Sterling v. Klamath Forest Protective Ass'n
| Decision Date | 28 January 1975 |
| Citation | 19 Or.App. 383,528 P.2d 574 |
| Parties | , 16 Fair Empl.Prac.Cas. (BNA) 1193, 9 Empl. Prac. Dec. P 9879 William M. STERLING, and others similarly situated, Respondents, v. KLAMATH FOREST PROTECTIVE ASSOCIATION and George Wardell, Petitioners. |
| Court | Oregon Court of Appeals |
William V. Deatherage and James L. Sutherland, Medford, argued the cause for petitioners. With them on the brief were Frohnmayer & Deatherage, Medford.
W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
This matter comes before us on a petition for judicial review of a final order of the Commissioner of Labor adjudging respondents below, Klamath Forest Protective Association, hereinafter referred to as KFPA, and George Wardell, its manager, guilty of discrimination in employment against complainant, William Sterling, and imposing, inter alia, a variety of orders of an 'affirmative action' nature on KFPA.
William Sterling, a college student, applied for seasonal employment as a fire station guard with KFPA in July 1969. He was recommended for the position after he had tried out for the job by working a few days at one of the KFPA guard stations. The man in charge of that station, an Indian, recommended Mr. Sterling and sent him into the KFPA headquarters to file a job application. There was a vacancy at that time at that particular guard station for the position for which Mr. Sterling applied.
The application was rejected and shortly thereafter an apparently less qualified person was hired to fill the job. Mr. Sterling is a black man--the man hired was white.
The fire danger season drew to its close during October, and the seasonal employes were accordingly terminated. It was not until November 21, 1969, that Mr. Sterling filed a complaint with the Civil Rights Division of the Oregon Bureau of Labor. Thus, at the time these proceedings were commenced, the seasonal job denied him no longer existed. The order ultimately entered therefore did not direct that Mr. Sterling be placed in the position.
The Civil Rights Division began its investigation in early 1970. In July 1971, some two years after the incident which led to the complaint, the Attorney General filed the specific charges of discrimination here asserted against KFPA. A tribunal appointed by the Commissioner promptly conducted the fact-finding hearing on August 11 and 12, 1971. Findings were filed by it with the Commissioner on March 15, 1972. On February 28, 1974, nearly five years after the act charged, the Commissioner issued his Conclusions of Law and Cease and Desist Order.
The record discloses no explanation for the inordinate delay by the Commissioner, after the complaint was filed, totaling well over four years, in pursuing this matter to his final determination.
We also note that KFPA, in 1972, agreed to and did thereafter pay Mr. Sterling, as a part of the conciliation process mandated by ORS 659.022(3), $1,139, which included $1,000 for humiliation. He is, so far as the record reveals, currently an Assistant Dean of Students at Oregon State University and has had no further contact with KFPA as a job applicant since 1969.
We discussed the scope of appellate review in cases of this nature in Williams v. Joyce, 4 Or.App. 482, 479 P.2d 513, 40 A.L.R.3d 1272, Sup.Ct. review denied (1971), and said:
'Except in certain statutorily-specified instances, judicial review of the findings of administrative agencies does not confer upon the reviewing court the right to try the cause De novo.
KFPA first contends the evidence is insufficient to support a factual finding that KFPA and George Wardell, its manager, discriminated against the complainant on account of his race in violation of the Oregon Civil Rights Act. ORS 659.010--659.115. Specifically, the Commissioner determined that KFPA failed and refused to hire Sterling because of his race, and thus committed an unlawful employment practice in violation of ORS 659.030(1) and (5). Our review of a factual issue is governed by ORS 183.480(7)(b), which precludes reversal or remand on such ground unless
'(o)n review of a contested case, the order is not supported by reliable, probative and substantial evidence in the whole record. * * *' ORS 183.480(7) (d).
There can be no question on this record but that the Commissioner's finding of racial discrimination in employment against William Sterling by both KFPA and George Wardell is amply supported. Under the foregoing rule, we see no need to set forth that evidence. This assignment is without merit.
The next contention is that, since the Commissioner has failed to adopt rules pursuant to ORS 659.103, he lacked authority to issue the Cease and Desist Order here.
In Sun Ray Dairy v. OLCC, 16 Or.App. 63, 517 P.2d 289 (1973), relied on by KFPA, we discussed at length the circumstances and conditions under which appropriate rules should be promulgated by an administrative agency, and the rationale for such requirements. We see no need to repeat them here. In that case, we found an order of the agency to be invalid because of OLCC's failure to promulgate rules defining what acts, conditions or omissions might be found by it to come with the statutory phrase 'demanded by the public convenience and necessity.'
In contrast here, the statute involved, ORS 659.030(1) and (5), provides:
'For the purposes of ORS 659.010 to 659.110 and 659.400 to 659.435, it is an unlawful employment practice:
'* * *
'(5) For any person, whether an employer or an employe, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under ORS 659.010 to 659.110 and 659.400 to 659.435 or to attempt to do so.'
The statute itself expressly forbade what the evidence clearly shows KFPA did--namely, it refused to hire Mr. Sterling because of his race. ORS 659.020(2). There is no ambiguity or uncertainty in the statute. Its application to the failure of KFPA to employ Mr. Sterling required the promulgation of no rules defining the terms of the statute, unlike the phrase 'demanded by public convenience and necessity' in Sun Ray Dairy v. OLCC, supra. Von Weidlein v. OLCC, 16 Or.App. 93, 97, 517 P.2d 295 (1973), Sup.Ct. review denied (1974). The contention is without merit.
The principal item of controversy, in our view, relates to two of the affirmative action provisions of the Cease and Desist Order. Those provisions state:
'(a) If a black applicant applies for a permanent professional class position with KEPA, is qualified or trainable to perform the bona fide job requirements, and there is or will be an opening for such a position, KFPA will give him preference over all those having equal or better qualifications so long as the black applicant meets the minimum bona fide occupational requirements for the job.
'(b) KFPA will give preference to al (sic) least four blacks for seasonable employment if said blacks have at least minimum bona fide occupational qualifications over other applicants who otherwise would be hired by KFPA because of equal or better qualifications.'
Such provisions raise serious constitutional problems because of their obvious discrimination against members of other races. Some of these are most recently alluded to in the dissenting opinion of Mr. Justice Douglas in DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). See also: Defunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973); Anderson v. San Francisco Unified School District, 357 F.Supp. 248 (N.D.Cal.1972); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974); Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974); Colorado Anti-Discrimination Commission v. Case, 151 Colo. 235, 380 P.2d 34 (1962).
In the view we take of this matter, we do not reach the constitutional questions. We must first consider whether the Commission had statutory authority to enter such an order.
Williams v. Joyce, supra, dealt with a case of discrimination arising out of the refusal to rent an apartment to a qualified applicant because of race. We were not there presented with and did not consider the authority of the Commissioner to require affirmative action of the dimensions set forth in the Cease and Desist Order, (a) and (b) above.
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...about an unreasonable result"); see also State v. Haydon, 842 P.2d 410, 411 (Or. Ct. App. 1992) (same); Sterling v. Klamath Forest Protective Ass'n, 528 P.2d 574, 580 (Or. Ct. App. 1974) ("Legislation is to be construed so as to effectuate its declared legislative purpose."). d. House and S......