Senn v. Tile Layers Protective Union, Local No. 5

• Decision Date: 29 June 1936
• Citation: 222 Wis. 383,268 N.W. 270
• Parties: SENN v. TILE LAYERS PROTECTIVE UNION, LOCAL NO. 5, ET AL.
• Court: Wisconsin Supreme Court

222 Wis. 383

268 N.W. 270

SENN

v.TILE LAYERS PROTECTIVE UNION, LOCAL NO. 5, ET AL.^a1

Supreme Court of Wisconsin.

June 29, 1936.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Suit by Paul Senn against the Tile Layers Protective Union, Local No. 5, and others. Judgment for defendants, and plaintiff appeals.--[By Editorial Staff.]

Affirmed.

FOWLER and NELSON, JJ., dissenting.

Suit in equity begun on the 27th day of December, 1935, seeking to enjoin two labor unions and certain individuals who were officers of the unions from coercing the plaintiff to refrain from engaging himself in the actual work of a tile layer or helper, the plaintiff being a contractor, and for other supporting relief. Judgment was entered in favor of defendants April 3, 1936, denying the injunction prayed for in the complaint.

The action is for a permanent injunction restraining defendants from interfering with or coercing the plaintiff in his business as a tile contractor. In such business he works with his own hands with tools of the trade, and employs one or two helpers not members of either of the defendant unions. He has no contractual relations with the defendants. The important facts appear in the findings by the trial court. The case was tried to the court and its findings include the following facts: The residence of the plaintiff and of the individual defendants. The organization of the unions with their business address, and the relation of the individual defendants to the unions; that the plaintiff for approximately four years conducted the business of a tile contractor in the city of Milwaukee; that he has now a show room in which he displays samples of tile; that he has, at times, employed one or two tile layers and helpers, depending upon the amount of work he has contracted to do at a given time; that he takes subcontracts for the installment of tile; that none of his employees were at any time members of either union; that the defendants desired the plaintiff to unionize his business and required of him the signing of a contract containing the following provision, referred to as article 3, “It is definitely understood that no individual member of a partnership or corporation engaged in the tile contracting business shall work with the tools or act as helper, but that the installation of all materials claimed by the party of the second part listed under the caption ‘Classification of Tile Work’ in this agreement shall be done by journeymen members of Tile Layers Protective Union Local No. 5”; that the plaintiff was willing to agree to the terms exacted by the unions with the exception of the conditions imposed by article 3; that because of the refusal of the plaintiff, defendants caused the premises of the plaintiff to be picketed, the pickets carrying banners with the inscription “Unfair To Organized Labor”; that they caused the plaintiff to be followed from his place of business to the jobs so that the jobs might be picketed; that the defendants sent letters to architects and contractors requesting them not to patronize the plaintiff and stating that if they did so, they would be picketed; that certain contractors in the city of Milwaukee entered into an agreement governing wages, hours, and working conditions with the defendant unions, and are classed as union contractors; that by virtue of the agreement with union contractors, the defendant unions secure for their members advantages in their wages, hours, and working conditions; that such wages are higher than the wages paid by the plaintiff; that the tile industry is demoralized, and that the members of the defendant unions have been in competition with nonunion tile setters and helpers in their effort to secure work; that for the purpose of enhancing the interest of their members, the unions have deemed it wise, in the protection of their rights in the prosecution of their trade, to require all employers agreeing to conduct a union shop to comply with “Article 3”; that plaintiff, by virtue of his status as an employer and contractor, is not entitled to membership in the defendant unions; that the requirements of the unions that a tile setter shall be a journeyman tile setter, who shall have acquired his practical experience by virtue of an apprenticeship consisting of service as an apprentice for not less than three years precluded the plaintiff from membership in the unions; that the picketing has been peaceful and without any unlawful acts; that the defendants agreed in open court to refrain from following the plaintiff from his place of business to his jobs, and to refrain from sending any further letters to architects or contractors, and to refrain from indulging in any acts or conduct mentioned in those letters. The court then concluded as matters of law, first, that a labor dispute exists between the plaintiff and the defendants; second, that it is not unlawful for the defendants “to advise, notify or persuade, without fraud, violence or threat thereof, any person or persons, of the existence of said labor dispute; that it is not unlawful for the defendants to give publicity to, and obtain or communicate information regarding the existence of the facts involved in such dispute whether by advertising, speaking, or patrolling any public street or any place where any person or persons may lawfully be, providing said acts are done without intimidation or coercion and without fraud, violence, breach of the peace, or threat thereof.” The third conclusion was to the effect that the defendants have not indulged in violence or fraud. The fourth, fifth, and sixth conclusions are as follows:

