Lodge 76, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Commission.

• Decision Date: 04 March 1975
• Docket Number: AFL-CIO,No. 405,405
• Citation: 226 N.W.2d 203,67 Wis.2d 13
• Court: Wisconsin Supreme Court
• Parties: , 88 L.R.R.M. (BNA) 3340, 77 Lab.Cas. P 53,734 LODGE 76, INTERNATIONAL ASSN. OF MACHINISTS & AEROSPACE WORKERS,, et al., Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent, Kearney & Trecker Corp., Intervenor-Respondent.

Page 203

226 N.W.2d 203

67 Wis.2d 13, 88 L.R.R.M. (BNA) 3340,

77 Lab.Cas. P 53,734

LODGE 76, INTERNATIONAL ASSN. OF MACHINISTS & AEROSPACE

WORKERS, AFL-CIO, et al., Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent, Kearney & Trecker Corp., Intervenor-Respondent.

No. 405.

Supreme Court of Wisconsin.

March 4, 1975.

Goldberg, Previant & Uelmen, Milwaukee, for appellant; Robert E. Gratz and Garry M. Miller, Milwaukee, of counsel.

Zubrensky, Padden, Graf & Bratt, Milwaukee, for amicus curiae.

Robert W. Warren, Atty. Gen. by Charles D. Hoornstra, Asst. Atty. Gen., Madison, for respondent.

Michael, Best & Friedrich, Milwaukee, for intervenor-respondent; James C. Mallatt, Jacob L. Bernheim, and John R. Sapp, Milwaukee, of counsel.

HANLEY, Justice.

The sole issue involved upon this appeal is whether the state of Wisconsin is precluded from enjoining a concerted refusal to work overtime which is in violation of Sec. 111.06(2)(h) of the Wisconsin Statutes.

The union's conduct is not denied. They challenge the state's authority to enforce the statute, Sec. 111.06(2)(h).

The union makes two arguments in support of its position that the state does not have the power to restrain peaceful concerted activities by unions. The first is that such activities are 'permitted' by the NLRA and as such are not subject to state restraint. The second is that the state lacks the power to restrain such activities as are involved here because such conduct is arguably protected by the NLRA.

The respondents argue that conduct involved here was not permitted by the NLRA. They further argue that such conduct was not protected by the NLRA and that the permitted category is inapplicable in this case.

In International Union, U.A.W.A., A.F.L., Local 232 v. Wisconsin Employment Relations Board (1949), 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, reh. denied, 336 U.S. 970, 69 S.Ct. 935, 93 L.Ed. 1121 (hereinafter Briggs and Stratton) the United States Supreme Court reviewed a decision of this court which had upheld a board order requiring a labor union to cease and desist from instigating certain intermittent and unannounced work stoppages in an employer's plants. The Supreme Court held that it could find no basis for denying this state the power to regulate a cause of conduct neither made a right under nor a violation of federal law. The court stated:

'. . . 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.' 336 U.S. at 253, 69 S.Ct. at 521.

The court went on to determine that the conduct of the union was not subject to regulations by the Federal Board and that the activity was not protected by Sec. 7 of the NLRB.

Subsequent to that decision, the Supreme Court has considered this issue in a number of cases. In Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776 (1953), 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, the Court affirmed a Pennsylvania Supreme Court decision which held that a state court could not enjoin certain picketing by a union. The Court stated:

'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 and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. 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 . . .' 346 U.S. at 490, 74 S.Ct. at 166.

It was noted that the policy of the Labor Management Relation Act (LMRA) is not to condemn all picketing and that the detailed prescription of a procedure for restraint of specified types of picketing implies that other picketing is to be free of other methods and sources of restraint. '. . . For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.' 346 U.S. at 500, 74 S.Ct. at 171. It was recognized though, that the LMRA does leave much to the states.

Garner, the union says, holds that states cannot regulate peaceful economic weapons left free by federal law. However, Garner dealt with an area Congress had 'taken in hand', namely, inducements to union membership. Therefore, Pennsylvania procedures and process could not operate. In Garner, a national labor act purpose was frustrated by the state action. That is not the situation in the instant case.

In San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, a California court had awarded damages for picketing which it concluded violated not only state law but also Sec. 8(b)(2) of NLRA. The United States Supreme Court reversed holding that:

'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 . . .

'. . . When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.' 359 U.S. at 244, 245, 79 S.Ct. at 779-780.

We think Garmon amplified the protected-prohibited test set forth and declined to follow the 'approach' of Briggs and Stratton under which the court itself determined the protected or prohibited nature of the activity.

That only the 'approach' rather than substantive rulings of Briggs and Stratton was rejected is clear from the statement cited by appellants at p. 14 of their brief.

'The approach taken in that case, in which the Court undertook for itself to determine the status of the disputed activity, has not been followed in later decisions, and is no longer of general application.' (359 U.S. at 245, n. 4, 79 S.Ct. at 780)

The rules on pre-emption in the area of labor law were stated to be as follows in Hanna Mining Co. v. District 2, Marine Engineers Beneficial Association, AFL-CIO (1965), 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254:

'The ground rules for preemption in labor law, emerging from our Garmon decision, should first be briefly summarized: in general, a State may not regulate conduct arguably 'protected by § 7, or prohibited by § 8' of the National Labor Relations Act, see 359 U.S., at 244-246, 79 S.Ct. at 780; and the legislative purpose may further dictate that certain activity 'neither protected nor prohibited' be deemed privileged against state regulation, cf. 359 U.S., at 245, 79 S.Ct. at 779 . . .' 382 U.S. at 187, 188, 86 S.Ct. at 331.

Despite the ground rules, the court reversed a decision of this court which had held that the state court lacked subject matter jurisdiction because the picketing involved arguably violated sec. 8 of the Federal Labor Act. The picketing was part of an effort by a union which had represented supervisors. The court held that because supervisory workers were involved the activity was not arguably protected and also that it was not 'in the respects immediately relevant prohibited by it.'

It further held that Congress had not taken a policy of laissez faire toward supervisors which would oust state authority. 382 U.S. at 188, 189, 86 S.Ct. 327.

In Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge (1971), 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, reh. denied 404 U.S. 874, 92 S.Ct. 24, 30 L.Ed.2d 120, the court reaffirmed the Garmon rules. The court once again pointed out that it could not declare that all local regulations involving the complex interrelationships between employers, employees and unions has been pre-empted and that '. . . much of this is left to the states.' 403 U.S. at 289, 91 S.Ct. at 1919. The court reaffirmed the 'arguably protected-arguably prohibited' test of Garmon, however, and held a state court did not have jurisdiction in an action by an employee against his union based on an alleged breach of conduct by the union in procuring the employee's discharge from employment because the conduct involved was arguably protected or prohibited by the NLRA.

This court has recognized these principles of pre-emption in the area of labor law. It was held in Wisconsin Employment Relations Commission v. Atlantic Richfield Co. (1971), 52 Wis.2d 126, 187 N.W.2d 805, that the WERC was not prohibited from regulating collective bargaining in one-man bargaining units because the NLRB lacks jurisdiction in such cases and no national labor act purpose was frustrated by such state action.

The union here argues that their activity was arguably protected by the NLRA and, therefore, pre-emption exists. Initially, it had moved to dismiss the complaint before the WERC because the activity was arguably prohibited. The respondents take the position that it is neither.

In this case the only action on the national level was the NLRB's regional director's letter refusing to issue a complaint. The regional director stated that 'this action does not appear to be in violation of the act.' The trial judge noted in his decision that the failure of the federal agency to take affirmative action does...