Dietz Const. Co. v. Local 2351, Carpenters Union, AFL

• Decision Date: 06 June 1969
• Docket Number: No. 274,274
• Citation: 43 Wis.2d 189,168 N.W.2d 289
• Parties: , 71 L.R.R.M. (BNA) 2851, 60 Lab.Cas. P 10,148 DIETZ CONSTRUCTION CO., Inc., a Wis. corporation, Respondent, v. LOCAL 2351, CARPENTERS UNION A.F.L. being the Wis. River Valley District Council, Appellant.
• Court: Wisconsin Supreme Court

Page 289

168 N.W.2d 289

43 Wis.2d 189, 71 L.R.R.M. (BNA) 2851,

60 Lab.Cas. P 10,148

DIETZ CONSTRUCTION CO., Inc., a Wis. corporation, Respondent, v. LOCAL 2351, CARPENTERS UNION A.F.L. being the Wis. River Valley District Council, Appellant.

No. 274.

Supreme Court of Wisconsin.

June 6, 1969.

[43 Wis.2d 191] This is an action by the plaintiff, Dietz Construction Co., Inc. seeking a permanent injunction against picketing of a construction site by the defendant, Carpenters Union, A.F.L., Local 2351.

[43 Wis.2d 192] Plaintiff is the general contractor on a building construction job in Rhinelander. The construction contract called for the completion of the work within 65 days from the date of commencement of work.

On September 23, 1968, the defendant placed a single picket at the construction site, carrying a sign reading:

'The Employees of Dietz Const. Receive Substandard Wages & Benefits'

and

'Our Only Dispute is with the Substandard Wages & Benefits Paid by Dietz Constr. Co.'

On September 23, 1968, at noon, several masons employed by the plaitniff refused to continue working. On September 24, 1968, plaintiff commenced this action for a permanent injunction restraining picketing at the jobsite, also seeking a temporary injunction pending trial of the action.

On September 27, 1968, the hearing concerning whether a temporary injunction should be issued was held. Both plaintiff and defendant agreed that, after the single picket appeared on the scene, six masons who belonged to the Bricklayers Union refused to continue working. They agreed also that defendant was making no effort to organize plaintiff's employees. Plaintiff introduced evidence that its carpenters were paid the equivalent of the union scale. Defendant introduced evidence to establish that the carpenters were still paid substandard wages by plaintiff. Specifically, this evidence sought to establish that plaintiff used a composite crew, not observing craft distinctions, so that when laborers were used to do carpentry work, they were not paid carpenters' scale for the time they were doing such work. The defendants contended that as a result, fewer carpenters were employed than would be employed if craft distinctions were observed. The defendant disclaimed any purpose to the picketing other than to advertise the conditions it alleges to be substandard.

Roy T. Traynor, Wausau, for appellant.

O'Melia & Kaye, Rhinelander, for respondent.

ROBERT W. HANSEN, Justice.

An initial issue is whether state court injunctive relief is available on this record. Put differently, the issue presents itself as to whether or not the National Labor Relations Act, as amended, preempts the controversy here involved so as to preclude a state court from granting injunctive relief. In resolving this issue, it is to the decisions of the United States Supreme Court in this area that we must look. They are controlling. The doctrine of federal preemption in certain management--labor union controversies rests on congressional enactments and on United States Supreme Court interpretations thereof.

THE VOGT CASE

Plaintiff stresses and the trial court relied heavily upon the Vogt Case ¹ and understandably so because this case arose in Wisconsin and on appeal the United States Supreme Court found that state court action was not preempted by federal statutes.

In this case the plaintiff operated a gravel pit in the Town of Oconomowoc and was engaged in the business of producing and selling washed sand and gravel and ready-mixed concrete. Union pickets were stationed at the gravel pit entrance, a location not frequented by the general public. The pickets carried signs stating that men on the job were not 100% affilated with the A.F.L. Truckdrivers hauling materials refused to cross the picket line. On rehearing, this court upheld a trial court injunction against such picketing.

