Markham & Callow, Inc. v. Inter. Woodworkers

• Decision Date: 23 March 1943
• Citation: 135 P.2d 727,170 Or. 517
• Parties: MARKHAM & CALLOW, INC., <I>v.</I> INTERNATIONAL WOODWORKERS OF AMERICA, LUMBER & SAWMILL WORKERS UNION, ET AL.
• Court: Oregon Supreme Court

170 Or. 517

135 P.2d 727

MARKHAM & CALLOW, INC.,

v. INTERNATIONAL WOODWORKERS OF AMERICA, LUMBER & SAWMILL WORKERS UNION, ET AL.

Supreme Court of Oregon.

Argued January 6, 1943.

Affirmed March 23, 1943.

Master and servant

1. Contract between employer and labor organization, certified by the National Labor Relations Board as the bargaining agent, whereby all employees were to maintain membership in labor organization, present employees were to be accepted into membership and all new employees were to become members of organization and employer agreed, upon demand, to discharge any employee who refused to maintain membership, was not a mere "maintenance of membership contract", but was a "union shop contract", for purpose of determining whether employer was guilty of unfair labor practice in discharging employees in compliance with the contract.

Contracts

2. In construing a contract, court could not ignore plain language of contract and the practical construction placed on it by both parties.

Commerce

3. Where employer was engaged in logging and sale of logs and 80 per cent of employer's produce flowed into channels of interstate commerce, the employer was engaged in "interstate commerce" and was subject to the National Labor Relations Act.

Commerce

4. The National Labor Relations Act draws its vitality from the commerce clause of federal constitution and therefore affects the substantive law of states when questions arise concerning rights and duties of employers and employees who are engaged in interstate commerce.

Injunction

5. The statute regulating issuance of injunction in case involving a labor dispute should not be construed as nullifying or impeding the peaceful settlement of labor controversies, which settlements have been consummated by contracts lawfully executed between an employer and legal representative of majority of his employees.

Injunction

6. The statute regulating issuance of injunction in case involving labor dispute is a legislative declaration of "public policy" that it is necessary that worker have full freedom of association, self-organization

and designation of representatives of his own choosing to negotiate the terms and conditions of his employment.

Commerce

7. In suit by employer, engaged in interstate commerce, for an injunction against picketing, the intent of the National Labor Relations Act must be fully considered.

Statutes

8. In action involving interstate commerce the national "public policy" established by the National Labor Relations Act must be respected by state courts, and the substantive rights concerning collective bargaining which the federal act creates must not be impaired by construing state statute, regulating issuance of injunction, to cover situations which were non-existent when the statute was passed.

Courts

9. State court, in construing state statute regulating issuance of injunction in case involving labor dispute, is not bound by construction adopted by federal courts concerning Norris-LaGuardia Act.

Master and servant

10. "Union shop contract", entered into by employer and exclusive bargaining agent for all of employees, providing for admission into union of nonmember employees, both old and new, and authorizing bargaining representative to demand discharge of an employee who refuses to join the bargaining representative is valid.

Master and servant

11. Where employer, engaged in interstate commerce, entered into union shop contract with labor organization which had been certified by National Labor Relations Board as exclusive bargaining agent for all employees, in carrying out the contract by discharging nonunion employees and in thereafter refusing to violate the contract by re-employing them, the employer was not guilty of "unfair labor practice" within National Labor Relations Act.

Injunction

12. Where an employer, innocent of any unfair labor practice, enters into a union shop contract with an "open union" which has been chosen by majority of employees and certified as exclusive bargaining agent, and where employees, who are members of a rival minority union, picket employer's business for sole purpose of causing employer to violate the contract by re-employing minority employees who were discharged pursuant to the contract because of their refusal to join the bargaining representative, the pre-existing "labor dispute", if any, has ceased to exist, and the picketing is "unlawful", and the statute regulating issuance of injunction in cases involving labor disputes is inapplicable.

Constitutional law

13. Picketing as an incident to a labor dispute is, in some of its phases, an exercise of the right of "freedom of speech".

Torts

14. Picketing in general is not prohibited by the Fourteenth Amendment and it is not prohibited by common law, and a statute is not required to authorize picketing.

