PERRY, J., concurring in part and dissenting in part.

I concur in the result reached by the majority for reasons which are set forth herein. I cannot agree, however, that the act effects a change in substantive law and should therefore be interpreted prospectively.

The act generally referred to as the Landrum-Griffin Bill, 29 U.S.C. § 164 (c) passed in 1959, reads as follows:

"(c) (1) The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act [F.C.A. 5 §§ 1001-1011], decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction: Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959.

"(2) Nothing in this Act [F.C.A. § 151 et seq. of this title] shall be deemed to prevent or bar any agency or the courts of any State or Territory (including the Commonwealth of Puerto Rico, Guam, and the Virgin Islands), from assuming and asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction."

The trial court entered as a conclusion of law: "* * * this court is without jurisdiction to grant the relief requested as this field of litigation has been preempted by Federal law." The court therefore dismissed the plaintiff's cause of suit.

It is implicit in the above act that before a state court may assume jurisdiction of a labor dispute which has any impact upon interstate commerce the "Board" must have declined jurisdiction.

To establish the National Labor Relations Board's waiver of jurisdiction the plaintiff relies upon the Board's decision in Siemons Mailing Service, 122 NLRB 81, where the Board stated:

"* * * the Board has concluded that it will best effectuate the policies of the Act if jurisdiction is asserted over all nonretail enterprises which have an outflow or inflow across State lines of at least $50,000, whether such outflow or inflow be regarded as direct or indirect. For the purposes of applying this standard, direct outflow refers to goods shipped or services furnished by the employer outside the State. Indirect outflow refers to sales of goods or services to users meeting any of the Board's jurisdictional standards except the indirect outflow or indirect inflow standard. Direct inflow refers to goods or services furnished directly to the employer from outside the State in which the employer is located. Indirect inflow refers to the purchase of goods or services which originated outside the employer's State but which he purchased from a seller within the State who received such goods or services from outside the State. In applying this standard, the Board will adhere to its past practice of adding direct and indirect outflow, or direct and indirect inflow. * * *"

The plaintiff then contends that the evidence taken disclosed that plaintiff did not purchase products or services which originated outside the state of Oregon directly or through some supplier within the state exceeding $50,000.00 for the year 1958.

If the Siemons decision could be said to be a firm rule, so that the only question of waiver of jurisdiction rested upon the monetary amount of the impact the dispute has on interstate commerce and no question remained as to the labor board's refusal to consider this matter, I would agree. However, the Board, in rendering its opinion, also stated:

"Under the new standards, the Board will continue to apply the concept that it is the impact on commerce of the totality of an employer's operations that should determine whether or not the Board will assert jurisdiction over a particular employer. Accordingly, the Board will continue its past practice of totaling the commerce of all of an employer's plants or locations to determine whether the appropriate jurisdictional standard is met. Pursuant to this principle we shall adhere to our past practice of considering all members of multiemployer associations who participate in or are bound by multiemployer bargaining negotiations as single employers for jurisdictional purposes.

"The Board has determined that it will, as it did in 1954, apply the revised jurisdictional standards to all future and pending cases. This, of course, applies to pending unfair labor practice cases as well as to representation cases. With respect to complaint cases it is of course possible that complaints will issue based upon unfair labor practices occurring at a time when the operations of the particular employer involved, did not satisfy the then current 1954 jurisdictional standards. However, the Board does not believe that the mere fact that a respondent had reason to believe by virtue of the Board's announced jurisdictional policies that the Board would not assert jurisdiction over it, gave it any legal, moral, or equitable right to violate the provisions of the Act. This is especially true since the issuance of the Guss decision, which eliminated all possible basis for believing that in such circumstances the provisions of the Act did not apply, or that State law could or would apply to its conduct. In the final analysis what is conclusive with us is the fact that any other policy would benefit the party whose actions transgressed the provisions of the Act at the expense of the victim of such actions and of public policy. In pursuing this policy we shall not, however, reopen any complaint case in which the Board has dismissed a complaint on jurisdictional grounds."

The result of the Guss decision, Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S Ct 598, 1 L ed 2d 601, was the determination that the failure of the National Labor Relations Board to assume jurisdiction of a labor dispute subject to Federal regulation did not leave the states free to regulate the dispute, though the dispute offended state law.

Subsequently in San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S Ct 773, 3 L ed 2d 775, the Supreme Court of the United States, in foreclosing any relief by the state courts in labor disputes subject to the general act which affected in any manner interstate commerce, 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." (Emphasis mine)

It is therefore clear that the National Labor Relations Board in the Siemons case, relied upon by plaintiff, did not have in mind a relinquishment of jurisdiction by the board or the board would not have retained the right to examine each individual case of claimed violation and to act accordingly.

