Filed 9/29/26 Southern Counties Express v. Int’l Brotherhood of Teamsters CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SOUTHERN COUNTIES B349435
EXPRESS, INC.,
Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 25STCV24940
v.
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, LOCAL 848,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Maurice A. Leiter, Judge. Affirmed.
Bush Gottlieb, Ira L. Gottlieb, Julie G. Dickinson, Mathew
J. Sollett, Jason Wojciechowski, Hector De Haro, and Adrian R.
Butler for Defendant and Appellant.
Morgan, Lewis & Bockius, Thomas M. Peterson, Douglas R.
Hart, Brian D. Fahy, Joseph R. Lewis, Mason Hattam, and
Jacqueline Dack for Plaintiff and Respondent.
_________________________
Amidst a labor dispute, the trial court issued a temporary
restraining order and a preliminary injunction enjoining a union
from blocking ingress and egress at an employer’s facilities. The
union challenges both orders, arguing the temporary restraining
order was overbroad and violated statutory requirements specific
to the labor dispute context and arguing insufficient evidence
supports issuance of the preliminary injunction. We affirm both
orders.
I.
Southern Counties Express, Inc. (Southern Counties)
operates a fleet of trucks dedicated to commercial shipping,
transportation, and delivery services within Los Angeles County.
Local 848 of the International Brotherhood of Teamsters is the
union representing Southern Counties’ truck drivers.
The parties began negotiating a successor to their soon-to-
expire collective bargaining agreement in Spring 2024 but could
not come to terms. In January 2025, Southern Counties
presented the union with its “Last, Best, and Final Offer.” The
union rejected it. In a February 6, 2025 email, Southern
Counties’ negotiator informed the union that the company would
implement the terms of its final offer until a new collective
bargaining agreement could be reached. The negotiator
concluded: “[R]egardless of this implementation, [Southern
Counties’] doors remain open for further bargaining with the
Union. Please feel free to send us dates for further bargaining.”
The union never provided a “substantive response” to this email,
nor did it reach out to the Southern Counties negotiator to
continue negotiations. Instead, in late February 2025, the
union’s members stopped working and began picketing at two
Southern Counties facilities in Compton.
2
On February 23, 2025, Southern Counties sent a cease-and-
desist letter to the union, stating the picketers at one of Southern
Counties’ Compton facilities were blocking trucks and vehicles
“by picketing right across the gate entrances.” It described this
as unlawful behavior that, if continued, would “result in an
injunction.” The letter included pictures showing union picketers
walking back and forth in front of a vehicle. The union
responded the following day, stating it had “not authorized and
[was] not aware of any unlawful blocking of ingress or egress” at
the facility. The union described the picketers’ activities as
“peaceful picketing and patrolling to exercise their right to
publicize their labor dispute.” If Southern Counties had any
“specific evidence” that picketers had been blocking ingress and
egress, said the union, it would investigate such claims, as it was
“committed to continuing to engage only in lawful picketing
activity.”
Southern Counties replied to the union’s letter on February
26, 2025. It stated the photographs attached to its original cease-
and-desist letter had shown union members “obviously blocking
the ingress and egress” at Southern Counties’ facility. It also
provided additional photographs depicting the same blocking
activity across the facility’s gate. Southern Counties asserted the
“blocking ha[d] been going on continuously” for nearly a week,
ranging “from 6-10 minutes per vehicle.” Southern Counties
concluded: “The property rights violations and unlawful conduct
are obvious.” In a reply later that day, counsel for the union
declared: “[The union] continues to dispute your characterization
of the Union’s conduct and does not believe that the conduct you
allege is occurring, much less being undertaken by Union
agents.” Still, the union was committed to striking “within the
3
bounds of the law — without engaging in any unlawful blocking
of ingress or egress — and to stopping any such conduct” that
might be occurring.
No further communications between the parties are in the
record. Several months passed. In June 2025, union members
extended their picketing activity to facilities of Southern
Counties’ customers.
