I dissent.
The majority holds that the federal law (Labor Management Relations Act) has no bearing on this case and that the question is one of state law. With that I agree.
The sole question, as put by the majority opinion, is whether the public policy of this state forbids the representation in collective bargaining of supervisory employees by a union composed of the rank and file employees. The majority opinion holds that public policy does prohibit such representation, and, as a corollary thereof, that concerted activity by the union to compel such representation is for an unlawful object and therefore enjoinable. I am not concerned with the latter question because I do not believe such representation is against the public policy of this state. Indeed, the public policy as expressed by the Legislature is directly to the contrary. The statute states: “ [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. 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.” (Emphasis added; Lab. Code, § 923.) Thus an employee shall have the right to bargain collectively through a representative of his own choosing. *577Here the rank and file union is the representative chosen by the store managers and to hold that they may not choose such representative is contrary to section 923, supra. There is no qualification on the term “employee” in section 923. Therefore it embraces supervisory as well as nonsupervisory employees. It has been held that a mine superintendent is an employee within the meaning of the labor laws (Davis v. Morris, 37 Cal.App.2d 269 [99 P.2d 345]), and it has been held repeatedly that supervisory employees came within the term “employees” under the National Labor Relations Act until it was amended in 1947 to expressly exclude them from the term. (L. A. Young Spring & Wire Corp. v. National Labor Relations Board, 163 F.2d 905 ; National Labor Relations Board v. Swift & Co., 162 F.2d 575 ; Wells, Inc. v. National Labor Relations Board, 162 F.2d 457 ; Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485 [67 S.Ct. 789, 91 L.Ed. 1040].) In the Packard case, it was held that supervisory employees were within the term “employee” used in the National Labor Relations Act and hence entitled to the benefits of the act, that is, to have the employer bargain collectively with an association formed to represent them in such bargaining, the court stating: “The point that these foremen are employees both in the most technical sense at common law as well as in common acceptance of the term, is too obvious to be labored. The Company, however, turns to the Act’s definition of employer, which it contends reads foremen out of the employee class and into the class of employers. (Section 2(2) reads: ‘The term “employer” includes any person acting in the interest of an employer, directly or indirectly. . . .’ 49 Stat. 450. The context of the Act, we think, leaves no room for a construction of this section to deny the organizational privilege to employees because they act in the interest of an employer. Every employee, from the very fact of employment in the master’s business, is required to act in his interest. He owes to the employer faithful performance of service in his interest, the protection of the employer’s property in his custody or control, and all employees may, as to third parties, act in the interests of the employer to such an extent that he is liable for their wrongful acts. ...”
“Even those who act for the employer in some matters, including the service of standing between management and manual labor, still have interests of their own as employees. *578 Though the foreman is the faithful representative of the employer in maintaining a production schedule, his interest properly may be adverse to that of the employer when it comes to fixing his own wages, hours, seniority rights or working conditions. He does not lose his right to serve himself in these respects because he serves his master in others. . . .
“The company’s argument is really addressed to the undesirability of permitting foremen to organize. It wants selfless representatives of its interest. It fears that if foremen combine to bargain advantages for themselves, they will sometimes be governed by interests of their own or of their fellow foremen, rather than by the company’s interest. There is nothing new in this argument. It is rooted in the misconception that because the employer has the right to wholehearted loyalty in the performance of the contract of employment, the employee does not have the right to protect his independent and adverse interest in the terms of the contract itself and the conditions of work. But the effect of the National Labor Relations Act is otherwise, and it is for Congress, not for us, to create exceptions or qualifications at odds with its plain terms.
“Moreover, the company concedes that foremen have a right to organize. What it denies is that the statute compels it to recognize the union. In other words, it wants to be free to fight the foremen’s union in the way that companies fought other unions before the Labor Act. But there is nothing in the Act which indicates that Congress intended to deny its benefits to foremen as employees, if they choose to believe that their interests as employees would be better served by organization than by individual competition. . . .
