Opinion
No. 88 A
6-19-1959
44 L.R.R.M. (BNA) 2404, 37 Lab.Cas. P 65,610 PETRI CLEANERS, INC., a California corporation, Plaintiff and Respondent, v. AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS AND HELPERS LOCAL NO. 88 et al., Defendants, Automotive Employees, Laundry Drivers and Helpers Localppellant. * Civ. 23370.
Stevenson & Hackler, Herbert M. Ansell, Los Angeles, for appellant. Rutan, Lindsay, Dahl, Smedegard, Howell & Tucker, W. W. McCray, Santa Ana, for respondent.
PETRI CLEANERS, INC., a California corporation, Plaintiff and Respondent,
v.
AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS AND HELPERS LOCAL NO. 88 et al., Defendants,
Automotive Employees, Laundry Drivers and Helpers Local No. 88, Appellant. *
June 19, 1959.
Hearing Granted Aug. 12, 1959.
Stevenson & Hackler, Herbert M. Ansell, Los Angeles, for appellant.
Rutan, Lindsay, Dahl, Smedegard, Howell & Tucker, W. W. McCray, Santa Ana, for respondent.
FOX, Presiding Justice.
The litigation which gives rise to this appeal grows out of a labor controversy and involves an application of the Jurisdictional Strikes Act (Labor Code, §§ 1115-1120). The court issued a preliminary injunction prohibiting defendant Automotive Employees, Laundry Drivers and Helpers Local No. 88 1 from picketing plaintiff's plant or otherwise interfering with its business and denied defendant any injunctive relief under the provisions of sections 921-923 and 1122 of the Labor Code. Defendant has appealed.
Plaintiff has for many years operated a cleaning establishment in Long Beach and employed approximately 31 persons. Defendant is a labor organization. For some years prior to June, 1957, plaintiff operated a non-union business. Ralph Montgomery, a union organizer, contacted certain of plaintiff's drivers in June and July of 1957 in an effort to induce them to designate the defendant as their collective bargaining representative. Montgomery testified that he secured such authorization from nine of plaintiff's ten drivers. Thereafter, early in August, defendant requested that plaintiff recognize it as collective bargaining representative of the drivers and that negotiations be commenced looking toward a collective bargaining agreement. The plaintiff declined to recognize defendant or to deal with it. Plaintiff thereupon informed its drivers that management expected that the union would picket the plant beginning the following day (August 8th). They were all requested to come to work despite the presence of pickets, and were advised that if they refused it would be necessary to replace them because plaintiff had a responsibility to deliver its customers' clothing. On August 8th a strike was called and picketing of plaintiff's plant was initiated. All but one of plaintiff's drivers left their jobs; later, however, three returned to work. Other drivers were employed. A few days after the strike an action was filed to limit the number of pickets. Pursuant to stipulation, a limitation of two pickets in front and two in the rear was ordered. From August 8, 1957, to February 10, 1958, the date of the issuance of the preliminary injunction here under review, defendant continued to picket plaintiff's plant.
Sometime during September, 1957, one Roland Matthews, who had been employed by plaintiff for over two years prior to the commencement of the strike, obtained information regarding independent employee associations 2 during the course of conversation with a driver from a Santa Ana laundry. Shortly thereafter, Matthews inquired of Petri what management's attitude would be toward an independent association of company employees for collective bargaining purposes. He was advised by Petri that he would 'go along' but informed Matthews that he (Petri) would have nothing to do with its organization. Later Matthews contacted Mr. Bowen of the Bowen Cleaners and learned that a Mr. Meader had assisted in the formation of an independent employees' association at that plant. Matthews spoke to Meader about the situation and told him that his services might be sought in the future. Due to personal matters requiring his attention, Matthews did not devote much time until December to making any further inquiries regarding the formation of an employees' association. Subsequently, he did obtain additional information pertaining to the manner and desirability of forming such an organization from several truck drivers who crossed the picket line at Petri's and who themselves belonged to independent associations. Also, while reading a newspaper, he learned of another laundry which had such an association and contacted its president and obtained additional information concerning its organization and operation. Management was again approached for assurance that there would be no discrimination against those who might join an independent employees' association if one were formed. In the meantime, Matthews had contacted various employees at Petri's regarding the idea of an independent organization and received a favorable response.
