Kempf v. Carpenters and Joiners Local Union No. 1273

• Decision Date: 29 December 1961
• Citation: 229 Or. 337,367 P.2d 436
• Parties: Donald B. KEMPF, Appellant, v. CARPENTERS AND JOINERS LOCAL UNION NO. 1273 et al., Respondents.
• Court: Oregon Supreme Court

Page 436

367 P.2d 436

229 Or. 337

Donald B. KEMPF, Appellant, v. CARPENTERS AND JOINERS LOCAL UNION NO. 1273 et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 8, 1961.

Decided Dec. 29, 1961.

Lewis K. Scott, Portland, argued the cause for appellant. With him on the briefs were Koerner, Young, McColloch & Dezendorf and W. F. Lubersky, Portland, and Riddlesbarger, Pederson, Brownhill & Ingerson and L. D. Pederson, Eugene.

Sidney I. Lezak, Portland, argued the cause for respondents. On the brief were Bailey, Lezak, Swink & Gates and Paul T. Bailey, Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

McALLISTER, Chief Justice.

This suit was brought by the plaintiff Donald B. Kempf, a building contractor, against Carpenters and Joiners Local Union No. 1273, other building trade unions, and the officers thereof, to enjoin alleged unlawful picketing by said unions, and for both compensatory and punitive damages. The trial court dismissed the suit for want of jurisdiction, and plaintiff has appealed.

The questions presented are whether a state court may assume jurisdiction over a labor dispute over which the National Labor Relations Board declines to assert its jurisdiction, and whether § 701(a) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 164(c) ¹ amending § 14 of the National Labor Relations Act (NLRA), 29 U.S.C. § 164, can be applied retroactively to this case.

The plaintiff filed his complaint on November 21, 1958, alleging therein that he was engaged in the home and general construction business in Lane county, and that on or about October 8, 1958, the defendant unions began picketing his building project and that the picketing continued to the filing of the complaint. Plaintiff alleged that the picketing was unlawful and had caused and would cause him irreparable damage, and that he had no plain, speedy or adequate remedy at law. He prayed for a decree enjoining defendants from picketing his construction project, and for both compensatory and punitive damages.

The case was first heard by the court below on the motion of the plaintiff for an injunction pendente lite. After hearing testimony the court found that the labor dispute affected interstate commerce, and on December 22, 1958 entered an order denying the motion for an injunction pendente lite on the ground that jurisdiction had been preempted by federal law.

There can be no doubt that under the law then in effect the holding of the trial court was proper. See Garner v. Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601; Amalgamated Meat Cutters, etc. v. Fairlawn Meats, 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613; San Diego Building Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618; and San Diego Building Trades, etc., Unions v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775. In the second Garmon case the court said:

'* * * When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.'

This case at least arguably involves an alleged unfair labor practice affecting interstate commerce.

However, before this case was finally disposed of, Congress, on September 14, 1959, enacted the Labor-Management Reporting and Disclosure Act of 1959. Thereafter the lower court called for briefs as to the effect on this case of the amendments made by the LMRDA to § 14 of the National Labor Relations Act. The trial court thereafter rendered an opinion holding that the LMRDA did not affect the preemption of labor disputes affecting interstate commerce and dismissed the suit.

It seems to us obvious from the plain wording of § 14 of the NLRA as amended by § 701(a) of the LMRDA that a state court may assume jurisdiction over a labor dispute over which the National Labor Relations Board has declined to assert jurisdiction. Plaintiff contends that the NLRB declined jurisdiction of this case because the monetary volume of plaintiff's interstate business is less than the jurisdictional minimum fixed by the NLRB for non-retail enterprises in Siemons Mailing Service, 122 NLRB 81, 85. Assuming that plaintiff's contention is correct, we think the narrower question determinative of this case is whether the 1959 amendments to section 14 of the NLRA can in any event be given retroactive effect so as to apply to this case.

