Retail Clerks' Union, Local No. 1403, A. F. of L. v. Wis. Emp't Relations Bd.

• Decision Date: 11 December 1942
• Citation: 6 N.W.2d 698,242 Wis. 21
• Parties: RETAIL CLERKS' UNION, LOCAL NO. 1403, A. F. OF L., et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al.
• Court: Wisconsin Supreme Court

242 Wis. 21

6 N.W.2d 698

RETAIL CLERKS' UNION, LOCAL NO. 1403, A. F. OF L., et al.

v.WISCONSIN EMPLOYMENT RELATIONS BOARD et al.

Supreme Court of Wisconsin.

Dec. 11, 1942.

Appeal from a judgment of the Circuit Court for Racine County; Clayton F. Van Pelt, Judge, presiding.

Affirmed.

This is a proceeding instituted before the Wisconsin employment relations board. On February 5, 1941, three employees of Sears Roebuck & Company at said company's store located in the city of Racine, Wisconsin, filed a complaint under sec. 111.07(2) of the employment peace act with the Wisconsin employment relations board, in which it was alleged that the appellant labor unions had engaged in and were engaging in unfair labor practices within the meaning of secs. 111.06(2) (a), 111.06(2) (e), and 111.06(3), Wis.Stats., in that on the 4th or 5th day of December, 1940, said unions engaged in picketing, singly and in numbers, and in promoting and inducing others to picket, and continued to so picket to the date of making said complaint, the Racine store of Sears Roebuck & Company, in which retail store said complainants and others were employed; that complainants and the other employees in said store were not members of either of the appellant unions; that no labor dispute existed between the employer and the complainants and all other employees in said store; that complainants and all other employees had not voted to call any strike, nor had complainants or other employees any grievance against their employer as to wages, hours, or working conditions; that said appellant labor organizations were attempting to coerce and intimidate the employees of said employer, including these complainants, to join their respective labor organizations or one of them, and to deprive said employees of the right to refrain from so joining; that complainants complain for and in behalf of themselves and in a representative capacity for all other employees of said store.

The appellant unions answered, denying that they engaged in picketing, singly or in numbers, or in promoting and inducing others to picket the store in question; denied that their conduct under the circumstances was an unfair labor practice; denied that their course of action toward the employees of said store was unlawful, or that same was coercive or intimidative; denied that they were attempting to deprive the employees of any of their legal rights; and further, alleged that the complainants were attempting to deprive the appellant labor organizations of their constitutional rights guaranteed them by the state and federal constitutions; and further alleged that they were engaged in the activity of peaceful picketing and advertising in the exercise of free speech.

On February 28, 1941, the employment relations board conducted a hearing and on April 17, 1941, entered the findings, conclusions of law, and order now under review. (Printed in footnote.¹)

Appellant unions petitioned the circuit court for Racine county for a review of the findings and order. The board and the complainants cross-petitioned for an order confirming and enforcing all of the provisions of the order as entered on April 17, 1941. On July 23, 1941, the court entered judgment confirming in all respects the order of the board, reserving jurisdiction to make such further order or judgment as might be necessary to give full force and effect to the order of the board and the enforcement thereof. Retail Clerks' Union, Local No. 1403, A. F. L., and Retail Clerks' Union, Local No. 184, C. I. O., appeal. Further material facts will be stated in the opinion.

Flynn, Storms & Greenquist, of Racine, and Padway & Goldberg, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., and N. S. Boardman and Beatrice Lampert, Asst. Attys. Gen., for respondent Wisconsin Employment Relations Board.

Beck, Smith & Heft, of Racine, for respondents Fridle, Griffith and Lange.

MARTIN, Justice.

On February 5, 1941, James C. Fridle, Warren Griffith, and Einer Lange, employees of the Sears Roebuck Company's Racine store, in their own behalf, and in a representative capacity in behalf of all other employees of said store, filed a complaint with the Wisconsin employment relations board, charging the appellant unions with unfair labor practices. Prior to December, 1940, Hal Norris and Dan Hubbard, the business agents of their respective unions, agreed to conduct a campaign to organize the retail stores throughout the city of Racine. They determined by lot-by drawing the name out of a hat-which of the two unions should organize a particular store. Said agents further agreed that if a store did not become organized they would picket that store.

