moreover, when an inside union is formed behind picket lines close scrutiny of its genesis is required. (National Labor Relations Board v. Brown Paper Mill Co., 108 F.2d 867, 871 [cert. den., 310 U.S. 651 [60 S.Ct. 1104, 84 L.Ed. 1416]]; National Labor Relations Board v. Summers Fertilizer Co., supra, at 518.) The Fourth Circuit, finding employer domination even though the employees signed an affidavit stating that their choice was not coerced, pointed out that “ [sjeldom 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. National Labor Relations Board, 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 Estate of Madison, 26 Cal.2d 453, 456 [159 P.2d 630]; Sapp v. Barenfeld, 34 Cal.2d 515, 518 [212 P.2d 233] ; Pacific Pipeline Const. Co. v. State Board of Equalization, 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 anjr 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, hut 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 Eraser, one of the drivers, as to his union sympathies. Eraser, 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 then I would have to go or just, either take the union or stay with him, have either choice. ’ ’ Owing to its coercive effect, such interrogation, coupled with a direct threat of discharge as a result of union membership, plainly constitutes interference. Moreover, when Eraser decided to renounce the union, Petri gave him a prepared letter of withdrawal to sign. Around August 1, 1957, the management continued its coercive interviews by questioning Larson and Wolford, two other drivers, about their union status. When they refused to withdraw from the union, plaintiff gave them a week’s termination notice, but on August 3, 1957, placed a notice on its bulletin board offering them reinstatement. There is uncontradicted testimony that this offer did not indicate any change in plaintiff’s attitude. Larson testified that he refused to return because “Mr. Petri had made it clear to me that he wasn’t going to accept the union so if I went back to work it would be under the same conditions and with no union. ...” He stated that on the occasion of a subsequent visit to the plant, Philbert, plaintiff’s manager, saw him talking to some of the drivers and told him that “. . .he would just as soon the way I felt that I wouldn’t remain around the plant or any of his drivers.” Since there is no suggestion that Larson was interrupting the drivers’ work, this statement can only mean that plaintiff did not want its men exposed to union supporters, ánd, therefore, that its opposition to defendant’s organizational efforts had not ceased. Wolford accepted reinstatement, but went on strike with the other drivers and later sought temporary employment elsewhere. On August 6,1957, defendant notified plaintiff by mail that it had authorization cards from nine of the ten drivers and requested a meeting with the management. At a meeting on August 7th, plaintiff’s attorney stated that Petri would not recognize any union. Following this meeting with the union representatives, Petri called a meeting of the drivers and expressed the hope that they would work as usual the following day despite an expected picket line. Fraser testified that some of the drivers had refused to sign plaintiff’s withdrawal letter and that he understood the purpose of the meeting was to give them “a last chance” to withdraw. Wolford testified that plaintiff’s attorney stated to the drivers that plaintiff “just wasn’t going to recognize a union as a bargaining agent.” Thus, before the strike began, plaintiff interfered with the drivers’ freedom of choice by compelling at least three of them to choose between joining the union and continuing to work for plaintiff. On the morning of August 8, 1957, eight of the ten drivers met in the union offices and voted unanimously to strike. One of them, Max Williams, had previously signed a withdrawal letter. When the strike began, nine of the drivers did not report to work. Later in the day, plaintiff delivered a truck to Fraser at his home and he drove his route that day and continuously thereafter. After about a week, two of the strikers, Williams and Cohee, returned to work. Six drivers who remained with the union were replaced by nonunion employees. Charles Bard, who had previously worked for plaintiff, was hired on August 8th as the drivers’ route supervisor. Shortly after the strike began, he talked several times with Petri as well as with plaintiff’s attorney and John Philbert, plaintiff’s plant manager, about forming an inside union. They told him that such a union would have to be formed by the employees “in order for it to be legal.” Petri said that the Bowen strike had been broken by an inside union. Philbert asked him which men would be loyal to plaintiff if an inside union were formed, and Bard suggested Don Burns, the driver who had not signed a union authorization card. They warned him that he could not initiate the formation of such a union because he was on the supervisory staff. Burns testified that he had a conversation with Petri some time in September and that Petri told him that “. . . there was a man that had something to do with the Bowen strike, that he was negotiating with or had something to do with him, something in that manner and that he was gonna get one of the drivers and one of the girls in the office ... to meet with him to see if we could form a company unit.” Burns further testified that Petri requested him to keep the conversation secret, that “he didn’t want anyone knowing about it.” Although Petri testified that he did not know Header, the outside organizer who had formed the employee’s association at the Bowen plant, he did not deny that he suggested the idea of a company unit to Burns. Burns later refused to join the Association and voluntarily left plaintiff’s employ during the hearing. He stated that he left because “I don’t think that we got any benefits