The reason the Board retained jurisdiction is undoubtedly due to the fact that the Siemons case was decided before the enactment of 29 U.S.C. § 164(c), and the Board did not wish to deprive either labor or management of a forum in the event the Board felt the particular matter should be heard. But, whatever the reason of the Board, they have, so far as the showing is made in this case, not declined jurisdiction of this matter.

The result is the Board was merely stating that in its opinion dollar volume under $50,000 per annum did not create sufficient impact upon interstate commerce as to require it to accept jurisdiction in every case. Haleston Drug Stores, Inc. v. N.L.R.B., 187 F.2d 418; Breeding Transfer Co., 110 N.L.R.B. 493.

That this is not a sufficient waiver of jurisdiction one need but to refer to the act of 1959 where we find that the state courts are granted jurisdiction only "over labor disputes over which the Board declines pursuant to paragraph 1."

Paragraph 1 states that the board "may decline" by decision or published rules. Thus, the words "may decline" clearly require the Board to act to waive its right of jurisdiction before the state courts may exercise theirs.

The act nowhere provides for concurrent exercise of jurisdiction. Jurisdiction of unfair labor practices involving interstate commerce lies either with the Board or the State. There can be no doubt of this legal conclusion since the Guss decision.

The Siemons decision shows at most the Board may not elect to act. But this is not the equivalent of declining to act.

I can reach no other conclusion than, until it appears that the Board has established a rule under which it can be at least said that the Board will not exercise its jurisdiction as to a class of disputes or the Board has actually declined in a particular matter to exercise its jurisdiction, the courts of the state are powerless to act.

There is no showing of a presentment to the Board and its rejection of this case. I therefore concur in the result. However, I must disagree with the majority opinion as to the act being prospective and not retrospective in operation.

The basis upon which the majority seek to base their opinion that the Congress intended the act to be prospective in operation seems to me untenable. If I understand their reasoning, it is that since the states may apply state law and thus apply state remedies in matters left to their jurisdiction, there is a change in the substantive law.

They do not point out and I am unable to discover any substantial difference in the remedy the NLRB might apply and have enforced in the federal courts from that which the state could have applied in the case before us.

Also until the act is interpreted in the federal courts, or Congress acts, no one knows whether the state courts will be required to adhere to federal law or will be at liberty to apply the law of the jurisdiction.

In any event if we look to the general rules of interpretation there is no question in my mind but that the act is remedial in purpose and should be given retrospective interpretation.

The preemption of the entire field where interstate commerce was effected was of gradual growth based upon case by case decisions of the Supreme Court of the United States. Until the opinions in Guss v. Utah Labor Board, supra, and San Diego Building Trades Council, etc. v. Garmon, supra, it was thought that there were areas in which, though they might involve interstate commerce, the state courts and their labor agencies might act. See Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harvard Law Review, 1086.

When the Supreme Court determined this field had been entirely preempted by Congressional action, it was apparent because of the inability of the labor board to carry the burden and its discretionary power to decline its aid in adjusting labor disputes, Polish Nat. Alliance v. N.L.R.B., 322 U.S. 643, 64 S Ct 1196, 88 L ed 1509; Joliet Contractors Ass'n v. N.L.R.B., 193 F.2d 833, cert. denied, 346 U.S. 824, 74 S Ct 40, 98 L ed 349, that no forum existed whereby an aggrieved party to a labor dispute with any impact upon interstate commerce might be heard.

The Congress, then realizing there were numerous labor grievances which would have no forum in which they could be heard, passed the act permitting the Board to waive jurisdiction that they might be adjusted in the state courts. See Daily Congressional Record.

These statements of the members of Congress clearly disclose an intent to remedy a defect in this field of the law where interstate commerce was involved.

"Generally speaking remedial statutes are those which afford a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries, * * *" 2 Sutherland Statutory Construction, 3d ed, ch 33, § 3301, p. 234. (Emphasis mine).

"* * * It is true that rules of statutory construction strongly favor a prospective interpretation of statutes which affect substantive rights, but when the new statute concerns itself merely with laws of procedure or remedies, the statute is generally applied to existing rights as well as to those which may accrue in the future. Denny v. Bean, 51 Or. 180, ( 93 P. 693, 94 P. 503)." Spicer v. Benefit Ass'n of Ry. Emp., 142 Or. 574, 17 P.2d 1107, 21 P.2d 187. See also M M Woodworking Co. v. Tax Commission, 217 Or. 161, 314 P.2d 272, 317 P.2d 920, 339 P.2d 718.

But this rule of interpretation, as I understand it, applies where the act effects the jurisdiction of a court established by the body enacting the statute.

The law is now well settled that Congress cannot confer jurisdiction upon any court which it has not established. Bowles v. Barde Steel Co., 177 Or. 421, 164 P.2d 692, 162 ALR 328; Walton v. Pryor, 276 Ill. 563, 115 N.E. 2, Cert denied, 245 U.S. 675, 38 S Ct 8, 62 L ed 542; Healy v. Ratta, 292 U.S. 263, 54 S Ct 700, 78 L ed 1248.

