Milwaukee Boston Store Co. v. American Federation of Hosiery Workers

• Decision Date: 05 April 1955
• Citation: 269 Wis. 338,69 N.W.2d 762
• Parties: , 35 L.R.R.M. (BNA) 2757, 27 Lab.Cas. P 69,114 MILWAUKEE BOSTON STORE CO., Division of Federated Department Stores, Inc., a Delaware Corporation, Respondent, v. AMERICAN FEDERATION OF HOSIERY WORKERS, Branch 16, A. F. of L., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 762

69 N.W.2d 762

269 Wis. 338, 35 L.R.R.M. (BNA) 2757,

27 Lab.Cas. P 69,114

MILWAUKEE BOSTON STORE CO., Division of Federated Department Stores, Inc., a Delaware Corporation, Respondent, v. AMERICAN FEDERATION OF HOSIERY WORKERS, Branch 16, A. F. of L., et al., Appellants.

Supreme Court of Wisconsin.

April 5, 1955.

Rehearing Denied June 1, 1955.

Padway, Goldberg & Previant, Milwaukee, Saul Cooper and David Leo Uelmen, Milwaukee, of counsel, for appellants.

Lamfrom & Peck, Milwaukee, Egon W. Peck and Jacob L. Bernheim, Milwaukee, of counsel, for respondent.

CURRIE, Justice.

Before proceeding to the legal issues presented on this appeal we deem it advisable to analyze the conduct of the defendants, including its objectives, which was enjoined by the learned trial court. The picketing was conducted by individuals walking up and down in front of the entrance ways of plaintiff's Milwaukee store carrying large signs requesting people not to buy 'Belle-Sharmeer' stockings because the employees of the two manufacturing mills were on strike, which pickets also distributed at such entrance ways the leaflets hereinbefore described. The strike in which the defendant Union was engaged against these two manufacturers had as its purpose the gaining of higher wages, and the combating of unfair labor practices on the part of one of such employers. Therefore, the ultimate objective of the picketing was to promote the interests of the Union in such strike by discouraging the purchase of such manufacturers' product, and there can be no doubt as to such ultimate objective being a legal one insofar as it related to these two manufacturers.

However, the fact that the picketing was confined to the sidewalks in close proximity to the entrance ways of the Boston Store, while no other retailers of 'Belle-Sharmeer' stockings were picketed, makes it apparent that there was also an objective directed against that store. Such objective was to cause the store's customers to refrain from buying any of the store's stock on hand of 'Belle-Sharmeer' stockings so that the store would have no need of placing further orders for such stockings with the manufacturers.

This particular type of picketing has been referred to in some of the cases from other jurisdictions as 'product picketing' and has been held not to be illegal in the absence of a statute making it so. Goldfinger v. Feintuch, 1937, 276 N.Y. 281, 11 N.E.2d 910, 116 A.L.R. 477; Fortenbury v. Superior Court, 1940, 16 Cal.2d 405, 106 P.2d 411; and Galler v. Slurzberg, 1953, 27 N.J.Super. 139, 99 A.2d 164. The facts in the instant case are indistinguishable from those of the three foregoing cited cases so far as governing legal principles are concerned, and, therefore, the injunctional order attacked on this appeal must be grounded upon a violation of Wisconsin statutes if it is to be sustained.

The learned trial court found that the conduct of the defendants constituted a violation of section 103.535, Wis.Stats., reading as follows:

'It shall be unlawful for anyone to picket, or induce others to picket, the establishment, employees supply or delivery vehicles, or customers of anyone engaged in business, or to interfere with his business, or interfere with any person or persons desiring to transact or transacting business with him, when no labor dispute, as defined in subsection (3) of section 103.62, exists between such employer and his employes or their representatives.' (Italics supplied.)

Sub. (3) of section 103.62, Stats., referred to therein provides:

'The term 'labor dispute' means any controversy between an employer and the majority of his employes in a collective bargaining unit concerning the right or process or details of collective bargaining or the designation of representatives. Any organization with which either the employer or such majority is affiliated may be considered a party to the labor dispute. The provisions of this subsection shall supersede any provision of the statutes in conflict therewith.'

Counsel for the defendants strenuously contend that the words 'anyone engaged in business' and 'such employer' of section 103.535 refer to the two manufacturers of 'Belle-Sharmeer' stockings located in Tennessee and Georgia and not to the Boston Store. If so construed the word 'customers' of the statute would then refer to the Boston Store, and, inasmuch as there is a valid labor dispute between the Union and the two out-of-state manufacturers which meets the definition of section 103.62(3), Stats., there would be no interdiction against the picketing by defendants of the Boston Store as such customer.

