*1 Jаnuary Argued petition reversed and remanded March rehearing May 11, denied GILBERTSON v. CULINARY ALLIANCE et al.
AND BARTENDERS’ UNION et al. P. 2d *3 William J. Masters argued the cause for appellants Julius and Carmen A. Gilbertson.
Harold Adams, W. Attorney Assistant General, argued Salem, the cause for Fred appellant G. Scherer. Donald 8. Richardson argued cause for respond- *4 ents.
LUSK, J. questions in this case have before us constitutionality interpretation, application of an legislative governing passed assembly by act the 1953 labor-management (Ore- aspects relations certain gon 662.610-662.790). Laws ch ORS appointment provides of a labor for the The act authority complaint on a to issue a examiner with engaged charge person made conduct unlaw- that a is hearing upon charge, by and, to hold a such Act, ful charge issue an sustained, he finds that the if requiring person to and desist from cease order any The interested the unlawful action. examiner require person may petition the en- Circuit Court authorized an and the court is forcement of such order, appeal this An decree of enforcement. enter provided for. court from the Court’s decree Circuit alleged present proceeding unlawful involves The by picketing. proceeding the fil- was commenced by employer, ing charges an with the labor examiner dba Paul Gilbertson, Julius H. Gilbertson Carmen Bunyan Burgers, Eugene, Oregon (hereinafter re- Culinary against Burgers), Alliance and ferred to as (herein- L. Local No. A. P. of Bartenders’ Union, Union) acts in of unlawful after referred to hearing by particulars stated. A to be hereinafter repre- parties had both were examiner was at which findings counsel, and which resulted sented sustaining charges and the examiner one commanding and desist from to cease the Union order employer. picketing
Burgers petition thereafter filed a in Circuit County Court for Lane for enforcement of the order. permitted organizations The court other labor and their to officers intervene on the side the defendant permitted and Union, the labor examiner to intervene petitioner. on the side of the The case was submitted petition, principally on demurrers to the based on the claim that the 1953 statute is unconstitutional. The court sustained the demurrers and entered decree dismissing petition and the labor examiner’s com- plaint Burgers in intervention. From that decree and appealed. the labor examiner have point pertinent At this desirable to state provisions Oregon Laws ch 723. will refer they appear to the section numbers of the law as both in and in the session ORS laws for 1953. The act is entitled
“Relating management regu- to labor and relations;
lating picketing; providing creating remedies; agency an for the Act; administration of this repealing chapter Oregon Laws 1947.” (§1) 662.610 consists of definitions. 2): “Except (§ right 662.620 extent that such
may agreement requiring be affected an mem- bership organization a in labor aas condition of employment, employes right shall have the to select reject organizations seeking claiming or labor or represent collectively bargaining in them employers concerning wages, their hours and other employment, provided terms and conditions of in this Act.” (§ 10) agency
662.700 establishes as a state a Di- supervision vision of Labor Elections under of a labor control examiner. (§3): any organization
662.630 “Whenever labor preceding which has not within the last month twelve- period recognized been or certified as the agent bargaining apprоpriate bargaining an unit majority employes represent claims purpose bargaining appropriate unit for snch writing bargaining notice any serves collective employer, employer, or of such claim on of his or its may organization employes, a labor writing, petition, hold an elec- examiner appropriate place to desire to ballot at tion secret employes *6 the or determine whether by organization. peti- represented a labor Such be If examiner. he deter- shall filed with the tion be appropriate proceed he forth- the shall mines unit by an election to be held secret ballot cause towith appropriateness employes If in the unit. the of the of the petition disputed in the unit forth as set person by the examiner shall deter- an interested hearing. appropriate after the unit notice mine eligible Employes appropriate the unit shall in majority at A vote of those vote said election. voting determine or not a in unit shall whether the organization designated bargaining a has been labor certify ap- agent. propriate examiner shall that such or has not either has selected unit bargaining according representative for collective notify election, shall of the inter- the results by parties. shall No election be directed the ested bargaining any any unit or in subdivision examiner during preceding the within which twelve- thereof period a valid has been held.” month election (§4) provision is an administrative 662.640 relative appropriate determination of the to the examiner’s (§§ 5-9) bargaining all 662.650-662.690 ad- unit. provisions procedural relative to hear- ministrative (§ 12). ings as is examiner, the 662.710 Section before examiner to issue and serve a com- authorizes engaged charges person upon plaint or is that a has by the and to to be unlawful Act in declared action quote hearing 2 of subdivision conduct thereon. § 12: testimony by transcript the in the office of the taken
“A and filed shall be made examiner examiner. in Thereafter, discretion, his the exam- may upon testimony iner notice take further or argument. upon preponderance hear If testimony opinion taken the examiner is of the person any complaint engaged named in the has in any engaging or is action declared to be unlawful findings this the examiner shall state Act, his copy per- serve a fact, of the same on the interested person sons and issue and cause to be served on the complaint declaring named an order such person requiring election invalid or to cease action, and desist the unlawful In both. the event the election is declared invalid the examiner shall upon pre- cause another election to be held. If ponderance testimony taken the examiner is opinion person not of the complaint named in the engaged engaging any has in or is ac- tion declared to be unlawful this the ex- Act, findings aminer copy shall state his fact, serve persons of cause to be same on the interested and issue and person making on charge served dismissing complaint.” an order *7 grants (§13) by 662.720 a review the Circuit Court any person aggrieved by to a final order of the ex- prescribe procedure aminer pro- the and therefor. It aggrieved party vides that “the shall file in the court transcript hearing of the entire of record before including pleadings testimony the еxaminer, and upon which the order of the examiner entered”, empowers upon the court “to make and enter pleadings, testimony proceedings set forth in such transcript enforcing, modifying enforcing a decree setting as modified, so or aside the of order the ex- objection urged aminer. No not been before has the examiner considered shall be the court. The findings respect questions of the examiner with to of supported if fact, substantial evidence on the record juris- as a shall be whole, considered conclusive. The diction of the court shall exclusive and its be decree except subject to
shall that the shall be be final same any appealable appeal other on as in case of review decree.” any (§14): examiner or interested
662.730 “The county person may petition the circuit court of the require hearing has held to in which a been any in of the examiner made of order enforcement hearing. Excepting such connection with time conform to court order or decree in addition to those therein filing, proceedings shall thereunder and the those forth in 662.720 set ORS authority any appropriate make shall have to
set be or of the court shall forth. The orders decrees subject except re- shall be to same final, any appeal- appeal other on the case view as or decree.” able order 16): any person (§ unlawful for
662.750 “It shall be directly indirectly compel, coerce intimidate, or against any employe in the exercise or discriminate reject- selecting employe’s or said free choice organization representative ing a labor bargaining, employes purpose of for the collective indirectly compel, directly intimidate or or or employes any employer employe or because coerce employer, any employer, have other said or of organization repre- a labor as their not selected purpose. in- ‘coerce’ sentative for said word foregoing picketing. limiting cludes Without purpose for the of com- acts, unlawful influencing intimidating, coercing pelling, an or join any employer organiza- employe a labor of this section.” tion shall violation be “Nothing (§ 19): 662.610 contained ORS 662.760 making employer preclude from an to 662.790 shall organization requiring agreement a labor employment.” membership therein as condition any person 17): (§ unlawful for 662.770 “It shall employer any employe picket unless *8 recognized person as the or is has been certified employe representative or of bargaining of employer employes appropriate of such of an unit provisions provisions or the under the of federal law of ORS 662.610to 662.790.” jurisdic- (§ 18): “(1) competent 662.780 Courts of power provisions tion shall have to enforce by appropriate 662.610 or ORS to 662.790 order de- proceeding given precedence cree. Such shall be over all other civil cases. No relief under ORS given by any 662.610 to 662.790 shall be court ex- testimony cept open hearing after of witnesses opportunity court, with examination, cross support allegations complaint pe- in tition made under or testimony opposition
oath, hearing thereto, if offered. Such shall be after held personal given, due notice thereof been has persons such manner as cоurt directs, to all against sought. (2) whom relief is or orders except decree of the court shall be final, that the subject appeal same shall be to review on as in the any appealable ease of 662.790 other or order decree.” (§20): 662.010 to “ORS 662.130 shall not applicable proceedings brought under ORS 662.610to 662.790.”
