Crouch v. Central Labor Council of Portland and Vicinity

• Decision Date: 25 November 1930
• Parties: CROUCH v. CENTRAL LABOR COUNCIL OF PORTLAND AND VICINITY ET AL. [a1]
• Court: Oregon Supreme Court

293 P. 729

134 Or. 612

CROUCH v. CENTRAL LABOR COUNCIL OF PORTLAND AND VICINITY ET AL. ^[a1]

Supreme Court of Oregon

November 25, 1930

In Bank.

Appeal from Circuit Court; Multnomah County; Jacob Kanzler, Judge.

Suit by E. M. Crouch against Central Labor Council of Portland and Vicinity and others. Decree for plaintiff, and defendants appeal.

Decree modified, and, as so modified, affirmed.

This case originally was assigned on the day it was argued and submitted to the late Mr. Justice McBride. Owing to his sickness, which began early after the case was argued and continued intermittently until he passed on, it has not been decided. The case was submitted on stipulation and exhibits. The stipulation was as follows:

"On January 22, 1929, the parties filed a stipulation as to the facts controlling in this suit as follows:

"For the purpose of avoiding a trial to determine the facts herein, it is mutually stipulated by and between the attorneys appearing for the above parties, that if witnesses were called and examined the following facts would be established by the testimony, towit:

"(a) Plaintiff, E. M. Crouch, at the time of bringing this suit and for some months prior thereto, was engaged in conducting two cafes or restaurants described in the complaint and located in the City of Portland; the one on Fourth Street, the other on Eleventh Street.

"(b) In the conduct of the business, he required his help to work as follows: The chef and assistant cooks and miscellaneous help, 9 hours per day, 7 day week; and his waitresses 6 hours and 45 minutes per day, 7 day week. The compensation to the chef was $175.00 a month and a commission and his meals; to the assistant cooks $75.00 a month and their meals; to the dishwashers $10 to $15 per week and their meals; to the waitresses $50.00 per month their meals and a commission; meals are included in Union houses.

"(c) It is stipulated that no dispute or controversy of any kind or nature existed between plaintiff and any of his employees at the time this suit was brought and that none of said employees were members of defendant's unions and plaintiff was not and is not involved in a strike.

"(d) It is stipulated that plaintiff is conducting what is generally known as non-union or open-shop restaurants; and that plaintiff never contracted with any of said defendant unions. Furthermore, after plaintiff had opened his restaurants and was conducting the same, the officers and agents of the defendant unions representing the culinary arts, approached plaintiff and requested him to contract with the unions but plaintiff at all times refused so to do. A copy of said contract is hereto attached marked Exhibit 'A.'

"(e) It is stipulated that upon plaintiff's refusal to contract with said unions, defendant unions thereupon employed two women pickets, each picket wearing upon her body a sash inscribed 'Unfair to organized labor' and bearing upon said sash the names of said local unions and that said pickets paraded up and down on the sidewalk in front of plaintiff's said places of business for one-half day before this suit was brought.

"(f) After plaintiff had obtained a preliminary restraining order and served the same upon defendants, one woman paraded upon the sidewalk in front of plaintiff's said places of business and for a distance of approximately 25 feet to the north and south thereof, holding a copy of the 'Oregon Labor Press' in her hands and displaying the same to all passers-by, and that said person is now engaged in so doing. It is being stipulated that copies of said Oregon Labor Press are attached hereto marked Exhibit 'B,' and it is further stipulated that the copy of the Oregon Labor Press as of November 30 was used by said woman and exhibited by her until the 21st day of December and thereafter subsequent issues of the Oregon Labor Press were used.

"(g) It is stipulated that said woman carries in her pocket or under her arm other copies of the Oregon Labor Press and offers to sell the same to the public, and in some instances gives them away, and that said woman utters nothing other than 'Oregon Labor Press.'

"(h) It is stipulated that plaintiff has suffered damage from the foregoing acts in front of his restaurants through loss of patronage in his said restaurants and will continue to suffer damage through loss of patronage so long as said acts continue in front of his restaurants, and that plaintiff has no speedy or adequate remedy at law. And further, that defendants intend to and will resume and continue to keep said woman parading upon the sidewalk in front of plaintiff's said places of business, exhibiting copies of said Oregon Labor Press in the same manner as heretofore, unless perpetually enjoined by the court; and it is stipulated that if plaintiff would contract with said unions defendants would immediately cease in the acts herein complained of, and that at any time plaintiff agrees to pay or when it comes to the knowledge of the defendants that plaintiff is paying the minimum scale of wages for eight hours of labor as a day's work and six days of labor as a week's work by his employees, as paid and allowed by standard restaurants and cafeterias by contract with the Unions in competition with the plaintiff, the defendants will immediately cease the publications of which the plaintiff complains in this suit."

Upon motion of attorney for plaintiff judgment was entered in his favor upon the pleadings and stipulation. The errors assigned are upon the findings based upon said stipulation and exhibits.

The first assignment is the alleged error in finding of fact (e) as follows: "That plaintiff has suffered irreparable damage by the acts of the defendants as complained of in his complaint."

The second is based on finding of fact (g): "That the acts of the defendants as complained of in the complaint, are unlawful."

Third: "There is no agreed fact, exhibit or admission that defendants when or after this suit was begun contemplated or threatened to proclaim the plaintiff 'Unfair to Organized Labor.' "

Fourth: "The court erred in paragraph 3 of the injunction by enjoining the defendants from addressing plaintiff's customers or other persons about to enter its (his) restaurants for the purpose of dissuading them from patronizing plaintiff's restaurants."

Fifth: "The court erred in paragraph 4 of the injunction by prohibiting the defendants from exhibition of the Oregon Labor Press in or near plaintiff's restaurants containing any reference whatever to plaintiff or to his said restaurants."

Sixth: "The court erred in paragraph 5 of the injunction by prohibiting the defendants from adopting any means whatever to divert patronage from plaintiff's business near his premises."

BEAN J., dissenting.

W. S. U'Ren, of Portland, for appellants.

John W. Kaste, of Portland, for respondent.

COSHOW, C.J. (after stating the facts as above).

Attorneys in this case are to be commended for stipulating the facts. The law is well settled that, when the facts are stipulated, the court is bound by them, and the case must be decided upon said facts and such other evidence as may be adduced. The exhibits consist of a copy of a form for an agreement which plaintiff refused to sign and of a copy of the Oregon Labor Press showing the objectionable matter complained of by plaintiff. In the instant case no other evidence was adduced except said exhibits.

We need not look further than the Oregon Reports for authority that laborers may organize to improve their conditions both as to the machinery with which they work and other physical conditions as well as to increase the amount of their wages. Longshore Printing Co. v. Howell, 26 Or. 527, 540, 541, 543, 548, 38 P. 547, 28 L. R. A. 464, 46 Am. St. Rep. 640. That case is well considered. The opinion is exhaustive and cites numerous authorities for the conclusion expressed in the opinion. Among other things it is said in page 540 of 26 Or., 38 P. 547, 551: "It must be understood, however, that these associations, like other voluntary societies, must depend for their membership upon the free and untrammeled choice of each individual member. No resort can be had to compulsory methods of any kind either to increase, keep up, or retain such membership. Nor is it permissible for associations of this kind to enforce the observance of their laws, rules, and regulations through violence, threats, or intimidation, or to employ any methods that would induce intimidation or deprive persons of perfect freedom of action."

The acts of defendants consist of a young lady walking to and fro in front of plaintiff's restaurant exhibiting an issue of the Oregon Labor Press on which was printed in large letters almost two inches high, very black and...