6 N.W.2d 339 | Wis. | 1942
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *288
Petition filed in the circuit court under sub. (7) of sec.
After a hearing, the State Board made findings of fact which briefly summarized are, so far as here material, to the following effect. After Local 471 was selected as the exclusive *290
collective-bargaining agent for Lakeside's production workers through an election held by the National Board, Lakeside, on June 23, 1937, entered into a collective-bargaining contract with Local 471, which expired February 1, 1938, and was renewed orally for a period of two weeks, and since then Local 471 has not had any contractual relations with Lakeside. From September, 1938, no attempts were made by Local 471 to enter into such relations until July 31, 1940, after which on a number of occasions, until November 17, 1940, representatives of Local 471 sought to negotiate on behalf of Lakeside's production employees, a collective-bargaining agreement covering wages, hours, and other working conditions, but no employee of Lakeside joined in the negotiations at conferences held between Lakeside and representatives of Local 471. Local 471 admits to membership only production workers of Lakeside, and in 1937 and 1938 had one hundred thirteen fully paid-up members, but commencing in 1938 members ceased paying dues, until about one year previous to the hearing the members paying dues had been reduced to five or six, and because approximately one hundred seven members had failed to pay dues within a year after they became due, their membership in Local 471 was automatically forfeited under its rules, regulations, and by-laws. Because Lakeside and Local 471 could not come to a mutual understanding regarding the right of the latter to exclusive representation of all production workers and regarding proposed terms of an agreement pertaining to wages, hours, and working conditions, Local 471, on November 4, 1940, commenced picketing and has since continued such picketing daily near the entrance for trucks on Lakeside's premises. The pickets, numbering generally from two to eight, and twenty on one occasion, display a banner with the printed legend "Lakeside Bridge Steel Company has no contract with Local 471, A.F.L. Please do not patronize." The legend is a fraud on the public and on other A.F.L. unions, in that the legend *291
impliedly states that Local 471 has the right and that Lakeside is free to make a contract with Local 471, when no such right in Local 471 and no such freedom in Lakeside exists. Readers of the legend were misled as to the true facts involved in the controversy between Lakeside and Local 471, and this fraudulent advertising, as an incident of picketing, characterizes the picketing itself as fraudulent, and the effect of this deceptive picketing and bannering had induced officers and members of the respondent unions and others interested in union labor movement to loose upon Lakeside and its independent contractors and truckers damaging economic pressure, which Local 471 calculates would follow from such conduct. On November 4, 1940, Peter Schoemann, acting as the agent for Local 113 and Bricklayers' Union No. 8 and also as president of Milwaukee Building Trades Council, with which those unions were affiliated, informed a construction company, which was erecting structures on Lakeside's premises, that it had labor trouble with Local 471, and that a picket line had been established by Local 471; and upon the contractor's receiving such information, it had its employees cease with further construction work for Lakeside until Local 471 ceased picketing. Likewise, when on November 4, 1940, the superintendent of another contractor, who was to erect a fence for Lakeside, requested the business agent of Local 8 to supply him with a crew from among the members of Local 8, he refused the request and told the superintendent that he would furnish no crew until Local 471 ceased picketing activities at Lakeside. All of the respondents made common cause against Lakeside and the quarrel between Local 471 and Lakeside became the quarrel of each and in the pursuit of their common objective to have Local 471 succeed in obtaining a contract from Lakeside recognizing Local 471 as the exclusive bargaining agent for all of Lakeside's production workers, and respondents adopted a course of coercive conduct directed against Lakeside with the intent and purpose of producing *292
injury and damage to Lakeside's business and by co-operating in this common plan to cause injury and damage to Lakeside, without engaging in actual violence, respondents incited and caused the withdrawal of services of union members from their respective employers when their services were required the performance of contracts by their employers with Lakeside. The combination of respondents to damage Lakeside and third-party employers having business intercourse with Lakeside came into being through the mutual understanding existing between all locals of the A.F.L. to come to the assistance of locals engaged in picketing; and the activities of Local 471 since November 4, 1940, in picketing and bannering of Lakeside's premises are concomitants of a strike and were set in motion and continued by Local 471 without taking a strike vote or first obtaining the approval of the majority of the production employees of Lakeside, by secret ballot, to call a strike, as provided by sec.