The picketing continued into August 2025. During the
week of August 11, a picketer shouted at a Southern Counties
employee performing struck work, “ ‘[I]t’d be a shame to end up
with a broken leg.’ ” Picketers also blocked the same employee’s
personal vehicle, delaying his entry into and departure from
Southern Counties’ facilities, and took out their phones to record
him and document his license plate number. On August 19,
picketers at Yusen Terminals obstructed the ingress and egress
of Southern Counties vehicles and non-Southern Counties
vehicles alike by “walking back and forth” in front of the entrance
and exit to the facility, while “about 80 to 90 trucks” were backed
up waiting to enter the terminals and “about 80 to 90 other
trucks” were waiting to exit.
Southern Counties made various attempts between
February and August 2025 to stop the union from blocking
vehicles at its facilities, to no avail. On May 22, 2025, a manager,
witnessing picketers block trucks attempting to leave one of
Southern Counties’ Compton facilities “for approximately 8-9
minutes per truck by walking back and forth in front of the [ ]
Facility’s only entrance/exit gate,” called the Los Angeles County
Sheriff’s Department. The officers who responded “did not do
anything to move the picketers or otherwise require the picketers
to move out of the way, and a few minutes later, both deputies
4
left.” Similarly, on June 13, 2025, a manager at a facility in
Riverside called the Riverside County Sheriff’s Department twice
due to picketers’ blocking, trespassing, “aggressive” behavior, and
“vulgar” name-calling. Both times, officers responded and told
the picketers to vacate the facility’s private property, but after
the deputies left, the picketers returned “and continued acting
aggressively and threateningly.” Additionally, a director at
Southern Counties’ Compton facilities called the Los Angeles
County Sheriff’s Department “at least 20 times” to complain
about the union’s picketers at the two Compton locations.
According to the director, in each instance, the Sheriff’s
Department would send a deputy, but the deputies would never
remove the picketers or stop them from blocking trucks from
entering or exiting the facilities. The deputies “sometimes helped
clear traffic congestion on the streets outside [the] facilities
caused by the picketers blocking [the] trucks, but nothing else.”
The director was informed by the Los Angeles Port Police that
they would not do anything about the picketers at the Yusen
Terminals location “unless there was violence.”
As a result of the picketing and the ensuing delays in
trucking, Southern Counties lost its largest account, with Toyota,
on August 21, 2025. That same week, Yusen Terminals cancelled
Southern Counties’ pickups at the port, “citing the presence of
[union] picketers as the reason” for the cancellation.
On August 26, 2025, Southern Counties filed a complaint in
superior court for private nuisance, declaratory and injunctive
relief, tortious interference, and trespass. That same day,
Southern Counties filed an ex parte application for a temporary
restraining order and an order to show cause regarding a
preliminary injunction.
5
The next day, August 27, the trial court held a hearing on
Southern Counties’ application at which both it and the union
appeared through counsel and presented argument. There is no
transcript or its equivalent of this hearing in the record. The day
after that, August 28, the trial court granted Southern Counties a
temporary restraining order enjoining union picketers from
“[e]ngaging in breach of the peace, intimidation or coercion, or
preventing or attempting to prevent any person or persons, or
vehicles from freely entering or leaving” Southern Counties’ or its
customers’ facilities. The court further scheduled a show cause
hearing on the issuance of a preliminary injunction for
September 3, 2025.
The trial court, at the show cause hearing, heard argument
from counsel and received live witness testimony and
documentary exhibits, which we will discuss as relevant below.
The court made written findings of fact under the Labor Code
provisions governing injunctions in labor disputes and granted
Southern Counties’ request for a preliminary injunction.
The union timely appealed both the temporary restraining
order and the preliminary injunction.
II.
We will address the temporary restraining order, then the
preliminary injunction.
A.
Due to an inadequate record, we affirm the grant of the
temporary restraining order.
Generally, we review the grant of a temporary restraining
order for abuse of discretion. (See Biosense Webster, Inc. v.
Superior Court (2006) 135 Cal.App.4th 827, 834.) “ ‘A trial court
will be found to have abused its discretion only when it has
6
“ ‘exceeded the bounds of reason or contravened the
uncontradicted evidence.’ ” ’ [Citation.] ‘Further, the burden
rests with the party challenging the [trial court’s order] to make a
clear showing of an abuse of discretion.’ ” (Church of Christ in
Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251.)
