Ross v. Ebert, 8

• Decision Date: 09 April 1957
• Docket Number: No. 8,8
• Citation: 275 Wis. 523,82 N.W.2d 315
• Parties: , 39 L.R.R.M. (BNA) 2735, 1 Empl. Prac. Dec. P 9655, 32 Lab.Cas. P 70,627 Randolph ROSS et al., Appellants, v. Charles EBERT, as Business Agent of the Bricklayers, Masons, Marble Masons Protective International Unionetc., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 315

82 N.W.2d 315

275 Wis. 523, 39 L.R.R.M. (BNA) 2735,

1 Empl. Prac. Dec. P 9655,

32 Lab.Cas. P 70,627

Randolph ROSS et al., Appellants, v. Charles EBERT, as Business Agent of the Bricklayers, Masons Marble Masons Protective International Union No. 8 etc., et al., Respondents.

Supreme Court of Wisconsin.

April 9, 1957.

Rehearing Denied June 4, 1957.

James W. Dorsey, Milwaukee, for appellants.

Padway, Goldberg & Previant, Milwaukee, Saul Cooper, David Leo Uelman and Hugh Hafer, Milwaukee, of counsel, for respondents.

BROWN, Justice.

Appellants' first contention is that the circuit court had jurisdiction to order the bricklayers union to admit appellants to membership. For support of this contention they rely principally on sec. 9, art. I, Wis. Const., reading as follows:

'Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.'

This constitutional provision has frequently been construed to declare that the wrongs contemplated by this language are those resulting from an invasion of a party's legal right. Not long ago this court so stated in Scholberg v. Itnyre, 1953, 264 Wis. 211, 58 N.W.2d 698. Unions in the past and at present in this state (unless we now decide differently) are voluntary associations to which members may be admitted by mutual consent but into which applicants either by their own efforts or by the aid of the courts cannot force themselves against the will of those already members.

'Conditions as to Membership.--Like other associations, trade unions may prescribe qualifications for membership. They may impose such requirements for admission and such formalities of election as may be deemed fit and proper. Moreover, they may restrict membership to the original promoters, or limit the number to be thereafter admitted. No person has an abstract or absolute right to membership.' 31 Am.Jur., Labor, Sec. 58, p. 861.

'Generally.--Membership in a voluntary association is a privilege which may be accorded or withheld, and not a right which can be gained independently and then enforced. The courts cannot compel the admission of an individual into such an association, and if his application is refused, he is entirely without legal remedy, no matter how arbitrary or unjust may be his exclusion. The acceptance of, or intention by the person in question to accept, membership in an unincorporated association is necessary to make him a member of the organization.' 4 Am.Jur., Associations and Clubs, Sec. 11, p. 462.

It may be disadvantageous to an individual not to be chosen for membership in a voluntary association but the courts hitherto have been powerless to compel the association to receive him. His exclusion has not been a wrong of which the courts have cognizance by virtue of sec. 9, art. I, Wis. Const.

Appellants, however, have some reason to say that the Fair Employment Code, Secs. 111.31-111.36, Stats., first enacted in 1945, has altered matters and that exclusion from a labor union because of the applicant's color deals him an injury which the state recognizes as a legal wrong for which there must be legal redress. The language of the statute from which appellants strive to draw such a conclusion is found in sec. 111.31(1), Stats., thus:

'The practice of denying employment and other opportunities to, and discriminating against, properly qualified persons by reason of their race, creed, color, national origin, or ancestry, is likely to foment domestic strife and unrest, and substantially and adversely affect the general welfare of a state by depriving it of the fullest utilization of its capacities for production. The denial by some employers and labor unions of employment opportunities to such persons solely because of their race, creed, color, national origin, or ancestry, and discrimination against them in employment, tends to deprive the victims of the earnings which are necessary to maintain a just and decent standard of living, thereby committing grave injury to them.' (Our emphasis.)

If ch. 111 stopped there perhaps appellants might have something. But it does not; in sec. 111.31(3), Stats., it continues 'In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of their race, creed, color, national origin, or ancestry. All the provisions of this subchapter shall be liberally construed for the accomplishment of this purpose.'