Following Christmas, 1957, Matthews again spoke to Meader and told him he thought the association was going to be formed and made arrangements to meet with him. Two such meetings took place at Matthews' apartment. It was agreed that an organizational meeting should be held on January 8, 1958. After his request to use plaintiff's premises for the meeting was denied, Matthews made arrangements with a real estate broker to hold this meeting in a vacant building around the corner from plaintiff's plant and rented chairs for the occasion. According to Matthews' testimony, the meeting was held in said building on January 8 after working hours. The purpose of this meeting was to organize and name the association. Matthews opened the meeting by stating the purpose of Meader's presence, explained the workings of such an organization, how to organize it, and then turned the meeting over to Meader, who explained the procedure to be followed in organizing an association of this type. Archie Fraser, a driver, was elected chairman of the Association. The drivers were divided on the question whether there should be two separate organizations, one for the drivers and one for the inside help, or one over-all association with separate negotiating committees. The latter scheme was adopted. At this meeting Meader provided Fraser with form of a letter, the purport of which was to demand recognition of the Association. A request for recognition was thereupon prepared which Fraser signed. On January 9, Fraser and Petri signed a formal recognition agreement. 3
Thereafter, on January 14, 1958, Fraser was informed by management that it wished to commence negotiations on a labor contract. There was a general meeting of plaintiff's employees on January 15, after working hours. Meader attended this meeting. Matthews was elected Parliamentarian; a treasurer was also elected, and a constitution and by-laws committee appointed. This meeting, as well as all others except that held on January 8, was conducted on company property.
Subsequent to the general meeting, the drivers met separately that evening and discussed and formulated demands with respect to their employment situation which they wanted considered by management. These demands, as finally agreed upon by the drivers, dealt with sick leave, vacations, minimum guaranteed salary, commissions, selection of routes, and other related matters.
On January 16, 1958, commencing at 6:00 p. m., the drivers met with management and negotiated a formal contract. While this contract was actually signed by the drivers on the 22d of January, it was to become effective as of January 20, 1958. Fraser testified that it was the drivers' idea to speed up negotiations and also their idea to pre-date their signatures in accordance with the effective date of the contract. It was Petri's suggestion that the contract go into effect on February 3.
In conjunction with plaintiff's complaint, affidavits were filed by Petri, W. W. McCray (plaintiff's attorney), 'Petri Employees,' and by Fraser. Defendant filed an answer and also a cross-complaint seeking an injunction and damages. Plaintiff's request for a restraining order was denied on January 14; however, on February 10, the court granted plaintiff's motion for a preliminary injunction and denied defendant's motion for like relief. It is from this order that defendant appeals.
Section 1115, Labor Code, declares a jurisdictional strike to be against the public policy of this state. Section 1116 provides for injunctive relief against such a strike. Section 1118 defines a jurisdictional strike as follows:
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 work for an employer.'
A 'labor organization' is defined in section 1117 as follows:
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 'labor organization' as defined herein.
'As used herein, 'person' means any person, association, organization, partnership, corporation, unincorporated association, or labor organization.'
Defendant's first argument is that plaintiff has failed to prove that The Independent Association of Petri Employees was not financed in whole or in part, interfered with, dominated or controlled by the employer. The trial court expressly found that there was no financial support, interference, domination or control by the plaintiff. Defendant seeks to impeach the order appealed from by arguing that it is not supported by the evidence.
It is well settled that '[w]hen a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. (Citations.)' Primm v. Primm, 46 Cal.2d 690, 693, 299 P.2d 231, 233. Furthermore, 'all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.' Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183, 184. As stated in Re Estate of Teel, 25 Cal.2d 520, at page 527, 154 P.2d 384, at page 388, '[a]ll of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.'