The sections applicable of ORS referred to as not proceedings brought comprise under the 1953law Oregon Anti-Injunction so-called Norris-La Guardia Act. Inconsistency
Claim in Procedural Provisions suggested It is that the Act is unenforcible because provisions §§ conflict between the 13 and judicial on the one and 18 on hand, the other. Where sought by of an review order of the examiner is aggrieved person, or where the examiner or an inter- petitions person ested the Circuit Court for enforce- pursuant §§ ment of such an order 13 and 14, hearing upon transcript in the Circuit Court proceedings before the examiner. The court is “upon pleadings, authorized to enter its decree testimony proceedings set forth in such trans- script” (§13). objection Further, “No that has
336 by urged examiner shall be considered been before the respect findings examiner with court. The the by questions supported evi- of if substantial fact, to as a shall be whole, the considered dence record on ’’ empowers competent § of But 18 courts conclusive. jurisdiction provisions the Act and to enforce the to provides: 662.610 “No relief under then ORS by except any given after hear- court shall 662.790 op- open ing testimony court, in of witnesses with the support portunity the examination, in for cross petition allegations complaint oath, of a made under testimony opposition thereto, if offered.” “ORS and in foregoing sub- sentence 662.610to 662.790” the was If “this in the revision for the words Act”. stituted proceedings apply prohibition held to this were §§ 14 a clear and taken there would result under 13 obviously, assump- for on that conflict, irreconcilable procedure the outlined tion, a court could not follow violating § §§ 18. 14 the command of and without history legislative The measure is of interest. No. on March 20, Bill was introduced House by passed no the contained House, 1953. the bill As provision for of labor ex- the creation of office provisions ex- no whatever aminer and administrative cept Board the State of Conciliation invested authority purpose conduct elections for determining agent employees. bargaining for Section any person aggrieved by provided bill any Act should be of the terms violation of damages injunctive relief and to recover entitled any general resulting court of from violation provisions jurisdiction. administrative for All proceedings a labor examiner to be conducted judicial judicial of his enforcement review present into the statute came as well as orders, April adopted on amendments were Senate which On 21 the finally passed. bill was April 1953. On this In view of legislature adjourned. 21 the April Mulhern, from State v. quotation history following pertinent: NE 507, peculiarly 74 Oh St # “* # remitted are therefore Legis- and intent of of the policy ascertainment This entire act. construction aby lature irreconcilable provi- two situation, presents which the commissioner the time when sions respecting arose from undue office, probably take will haste which the late characterized much of the work *10 as stated counsel session, appears, аnd was many to a of too cooks. at the oral case hearing, held wholly inopera- sometimes is legislation Such interest were the minor tive, subject-matter to hold in this case would be disposed we But utterly. had the broth number of cooks spoiled a matter of minor interest but of general it is not county to every interest as it does reaching each state, vitally the conduct of affecting county’s duty is the business, undoubtedly it in give effect to the act of the court endeavor way construction, there- or the other. Which one in- fore, nearly will more effectuate the purpose wifi, in tended, from objection and which be freest out of the law?” working the practical con There rule that in case of irreconcilable the last in flict between various provisions provision in statute should or position arrangement order this court recognized by The rule was prevail. 209 619, 620, P Bramwell, 597, 100, Or Upham v. because 919, 210 P 25 ALR but 706, applied re to harmonize two apparently the court was able In question. fact, of the statute provisions pugnant the existence of many recognize courts although an indicates examination cases rule, a last resort. As stated 82 CJS as only applied Statutes 347. # “* # criti- However, rule has been this and as not be- no basis satisfactory having cized ing supported by any legislative practice. sound purely arbitrary is a This and artificial rule con- exceptions. So, struction to there which it is subject to the rule that the statute must be con- legislative strued as whole find the intent, and application prior pro- has no where the section or harmony general purpose vision is inmore explicit or or act, intent is clearer and more interpreta- one, that the later where literal nullify tion of the later section act, would whole only clearly and is to be resorted to when there is conflict, irreconcilable when there are no other ascertaining legislative means of intent, and all interpretation other means of have been exhausted, and in extremis.” Interpretation pp.
See, also, Black on of Laws, 326, 327. applied provision The rule is not when the earlier of a policy statute conforms the obvious and intent of legislature. op. supra; Black, cit., v. Mul State supra; hern, v. Bates, State Minn 110, 104 709; NW Valley Apache County, National Bank Phoenix Beverage Ariz P2d Western 883; Han Co. v. sen, 98 Utah 96 P 2d 1105. As stated Mr. Black, only subsequent equal “it is when clause combines position advantage clearness with the that it will *11 control the former.” See, State ex rel v. Public Service Commission, P 601, 172 Wash 890. compelled are not, however, to resort to use everywhere arbitrary
of a rule, considered and unsatis factory, present question; for the solution of the for provisions think we that while under consideration apparently they actually irreconcilable, are not necessarily and so, and that under settled of stat rules utory interpretation they may be harmonized. That it duty possible, is the if them, court’s harmonize there no can be doubt. Lommasson v. Dist. School No. 1, supposed 71, 267 P2d “An Or 1105. author must be be consistent with if in himself; and, therefore, one clearly, ought expressed to be place mind it his he has presumed same mind another he still of the is changed clearly place, appears that he had it.” unless it Interpretation § And in 250, 182. Statutes, Endlich, provisions of a statute a case of conflict between only meaning susceptible will control those one those thereby meanings susceptible can if statute of two People § 347; harmonius. 82 Statutes 720, be made CJS Monroney, 24 150 P2d 638, Cal2d 888. provisions §§ clear, 13 and 14 are definite upon explicit. They appear to have modeled been Act York State Labor certain sections of the New (McKinney’s Book York, Consolidated Laws of New 707)—in many particulars § at least the Art. language York Act— with that of New identical typical they obviously intended to create a were judicial judicial enforce- modern scheme of review and See, also, orders. National ment of administrative (e). §160 There can Act, Labor Relations 29 USCA object provi- no these be doubt whatever about the accomplishment adopted method for the sions nor the by object. § held reason it to be of that Were prevail position, earlier its local should over the only carefully detailed, these drawn sections, would away, provisions swept provisions for ad- be but the hearings in their and orders would follow ministrative legislature supposed that the train, for it is not be procedures have these administrative established would securing appropriate for methods in the absence judicial review and enforcement. that the hand, other cannot be denied
On the proceedings legislature in court has authorized quite obtaining enforcing relief under the Act proceedings apart initiated from examiner. provision incongruous may said, This, it Nothing present ease, however, in the a statute. *12 340 necessary attempt
makes it or either desirable to to appropriate invoking determine the occasions this jurisdiction proceeding initial of the courts rather than through enough say the examiner. It first that necessary inconsistency there is no in the law because procedures; provides though it for alternative and, maybe procedures that the two cannot coexist in entire peace harmony, they at least can coexist. given
We to the effect come, therefore, to be §in the sentence 18 which declares that no relief shall given by any except hearing court after testi mony open language of witnesses in etc. The court, enough granted by pur broad to include relief a court position §§ suant to 14. But its in the same sec original proceeding tion which authorizes an in the apply court is some indication that it was intended to only proceedings. to such While the sen words ambiguity tence are themselves free from there is un certainty, respecting application. nevertheless, their An plainly expressed by may intent words of statute op. be rendered dubious the context. Endlich, cit., p. posture Such is the case here. In 7. of affairs duty adopt interpretation it is the court’s which give will effect to entire statute rather than one important part which will wreck a substantial and controlling provision it, and to withhold from a effect susceptible meanings provisions of two over other apparent susceptible only conflict with it which are meaning. § one hold, therefore, 18 does not proceedings pursuant §§ affect taken 13 and 14. Constitutionality
