Hotel & Rest. Employees' Int'l Alliance v. BD

• Decision Date: 07 January 1941
• Citation: 294 N.W. 632,236 Wis. 329
• Parties: HOTEL & RESTAURANT EMPLOYEES' INTERNATIONAL ALLIANCE, LOCAL NO. 122, et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al.
• Court: Wisconsin Supreme Court

236 Wis. 329

294 N.W. 632

HOTEL & RESTAURANT EMPLOYEES' INTERNATIONAL ALLIANCE, LOCAL NO. 122, et al.

v.WISCONSIN EMPLOYMENT RELATIONS BOARD et al.

Supreme Court of Wisconsin.

Nov. 8, 1940.

Rehearing Denied Jan. 7, 1941.

See 295 N.W. 634.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

This action was begun on February 24, 1940, by Hotel & Restaurant Employees' International Alliance, Local No. 122, Phil L. Valley, John Alexander and Jack Heisdorf, each individually, as business agent, organizer, and vice president, respectively, for and as representatives of all the members of Hotel & Restaurant Employees' International Alliance, Local No. 122; International Laundry Workers, Local No. 174; Bartenders International League of America, Local No. 64; International Union Operating Engineers, Local No. 311.; Milwaukee Building Trades Council, all affiliated with the American Federation of Labor, petitioners, against Wisconsin Employment Relations Board, Henry C. Fuldner, individually and as chairman of, L. E. Gooding, individually and as a member of, R. Floyd Green, individually and as a member of the Wisconsin Employment Relations Board, and Plankinton House Company, a corporation, defendants, to review the findings, orders and decisions made by the Wisconsin Employment Relations Board in the proceeding before that board, entitled Plankinton House Company, a Wisconsin corporation, complainant, v. Hotel & Restaurant Employees' International Alliance, Local No. 122, et al., respondents, the findings having been made by the Wisconsin Employment Relations Board, hereafter referred to as the board, on February 15, 1940. The matter was heard by the court and on May 14, 1940, the court ordered and adjudged that the findings and conclusions of the board complained of be in all respects sustained, confirmed and enforced. From this judgment the petitioners appeal.

Inasmuch as only questions of law are raised upon this appeal we shall state only so much of the facts as are material to an understanding of these questions. The petitioners are certain labor unions described above together with individuals, personally and as agents and officers of said unions. The defendants are the Wisconsin Employment Relations Board and the Plankinton House Company. On the 16th day of June, 1938, the Plankinton House Company entered into a collective bargaining contract with the unions, which contract covered wages, hours and working conditions governing employees of the Plankinton House Company employed at the Plankinton House and the Kilbourn Hotel, and provided as a condition of such employment that all employees coming within the terms of said contract must be and remain members of one of the respective unions so long as employed by the Plankinton House Company.

It was further provided that said contract was to continue for one year ending on the 15th day of June, 1939, and for consecutive one year renewals unless either party served notice in writing on the other party at least thirty days before the expiration of such year that such party desired to terminate the contract at the end of the contract year. There was also a provision for notice of continuance and a provision for subsequent negotiations. The unions served notice of continuance on May 15, 1939, but desired to negotiate for improved hours, wages and working conditions. The Plankinton House Company served notice that it desired to continue the contract for another year and desired to negotiate. Negotiations between the parties failed, arbitration was had in accordance with the terms of the contract and on October 30, 1939, the Plankinton House Company gave notice of its willingness to execute a contract in accordance with the terms of the arbitration award. On November 2, 1939, in the afternoon, the employees of the Company at both the Plankinton House and Kilbourn Hotel went on strike. Prior to calling such strike the employees did not vote by secret ballot to call such strike. Immediately after the strike was called, picketing was engaged in at the three entrances to the Plankinton House. Picketing was carried on by the members of all of the unions involved and pickets carried banners bearing the names of all petitioning unions. The business manager of the Hotel & Restaurant Employees International Alliance, Local No. 122, notified Marquette University and the Milwaukee School of Engineering that all students working at the Plankinton House for their meals immediately discontinue such work and that unless such students did discontinue such work the union would be forced to stop the employment of such students working at other hotels and restaurants in the city of Milwaukee which had collective bargaining contracts with Local No. 122; that ever since the strike the Plankinton House and the Kilbourn Hotel have continued to operate with new employees replacing the striking employees.

