Hill v. Moe

• Decision Date: 28 December 1961
• Docket Number: No. 87,No. 1689 and R,1689 and R,87
• Citation: 367 P.2d 739
• Parties: 49 L.R.R.M. (BNA) 2373, 44 Lab.Cas. P 17,379 Della HILL and O. M. Cass, co-partners, doing business under the name and style of Alaska Market, Appellants, v. Alma Lee MOE and John Doe Moe, her husband, and Retail Clerks Union, Localetail Clerks International Association, A.F.L. Labor Organizations, Appellees.
• Court: Alaska Supreme Court

Page 739

367 P.2d 739

49 L.R.R.M. (BNA) 2373, 44 Lab.Cas. P 17,379

Della HILL and O. M. Cass, co-partners, doing business under the name and style of Alaska Market, Appellants, v. Alma Lee MOE and John Doe Moe, her husband, and Retail Clerks Union, Local No. 1689 and Retail Clerks International Association, A.F.L. Labor Organizations, Appellees.

No. 87.

Supreme Court of Alaska.

Dec. 28, 1961.

Charles E. Cole, Fairbanks, Alaska, Joseph D. Holmes, Seattle, Wash., for appellants.

Warren A. Taylor and Fred D. Crane, Taylor & Crane, Fairbanks, Alaska, for appellees.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

DIMOND, Justice.

This case arose out of a labor dispute between the appellants and appellees. ¹ The court below held that it had no jurisdiction over the subject matter of the action because exclusive jurisdiction was vested by federal law in the National Labor Relations Board. Whether the court was correct is the question to be decided on this appeal.

The employer owned and operated a retail grocery store and meat market in the City of Fairbanks. In October 1954 the employees of the grocery department, who were members of the Retail Clerks Union, went on strike and commenced to picket the premises. The purpose of that action, as alleged in the complaint, was to coerce the employer to enter into a labor agreement with the union which would cover the employees of the meat department. ² The strike lasted from five to seven days, and shortly thereafter the parties entered into a collective bargaining agreement which included the meat department personnel.

In 1956 the employer commenced this action for damages. The complaint alleged that the union's activities were unlawful, that as a result of the picketing and for more than one year after it had ended the employer's customers refused to trade at the store, and that this resulted in damage to the business in excess of 100 thousand dollars. An additional 100 thousand dollars was sought by reason of purported defamatory publications made by the union in a local newspaper. Finally, the complaint asked for 50 thousand dollars each for the employers, Hill and Cass, for alleged mental and nervous strain resulting from the union's actions. At the close of the employer's evidence, the court granted the union's motion for an involuntary dismissal on the ground of lack of jurisdiction to entertain the action. This appeal followed.

Congress has vested in the National Labor Relations Board jurisdiction over labor relations matters affecting interstate commerce. ³ The extent to which this has displaced state power to deal with such matters has been the subject of a considerable number of decisions by the Supreme Court of the United States. The body of case law that developed prior to the 1959 amendments to the Taft-Hartley Act ⁴ makes it clear that, subject to certain exceptions, ⁵ an Alaska court would not have jurisdiction over the conduct charged to the union in this case if the employer's business affected commerce within the meaning of the federal act ⁶, and if such conduct were potentially subject to federal regulation. ⁷

The National Board has never exercised the full measure of its jurisdiction. It has refused for budgetary and policy reasons to take jurisdiction of many cases which involved essentially a local business in which the effect of the labor dispute upon commerce would not be substantial. ⁸ In 1950 it adopted certain standards to govern the exercise of its jurisdiction, largely in terms of annual dollar amounts of goods or services in which an employer dealt involving inflow and outflow across state lines. ⁹ These standards were raised upward in 1954. At the time this dispute arose the Board's jurisdictional criteria for a retail concern was a direct inflow of 1 million dollars, or an indirect inflow of 2 million dollars, or a direct outflow of 100 thousand dollars. ¹⁰

The evidence showed that all sales of groceries and meat were made inside Alaska. It also showed that about seventy-five percent of the stock was purchased outside of Alaska, and that this amounted to approximately 300 to 400 thousand dollars a year. The employer argues from this that since the annual dollar inflow did not measure up to the Board's jurisdictional yardstick of 1 million dollars, there was no effect on interstate commerce; and therefore the state court was not precluded from exercising jurisdiction over the union's activities.