Upon its findings the State Board concluded that Lakeside had no right or duty to recognize Local 471 as the collective-bargaining agent, based upon the result of the election held by the National Board in 1937; that any presumption that the original designation of Local 471 continued was wholly overcome *293
come by the evidence of changed circumstances which showed conclusively that the majority of production workers of Lakeside have for more than a year withdrawn their former designation of it as a collective-bargaining agent; that Local 471 had no present right to demand of Lakeside that it be recognized as collective-bargaining representative; that the respondent unions have been and are in combination with each other and have been and are engaging in concerted activities directed at Lakeside and third persons doing business with Lakeside to achieve a collective-bargaining contract between Local 471 and Lakeside, notwithstanding Local 471 had not been designated by a majority as the collective-bargaining agent that by reason of the combination the acts of one are the acts of all; that no labor dispute exists between Lakeside and any of the respondents and no labor dispute exists between the respondents and any third-party employer referred to in the findings; and that the respondent unions were guilty of unfair labor practices (1) in violating sec.
It is evident from the record that primarily and principally the State Board's order is based upon its conclusions —
"That Local 471 has no present right to demand of Lakeside that it be recognized as collective-bargaining representative of Lakeside's production employees;" and that "Lakeside has had no right nor duty to recognize Local 471 as the collective-bargaining agent of its production employees, based upon the *297 result of the election held by the National Labor Relations Board June 18, 1937."
and upon the State Board's finding that the legend "Lakeside Bridge Steel Company has no contract with Local 471, A. F. of L. Please do not patronize," which was on the banner used by the pickets, was a fraud on the public and on other A.F.L. unions, in that it impliedly states that Local 471 has the right to, and Lakeside is free to, make a contract with Local 471, when no such right and no such freedom exists; and that the display of the banner in picketing was fraudulent advertising and all who observed the picket line and read the legend were misled as to the true facts involved in the controversy between Lakeside and Local 471.
The State Board's determination in those respects cannot be sustained. There is no evidence in the record of any fact by reason of which the status of Local 471 as the bargaining agent duly selected at the election conducted by the National Board in June, 1937, by a majority vote of Lakeside's production workers can be deemed to have been terminated. Although many members of the union were in arrears in their dues, because of which their membership could be automatically forfeited or suspended under the Union's rules and regulations, subject to reinstatement under certain conditions, there is no proof that they or any of the other production workers had indicated a change in their attitude in respect to having Local 471 continue as their collective-bargaining representative. Moreover, nowhere in the statutes is membership in a union indicated to be a test as to whether a particular union shall be eligible to become or to continue to be the exclusive bargaining representative of a unit of an employer's workers. On the contrary, when duly elected as such representative of all such workers, the union is the representative for all of them regardless of whether or not they are then or thereafter members thereof; and the union's status as such representative is *298
presumed to continue on behalf of all such workers until the termination thereof in some legally effective manner is shown or authoritatively determined. As the court said on rehearing in Oughton v. National Labor Relations Board (3d Cir.),
"The rule of presumed continuity of representative status is but the logical consequence of the realities of the situation. . . . However, it would seem, if the designation of a bargaining agent is to be considered stale, the matter would properly be for the board to weigh along with all factors directly pertinent in the discharge of its duty to dissipate unfair labor practices. The act prescribes no period of limitations to the continuity of a bargaining agent's majority status; and it is not easy to see how the courts may outlaw the choice of a bargaining agent freely made. After all, the selection of a representative for collective bargaining is a matter for the employees of an appropriate unit and for none other. NationalLabor Relations Board v. Highland Park Mfg. Co.supra. Until they take action, as permitted by the act (sec. 9), to express a new choice, the continuity of the bargaining agent's majority must be presumed. National Labor RelationsBoard v. Whittier Mills Co., et al., supra; National LaborRelations Board v. Remington-Rand, Inc., supra."
That is in accord with decisions in M. H. Ritzwoller Co. v.National Labor Relations Board (7th Cir.),
In point, by analogy, in the case at bar are the following conclusions stated in connection with the rule quoted above in the Highland Park Mfg. Co. Case, supra, —
"It is reasonable to assume, moreover, that any decline in union membership has been due in large measure to refusal of respondent to bargain with the union as representative of the employees in the manner contemplated by the act of congress; *299 and, in such situation, an order requiring respondent to bargain as contemplated by the act is reasonably necessary to overcome the effect of the interference with self-organization resulting from the refusal to bargain. An employer should not be allowed to discredit a bargaining agent selected by an overwhelming majority of his employees by refusal to bargain with it and then take advantage of the loss of membership due to his wrongful act as an excuse for refusing to recognize it as a bargaining agent. It must be remembered that the union represents the employees, not the employer; and, if a majority of the employees are not satisfied to be represented by it, they can apply to the board for relief. It is significant that, while the affidavits filed before us state that a majority of the employees are not members of the union and that for some time it has not been the designated or selected representative of the majority, there is nothing in them to the effect that the employees are not willing to have it bargain for them."