Testing the evidence by the above rules, we believe there is ample support for the trial court's finding. Fraser testified that there was no pressure exerted by plaintiff to form the Association and that he learned of the idea from Matthews. The latter testified that on his own initiative and on his own time he made inquiries concerning the formation of an independent association and employed Meader to assist in the organization of Petri's employees. Beyond this, Matthews paid Meader $250 for his services, which sum was never reimbursed. Matthews received no pay raise, no increase in his Christmas bonus, nor did he borrow any money from the company. The evidence clearly shows that management had no representative at any of the employee meetings prior to the bargaining meeting of January 16, 1958. Although company property was utilized to hold meetings subsequent to January 8, the plaintiff refused permission to use its premises for the crucial meeting on the latter date. Furthermore, while Petri said he would go along with the idea of an employee association, there is not the slightest reference in the evidence that he requested, received, or was promised anything in the way of dominion or control in return for his promise not to discriminate against those who joined such an organization. Lack of control was further demonstrated by the fact that despite Petri's desire to have February 3 as the effective date of the contract, the drivers nevertheless selected and secured January 20 as such date. It was Meader, a stranger to management, hired by an employee, who furnished materials for the letter requesting recognition, for the constitution and by-laws and for a union contract. The evidence also pictured the drivers as undecided on the type of internal organization they desired, but on a vote an over-all employee association with separate negotiating committees was decided upon.
On January 14, plaintiff had circulated an affidavit among its employees for their signatures to be used in support of its pending action for injunctive relief. Out of the twenty signatures, only two were those of drivers. The fact that the drivers were unwilling to commit themselves in writing prior to the time they actually negotiated a contract is indicative of their independence and the absence of any interference, dominion or control.
The evidence also establishes that the drivers discussed and formulated among themselves specific items pertaining to the terms of their employment which they presented to plaintiff and that these demands, among other things, were covered by the contract which followed the meeting of January 16, 1958. A reading of this contract shows that these matters were of substantial magnitude and not merely meaningless concessions by management. This fact strongly suggests that Petri was engaging in something more than artificial negotiations with his own puppet; that the parties were truly dealing at arm's length. It is not without significance that the contract was signed by all the driver-members of the Association.
Plaintiff's verified complaint and the affidavits filed in support thereof also assert the voluntary character of the association and the absence of financial support, interference, domination or control. The trial court, of course, was at liberty to consider these documents. Voeltz v. Bakery, etc., Union, 40 Cal.2d 382, 386, 254 P.2d 553. The complaint, affidavits and evidence recited above are ample to support the trial court's finding that The Independent Association of Petri Employees qualified as a 'labor organization' as defined in section 1117, supra.
Since the trial court's finding of bona fides is supported by substantial evidence, it is unnecessary to discuss the conflicts in the evidence or the asserted facts disclosed by the evidence which defendant contends would support a finding contrary to that reached by the trial court. Primm v. Primm, supra. However, as the full scope of the non-control and financial support aspect of section 1117 has not heretofore been thoroughly considered by our courts, it seems appropriate to comment upon the evidence which defendant contends supports its position.
Defendant first argues that as Petri was notably hostile toward trade unions but friendly toward the idea of an employee association after the commencement of the strike, it should be concluded that he unduly interfered or indicated his preference to his employees and thereby, though subtly, restricted their freedom of choice. This may be true in some cases, but the record before us fully justifies a contrary inference. Dan Burns, called as a witness by defendant, testified that he was presently a driver employed by plaintiff (although he had resigned, effective shortly thereafter) and that he did not apply for membership in the defendant union nor did he join the Association, but he had attended their meetings and voiced his opinion. He also testified that there was never any pressure or threats of any nature as to whether he did or did not join the association. Grady Ouzts, called by the defendant as a witness, testified that when McCray was attempting to obtain the employees' signatures on the 'Affidavit of Petri Employees' on January 14, McCray stated he wanted free and willing signatures only. The fact that only two drivers signed also indicates that their freedom of choice was not curtailed.