Question petitioner, Burgers, operates a drive-in restau- Eugene. rant in The record would indicate that at the time the commenced it had em- *13 consisting “car ployees, a and of waitresses cook, hops”. proceed- charges complaint in in issued this the Burgers
ing by of the examiner at the instance were employees (1) аnd coerced that the intimidated Union Burgers in of their free choice select- of in the exercise purpose ing rejecting organization for of a the or labor by employees bargaining picketing in said collective employer place of in violation of the of business their picketed Burgers (2) § that the Union Act; of the place employer’s employees the business its at and intimidating, coercing compelling, purpose of for the join influencing employees said the Union (3) § that the the Union Act; violation of notwithstanding employees picketed Burgers and its recognized bargain- certified or as the it had not been ing representative of the violation Act. 17 of the hearing stipulated that the had on the Union It was recognized bargain- as such been certified neither ing representative. findings following from the take the
examiner: April, during 1953, dissatisfaction “Some time among employees regarding rest meals, arose working wages
periods, In conditions. and other they sought way May, employes a in which 1953, upon improve their own and, these could conditions solicitation, union went to the initiative and without possible about assistance. office to talle them with voluntarily employes at that time of the Several membership. applied for union employes employer learned that the “When the membership applying union, she some of for were telephoned and she talked with that fact. She was disturbed duty employes were off who duty, them to at first to ask on others who were preference against indicate their for or union mem- bership. employer Then indicated that the union jobs members would lose their some them discharged. given were Various reasons were firing employes during this time, and at least talking against one employer. themof interest May employer presented “On was representative copy of a union contract negotiations union, but the evidence is that representative were not carried on either awith the union or with the Central Labor Council. The by establishing union then took direct action picket excep- line on June 1953. one With minor peaceful tion, been has and there is *14 supporting any no evidence of at time. violence purpose picketing get “The has been to employer sign the to a union contract have and to employes all of became the union members. In other they picketing words, a union wanted house. The publicize dispute was also to a labor and to im- prove wages working has conditions. picketing substantially “The affected employer’s adversely.” business It should be observed here that the 1953 Act did go July into effect until 21, 1953. foregoing findings supported All the sub- appears by stantial evidence. also It uncontradicted applications membership evidence that for in the Union signed by employees, were six of and that four of engaged picketing request. these in the at their own copy presented by repre- the contract the Union employer provided, among things, sentative to the other bargaining recognition of the Union as sole agency employees employment for the and for the only. Union members “Application
Under the head 16” Section examiner found: any person, 16 makes it
“Section unlawful for employer employe or coerce, intimidate or in- join organization. In employes a labor fluence not conclusive instance, this the evidence activity influence, or other coercion, there was prohibited by 16.” Section which would be picketing that the violated The examiner concluded carried on union 17 of the Act because was recognized or as the bar- had not been certified which representative gaining and entered accordingly. and desist” “cease order opinion of an of the Circuit In the absence Court ruling various that the sustained the we assume which ground petition on based demurrers to § 17 is unconstitutional. of the Act “any person makes it unlawful for
Section 17 person employer picket employe unless has or recognized bargaining repre- certified or is been employe appropriate of an of such or unit sentative provisions employes employer of such under the provisions” law or of the Act now under federal “ (6)1 ‘Person’ includes reads, consideration. Section organizations, partner- more labor individuals, one or ships, corporations, legal representatives, associations, bankruptcy or receivers.” In view trustees, trustees provision to limit of this definition effect any employer employee or an either of an recognized organization has been either labor which *15 bargaining representative. All other certified as such picketing as Here the is denounced unlawful. Union recognized or certified. was neither so provision that the violates But Union contends speech guarantee in the First Amend- of freedom of against abridgment the Federal Constitution ment of similarly per- by secured to all States the United against abridgment by Fourteenth Amendment sons L by 155, 84 ed State, 147, v. 308 US state. Schneider a 165 Bain, American Federatiоn Labor 146. 60 S Ct P2d 130 ALR 183, 106 544, Or is cited 1278, as decisive question. of the In that case we held that a statute, by people under enacted the initiative, which defined dispute “only a labor as an actual bona fide contro versy disputants proximate in which the stand in rela employer majority tion of and the of his or its em ployees directly directly and which concerns matters pertaining wages, working hours, conditions of the employees particular employer directly of the involved controversy”, in such and which made it unlawful to picket dispute absence of a labor as so defined (Oregon 2) 1939, ch Laws was unconstitutional under Supreme the decisions of the Court of the United States Alabama, in Thornhill v. 310 US 84 L 88, 1093, ed Ct 736, California, S Carlson v. L US 84 ed April 60 Ct 1104, S both decided In 22, 1940. these picketing cases it was held that which takes the form “publicizing dispute peace facts of a labor ain way through appropriate by pam ful means, whether by phlet, of mouth or word banner, must now be re garded liberty as within that of communication which is every person by secured to the Fourteenth Amendment against abridgment by (Carlson state” v. California, supra, 113), p. sweeping prohi at US that a specifi bition which does “aim cally at evils within the allowable area of State con against trol” offends the Constitution. Thornhill v. supra, p. at Alabama, US 97. peaceful picket reasoned in the Bain that if case
ing constitutionally protected against sweeping legislative prohibition kind condemned in the cases, Thornhill and Carlson it is less no so because minority engaged only of a employer. particular Since then other courts have taken the same view of similar statutes. Alabama State Fed McAdory, eration Labor v. 246 Ala 18 So2d 810
345 (D. (1944); Stapletоn Supp F60 51 Mitchell, v. Kan, Div), opinion by Judge (1945); Murrah, 1st Circuit Operating Engineers Cox, International Union v. (1949). Tex SW2d 787 supra, three-judge Stapleton Mitchell, In a court provision held unconstitutional of a Kansas statute any participate made it unlawful “to strike, which or walk-out or cessation of work continuation thereof being majority without the same authorized vote governed thereby”, employees of the to be the court saying prohibitions “it is the inherent the statute standing impose alone which the unconstitutional re- American, straint”. court cited Federation of supra, and Bain, Labor v. decisions from Alabama and invalidating Concerning Florida similar statutes. these reported Supp decisions the court said, as F60 at 61: p. [not] “We are in accord with the Alabama, Oregon
Florida and in the we courts treatment of their respective may think enactments, we assume purposes Supreme for the of this ease that the Court of Kansas would follow the Alabama court in the condemnation of similar those sections of the Act any make which unlawful strike, walkout, cessa- by majority tion of work, unless authorized * * put We have brackets around the word “not” for presence entirely reason that its makes the sentence out harmony reasoning with the decision and the authority Judge court, and we have the for Murrah saying got this word into the sentence someone’s error and that the sentence should read “We are in Oregon Alabama, accord Florida and courts”, etc.
