Nemo v. Local Joint Executive Bd. and Hotel and Restaurant Emp. Local No. 556
| Decision Date | 24 December 1948 |
| Docket Number | 34890. |
| Citation | 35 N.W.2d 337,227 Minn. 263 |
| Parties | NEMO v. LOCAL JOINT EXECUTIVE BOARD AND HOTEL AND RESTAURANT EMPLOYEES' LOCAL NO. 556. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Service of a notice of hearing by the state labor conciliator by registered mail which actually reaches the party to whom it is addressed is equivalent to personal service. In the absence of proof to the contrary, it is presumed that mail properly addressed and posted, with postage prepaid, is duly received by the addressee.
2. A writ of prohibition is an extraordinary writ issued for the purpose of preventing inferior courts or tribunals, or other individuals invested by law with judicial or quasi-judicial authority, from going beyond their jurisdiction.
3. To justify the issuance of a writ of prohibition, it must appear (1) that the court, officer, or person against whom it issues is about to exercise judicial or quasi-judicial power (2) that the exercise of such power by such court, officer or person is unauthorized by law; and (3) that it will result in injury for which there is no other adequate remedy at law.
4. The state labor conciliator, in making investigations for the purpsoe of certifying bargaining representatives, acts in a quasi-judicial capacity.
5. Where it appears that there is no controversy as to bargaining representative, the labor conciliator has no authority to proceed with an investigation or election.
6. Irreparable injury will result to labor organization from unauthorized election.
7. All three prerequisites having been met, writ of prohibition is available and a proper remedy to enjoin labor conciliator from proceeding with an unauthorized election.
Sam Nemro, doing business as the Roman Cafe, filed a petition for an investigation by the labor conciliator, and for certification of a bargaining agent under M.S.A. 179.16 dealing with representatives for collective bargaining, and notice of hearing on the petition was addressed to Local Joint Executive Board and Hotel and Restaurant Employees' Local Number 556. The labor conciliator ordered an election to be held for purpose of determining whether a majority of the employees of Sam Nemo desired to be represented by Hotel and Restaurant Employees Local Number 556, and such union files a petition for writ of prohibition to restrain the labor conciliator from proceeding with the election.
Writ of prohibition made absolute.
Solly Robins, of St. Paul (Robins, Davis & Lyons, of Minneapolis, of counsel), for relator.
J.A.A Burnquist, Atty. Gen., and Geo. B. Sjoselius, Deputy Atty. Gen., for respondent Harry L. Hanson, State Labor Conciliator.
Alfred R. Sundberg, of St. Paul, for respondent Sam Nemo.
Respondent has owned and operated a restaurant in the city of St. Paul for a number of years. Relator is an unincorporated labor organization affiliated with the American Federation of Labor. Its members are cooks and waiters employed in the cities of St. Paul and Minneapolis and elsewhere.
For several years relator has sought to have respondent sign a closed-shop contract covering respondent's employees. Respondent has refused to sign such contract until his employes joined relator's union, contending that it would be unlawful for him to do so. On September 9, 1948, a contract was presented to Joe Nemo, respondent's manager, by a representative of relator. Mr. Nemo refused to sign unless relator could show that it represented a majority of the employes of respondent. Thereafter, on September 15, 1948, one picket was placed at the front door and one at the rear door of respondent's place of business. On September 17, 1948, respondent filed a request for an investigation by the labor conciliator under M.S.A. § 179.16. Notice of hearing on the petition, addressed to "Local Joint Exec. Board, AFL, and Local # 556 Hotel & Restaurant Employees Union," was sent by registered mail by the conciliator. Return receipt was received by the conciliator signed "556 Local" on the line provided for signature of the addressee, and "M. Broderick" on the line provided for the signature of addressee's agent.
