Opinion
January 11, 1956 —
February 7, 1956.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Reversed.
For the appellants there was a brief by Warne, Duffy Dewane of Green Bay, and oral argument by Lloyd O. Warne.
For the respondent there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and Beatrice Lampert, assistant attorney general, and oral argument by Mrs. Lampert.
For the complainant Leland J. Le Mieux there was a brief by Welsh, Trowbridge, Wilmer Bills, and oral argument by Lloyd J. Planert, all of Green Bay.
Petition by the Wisconsin Employment Relations Board (hereinafter referred to as "W. E. R. B.") to the circuit court for a judgment enforcing an order of W. E. R. B. against Journeymen Barbers, Hairdressers, Cosmetologists, Proprietors International Union of America (hereinafter referred to as the "barbers union," or simply the "union"); Local No. 115 of said barbers union; Guild No. 27 of said barbers union; and John Billie (international field representative for the union), Charles Cole and Emil Pire (president and secretary-treasurer of Guild No. 27). The union, the local, the guild, and individual respondents so affected by the order of W. E. R. B. will hereinafter be referred to collectively as the "defendants." These defendants instituted a separate action under the Wisconsin Administrative Procedure Act (ch. 227, Stats.) in the same court for review of said order of W. E. R. B. and its supporting findings of fact. Both proceedings came on for trial before the court without a jury at the same time and were heard together by the circuit court. The original proceedings before W. E. R. B. were initiated by a complaint filed by one Leland J. Le Mieux against the defendants, charging them with being guilty of acts constituting unfair labor practices, which acts were alleged to be a violation of sec. 111.06 (1) (b), Stats. 1951, being part of the Wisconsin Employment Peace Act. The facts hereinafter set forth are those brought out by the testimony and exhibits offered at the hearing held by W. E. R. B. upon such complaint. The trial before the circuit court in the enforcement and review proceedings was confined to the record of the proceedings had before W. E. R. B.
In August, 1952, Le Mieux took over the proprietorship of a barbershop in the city of Green Bay previously operated by his father. For some years prior thereto Le Mieux had been a member of Local No. 115 of the barbers union, but upon becoming a shop proprietor he transferred his membership from Local No. 115 to Guild No. 27.
Both Local No. 115 and Guild No. 27 were affiliated with the barbers union which had its headquarters in Indianapolis, Indiana. In many communities both journeymen barbers and barbershop proprietors who worked at their trade were members of the same local of the union. However, in some cities, such as Green Bay, a separate local was established which was restricted solely to employer barbers working at the trade, which employers' locals were given the name of "guild," instead of "local." In cities having such a guild the membership in the union local was restricted to journeymen who were employees.
At the time when Le Mieux became proprietor of the shop there was hanging on the wall thereof a "Union Shop Card," which card stated on its face that it was the property of the barbers union and subject to the conditions set forth on the back thereof. On the reverse side of such card were printed the conditions governing the continued display of the card. In addition to such conditions printed on the back of the card, the father of Le Mieux, on January 28, 1949, had signed a separate agreement with the union governing the display of such union-shop card in the shop. Under both such written agreement and the conditions printed on the back of the card itself, the union, or its local, had the unqualified right to remove the card upon the shop ceasing to be a "union shop" within the regulations of the union.
In October, 1953, Le Mieux mailed his written resignation from membership to Guild No. 27, which resignation became effective as of December 31, 1953, to which date he had previously paid dues. Local No. 115 requested permission to remove the union-shop card, which request was denied. Thereafter, Local No. 115 instituted an action of replevin to recover possession of said union-shop card, and, pursuant to the writ of replevin issued in such action, the card was removed from the shop of Le Mieux. As of the time of trial on June 30, 1954, in the proceedings before W. E. R. B., Le Mieux was employing his father on a part-time basis and two other journeymen barbers. The father, who had previously been a union member, had ceased to be one in October, 1953. Of the remaining two employees, one was not a union member and the other Ralph Albertz, was a member of the local. Albertz had been employed by Le Mieux at the time of the removal of the union-shop card. The record is silent as to any attempt on the part of the union to pressure Albertz into leaving the employ of Le Mieux after the removal of the card.
Subsequent to the conclusion of the hearing, W. E. R. B., under date of October 29, 1954, entered findings of fact, conclusions of law, and an order. Said findings set forth most of the facts hereinbefore summarized. In addition, one of the findings of fact specifically set forth that the provisions of sec. 3, art. VII of the union constitution, read as follows:
"Any shop recognized as a union shop by the laws and principles of our union shall be entitled to display said shop card, provided that the proprietor or person duly authorized to conduct said shop shall have signed the agreements required by these laws.
"When the union-shop card is removed from any shop for violation of the laws, rules, regulations, and agreements, all members employed therein shall immediately leave the employment of said shop. For failure to comply with the above the member or members will be subject to suspension and to penalties as provided for in article XIII of this constitution."
