Oregon Advisory Opinions May 12, 1953: OAG 53-56 (May 12, 1953)

Oregon Attorney General Opinions

1953.

OAG 53-56.

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We have examined the terms and provisions of House Bill No. 663, as amended and passed by the legislative assembly on April 21, 1953. According to its title, the bill relates to "labor and management relations", regulates picketing, provides remedies, creates an agency to administer the act, and repeals chapter 355, Oregon Laws 1947. Principally, this legislation regulates the exercise by employes or employe units of the right of election or rejection of labor ORGAnizations "to represent them in bargaining collectively with their employers concerning * * * conditions of employment."

The bill is patterned closely upon familiar provisions of the federal labor management relations act of 1947, particularly the amendments of §§ 152 to and including 159, 29 U.S.C.A. According to its terms, the division of labor elections, created by it and directed to function through a "labor examiner" and "special examiners", would discharge duties which the federal act assigns to the national labor relations board. Terminology of the bill (as noted in definitions in § 1 thereof) is substantially similar to that of the federal act.

Section 2 of the bill declares that employes shall have the right to "select or reject labor ORGAnizations seeking or claiming to represent them in bargaining collectively with their employers", except "to the extent that such right may be affected by an agreement requiring membership in a labor ORGAnization as a condition of employment". In this connection, it may be observed that § 19 of the bill announces that nothing contained in the act "shall preclude an employer from making an agreement with a labor ORGAnization requiring membership therein as a condition of employment."

Provisions of § 159, 29 U.S.C.A., as reduced to state's size, are found in § 3 of the bill, which authorizes election of a bargaining representative by members of "an appropriate bargaining unit", at the instance of the labor ORGAnization, the employe or the employer, to be followed by certification that the labor ORGAnization has been selected as the representative of the employe unit concerned, if the examiner so finds. Subsection 3 of this section paraphrases subsection (a) of § 159, supra, as follows:

"The certified bargaining agent of an appropriate bargaining unit shall be the exclusive representative of all the employes in such unit for the purposes of collective bargaining; but any individual employe or group of employes shall have the right at any time to present grievances to their employer in person or through representatives of their own choosing."

Sections 12, 13, 14, 15 and 18 of House Bill 663 establish procedure for making and determining complaints as to action "declared to be unlawful by this act", provide for court review and court assistance to enforce orders of the examiner, govern the conduct of proceedings in the circuit court and authorize appeal from the orders of that court.

Section 16 of the bill thus provides:

"It shall be unlawful for any person directly or indirectly to compel, intimidate, coerce or discriminate against any employe in the exercise of said employe's free choice in selecting or rejecting a labor ORGAnization as the representative of employes for the purpose of collective bargaining, or directly or indirectly to compel, intimidate, or coerce any employer or employe because employes of said employer, or of any other employer, have not selected a labor ORGAnization as their representative for said purpose. The word 'coerce' includes picketing. Without limiting the foregoing unlawful acts, picketing for the purpose of compelling, intimidating, coercing or influencing an employe of any employer to join a labor ORGAnization shall be a violation of this section."

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You have directed our attention particularly to § 17 of the bill and requested our opinion as to whether or not it is unconstitutional. That section reads as follows:

"It shall be unlawful for any person to picket any employe or employer unless such person has been certified or is recognized as the bargaining representative of such employe or of an appropriate unit of employes of such employer under the provisions of federal law or the provisions of this Act."

Determination of the constitutionality of restriction of picketing as by this bill provided rests upon whether or not such restriction abridges freedom of speech, in violation of Article I, § 8, of the Oregon Constitution, and Amendment XIV, § 1, of the Constitution of the United States, prohibiting states from abridging "the privileges or immunities of the citizens of the United States".

The restraint of picketing hereinabove quoted is limited strictly to matters within the scope of the bill, namely, instances and situations arising out of, or connected with, employes' choice or rejection of a labor ORGAnization as their representative. Picketing is prohibited unless done by the agency to which the bill and applicable federal laws accord the right to make such demonstration when authorized by the facts. A "person * * * certified or * * * recognized as the bargaining representative of the employe or employe unit involved" is established by subsection 3 of § 3, supra, as the exclusive representative of the employes in such unit for purposes of collective bargaining. To such "person" so certified or recognized, the bill confines the right to picket in relation to election or rejection of a bargaining representative.

The validity of § 17, supra, depends upon whether or not the state may, as to employes' election or rejection of ORGAnization representation only, limit the purposes of picketing and designate the "person" (defined by subsection (6), § 1, of this bill) who may lawfully picket. This question has been answered in the affirmative, and clearly, by decisions of the United States supreme court beginning with the case of Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S., 292, 85 L.ed. 836, and continuing through Local Union No. 10, A.F.L., v. Graham, 345 U.S. 192, 97 L. ed. 946 (Advance p. 542), decided March 16, 1953.

