April 4, 1955 —
May 3, 1955.
APPEALS from two judgments of the circuit court for Sheboygan county: AROLD F. MURPHY, Circuit Judge, Presiding. Affirmed.
For the appellants there was a brief by Max Raskin of Milwaukee, David Rabinovitz of Sheboygan, and William F. Quick of Milwaukee, attorneys, and Harold A. Cranefield of Detroit, Michigan, of counsel, and oral argument by Mr. Raskin and Mr. Rabinovitz.
For the respondent Wisconsin Employment Relations Board 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 respondent Kohler Company there was a brief by Lyman C. Conger, Edward J. Hammer, and Gerard A. Desmond, attorneys, and Lucius P. Chase of counsel, all of Kohler, and oral argument by Mr. Conger.
A judgment entered September 1, 1954, enforced an order of the Wisconsin Employment Relations Board, dated May 21, 1954. A judgment entered September 9, 1954, dismissed appellants' petition for a review of the same order. The appeals from the respective judgments have been consolidated.
The Kohler Company produces and markets articles in interstate commerce. Local Union 833 UAW-CIO is the exclusive bargaining agent of the production workers of the Kohler Company, duly certified to be such by the National Labor Relations Board. The contract between the company and the union expired March 1, 1954, and negotiations between the parties for a new contract, in which the federal mediation and conciliation service participated, proved fruitless. The production employees began a strike against the company April 5, 1954. At that time the National Labor Relations Board had under consideration a complaint by the union charging the company with the commission of certain unfair labor practices in 1951 and 1952. The board decided these adversely to the company on April 12, 1954, the company appealed to the federal courts, and that appeal is pending. The National Board also has under consideration another complaint charging the company with other unfair labor practices in which, as yet, it has not reached a decision.
As soon as the strike began, the unions, through their officers and members, established a picket line around the company's premises and by various means dissuaded or prevented persons wishing to work from entering the plant. The company complained of the conduct of the pickets to the Wisconsin Employment Relations Board, alleging that the organizations and individuals named in the complaint were thereby guilty of unfair labor practices. That board conducted a hearing on the complaint and on May 21, 1954, made findings of fact that the officers, members, and agents of the union and certain named individuals had been and were then (1) engaged in mass picketing at the entrance to the plant of the Kohler Company; (2) that they have attempted to prevent the lawful work or employment of persons desiring to work for the Kohler Company by force, threats, and intimidation and by massing pickets at the plant entrances;, (3) that the large numbers and mass formations around the entrances obstruct and interfere with the free use of public streets; and (4) that the officers, members, and agents of the union have forcefully taken into custody persons attempting to enter the plant of the Kohler Company, forced them to accompany such officers, members, and agents to the strike headquarters of the respondent union and prevented them from pursuing their lawful work and employment. That in addition officers, members, and agents of the respondent union have followed the cars of persons attempting to enter or leave the Kohler Company plant and picketed their homes and have threatened the persons desiring to work with physical injury.
Upon these findings of fact the board made its conclusions of law declaring that the officers, members, and agents of the local and international unions and the named individuals have violated sec. 111.06(2) (a) and (f), Stats., by the conduct described in the findings of fact, and the board then issued its order commanding the organizations and natural persons to cease and desist from such conduct. The board's order also directed the following affirmative action:
"It is further ordered that the respondent unions, their officers, members, and agents take the following affirmative action:
"1. Limit the number of pickets around the Kohler Company premises to a total of not more than 200, with not more than 25 at any one entrance. Such pickets are to march in single file and to at all times maintain a space at least 20 feet in width at each entrance to the Kohler Company premises over which pickets will not pass and on which persons either on foot or in conveyance may freely enter or leave the premises without interference."
The statutory provisions which the Employment Relations Board concluded had been violated read:
"111.06(2) It shall be an unfair labor practice for an employee individually or in concert with others:
"(a) To coerce or intimidate an employee in the enjoyment of his legal rights, including those guaranteed in section 111.04, or to intimidate his family, picket his domicile, or injure the person or property of such employee or his family. . . .
"(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 obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance."