The union argues the trial court erred in granting Southern
Counties’ request for a temporary restraining order for three
reasons. First, the court failed to require the testimony of
witnesses in open court, as required to issue injunctions related
to labor disputes under section 1138.1, subdivision (a). Second,
the duration of the temporary restraining order exceeded by one
day the five-day maximum delineated in section 1138.1,
subdivision (b). Third, the temporary restraining order was
improperly overbroad in directing the union to appoint picket
captains and notify its entire membership of the order.
A key omission from the record before us, however,
hampers our review. The record includes the temporary
restraining order itself, which states counsel appeared for both
parties at a hearing on August 27, 2025. The order further
indicates the trial court heard oral arguments from both parties
at the hearing. Yet the union has neither provided a reporter’s
transcript of that hearing nor any substitute. And the union did
not file a written opposition to Southern Counties’ application for
a temporary restraining order.
California Rules of Court, rule 8.120(b), states “[i]f an
appellant intends to raise any issue that requires consideration of
the oral proceedings in the superior court, the record on appeal
must include a record of these oral proceedings in the form of one
of the following: [¶] (1) A reporter’s transcript under rule 8.130;
[¶] (2) An agreed statement under rule 8.134; or [¶] (3) A settled
7
statement under rule 8.137.” This requirement reflects a “most
fundamental rule of appellate review[:] . . . that the judgment or
order challenged on appeal is presumed to be correct, and it is the
appellant’s burden to affirmatively demonstrate error.” (Argueta
v. Worldwide Flight Services, Inc. (2023) 97 Cal.App.5th 822,
833.) To that end, “[a]ll intendments and presumptions are
indulged to support [the order] on matters as to which the record
is silent.” (Denham v. Superior Court of Los Angeles
County (1970) 2 Cal.3d 557, 564.) Where, as here, “no reporter’s
transcript has been provided . . . it is presumed that the
unreported [ ] testimony would demonstrate the absence of error.”
(Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Without a record of “ ‘what grounds were advanced, what
arguments were made and what facts may have been admitted,
mutually assumed or judicially noticed at the hearing,’ ” our
ability to review proceedings is severely curtailed. (Snell v.
Superior Court (1984) 158 Cal.App.3d 44, 49.) And when a
litigant does “not file any opposition to [a] motion[ ] and no
reporter’s transcript [is] provided on appeal, we conclude [that
litigant] has waived all arguments against the motions.”
(Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th
476, 483, fn. 7.)
We cannot know whether the union raised any procedural
objection to the alleged absence of live witness testimony, to the
six-day period between the issuance of the temporary restraining
order and the hearing to show cause, or to the breadth of the
order’s provisions.
The union briefly addresses the missing reporter’s
transcript in its reply brief, arguing it should not suffer for
Southern Counties’ failure to arrange a court reporter for the
8
hearing on the temporary restraining order and that, without any
record showing what issues were raised at the hearing, there is
“no way” for this court “to conclude that [the union] waived any
arguments.” This argument erroneously flips the appellant’s
burden onto respondent’s shoulders. And it does not address the
union’s own ability to obtain a reporter or its later decision to
proceed without securing a permissible substitute for the oral
proceedings. The union’s designation of record for its appeal of
the temporary restraining order elects to proceed “WITHOUT a
record of the oral proceedings (what was said at the hearing or
trial) in the superior court.” The union’s designation
acknowledges it “understand[s] that without a record of the oral
proceedings in the superior court, the Court of Appeal will not be
able to consider what was said during those proceedings in
deciding whether an error was made in the superior court
proceedings.”
“In numerous situations, appellate courts have refused to
reach the merits of an appellant’s claims because no reporter’s
transcript of a pertinent proceeding or a suitable substitute was
provided.” (Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 186.) We do likewise. Without a record of
the relevant oral proceedings, we cannot determine the trial court
abused its discretion and prejudicially erred concerning the
temporary restraining order.
Moreover, the temporary restraining order’s brief duration
has long since elapsed, making the appeal from that order moot.
“If relief granted by the trial court is temporal, and if the relief
granted expires before an appeal can be heard, then an appeal by
the adverse party is moot.” (Environmental Charter High School
v. Centinela Valley Union High School Dist. (2004)
9
122 Cal.App.4th 139, 144; see Continental Baking Co. v. Katz
(1968) 68 Cal.2d 512, 520 [applying this rule to a temporary
restraining order followed by a preliminary injunction]; O’Kane v.