The Milk Wagon case, supra, concerned the sale of milk in Chicago by dairy companies to vendors operating their own trucks and reselling to retailers. Because the vendors did not observe working standards of the milk wagon drivers' union, that ORGAnization picketed the dairies using the vendors. When violence that accompanied picketing resulted in property damage and personal injuries, the Meadowmoor Dairies brought suit against the union and its officers "to stop interference with the distribution of its products." The union invoked the constitutional protection of free speech in behalf of publicizing the facts of a labor dispute. Although no labor statute of any state was involved, this case is important in the present discussion because it defines freedom of speech in relation to picketing. Following are excerpts from the opinion in 312 U.S.:

[p. 293]---" * * * It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.

[p. 295]---" * * * Certainly a state is not confined by the Constitution to narrower limits in fashioning remedies for dealing with industrial disputes than the scope of discretion open to the National Labor Relations Board. * * *"

In Giboney v. Empire StORGAe and Ice Co., 336 U.S. 490, 502, 93 L. ed. 834, 843, it was held that the constitutional right of free speech did not preclude the granting of an injunction against peaceful picketing by an ice peddlers' union for the purpose of coercing a wholesale distributor in Kansas City, Missouri, from selling ice to peddlers not members of the union. Under Missouri law it was a felony to do certain acts in restraint of trade or competition in the transportation, purchase or sale of any product, commodity, article or thing. The United States supreme court affirmed the state court's order enjoining the picketing. In relation to free speech, the opinion states:

"* * * But placards used as an essential and inseparable part of a grave offense against an important public law cannot immunize that unlawful conduct from state control. * * * But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."

The court held in Hughes v. Superior Court of California, 339 U.S. 460, 94 L. ed. 985, 70 S. Ct., 718, that the state was entitled to have respect for its policy whether expressed by the judiciary or the legislature. The picketing involved in that instance was for the purpose of compelling an employer to adopt a discriminatory hiring policy

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based on race. Following are excerpts from the opinion:

"* * * But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing 'is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.'

"The policy of a State may rely for the common good on the free play of conflicting interests and leave conduct unregulated. Contrariwise, a State may deem it wiser policy to regulate. Regulation may take the form of legislation, e. g., restraint of trade statutes, or be left to the ad hoc judicial process, e. g., common law mode of dealing with restraints of trade. Either method may outlaw an end not in the public interest or merely address itself to the obvious means toward such end. The form the regulation should take and its scope are surely matters of policy and, as such, within a State's choice."

In Building Service Employes' International Union v. Gazzam, 339 U.S. 532, 536, 639, 94 L. ed. 1045, 1050, 1051, the respondent, Gazzam, employed some fifteen people in a small hotel. Representatives of the petitioner union sought to ORGAnize them. The employer gave the union representatives permission to visit his employes freely and solicit their membership. On pressure from the union, he refused to sign a contract with it, on the ground that to do so would require him to coerce his employes to join a union, in violation of law. Later, the employes voted not to join the union. The respondent was notified that his hotel was placed on the "We Do Not Patronize" list of the union. Pickets then began walking in front of the hotel, bearing a sign stating that the hotel was unfair to ORGAnized labor.

Washington, as does Oregon, had a "Little Norris-LaGuardia Act", but no "labor dispute" as determined by that law was held to exist. The court held that the objective was violative of the state's policy against employer coercion of employes' choice of bargaining representative and that the picketing should be enjoined on that ground. The opinion of the United States supreme court contains the following statements:

"The State of Washington has by legislative enactment declared its public policy on the subject of ORGAnization of workers for bargaining purposes. * * * Picketing of an employer to compel him to coerce his employees' choice of a bargaining representative is an attempt to induce a transgression of this policy, and the State here restrained the advocates of such transgression from further action with like aim. To judge the wisdom of such policy is not for us; ours is but to determine whether a restraint of picketing in reliance on the policy is an unwarranted encroachment upon rights protected from state abridgement by the Fourteenth Amendment."

Markham & Callow v. International Woodworkers', 170 Or. 517, 539, was a case in which the Oregon supreme court held that picketing, although peacefully conducted, should be enjoined if carried on for an unlawful purpose. Therein the attempt of one union, through picketing, to force an employer to breach its agreement with another union which had been certified as the bargaining agent of the employer's employes was held to be unlawful purpose, on the ground that the dispute ended upon certification of the bargaining agent. The plaintiff's business was transacted partly in interstate commerce and was, therefore, subject to federal law. The court ruled that the controversy was to be determined by application of the national labor relations act, 29 U.S.C.A., §§ 151-166, rather than the Norris-LaGuardia act, 29 U.S.C.A., §§ 101-115.