Likewise in point are the following conclusions stated in the Valley Mould Iron Corp. Case, supra, —
"As we read the statute, in the board is lodged jurisdiction to determine in a proper manner the unit appropriate for the purpose of collective bargaining. Congress conferred exclusive jurisdiction upon the board to determine the appropriate and selective bargaining unit for employees and gave to it alone proper machinery by way of election for making such determination. Employees have the right to designate their bargaining agent. The board alone may certify the selection and we take it that so long as that certification remains in full force and effect, the organization designated must be recognized. The employer must accord to a certified agent recognition as the proper bargaining agent until the certification is rescinded or succeeded by another. Any other holding would upset orderly procedure and destroy the efficiency of determination by the body authorized to act and maintain the proceedings in a state of suspension and indecision."
In the Lorillard Case, supra, the court, after recognizing the rule stated in the Oughton Case, supra, added the qualification that, — *300 "that presumption may be rebutted by lapse of time . . . or by a change in the condition which demonstrates that a shift in sentiment actually exists among the employees, and is caused by other factors than the employer's refusal to bargain collectively."
However, upon the court concluding, in applying that qualification, that the presumption had been rebutted by reason of such circumstances and that therefore there should be a new election ordered by the National Board, the court's decision to that effect was reversed in National Labor Relations Board v.P. Lorillard Co.
It follows therefore in the case at bar that, in the absence of appropriate action duly taken in the manner prescribed by law to enable the workers in question to express a new choice as to their collective-bargaining representative or to otherwise. evidence definitely the effective termination of the status of Local 471 as such representative, the continuity of its status as such representative must be presumed; and that consequently the State Board was in error in concluding that Local 471 had no right to demand of Lakeside to be recognized as such representative at the times in question. And it also follows that at all of' said times it continued to be the duty of Lakeside to recognize Local 471 as such collective-bargaining representative.
Likewise it follows that inasmuch as Local 471 on November 4, 1940, still continued to be authorized and have the right as such bargaining representative to contract with Lakeside, and there was then no contract presently effective, the legend "Lakeside Bridge Steel Company has no contract with Local 471, A. F. L. please do not patronize," which was on the banner used by the pickets, was truthful and therefore did not constitute fraudulent advertising or a fraud on other unions or anyone else, or the public at large. As the legend *301 stated the literal truth, the display thereof as an incident of the picketing cannot be deemed to have characterized the picketing itself as fraudulent. Consequently, the evidence does not admit of the findings made by the State Board in these respects, and they must be disregarded.
In the absence of any such fraud, and the absence, in connection with the picketing and use of the legend, of any violence, lawlessness, interference with the ingress or egress at Lakeside's premises, or other oppressive misconduct, respondents were entitled in the exercise of the right of free speech to publicize the facts in the way in which they did. Consequently, they cannot be prohibited from doing so by any order of the State Board to cease and desist from engaging in, promoting, or inducing such picketing at or near plaintiff's premises; or attempting to induce Lakeside to bargain collectively with Local 471, or to agree to specific terms in a collective-bargaining contract with Local 471. In this case, as Mr. Justice FRANKFURTER said in American Federation of Laborv. Swing,
"All that we have before us, then, is an instance of `peaceful persuasion' disentangled from violence and free from `picketingen masse or otherwise conducted' so as to occasion `imminent and aggravated danger.' Thornhill v. Alabama,
As Mr. Justice MURPHY said in the Thornhill Case
(
"In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the constitution. . . . Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the process of popular government to shape the destiny of modern industrial society. The issues raised by regulations, such as are challenged here, infringing upon the right of employees effectively to inform the public of the facts of a labor dispute are part of this larger problem. . . . It may be that effective exercise of the means of advancing public knowledge may persuade some of those reached to refrain from entering into advantageous relations with the business establishment which is the scene of the dispute. . . . But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests."
And as Mr. Justice JACKSON said in Bakery Pastry Drivers,etc., v. Wohl,
"One need not be in a `labor dispute' as defined by state law to have a right under the Fourteenth amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive."
Regardless of whether or not some of the matters demanded by Local 471 may be either prohibited by the state statutes or be permissible under the federal statutes, and whether or not picketing and the other peaceful activities in which defendants engaged, in the absence of any strike by Lakeside's employees, *303
constituted an unfair labor practice under sec.