We cannot subscribe to this contention. Early in the history of the National Labor Relations Act the Supreme Court held that there was 'no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis.' ¹¹ And in 1957 the Supreme Court refused to hold that a business could not affect interstate commerce where all sales were local and amounted to 900 thousand dollars, and where purchases from out of state amounted to 100 thousand dollars in one year. ¹² In the light of these decisions we cannot hold that the employer's business did not affect commerce within the meaning of the National Act.

The employer contends that even where interstate commerce is affected, the states nevertheless have the power to act in labor controversies where the Board has declined or obviously would decline to take jurisdiction. ¹³ The employer argues that Congress in passing the National Act did not intend to create a 'no-man's land' which would exist if the Board declined to act and if the state were powerless to act. Such an argument has been foreclosed by the Supreme Court's decision in Guss v Utah Labor Relations Board. ¹⁴ The court held there that the proviso in Section 10(a) of the act, which allows the Board to cede jurisdiction to states in certain cases ¹⁵, was the exclusive means whereby the states may be enabled to act concerning matters entrusted by Congress to the Board. ¹⁶ The court recognized the creation of a no-man's land, subject to regulation by no agency or court. But it felt that Congress had expressed its judgment in favor of uniformity, that this judgment must be respected, and that if the no-man's land were to be eliminated it would have to be done by Congress. ¹⁷

This situation was apparently remedied by enactment of the 1959 amendments to the Taft-Hartley Act which added the following section:

'(1) The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction: Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959.

'(2) Nothing in this [Act] shall be deemed to prevent or bar any agency or the courts of any State or Territory (including the Commonwealth of Puerto Rico, Gaum, and the Virgin Islands), from assuming and asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.' ¹⁸

The employer relies upon this statute as ground for holding that the no-man's land has been eliminated and therefore the court below could have exercised jurisdiction over this controversy. Whatever the effect of the amendment, it has no application in this case. The incidents which gave rise to this dispute took place in 1954. There is nothing in the 1959 law to suggest that it was intended to have any effect on labor relations matters arising prior to its enactment. In fact, the opposite is suggested by the provision that 'the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959.' (Emphasis ours.) It is a well established rule of statutory construction that in the absence of a clear expression to the contrary a law is presumed to operate prospectively only. ¹⁹ The potential elimination of a no-man's land is of no assistance to the employer in this case.

A basis for the assertion of state jurisdiction cannot be found from the circumstance of the Board not having determined the status of the disputed conduct, that is, whether it was of a type protected or prohibited by the National Act. It is not for us to determine this question, nor to decide what decision the Board would have made had it taken jurisdiction of the case. ²⁰ It is enough to preclude state action if the conduct charged to the union, which was the basis of relief sought in the lower court, may fairly be assumed to have constituted an unfair labor practice under Section 8 of the National Labor Relations Act. ²¹ We believe that such assumption may be fairly made; for the essence of the charge against the union in the court below was that the strike and picketing was aimed at forcing the employer to discourage the meat department employees fom joining the Meat Cutters and Butchers Union and to require them to join the Retail Clerks Union if they wanted to keep their jobs. ²² We hold that the court below was correct in determining that it had no jurisdiction to give the remedy sought by the employer in this action.

If this were a case marked by violence, intimidation, or imminent threats to public order, then the state court would be permitted to grant compensation for the consequences as defined by the law of torts. ²³ But the trial court determined that the picketing did not involve those elements of injurious conduct, and we find that the evidence supports such determination. Hence, this area for the exercise of state jurisdiction was not open to the employer.

In its conclusions of law the trial court expressed the...