On November 4, 1939, union pickets by means of force prevented the delivery of floral decorations to the Plankinton House; that as a result of the altercation, Jack Heisdorf, vice president of Local No. 122, and Charles McLaughlin, assistant to the secretary of Local No. 122, were arrested, convicted and paid fines. Charles McLaughlin returned to the picket line immediately after his arrest and on November 17, 1939, assaulted one Lester Raasch, an employee of the Plankinton House and was again arrested, convicted and fined. Other fines were paid under similar circumstances by other striking employees and by pickets employed by the union. Convictions were had therefor.

Upon the basis of its findings of fact, the Board found as conclusions of law and made the following order:

“1. That the contractual relationship existing between the Plankinton House Company and the respondent unions was terminated by the respondent unions on the 2d day of November, 1939, by the refusal of said unions to accept the award of the board of arbitration, and their act of calling a strike at the Plankinton House and the Kilbourn Hotel.

2. That the respondent unions are guilty of unfair labor practices by cooperating and engaging in promoting and inducing picketing and boycotting, all being overt concomitants of a strike, without first obtaining the approval of the majority of the employees of the Plankinton House Company by a secret ballot.

3. That all of the former employees of the Plankinton House Company who went out on strike and who remained out on strike, have been parties to an unfair labor practice by co-operating and engaging in a strike without first obtaining the approval of a majority of such employees.

4. That the following named persons, by reason of threats and assaults made by them to and on employees of the Plankinton House or persons seeking to do business with the Plankinton House, or by misdemeanors committed by them arising out of the controversy between the respondent unions and the complainant, Plankinton House Company, are guilty of unfair labor practices. Phil L. Valley, Jack Heisdorf, Charles McLaughlin, Charles Alden, James C. O'Brien, John Thomas O'Maher, Joseph Hofich and Thomas James.

Upon the basis of the foregoing findings of fact and conclusions of law the Board, pursuant to Section 111.07 (4) of the Wisconsin Statutes, makes the following order:

It is ordered that the respondent unions, Hotel and Restaurant Employees International Alliance, Local No. 122, International Laundry Workers, Local No. 174, Bartenders International League of America, Local No. 64, International Union of Operating Engineers, Local No. 311, and the Milwaukee Building Trades Council, the officers, members, agents, successors and assigns of each shall:

1. Immediately cease and desist from:

(a) Engaging in promoting or inducing picketing at or near the Plankinton House or the Kilbourn Hotel;

(b) Attempting to hinder or prevent by threats, intimidation, force or coercion of any kind the pursuit of lawful work by employees of the Plankinton House Company;

(c) Boycotting in any way the Plankinton House Company.

2. Take the following affirmative action, which the Board finds will effectuate the policies of the act:

(a) Post notices to their members in conspicuous places at the union headquarters that the union has ceased and desisted in the manner aforesaid, and that all officers, members and agents of the union are to refrain from engaging in promoting or inducing picketing and boycotting of the Plankinton House Company, and also to refrain from attempting to hinder or prevent by threats, intimidation, force or coercion of any kind the pursuit of lawful work by employees of the Plankinton House Company.

(b) Notify the Board in writing forthwith that steps have been taken by each of the respondent unions to comply herewith.”

With its answer to the petition to set aside and vacate the order the Board filed a petition and cross-complaint asking that the court enter an order confirming and enforcing all of the provisions of its order as amended. The petition and cross-complaint having been brought on for hearing, the court by its judgment sustained the findings of the Board and a judgment was entered accordingly sustaining, confirming and enforcing the order.

Padway, Goldberg & Tarrell and David Previant, all of Milwaukee, for appellants.

John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., N. S. Boardman, Asst. Atty. Gen., and Richardson, Robertson, Reeder & Stearns, of Milwaukee (Herman M. Knoeller, of Milwaukee, of counsel), for respondents.

ROSENBERRY, Chief Justice.

By ch. 57 of the Laws of 1939, the legislature repealed ch. 111 of the statutes of 1937 and created a new chapter to be designated ch. 111. We shall state only so much of this chapter as is necessary to present the questions to be considered. The chapter provides that it may be cited as the employment peace act.

Sec. 111.01 declares the public policy of the state as to...