in this company union. I don’t think we are gonna get any benefits from it, not in my opinion.” A maintenance man, Roland Matthews, testified that he undertook to set up an inside union, primarily . .to get the plant settled down and get over the tension and so forth. ’ ’ He learned of the Bowen strike around September 1st. Shortly thereafter, he asked Philbert if plaintiff would negotiate with an independent union. Philbert told him a few days later that it would. Thereafter Matthews got in touch with Bowen, who referred him to Header. Matthews talked to Header on the telephone but they did not meet at that time. Some time in December Matthews read a newspaper account of the formation of an independent association at a laundry in Los Angeles. He spoke to the president of that association about the organization of such a group. He testified that he had heard a rumor that defendant’s picketing of plaintiff’s plant would increase after Christmas. He approached Petri and told him “. . . that I was ready to go ahead with the formation of the independent association if he was still in accord with it, and if I start what assurance would I have or could I assure the employees that he would take no part in it, meaning that there would be no discrimination against anyone that did take part in it, and he told me there wouldn’t be. If I needed any farther assurance to tell them to come and ask him. ’ ’ Philbert later instructed Bard to inform any of the drivers who might inquire that the inside union “met with the complete approval of the company.” Petri’s repeated assurances that he would recognize the Association contrasted with his refusal to recognize defendant made clear to the employees that plaintiff would bargain only with an unaffiliated organization. Thus, plaintiff forced its workers to accept the organization that bore plaintiff’s stamp of approval before it was even formed or to forego collective bargaining altogether. Matthews made an appointment with Header and took a list of the names and addresses of plaintiff’s employees from the company bulletin board to show Header. At their first meeting, shortly after Christmas, Header told Matthews that his fee for helping to organize the Petri employees would be $250 and inquired whether his fee would be paid by Matthews or Petri. Matthews paid the fee himself and testified that no one had arranged to repay him. Header selected two drivers and two inside employees from the list. Within a few days these four employees met with Matthews and Header at Matthews’ apartment building and arranged for an organizational meeting on January 8,1958. Plaintiff refused Matthews’ request to hold the meeting on company property. He then arranged to rent a hall a block away from the plant for the meeting. A few days before the meeting, he spoke to Burns about joining the Association. Burns stated that Matthews “. . . asked me if I was interested in getting the pickets off the front. ...” Matthews also circulated a petition among the employees stating: “We the undersigned agree to go along with the majority in forming an Independent Laundry and Dry Cleaning Association of driver salesmen and plant employees of Petris Cleaners.” Of 18 employees who signed the petition, Archie Fraser was the only driver. Normally the men stayed on their routes, either making deliveries or soliciting new customers, until 5 p.m. Bard testified that Philbert instructed him to tell the drivers to come in at 4 p.m. January 8th to attend the meeting and that “. . . he smiled and said, ‘We are not supposed to know anything about this meeting.’ ” Bard and Philbert, pursuant to Petri’s orders, walked around the building in which the meeting was being held to prevent trouble. That the Association’s organizational meeting was guarded by plaintiff’s manager and its supervisor indicates plaintiff’s interest in having the inside unit formed. (Compare National Labor Relations Board v. Vermont American Furn. Corp., 182 F.2d 842, 843-844, holding the presence of employer’s plant manager, treasurer and superintendent in a hotel lounge adjacent to a lobby in which the outside union was holding an organizational meeting improper surveillance by the employer.) The meeting, which began at 5 p.m., was attended by all eight drivers, four of whom had replaced the strikers, and about seven of the inside employees. Header explained the method of organization. The group agreed upon a single organization with two separate bargaining units and elected Archie Fraser chairman for the drivers and Matthews chairman for the inside workers. Header gave Matthews a form letter to use in demanding recognition. Matthews took the letter to plaintiff’s main office around 6 p.m. and one of plaintiff’s employees typed a copy of the letter. Matthews then gave it to Petri. At that time, none of the drivers except Archie Fraser had stated in writing that he wished to join the Association. Plaintiff’s attorney notified defendant in a letter dated January 9, 1958, that “as of this date a contract has been entered into ’ ’ between plaintiff and the Association; that "all of the employees of Petri Cleaners, Inc., are members of said Association”; and that defendant’s picketing constituted a violation of the Jurisdictional Strike Act. Bard testified that on January 10th a letter arrived from plaintiff’s attorney addressed to Otto Petri. Petri then sent for Archie Fraser and told him to sign a certain paper. Fraser did so, and upon leaving Petri’s office met one of the drivers who asked him what he had signed. After a short discussion, Fraser returned to Petri’s office to reread the paper and told the driver it was a recognition agreement. Fraser’s statement “. . . started off a bombshell in the back because the drivers said that nobody had given Archie authority to sign anything like that. ’ ’ The agreement, dated January 9th, provides that plaintiff recognizes the