The board's order was entered May 21, 1954. On May 25, 1954, the board petitioned the circuit court alleging that the organizations and persons affected by its order had refused to obey it but were continuing to engage in the conduct which the order prohibited. Other jurisdictional facts were alleged in the petition and the board demanded a judgment and decree of enforcement. The unions and natural persons responded by denying their violation of the board's order and, further, alleged that the company is engaged in interstate commerce, that the Wisconsin Employment Relations Board is without jurisdiction to hear and determine the issues which it here attempts to determine because the field of labor-management relations with which the board attempts to deal has been preempted by congress through the enactment of the Labor Management Relations Act of 1947, as amended (the Taft-Hartley Act), and jurisdiction in the premises exists exclusively in the National Labor Relations Board. The answer also alleged that the circuit court was without jurisdiction to enforce the Wisconsin Board's order because of the federal pre-emption of the field; and it denied that the findings of fact made by the Wisconsin Board were supported by credible competent evidence.
The circuit court rendered a written decision August 30, 1954, determining each issue favorably to the petition of the Wisconsin Employment Relations Board and on September 1, 1954, it entered judgment confirming the order of the board and, by an injunction, decreed enforcement of that order. The injunction directed that the union, their officers, members, and agents —
"A. Immediately cease and desist from:
"1. Coercing and intimidating any person desiring to be employed by the Kohler Company in the enjoyment of his legal rights, intimidating his family, picketing his domicile, or injuring the person or property of such persons or his employee.
"2. Hindering or preventing by mass picketing, threats, intimidation, force, or coercion of any kind the pursuit of lawful work or employment by any person desirous of being employed by the Kohler Company.
"3. Obstructing or interfering in any way with entrance to and egress from the premises of the Kohler Company.
"4. Obstructing or interfering with the free and uninterrupted use of public roads, streets, highways, railways, or private drives leading to the premises of the Kohler Company.
"B. Take the following affirmative action:
"1. Limit the number of pickets around the Kohler Company premises to a total of not more than 200, with not more than 25 at any one entrance. Such pickets are to march single file and to at all times maintain a space at least 20 feet in width at each entrance to the Kohler Company premises over which pickets will not pass and on which persons either on foot or in conveyance may freely enter or leave the premises without interference."
The unions and individuals enjoined have appealed from the judgment.
The conduct which the Wisconsin Employment Relations Board found to be a violation of sec. 111.06, Stats., as unfair labor practices, is virtually the same conduct as that which it had found to be a similar violation in Allen-Bradley Local 1111 v. Wisconsin E. R. Board (1941), 237 Wis. 164, 295 N.W. 791. The present order and injunction are essentially the same as those issued by the board and the court in the Allen-Bradley Case. The principal attack on it then, like the attack on the present order, was made on the ground that federal labor legislation has preempted the field and the National Labor Relations Board has exclusive jurisdiction over this controversy, which grows out of and affects labor relations. The enforcement order issued by the circuit court in the Allen-Bradley Case in all substantial particulars is the same as the one issued by the circuit court in the case at bar. We sustained the circuit court and the board on such jurisdictional questions and on their exercise of the jurisdiction and we were affirmed by the supreme court of the United States in Allen-Bradley Local 1111 v. Wisconsin E. R. Board (1942), 315 U.S. 740, 62 Sup. Ct. 820, 86 L.Ed. 1154.
As the facts of the present matter so closely parallel the Allen-Bradley facts there would be little cause to do more than affirm the judgment of the circuit court on the authority of Allen-Bradley except for a distinction to which appellants call attention, namely, that the Federal Labor Act has been amended since, in Allen-Bradley, the United States supreme court held that it did not deprive the state of jurisdiction under such circumstances. Appellants' argument is that the United States court was then construing the National Labor Relations Act (the Wagner Act), which concerned itself only with unfair labor practices on the part of employers and thus left employees' practices to be controlled by the states; but that act was amended in 1947 by the National Labor Management Relations Act (the Taft-Hartley Act), which does define and discipline unfair labor practices by employees. Therefore, appellants assert, even though Allen-Bradley may have been right in its day, the present legislation, by bringing employees' labor practices within its scope, ousts state control and confers exclusive jurisdiction over them in the National Labor Relations Board.