Racial discrimination in employment, so far, is not declared to be illegal. It is pronounced undesirable and the announced public policy of the state is to encourage and foster employment without such discrimination to the fullest extent practicable. 'Encourage and foster': no slightest reference to 'require' or 'compel'. In the matter of racial discrimination in public accommodations the discrimination is declared to be illegal and penalties are provided for the innkeeper, barber or public carrier, for instance, who discriminates. Sec. 340.75, Stats. ¹ Nothing of the sort is found in secs. 111.31-111.36, Stats. Reading secs. 111.31 to 111.36 in their entirety we are unable to find that the legislature created a new right,--one giving to a colored applicant an enforceable right to union membership over the objection, on racial grounds, of the members already there. But if such right was created we must look to the statute to see if the remedy or penalty for a violation is provided. If it is, that remedy is exclusive. State ex rel. Russell v. Board of Appeals, 1947, 250 Wis. 394, 397, 27 N.W.2d 378; LeFevre v. Goodland, 1943, 247 Wis. 512, 516-517, 19 N.W.2d 884, 161 A.L.R. 342. Where the law gives a new remedy to meet a new situation, the remedy provided by the law is exclusive. In re Jeness, 1935, 218 Wis. 447, 450, 261 N.W. 415.

So looking, we discover that one believing that he is the victim of racial discrimination in matters affecting his employment may apply to the Industrial Commission which may then investigate the complaint and give publicity to its findings. The commission may also make recommendations to the interested parties. Secs. 111.35, 111.36, Stats. The complaint alleges that the commission held hearings in this matter, found that the union, or its responsible officers, the respondents, had discriminated against appellants because of their color, and the commission had given publicity thereto and had recommended to the union that it accept the two appellants as members. Investigation, publicity and a commission recommendation are what the statute provides in consequence of racial discrimination practiced by an employer or a union. We grant it is cold comfort to appellants but it is all the legislature saw fit to provide. Evidently it was the opinion of that body that the public policy declared by sec. 111.31(1) and (3), Stats., is better served by peaceful persuasion and moral pressure than by force for the statute did not in this Code even give the Industrial Commission the power to make orders directing compliance with the declared public policy. The commission may only recommend. We must conclude, then, that moral force, aroused by the findings, publicity and recommendations of the commission is consistent with the intent of the legislature in this enactment and compulsion of a union (or of an employer if he is the discriminator) under a decree of a court, is not.

We are confirmed in this conclusion when we note that the first enactment of sec. 111.31 to sec. 111.36, Stats., was by the legislature in 1945. The bill as introduced, Senate Bill No. 131, gave power to the Industrial Commission to order violators to cease and desist and gave the courts power to review and to enforce such orders. That is what appellants ask the court to do now. Before passage the bill was amended and the powers to order and to enforce were removed. As so amended the bill was enacted into law. By Assembly Bill 357 A in 1951 and Assembly Bill No. 390 A in 1955 amendments restoring the compulsory features were introduced in the legislature but both failed of passage. In the recent 'right of privacy case', Yoeckel v. Samonig, 1956, 272 Wis. 430, 75 N.W.2d 925, 927, we said:

'* * * particularly because of the refusal of the legislature at two sessions to recognize even a limited right to protection against invasion of the right of privacy, we are compelled to hold again that the right does not exist in this state.'

We are convinced that the legislature purposely denied enforcement provisions in the Fair Employment Code and for us to restore what the legislature struck out would be legislation. not interpretation or construction of the statute. And here there could be no pretense that the court is reading into the statute something consonant with the intent of the legislature but left out through inadvertence or lack of foresight. The statute's history up to the last legislative session emphasizes that there is more to contend with here than an inadvertent omission. The principle of compelling compliance with the purpose of the legislation has been three times intentionally rejected. A clearer declaration of a non-compulsory public policy is hard to imagine. For the court to read into the statute that which the legislature has thrice refused to include would be not only a reversal of the legislative intent but a gross invaion of the legislative field in order to do so.

So far we have considered the issue from the standpoint of the state constitution and statutes. In addition to alleging that they have been violated, the complaint alleges that this discrimination against appellants by the union is a violation of sec....