Association “as the exclusive collective bargaining agency for all route salesmen,” that plaintiff promises “to sit down and consult with said Association and attempt to arrive at a working agreement controlling wages, hours and working conditions and other fringe benefits” and not to recognize any other labor organization for a period of 120 days and that the Association promises not to strike or affiliate with any other labor organization for 120 days. Fraser testified on cross-examination that he had not requested any of the terms of this contract except the recognition clause and that none of its provisions were submitted to the other employees for their approval. On January 14, 1958, plaintiff called a meeting of all its employees during working hours. At that time, plaintiff’s counsel asked them all to sign an affidavit stating that they belonged to the Association; that the Association was “freely and voluntarily formed by the undersigned employees, without coercion, financial aid, domination, or interference from Petri Cleaners, Inc.”; and that they did not wish to be represented by defendant. Bard testified that he stated to the group that he would not sign the affidavit at that time if he were a driver. All the drivers were present, but only two signed the affidavit. Following the meeting, Philbert asked Bard why he had influenced the drivers not to sign when their signatures would be favorable to the company. Bard stated that he thought the drivers should not relinquish their sole weapon, and Philbert did not reply. After obtaining the affidavit, plaintiff commenced this action on January 14th, and requested a temporary restraining order to remove the pickets. The court denied plaintiff’s request after defendant’s attorney contended that the absence of any contract covering wages, hours or working conditions created doubt as to the bona tides of the Association. At about 5:30 p.m. of the same day, Petri conferred with his attorney, and then sent for Archie Fraser. Petri told Fraser that he wanted to negotiate a contract with the drivers immediately, and asked Fraser to submit a list of suggestions by January 15th. Fraser’s request for an additional day was granted. On January 15th a meeting of all employees and a separate meeting of the drivers were advertised on the company bulletin board and held on company property—privileges extended to the Association, but not to defendant. Bard again instructed the drivers to return to the plant at 4 p.m. At the first meeting, held after 5 p.m., Header presented forms of a constitution, bylaws, and a union contract. These documents were turned over to a committee. At their own meeting, the drivers made individual written suggestions, which Fraser compiled and submitted to plaintiff. On January 16th all the drivers but one met from 6 to 9 :30 p.m. on company property with Petri, Philbert, plaintiff’s attorney and Bard, the route supervisor. Bard testified that one of the drivers asked why the negotiations were being pushed so fast and stated that ”... the whole thing to him appeared that it was just a matter of, a question of getting the pickets off and getting very little back in return for it.” Later, plaintiff’s attorney stated that ”. . . he would get the papers back as quickly as possible because—in order that everybody could sign the contract in order to present—to give a stronger casein court.” Discussion centered around the drivers’ suggestions and the Bowen contract as a model. Plaintiff’s attorney stated that he would draft a contract in line with the understanding of the group. The haste with which plaintiff signed a contract with the drivers stands out in striking contrast with the fact that there have been no negotiations, and no plans for any between the inside plant employees and the company. Bard also testified that the next morning Philbert ”... called me outside and said he’d like to thank me for the help that I had given them on a couple of points and that he and Mr. Petri had been afraid prior to that that I was definitely on the wrong side and influencing the drivers in the wrong way and they were glad to see that I had taken a different attitude at that meeting.” This conversation was the third that Bard reported between him and Philbert. The first, it will be recalled, was Philbert’s instruction that Bard advise the drivers that plaintiff completely approved of the Association. The second took place after the presentation of plaintiff’s affidavit, when Philbert asked Bard why he had influenced the drivers not to sign the document. The clear purport of these conversations between plaintiff’s plant manager and its route supervisor was to urge Bard to influence the drivers to support plaintiff against defendant. Bard testified for defendant under subpoena. He stated that Petri informed him prior to his appearance as a witness that Petri was considering the abolition of his job as route supervisor, but that Bard could take one of the routes if any were available. Plaintiff received a draft of the contract on January 20th. Although dated January 20th, it was not signed by the drivers or the company until the morning of January 22nd, the date of the hearing on the order to show cause. Petri testified that he wanted the contract dated February 3rd, but the drivers wanted it effective January 20th. Of the seven drivers who signed the contract, three were among the original ten drivers and four were replacements of the strikers. The contract contains a recognition clause, a union security clause, a no-strike clause, a promise by the Association not to affiliate with any other labor organization, and provisions relating to wages, hours, vacations and holidays. The undisputed evidence, viewed in light of our interpretation of section 1117, establishes as a matter of law that plaintiff “interfered with” the Association. Thus, to reiterate only the more obvious of plaintiff’s