Irvine (1996) 47 Cal.App.4th 207, 210, fn. 4 [applying this rule to
a temporary restraining order followed by a three-year
injunction].) Although a court has discretion to review moot
issues of broad public interest that are capable of repetition but
tend to evade review, we would not exercise such discretion given
the circumstances here. (Cf. In re William M. (1970) 3 Cal.3d 16,
23; MHC Operating Limited Partnership v. City of San Jose
(2003) 106 Cal.App.4th 204, 215 [“[W]e decline to exercise our
discretion to resolve the moot questions presented here”].)
B.
The trial court did not abuse its discretion in granting
Southern Counties a preliminary injunction.
We review a preliminary injunction, like a temporary
restraining order, for abuse of discretion. (Oiye v. Fox (2012)
211 Cal.App.4th 1036, 1060; see Code of Civ. Proc., § 904.1, subd.
(a)(6).) “Ordinarily an appeal from the granting of a preliminary
injunction involves a very limited review of the trial court’s
exercise of discretion concerning two factors: (1) the likelihood
that plaintiffs will ultimately prevail and (2) the interim harm
plaintiffs will sustain if the preliminary injunction is denied
compared to the interim harm defendant will suffer if the
injunction is granted pending a final determination of the
merits.” (Hunter v. City of Whittier (1989) 209 Cal.App.3d 588,
595; accord, White v. Davis (2003) 30 Cal.4th 528, 554.)
In applying this standard to a trial court’s factual
determinations, “we review the record as a whole and accept all
evidence supporting the order.” (Loy v. Kenney (2022)
10
85 Cal.App.5th 403, 406.) We disregard contrary evidence, draw
inferences in favor of the order, and do not reweigh evidence.
(Ibid.) The particular determinations intrinsic to the trial court’s
decision are subject to appellate scrutiny under the standard of
review appropriate to that kind of determination; accordingly, the
court’s express and implied findings of fact are accepted on
appeal if supported by substantial evidence, while its conclusions
of law are subject to de novo review. (People ex rel. Gallo v.
Acuna (1997) 14 Cal.4th 1090, 1136−1137.)
Here, the union argues the trial court’s order issuing the
preliminary injunction must be reversed because insufficient
evidence supports the findings required for a labor dispute
injunction under section 1138.1, subdivision (a)(3) and (5), and
section 1138.2.
“Enacted by the California Legislature in 1999 (Stats. 1999,
ch. 616, § 1, pp. 4343−4345), section 1138.1 was patterned
after section 107 of title 29 of the United States Code; the federal
provision is part of the federal Norris-LaGuardia Act.” (Ralphs
Grocery Co. v. United Food & Commercial Workers Union Local
8 (2012) 55 Cal.4th 1083, 1094−1095 (Ralphs).) Section 1138.1,
subdivision (a), provides in relevant part: “No court of this state
shall have authority to issue a temporary or permanent
injunction in any case involving or growing out of a labor
dispute . . . except after findings of fact by the court, of all of the
following: [¶] . . . [¶] (3) That as to each item of relief granted
greater injury will be inflicted upon complainant by the denial of
relief than will be inflicted upon defendants by the granting of
relief. [¶] . . . [¶] (5) That the public officers charged with the
duty to protect complainant’s property are unable or unwilling to
furnish adequate protection.” Section 1138.2 provides: “No
11
restraining order or injunctive relief shall be granted to any
complainant involved in the labor dispute in question who has
failed to comply with any obligation imposed by law, or who has
failed to make every reasonable effort to settle that dispute either
by negotiation or with the aid of any available governmental
machinery of mediation or voluntary arbitration.”
Evidence supports each criterion.
1.
Sufficient evidence supports the trial court’s finding that
Southern Counties would have suffered greater injury from
denial of relief than the union suffered in granting relief, as
required under section 1138.1, subdivision (a)(3).
The union argues the trial court failed to properly weigh
the parties’ interests under subdivision (a)(3), declaring the
court’s finding that short delays at Southern Counties’ facilities
constituted unlawful blocking “fails to appropriately balance [the
union’s] constitutional and statutory rights to publicize its labor
dispute against Southern Counties’ commercial business needs.”
The union contends a “certain amount of disruption is inherent in
any labor dispute” and picketing by marching in front of entering
and exiting trucks is “the only reasonable way to send the
message to the driver[s] that [the union] is on strike against
Southern Counties.” The union further characterizes any delay
Southern Counties and its employees and customers suffered as a
“mild inconvenience” to be “expected from lawful labor protest
activities.”