However, we deem a much more logical construction of section 103.535 to be that the words 'anyone engaged in business' and 'such employer' refer to the Boston Store and not to the two out-of-state manufacturers. Under such construction defendants did picket the 'customers' of the Boston Store, and the placing of the pickets at the entrance ways to plaintiff's store constituted a physical picketing of plaintiff's 'establishment'. By this we do not wish to intimate that the pickets stationed at such entrance ways in any way impeded the ingress and egress of plaintiff's customers or employees entering or leaving the store because it is conceded that this was not the case.

Having concluded that the trial court correctly found that defendants' conduct, in picketing plaintiff's store, constituted a violation of section 103.535, Stats., because no labor dispute existed between plaintiff and its employees, or their representatives, the next issue with which we are faced is whether section 103.53, Stats., nevertheless, prohibited the trial court from entering an injunction against the defendants. This statute is modelled after the federal Norris-La Guardia Act and prohibits the use of injunctions to enjoin conduct which expressly is declared lawful by such statute. The statute legalizes certain acts which are often engaged in by employees and labor unions. The pertinent portions of the statute applicable to the instant case are:

'(1) The following acts, whether performed singly or in concert, shall be legal: * * *

'(f) Ceasing to patronize or to employ any person or persons, but nothing herein shall be construed to legalize a secondary boycott; * * *

'(2) No court, nor any judge or judges thereof, shall have jurisdiction to issue any restraining order or temporary or permanent injunction which, in specific or general terms, prohibits any person or persons from doing, whether singly or in concert, any of the foregoing acts.'

Did the acts of picketing on the part of the defendants constitute a secondary boycott? Ch. 103, Stats. contains no definition of a secondary boycott, but section 111.02(12) of the Wisconsin Employment Peace Act does. However, section 111.02 provides that the definitions contained therein, including that of a secondary boycott, apply when the defined terms are used 'in this subchapter', referring thereby to subchapter I of ch. 111, comprising the Employment Peace Act. Section 111.06(2) of such Act makes it an unfair labor practice for 'an employe individually or in concert with others' (g) 'to engage in a secondary boycott'. Section 111.02(3) defines an employee for the purposes of the Employment Peace Act as 'any person, other than an independent contractor, working for another for hire in the state of Wisconsin in a nonexecutive or nonsupervisory capacity'. There are no allegations in the complaint or the affidavits considered by the trial court that any Wisconsin employee engaged in the picketing of plaintiff's store. The mere allegation in the complaint that the two branches of the Union made parties defendant herein had offices in Milwaukee is insufficient to establish that any Wisconsin employees engaged in the picketing. We, therefore, conclude that the definition of secondary boycott contained in section 111.02(12) may not be resorted to by us in answering the question of whether the acts of the defendants constituted a secondary boycott, and we must look to the common law for our answer.

In an article entitled 'Labor and the Secondary Boycott', XV Washington Law Review and State Bar Journal (1940) at p. 137, by Robert C. Barnard and Robert W. Graham, the authors point out the perplexing difficulties the courts have had in defining the term 'secondary boycott', and state that the traditional definition of a secondary boycott is that given by Mr. Justice Pitney in his opinion in Duplex Printing Press Co. v. Deering, 1920, 254 U.S. 443, 466, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196, wherein the distinction between a primary and a secondary boycott was made to depend upon whether 'coercive pressure' was exercised upon the actual or prospective customers of the employer engaged in the labor dispute. Another definition of secondary boycott also set forth in such article is the following appearing in an opinion of the Washington supreme court in United Union Brewing Co. v. Beck, 1939, 200 Wash. 474, 490, 93 P.2d 772, 779:

'While the term 'secondary boycott' is of somewhat vague signification and has no precise and exclusive denotation, the courts, both federal and state are agreed that any combination will be held to be a secondary boycott if its purpose and effect are to coerce customers or patrons, through fear of loss or bodily harm, to withhold or withdraw their business relations from the employer who is under attack.'

Barnard and Graham voice the criticism that courts have been prone to equate 'secondary boycott' with illegality, but state in an analytical sense any situation wherein pressure is exerted against a third party to affect the business of the employer constitutes a secondary boycott. It is their conclusion that there may be legal as well as illegal secondary boycotts at common law, an example of a legal secondary boycott being the 'product' picketing upheld as legal by the New York court of appeals in ...