departures from its required role of impartiality, its president and plant manager conducted coercive interrogations, giving several drivers the “choice” of renouncing union membership or being discharged; plaintiff provided its drivers with a prepared letter of withdrawal from defendant’s organization and initially discharged two drivers who refused to withdraw; plaintiff repeatedly announced that it would not bargain with defendant, while at the same time encouraging the formation of the Association through its assurances that the inside group enjoyed plaintiff’s complete approval, and plaintiff permitted the Association to use its property and bulletin board at all meetings following the organizational meeting—a privilege it did not extend to defendant. Since plaintiff’s conduct clearly constitutes interference, the Association was not a labor organization within the meaning of section 1117. There was therefore no jurisdictional strike under section 1118 and the order granting a preliminary injunction against defendant's strike must be reversed. The question remains whether the trial court erred in denying defendant’s motion for a preliminary injunction to compel plaintiff to recognize defendant as the exclusive bargaining agent for plaintiff’s drivers. An employer’s decision whether or not to bargain with a labor organization has long been determined in this state by the free interaction of economic forces. Early eases established the legality of concerted activities for proper labor objectives under common law principles (J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 599-600 [98 P. 1027,16 Ann.Cas. 1165, 21 L.R.A. N.S. 550]; Pierce v. Stablemen’s Union, 156 Cal. 70, 75-76 [103 P. 324]). Sections 920-923 of the Labor Code imposed certain restrictions on the employer only “to balance the industrial equation, so far as it is possible to do so, by placing employer and employee on an equal basis.” (Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 385 [106 P.2d 403].) Thus, section 921 provides that promises embodied in yellow-dog contracts shall not be enforced. Section 922 provides that any person who coerces another to enter into such a contract as a condition of employment is guilty of a misdemeanor. Section 923 announces it the public policy of this state “to uphold the freedom of employees to organize and enter into collective bargaining contracts for their own protection.” (Levy v. Superior Court, 15 Cal.2d 692, 704 [104 P.2d 770, 129 A.L.R. 956].) These sections do not preclude promises to join independent labor organizations (Shafer v. Registered Pharmacists Union, supra, at 386-387), closed or union shop contracts, or concerted activities to obtain such contracts. (McKay v. Retail Auto. S. L. Union No. 1067, 16 Cal.2d 311, 327 [106 P.2d 373] ; Shafer v. Registered Pharmacists Union, supra, at 387; C. S. Smith Met. Market Co. v. Lyons, 16 Cal.2d 389, 396 [106 P.2d 414]; Park & T. I. Corp. v. International etc. of Teamsters, 27 Cal.2d 599, 609-612 [165 P.2d 891, 162 A.L.R. 1426].) Neither do they place on the employer an affirmative duty to bargain, as the opening sentence of section 923 makes clear: “Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. ’ ’ An employer faced with a union’s demand for recognition still has “the choice of yielding to the union’s demands or continuing to endure the interference with its business relations which the (union’s) activities caused.” (C. S. Smith Met. Market Co. v. Lyons, supra, at 397.) The Jurisdictional Strike Act (Lab. Code, §§1115-1120, 1122) was designed, not to diminish free competition between labor and industry, but to release an innocent employer caught between the rival claims of two or more labor organizations. It does not apply unless there are at least two “labor organizations” within the meaning of section 1117, and the prohibited activity arises out of a dispute between them as to which has the exclusive right to bargain with an employer or to have its members work for him. (Lab. Code, § 1118 ; Seven-Up etc. Co. v. Grocery etc. Union, 40 Cal.2d 368, 381 [254 P.2d 544, 33 A.L.R,. 327].) The employer may not only enjoin a jurisdictional strike (Lab. Code, § 1116) but refuse to bargain with either organization. It is for the Legislature to determine whether voluntary bargaining should now be displaced by a rule compelling the employer to bargain with the representatives of a majority of his employees. Recognizing that trial courts are hardly labor relations boards, defendant requests affirmative relief, avowedly because the record is so clear as to raise only issues of law. But, as the United States Supreme Court observed of a similar argument, “we write not only for this case and this day alone, but for this type of case.” (Carroll v. Lanza, 349 U.S. 408, 413 [75 S.Ct. 804, 99 L.Ed. 1183].) A host of problems attend compulsory bargaining that only the Legislature can resolve. What constitutes an appropriate bargaining unit? (See §§ 8 (a) (3) (i); 9 (b) ; 29 U.S.C. §§ 158, 159.) How is the majority’s choice to be determined? (See §9 (c) (1); 29 U.S.C., §159.) Which employees constitute the relevant majority, those presently employed or those employed at the time the employer’s refusal to bargain precipitated the strike? Congress recently changed the federal definition of the relevant majority. The Labor Management Relations Act of 1947 provided that “Employees on strike who are not entitled to reinstatement shall not be eligible to vote. ’ ’ (§ 9 (e) (3); 29 U.S.C., § 159.) Dissatisfaction with this rule (see, e.g., Right to Vote During an Economic Strike, 16 U. of Chi.L.Rev. 537) led to the 1959 provision that “Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this Act in any election conducted within twelve months after the commencement of the strike.” (Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 702.) The enforcement of the duty to bargain