This argument does not reflect the weight of the evidence
supporting the preliminary injunction. Several witnesses for
Southern Counties submitted declarations under oath and
testified in court describing the extent of the delays they suffered
12
due to the union’s blocking of ingress and egress at Southern
Counties’ and its customers’ facilities. One non-picketing truck
driver testified that a union picketer blocked his truck for 10 to
15 minutes at the exit of a facility, that he witnessed a backup of
“like, 85 trucks waiting to come in” to the facility, and that, due
to the picketers blocking his truck and those ahead of him, he
was delayed in leaving the facility by “about an hour — an hour
and 15 minutes.” The same driver stated that, at various
facilities, his truck had been blocked by union picketers for
between two and 20 minutes, and the longest delay he had
experienced due to picketing and the resultant extended queues
of trucks was five hours.
A second non-picketing driver testified that his truck had
been blocked “more than a hundred” times by union picketers
over a matter of months, and that the picketers tended to block
each truck for around 15 minutes before letting one truck enter
or exit the Southern Counties facility and blocking the next one.
The driver explained the picketing had substantially affected his
ability to perform his job, as he was usually able to complete “six
or seven” deliveries a day for Southern Counties when not
blocked by picketers but was reduced to completing “three or
four” per day when the picketers were causing delays in entering
and exiting Southern Counties facilities. He further testified
that, because he was paid per delivery, the picketing delays and
his resultant lower delivery numbers had caused him to lose
income.
A third non-picketing driver testified union picketers
regularly blocked his truck for “around [10] minutes at a time”
and the longest single delay he had endured from a truck backup
resulting from picketing activity was “an hour and 45 minutes.”
13
A regional director for Southern Counties’ subsidiary,
Universal Logistics, submitted a declaration under oath stating
Southern Counties lost its largest single account, Toyota, due to
delays at Yusen Terminals at the Port of Los Angeles caused by
union picketing. Additionally, she declared that on at least two
days the port itself cancelled Southern Counties’ pickups at the
port, citing the presence of union picketers as the reason.
In response, a union “strike captain” testified it is his
practice to have union picketers picket across facility entries and
exits for “a reasonable amount of time, usually two to three
minutes, [then] we let either two trucks in or two trucks out.”
The strike captain denied ever seeing individual trucks being
blocked for more than two or three minutes at a time.
Despite the union’s view that the effect of its picketing on
Southern Counties’ business was de minimis, the testimony and
declarations of various Southern Counties truck drivers and
employees on the record permitted the trial court’s conclusion
that they experienced severe delays due to the picketers blocking
Southern Counties’ facilities, and those delays had financial
consequences not only for Southern Counties’ business but also
for the drivers themselves. The long delays described by
Southern Counties’ witnesses arose from the cumulative effect of
blocking every truck entering or exiting an active facility. If, for
example, 80 or 90 trucks were waiting to enter or exit a facility,
as one trucker declared, and picketers blocked each truck’s
ingress or egress for even a few minutes, the trucks farther back
in line would wait for hours. Such delays can have, and in this
case appear to have had, serious consequences, as reflected in the
truck drivers’ loss of income due to reduced deliveries, Southern
Counties’ loss of a lucrative account, and the port’s refusal to
14
allow Southern Counties’ trucks entry due to picketing concerns.
The trial court could weigh this accumulation of injuries in favor
of Southern Counties, given the union’s means of communicating
its message without inflicting them. As the trial court noted, “the
preliminary injunction [does] not prevent [the union] from
peacefully communicating its message to the public through
lawful organized labor activities.” The trial court therefore did
not abuse its discretion in finding the balance of harms under
section 1138.1, subdivision (a)(3), favored Southern Counties.
2.
Sufficient evidence supports the trial court finding that
“the public officers charged with the duty to protect
complainant’s property are unable or unwilling to furnish
adequate protection” within the meaning of section 1138.1,
subdivision (a)(5).
Here, the trial court found Southern Counties had
presented evidence “that the public officials charged with the
duty of protecting [Southern Counties’] access and property
rights, despite their best efforts, have been unable to furnish
adequate protection. [Southern Counties] has contacted the Los
Angeles County Sheriff’s Department and Port Police, but these
measures have not prevented [the union’s] unlawful activity.