In Edwards v. Commonwealth, Va 60 SE2d (1950), the court held unconstitutional a statute
which, any person picket made it unlawful who *17 at the commencement of a strike or immedi not, employee ately prior a bona fide of a thereto, business Pennsylvania industry being picketed. In Labor Re or &Delaware Bartend lations Board v. Chester Counties 11 ALR2d 834, 361 Pa 64 A2d 677, 246, ers Local No. (1949), the unconstitutional a court declared stat 1259 “prohibits gen construed, broad and which, ute as by place employment picketing of a eral terms the employes place employ persons who not ’’ Virginia Pennsylvania ment. and decisions would The only compelled by and Carlson seem to be Thornhill by Swing, 321, A. F. 312 US S Ct but also L.of Bakery (1941); Drivers Local v. Wohl, L ed 568, (1942); L ed 1178 and 62 S 816, 315 US Ct Angelos, Employees v. 320 US 64 S Ct Cafeteria (1943). 88 Led 58 beauty Swing’s Swing picketed case union In the enjoin parlor this inter- order to “unionize” it. “To of his business and with freedom ference this with join Swing employees” union, and his workers not to (312 sought injunction granted 323) an which was US below. The decree of that court recited in the court Supreme Court this and the State “that this Court under the law of this that, State, held in this ease, have peaceful persuasion peaceful picketing or are unlawful by strangers employer (i. e., when to the conducted proximate employees is not a relation of where there appellants employer), are entitled in this (312 injunction”, 324.) by etc. The case to relief US Supreme “it The court said that reversed. Court dispose improper than of the ease otherwise would be (312 325). Speaking for face on the of the decree” US said: Frankfurter Mr. Justice court, * “* # sustain a decree which are asked to purposes common ease asserts of this ‘peaceful picket- of a state that there can law ing be no peaceful persuasion’ any or in relation to dis- pute employer between and trade union unless controversy employer’s own are in him. with
“Such a ban of free communication is incon- guarantee speech. sistent That a state has freedom ample power regulate the local by problems up industry pre- thrown modern peace serve the is axiomatic. But not even these powers by requirements essential are unfettered Bights. scope of the Bill of of the Fourteenth by par- Amendment is not confined ticular state the notion of a regarding injunc- the wise limits of an dispute, limits tion in an industrial whether those judicial organ be defined statute workingmen state. A state cannot exclude from peacefully exercising right of free communica- *18 by drawing competition tion the circle of economic employers between and workers so small toas con- only employer directly employed tain and those by interdependence him. The of economic interest engaged industry all the same has a become commonplace. Tri-City American Steel v. Foundries Council, pp. 257 184, U. 209.” 312 325, S. US at 326. picketing by Wohl The case arose out of members of bakery a drivers union—truck drivers who were occu- pied goods. picketing in the distribution baked The against persons bought goods was directed two who bakery peddled from the them to The retailers. grievance peddlers union’s was that the did not observe injunction union standards. A state court was set aside. The court said that the state courts were concerned only question with the whether there was involved a dispute meaning labor within the of the New York stat- legality injunction utes, and assumed that the dispute followed from a determination that such a was Supreme involved. not But Court answered: “* * * course that Of does not follow: one need dispute’ by not in a ‘labor as defined state law to 348 right the Fourteenth Amendment to
have a under publication grievance by express in a matter a labor by or conduct other- violence, coercion, unattended oppressive.” p. at 774. unlawful or US wise Angelos, supra, Employees v. Union In Cafeteria appeared in two cases the lower courts “en joined picketing petitioners in from at or broad terms places respondents’ in of business.” Each case near proprietors of which conducted cafeteria, a volved any employees. purpose without business organize shops. the au On thority Layers Union, 468, 301 US Senn v. Tile Swing L and the and Wohl eases 857, ed S Ct 1229, Supreme decision, a reversed Court, unanimous the decrees. such as here with statute
We are not concerned
denounces as an unfair labor
Wisconsin,
which
acting
employees
practice picketing by
and those
majority
bargain
in a collective
interest
their
unless
against
employer,
ing
of an
which
unit of
picketing primarily
have voted
secret
directed,
1939,
111.06.
Wisconsin Statutes
ballot
call strike.
Employees’
Al
International
& Restaurant
See Hotel
Employment Rela
No. 122
Local
Wisconsin
liance
Board,
632,
634,
294 NW
NW
236 Wis
tions
(1942).
L ed
349 injunction against tention of the -union that thе peaceful picketing, saying that the Wisconsin court has, say concerning of meaning the final course, of a scope Wisconsin law of administrative orders made under it, and “What us, before therefore, not the writing order as an isolated, self-contained but gloss Supreme the order with Court of Wis- upon it. unambiguously consin jected And that has Court re- upon
the construction
which the claim the
petitioners (the union)
p.
rests.”
Nor
Supreme
do the
decisions
Court inter-
preting provisions of the National Labor Relations
Management
as
Act,
amended
the Labor
Relations
commonly
Taft-Hartley
Act,
known as the
Act, 29
seq., support
§§
constitutionality
USCA 151 et
§ 17. See
v.
Union,
Garner
Teamsters
346
485,
US
98
(1953);
L ed 228, 74 S
161
Local 74
v.
Ct
NLRB,
Etc.
(1951);
341 US
95 L
707,
1309,
ed
injunctions against picketing at the suit strikes employers private litigation, private sanc- but of departure Norris-La terms of the a from the tioned only Labor Relations Act the National where Guаrdia seeking public agency, was enforcement a Board, by aggrieved party a or a one where orders, of its seeking of a Board Board review final order of the was Brotherhood, 217 v. Inter. W. L. Mead Inc. order.” summary provisions (1st (1954). Cir) A of the F2d just cited, found in the case of the act will be federal of the it held that the District Court in which was jurisdiction enjoin picketing had no to United States dispute a after a arose between the strike called concerning bargaining parties a contract collective having, agent employment, union of the the hours contract, of the terms of the in violation claimed, it dispute Mr. to arbitration. As to submit refused Union, v. Teamsters said in Garner Jackson Justice supra: prescription procedure “The detailed types picketing specified seem would restraint of picketing imply other is to be free of other policy of restraint. For the
methods and sources Management Relations Act Labor of the national only picketing all that ascer- not to condemn but is by prescribed processes its fall within its tained implicit prohibitions. Act it in the Otherwise, is by public is freedom of labor that the interest served pp. weapon picketing.” at 346 US to use the 500. only may Oregon Act, 14 of
But, under
proceedings
order be
a cease-and-desist
to enforce
person”—
employer—“any
brought
interested
an
“any
applies
against picketing
prohibition
but
regardless
employee
person”,
or not and
whether
object
picketing
which
manner in
or the
recognized
exception being
only
conducted,
bargaining representative
employer
certified
picketed.
In either case, therefore,
de-
nounced as unlawful unless carried on
a union which
represents majority
employees,
and therefore
*21
compelled
the considerations which we felt
to hold
us
the statute involved in
Bain
case to be unconstitu-
apply
§
provision
tional
all
with
their force to
17.
specifically
“does not aim
at
within the
evils
allowable
contrary, sweeps
area of
control, but,
state
on the
ordinary
within
ambit
its
other activities
in
cir-
speech
cumstances
an
constitute
exercise of freedom of
press.”
supra,
or of the
Alabama,
Thornhill v.
310 US
p.
prohibits
picketing,
at
97. It
all
no matter what the
by anyone
employee
circumstances,
than an
other
particular employer.
Supreme
But the
Court
Swing
United States said
case:
* *
“#
worldngmen
canilot
s^a^e
exclude
peacefully exercising
right
from
of free com-
the circle of economic com-
by drawing
munication
petition
employers
between
and workers so small
only
employer
directly
toas
contain
an
and those
by
employed
p.
him.”
section must be tested “on its face.” it So tested cannot stand. argued,
It is under however, recent decisions Supreme may Court 17 be sustained a valid as authority. may exercise of the state’s These it cases, light be cast said, new on extent of the identifica picketing right speak tion of constitutional freely opposed right state, the correlative of a powers the exercise its reserved under the federal system, regulate picketing in the interest of the They public definitely welfare. establish that may practiced, be restrained state where it is
352 objective pursuit though peacefully,
even
reasonably
to be
unlawful,
deemed
state
policy
regard
expressed
in that
be
the state
whether
judicially
has
indeed,
declared. This,
in a
statute
Oregon
our de-
both before
since
law in
been the
supra.
Bain,
Labor v.
American Federation
cision in
Council,
P2d 870
1, 169
Labor
179 Or
v.
Peters Central
Contracting
Logging
(1946);
v.
&
Co.
Inter.
Stone
(1943);
P2d
Mark
13,
171
135
759
Woodworkers,
Or
Woodworkers,
517,
170 Or
v.
ham & Callow Inter.
Moving
Operators,
(1943);
Picture
P2d 727
Schwab v.