State courts derive their jurisdiction from the constitution and laws of the state and their jurisdiction cannot flow from any other source. Dippold v. Cathlamet Timber Co., 98 Or. 183, 193 P. 909.

Since the constitutional laws of the United States are the supreme law of the land, the Congress may only restrict the powers of the state and it is in this manner that they limit the jurisdiction of its courts. Healy v. Ratta, supra.

1 Sutherland, Stat Const, 3d ed, § 2027, says:

"Where a state statute is declared unconstitutional or invalid because it is in conflict with federal legislation, the state statute is in effect merely unenforcible or suspended by the existence of the federal legislation."

There is no question but that had the labor dispute not had impact upon interstate commerce the courts of this state would have had jurisdiction of the parties and the subject matter and the right to proceed to a full and final determination of the issues. Markham Callow, Inc. v. International Woodworkers, etc., 170 Or. 517, 135 P.2d 727.

Nothing I have stated relative to the source of jurisdiction is in conflict with decisions of the Supreme Court which hold that state courts of competent jurisdiction, when their jurisdiction may be invoked, must enforce the laws of the United States. See Testa et al. v. Katt, 330 U.S. 386, 67 S Ct 810, 91 L ed 967, 172 ALR 225. Testa et al. v. Katt, and kindred cases, deal not with the source of jurisdiction but with the power to require exercise of jurisdiction.

This distinction is clearly set forth by Mr. Justice BRAND in Bowles v. Barde Steel Co., supra, at page 470:

"The cases cited demonstrate that the jurisdiction of state courts is not based on any delegation of federal judicial power. On the contrary, in enforcing federal statutes, the state courts exercise the judicial power of the state. In State ex rel. v. Olson, supra, this Court said: `Jurisdiction is conferred upon state courts.' Perhaps the word `conferred' is inapt. We might better have said jurisdiction is authorized, and, being authorized, should be exercised."

It therefore clearly appears that the state courts had jurisdiction of the matter but that its power to proceed when it discovered that interstate commerce was involved was suspended.

The question therefore is not whether the state courts had jurisdiction of this dispute but when the federal restriction of its jurisdiction was lifted to permit the exercise of its power. The answer to this question in my opinion is found in determining whether Congress by the passage of this amendment intended to permit the NLRB by rules and regulations to waive its jurisdiction as to matters which could have been pending before it.

A reading of the act itself convinces me that Congress clearly expressed its intention that the act was to apply to all matters over which the board might exercise its jurisdiction with a single exception. This exception is found in the last sentence of C-1 which reads as follows:

"* * * that the board shall not decline to exercise jurisdiction over any labor dispute of which it would have exercised jurisdiction under the standards prevailing upon August 1, 1959." (Emphasis mine)

This language could only be interpreted as requiring the Board to accept jurisdiction of cases which were then pending and on which the Board would have acted under its rules and regulations prevailing on August 1, 1959.

I cannot believe that Congress intended to limit the power of the Board to make new rules and regulations within its discretionary power in the future.

It therefore seems clear to me that the Board was free to act as to all matters then pending or which might have been pending which were below the standard of its rules and regulations as they existed on August 1, 1959.

In any event, since Congress does not endow state courts with jurisdiction but merely lifts the limitation upon their proceeding in a matter which was in conflict with the Federal legislation, it seems clear to me that a case pending in a state court which has jurisdiction of the parties and the subject matter but may not proceed when it appears its powers are limited by Federal law, regains its power to proceed when the bar is lifted.

There is no question but that the bar was lifted with the passage of the Landrum-Griffin Act.

Where a court's jurisdiction or its extent depends upon the facts of a particular case, jurisdiction is determined at the time the facts are shown, challenged and decided. Larkin v. Saffarans, 15 F 147; Judkins v. Taffe, 21 Or. 89, 27 P. 221; Federal Reserve Bank of Richmond v. Kalin, 77 F.2d 50; Bascom v. District Court, 231 Iowa 360.

The jurisdiction of the state court in the matter before us was not decided until after the passage of the Landrum-Griffin Act.

That enlarging the jurisdiction of a court relates only to practice and procedure is well established by the above cited cases and, as stated in Federal Reserve Bank of Richmond v. Kalin, supra, "`apply to pending actions and those subsequently instituted, although the cause of action may have arisen before.' Link v. Receivers of Seaboard Air Line Ry. Co. (C.C.A. 4th) 73 F.2d 149, 151; Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409; Baltimore P.R. Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231."

For the above reasons I concur in the result but I must dissent from the majority's finding that the act had only prospective application.

Mr. Justice ROSSMAN concurs in this opinion.