Door County v. Plumbers, Steamfitters, Refrigeration, Petroleum Fitters, and Apprentices of Local No. 298, AFL

• Decision Date: 06 May 1958
• Citation: 4 Wis.2d 142,89 N.W.2d 920
• Parties: , 42 L.R.R.M. (BNA) 2362, 34 Lab.Cas. P 71,506 COUNTY OF DOOR, a Municipal Corporation, et al., Respondents, v. PLUMBERS, STEAMFITTERS, REFRIGERATION, PETROLEUM FITTERS, AND APPRENTICES OF LOCAL NO. 298, A. F. OF L., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 920

89 N.W.2d 920

4 Wis.2d 142, 42 L.R.R.M. (BNA) 2362,

34 Lab.Cas. P 71,506

COUNTY OF DOOR, a Municipal Corporation, et al., Respondents, v. PLUMBERS, STEAMFITTERS, REFRIGERATION, PETROLEUM FITTERS AND APPRENTICES OF LOCAL NO. 298, A. F. OF L., et al., Appellants.

Supreme Court of Wisconsin.

May 6, 1958.

Rehearing Denied June 26, 1958.

Warne, Duffy, Dewane, Miller & Gerlikowski, Green Bay, for appellants.

Donald J. Howe, Sturgeon Bay, for respondents.

MARTIN, Chief Justice.

It was stipulated that the total cost of the court house addition was $450,000, exclusive of the furniture; of that amount, 35% represented labor on the construction; 15% represented material purchased in Wisconsin; and 50% represented material manufactured outside of the state of Wisconsin. It is admitted that no labor dispute existed, as found by the trial court.

Defendants contend that the picketing was for the sole purpose of informing the union men and the public of the non-union condition. The evidence is practically undisputed that after Zahn entered into his contract, Richard Garot, business representative of Local 298, called on him and asked him to sign a contract with the union 'or else there may be a little dispute on the Court House job.' Zahn testified he attempted, apparently unsuccessfully, to sublet his contract, and that the Union offered no solution to the work stoppage except that he join.

On cross-examination Garot testified:

'Q. It [the picketing] was also to stop work on the job as long as the non-union plumber contractor was there, wasn't it? A. No, sir.

'Q. Didn't you know that would be the effect of the picket? A. I thought it might be but I didn't know. That's something nobody knows, I guess. * * *

'The Court: When you testified before you said that it has been your experience that when a picket went on a job that the union men would stop work? A. That's right.'

The trial court found that the picketing was coercive action in itself and amounted to economic pressure and was designed to cause a work stoppage; that it was not confined to advertising the cause of the Union.

In Vogt, Inc., v. International Brotherhood of Teamsters (on reargument, 1956), 270 Wis. 315, 321a, 71 N.W.2d 359, 74 N.W.2d 749, this court held that the 'peaceful picketing' carried on by the Union at the entrance to Vogt's gravel pit was for the purpose of coercing the employer to interfere with its employees in their right to join or refuse to join the Union, contrary to the provisions of sec. 111.06(2)(b), Stats. and affirmed the granting of the injunction. On appeal (354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347) the United States supreme court traced the history of the cases in which it had been required to consider the limits imposed by the Fourteenth Amendment on the power of a state to enjoin picketing. In the course of that discussion the court, by Mr. Justice Frankfurter stated, 354 U.S. at page 289, 77 S.Ct. at page 1169:

'Cases reached the Court in which a State had designed a remedy to meet a specific situation or to accomplish a particular social policy. These cases made manifest that picketing, even though 'peaceful,' involved more than just communication of ideas and could not be immune from all state regulation. 'Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.''

It stated that as time went on its 'strong reliance on the particular facts in each case demonstrated a growing awareness that these cases involved not so much questions of free speech as review of the balance struck by a State between picketing that involved more than 'publicity' and competing interests of state policy;' and that the reassessments of its views 'were finally generalized in a series of cases sustaining injunctions against peaceful picketing, even when arising in the course of a labor controversy, when such picketing was counter to valid state policy in a domain open to state regulation.'

'This series of cases, then, established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.' 354 U.S. at page 293, 77 S.Ct. at page 1171.

and quoted from the opinion of the Maine supreme court in Pappas v. Stacey, 1955, 151 Me. 36, 116 A.2d 497, 500, where it was said:

'* * * 'there is a steady and exacting pressure upon the employer to interfere with the free choice of the employees in the matter of organization. To say that the picketing is not designed to bring about such action is to forget an obvious purpose of picketing--to cause economic loss to the business during noncompliance by the employees with the request of the union.'' 354 U.S. at page 294, 77 S.Ct. at page 1171.