under the federal act has been practicable only because the necessary administrative machinery and statutory guides have been provided. This court cannot usurp legislative power by enacting rules of law patterned on the Labor Management Relations Act, and it cannot create the administrative machinery necessary to make such rules workable. Defendant contends, however, that three decisions of this court lead to compulsory bargaining. (Garmon v. San Diego Bldg. Trades Council, 49 Cal.2d 595 [320 P.2d 473] ; Chavez v. Sargent, 52 Cal.2d 162 [339 P.2d 801] ; Retail Clerks’ Union v. Superior Court, 52 Cal.2d 222 [339 P.2d 839].) By reinterpreting section 923 of the Labor Code and Invoking the Jurisdictional Strike Act, the court in the Garmon case held that a closed or union shop contract is an unlawful labor objective under state law when none of the employees wish to join or be represented by the union. The court’s conclusion that by signing a closed or union shop agreement the employer would interfere with his employees’ rights “in the designation of . . . representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (Lab. Code, § 923) in violation of section 923 was directly contrary to the settled rule that section 923 does not restrict the right of labor to engage in concerted activity to attain a closed or union shop. (Shafer v. Registered Pharmacists Union, supra, at 387.) Furthermore, the Garmon case was decided on the erroneous assumption that the conduct found tortious under state law was also illegal under federal law, and it was reversed on the question of federal pre-emption in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 [79 S.Ct. 773, 3 L.Ed.2d 775]. In Chavez v. Sargent, supra, this court departed from rules based on the free interaction of economic forces and determined that collective bargaining must be pursued or not according to the wishes of the majority of the employees directly involved. Under the reasoning of that ease, the employer cannot interfere with the majority’s freedom of self-organization by agreeing to bargain with any agent other than the majority’s chosen representative. It follows that he may not stultify the majority’s choice by refusing to bargain at all. Otherwise, the requirement of majority rule, instead of aiding the majority’s efforts for collective bargaining, would benefit only the employer who could defeat the efficacy of the majority’s choice of a representative. Unless the employer recognizes the majority’s chosen representative, he necessarily interferes with the majority’s freedom of choice by preventing its practical culmination. In undertaking to restate the labor law of California, however, the Chavez case went beyond the issue before the court. To support the holding that the local ordinance there involved was invalid, it was necessary only to decide that concerted activity to secure closed or union shop contracts and contracts resulting therefrom were protected as part of the workman’s “full freedom of association, self-organization, and designation of representatives of his own choosing.” (Lab. Code, § 923.) By going further and setting up a new system of labor law based on majority rule instead of the free interaction of economic forces, the case would turn our trial courts into labor relations boards without legislative guidance or necessary administrative machinery. These difficulties may not have been foreseen when the dicta in Chavez were applied in Retail Clerks’ Union v. Superior Court, supra, to enjoin concerted activity that was theretofore clearly legal. Since none of the employees there involved had designated the picketing unions as their bargaining representatives, no problem of determining the relevant majority was presented. The problems that lay dormant in this negative application of the Chavez case cannot be escaped, however, when, as in this case, its positive corollaries are sought to be enforced. In this type of case, the trial court is asked to sit as a labor board and thus determine the appropriateness of bargaining units, conduct elections, certify the majority representative, and direct collective bargaining. We conclude that employers are not required by law to engage in collective bargaining and that closed or union shop agreements and concerted activities to achieve them are lawful in this state whether or not a majority of the employees directly involved wish such agreements. If a contrary rule is to be established, the Legislature, not this court, must enact it. The Garmon and Retail Clerks’ Union cases are, therefore, overruled. Insofar as it is inconsistent with the views expressed herein, the Chavez case is disapproved. The order granting plaintiff’s motion for injunctive relief is reversed and the order denying defendant’s motion for injunctive relief is affirmed. Gibson, C. J., Peters, J., and White, J., concurred. Since defendant does not attack the trial court’s finding that the Association was not '1 financed in whole or in part ’ ’ by plaintiff, we have no occasion to consider that part of section 1117. “It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 of this title; (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial support to it____” The court’s language is appropriate to this case: “It cannot be denied that employees have a right to choose either an independent unaffiliated union composed solely of fellow employees or a union affiliated with a national or international organization, but where such choice occurs after the initiation of organizational drives by other unions and after the demand for recognition by one of these unions, any form of benefit contributed by the employer to á particular union must be closely examined. ’ ’ The Bowen Cleaners are located in Santa Ana and operate a business similar to plaintiff’s. In March or April, 1957, a number of the Bowen route drivers went on strike to secure recognition of