It is a general rule that statutes will be construed to operate prospectively unless an intent to the contrary clearly appears. Denny v. Bean, 51 Or. 180, 93 P. 693, 94 P. 503; Spicer v. Benefit Ass'n of Ry. Employees, 142 Or. 574, 592, 17 P.2d 1107, 21 P.2d 187, 90 A.L.R. 517; Lommasson v. School Dist. No. 1, 201 Or. 71, 100, 261 P.2d 860, 267 P.2d 1105; Sutherland, Statutory Construction (3d ed.) § 2201, p. 114; Crawford, The Construction of Statutes, § 277, p. 562. The LMRDA contains no indication that Congress intended it to operate retroactively, and under the general rule the act would not apply to this case since all of the activity complained of occurred prior to the effective date of the act.

Plaintiff contends, however, that because this act operated only to permit the state court to assume jurisdiction over labor disputes over which the board declines to assert jurisdiction the act is remedial and should be given retroactive application. Plaintiff relies primarily on Larkin v. Saffarans, 15 F. 147 (C.C.W.D.Tenn.1883), which was quoted with approval by this court in Judkins v. Taffe, 21 Or. 89, 27 P. 221. In the Larkin case it was held that an act of Congress enlarging the jurisdiction of the federal circuit court applied to cases pending and undetermined when the act was passed.

If the only effect of the LMRDA was to authorize the state courts to assume jurisdiction of cases over which the NLRB had declined to exercise jurisdiction the reasoning of the Larkin case would be persuasive. However, there is more involved here than the assumption of jurisdiction by a state court over cases over which the NLRB has declined to exercise its jurisdiction. The LMRDA does not state what law the state courts may apply to the cases over which they assume jurisdiction. If the state courts were required to apply federal law the act would accomplish only a change of forum and could well be applied retroactively.

However, the legislative history of the LMRDA indicates that the state courts are not required to apply federal law. Determined efforts to amend the act to provide that the state courts could apply only federal law in these cases were rejected by Congress. The result is that the state courts are free to apply state law, although not required to do so. See Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 1086, where the legislative history is reviewed in detail. See also Beeson, Boundaries of State-Federal Jurisdiction in Labor-Management Relations Under the New Labor-Law--A Federal View, 13 N.Y.U.Conf.Lab. 51, 60; Fairweather, An Evaluation of the Changes in Taft-Hartley, 54 Nw.U.L.Rev. 711, 739-40; Fleming, Title VII: The Taft-Hartley Amendments, 54 Nw.U.L.Rev. 666, 674; Goldberg and Meiklejohn, Title VII: Taft-Hartley Amendments, with Emphasis on the Legislative History, 54 Nw.U.L.Rev. 747, 751-52; McCoid, Notes on a 'G-String': A Study of the 'No Man's Land' of Labor Law, 44 Minn.L.Rev. 205, 241-42; Smith, The Labor-Management Reporting and Disclosure Act of 1959, 46 Va.L.Rev. 195, 234-35; Witney, LMRDA Title VII: Its Problems and Their Development, Symposium on the Labor-Management Reporting and Disclosure Act of 1959, 632-33 (Slovenko ed. 1961).

We think the fact that a state court is at liberty to apply state law is a strong reason for holding that the act should not be applied retroactively. Unless retroactive construction is mandatory by the terms of the act it should not be applied if such construction will impair existing rights, create new obligations or impose additional duties with respect to past transactions. Denny v. Bean, supra.

There are, of course, marked differences between state and federal substantive law in the field of labor relations. These differences have been frequently mentioned by the Supreme Court in the cases which resulted in the extension of the doctrine of preemption to exclude completely the state courts from this field. See Garner v. Teamsters, etc., Union, supra; United Construction Workers, etc. v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018; San Diego Building Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618; and San Diego Building Trade, etc., Unions v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. For additional comments on the differences between substantive state and federal law in the field of labor relations see: Delony, State Power to Regulate Labor-Management Relations, Symposium on the Labor-Management Reporting and Disclosure Act of 1959, 688 (Slovenko ed.1961); Rains, What the New Labor Law Means to Management, 10 Lab.L.J. 753, 755-56.

To construe the LMRDA retroactively would be in effect to change the substantive law applying to the conduct of the parties and probably, if not certainly, as to past activities create new obligations or impose additional duties or liabilities. Although the question has apparently not yet been decided by any court of last resort, the courts and administrative agencies which have considered the problem have declined to apply the LMRDA retroactively. Derouen v. Lard, 121 So.2d 311, 46...