The authoritative interpretation of federal statutes rests in the federal courts and their highest court does not agree with appellants' contention that the Taft-Hartley Act has taken from the states jurisdiction over such manifestations of labor relations as mass picketing, intimidation, and obstruction of streets. In cases arising under Taft-Hartley the United States supreme court continues to cite Allen-Bradley to illustrate the circumstances in which the state authority may still operate. Thus, in International Union v. Wisconsin E. R. Board (1949), 336 U.S. 245, 69 Sup. Ct. 516, 93 L.Ed. 651, which was first before this court in 1947 and is reported in 250 Wis. 550, 27 N.W.2d 875, 28 N.W.2d 254 (the Briggs Stratton Case), the state court enjoined recurrent and unannounced work stoppages designed to put pressure on the employer. The injunction was issued while the Wagner Act was in effect but the restraint continued after that act was superseded by Taft-Hartley. The supreme court of the United States therefore declared that it considered the state action in relation to both federal acts. And it said (p. 253):
"However, as to coercive tactics in labor controversies, we have said of the National Labor Relations Act what is equally true of the Labor Management Relations Act of 1947, that `congress designedly left open an area for state control' and that the `intention of congress to exclude states from exercising their police power must be clearly manifested.' [Citing Allen-Bradley.] We therefore turn to its legislation for evidence that congress has clearly manifested an exclusion of the state power sought to be exercised in this case."
So turning, the court found no such evidence and it said (pp. 253, 254):
"While the federal board is empowered to forbid a strike, when and because its purpose is one that the federal act made illegal, it has been given no power to forbid one because its method is illegal — even if the illegality were to consist of actual or threatened violence to persons or destruction of property. Policing of such conduct is left wholly to the states. . . .
"It seems clear to us that this case falls within the rule announced in Allen-Bradley . . . ."
More recently the court has declared the same principle, crediting it to the same source. Thus in Garner v. Teamsters Union (1953), 346 U.S. 485, 74 Sup. Ct. 161, 98 L.Ed. 228, the employer sought to enjoin peaceful picketing by state action. The United States supreme court, distinguishing the situation from that in Allen-Bradley, said (p. 488):
"This is not an instance of injurious conduct which the National Labor Relations Board is without express power to prevent and which therefore either is `governable by the state or it is entirely ungoverned.' In such cases we have declined to find an implied exclusion of state powers. International Union, U. A. W. v. Wisconsin Employment Relations Board, 336 U.S. 245, 254, 93 L.Ed. 651, 663, 69 S. Ct. 516. Nor is this a case of mass picketing, threatening of employees, obstructing streets and highways, or picketing homes. We have held that the state still may exercise `its historic powers over such traditionally local matters as public safety and order and the use of streets and highways.' Allen-Bradley Local, U. E. R. M. W. v. Wisconsin Employment Relations Board, 31 5 U.S. 740, 749, 86 L.Ed. 1154, 1164, 62 S.Ct. 820." (Our italics.)
Still more recently, in United Construction Workers v. Laburnum Corp. (1954), 347 U.S. 656, 74 Sup. Ct. 833, 98 L.Ed. 1025, the court repeated the language just quoted from the Garner Case, again giving credit to Allen-Bradley.
And most recently, on March 28, 1955, in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 Sup. Ct. 480, 99 L. Ed. 546, in setting aside a state court's injunction against picketing and commenting on the nature of the picketing and the law applicable to it, the court said ( 75 Sup. Ct. 488):
"We do not read this as an unambiguous determination that the IAM's conduct amounted to the kind of mass picketing and overt threats of violence which under the Allen-Bradley Local Case gives the state court jurisdiction."
In the case before us the picketing and other union measures are of the precise kind that they were in the Allen-Bradley strike. It was held there that the state's jurisdiction to enjoin them was not impaired by the National Labor Relations Act. Allen-Bradley Local 1111 v. Wisconsin E. R. Board, supra. Neither age nor new legislation have withered the authority of that decision when the facts to which it applied are present, as shown by the foregoing citations. Those facts are repeated now and the action of the state prohibiting them follows that taken in the Allen-Bradley matter and approved upon review by the supreme court of the United States. We conclude that there has been no ouster of the jurisdiction of the state agencies over the conduct prohibited by the injunction.