By the Court. — Judgment affirmed.
Dissenting Opinion
I agree with the proposition discussed in the opinion of the court that Local 471 remained the bargaining agent of the employees of Lakeside until its agency was terminated by an election by the employees of another agent or withdrawn by some other affirmative action of a majority of the employees, but do not agree with the effect given to it. Although the proposition is correct the order of the State Board should nevertheless be affirmed, except par. (d) of div. 1 thereof. The substance of the order is stated in the margin.1 *304
The sole ground given in the opinion of the court is that the legend on the banner displayed by the picketers of Lakeside was "literally true." That this does not save picketing banned by a constitutional state statute is held in Carpenters Joiners Union of America v. Ritter's Cafe,
The existence of the matters above mentioned was held in the Golden Guernsey Case, supra, to render valid the order of the State Board in that case. All of the decisions of the supreme court here relied on by the respondents were relied on by the defendants in the Golden Guernsey Case, and it would seem that that case settled the validity of the instant order, unless subsequent decisions of the United States supreme *305
court require recession from the position there taken. Two such cases deal with labor relations. One of these isCarpenters Joiners Union v. Ritter's Cafe, supra. That case involved a Texas statute restricting picketing "to the area of the industry within which a labor dispute arises." Ritter's care was unionized, and no labor dispute existed between the employer and his employees or the Restaurant Employees' Union to which the employees belonged. Ritter was constructing a building some distance away from the care under a contract with Plaster that left to Plaster the employment of the labor used in the construction. Plaster employed nonunion labor. A carpenters' union picketed the care and the pickets carried a sign reading "This place is unfair to . . . [naming a carpenters' union and a painters' union]," which was afterwards changed to read "The owner of this care has awarded a contract to erect a building to W.A. Plaster who is unfair to . . . [the two unions above indicated]." The purpose of the picketing was to compel Ritter to require Plaster to employ only members of the two unions indicated in the construction of the building. The union to which the employees of the care belonged called Ritter's employees out on a strike as a result of the picketing and withdrew the union card of the care, and union truck drivers refused to cross the picket line to deliver food and other supplies. The effect of all this was "to prevent members of all trade unions from patronizing" the care and "to erect a barrier around plaintiff's care, across which no member of defendants' [the picketing] union or its affiliates would go," and to decrease the cafe's patronage sixty per cent.
"The right of the state to determine whether the common interest is best served by imposing some restrictions upon the use of weapons for inflicting economic injury in the struggle of conflicting industrial forces has not previously been doubted. . . ." The "circumstance that a labor dispute is the occasion of exercising freedom of expression does not give that freedom any greater constitutional sanction [than it would otherwise have] or render it completely inviolable. Where, as here, claims on behalf of free speech are met with claims on behalf of the authority of the state to impose reasonable regulations for the protection of the community as a whole, the duty of this court is plain."
"While the right of free speech is embodied in the liberty safeguarded by the due-process clause, that clause postulates the authority of the states to translate into law local policies to promote the health, safety, morals, and general welfare of its people. . . . The limits of this sovereign power must always be determined with appropriate regard to the particular subject of its exercise.'"
"It is true that by peaceful picketing workingmen communicate their grievances. As a means of communicating the facts of a labor dispute, peaceful picketing may be a phase of the constitutional right of free utterance. But recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power to confine the sphere of communication to that directly relating to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the states the power to draw this line is to write into the constitution the notion that every instance of peaceful picketing — anywhere and under any circumstances — is necessarily a phase of the controversy which provoked the picketing. Such a view of the due-process clause would compel the states to allow the disputants *307 in a particular industrial episode to conscript neutrals having no relation to either the dispute or the industry in which it arose."
"We must be mindful that `the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist. This is but an instant of the power of the state to set the limits of permissible contest open to industrial combatants.'"
Four justices of the United States supreme court dissent in the Ritter's Cafe Case, supra, but the above quotations declare the law as it presently is and it is for this court to follow that law.