In Peters v. Central Labor Council, 179 Or. 110, the court observed that the right of free speech is not involved "where the labor objective is illegal," and that the refusal of the plaintiff to execute a closed-shop agreement prior to certification of a bargaining agent by the national labor relations board did not justify the picketing of its plant. The plaintiff, because of its interstate business, was subject to jurisdiction of that board. The court further observed, "If the company had signed such contract it would have been guilty of an unfair labor practice." It also ruled specifically that the Oregon anti-injunction act (§§ 102-913 to 102-925, O.C.L.A.), did not apply to the situation as a "labor dispute".

Baker Community Hotel v. Employes' Local 161, 187 Or. 58, 71, 74, originated as a suit to enjoin the defendants from picketing the plaintiff's place of business, and for damages. There is reference in the complaint and in the appellant's brief to chapter 355, Oregon Laws 1947, an act attempting to prevent coercive interference with employes' selection of labor ORGAnizations to represent them, which is repealed by House Bill No. 663. However, it appears from the facts in that case that there was no election of a representative labor ORGAnization, and the picketing followed the plaintiff's refusal to sign a closed-shop agreement with the defendant union in the absence of election of the union as the representative of plaintiff's employes. The court held that the 1947 act cited had no application to the controversy.

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In State ex rel. v. Dobson, 195 Or. 533, 571, 577, 582, the relator, Tidewater-Shaver Barge Lines, mentioned in the opinion as "Tidewater", sought a temporary restraining order against two unions. The defendant, a judge of the circuit court for Multnomah county, denied the relator's motion on the ground that exclusive jurisdiction over the activities of the defendant unions was in the national labor relations board pursuant to the provisions of the federal labor management relations act of 1947. Tidewater then instituted mandamus proceedings in the supreme court to require the trial judge to determine the questions presented in its suit in the circuit court. What may be considered conclusive in regard to the state's right to restrain picketing that would constitute an illegal labor practice under the federal act, is the following language at pp. 571 and 582 of the opinion:

[p. 571]---"Court restraint of picketing designed to force plaintiff to enter a labor dispute to which it is not a party is not an injunction 'involving or growing out of a labor dispute.' § 102-916, O.C.L.A. The Little Norris-LaGuardia Act of this state was not designed to deprive this court of jurisdiction, duty and right to enjoin picketing which has for its sole purpose coercion of the primary employer to do that which the National Labor Relations Act forbids it to do, particularly when the manner of that picketing by the offending unions in and of itself constitutes an illegal labor practice under the federal act. * * *

[p. 582]---"If we adopt defendants' theory of exclusive federal jurisdiction in this matter, Tidewater will have no recourse but to stand idly by for an indeterminate period during the Board's investigation of its charge brought under § 160(a) and thereafter for a 'few weeks' more while the Board decides whether or not to petition the United States district court for a restraining order. Meanwhile, plaintiff will be suffering losses at the rate of not less than $5,000 a day, all as a result of the actions of the defendant unions, constituting, as they do, an illegal labor practice under the federal Act of 1947 and without exoneration as a 'labor dispute' under the Oregon law."

If a state court can take measures to restrain picketing which the federal law prohibits as to employers engaged in interstate commerce, there seems to be no reason why the state legislature can not enact a law to prohibit the same outlawed picketing as to employers engaged in intrastate commerce. Clearly no question of conflict of federal and state law on the same subject is involved. Unless interference with the right of freedom of speech be read into House Bill No. 663, there is no apparent obstacle to its acceptance as a valid enactment expressive of the state's policy in relation to picketing for a purpose which it declares unlawful.

Some question has been raised as to a supposed vagueness of the limitation in § 17. Read in relation to the entire act, as this section must be, it clearly states that employes shall not be coerced in their choice of bargaining representative and in making such choice they shall not be picketed except by the appropriate bargaining representative of the employes of their employer as an "appropriate unit" within the meaning of that term as defined in § 1 of the act in harmony with the definition thereof in federal law.

Suggestion has been made, also, that § 19 is inconsistent with other provisions of the bill. We do not so regard it. Certainly it is consistent with § 2 which implies that an employer may maintain a closed-shop or "security" agreement. It is obvious, moreover, that § 19 is intended to preserve the right declared by § 158(a) (3), 29 U.S.C.A.

It is our opinion that House Bill No. 663 does not violate any provision of the Oregon Constitution or the United States Constitution. According to the decisions of the United States supreme court with reference to similar statutory provisions, it appears not to conflict with any federal law. We believe that it meets the competent tests of validity of a state enactment.