“That the agreement submitted by the defendants to the plaintiff, setting forth terms and conditions prevailing in that portion of the industry which is unionized, is sought by the defendants for the purpose of promoting their welfare and enhancing their own interests in their trade and craft as workers in the industry.

That Article III of said agreement is a reasonable and lawful rule adopted by the defendants out of the necessities of the employment within the industry and for the protection of themselves as workers and craftsmen in the industry.

That the plaintiff is not entitled to the relief prayed for in his complaint.”

Lamfrom, Tighe, Engelhard & Peck, of Milwaukee (Leon B. Lamfrom, of Milwaukee, of counsel), for appellant.

Joseph A. Padway, of Milwaukee, for respondent.

FAIRCHILD, Justice.

Appellant is engaged as a contractor in the tile setting business in Milwaukee. He conducts his business as a small concern, and in addition to hiring tile setters, he himself performs services usually rendered by a journeyman or helper. It was established on the trial that appellant employed his brother approximately 10 per cent. of the time; that he entered into a partnership with William Neider, a former union journeyman who gave up his membership in the union to enter into the partnership, and also employed Arnold Holly, a suspended union member. From May, 1934, to May, 1935, out of a total of 1,777 hours on jobs, appellant himself worked as tile setter 771 hours.

There were occasional conferences between appellant and the union officials before this contest developed. In March, 1935, a contract was submitted to appellant by the unions, article III of which requires him to refrain from performing the work which it is his custom to perform, and to agree that such work be done by journeymen members of the Tile Layers Protective Union, Local No. 5. The ultimate object of the negotiations on the part of the respondents was to secure the unionization of appellant's business. The appellant asserts that he is willing to comply with all requirements covered by the union contracts except those which require him to refrain individually from working as a tile setter or helper. The dispute arises over the respective contentions thus outlined. It will readily appear that there are elements involved in this controversy not present in the case of American Furniture Co. v. I. B. of T. C. and H. of A., Chauffeurs, Teamsters and Helpers General Local No. 200 of Milwaukee (Wis.) 268 N.W. 250, decided herewith. The demand here by the unions is for the appellant to conform to a definite wage scale prevalent on union jobs, and to conform to a fixed number of hours approved by the union. They also insist that he conform to the rules of apprenticeship and other working conditions prevalent in the industry where union rules prevail. The requirement that the employer personally refrain from working with the tools of the trade is important and vital to the craftsmen affiliated with defendant unions, because the practices sought to be prevented can so readily affect wages and hours of labor. It is pointed out by respondent that the membership in the union has decreased during the depression years, and that as a necessary requisite for a proper existence and livelihood, these craftsmen find it necessary to require employers to comply with the terms of article III. Appellant's method of conducting his business brings into the situation a direct attack by him upon the means relied upon by the unions to protect their scale of wages, hours, and working conditions against the cutting of prices and lengthening of hours of work.

[1] The respondents insist upon their right to exert economic pressure against one who refuses to bring his shop up to union standards by refusing to agree to the union rules requiring the contractor to abstain from working with the tools of the trade, and on this, base their declaration that a labor dispute exists. There does not seem to be much occasion to question the existence of a dispute between the associations, which are committed to the protection of certain standards of wages and hours, with a contractor engaged in the same craft who proposes to work therein as a journeyman or a helper at a price and during hours that...