Next, defendant attaches significance to the fact that the Association was formed after a strike had been in effect for several months and argues that plaintiff's conduct should be subject to careful scrutiny. With this we are in full accord. However, the fact that no evidence was offered that an employees' association was discussed prior to the strike is without much importance in view of the evidence that was introduced. Also, the fact that no constitution or by-laws existed when plaintiff recognized the Association and that its members had, at that time, not indicated their desire to join in writing is also without substantial significance. See Chavez v. Sargent, 52 Cal.2d162, 339 P.2d 801. A constitution and by-laws committee was subsequently appointed. It would not be unusual or suspicious to postpone the naming of that committee in order to provide time for the more essential matters which were disposed of at the January 8 meeting, i. e., learning about the formation of an association, voting on it, deciding upon its internal structure, and electing its president. Although not all of plaintiff's employees attended the January 8 meeting, a majority of those attending actually voted to have an association as presently constituted and Matthews testified that he had the vote of other employees who were not in attendance that evening. This fact is borne out by the twenty signatures on the 'Affidavit of Petri Employees' signed on January 14. Carefully scrutinized, the above and other evidence to which our attention is directed merely presented to the trial court a question of fact which, as previously noted, was decided adversely to defendant.
Defendant's next argument concerns the fact that the company assertedly allowed the use of its time and property for Association purposes. Whether or not company time was used and, if so, the extent of that use, is in conflict. Assuming, arguendo, that company time was used, this would be merely another factor for the trial court's consideration. In Culinary Alliance, etc., Union 402 v. Beasley, 135 Cal.App.2d 186, at page 193, 286 P.2d 844, at page 848, the court discussed this question as follows: 'It is argued that Beasley interfered with and supported the association by permitting his employees to attend an organizational meeting during working hours, and performing their work for them while they were attending such meeting * * *. Assuming that this is one fact to be considered it is not, in itself, controlling.' This, of course, would also be true regarding the use of company property for Association meetings. The first and probably the most important meeting (viz. the organizational meeting on January 8th) was not conducted on company premises. All subsequent meetings were on plaintiff's property. While this probably saved the Association money, it does not establish interference, dominion or control, nor is that in itself sufficient to predicate a finding of financial support as contemplated by section 1117.
Lastly, the defendant states that the plaintiff signed the recognition agreement before a majority of the employees had indicated a willingness to belong to the Association. As previously discussed, there is testimony that the Association had majority approval before Petri was asked to recognize it.
If the trial court had found the weight of the evidence to favor defendant's position, had drawn the inferences from it that defendant has drawn, and resolved the conflicts in the evidence in defendant's favor, it may well be that a judgment for defendant would be sustained, had one been so rendered. However, the trial court found for the plaintiff and, as previously stated, such decision is supported by substantial evidence. It should be noted, there is no suggestion that the instant dispute affected interstate commerce, hence the Labor Management Relations Act and the cases thereunder decided are not controlling.
Defendant also seeks reversal of the order on the ground that 'a company which has precipitated a strike by its refusal to recognize and bargain with a union representing a majority of its employees is not entitled to injunctive relief against such a strike based upon a recognitional demand of an association claiming to represent the replacements of the striking employees.' At the outset, it should be noted that under California law there is no requirement, absent a contract so providing, that an employer bargain collectively with his employees. 4 29 Cal.Jur.2d 815. He may maintain a nonunion shop if he wishes. If all or part of his workers go on strike, he is at liberty to secure replacements. Thereafter, if his employees, including the replacements, form their own association which qualifies under section 1117, no reason appears why an injunction against picketing may not be obtained if the trial court finds the existence of a jurisdictional strike as defined in section 1118. In Voeltz v. Bakery, etc., Union, 40 Cal.2d 382, at pages 386-387, 254 P.2d 553, at page 556, supra, the court stated: 'We do not believe that the fact that a dispute existed between defendants and plaintiff before the association was formed and came into the picture, takes the case out of the act requiring that the interference with the employer's business arise out of a controversy between unions, for after the association was formed and plaintiff's employees became members thereof, it endeavored to have defendants withdraw from the arena and to induce plaintiff to bargain with it exclusively, yet defendants continued their activities, interfering with plaintiff's business. It may be inferred that what began as a dispute between employer and the union became a dispute between unions as to which should be exclusive bargaining agent.' (Emphasis added.)