[Citations.] [The union] has not rebutted this evidence.”
Accordingly, the court determined Southern Counties had met
the requirements of section 1138.1, subdivision (a)(5).
The union argues substantial evidence does not support the
trial court’s finding. The union asserts law enforcement
regularly responded to Southern Counties’ calls and “deal[t] with
traffic and trespass issues.” The union contends it is unclear
15
what more Southern Counties wanted done or what more law
enforcement could have done.
In describing the importance of subdivision (a)(5), our
Supreme Court has identified law enforcement assistance as “a
remedy for unlawful activity” by strikers and asserted “[t]he
existence of [subdivision (a)(5)’s] requirement implies that the
police are authorized to stop any ‘unlawful acts’ proscribed” by
the statute. (Ralphs, supra, 55 Cal.4th at p. 1113.) The inclusion
of the law enforcement requirement in the statute was, the court
continued, “ ‘ “based upon a recognition of the fact that the
preservation of order and the protection of property in labor
disputes is in the first instance a police problem.” ’ ” (Ibid.)
Our colleagues in Division Three, in interpreting
subdivision (a)(5) of section 1138.1, have held: “[W]here law
enforcement has been summoned, responds in a timely fashion,
protects persons from injury and property from damage, and
ensures ingress and egress to and from the premises, there is
neither an unwillingness nor an inability to furnish adequate
protection. Conversely, where law enforcement is unwilling or
unable to afford these protections and services, an injunction may
lie.” (United Food & Commercial Workers Union v. Superior
Court (2000) 83 Cal.App.4th 566, 580.)
Here, the primary purpose for which Southern Counties
wanted police assistance was the maintenance of timely ingress
and egress of vehicles through its own and its customers’
facilities. There is substantial evidence on the record that the
authorities summoned repeatedly for this purpose were either
unable or unwilling to stop the picketers from blocking ingress
and egress. The Los Angeles Port Police informed one employee
they would do nothing about the picketers at the Yusen
16
Terminals location “unless there was violence.” The same
employee declared she called the Los Angeles County Sheriff’s
Department “at least 20 times” to stop the picketers from
blocking vehicles from entering or exiting Southern Counties’
facilities, yet, from her observation, the deputies who arrived
each time “never stopped the picketers from stopping” the trucks,
but rather merely “helped clear traffic congestion on the streets
outside” the facilities caused by delays from the picketing.
Another employee described similar results in a sworn
declaration, stating two sheriff’s deputies once cleared traffic on
the road leading to the facility due to a large number of blocked
trucks but “did not do anything to move the picketers or
otherwise require the picketers to move out of the way,” and
departed minutes later. Thus, it is evident from the record that
the police were repeatedly either unable or unwilling to stop the
“ ‘unlawful acts’ ” of blocking proscribed by section 1138.1.
(Ralphs, supra, 55 Cal.4th at p. 1113.)
The union’s invocation of cases in which police inaction was
even more egregious is not persuasive. As explained in the
previous section, there was evidence that blocking by picketers
caused Southern Counties harm. The police, in failing to stop the
blocking, failed to alleviate the harm. They did not ensure “the
preservation of order and the protection of property in labor
disputes.” (Ralphs, supra, 55 Cal.4th at p. 1113.) The record
therefore contains sufficient evidence for the trial court to have
determined “ ‘the public officers charged with the duty to protect
complainant’s property are unable or unwilling to furnish
adequate protection’ ” to Southern Counties, pursuant to section
1138.1, subdivision (a)(5).
3.
17
Finally, the record contains sufficient evidence that
Southern Counties made “every reasonable effort” to settle its
labor dispute before proceeding to court, as required by section
1138.2.
Section 1138.2 requires that, before an injunction can be
issued, a complainant must “make every reasonable effort to
settle th[e] dispute” via negotiation, mediation, or arbitration.
The union argues the record does not support a finding that
Southern Counties made “every reasonable effort” to reach a
settlement before filing for an injunction. The union contends the
“bare fact” that Southern Counties presented a last, best, and
final offer and the two cease-and-desist letters from Southern
Counties’ counsel is instead an indication of “ ‘my way or the
highway’ behavior that fails to evidence any willingness to settle.”