The conclusions of law determined that the defendants, with the exception of Cole, "have committed and are now committing unfair labor practices within the meaning of section 111.06 (2) (m) by coercing and intimidating the complainant Leland J. Le Mieux to become a member of a labor organization affiliated with another labor organization of which employees and future employees of Leland J. Le Mieux are members."
The order entered by W. E. R. B. ordered the defendants other than Cole to cease and desist from:
(a) Coercing and intimidating or attempting to coerce and intimidate Le Mieux to become and remain a member of Guild No. 27, or any other labor organization;
(b) Requiring or insisting that Le Mieux become a member of Guild No. 27 or any other labor organization, as a condition of displaying the union-shop card;
(c) Enforcing or attempting to enforce any provisions of the union constitution which provided for the suspension of and the imposition of penalties against any union members "who seek employment with, or who are now employed" by Le Mieux. In addition, said order required the return to Le Mieux of the union-shop card for display in his barbershop.
The judgment subsequently entered by the circuit court in the proceedings by W. E. R. B. for enforcement of its order and in the action for review instituted by the defendants confirmed the W. E. R. B. order dated October 29, 1954; adjudged its enforcement; and dismissed the review proceedings.
The defendants appeal from such judgment. Further facts will be recited in the opinion.
For many years the craft unions organized by the American Federation of Labor in the skilled trades have followed the policy that, where an employer works with the tools of his trade, he, as well as his employees, must be members of the union in order that the employer be considered as operating a "union shop." Pursuant to this policy the barbers union has provided by sec. 5, art. VII of its constitution, as follows: "No [union] shop card shall be displayed in a barber or beauty shop unless all persons working in the shop with the tools of the trade are members of the union in good standing." Both the conditions printed on the back of the union-shop card, and the separate written agreements exacted from shop proprietors governing the display of the card, make observance of such provision of the union's constitution necessary in order to entitle the shop proprietor to continue to display the card in his shop.
This court in Wisconsin E. R. Board v. Journeymen Barbers (1949), 256 Wis. 77, 39 N.W.2d 725, held it to be a violation of sec. 111.06 (1) (b), Stats., as such section was then worded, for an employer to belong and pay dues to the same union of which his employees were members. This was because such section made it an unfair labor practice for an employer to contribute financial support to any labor organization. The first general session of the legislature following such decision, that held in 1951, amended sec. 111.06 (1) (b) by adding thereto the following proviso: "Provided, however, that it shall not be an unfair labor practice for an employer to become a member of the same labor organization of which his employees are members, when he and they work at the same trade." At the same time the 1951 legislature created sec. 111.06(2) (m) which makes it an unfair labor practice for an employee individually, or in concert with others, "To coerce or intimidate an employer working at the same trade of his employees to induce him to become a member of the labor organization of which they are members, permissible pursuant to sec. 111.06 (1) (b)."
Inasmuch as Le Mieux had ceased to be a member of Guild No. 27 at the time the union-shop card was removed from his shop in February, 1954, there is no question but that the union had the right under the printed conditions appearing on the back of the card, and those of the separate contract entered into with the father, to so remove the card. The issue before us on this appeal is whether either the contract governing the display of the card, or the removal of the card when such contract was breached by Le Mieux, constituted coercion within the meaning of sec. 111.06 (2) (m) so as to make the defendants guilty of an unfair labor practice.
We think the first approach to the problem is to analyze the nature of the union-shop card. It would appear obvious that it stands in the same category as a union label attached to, or imprinted upon, goods made by union labor. Both are in the nature of a recommendation by the union, which owns the card or label, of the services or goods to which such card or label appertains.
The recommendation by the barbers union of a particular barbershop to those of the general public who may be interested in patronizing such shop, by furnishing the proprietor with a union-shop card to be displayed on the wall of his shop, is an exercise of the right of free speech guaranteed by the First amendment of the United States constitution as incorporated by the Fourteenth amendment. In the absence of any untruthful statement publicized by such card, we doubt if any legislature or court would have the constitutional right to interfere with the exercise of such right. On principle we cannot distinguish the act of withdrawing such recommendation, by removing the card pursuant to a contract entered into between the shop proprietor and the union, from the right to make use of the card in the first place for the purpose of recommending the shop to the public. The right to cease to speak would seem to be as much a right of free speech as the right to speak.
The attorney general contends that while an act, which if performed by one person, might be lawful, if it be done by several people in concert to attain an illegal objective, would be unlawful and subject to regulation. In support of such contention there are cited the cases of International Union v. Wisconsin E. R. Board (1947), 250 Wis. 550, 563, 27 N.W.2d 875, 28 N.W.2d 254, and Judevine v. Benzies-Montanye Fuel Whse. Co. (1936), 222 Wis. 512, 525, 269 N.W. 295. While we have no quarrel with the correctness of the principle as stated by the attorney general, we fail to see how it is applicable to the instant case. Since the 1951 amendment to sec. 111.06 (1) (b), Stats., it has been a legitimate objective for the barbers union to seek to have barbershop operators working at the barber trade belong to the union, or a local affiliated with it, as well as their employees.