another union as their bargaining agent. Some time after the strike and peaceful picketing began, an association composed of the replacement drivers was formed, largely through the assistance of one B. N. Header. Shortly thereafter, the company attorney (who also represents plaintiff in this case) wrote to the union advising that a second union had been formed and recognized by the company, that a jurisdictional dispute existed, and instructed the union to cease picketing. When the union complied with that demand, no litigation resulted. Plaintiff’s reliance upon its affidavits to raise a conflict is misplaced because its affidavits are drawn in eonelusionary terms. Affidavits that merely state conclusions of law are not evidence (Moon v. Moon, 62 Cal.App.2d 185, 187 [144 P.2d 596]; People v. Thompson, 5 Cal.App.2d 655, 664 [43 P.2d 600]) and do not create a conflict as to the facts (Coen v. Watson, 105 Cal.App. 297, 300 [287 P. 525]). Section 920: "As used in this chapter, unless the context otherwise indicates, ‘promise’ includes promise, undertaking, contract, or agreement, whether written or oral, express or implied. ’ ’ Section 921: "Every promise made after August 21, 1933, between any employee or prospective employee and his employer, prospective employer or any other person is contrary to public policy if either party thereto promises any of the following: ‘ ‘ (a) To join or to remain a member of a labor organization or to join or remain a member of an employer organization, "(b) Not to join or not to remain a member of a labor organization or of an employer organization. ‘ ‘ (e) To withdraw from an employment relation in the event that he joins or remains a member of a labor organization or of an employer organization. "Such promise shall not afford any basis for the granting of legal or equitable relief by any court against a party to such promise, or against any other persons who advise, urge, or induce, without fraud or violence or threat thereof, either party thereto to act in disregard of such promise. ’ ’ Section 922: "Any person or agent or officer thereof who coerces or compels any person to enter into an agreement, written or verbal, not to join or become a member of any labor organization, as a condition of securing employment or continuing in the employment of any such person is guilty of a misdemeanor. ’ ’ Section 923: "In the interpretation and application of this chapter, the public policy of this State is declared as follows: "Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. ’ ’ Section 1115: “A jurisdictional strike as herein defined is hereby declared to be against the public policy of the State of California and is hereby declared to be unlawful.” Section 1116; “Any person injured or threatened with injury by violation of any of the provisions hereof shall be entitled to injunctive relief therefrom in a proper ease, and to recover any damages resulting therefrom in any court of competent jurisdiction. ’ ’ Section 1117: “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 1 labor organization’ as defined herein. “As used herein, ‘person’ means any person, association, organization, partnership, corporation, unincorporated association, or labor organization. ’ ’ Section 1118: “As used in this chapter, ‘jurisdictional strike’ means 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 ivork for an employer. ’ ’ Section 1119: “Nothing in this chapter shall be construed to interfere with collective bargaining subject to the prohibitions herein set forth, nor to prohibit any individual voluntarily becoming or remaining a member of a labor organization, or from personally requesting any other individual to join a labor organization. ’ ’ Section 1122: “Any person who organizes an employee group which is financed in whole or in part, interfered with or dominated, or controlled by the employer or any employer association, as well as such employer or employer association, shall be liable to suit by any person who is injured thereby. Said injured party shall recover the damages sustained by Mm and the costs of suit. ’ ’
SCHAUER, J., Dissenting. On May 19, 1959, in Chaves v. Sargent, 52 Cal.2d 162 [339 P.2d 801], we reviewed the policy and effect of section 923 of the Labor Code and related statutes (Lab. Code, §§920-923, 1115-1122, 1126), and a majority of this court recognized the following propositions: “ [Pp. 186-187 [14] of 52 Cal.2d.] It is of primary importance that the individual workman have protection—that he have ‘full freedom’ of ‘self-association’ and in the designation of representatives of ‘his own choosing.’ But it is also essential that the group’s lawfully selected negotiators have power and freedom of contract to secure the workman’s interests by contract with employers, and that for the ultimate benefit of each individual workman the authorized representative shall be able to wield the collective power of all.. . . “ [P. 197 [29] id.] If employes have voluntarily become members of any ‘labor organization’ (not financed or interfered with by their employer, Lab. Code, § 1117) and have thereby or therein selected and authorized a bargaining agent, such agent and the employer are free to bargain for the respective legitimate objectives of both workmen and employer. The ensuing collective agreement may, of course, include provisions for union security, such as a union shop, maintenance of membership, and exclusive bargaining rights with the employer. .. . “ [P. 198 [32] id.] The right of the workman to participate in the selection of his bargaining agent and in the government of his union is the workman’s right of self-determination. Organization and collective bargaining are but tools to that end.... “ [P. 203 [37] id.] It is a primary rule that ‘courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them. ’ (In re Alpine (1928), 203 Cal. 731, 737 [3] [265 P. 947, 58 A.L.R 1500].) ... “ [Pp. 205-206 [45, 46] id.] For an employer to notify his employes that he has agreed with a union which is, and which he knows to be, unauthorized and unwanted by his employes, that they must join such union and be represented by it or be dismissed from employment would appear to constitute an unlawful interference by the employer and subject him to the liability imposed by section 1122. “Industrial self-government is a goal to be desired. Insofar as problems arise over issues which are not specifically covered by legislation they should be ‘ solved by looking to the policy of the legislation and fashioning a remedy that will effectuate that policy. ’ (See Textile Workers Union v. Lincoln Mills (1957), ... 