(1941); Wallace v. Interna
Questions solely upon Although his examiner rested order § it must be determined 17, nevertheless a violation presents question violation whether the record charged complaint, preliminary § as and, of 16 as question, § to that the invalidation whether regard in that act void. The rules renders entire crystallized have been into a statute. 174.040 now ORS (Oregon 314). Laws ch The statute reads: 1951, legislative “It shall considered that it is the any any that if
intent, part maining parts statute, enaсtment of unconstitutional, re- of the statute is held in force shall remain unless: “(1) provides otherwise; The statute “ (2) essentially remaining parts and The are so upon inseparably unconstitutional dependent the the connected with
part apparent that it is remaining parts enacted with- would not have been part; out the unconstitutional “(3) remaining standing parts, alone, are
incomplete being intent.” incapable executed in ac- legislative cordance with the
Substantially, applied the same rules these are Lamm, Fullerton v. courts the absence statute. P2d and cases there 177 Or 163 P2d any necessary interdepend cited. are unable to see § ence between 17 and the remainder of the Cer Act. merely tainly §§ 16 and there is none between 17 which them certain acts and conduct denounce describe legis and no There is no internal evidence unlawful. legis history support the notion that the lative which taken measures to curb what not have lature would they §in 16 had known were deemed the evils described be declared unconstitutional. that 17 would *23 4) provisions respect 3 and to the
With employees may, a in an choose election, under which bargain organization the exclusive shall be which labor appropri employees ing representative in an of all the question bargaining dif- is somewhat more unit, ate provisions ficult. connection, These have a close § course, 17 since section would have been, part meaningless except provisions at for least, regarding may § elections. But, while 17 be said dependent upon by §§ 3 and 4 it no means follows dependent § §§ 3 and 4 on that the former 17, may regardless purpose pres- not serve a useful by ence or absence of A method sanctioned 17. law determining represents for the claim of a union that it bargaining majority purposes, a for by bar- and which would be constituted the exclusive gaining representative, dispute and under which might representation unions for such between two rival peaceful orderly manner, be settled in a could well legislature an in itself have been deemed end tending to for industrial con- diminish occasions promote employers, em- flict and thus welfare public. long history ployees, the unions and jurisdictional disputes, the sub- which “have wasted capital and have irritated stance of both labor and (Jaffe, Supreme public opinion” “In Defense of the Picketing 41 Mich L Doctrine”, 1037, Bev Court’s legislation passed 1055) and state federal regulating disputes, providing purpose supervision governmental for elections under the representation, agency attest some of the to determine ques- policy provisions public behind reasons Disputes Bar- Teller, Labor Collective tion. See Logging Company gaining §§ 130-133; Stone America, 13, 135 P2d 171 Or Inter. Woodworkers of Am v. Inter. Woodworkers Markham & Callow 759; Florsheim Shoe 727; 135 P2d Store erica, 170 Or NY 42 NE2d Union, Co. v. Shoe Salesmen’s that a decided labor cited, In last which the cáse 480. pursuant dispute held after an election had ended of two rival York had determined which statute New *24 bargaining representative of the unions should he employees, the court said: * “# * only a result conclusion Such is harmony public
possible in consonance and with the policy in the Rela of the State as declared Labor prevent bring or to an end Act was to tions which and un strikes and other forms of industrial strife encourage peace industrial and to and effect rest (288 197.) among employers employees.” NY object In of the statute the this view follow- language ing from 11 Am Law Jur Constitutional pertinent: § 155, is * * pro- the elimination of even material
“* their in- in a statute enacted because of visions validity as remaining pro- not render the valid does upheld ineffective if the con- visions thereof part independently portion, a of the invalid com- stitutes, aspect, ap- plete pears reasonable unless it law some legislature in- from the act itself only entirety an tended it be effective as part valid alone.” would not have enacted the complete § have a statute Without 17 would still we reasonably thought legislature might have which the accomplish public purpose in the field of labor would management that it therefore, relations. hold, We necessary to strike the remainder of the Act down § as unconstitutional. because 17 must be eliminated charges § 16 of violations of recur now to the complaint examiner. The first issued in charge and coerced em that the intimidated Union Burgers ployees choice of their free in the exercise organization rejecting selecting a labor their or bargaining purpose representative of collective for the place by picketing business in the charge obviously employer. is intended as This first first sentence clause of a violation of directly any person makes it 16, which “unlawful indirectly compel, or coerce or intimidate, discrimi- against any employe nate in the exercise of said em- ploye’s selecting rejecting choice free a labor or- ganization” etc. argued by respondents provision
It is that this applies only pending, when election is and that its purpose prevent prac- is to intimidation, coercion, etc., *25 against employees they ticed express when to about bargaining representative through their choice the provided medium of a ballot in a secret election as § by for in 3. construction, This arewe advised counsel, adopted by arising examiner the in another case approved by judge under this Act and a circuit before whom that case came. But we think it is too narrow for only the reason that the examiner is authorized to hold organization repre- an election when a labor claims to majority employees bargaining sent a in a unit and employer. serves notice of such claim on the Thereafter employer, any employees the or of his or the labor or- ganization, may petition the examiner to hold an elec- organization bargain- tion. The choice of the labor aas ing agent may by employees signing applica- made (R. join Company Murphy, tions to union H. White 685), 38 NE2d Mass as indeed was done by employees some of the this case. the union When by by any prohibited, this or other method not method, position repre- is in a make a bona to fide claim that it majority may employees petition sents a then may employer an election, the examiner hold as employees. securing majority Thus, and the of a integral part process, an becomes of the electoral and employees bargaining repre- choice of a the free equally protected against intended to be sentative was improper influence an coercion or other before election during period pend- is called as when an election is ing. charge § 16 that the
The second of violation of employer employees picketed at the for- Union purpose compelling, place of business for mer’s influencing intimidating, coercing join charges a This violation the third Union. limiting reads sentence of 16 which “Without picketing purpose foregoing for the acts, unlawful intimidating, coercing influencing compelling, an or employe employer join organization a labor prohibition section.” shall be a violation this enough employers to cover of both broad employees. provisions purpose
The obvious of all these tois policy expressed “employes § 2 that effectuate right reject organiza- shall have the to select or labor seeking represent bargain- claiming or them in tions collectively wages, ing employers concerning their employment, hours and other terms and conditions of provided right Act.” in this The exercise of this subject is not to undue to be restraints either em- organization. ployer, employee, labor *26 purpose picketing, One as found the ex get employer sign a aminer, was “to the to union con employees tract and to have all the become union mem ’’ support bers. There was substantial evidence to that finding. examiner stated that The also “the evidence there coercion, is not conclusive that was influence activity prohibited §16.” This other which would be meaning finding of the statute. It is not a within the duty part find that evidence is no of the examiner’s to pass upon His function is to the is not “conclusive”. weight and to find in accordance of the evidence say (2). §12 preponderance that the the thereof. To particular for is, a issue is not conclusive evidence on say nothing, purposes judicial review, to for the way determining a from such statement court has no judgment what was the of the examiner as to where preponderance question. the of evidence lies on that opinion, notwithstanding
inBut, our the examiner’s only § conclusion that the violation was of find- 17, his ing, supported by ample purpose evidence, one picketing get sign employer the was the “to to a union finding contract” is in a of a effect violation of the provision Picketing § purpose final of 16. for the compelling employer sign providing to a contract only employ that he will members of the union has for purposes compelling one of its the of the nonunion em- join ployees picketing accomplishes If union. purpose brings employer its to his knees and signs join contract, he must the union jobs. or lose their The final of 16, as we con- sentence just apply intended to it, strue was such conduct. The question right then arises: Is this a limitation on the picket legislature may impose which the without violating proceed Fourteenth Amendment? question light in a consideration of that of recent Supreme decisions of the Court the United States previously reviewed. Carpenters Rit Joiners Union America v. (1942), L ter’s 315US ed 62 S Cafe, 722, 86 Ct injunction against picketing sustained a Texas shop closed in these circumstances. Bitter into entered building a contract for the construction of mile and away pro a half from the cafe of which he employed prietor. The contractor nonunion labor. The although picketed union Bitter had no cafe, contro employees. versy Texas with his court held that was a violation of the state’s anti-trust Cоurt, Supreme affirming and the said law, “forbidding conscription neutrals, the cir *27 represents cumstances of the case before Texas the us, prevailing, probably policy unanimous, the the of power of the an instance This was “but states.” open permissible contest limits of the to set the State as claims “Where, here, industrial combatants.” to speech on met with claims behalf of free on behalf regu- impose authority reasonable the state to of the community protection a whole, of the for the lations plain.” speech duty to free this As Court said: court working- by peaceful picketing “It is true that grievances. As a means
men communicate their
dispute, peaceful
communicating
of a labor
the facts
right
may
phase
picketing
constitutional
be a
pick-
recognition
peaceful
But
of free utterance.
eting
speech
imply
not
of free
does
as an exercise
power
confine the
must
to
the states
be without
that
directly
sphere
related to
to that
of communication
dispute.
area
Restriction of
to the
the
the
industry
dispute arises
which a labor
within
to the
open
disputants other traditional
leaves
deny
the states the
communication. To
modes of
power
tution the notion
line is to write into the Consti-
to draw this
every
peaceful
instance of
any
picketing—anywhere and under
circumstances
controversy
necessarily
phase
which
—is
picketing.
provoked
Proc-
Such a view
Due
compel
would
the states to allow
ess Clause
disputants
episode
particular
con-
industrial
having
script
either the dis-
no relation to
neutrals
(315
industry
pute
it arose.”