Finally, it held that the policy of Wisconsin enforced by the prohibition of the Vogt picketing is a valid one.

See, also, Retail Fruit & Vegetable Clerks Union, Local etc. AFL-CIO v. NLRB, 9 Cir., 1957, 249 F.2d 591.

It was a fair inference for the trial court to conclude from the evidence in this case that the picketing was for the purpose of coercing the employer to put pressure on the employees to join the Union, in violation of sec. 111.06(2)(b), Stats.

Defendants attempt to distinguish the Vogt case on the ground that there the picketing was on a country road patronized by only a small part of the public whereas in this case it took place in a city where the traffic by comparison is heavy. The fact that the picketing here would have more 'advertising' value than it did in the Vogt case does not require the conclusion that it was not meant as coercion of the employer. Under the circumstances the inference to be drawn was for the trial court; it properly concluded that the purpose was illegal.

The second question raised on appeal is whether, under the circumstances of this case, the state has jurisdiction. Appellants contend that interstate commerce is affected because 50% of the cost of the construction is for materials manufactured outside of the state, and that the National Labor Relations Act has preempted the field.

What we have here is the County of Door, an arm of the sovereign state of Wisconsin, entering into a contract for the construction of a building which is necessary and essential to the performance of its functions, a place where it can discharge its governmental responsibilities and enforce laws, civil and criminal. It is significant that the National Labor Relations Act defines the term 'employer' as follows:

'The term 'employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include * * * any State or political subdivision thereof * * * or any person subject to the Railway Labor Act * * *' Title 29 U.S.C.A. sec. 152(2).

The Act further provides:

'The term 'person' includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.' Title 29 U.S.C.A. sec. 152(1).

From this it is evident that the state or any of its political subdivisions is not included within the purview of the National Act.

In Local Union etc. Teamsters etc. v. New York, N. H. & H. R. Co., 1956, 350 U.S. 155, 160, 76 S.Ct. 227, 230, 100 L.Ed. 166 (the so-called 'piggy-back' case), the United States supreme court said:

'The N. L. R. B. is empowered to issue complaints whenever 'it is charged' that any person subject to the Act is engaged in any proscribed unfair labor practice. § 10(b). Under the Board's Rules and Regulations such a charge may be filed by 'any person.' We think it clear that Congress, in excluding 'any person subject to the Railway Labor Act' from the statutory definition of employer,' carved out of the Labor Management Relations Act the railroads' employer-employee relationships which were, and are, governed by the Railway Labor Act. But we do not think that by so doing Congress intended to divest the N. L. R. B. of jurisdiction over controversies otherwise within its competence solely because a railroad is the complaining party. Furthermore, since railroads are not excluded from the Act's definition of 'person,' they are entitled to Board protection from the kind of unfair labor practice proscribed by § 8(b)(4)(A).'

The implication is that in the case of a political subdivision of a state, which is neither an 'employer' nor a 'person' under the Act, the N. L. R. B. has no jurisdiction.

Appellants rely on Weber v. Anheuser-Busch, Inc., 1955, 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546, but in that case a strike was the basis of the conduct complained of and it is not applicable here. In McCarroll v. Los Angeles County Dist. Coun. of Car., Cal.1957, 315 P.2d 322, 323 (certiorari denied, 355 U.S. 932, 78 S.Ct. 413, 2 L.Ed.2d 415), it was held that (syl. 7):

'It is only strikes used as a weapon in bargaining process that are unfair labor practices within exclusive jurisdiction of National Labor Relations Board.'

We are not unmindful of the fact that two of the plaintiffs, Zahn and Oudenhoven, are 'employers' under the National Act. However, it is not reasonable to assume that Congress, in enacting the Act, intended in any way to interfere with the governmental function of a sovereign state or its municipalities. This is evident from the distinction made in the 'piggy-back' case and from the fact that Congress expressly excluded states and their political subdivisions from its definition of 'employer' and did not include them in its definition of 'person.'

Counsel amicus curiae have called our attention to the recent decision in N.L.R.B. v. Electrical Workers Local 313, 34 Labor Cases, ...