In the latter part of November, 1940, Norris and Hubbard called on the manager of the store and obtained from him permission to post a notice in the store that a meeting would be held on the evening of December 3d, at Union Hall, for the purpose of organizing the employees of the store into A. F. L., Local No. 1403. Such notice was posted on the store bulletin board on or about November 20, with the consent and approval of the store manager. None of the store employees attended the meeting. No claim is made that the employer or any other person made any effort to prevent the store employees from attending the meeting. No further meeting of the employees was called by either union.

When Norris and Hubbard called on the manager of the store to get permission to post notice of the meeting to be held on December 3d, Norris told the manager that he “better have the men up at the meeting or else they would throw a picket line out.” On December 4th Hubbard and Norris, in behalf of their respective unions, made arrangementsfor picketing the store. None of the store employees were members of either union. It is conceded that neither union had any dispute with Sears Roebuck & Company; also, that there was no dispute between the company and its employees. All of the employees were satisfied with wages, hours, and working conditions.

The picketing began on December 4th or 5th, 1940. The placards carried by the picketers bore the legend that the clerks in the store did not belong to the A. F. L. or C. I. O. For a time, at the beginning of the picketing, there were only two pickets at the front of the store and one at the rear entrance, or two pickets in front and a sign posted in the rear. For twelve or fifteen days before Christmas, 1940, the store was open evenings, during which time picketing was conducted by from two to twenty-six persons. During this time the pickets occupied the doorway entrance, making it difficult for customers to get through the picket line to enter the store. There was no violence on the picket line. One witness testified that a customer was tripped. Responsibility for placing the picket line was assumed by the business agent of A. F. L., Local 1403. Two members of the C. I. O. union from the Greene Manufacturing Company were required by their local to join the picket line on Saturday evening before Christmas as a penalty for having gone into the store while it was being picketed. The testimony of the business agents of both unions shows that a majority of the local unions affiliated with them have by-laws which prohibit their members under penalty, in some instances providing for a fine of $50, from patronizing a store which is being picketed.

Within a day or two after the picket line was established, A. F. L., Local 1403, notified other A. F. L. unions of its action and requested that they live up to their by-laws. In one instance the business agent of A. F. L., Local 1403, issued direct orders to a member of another local not to enter the store premises. The business agent of C. I. O., Local 184, reported the establishment of the picket line to the district council composed of representatives of various local C. I. O. unions.

Because of restrictions imposed upon members of the truck drivers' union, the store was unable to obtain delivery service. It could obtain no merchandise except such as was hauled in by employees in private automobiles. Coal could be obtained only by transporting it in bucketfuls in employees' automobiles. Such deliveries as were made to customers of the store had to be made by the same method. The Motor Transport Company refused to make deliveries to the store, giving as their reason that they had orders not to go through the picket line. The Chicago Northwestern Railroad also refused to make truck deliveries. Three companies requested to deliver coal replied that their trucks could not go through the picket line. Mr. Kenth, who had done regular trucking for the store prior to the establishment of the picket line, discontinued service shortly after picketing started. He testified that his reason for discontinuing service was that he was ordered to do so by Mr. Norris, business agent of A. F. L., Local 1403. He further testified that if he did so he would be subject to a $50 fine. Kenth gave the keys for his truck to the shipping clerk at the store. The business agent of the truck drivers union testified that he removed the keys when the shipping clerk attempted to drive it. Certain members belonging to the Nash union, who were employed as extra workers at the store, reported that their unions would not permit them to enter the store to work.

One customer returned merchandise which he had purchased, giving as his reason that when he got to the door a picket told him that if he took it he would lose his job. On many occasions customers explained their failure to continue patronizing the store by saying that they could not come in. There was a decrease in the store's business, directly attributable to the picketing. A decrease in the store's business affects the compensation of the employees because they receive a bonus or commission, based on the amount of business done, in addition to their base pay.

The...