Johnson v. Oregon Stevedoring Co., Inc.

• Decision Date: 25 September 1928
• Citation: 270 P. 772,128 Or. 121
• Parties: JOHNSON v. OREGON STEVEDORING CO., INC., ET AL.
• Court: Oregon Supreme Court

270 P. 772

128 Or. 121

JOHNSON v. OREGON STEVEDORING CO., INC., ET AL.

Supreme Court of Oregon

September 25, 1928

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Ralph Johnson against the Oregon Stevedoring Company Incorporated, and others. Judgment for plaintiff, and defendants appeal. Reversed.

This is an action for damages based upon the alleged blacklisting and publishing of plaintiff with the intent and for the purpose of preventing him from engaging in or securing employment as a longshoreman or in similar work. The pertinent allegations of the complaint, briefly stated, are as follows:

Some time prior to October 12, 1922, the defendants unlawfully and maliciously conspired to blacklist and publish any employee discharged by any one of the defendants, with the intent and for the purpose of preventing such discharged employee from securing other employment in the Port of Portland and Columbia river ports. Pursuant to such unlawful conspiracy the defendants established a hiring hall where longshoremen engaged in such employment would be employed, and appointed one J. O'Neil as their agent. On June 3, 1925, the defendants, in the execution of their unlawful conspiracy blacklisted and published the plaintiff with the intention of preventing him from securing similar or other employment, by causing their agent to strike plaintiff's name from the list of persons eligible to secure employment in stevedoring or longshoring in the Port of Portland and the Columbia river ports, and by communicating to each of the defendants the information that plaintiff's name had been stricken from such list, and by refusing to permit plaintiff to enter into the hiring hall maintained by defendants, and by publishing to each of the defendants a list of persons who were to be refused employment in such occupation, which list contained plaintiff's name. The complaint further charges that the defendants named therein constitute substantially all of the employers of labor in the calling in which plaintiff was engaged in the Port of Portland and Columbia river ports that, by reason of such conspiracy, the plaintiff has been refused employment in the Port of Portland and the Columbia river ports and is wholly unable to obtain employment as a stevedore or longshoreman in such ports, and thereby has been damaged in the sum of $15,000.

The answer admitted the establishment of a hiring hall in charge of J. O'Neil as an employing agent, where defendants hired their labor, but denied the existence of the alleged conspiracy, or malice, or blacklisting, or damage to plaintiff.

The trial resulted in a judgment of $4,500 for the plaintiff. The defendants appeal, assigning error in the refusal of the trial court to grant a judgment of nonsuit or to direct a verdict, and in the giving of certain instructions and refusing other instructions requested by the defendants.

Omar C Spencer and John Reilly, both of Portland (Carey & Kerr and Wilson & Reilly, all of Portland, on the brief), for appellants.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

Some time in 1922, a group of waterfront employers of labor in Portland, Or., formed a voluntary association under the name of "Waterfront Employers' Union of Portland," now designated as "Waterfront Employers' Association." The objects of the association, as set out in article II of the constitution, are:

"Sec. 1. To protect and develop water borne commerce; to promote closer relationship, better understanding, uniformity of practice and co-ordination of effort among the employers. Further, to seek correct solutions of the problems affecting the common welfare of employers and employees; to assist, if possible, employees in solving their own problems, and to develop closer relationship between employers and employees.

"Sec. 2. In pursuance of the objects of this Union, each member shall keep, both in the letter and spirit, all agreements and understandings between themselves and between this Union, or the Northwest Waterfront Employers' Union and employees. Should any misunderstanding or breach of any agreement or understanding occur, affecting any member of this Union, the same shall be promptly reported to the board of directors of this Union for consideration and action."

Article III relates to membership. Section 1 thereof reads:

"Any person, firm, association or corporation engaged in the exporting, importing or shipping business, either as owner, agent or charterer or as contractor, employing labor in loading or unloading vessels at Portland and Columbia river except such ports as may be within the jurisdiction of Astoria Local, shall be eligible for membership in this Local, subject to the approval of its board of directors."