“It is also urged upon us most seriously that unionization of foremen is from many points bad industrial policy, that it puts the union foreman in the position of serving two masters, divides his loyalty and makes generally for bad relations betiveen management and labor. However we might appraise the force of these arguments as a policy matter, we are not authorized to base decision of a question of law upon them. They concern the wisdom of the legislation; they cannot alter the meaning of otherwise plain provisions.” (Emphasis added; Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 488-493 [67 S.Ct. 789, 91 L.Ed. 1040].) Likewise in the present case, section 923, supra, by the use of the term “employee” without qualification includes supervisory employees, namely, the store managers, and the Legis*579lature has declared that such employees shall have the right to bargain collectively with a representative of their own choosing. Hence they may choose the rank and file union as their representative. The Legislature has so declared and this court is not authorized to declare a contrary policy as does the majority here.
It may be suggested that the managers are entitled to form their own union separate from the rank and file union and have it represent them in bargaining, but they cannot, as here, have the rank and file union as their representative. The majority opinion does not discuss this question but the clear implication is that it would be unlawful for a union of managers to bring concerted action to compel the employer to bargain with it. In the first place, there is no such limitation in section 923, supra. It is left solely to the supervisory employees to decide who shall represent them and that includes either a managers’ union or rank and file union.
In regard to a distinction, if any, between the right to bargain through a managers’ union or a rank and file union, the majority opinion in summarizing its holding, states: “Since on this record store managers are agents of management when so acting they owe undivided loyalty to their principal. As members of the defendant unions they would under union rules be in duty bound to advance the cause of the community of interest of store managers and clerks in any dispute or disagreement with their principal. They would be under constant apprehension of the penalties under union rules, such as fines, suspension, or expulsion. It is eminently proper that management supervisors, the store managers in this case, be kept free from the divided loyalty that would be engendered by compulsory membership in the defendant local unions. Under the law an employer may not demand that his representatives sit in the inner councils of labor and thus be placed in the position of exerting his influence in directing labor’s policies and activities. If such an objective were recognized and were accomplished collective bargaining would be in confusion and indeed futile.” The same arguments there made would apply regardless of whether a rank and file union or managers’ union was the representative of the managers because the latter union would have its rules and threats of suspension for any member who was not loyal to the union’s cause of obtaining the best terms of employment possible for its members. Its interests would conflict with the employer’s interests the same as the interests of a *580rank and file union. It should be observed tbat the majority opinion refers to the “compulsory membership” of the managers in the rank and file union. As far as appears, the managers are not being compelled to belong to the rank and file union and have it as their representative. They are willing and want to join such union and have such representation.
This brings us to the question of whether there is or should be any public policy against the formation and use, as a bargaining representative, of a union by the managers alone. From what I have stated above, it clearly appears that the policy, as stated by the Legislature (Lab. Code, § 923, supra), authorizes such representation. Aside from the Legislature’s declaration, however, it should be clear that the policy favors such representation. The soundness of that proposition is demonstrated by the decision in Packard Motor Car Co. v. Labor Board, 330 U.S. 485, quoted supra. Moreover, such representation is not new in the law. In the newspaper and job printing field, foremen have been members of the rank and file unions since 1889. (See 55 Yale L.J. 772.) The same is true in other industries such as building trades, metal trades, and railroads. (Collective Bargaining by Foremen, 12 Labor Relations Reporter, 421, May, 1943, Bureau of National Affairs.) In National Labor Relations Board v. Edward G. Budd Mfg. Co., 169 F.2d 571, 577, cert. denied 335 U.S. 908 [69 S.Ct. 411, 93 L.Ed. 441], the court in discussing the claim that the Labor Management Relations Act (1947 amendment) was unconstitutional as to foremen because they were excluded from its protection, held the act constitutional but said: ‘ ‘ The right of employees to form labor organizations and to bargain collectively through representatives of their own choosing with employers has long been recognized. N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 33, 34, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352.”
I would, therefore, reverse the judgment.
Traynor, J., concurred.Appellants’ petition for a rehearing was denied November 12, 1953.
Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.