The union further suggests Southern Counties failed to take
advantage of free governmental mediation services, among other
options, evidencing its failure to make every reasonable effort to
settle its dispute with the union.
We reject the union’s view that the record contains scant
evidence of Southern Counties’ negotiation attempts. Southern
Counties’ lead negotiator provided a sworn declaration that he
had participated in “extensive collective bargaining negotiations”
between the parties from early Spring 2024 until January 28,
2025, when Southern Counties presented its last, best, and final
offer to the union. After the union rejected Southern Counties’
final offer, the negotiator sent a further email to the union’s
secretary treasurer expressing disappointment at the continued
failure to reach a settlement and stating Southern Counties’
“doors remain open for further bargaining with the Union.” The
negotiator declared he did not receive further substantive
18
communications from the union. And after picketing began,
Southern Counties sent two successive cease-and-desist letters to
the union, indicating a “prompt cessation” of the picketers’ illegal
activity in blocking ingress and egress at Southern Counties’
facilities would “avoid the need for litigation.” The letters
contained what could be seen as proof of unlawful activity. While
the union responded to both letters, it remained intransigent in
the face of Southern Counties’ evidence. When “the positions of
the parties remain unchanged, it would not be reasonable to
require [plaintiff] to engage in a[nother] round of direct
negotiations that are unlikely to succeed where [ ] previous
rounds of direct negotiation . . . have failed.” (Grand Trunk W.
R.R., Inc. v. Bhd. Of Maint. Of Way Employees Div. (6th Cir.
2007) 497 F.3d 568, 572; see also Bhd. of Maint. of Way
Employees v. Union Pac. R.R. Co. (7th Cir. 2004) 358 F.3d 453,
458 [“the law requires that a party make every reasonable effort,
not every conceivable one”].) Southern Counties, furthermore,
refrained from suing for several more months, even as picketing
continued unabated.
Though in some instances an employer may not be entitled
to injunctive relief if it rests solely on having pursued one method
of reconciliation (see Brotherhood of R. Trainmen v. Toledo, P. &
W. Railroad (1944) 321 U.S. 50, 57, fn. 11), that Southern
Counties did not pursue mediated dispute resolution services
with the union does not compel reversal. “ ‘[E]very reasonable
effort’ to resolve a dispute through nonjudicial means does not
necessarily include a prior demand for arbitration.” (United
Parcel Service, Inc. v. International Brotherhood of Teamsters (2d
Cir. 1983) 698 F.2d 100, 106.) Reversal is especially
unwarranted here not only given the evidence allowing a
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conclusion regarding the union’s recalcitrance discussed above,
but also because the union never raised a “reasonable efforts”
issue with the trial court and there was no indication of a viable
dispute resolution program or the union’s willingness to engage
in one. (See Charles D. Bonanno Linen Service, Inc. v. McCarthy
(1st Cir. 1976) 532 F.2d 189, 191 [“[T]he union here is unwilling
to commit itself to arbitration, and is thus in a poor position to
argue that the company’s failure to suggest that route falls short
of ‘every reasonable effort to settle such dispute’ ”].)
A case the union cites for support in its briefing, Pulte
Homes v. Laborers’ Int’l Union of N. A. (6th Cir. 2011) 648 F.3d
295, involved, in comparison, negligible attempts to negotiate.
There, a home builder claimed its firing of an employee prompted
a laborers’ union to bombard the builder’s offices with thousands
of phone calls and e-mails. (Pulte Homes, at pp. 298−299.) Nine
days after the employee’s firing, and four days after the phone
calls and emails began, the builder issued a single cease-and-
desist letter. (Id. at p. 306.) It then filed for an injunction two
days later. (Ibid.) On appeal, the court found the builder “made
little to no effort to settle. It transmitted the cease-and-desist
letter on a Sunday, did not specify a time to respond, did not offer
[the union] an opportunity to negotiate, and filed suit less than
forty-eight hours after sending the letter without even confirming
that [the union] received the letter. This is not ‘every reasonable
effort’ to settle the dispute.’ ” (Ibid.) Here, the negotiations were
not so anemic and there was no rush to court after just a couple
of weeks.
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DISPOSITION
We affirm the trial court’s orders and award appellate costs
to Southern Counties.
SCHERB, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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