The rules governing employment of longshoremen as set down in the standard practice handbook for longshoremen, adopted by the Portland waterfront employers, read:

"The basis of employment is citizenship and efficiency.

"All hiring is done at the hall. Stevedores must not employ men at the dock, and men are not permitted to solicit work on docks.

"Members of the I. W. W. will not be employed.

"Drunkenness on the job or in the hall is cause for discharge.

"Quitting the Job.--Men who quit their jobs, walk off ships or fail to return to work without permission from foreman or dispatcher, will be subject to ten days' suspension, or discharged if the offense is repeated.

"Smoking is prohibited on dock, ship, or gangplank.

"The foreman is responsible for the safe, efficient, and proper handling of cargo on board ship and therefore has authority to supervise and direct the work, place and discharge men.

"Safety First.--Above all things, always consider 'Safety first.' Take no chances on your health or life. A little care will often save a broken limb or a trip to the hospital. The majority of accidents are caused by carelessness and could be avoided.

"The Dispatching Hall.--The hall is maintained primarily for the convenience and comfort of the men and to enable the employers to secure their men in an orderly and dependable manner. The hall is your hall, and every employee should help to keep it clean, sanitary and attractive.

"The dispatchers are responsible for furnishing the best qualified men for the job and the general conduct of the hall. They will always be glad to answer your questions or give you any possible assistance in connection with your work.

"Advances.--Money cannot be advanced on time work before pay day. * * *

"Gambling, drinking, or the use of obscene language is positively prohibited in the hall.

"Suggestions from the men toward improvement of conditions in the hall or otherwise will always be welcome."

This practice book was revised and became effective January 1, 1924.

The foregoing documents were introduced by the plaintiff in support of his contention that, some time prior to October 12, 1922, the defendants entered into an unlawful and malicious conspiracy to blacklist and publish any employee discharged by any one of them, with the intent of preventing such discharged employee from securing like employment in the Port of Portland and Columbia river ports. These documents, however, fail to strengthen plaintiff's position. The purpose of the Waterfront Employers' Association, as evidenced by the writings set out above, is not to further a blacklisting scheme. No such evil intention is apparent from the writings. Tilbury v. Oregon Stevedoring Co., Inc. (C. C. A.) 7 F. (2d) 1; Id. (D. C.) 8 F. (2d) 898. From a consideration of the articles of agreement and the handbook, we cannot say that these defendants have associated themselves together with the object of wronging their employees by publishing and blacklisting any workman who may be discharged by them.

The plaintiff called as his witness J. O'Neil, manager of the hiring hall, who testified, in response to questions by Mr. Moulton, as follows:

"Q. Mr. O'Neil, by whom representing the Portland Waterfront Employers were you employed? A. By the employers that were maintaining this hiring hall."

He testified that his instructions were "to get efficient longshoremen and get them organized," and that those instructions had never been changed. He further testified:

"Q. * * * Will you tell the jury what the fact is with respect to the maintenance of a list of employees? A. Well down on the water front we have to work under a system. We have 25 regular gangs, and naturally we have a lot of men hanging around there ready for immediate employment. We have an 'extra' board for these men, and we put them on that when the work gets slack on longshoring, in order to hold them for the busy season.

"Q. How are these regular gangs made up? A. They are composed of gang leaders, winch drivers, and old experienced men, special men, mostly, who are efficient longshoremen, and who have proven themselves as skillfull.

"Q. Who selects these men? A. I do. * * *

"Q. Do you have a list of employees of any kind? A. Yes, sir.

"Q. Who keeps that list? A. It is in a book there; the bookkeeper keeps it, and the dispatcher. * * *

"Q. Do you issue registration cards? A. Yes, sir. * * *

"Q. How do you determine or hire the men off the board? A. The regular gangs receive preference of all work. There are times when we have peak days and where we have not sufficient gangs; regular gangs to carry the work on the water front. Then we make up gangs off the extra board, and certain work like cement and other work, or unskilled work, we take that labor off this extra board.

"Q. And if the extra board runs out, then where do you get any men? A. I pick them up wherever we can.

"Q. What is

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