The matter came on for hearing on September 29, 1948. Respondent appeared, and relator entered a special appearance objecting to the jurisdiction of the conciliator on the grounds, first, that no proper notice of the hearing had been served, and, second, that relator did not claim to represent a majority of the employes of the respondent and did not claim to be the representative of such employes for collective bargaining. The conciliator proceeded to take testimony and at the completion of the hearing made and filed his findings of fact and conclusions of law on October 9, 1948, determining that no question of representation existed between Local Joint Executive Board and respondent, but that a question of representation existed between Hotel & Restaurant Employees' Local No. 556 and respondent, and ordered an election to be held on October 18, 1948, for the purpose of determining whether a majority of respondent's employes desired to be represented by said union. Consequently, when we refer to relator herein we have reference to Hotel & Restaurant Employees' Local No. 556.
A petition for a writ of prohibition was thereafter submitted, wherein relator again states that it does not represent a majority of respondent's employes for collective bargaining and is not the authorized representative of such employees for collective bargaining. Thereupon, this court issued an alternative writ of prohibition restraining the labor conciliator from proceeding with the election and an order to show cause why such writ should not be made absolute.
It is the contention of respondent that a writ of prohibition is not available to relator and that the conciliator does have jurisdiction over the matter for the purpose of proceeding with an election to determine whether respondent's employes desire to have relator represent them for collective bargaining. It is the position of relator that, inasmuch as it does not claim to representa majority of respondent's employes and does not claim to be the representative of such employes for collective bargaining, there is no controversy; hence that the conciliator has no jurisdiction to proceed with an election and that the proceedings should be dismissed. Relator also contends that a writ of prohibition is available and that it is the proper and necessary remedy to restrain the conciliator from proceeding with the election.
1. We believe that the service upon relator was sufficient. The labor conciliator is authorized by law to adopt rules regulating the conduct of hearings. M.S.A. § 179.05. Such rules have been adopted and are on file pursuant to law. The rules so adopted do not prescribe any particular manner of service of notice, but simply provide for notice of the hearing. Neither is there any provision in the law prescribing any method of service of a notice of such hearing. It is apparent that the notice mailed by the conciliator actually came into the possession of relator. Where actual notice is received by mail, it is equivalent to personal service. In re Estate of Nelson, 180 Minn. 570, 231 N.W. 218; In re Estate of Devenney, 192 Minn. 265, 256 N.W. 104. In the absence of proof to the contrary, it is presumed that mail property addressed and posted, with postage prepaid, is duly received by the addressee. Melby v.
D.M. Osborne & Co., 33 Minn. 492, 24 N.W. 253; In re Estate of Devenney, supra. In addition to the presumption of delivery in this case, we have the return receipt purporting to have been signed by an agent of relator. If the purported agent who signed the receipt was not in fact such agent, it wsa incumbent upon relator to offer proof of that fact. In the absence of proof to the contrary, the presumption of delivery must prevail.
2. A writ of prohibition is an extraordinary writ issued for the purpose of preventing inferior courts or tribunals or other individuals invested by law with judicial or quasi-judicial authority from going beyond their jurisdiction. 5 Dunnell, Dig. & Supp. § 7840.
3. Three things are essential to justify the issuance of the writ. It must appear (1) that the court, officer, or person against whom it issues is about to exercise judicial or quasi-judicial power; (2) that the exercise of such power by such court, officer, or person is unauthorized by law; and (3) that it will result in injury for which there is no other adequate remedy at law. State ex rel. Hahn v. Young, 29 Minn. 474, 523, 9 N.W. 737, 738; State ex rel. Roberts v. Hense, 135 Minn. 99, 160 N.W. 198.
The writ is not available to prevent the performance of purely ministerial or administrative acts. O'Neill v. Kallsen, 222 Minn. 379, 24 N.W.2d 715.
4. In a proceeding of this kind, the labor conciliator, in a proper case, investigates and finds facts and draws therefrom conclusions of law from which he determines the legal rights of the parties involved, consistent with the authority and power vested in him by law. As such, he acts in a quasi-judicial capacity. Hathaway Bakeries, Inc., v. Labor Relations Comm., 316 Mass. 136, 55 N.E.2d 254; Thompson Products, Inc. v. N.L.R.B., 6 Cir., 133 F.2d 637, holding that the actions of the National Labor Relations Board are quasi-judicial in character. In Robinette v. Price, 214 Minn. 521, 533, 8 N.W.2d 800, 807, we held that certain duties of the county welfare board are quasi-judicial in character. In that case we said:
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