For this same reason we consider the case of Journeymen Barbers v. Industrial Comm. (1953), 128 Colo. 121, 260 P.2d 941, 42 A.L.R.2d 700, to be readily distinguishable from the case at bar. The controlling Colorado statute in such case was similar to the provisions of sec. 111.06 (1) (b), Wis. Stats., as it stood prior to the adoption of the 1951 amendment. The Colorado court held that the contract between the barbershop proprietor and the barbers union, which permitted the withdrawal of the union-shop card when the proprietor ceased to be a member of the union, contravened the statute and was void. Because of this the union was denied the right to remove the card.
However, the Ohio court has held that the barbers union has the right to remove its union-shop card from a barbershop, where the contract with the shop proprietor for the display of the card authorizes it so to do, irrespective of whether the attempted removal may have been undertaken by the union for an unlawful objective. Foutts v. Journeymen Barbers (1951), 155 Ohio St. 573, 578, 99 N.E.2d 782, 785. We quote from the opinion in that case as follows:
"Where picketing, a strike, or a boycott against an employer by a union is involved, it may be appropriate to determine whether the object sought to be achieved by such union activity is legal and proper. Crosby v. Rath, 136 Ohio St. 352, 25 N.E.2d 934, certiorari denied, 312 U.S. 690, 85 L.Ed. 1126, 61 S.Ct. 618; Restatement of the Law of Torts, section 775. However, where a union merely discontinues its recommendation or approval of an employer and is under no contractual obligation to continue such recommendation or approval, it may discontinue such recommendation or approval for any reason." [Citing among other authorities 31 Am. Jur., Labor, p. 869, sec. 84.]
The above quotation from the Foutts Case is quoted verbatim with approval by the Alabama court in its very recent decision in Head v. Journeymen Barbers (1955), 262 Ala. 84, 88, 77 So.2d 363, 367.
It is the further position of the attorney general that the removal of the shop card equates picketing because both result in economic pressure being exerted upon the employer by reason of prospective customers being induced to withhold their patronage. Proceeding from this premise, it is urged that, if picketing which is thus coercive may be enjoined under certain circumstances as an unfair labor practice, it follows that the barbers union, its locals, and officers, may likewise be enjoined from removing the union-shop card or be compelled to restore it to the shop proprietor after its removal. However, as this court pointed out in Wisconsin E. R. Board v. Retail Clerks Int. Union (1953), 264 Wis. 189, 194, 58 N.W.2d 655, the fact that picketing may cause loss of patronage to the employer does not convert conduct otherwise lawful into an unlawful activity.
The reason that peaceful picketing may be enjoined when conducted in aid of an unlawful objective is that it embodies more than the exercise of free speech. As Mr. Justice MINTON aptly observed in Building Service Union v. Gazzam (1950), 339 U.S. 532, 537, 70 Sup. Ct. 784, 94 L.Ed. 1045, "picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey." This is not true of the ceasing by the barbers union to recommend a certain barbershop occasioned by the removal of its union-shop card from the walls of the building in which the shop is being operated.
The words "coerce or intimidate" appearing in sec. 111.06 (2) (m), Stats., must be construed in the light of sec. 111.15, which provides, nothing "in this subchapter [shall] be so construed as to invade unlawfully the right to freedom of speech." As so construed, the removal of the union-shop card, in view of the principles hereinbefore stated in this opinion, does not constitute coercion within the meaning of sec. 111.06 (2) (m).
The Ohio court in its decision in Foutts v. Journeymen Barbers, supra, points out a further reason of public policy why the barbers union should not be ordered to restore a union-shop card which it had removed by reason of the shop proprietor ceasing to be a member of the union. We quote further from such opinion as follows ( 155 Ohio St. 578, 579) :
"The display of the union-shop card in the instant case is a representation by the plaintiff to his employees and to the public that the plaintiff is recommended by and has the approval of the defendant union. If the plaintiff is not so recommended and does not have that approval, then that representation is false. Such a false representation will necessarily tend to deceive the public and the employees of the plaintiff. In the instant case, if a court of equity enjoins the defendant union from removing its shop card when the defendant union no longer either recommends or approves the plaintiff, then that court will thereby enable the plaintiff to deceive the public."
We cannot believe that the legislature intended sec. 111.06 (2) (m), Stats., to be so construed as to enforce a course of conduct which must necessarily result in a deception of the public in the manner above stated.
The judgment appealed from, in addition to granting enforcement of the W. E. R. B. order with respect to the restoration of the union-shop card to Le Mieux, also enforces that portion of such order which restrains the defendants from enforcing the section of the union constitution that provides for punishment being meted out to any union member who would continue to work for Le Mieux after the removal of the union-shop card. However, W. E. R. B. in its findings of fact, expressly found that at no time had any of the defendants "suggested, intimated, or ordered Albertz [the only employee of Le Mieux who was a member of the union] to leave the employment of the complainant Le Mieux." We, therefore, do not consider that the findings support such portion of the order.
By the Court. — Judgment reversed, and cause remanded with directions to enter a judgment setting aside the W. E. R. B. order dated October 29, 1954.