Although the Voeltz case did not involve replacement employees, we believe the quoted language is apposite since (1) there was nothing per se legally improper in plaintiff's refusal to recognize defendant, (2) in view of plaintiff's right to hire replacements, and (3) in light of the court's finding that the Association was not financed, interfered with, dominated or controlled by plaintiff. The crucial fact is that there was a jurisdictional strike in violation of the public policy of this state (Labor Code, § 1115) and that it was not precipitated by any unlawful conduct on plaintiff's part.
Whether plaintiff is entitled to a permanent injunction is not now before this court. Once it has been determined that a jurisdictional strike exists, the granting of a preliminary injunction rests in the sound discretion of the trial court. 'The authorities are numerous and uniform to the effect that the granting * * * of a preliminary injunction on a verified complaint, together with oral testimony or affidavits, even though the evidence with respect to the absolute right therefor may be conflicting, rests in the sound discretion of the trial court, and that order may not be interfered with on appeal, except for an abuse of discretion.' People v. Black's Food Store, 16 Cal.2d 59, 61, 105 P.2d 361, 362. As stated in Isthmian S. S. Co. v. National Marine, etc., Ass'n, 40 Cal.2d 433, at page 435, 254 P.2d 578, at page 579: 'Whether a preliminary injunction shall be granted rests largely in the discretion of the trial court and will not be reversed on appeal unless there is a manifest abuse of discretion.' In Sommer v. Metal Trades Council, 40 Cal.2d 392, at page 402, 254 P.2d 559, at page 566, the court discussed the trial court's exercise of discretion as follows: 'On the application for the preliminary order the court also could, and undoubtedly did, weigh the probable injury which would ensue to the plaintiff by denying the temporary relief as against the absence of probable injury which would accrue to the defendants by granting it. The record does not indicate that the court abused its discretionary power in making these determinations adversely to the defendants and in granting the injunctive order pending a trial on the merits.' Likewise, in the instant case, it cannot be said that there was an abuse of discretion.
We find no merit in defendant's contention that plaintiff is barred from obtaining equitable relief because of its unclean hands. This argument is nothing more than a restatement of defendant's other contentions which have heretofore been discussed and resolved adversely to it.
Attention will now be directed to defendant's cross-complaint and its prayer for injunctive relief under sections 921, 923, and 1122 of the Labor Code. Assuming, arguendo, that plaintiff's alleged pre-strike conduct was such as to violate section 921 and the public policy announced in section 923, did the trial court's denial of the preliminary injunction constitute an abuse of discretion? This must be answered in the negative.
With respect to plaintiff's asserted misconduct, Larson testified that he was discharged because of union activity. But he also stated that he was offered reinstatement. Furthermore, when asked by defendant's counsel whether management had requested that he sign a letter withdrawing his membership from the union, Larson testified: 'Mr. Filbert [a representative of Management] had a piece of paper there [at the time reinstatement was offered]. He said, 'I don't imagine you will sign this, but,' he says, 'we would like to have you sign but it is up to you.' * * *' On cross-examination, Larson testified as follows regarding his discharge and subsequent refusal to accept reinstatement: 'Mr. McCray: That time you had the supervisor's job you were considered management or managerial capacity, had the right to recommend firing and hiring didn't you? 'Mr. Larson: I don't know. I never had anything to do with the hiring. They always hired the men and they were given to me to break in. 'Mr. McCray: You could influence the firing or hiring because of your managerial or supervisory capacity, could you not? A. Yes, I could. 'Q. And wasn't that spoken of at the time you were called into Mr. Petri's office in relation to your termination of your work? The fact that you were management and were apparently attempting to go into the union? A. Well, it--as Mr. Petri said that he didn't think that I should belong to a union, it was explained to me that I was a working supervisor running routes and therefore I wasn't supposed to be in a union, or I had the choice. 'Q. But that was a part of the controversy between you and Mr. Petri at the time that he had this conversation was the fact that you were considered and carried on the payroll as management or supervisory capacity? A. I believe that was brought up, yes, when I was in Mr. Petri's office that evening. 'Q. And after they reinstated you, it was by your own choice that you didn't want to work in a nonunion plant and refused to come back to work? A. I just did not accept their reinstatement. 'Mr. McCray: I believe the reason was you felt he would not go union? 'Mr. Larson: That was part of it and another part of it was I didn't think Mr. Petri would be happy with me. He couldn't be having fired me and I didn't be having fired me working for Mr. Petri.'