The other case referred to decided since our GoldenGuernsey Case, supra, was decided is Bakery Pastry Drivers,etc., v. Wohl,
It would seem that the above is sufficient to justify the instant order of the board without further discussion, but it will perhaps clarify this opinion to state the general principles upon which it is based. Picketing may not be engaged in *308
when it is unlawful, and whatever is violative of a statute is unlawful, unless the statute is unconstitutional or invalid for some other reason. No ground of invalidity of par. (f), (g), or (c) of the statutes instantly involved is claimed, except that they violate the free-speech provision of the United States constitution. The rights protected by the free-speech provision are not absolute. They may be restricted so far as may be reasonably necessary or reasonably adapted to promote the general welfare. The respondents concede that picketing may be restricted so far as necessary or reasonably adapted to restrain violence. This is so because the use of violence is unlawful. Likewise like restraint may be imposed by the state against picketing when for any other reason it is unlawful. Such in effect is the ruling in American Furn. Co. v. I. B. ofT.C. H. of A., etc.,
"(c) To encourage or discourage membership in any labor organization, employee agency, committee, association or representation plan by discrimination in regard to hiring, tenure or other terms or conditions of employment; provided, that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employees in a collective-bargaining unit, where three-quarters or more of the employees in such collective-bargaining unit shall have voted affirmatively by secret ballot in favor of such all-union agreement in a referendum conducted by the board. . . ." *309
Nor could the defendant union lawfully picket to prevent delivery of materials to Lakeside required for the performance of its contracts, especially its contracts with the United States government for articles required for naval construction; nor could it picket when the picketing created a secondary boycott. All such picketing is banned by pars. (f) and (g) of sec.
"(2) (f) To hinder or prevent, by mass picketing, threats, intimidation, force or coercion of any kind the pursuit of any lawful work or employment or to obstruct or interfere with entrance to or egress from any place of employment, or to construct or interfere with the free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance.
"(g) To engage in a secondary boycott; or to hinder or prevent, by threats, intimidation, force, coercion or sabotage, the obtaining, use or disposition of materials, equipment or services; or to combine or conspire to hinder or prevent, by any means whatsoever, the obtaining, use or disposition of materials, equipment or services, provided, however, that nothing herein shall prevent sympathetic strikes in support of those in similar occupations working for other employers in the same craft."
While pars. (f) and (g) of (2) and par. (c) of (1) by the opening clause of sec.
As to the claim that doing these things violates the defendants' rights of free speech, they do not violate those rights the statute itself does not violate them. No statute is void *310
as violative of the free-speech constitutional provision where there is a balancing of the considerations for the protection of public welfare against those for the protection of free speech, and there is reasonable ground for judging that the former overbalance the latter. This is expressly recognized in the Ritter Cafe decision, supra, and is in effect held in the Meadowmoor Dairies Case,
"It is the policy of the state, in order to preserve and promote the interests of the public, the employee, and the employer alike, to establish standards of fair conduct in employment relations and to provide a convenient, expeditious and impartial tribunal by which these interests may have their respective rights and obligations adjudicated . . . ."
The supreme court of the United States has no more lawful right or power to override that legislative judgment in enacting the instant act than it had to override the state legislatures in the Meadowmoor and Ritter Cafe Cases, supra. But may be that for trivial or unimportant considerations it might be held unconstitutional to apply the statute to ban picketing. The act of the defendants in stopping the construction of a building deemed by the government necessary to provide for the manufacture of articles for the navy for use in the common defense, or in stopping the construction of a fence deemed by the government necessary for the protection of the Lakeside plant to enable Lakeside to properly perform its contract for naval construction, certainly cannot be held not unreasonably to overbalance the exercise of the defendants' claimed right of free speech to compel unionization of the Lakeside plant. The considerations for protection of the public welfare in the respect stated most certainly overbalance the right of the defendants' free speech, and that right was properly restricted by the State Board. The facts that the *311 Lakeside was engaged in performing naval construction contracts, and that the building and fence above mentioned were being erected for the purpose stated, are not mentioned in the statement of facts preceding the opinion of the majority or in the opinion, but the State Board so found, and the evidence supporting the finding is without dispute.
For the reasons above stated, the judgment of the circuit court should be reversed with directions to modify the order of the State Board as indicated in this opinion and affirm it as modified.
Dissenting Opinion
As I understand the record, the union was not at the time of the alleged unfair labor practice the representative of the employees. After the election of 1938 when the national labor board decided that the union was the representative, there was a drop in membership in the union from one hundred thirteen to five or six which was clearly not attributable to any acts of the employer. This, as I understand it, is without dispute and consequently the union could not be the representative of a majority of the employees. This fact together with the lapse of a long period of time must constitute an abandonment of the representative relation. In this case the national board has had no occasion to consider the present status of the union, and I see no reason why in deciding a matter properly within the province of state regulation the state authority cannot decide as a matter of fact that the union is no longer the bargaining agent of the employees. This is not a case like National Labor RelationsBoard v. P. Lorillard Co.
If what I have said is true, then there was no labor dispute and the resort by Local 471 to the practice engaged in was unwarranted. *312