Gilbertson v. Culinary Alliance and Bartenders' Union, Local No. 643, A.F. of L.

• Decision Date: 30 March 1955
• Parties: , 36 L.R.R.M. (BNA) 2001, 27 Lab.Cas. P 69,089 Julius GILBERTSON and Carmen A. Gilbertson, dba Paul Bunyan Burgers; Fred G. Scherer, Labor Examiner of the State of Oregon, Appellants, v. CULINARY ALLIANCE AND BARTENDERS' UNION, LOCAL NO. 643, A. F. OF L.; American Federation of Labor, and unincorporated association, George Meany and William F. Schnitzler, individually and as president and secretary, respectively, of said American Federation of Labor; Oregon State Federation of Labor, an unincorporated association, J. D. McDonald, Cecil W. Jones, Alice Wesling and James T. Marr, individually and as president, first vice-president, second vice-president and secretary, respectively, of said Oregon State Federation of Labor; Oregon State Industrial Union Council, Congress of Industrial Organizations, Respondents.
• Court: Oregon Supreme Court

Page 632

282 P.2d 632

204 Or. 326, 36 L.R.R.M. (BNA) 2001,

27 Lab.Cas. P 69,089

Julius GILBERTSON and Carmen A. Gilbertson, dba Paul Bunyan Burgers; Fred G. Scherer, Labor Examiner of the State of Oregon, Appellants, v. CULINARY ALLIANCE AND BARTENDERS' UNION, LOCAL NO. 643, A F. OF L.; American Federation of Labor, and unincorporated association, George Meany and William F. Schnitzler individually and as president and secretary, respectively of said American Federation of Labor; Oregon State Federation of Labor, an unincorporated association, J. D McDonald, Cecil W. Jones, Alice Wesling and James T. Marr, individually and as president, first vice-president, second vice-president and secretary, respectively, of said Oregon State Federation of Labor; Oregon State Industrial Union Council, Congress of Industrial Organizations, Respondents.

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 12, 1955.

Decided March 30, 1955.

William J. Masters, Portland, Masters & Masters, Portland, on the brief for appellants Julius and Carmen A. Gilbertson.

Harold W. Adams, Jr., Asst. Atty. Gen., Salem, Robert Y. Thornton, Atty. Gen., on the briefs, for Fred G. Scherer, appellant.

Donald S. Richardson, Portland, Green, Richardson, Green & Griswold, Portland, on the briefs for American Federation of Labor and its officers, Oregon State Federation of Labor and its officers, and Culinary Alliance and Bartenders Local No. 643, AFL, and its officers.

Woll, Glenn & Thatcher, Washington, D. C., for American Federation of Labor and its officers.

Arthur J. Goldberg, Washington, D. C., and William A. Babcock, Jr., Portland for Oregon State Industrial Union Council, Congress of Industrial Organizations.

LUSK, Justice.

We have before us in this case questions of the interpretation, application and constitutionality of an act passed by the 1953 legislative assembly governing certain aspects of labor-management relations, Oregon Laws 1953, ch. 723, ORS 662.610-662.790.

The act provides for the appointment of a labor examiner with authority to issue a complaint on a charge that a person is engaged in conduct made unlawful by the Act, to hold a hearing upon such charge, and, if he finds that the charge is sustained, to issue an order requiring such person to cease and desist from the unlawful action. The examiner or any interested person may petition the Circuit Court to require the enforcement of such an order, and the court is authorized to enter a decree of enforcement. An appeal to this court from the Circuit Court's decree is provided for.

The present proceeding involves alleged unlawful picketing. The proceeding was commenced by the filing of charges with the labor examiner by an employer, Julius Gilbertson and Carmen H. Gilbertson, dba Paul Bunyan Burgers, Eugene, Oregon (hereinafter referred to as Burgers), against Culinary Alliance and Bartenders' Union, Local No. 643, A. F. of L. (hereinafter referred to as the Union) of unlawful acts in particulars to be hereinafter stated. A hearing by the examiner was had at which both parties were represented by counsel, and which resulted in findings by the examiner sustaining one of the charges and an order commanding the Union to cease and desist from picketing the employer.

Burgers thereafter filed a petition in the Circuit Court for Lane County for enforcement of the order. The court permitted other labor organizations and their officers to intervene on the side of the defendant Union, and permitted the labor examiner to intervene on the side of the petitioner. The case was submitted on demurrers to the petition, based principally on the claim that the 1953 statute is unconstitutional. The court sustained the demurrers and entered a decree dismissing the petition and the labor examiner's complaint in intervention. From that decree Burgers and the labor examiner have appealed.