US
which
728.)
Storage
Empire
Giboney
Co.,
& Ice
US
In
(1949), the initial con
L
munity speech writing integral part to used as in violation conduct of a valid criminal statute. reject (336 498.) the contention now.’’ US v. Hanke, Teamsters Union L US ed (1950), 70 S Ct ALR2d 631 773, 13 sustained an in junction Washington against picketing of the state compel they to owners of businesses, which conducted employees, shops. Avithout to become union The court permissible Washington said that it was for the state of preferred, determine should to which “the union or self-employer (339 475). a in such a situation” US “Washington here concluded”, the court said, “that, though [the even the relief afforded Hanke and Cline self-employed persons] upon entailed restriction com sought convey through munication that the unions picketing, important safeguard it was more the value placed upon self-employers, leaving which the State all open other of communication channels to the union” (339 477). US With that determination the court re saying fused to “Mindful we are a interfere, that phase communication, is we cannot find Washington has offended the Constitution.” Senn Layers (in supra ap which Union, Tile Protective peared dictum of Mr. the celebrated Justice Brandéis groundwork pick- which laid the the doctrine that eting constitutionally protected under some circum- stances), distinguished was case because right picket self-employed person compel him to join granted by a union was the law of Wisconsin, Washington picketing. whereas law forbade such following quoted: from sentence the Senn case was permit “Whether wise for the State to [that picket per- self-employed unions to do so is, to question son] public policy—not its our concern” (301 481). US The court said: * * * *29 Hughes Superior as in “Here, v. Court picketing we with must start the fact that has while ingredient dog of communication it cannot
matically equated constitutionally pro the with speech. tected freedom -of reflect Our decisions recognition hybrid.’ picketing is ‘indeed a Supreme Understanding the Court Freund, On (1949). Supreme See also In Defense of Jaffe, Picketing The effort Doctrine, Court’s Mich. L. Rev. 1037 (1943). in the cases has a been to strike protection balance constitutional between picketing in element communication and ‘the power permissible of the State to set the limits of ’ open contest to industrial combatants. Thornhill v. judgment A Alabama, U.S. 104. State’s on striking subject a such balance is course to the limitations the Fourteenth Amendment. Embrac ing judgment a as such does, however, State’s policies, depend social and economic which in turn knowledge appraisal on of local social and eco judgment nоmic factors, such on these matters bearing weighty this comes to Court of re title spect.” (339 474.) US It said: was further require
“Nor does the Fourteenth Amendment prohibition by voluntary Washington acqui- also escence in demands union in order that may prohibit right it choose to to secure sub- through picketing. abstaining mission In from inter- voluntary agreements ference a State any may rely In not for event, on self-interest. it is judgment regu- question a to State’s this Court only conspicu- lating evil where an seems to most 479.) (339 ous.” US Employees Building International Service Union (1950), L94 ed 70 S Ct Gazzam, 339 US arising Washington. It close is another case comes injunction question us. An issued before to now petitioners “endeavoring compel enjoining from employees join plaintiff his the defendant to coerce designate repre union as their union or to defendant bargaining, by for collective sentative operated plaintiff.” premises Plaintiff a small hotel Washington. Representatives of hotel Bremerton, organizing upon him his em the union called about sign ployees, the union and asked him to a contract with require require employees to him to his which would plaintiff join answer of the in substance the union. The willing sign if he would be contract was that gave join employees the union. the union He wished permission freely representatives and solicit to visit membership. employees the end the his In sign join plaintiff declined to and the refused to require ground him that that would on the contract *30 join contrary to state a union his to coerce Supreme Washington that the held law. Court The public picketing objective violative of the the was of employee’s against policy of an choice the coercion picketing representative, bargaining and that ground. enjoined The on that narrow should be injunction Supreme such an held that Court speech. guarantee The court of free violative of said: part picketing inis has said that “This Court speech guaranteed right of free an exercise Employees Cafeteria Federal Constitution. Pastry Bakery Angelos, & 293; U.S. 320 v. Union Helpers Wohl, Local v.
Drivers & U.S. 769; Swing, American Federation of Labor v. 312 U.S. 321; Carlson v. Thornhill California, U.S. 106; U.S. Layers Tile Alabama, 88; v. Senn v. Union, picketing speech than 301U.S. 468.But since is more quo a far establishes locus has more inducing potential for action or nonaction than the message pickets convey, this has not Court hesi uphold tated to a state’s of acts and restraint con right picket an duct which are abuse of the rather peaceful publicity.” than a means of and truthful (339 536) US Swing distinguished ground case was on the in that case court struck “this down State’s re- picketing solely straint of based on the absence anof employer-employee relationship” (italics (339 added) 539). US Hughes Superior
In Court, 339 US 94 L ed (1950), Supreme 70 S Ct Court sustained injunction against picketing by group on carried “Progressive against called Citizens America” grocery proprietor purpose of a store for the of com- pelling negroes quit it to hire as white clerks or were proportion negro transferred until the clerks to approximated proportion negro white clerks white customers. The basis of the decision is found in opinion: sentence this cannot “We construe the precluding Due Process Clause as California from securing respect policy against involuntary for its em- systematic ployment prohibiting pick- on racial lines ’’ eting (339 policy. 466.) that would subvert such US Concerning picketing speech сourt free said: “* * * picketing But while is mode com- inseparably something
munication it is more and more than free different. Industrial ‘is speech, patrol particular since it involves locality very presence picket of a and since line may quite another, induce action one kind or irre- *31 being spective the nature of the ideas which joined by Douglas, Black Mr. Justice disseminated.’ Bakery Pastry concurring Murphy, & JJ., and Helpers 775, Local v. 315 U.S. Wohl, Drivers & 776. newspaper, in a or Publication distribution may convey or same information circulars, charge patrolling picket a as do make the same line. those very purpose picket But the influences, of a line is to consequences, produces dif- exert and it from other of communication. The ferent modes loyalties responses by picket evoked and exacted flowing 464-465.) appeals from are unlike those lines ’’ (339 printed word. US again pointed necessary out that it It was go way employer all for the state to forbid voluntarily union from what the was restrained to do forcing point him do. said: On this court compulsive inherent
“If because of the features beyond aspect picketing, communica- in tion as an mere appeal enjoin a State chooses to reason, submission to a demand for em- to secure ployment proportional origin the racial of a it need not forbid the business, then customers quota system employer adopt of his own required A free will. State is not to exercise its reasoning. basis of The intervention on the abstract logical symmetry commands neither Constitution ’’ (339 principle. 468.) exhaustion of a nor US 10 v. L Graham, Local Union No. 345 US 97 ed (1953), Bight involved the 73 S Ct to Work Virginia. policy the state of of the stat- Statute of by Virginia’s highest ute as summarized court is as follows: provides in substance that neither member- “It ship non-membership in a labor union shall be nor employment; that a
made a condition of limiting employment contract against
to union members is public policy; person employment denied he of a because is either member union not a *32 right of of a union shall have a action for member damages.” objective Virginia The court found that an of de- conducting picketing prevent to non- fendants was building worldng on the of a union from city under a contract with the of Richmond and school injunction. Supreme The issued Court sustained the injunction, saying: findings upon trial court,
“Based of the we picketing have a undertaken and ease which pur- carried on at least one of its substantial poses policy in conflict with the declared of Vir- (345 ginia.” 201.) US argument injunction court The answered the that the by citing violated the Fourteenth Amendment its re- cent decisions. foregoing directly, all decisions involve power regulate picket
and
vindicate, the
to
states
ing
promotion
public
for the
In
welfare.
addition,
prohibits
it is now
that a
established
state
which
law
any person
opportunity
denial
to
of an
to obtain
employment
or retain
because
or is not a
he is
mem
organization,
employers
ber of
labor
and
to
forbids
agreements obliging
into
enter
contracts or
themselves
persons
employment
they
exclude
from
because
organization
or are not
of a labor
members
does not
against
by abridg
offend
the Fourteenth Amendment
rights
ing
speech
assembly.
of free
Lincoln
Labor
v.
