Gilbertson v. McLean

• Decision Date: 17 June 1959
• Citation: 216 Or. 629,341 P.2d 139
• Parties: Carmen A. GILBERTSON, dba Paul Bunyan Burgers, Appellant, v. Robert L. McLEAN, Claude L. Davis, Rose Jensen, Audean Hartman, Margaret Loveall, Pearl Barton, Florencio Duran, Joann Duran, Doris L. Hickman, Iva M. Phoenix, Wilhelmina Hayes, Hadley Conner, Jean Conner, Clarence Young, Zelda Devine Young, Dan Rummel, Roxie Hunt, John F. Brown, Margaret Wertenberger, Gertrude (Pat) Patterson, Lester Daggett, Paul D. Sinniger, Velma Fitzpatrick, Pearl Hayes, William M. Ticer, Forest Davis, Donald Ackerman, Alma Perkins, Betty Krueback, Margaret Hughes, and Buck Davis, Respondents.
• Court: Oregon Supreme Court

Page 139

341 P.2d 139

216 Or. 629

Carmen A. GILBERTSON, dba Paul Bunyan Burgers, Appellant, v. Robert L. McLEAN, Claude L. Davis, Rose Jensen, Audean

Hartman, Margaret Loveall, Pearl Barton, Florencio Duran,

Joann Duran, Doris L. Hickman, Iva M. Phoenix, Wilhelmina

Hayes, Hadley Conner, Jean Conner, Clarence Young, Zelda

Devine Young, Dan Rummel, Roxie Hunt, John F. Brown,

Margaret Wertenberger, Gertrude (Pat) Patterson, Lester

Daggett, Paul D. Sinniger, Velma Fitzpatrick, Pearl Hayes,

William M. Ticer, Forest Davis, Donald Ackerman, Alma

Perkins, Betty Krueback, Margaret Hughes, and Buck Davis, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 4, 1959.

Decided June 17, 1959.

W. J. Masters, Portland, for appellant. On the briefs were Masters & Masters, Portland.

D. S. Richardson, Portland, for respondents. On the brief were Green, Richardson, Green & Griswold, Portland.

LUSK, Justice.

This is an action to recover damages for unlawful picketing alleged to have been engaged in by the defendants. The circuit court sustained a demurrer to the amended complaint, plaintiff refused to plead further, and the court entered a judgment for the defendants from which plaintiff has appealed. The amended complaint (omitting formal parts and the prayer) reads:

'II.

'That plaintiff, Carmen A. Gilbertson, is, and at all times hereinafter mentioned, has been engaged in the operation of the restaurant business known as Paul Bunyan Burgers, located at 815 West Sixth Avenue in the City of Eugene, Lane County, State of Oregon.

* * *

* * *

'IV.

'That defendants knowingly and intentionally interfered with the operation of plaintiff's business by causing persons to walk back and forth and picket and patrol on the sidewalks in front and along the side of plaintiff's place of business during the hours plaintiff was open for business, at all times between July 23, 1953 and May 12, 1955, with signs stating that plaintiff's place of business was unfair and by causing such persons to talk with the business invitees, customers and prospective customers of plaintiff with the purpose of influencing said business invitees, customers and prospective customers to cease and refuse doing business with the plaintiff, and by causing letters to be sent to customers and other persons with whom plaintiff was doing business for the purpose and intent of influencing said persons to cease doing business with the plaintiff.

'V.

'That said conduct and picketing of plaintiff by defendants was conducted by the defendants intentionally for the purpose of reducing the income and profits of plaintiff's business and for the purpose of thereby forcing plaintiff to sign a contract with the Culinary Alliance and Bartenders' Union, Local 643, requiring that all of plaintiff's employees join the Union and for the purpose of compelling, intimidating, coercing and influencing employees of the plaintiff to join Culinary Alliance and Bartenders' Union, Local No. 643.

'VI.

'Defendants committed the above acts willfully and maliciously.

'VII.

'That the income and profits of plaintiff's business were reduced and plaintiff's business was injured and plaintiff has been damaged by reason thereof in the sum of $51,052.20.

'VIII.

'That plaintiff is entitled to punitive damages in the amount of $5000.00.'

The conduct of which the plaintiff complains is made unlawful by ORS 662.750, which reads:

'It shall be unlawful for any person directly or indirectly to compel, intimidate, coerce of discriminate against any employe in the exercise of said employe's free choice in selecting or rejecting a labor organization as the representative of employes for the purpose of collective bargaining, or directly or indirectly to compel, intimidate or coerce any employer or employe because employes of said employer, or of any other employer, have not selected a labor organization as their representative for said purpose. The word 'coerce' includes picketing. Without limiting the foregoing unlawful acts, picketing for the purpose of compelling, intimidating, coercing or influencing an employe of any employer to join a labor organization shall be a violation of this section.'