At this point it is desirable to state the pertinent provisions of Oregon Laws 1953, ch. 723. We will refer to the section numbers of the law both as they appear in ORS and in the session laws for 1953. The act is entitled

'Relating to labor and management relations; regulating picketing; providing remedies; creating an agency for the administration of this Act; and repealing chapter 355, Oregon Laws 1947.'

662.610(§ 1) consists of definitions.

662.620(§ 2): 'Except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, employes shall have the right to select or reject labor organizations seeking or claiming to represent them in bargaining collectively with their employers concerning wages, hours and other terms and conditions of employment, as provided in this Act.'

662.700(§ 10) establishes as a state agency a Division of Labor.

Elections under the supervision and control of a labor examiner.

662.630(§ 3): 'Whenever any labor organization which has not within the last preceding twelve-month period been recognized or certified as the bargaining agent of an appropriate bargaining unit claims to represent a majority of the employes in such appropriate bargaining unit for the purpose of collective bargaining and in writing serves notice of such claim on the employer, the employer, or any of his or its employes, or a labor organization may petition, in writing, the examiner to hold an election by secret ballot at an appropriate place to determine whether or not the employes desire to be represented by a labor organization. Such petition shall be filed with the examiner. If he determines the unit is appropriate he shall proceed forthwith to cause an election to be held by secret ballot of the employes in the unit. If the appropriateness of the unit as set forth in the petition is disputed by an interested person the examiner shall determine the appropriate unit after notice and hearing. Employes in the appropriate unit shall be eligible to vote at said election. A majority vote of those voting in the unit shall determine whether or not a labor organization has been designated a bargaining agent. The examiner shall certify that such appropriate unit either has or has not selected a representative for collective bargaining according to the results of the election, and shall notify interested parties. No election shall be directed by the examiner in any bargaining unit or any subdivision thereof within which during the preceding twelve-month period a valid election has been held.'

662.640(§ 4) is an administrative provision relative to the examiner's determination of the appropriate bargaining unit, 662.650-662.690(§§ 5-9) are all administrative and procedural provisions relative to hearings before the examiner, as is 662.710(§ 12). Section 12 authorizes the examiner to issue and serve a complaint upon charges that a person has or is engaged in action declared to be unlawful by the Act and to conduct a hearing thereon. We quote subdivision 2 of § 12:

'A transcript of the testimony taken by the examiner shall be made and filed in the office of the examiner. Thereafter, in his discretion, the examiner upon notice may take further testimony or hear argument. If upon the preponderance of the testimony taken the examiner is of the opinion that any person named in the complaint has engaged in or is engaging in any action declared to be unlawful by this Act, the examiner shall state his findings of fact, serve a copy of the same on the interested persons and issue and cause to be served on the person named in the complaint an order declaring such election invalid or requiring such person to cease and desist the unlawful action, or both. In the event the election is declared invalid the examiner shall cause another election to be held. If upon the preponderance of the testimony taken the examiner is not of the opinion that the person named in the complaint has engaged in or is engaging in any action declared to be unlawful by this Act, the examiner shall state his findings of fact, serve a copy of the same on the interested persons and issue and cause to be served on the person making the charge an order dismissing the complaint.'

662.720(§ 13) grants a review by the Circuit Court to any person aggrieved by a final order of the examiner and prescribes the procedure therefor. It provides that 'the aggrieved party shall file in the court a transcript of the entire record of the hearing before the examiner, including the pleadings and testimony upon which the order of the examiner was entered', and empowers the court 'to make and enter upon the pleadings, testimony and proceedings set forth in such transcript a decree enforcing, modifying and enforcing as so modified, or setting aside the order of the examiner. No objection that has not been urged before the examiner shall be considered by the court. The findings of the examiner with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The jurisdiction of the court shall be exclusive and its decree shall be final, except that the same shall be subject to review on appeal as in the case of any other appealable decree.'

662.730(§ 14): 'The examiner or any interested person may petition the circuit court of the county in which a hearing has been held to require the enforcement of any order of the examiner made in connection with such hearing. Excepting for the time of filing, the proceedings thereunder shall conform to those set forth in ORS 662.720 and the court shall have authority to make any appropriate order or decree in addition to those therein set forth. The orders or decrees of the court shall be final, except that the same shall be subject to review on appeal as in the case of any other appealable order or decree.'

662.750(§ 16): 'It shall be unlawful for any person directly or indirectly to compel, intimidate, coerce or discriminate against any employe in the exercise of said...