I dissent.
I reaffirm the views expressed in my dissent in Voeltz v. Bakery & Confectionery Workers, ante, p. 382 [254 P.2d *430553], but wish to point out, in addition, that this ease emphasizes the fallacy of the construction placed by the majority on the Jurisdictional Strike Act in the Voeltz case as well as in the case at bar.
Under the collective bargaining agreement between Isthmian and M.E.B.A. that expired on July 15, 1951, preferential hiring was given to members of M.E.B.A. According to the affidavit of Tost, Manager of the Operations Department of Isthmian, for all practical purposes all licensed engineers employed by Isthmian were required to be members of M.E.B.A. B.M.E., however, actively solicited support among M.E.B.A. engineers employed by Isthmian and, in the spring of 1950, about 30 per cent of the engineers preferred B.M.E. and 70 per cent preferred M.E.B.A. The inroads of B.M.E. were probably owing to the fact that all other seamen aboard Isthmian vessels were members of various A.P.L. maritime unions. Isthmian continuously recognized M.E.B.A. as sole representative of the engineers and, as expiration of the 1950-1951 contract neared, negotiated only with M.E.B.A.
M.E.B.A. demanded a hiring hall,1 which had been obtained from the Pacific Coast steamship companies in 1949 and from nearly all other dry-cargo steamship companies on the Atlantic and Gulf Coasts in June, 1951. Isthmian refused to sign the agreements accepted by the other companies. After negotiations broke down, M.E.B.A. called a strike, July 16, 1951. As conceded by Isthmian on oral argument, the employer at that time considered the strike as a dispute over the hiring hall issue, and not as a dispute over which union would represent the licensed engineers aboard the vessels.
When the strike was called, most of the engineers left the vessels. Isthmian promptly replaced them with men willing to pass through the picket lines and recommenced shipping operations. The picketing was peaceful at all times. On the East and Gulf Coasts the A.P.L. longshoremen disregarded the picket lines and normal operations could be had. On the Pacific Coast, however, the independent longshore union respected the picket lines and Isthmian turned to the *431courts to break the strike. On July 30th, Isthmian sought an injunction in the Superior Court of Los Angeles County on the ground that a strike by supervisors for a closed shop was illegal. No reference whatsoever was made in the complaint to any jurisdictional conflict between M.B.B.A. and B.M.B. The trial court properly dismissed the complaint on August 13th. (Park & T. I. Corp. v. International Brotherhood of Teamsters, 27 Cal.2d 599, 603 [165 P.2d 891, 162 A.L.R. 1426].)
On August 20th, Isthmian signed a collective bargaining agreement with B.M.B., which now represented a majority of the engineers aboard the vessels. The B.M.B. contract gave members of the B.M.B. preferential employment2 but did not contain the hiring hall clause that was obnoxious to Isthmian. It is not surprising, of course, that a majority of the engineers expressed preference for B.M.B.; the men loyal to M.B.B.A. had left the ships and the men now sailing the vessels were willing to break the M.B.B.A. strike.
After its unsuccessful efforts in the Los Angeles Superior Court, Isthmian turned to the San Francisco Superior Court for relief against the picketing by M.B.B.A. On August 27th, it filed an amended complaint, the basis of the temporary restraining order involved in the present habeas corpus proceeding. Comparing this complaint with that filed on July 30th in Los Angeles, one discovers that the strike is now alleged to be a jurisdictional strike, a controversy between M.B.B.A. and B.M.B., with Isthmian east in the role of an innocent employer ground between two rival unions.
Thus at the inception of the strike the only dispute was between Isthmian and M.B.B.A. over the addition of a hiring hall clause upon renewal of a collective bargaining agreement. Isthmian adamantly refused to grant the clause and a strike followed. Over a month after picketing began, Isthmian signed an agreement with a rival union willing to forego the hiring hall demand and to break the M.B.B.A. strike. At the present time, two unions claim the right to represent licensed engineers aboard Isthmian ships: M.B.B.A. representing the men out on strike, and B.M.B. representing the men sailing the ships. The determinative issue in this proceeding is whether under these circumstances the Jurisdic*432tional Strike Act allowed the employer to obtain injunctive relief against the union that initially called the strike.
As pointed out in my dissent in Voeltz v. Bakery & Confectionery Workers, ante, p. 382 [254 P.2d 553], the words “arising out of a controversy between two or more labor organizations” restrict application of the act to cases where the initial picketing by the enjoined union is for one of the illegal objectives enumerated in section 1118. For example, Isthmian would be protected if it had renewed the M.E.B.A. contract and B.M.E. thereafter picketed Isthmian to force the employer to break the contract with M.E.B.A. and recognize B.M.E. as having the exclusive right to bargain with Isthmian on behalf of the engineers. Again, the statute would apply if M.E.B.A. picketed Isthmian for the purpose of gaining the exclusive right to perform work aboard the vessels that had previously been performed by the union representing unlicensed engineroom personnel.
The majority, however, as in the Voeltz case, interprets “arising out of a controversy between two or more labor organizations” to apply to conflicts between rival unions that arise during the course of a previously existing and continuing labor dispute between an employer and a single independent union. The result is to prevent unions from peaceful picketing for traditionally recognized objectives of organized labor in all eases where a rival union is willing to offer the employer more pleasing terms than the striking union. Because of the rivalry between various labor organizations,3 the proposed interpretation of the act would place in the hands of an-employer a weapon to enjoin picketing in any industry where the entrenched union has rivals eager to replace it.
Of course, an employer has the right to continue his business behind picket lines and replace the strikers with other workers. And it could be argued that if he should be clearly successful in breaking the strike, so that all of his workers reject the first union and adhere to the second union, the picketing by the first union will no longer arise out of the original cause of the strike. Then, perhaps, the supplanting union would be the one entitled to deal with the employer and the first union, continuing picketing when its cause is hopeless, would be the one interfering and causing the jurisdictional strike. But this problem is not presented here, *433where the only issue on habeas corpus is the propriety of issuance of the temporary restraining order violated by petitioners. At the time that order was issued, it is undisputed that M.E.B.A. had not lost the strike and, accordingly, the picketing still arose from the dispute between M.E.B.A. and Isthmian.
In conclusion, I believe that the Jurisdictional Strike Act was designed to protect an employer from the effects of a struggle between two or more unions, either for recognition as bargaining agent or for a determination of which has the exclusive right to perform certain work, in which the employer is an innocent party. I do, not believe that the statute was ever meant to protect an employer who is engaged in a dispute with his employees and the union of their choice over legitimate labor objectives, and who seeks a ban on otherwise lawful picketing on the ground that he has signed a contract with another union willing to fill the jobs of the striking workers, thereby himself creating the “jurisdictional dispute” from which he seeks relief.
In my opinion the petitioners should be released.
Traynor, J., concurred.
Petitioners ’ application for a rehearing was denied April 2, 1953. Carter, J., and Traynor, J., were of the opinion that the petition should be granted.
The requested clause provided: “The Company agrees that when hiring any Licensed Engineer other than the Chief Engineer or a First Assistant Engineer, the employee shall be obtained through the offices of the Association; provided that Engineers so named by the Association shall be qualified to fill the available positions, and further provided that the Company shall have the right to select men who the Company considers qualified and satisfactory.’’
The clause provided: “The Company shall have the absolute right to select the Engineers employed by it from among members in good standing of the Brotherhood.”
At least three unions compete for organization of licensed marine engineers: M.E.B.A., B.M.E., and United Mine Workers, Local No. 50.