In affirming the Wisconsin court holding, the United States Supreme Court reviewed previous cases to find '* * * a broad field in which a State, in enforcing some public policy * * * could constitutionally enjoin peaceful picketing * * *.' The state court's inference from the facts that '* * * the picketing was to coerce the employer to put pressure on his employees to join the union, in violation of the declared polciy of the State' was upheld.

The provisions of sec. 8 of the National Labor Relations Act were parenthetically noted as 'a declaration of similar congressional policy,' but no point is made of possible federal preemption by such specific congressional enactment.

Defendant points out certain facts to distinguish Vogt from the case before us. It also points out that the then existing prohibition against all-union agreements had not yet been qualified by the 1961 amendment to sec. 111.06(1) (c), Stats. which authorized the formation of all-union agreements in the building and construction industry. ² So what was an illegal purpose at the time of Vogt is, under certain circumstances not illegal now. With due regard to these and other variances, the Vogt decision is much in point. However, we see the present issue as to whether Vogt today still has the broad sweep its language suggests, or whether its applicability has been narrowed by subsequent decisions spelling out the concept of federal preemption and defining where it is to apply. Such subsequent decisions must be analyzed to determine how wide an area of federal preemption has been carved out by the United States Supreme Court and whether the controversy before us falls into such preempted area.

THE GARMON CASE

In one such subsequent decision, the nation's highest tribunal spelled out the particular circumstances under which a state court is preempted and in which initial jurisdiction is exclusively granted to the National Labor Relations Board. That case was San Diego Building Trades Council v. Garmon. ³ Wisconsin has recognized Garmon as an authoritative pronouncement on the issue of federal preemption. ⁴

In Garmon the rule as to when the state is preempted or precluded from acting is stated thusly:

'When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.' ⁵

The Garmon decision makes only two exceptions to this rule of preemption: (1) where the activity regulated is '* * * a merely peripheral concern of the Labor Management Relations Act.' ⁶ and (2) in a situation

'* * * where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.' ⁷

THE CURRY CASE

The high court followed the garmon ruling in a subsequent case where the fact situation is quite similar to the case before us. That occurred in the Curry Case. ⁸

In Curry, the union picketed a construction site, giving as its reason the substandard wages paid by the general contractor The Georgia Supreme Court, reversing the trial court, held that a trial court injunction should have been granted to enjoin the picketing of the job site. The United States Supreme Court reversed, holding that the petition and court findings in the Georgia case made out an arguable violation of sec. 8(b) of the National Labor Relation Act and removed the situation from one in which state injunctive relief could be granted.

to his employees. The presence of the picket caused other employees, members of building trades unions, to walk off the job site. This walk-off slowed the pace of construction and diminished the general contractors ability to finish the construction job in the time allotted by the construction contract. The contractor asserted that the picketing was to coerce him into hiring union labor in contravention of the Georgia right-to-work statute.

THE VACA CASE

The most recent pronouncement of the high court on the issue of preemption in this area of the law is the Vaca Case. ⁹

Citing Garmon, the opinion of the United States Supreme Court in Vaca stated:

'Consequently, as a general rule, neither state nor federal courts have jurisdiction over suits directly involving 'activity (which) is arguably subject to § 7 or § 8 of the Act. '' ¹⁰

In Vaca the high court also summarized situations in which it had earlier held that the state was not preempted either because the activity regulated was of peripheral concern of the N.L.R.B. or touched interests deeply rooted in local responsibility. Such situations were capsulized as 'libel,' ¹¹ 'violence,' ¹² 'wrongful expulsion from union membership,' ¹³ 'mass picketing.' ¹⁴

The decision makes clear that '* * * these exceptions in no way undermine the vitality of the pre-emption rule where applicable, * * *' ¹⁵ and that '* * * they demonstrate that the decision to preempt federal and state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies.' ¹⁶

The court went on to give the rationale or reason for the doctrine of preemption stating:

"Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal * * *. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. * * * A multiplicity of tribunals and a diversity of procedures are...