Iron
Federal
Union Northwestern
and Metal
335
L
Co.,
212,
US
ed
251,
S Ct
6 ALR2d
American
473;
Federation
Labor American
Sash
Company,
& Door
L
335US
93 ed
inconsistencies Court applying guarantee speech freedom of picketing, represent later whether decisions a de- parture from the doctrine of the Thornhill and Carlson enlarging cases in the direction of the allowable area of beyond state control of limits which those perhaps, decisions seemed, foreshadow. As to these Supreme “In Jaffe, matters see Picketing Defense Court’s supra; Doctrine”, Newman, The Law of Labor A 91-104; Forkosch, Relations Treatise on “Picketing Labor Law §198; Teller, Free Speech,” “Picketing L Rev 180; Dodd, Harv Speech: Free A L Rev dissent”, 513; Teller, Harv “Picketing Speech: Reply”, L and Free A 56 Harv Rev 532.
Regardless conflicting views of scholars and text questions, Supreme writers about these the de- Court fully sustain the conclusion of the court in cisions Stapleton supra, Supp F Mitchell, v. 60 61, that “when weapon used an economic in the field of industrial technique, speech, press or as relations coercive subject assembly regulation to reasonable in the are public respect-the pri- in interest and state is mary judge required of the and it is not to need, wait danger community until the which it seeks to present’.” Compare avoid is ‘clear American Douds, Association v. 339 382, Communications US L 94 ed 70 674. also v. 393-400, 925, See, S Ct Saveall 322 2 ALR2d Demers, 70, 74, 12, 1190; Mass 76 NE2d America, Markham & Callow v. Inter. Woodworkers supra, arguments like an For, Or 578-580. employer employees, legend directed to his on the by picket “may banner carried have a force inde- pendent persuasion”: Judge in Learned Hand Co., National Labor Relations Board Federbush 954, F2d 957. L Collins, 323 US 89 ed 516, 430,
Thomas v. S Ct by respondents, rightly con 315, not, cited when opposed conclusion. That did sidered, to this case right speech. involve but the make It was Rutledge, in that context that Mr. Justice who wrote majority, opinion for the to the referred “clear present danger” (323 530). And Mr. test US Jus Douglas, concurring opinion, pointed tice in his out saying, may required “No one be distinction, speak. in obtain a license order to But once uses the he power men economic which he has over other and their jobs doing their more than action, influence he is exercising speech protected the freedom of the First employer That is true he Amendment. whether employee.” (323 544.) again or an in US And Virginia National Labor Relations Board v. Electric Co., & Power L 469, 477, US 86 ed 62 S Ct question alleged prac where the related to the unfair employer, through tices of an Mr. court, Justice Murphy, opin author Thornhill and Carlson employer said in ions, “The this case as free now any may as ever to take side it on choose this contro certainly, though versial issue. But, conduct, evidenced may part speech, amount, connection with other meaning to coercion circumstances, within the [National Relations] Labor Act. If the total activities employer employees of an restrain or coerce his their free then choice, those entitled to protection of the Act.” cannot think that this *34 Douglas says, equally ap Mr. doctrine, as Justice is not plicable organ to the “total a activities” of labor ization. legislature might prohibited
Since the have altogether Burgers the execution of a contract between making membership the a con Union, and the Union (Linсoln employment dition Federal Labor v. of Union Co., Northwestern Iron and Metal American Federa- Company, tion Labor v. Americam & Door Sash of supra) violating both it that it could, follows without prohibit taking Fourteenth Amendment, coercion, the picketing, employer impact the form of of the and the inevitably upon employee of which would fall compel prohibi the execution of such contract. The picketing having object tion of an such is the exercise power outright of a lesser than the condemnation of shop closed And contracts would been. the state have obligation is under no outlaw contracts power. order to exercise the lesser Teamsters Union v. supra; Hughes Superior supra. Hanke, Court, The legislature has determined these cir pro cumstances is substantive evil and should be part Whether that determination was the hibited. say. wisdom it is not this court to At the same time .for legislature guarded rights employees has by providing through supervised a means a state elec legally tion tó have it determined a union, whether claiming represent majority employees, actually represent does them and their is entitled to be agent purpose entering exclusive for the into collec bargaining agreements. legislature tive under has protect taken to in the free exercise of right bargaining agent by pro selection of a hibiting coercion of that an choice, whether em ployer, anyone employee, dealing else. We are judgment here deliberate of the state of Ore gon, acting through legislative branch, its on an im portant phase problem relationship management. judgment, Supreme labor and Such a embracing has said, Court United States policies, “a social economic does State’s which in depend knowledge appraisal turn on of local social “bearing and economic factors” to that court comes weighty respect”. title of v. Hanke, Teamsters Union
369
supra. So, likewise, the law comes to this court
awith
strong
validity,
presumption
per-
of
and we are not
invalidity
mitted
void
to declare it
unless
be shown
beyond
Anthony,
a reasonable doubt.
179
State v.
Or
The most upon general subject Court of the United States of conception duty power, that court’s of its when applying the test of the Due Process of Clause legislation, Amendment to Fourteenth state the fol opinion Douglas, lowing speak from the of Justice Mr. ing Optical court, for a unanimous Williamson v. Lee 348 483: Oklahoma, US day gone when this
“The
Court uses the Due
Process Clause of
Fourteenth Amendment to
regulatory
laws,
state
strike down
business and
they may
conditions,
industrial
improvident,
because
be unwise,
harmony
particular
out
a
with
thought.
school of
v.
York,
See Nebbia New
291U.S.
502;
Hotel
v. Parrish,
West Coast
Co.
379;
U.S.
Nebraska,
v.
Olsen
Lincoln
236;
U.S.
Union v.
Family
Co., 335
525;
Northwestern
U.S.
Daniel v.
Day-Brite Lighting,
Co.,
220;
336 U.S.
Inc. v.
Ins.
emphasize again
Missouri, 421.
U. S.
We
what
in Munn
Illinois,
Chief Justice Waite said
94 U.S.
protection against
by legisla-
‘For
113, 134,
abuses
people
polls,
tures the
courts.’
must
to
resort
not to the
”
holdings
highest
In view of the
court of
injunctive
may
granted by
the nation that
relief
against picketing
state court
which violates the state’s
policy
regard
forcing employees
joint
with
union
through
the coercive effect of
em
(the
cases),
ployers
Gazzam and Graham
and the other
decisions of that court to which we have called attention
indicating
large
in the
measure
freedom
states
policies
respect
and enforce their own
establish
regulation
picketing,
say
§
cannot
we
concluding
particularly
of the 1953
Act,
sen
tence
unconstitutional.
hold that
thereof, is
prohibitions
rights
of 16 violate no fundamental
*36
supporting
decisions
this
the
State
view
Union.
Retail
Ala
Union,
Tri-Cities
Clerks’
258
Klibanoff
479,
(1953),
64
So2d 393
and Blue Boar
Co.
Cafeteria
Employees
v. Hotel & Restaurant
& Bartenders Inter.
(Ky)
(1952),
L
Union,
834,
As of the examiner em- disclosed joined ployer discharged employees they because discharge any and threatened to others Union who join. May, should This occurred before time, seem, Act went into effect. At would restraint against was protected judicial statute On anti-injunction (OES 662.010-662.130). this Act, which July 21,1953, pursuant proceed- into and an cоmmenced, effect, was went ing entirely situation then which claimed emerged. Union, new majority to have could have among employees, an em- called for election which the discharged had vote, would have under ployees right ‘‘ shall (2) employee any include individual whose has ceased as a or in of, work connection consequence current labor or because of ac- with, any dispute any tion declared to be unlawful” Act. But the em- by the could not demand an election because the ployer Union had served no notice that it claimed to written repre- sent a majority employers And, if the (§3). then employer discriminating against employees activities, of their union could Union have because *37 the examiner filed with and obtained a cease- charges and-desist order. The Union, however, taking the Act unconstitutional in its position en- chose to ignore its continue with tirety, provisions, when were filed and, charges it, the picketing, against entire on constitutional challenge proceeding This, course, was the Union’s grounds. privilege. it turns Act is in But, out, as large part valid, and, has we been, assume, still, Union violating one of its provisions. 1953, commenced suit in the
Early
July,
Burgers
for Lane
County
enjoin
Circuit Court
the Union
from further
"While the suit was
picketing.
pending
offered in
settle
attorney
writing to
the con-
Burgers’
an election under
troversy by
supervision
commissioner or the labor
when
examiner,
labor
one
into a union se-
by entering
should be appointed,
it
contract with the Union if
election
curity
by majority
employees
should he selected
a
bargaining agent.
expressed willing
their
The offer
a
persons employed
ness that
at the restaurant at a time
pre
to be selected
Union within week or two
ceding May
permitted
(ap
25,
would be
1953,
to vote
parently
including
discharged
affiliating
thus
those
Union),
might
with the
and that the Union
determine
persons employed
May
whether
since
like
would
permitted
Burgers
be
wise
to vote.
further offered to
sign
might
agreed upon
such contract as
be
aas
result
negotiations
being
then
carried on between
Eu
gene Bestaurant Association and the
Union.
rejected
Union
the offer for the reason that the em
ployer had announced that under no circumstances
discharged employees
would the
of
reinstated, but
negotiations
employer.
fered to enter into
with the
If
suggested
it should be
Act
is “one sided” be
provision
cause it fails to
include
under which the
examiner could order reinstatement of
dis
charged
ground
in violation of
that would not
be a
for the court to refuse to
enforce
cease-and-desist
unobjectionable.
order otherwise
American Federa
Company,
tion
v.