353 U.S. 448, 457 [77 S.Ct. 912, 1 L.Ed.2d 972].) ... “ [P. 212, footnote 14, id.] It should be noted that where an organization which has been fairly selected by the majority vote of all the employes of an employer (or of an affected craft or group) seeks union security [or other lawful objective], the organization acting for all such employes may use lawful forms of pressure (e.g., the strike, picketing, etc.) to induce the employer to grant that condition of labor. From what has hereinabove been said in the discussion of sections 921 and 923 it is obvious that the freedom declared is the freedom from employer interference in such matters as association, organization and selection of representatives, to the end that through the democratically chosen representatives collective bargaining agreements may be negotiated. The workmen, having had the opportunity to freely participate in such procedures, are, of course, bound by the majority vote, and the contract negotiated will be the contract of all. ...” Today a differently constituted majority disapprove those views and overrule Garmon v. San Diego Bldg. Trades Council (1958), 49 Cal.2d 595 [320 P.2d 473], and Retail Clerks’ Union v. Superior Court (1959), 52 Cal.2d 222 [339 P.2d 839]. Of course, as a matter of law, the majority possess the power to overrule the above cited cases. They have so used that power; whether wisely or otherwise remains to be seen. It is my view that the majority action inevitably will set back, for we know not how long nor how repereussively, the cause of law-guided and peacefully negotiated settlements of labor disputes in California industry. I think that by the majority’s action workmen will suffer; employers will suffer; the public will suffer; unions and union leaders who prefer self-government under law will suffer; only those union organizers who eschew responsibility under law and who have no regard for the general welfare and freedom of the individual workman will prosper. Each of those facts appears implicit in the express “disapproval” of Chavez v. Sargent and the overruling of Garmon and Retail Clerks’ Union. Prominent among the Chavez and Garmon rulings which are disapproved and overruled is the holding that it is unlawful for an employer to make a contract with a labor “organizer” who represents none of the affected employes whereby the employer agrees that he will compel his workmen, on pain of discharge, to join the organizer’s union and to “consent” that the employer shall deduct “dues” from the employes’ pay cheeks for remittance to their “organizer”—their unchosen and unwanted “representative.” The majority’s ruling means also that if the employer does not voluntarily agree to sign such contract, when demanded by the “organizer,” the latter may place pickets around the employer’s plant and damage or destroy the business. Thus “blackmail picketing” is restored in California. Not only do the new majority disapprove or overrule the cited cases; they also hold that Labor Code, section 923, either does not mean what its words say or that it is unenforeible for want of further statutory implementation. The essential words of section 923 as enacted by the Legislature are: “ [T]he public policy of this State is declared as follows: Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. ... In dealing with . . . employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Italics added.) Those words and the policy they enunciate seem clear enough to me to be understandable and enforeible. But the new majority say, “It is [still] for the Legislature to determine whether voluntary bargaining should now be displaced by a rule compelling the employer to bargain with the representative of a majority of his employees.” (P. 472 [9], ante.) “Voluntary bargaining,” the new majority further hold, may be bargaining not even participated in by the workmen but solely between an employer coerced by picketing or threats of picketing and an “organizer” who represents none of the affected employes but who wants to add them to his dues-paying but non-franchised constituency—his stock in trade. The new majority hold that in California the employes need not be permitted to participate in selecting “their own” bargaining representatives; that such employes, if the “organizer” and employer so agree, must accept the unwanted organizer (or his union, if in fact he represents any existing organization) as their “representative” or be discharged from employment. This action by the employer, the majority hold, notwithstanding the provisions of Labor Code, sections 923 and 1117 and related sections, does not constitute “interference” by the employer. Such majority hold that section 923 cannot be enforced because “A host of problems attend compulsory bargaining [if attempted by employes but not if conducted by a self-appointed “organizer”] that only the Legislature can resolve. [The host of insurmountable problems are:] What constitutes an appropriate bargaining unit? . . . How is the majority’s choice to be determined? . . . Which employees constitute the relevant majority . . .?” (P. 472, ante.) Therefore, it is held, the “individual workman,” whose “full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment” is so unequivocally expressed in section 923, is in truth not even entitled to vote in the selection of his bargaining representative. In my opinion, as explained in more detail infra, p. 494 et seq., the courts of California are capable of dealing with these and related problems and refusal to undertake solution of such problems is a gratuitous and unwarranted assertion of judicial impotence. It is to be observed that the demanding organizer’s union (assuming that he actually represents an already existing organization) which, by the majority holding, may properly force the employer both to bargain with it and to force his unwilling employes to join, need not be a genuine, reputable labor organization in any sense of the word. It need not give the employes who are compelled to accept it as their representative any voice in the terms of employment which it negotiates for them or any choice as to what officer or agent of the union shall speak for them in the negotiations. All the employe need receive from the union is the “right” to carry a union card in return for the “privilege” and “duty” of paying dues, together with such rights as the courts somehow have managed in the past to recognize and protect without statutory guidance (e.g., the right not to be arbitrarily excluded from union membership where the union has attained a monopoly of the supply of labor by means of closed shop agreements (James v. Marinship Corp. (1944), 25 Cal.2d 721, 730-731 [4] [155 P.2d 329, 160 A.L.R. 900]) and the right not to be disciplined or expelled from the union without notice, hearing, opportunity to confront and cross-examine his accusers and to examine and refute the evidence against him (Cason v. Glass Bottle Blowers Assn. (1951), 37 Cal.2d 134, 143-144 [12, 14, 15] [321 P.2d 6, 21 A.L.R.2d 1387]). The present majority’s concept of what constitutes “freedom” of self-organization and “voluntary” bargaining, it seems to me, is definitely opposed not only to the statutes of California but also to widely expressed recent thinking in the field of labor-management-individual-workman relations, as evidenced, for example, by the federal Labor-Management Reporting and Disclosure Act of 1959. That act provides, among other things, a “Bill of Rights[] of Members of Labor Organizations,” with the following requirements: Section 101(a) (1) : “Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or refendendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” Section 101(a)(2) : “Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views . . and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules ...” Members are given a voice, either by direct vote or vote of their representatives, as to increase of dues or levy of assessments, “ [e]xcept in the case of a federation of national or international labor organizations” (§ 101(a) (3)) ; their right to sue in the courts or seek relief before administrative agencies is protected (§ 101(a) (4)); and it is provided that they cannot be disciplined except for nonpayment of dues without being served with specific written charges, given reasonable time to prepare a defense, and afforded a full and fair hearing (§ 101(a) (5)). Specifically I note that no statutory scheme for protecting the foregoing rights is spelled out; the union member is simply given the right to “bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate” (§102). As hereinabove indicated, under California law, until today, the workman in intrastate commerce had in state courts an equivalent remedy for substantially similar rights. I would also mention at this point that, adding to the difficulty of the California employe who is not subject to the federal labor acts is the further holding of the majority (hereinafter more fully discussed) that “when an inside union is formed behind picket lines close scrutiny of its genesis is required.” (P. 461, ante.) Thus the invading union, however corrupt it may be, is, under the majority opinion, apparently subject to no scrutiny, but when it throws a picket line around a shop which the employes have chosen to keep unorganized, any labor organization formed by those employes in self-defense is suspect and likely, under the majority view, to be held to be a company-interfered-with group as a matter of law. As hereinafter explicitly shown, the majority today exemplify that principle and, by the extreme expedient of resolving conflicts in the evidence contrary to the resolution thereof bj the trial judge, reach a directly contrary judgment. One of the most important elements of the state’s labor policy which is expressed in Labor Code, section 923—and which is today held unenforcible—is the provision for complete freedom of workmen in self-organization and selection of representatives of their own choosing. That element is important not only to give workmen the right of self-government in their own organization but also to guard against the rash acts which experience has taught us are likely to come from the concentration of unbridled power in one man or a small dominated group. The most basic principle of the California plan is destroyed when the right of direct control is taken from the workmen and given to a self-appointed organizer. The latter thus is enthroned not as a representative of the workmen but as their boss. As recognized in Chavez v. Sargent (1959), supra, p. 185 of 52 Cal.2d, it is altogether clear that there are individual labor leaders and some followers who are averse to regulation by law or to the settlement of labor disputes through the judicial process. Illustrative of the preference by some labor leaders for settlement of disputes by means other than the relatively peaceful and restrained judicial process, and of the tactics to which they will resort when, for whatever reason, they eschew the law, are the facts in People v. Osslo (1958), 50 Cal.2d 75 [32