The appellants suggest that even though the state's police power may extend to the restraint of the union actions in question here, the state may not exercise that power through the medium of Wisconsin Employment Relations Board dealing with them as unfair labor practices as defined by sec. 111.06(2) (a) and (f), Stats. As we understand the argument, it is that control of unfair labor practices in interstate commerce has been preempted by congress and even though the state may deal with the activities in some other way, as crimes or what-not, it may not call them unfair practices, or attempt to deal with them as such, without surrendering jurisdiction over them to the National Labor Relations Board. There is no hint of this in the Allen-Bradley opinion or in the Briggs Stratton opinion, supra, where, with the approval of the supreme court of the United States, the state exercised what the federal court recognized as the state's police power through the medium of the state's Employment Relations Board. One must recognize, also, that the National Labor Relations Board is the creature of a statute and congress alone confers jurisdiction, whether concurrent or exclusive, on it. If, as the United States court has held, as already noted, congress did not give the National Board exclusive jurisdiction over the union activities involved here, that board does not acquire such jurisdiction over them by reason of state action nor, particularly, because a state statute defines as state unfair labor practices conduct which is illegal also on other grounds. We consider Wisconsin is at liberty to use its own legislative discretion in its method of policing such labor relations as these which do not fall within the exclusive jurisdiction conferred by congress on the National Labor Relations Board.
Next, appellants submit that even if the Wisconsin Employment Relations Board could take jurisdiction of this controversy, make the findings and conclusions which it made, and issue the order commanding the appellants to cease and desist, the circuit court had no jurisdiction to entertain the board's petition for an enforcement order unless, first, some proceeding was had which established that the board's order had been disobeyed. The record does not show any such proceeding here. The board simply went to the circuit court with a petition alleging the appellants' disobedience. But we find no statutory requirement of a jurisdictional prerequisite such as appellants assert.
Sec. 111.07, Stats., so far as material to the contention, provides:
"(7) If any person fails or neglects to obey an order of the board while the same is in effect the board may petition the circuit court of the county wherein such person resides or usually transacts business for the enforcement of such order and for appropriate temporary relief or restraining order, and shall certify and file in the court its record in the proceedings, including all documents and papers on file in the matter, the pleadings and testimony upon which such order was entered, and the findings and order of the board. Upon such filing the board shall cause notice thereof to be served upon such person by mailing a copy to his last known post-office address, and thereupon the court shall have jurisdiction of the proceedings and of the question determined therein. . . ."
The statute does not expressly require the board to hold a hearing to determine if its order has been violated, nor is the hearing required by implication. A mere administrative decision that the order is not obeyed is sufficient. If the board is satisfied that a violation has taken place it may petition the court for enforcement and shall file its record with the court and give notice, upon which the statute gives the court jurisdiction. These requirements were complied with. We consider that thereby jurisdiction of these proceedings was in the circuit court.
Finally, appellants contend that the evidence does not support the board's findings. We have read the record. Numerous witnesses, whom it was the right of the board to believe, testified to the acts of mass picketing, blocking the entrances of the plant, interference with the use of public streets, picketing of homes, and intimidation of employees who proposed to work. Exhibits in the way of union publications confirm much of such testimony. Credible and competent evidence in abundance is recorded to support each of the findings of fact. Sec. 111.07(7), Stats., declares, then, that such findings shall be conclusive in the circuit court proceeding.
Appellants' brief asserts that the Kohler Company has in its plant a supply of clubs, guns, and tear gas, and they submit that it is unjust for the state agencies to restrain the actions of appellants while doing nothing about that. If the condition mentioned by appellants is true, still it has nothing to do with the questions which their brief states are those to be determined by the appeal, namely, (I) the jurisdiction of the Wisconsin Employment Relations Board and the circuit court, and (2) whether the record supports the judgment. If the appellants considered, or do now consider, the presence of these munitions wrongful, as an unfair labor practice, they could, and still can petition the board for its abatement, exactly as the Kohler Company petitioned for relief from what it deemed to be unfair labor practices on the part of appellants. In the absence of such a petition, the question of a Kohler arsenal was not before the board or the court. In any event, a board order on that subject would not affect the one actually made concerning appellants' activities. We do not presume to say now that the company may or may not have these articles in its plant but we observe that if wrongs on each side are the subject of petitions by the parties aggrieved both wrongs should be restrained. The absence of a petition concerning one of them does not require that restraint of the one which was protested in the manner and form provided by statute be refused.
In summary, the evidence presented to the Employment Relations Board supports the board's findings, conclusion, and order; the board had jurisdiction to entertain the proceeding before it; and the circuit court had jurisdiction to entertain and to grant the petition of the board for an enforcement order. No abuse of jurisdiction appears. Therefore the judgments of the circuit court must be affirmed.
By the Court. — Judgments affirmed.
CURRIE, J., took no part.