Constitutional law

15. The right to make known the facts of a labor dispute is protected by the constitutional right of "freedom of speech".

Constitutional law

16. Where picketing was not incidental to a labor dispute but sole purpose of picketing was to cause employer to violate union shop contract with bargaining representative by re-employing minority employees who had been discharged pursuant to the union shop contract because of their refusal to join the bargaining representative, an injunction against the picketing did not constitute violation of constitutional rights of "freedom of speech".

                  Construction and application of National Labor Relations Act
                notes, 112 A.L.R. 959; 115 A.L.R. 314; 123 A.L.R. 612. See, also
                31 Am. Jur. 886, et seq
                  15 C.J.S., Commerce, § 15
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Clatsop County.

R. FRANK PETERS, Judge.

Suit for injunction by Markham & Callow, Inc., against International Woodworkers of America, Lumber & Sawmill Workers Union, and others. From a decree granting a permanent injunction, defendants appeal.

AFFIRMED.

W.J. Prendergast, Jr., of Portland (David Weinstein, of Portland, on the brief), for appellants.

Gunther F. Krause, of Portland (George E. Birnie, of Portland, on the brief), for respondent.

This is a suit by the plaintiff, Markham & Callow, Inc., a corporation, to enjoin the defendants, who are affiliates and members of the Congress of Industrial Organizations, from picketing. The trial court issued a permanent injunction, and the defendants appeal.

In support of the allegations of the complaint, the following facts were established: The plaintiff is engaged in logging and the sale of logs. Eighty per cent of his produce flows into the channels of interstate commerce. Ever since 1935 (the year of the enactment of the National Labor Relations Act) the American Federation of Labor had been the bargaining agent of the employees. On July 24, 1939, the National Labor Relations Board, pursuant to statute, issued a "decision and direction of election" whereby it was provided that an election by secret ballot be conducted among the employees of the plaintiff whose names appeared on the company's payroll immediately preceding the date of the direction. The purpose of the election was to determine whether the employees desired to be represented for the purposes of collective bargaining by Lumber & Sawmill Workers' Union, Local No. 4, affiliated with International Woodworkers of America, affiliated with the C.I.O., or by Lumber & Sawmill Workers' Union, Local No. 2578, chartered by the United Brotherhood of Carpenters and Joiners of America, affiliated with the A.F. of L., or by neither. Pursuant to the direction, such an election was conducted on August 10, 1939, under the supervision of a regional director, who, acting pursuant to Article 3, Section 9 of the National Labor Relations Act, Rules and Regulations, Series 2, issued an election report, copies of which were duly served upon the parties. No objections to the same were filed. The report of the regional director disclosed that a majority of all eligible voters had chosen the A.F. of L. union. Therefore the National Labor Relations Board duly certified to the result and that

"* * * Lumber & Sawmill Workers Union, Local No. 2578, chartered by United Brotherhood of Carpenters & Joiners of America, affiliated with the American Federation of Labor, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment."

Thereafter, a working agreement was negotiated and executed between the plaintiff and Local 2578, A.F. of L., as exclusive bargaining agent of all employees. The effective date of the agreement was October 1, 1939. In it, among many other things, were the following provisions:

"The company recognizes the Union as the sole and exclusive collective bargaining agency for all of its employees except superintendents, foremen and office personnel. This agreement and the provisions herein constitute the only collective bargaining agency recognized by the Company."

It was also provided:

"Any refusal on the part of the crew, or any member of the crew, to work under the terms and conditions of this agreement with the Lumber & Sawmill Workers' Local Union No. 2378, dated 1939, or to respect and abide by the interpretations hereof, or to accept decisions resulting from negotiations hereunder; or agitation on the part of any employee with crew members in an effort to break any of the terms of this agreement, or in any way to interfere with the collective bargaining agency, shall be cause for suspension, disciplinary action, or discharge."

Another provision related in great detail to hours, wage scales, seniority and working conditions. The contract provided that no strikes should be called until the machinery of adjustment set up in the agreement should be exhausted. It also provided that

"At no time shall...