Wolford, who also had been given notice, was offered reinstatement which he refused to accept. Grady Ouzts was also discharged. He testified that when he was given notice no mention was made of his union affiliation or the fact that he did not belong to the Association.
A meeting of the drivers was called the day preceding the strike. With respect to this meeting, Jeffrey Winfrey testified as follows: 'Mr. Ansell: Can you tell us in your own words what you remember Mr. McCray saying that night or any other agent of the company? A. Well, he was introduced by Mr. Filbert, I think, and as near as my recollection, and he told us that about our rights for belonging to a union or not belonging and I think he read--as near as I can remember--as this has been talked over so much in the last four months, it is pretty hard to remember everything so much pro and con, but I think he read from a pamphlet there something about the Labor Code of California, expressing our rights to belong or not to belong to a union and there was quite a bit of other--I am like Mr. Wolford, I already had my mind made up and I didn't pay too much attention, but at the end they said that they expected pickets the next morning and they hoped that we would show up for work. And I think they said something about if we wanted to cross the picket line we would have protection.'
Without restating all the evidence, suffice it to say that there is evidence in the record tending to show that plaintiff's conduct and attitude with respect to his employees belonging to the defendant was not exemplary. However, it is equally clear that by offering prompt reinstatement before a strike was called and fully advising the drivers of their rights under California law to belong to a union if they so desired, plaintiff appears to have ameliorated its attitude with respect to the above matters. At the time of trial plaintiff was not, so far as the evidence discloses, discouraging membership in any union or in any way interfering with his employees' right to freedom of choice, or discriminating against any employee because of union affiliation or sympathy. As the court found the Association to be bona fide, it would not be proper to order plaintiff to negotiate with defendant as the exclusive bargaining agent of his employees, for this simply was not the fact. Nor would it have been appropriate, as defendant also requested, to order the disestablishment of the Association without a full hearing on the merits. A court should be slow to order undone by a preliminary injunction that which may be declared wholly proper upon a final examining of the merits. Under all the circumstances of this case, it cannot be said that the trial court's denial of the temporary relief sought by defendant constituted an abuse of discretion.
The order is affirmed.
ASHBURN and HERNDON, JJ., concur.
Hearing granted; BRAY, P. J., and TOBRINER, J., sitting pro tem. --------------- * Opinion vacated 2 Cal.Rptr. 470, 349 P.2d 76. 1 Cleaners and Dyers, Local No. 36, was also named as a defendant but is in no way involved in this appeal. 2 Matthews had had some experience with reference to the operation of an employee association, having been president of such an organization in Texas for five or six years. 3 The pertinent provisions of the recognition agreement are as follows: 'Now, Therefore, It Is Understood And Agreed that the said Employer, for and in consideration of the promise of the Association that said association will not strike or otherwise interfere with the operation of Employer for a period of one hundred twenty (120) days following the signing of this agreement, and for and in consideration of the further promise that the said Association will not affiliate with any other labor organization during said period of one hundred twenty (120) days, said Employer does hereby promise to recognize The Independent Association of Petri Employees as the exclusive collective bargaining agency for all route salesmen, and does agree 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 for the said employees who are members of the Association. The said Employer further agrees not to recognize and other labor organization as a bargaining agency for the employees of said Employer during the aforesaid period of one hundred twenty (120) days.' 4 Under the National Labor Relations Act, section 8(a)(5), 29 U.S.C.A. § 158(a)(5), it is deemed an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees. The California Legislature has considered proposed legislation similar to that found in section 8(a)(5), supra (see Cal.Assembly Bills Nos. 538 (1937) and 579 (1939)), but such was never enacted into law. While section 923, of the Labor Code may be broad enough to denounce certain employer activities which would frustrate the policy therein expressed (see Elsis v. Evans, 157 Cal.App.2d 399, 408-410, 321 P.2d 514), such provision is not sufficiently comprehensive to incorporate a rule equivalent to that set forth in N.L.R.A., section 8(a)(5).