Labor
American
& Door
Sash
supra, 540-543;
US
National Labor Relations Board
Laughlin
Corp.,
&
Jones
Steel
1, US 81 L ed S Ct
108 ALR1352.
objection
picketing may
Nor is it a valid
that the
part
purpose,
have been
for a lawful
since
been
has
“undertaken and carried on
at
least one of its
purposes
substantial
in conflict with the declared
policy” of this state. Local Union No. 10 v. Graham,
supra; International Brotherhood
*38
Electrical Work
of
supra,
NLRB,
ers v.
NLRB
700;
US
Denver
v.
Building
supra,
&
Council,
Const. Trades
It is the conclusion that a court, therefore, reciting picketing by decree should entered that the premises appellant the Union the business o.f Burgers policy Oregon inis violation of as de- (Oregon clared in 662.750 723, ORS Laws ch 1953, 16), ordering § and and the Union to cease desist from picketing. Oregon
Claimed
Constitution,
Violations of
IV,
Article
20 and 22
%%
finally
remaining grounds
We consider
two
upon
validity
respondents
which
assail the
of the Act.
They assert that the title
because it does not
is defective
Oregon
pro
Norris-La
Act,
mention
Guardia
ap
§
“shall
visions of
it is stated in
not be
which,
20,
violating
plicable” to
Act,
claimed,
the 1953
it is
thus,
§ 22
and that the Act
IV,
constitution,
of the state
Art.
comply
of the constitution
does
with Art. IV,
Act without
because
amends
Norris-La Guardia
length.
setting
publishing
think
full
forth and
it at
repeals
lack
The Act
cer
these
merit.
contentions
provisions
im
Act
of the Norris-La Guardia
tain
injunction against picketing
plication.
It authorizes
Norris-La
circumstances where the
Guardia
in certain
repugnance See
them. The
clear.
Act forbids
Bridge
Bellington,
River-Longview
Co. v.
Columbia
cases
cited.
P2d
there
413, 420-421, 13
140 Or
manage
“Relating
labor
title,
The words
providing
picketing;
regulating
reme
relations;
ment
creating
agency
of this
administration
dies,
adequate
sufficiently comprehensive Act”,
subject
Kahn
ex rel
expression
Act. State
title need
P 238. The
534, 266
Tazwell,
125 Or
v.
Act
contained
all matters
an index to
not be
requirements
the constitutional
meet the
order
Oregon Liquor Con
City
Falls
provision.
Klamath
P2d 564. Without
83, 95,
Commission, 146 Or
trol
*39
complete. Repeals by implication
§ 20 the Act is
prohibited
§
Art.
not
and 20 mere sur-
IV, 22,
is
plusage. In re
Commitment,
Idleman’s
TOOZE, J., I cannot concur the result reached in the ma- opinion. jority agree original all section 17
"We act (ORS 662.770) is unconstitutional and void. That sec- apparently integral part tion of the law is vеry gist Being ordinarily so, statute. would unconstitutionality be held its affected entire rendering the whole unconstitutional. act, But the rea- majority soning opinion convinces that, me de- spite unconstitutionality of this section of the stat- the remainder the act ute, could stand were that the only objection constitutionality. to its (ORS 662.750), original-
As to section 16 of the act I ly constitutionality. entertained serious doubt as its However, the masterful discussion contained in the majority opinion respecting validity of this section, although entirely convincing me of that section’s constitutionality, has nevertheless, removed most of my original willing doubt, what little I am remains validity. to resolve favor my opinion, objection real However, to the objection glossed statute,—an that cannot be over—lies inconsistency positive in the direct and and contradic- provisions (ORS 662.780) tion between the of section 18 (ORS and those sections and 14 662.710; 662.730), particular, 662.720; and, in those of sec- 662.720). (ORS that this incon- I am convinced tion 13 sistency act unenforceable. renders the entire complete procedure provide in- 13 and
Sections hearing volving A of sections 16 17. violations makes examiner. examiner first held before the findings his in accordance and enters order fact, provided such order is review of therewith. Judicial upon transcript proceed- but such review for, *40 objection urged ings No before the examiner. not before may urged re- before the court on the be the examiner by important, the court is-bound the most view, and, any findings the if there is fact made examiner of support The them. evidence in the record substantial permitted not to hear additional evidence. court is language used in sections not tried de novo. The case is unambiguous. positive. plain It 14 is is and 12,13, and clearly legislature manifest from the is The intention of employed. In there is circumstances, the words it statutory of construction. no for resort to rules occasion respect language said of And what is with applies equal to that sections and 14 with force 12, 13, used in section 18. part, provides: (1) of com in Courts Section power pro petent jurisdiction enforce the shall have encompasses [which visions 662.610to 662.790 of ORS by appropriate every act] or order decree. section of given precedence proceedings all shall over Such be inconsistency no far, civil cases.” Thus there is other provisions 14. The statute 13 and with the sections 662.610 to then continues: “No under ORS relief except hearing given by any after be court 662.790shall oppor testimony open court, in with witnesses allega support tunity in cross-examination, complaint petition under and oath, made of a tions * * testimony opposition *.” if offered. thereto, in ambiguity in those (Italics supplied). no There is words. are and They positive mandatory. “No relief” under ‘‘ ’’ shall act court after given any hear except ing court, of witnesses in testimony open cross-examination. opportunity “Any court” clearly would include court mentioned in sections 13 and 14. It obvious that this perfectly is sec provision tion conflicts directly provisions with the section the two I 13; recognize sections irreconcilable. soundness of the rules of construction mentioned majority opinion, frankly concede that is the all the court in instances to duty of construe statute can whole, reasonably and if it do so, to harmonize which on their face to be provisions appear inconsistent But that does contradictory. not mean that any is justified court used in ignoring plain language clear any part statute, its its meaning, It attempt uphold statute. the court’s function to make which is bad. good That plainly In legislative function. this purely case, by no rule construction can statutory we reconcile the irrecon To we cilable. this must one uphold statute, do of two hold that things: (1) the last 18, being section section *41 act, sections and supersedes rule extremis; never construction that applied except read a of section 18 part entirely out (2) act, or amend it thereto by adding conditions expressed not therein.
The seems to hold majority that opinion section simply an additional method for provides enforcing act, but provisions its words positive hereinabove quoted deny interpretation. to so inter- Moreover, portion of section pret emphasized would supra, reading into statute require qualifi- conditions cations appearing therein, thereby would, amend section. is a That effect, matter exclusively for the legislature. provides:
ORS 174.010 “In the statute, construction of a the office of judge simply the is, to ascertain and declare what in substance, terms or contained therein, not to insert been omitted, what has or to omit what has provi- inserted; been sions or are several where there particulars possible, such construction is, if ’’ give adopted (Italics sup- to be as will effect to all. plied.) disagree statutory I do not with the rules for con- majority opinion, struction stated in the Ibut do dis- agree application with their instant statute inso- provisions inconsistency, far as its in conflict. This coupled invalidity with the of section 17, and the some- validity what doubtful 16~ section renders the entire statute uncertain, indefinite, and unenforceable. judgment of the trial court should affirmed.