The foregoing section was Section 16 of Oregon Laws 1953, ch. 723, to which we shall hereinafter refer as the 1953 Act (ORS 662.610 et seq.). In Gilbertson v. Culinary Alliance & Bartender's Union, 204 Or. 326, 282 P.2d 632, we considered at length the constitutionality of the 1953 Act and held the Act in all respects valid, except Section 17 thereof (ORS 662.770), which is not involved in this case. We further held Section 17 to be severable from the remainder of the statute.

The Gilbertson case was an appeal from the decree of the circuit court which, on review of a decision of the labor examiner, reversed the latter's cease and desist order issued against the same picketing which is involved in this case. We reversed the circuit court's decision and directed entry of a decree ordering the union to cease and desist from such picketing. 204 Or. at page 373, 282 P.2d 632.

As one ground for sustaining the demurrer, the constitutionality of ORS 662.750 as well as of the entire statute is again challenged by the defendants. We decline to re-examine that question. Further support for our decision may be found in International Brotherhood of Teamsters, Local 695, A. F. L. v. Vogt, Inc., June 17, 1957, 354 U.S. 284, 287, 77 S.Ct. 1166, 1 L.Ed.2d 1347.

The essence of the complaint is that the defendants, intending to injure the plaintiff's business, picketed her restaurant for the purpose of coercing the employer to enter into a contract which would, in effect, compel her employees to become members of the union, and in order to force the employees to join the union, and that the plaintiff was thereby damaged. All this is admitted by the defendants' demurrer. The conduct described is prohibited by ORS 662.750. As nothing to the contrary is alleged, it must be assumed that the picketing was peaceful.

The general rule of law upon which plaintiff relies is that harm intentionally done is actionable if not justified. Schwab v. Moving Picture Machine Operators, etc., 165 Or. 602, 617-618, 109 P.2d 600; Heitkemper v. Central Labor Council, 1921, 99 Or. 1, 26, 192 P. 765; Restatement of Torts, §§ 766, 775; 30 Am.Jur. 85-88, Interference §§ 43-47; 31 Am.Jur. 496, Labor § 140.

There are many adjudicated cases in which the principle referred to has been applied to picketing deemed unlawful or to other unfair labor practices, and the right to recover damages for injury caused thereby sustained. Hanke v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers Union, 33 Wash.2d 646, 207 P.2d 206, affirmed 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; Adams v. Building Service Employees International Union, Local No. 6, 197 Wash. 242, 84 P.2d 1021; Safeway Stores v. Retail Clerks' Union, Local No. 148, 184 Wash. 322, 51 P.2d 372; Quinton's Market, Inc. v. Patterson, 303 Mass. 315, 21 N.E.2d 546; Auburn Draying Co. v. Wardell, 227 N.Y. 1, 124 N.E. 97, 6 A.L.R. 901. In the foregoing cases, no statutes authorizing the recovery of damages were involved.

In some of the states, statutes expressly provide for the recovery of damages or for the pursuing of all legal and equitable remedies by one injured as the result of unfair labor practices. See Denver Building and Construction Trades Council v. Shore, 132 Cole. 187, 287 P.2d 267; Edwards v. Grisham, 339 Mich. 531, 64 N.W.2d 715; and Garmon v. San Diego Building Trades Council, 49 Cal.2d 595, 320 [216 Or. 635] P.2d 473. ¹ The Labor Management Relations Act, commonly known as the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., enumerates a large number of unfair labor practices for labor organizations, id. § 158, and provides for the recovery of damages in the case of some violations, id. §§ 185, 187, but not of others.

Counsel for the defendants do not question the validity of the rule of law under consideration. Their contention is that the 1953 Act by implication forbids the recovery of damages for violation of its provisions, and that the exclusive remedy of a person claiming to have been injured or to be threatened with injury is by injunction or cease and desist order. We may observe here parenthetically that this question, so far as future application of the statute is concerned, is not of importance or interest, because the statute was repealed by the 50th Legislative Assembly and the repeal will become effective on August 5 of this year. See Clackamas Broadcasters, Inc. v. Scherer, Or., 339 P.2d 426. Repeal of the statute does not, of course, affect liability incurred for its violation during the time that it was in effect, and the question must be resolved.

The defendants rely on the accepted canon of statutory construction that 'if the statute creating a new right where none exists before provides, also, a valid remedy for the enforcement of the right created, the remedy thus given must be pursued in the enforcement of the right to the exclusion of any other remedy, provided it is an adequate one; * * *.' 1 Am.Jur. 411, Actions § 12. Also cited are 18 Am.Jur. 139, Election of Remedies § 15, and 50 Am.Jur. 593, Statutes § 596.

In 1 C.J.S. Actions § 6, p. 974, the rule is stated thus:

'Where a code or statute creates a new right or liability that did not exist at common law or under prior statutes, and also provides a specific remedy for the enforcement thereof, as a general rule such statutory remedy is exclusive, particularly when it is so denominated by the terms of the statute.'

The 1953 Act provides that whenever any one is charged with engaging in any conduct declared by it to be unlawful a hearing may be had upon such charges before an examiner who, if the charges are sustained, may issue a cease and desist order. Such order is subject to review in the circuit court, and an appeal to the Supreme Court is also provided for....