Vogt, Inc. v. International Broth. of Teamsters, Local 695, A.F.L.

• Citation: 270 Wis. 315,74 N.W.2d 749
• Parties: , 37 L.R.R.M. (BNA) 2535, 29 Lab.Cas. P 69,747 VOGT, Inc., a Wisconsin corporation, Respondent, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 695, A. F. L.; International Union of Operating Engineers, Local 139, A. L. F.; and Building and Construction Laborers Union Local 392, A. F. L., Appellants.
• Decision Date: 07 February 1956
• Court: United States State Supreme Court of Wisconsin

Page 749

74 N.W.2d 749

270 Wis. 315, 37 L.R.R.M. (BNA) 2535,

29 Lab.Cas. P 69,747

VOGT, Inc., a Wisconsin corporation, Respondent, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 695, A. F. L.;

International Union of Operating Engineers, Local 139, A. L.

F.; and Building and Construction Laborers Union Local 392,

A. F. L., Appellants.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Padway, Goldberg & Previant, Milwaukee, David Previant, David Leo Uelman, Milwaukee, of counsel, for appellants.

Lamfrom & Peck, Milwaukee, Leon B. Lamfrom, Jacob L. Bernheim, Milwaukee, Hilbert W. Dahms, Oconomowoc, of counsel, for respondent.

GEHL, Justice.

We have concluded that we were in error in our original determination of the issues in this case, and, therefore, withdraw the opinion and the mandate previously entered. We are convinced that in our study of the issues presented we gave too little consideration to the fact that there are limitations upon the right of free speech, and that the prohibition of action against free speech is not intended to give immunity for every use or abuse of language. We gave insufficient notice to the fact that free speech is not the only right secured by our fundamental law, and that it must be weighed, here for instance, against the equally important right to engage in a legitimate business free from dictation by an outside group, and the right to protection against unlawful conduct which will or may result in the destruction of a business; that both the right to labor and the right to carry on business are liberty and property. We left out of calculation the rule that the court is to consider not only the established facts as they appear in the record, but that it should also give attention to the inferences reasonably and justifiably to be drawn therefrom.

In considering the right of freedom of speech it must be recognized that that right is to be evaluated with the right of the many who have no interest whatever in the relationships between the defendant unions and those whom they seek to acquire as members; that by its very nature every right is related to a duty to exercise it so as to cause a minimum of harm to another, least of all to an innocent bystander; that the right may not be considered apart from that of society to maintain order; and that one who seeks freedom may not wholly ignore his neighbor's right to it.

'The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and 'the power of the State to set the limits of permissible contest open to industrial combatants.'' International Brotherhood of Teamsters, etc., Union Local 309 v. Hanke, 1950, 339 U.S. 470, 474, 70 S.Ct. 773, 775, 94 L.Ed. 995.

We have not found that the United States Supreme Court has ever held that the right of free speech is absolute and to be protected regardless of the effect its exercise may have upon other rights protected by the Constitution. We find no cases decided by that court in which it has been held that a state is without power to curtail the right when, in the exercise of its authority to establish and declare its public policy, it determines that such curtailment is necessary to protect the public interest and property rights. On the contrary, the court has said that:

'* * * since picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey, this Court has not hesitated to uphold a state's restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity.' Building Service Employees International Union, Local 262 v. Gazzam, 1950, 339 U.S. 532, 537, 70 S.Ct. 784, 787, 94 L.Ed. 1045.

In Bakery and Pastry Drivers and Helpers Local 802, etc. v. Wohl, 1942, 315 U.S. 769, 62 S.Ct. 816, 819, 86 L.Ed. 1178, the court said:

'A state is not required to tolerate in all places * * * even peaceful picketing by an individual,'

And in a concurring opinion Mr. Justice Douglas said:

'Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation.'

In Giboney v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 502, 69 S.Ct. 684, 690, 93 L.Ed. 834, the court, after calling attention to the importance to our society of a vigilant protection of freedom of speech, said:

'But placards used as an essential and inseparable part of a grave offense against an important public law cannot immunize that unlawful conduct from state control. Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 539, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568; Thomas v. Collins, 323 U.S. 516, 536, 537, 538, 539-540, 65 S.Ct. 315, 325, 326, 327, 89 L.Ed. 430. Nor can we say that the publication here should not have been restrained because of the possibility of separating the picketing conduct into illegal and legal parts. Thomas v. Collins, supra, 323 U.S. at 547, 65 S.Ct. at page 330. For the placards were to effectuate the purposes of an unlawful combination, and their sole, unlawful immediate objective was to induce Empire to violate the Missouri law by acquiescing in unlawful demands to agree not to sell ice to nonunion peddlers. It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. See e.g., Fox v. State of Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.'

'Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance.' Hughes v. Superior Court, 1950, 339 U.S. 460, 465-466, 70 S.Ct. 718, 721, 94 L.Ed. 785.

Consistently with the foregoing, we said in Retail Clerks' Union, Local No. 1403, A. F. of L. v. Wisconsin E. R. Board, 1942, 242 Wis. 21, 37, 6 N.W.2d 698, 706, 149 A.L.R. 452, that:

'Peaceful picketing is now recognized as an exercise of the right of free speech and therefore lawful. (Citing cases.) However, it cannot be made the cover for concerted action against an employer in order to achieve an unlawful or prohibited object, such as to compel an employer to coerce his employees to join a union.'

There is nothing in American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 569, 85 L.Ed. 855 to support the proposition that freedom of speech includes the right by picketing to induce an employer or an employee to violate the provisions of the Wisconsin statutes, to which we shall later refer, and thus engage in an unfair labor practice and set at naught the declared public policy of the state. No statutory violation was involved in the Swing case. The issue was whether 'the constitutional guarantee of freedom of discussion [was] infringed by the common law policy of a state forbidding resort to peaceful persuasion through picketing merely because there is no immediate employer-employee dispute.' All that was decided in that case was that such a policy does abridge the exercise of freedom of speech by peaceful picketing. The case is distinguishable from the instant case in that it did not appear in that case that the picketing was in violation of any valid statute or that it was for an unlawful purpose. See discussion of the Swing case in Wisconsin Employment Relations Board v. Milk, etc., Union, 1941, 238 Wis. 379, 299 N.W. 31.

By enactment of section 111.06(2), Stats., the legislature has declared it to be an unfair labor practice and a violation of the public policy of this state for an employee individually or in consort with others:

'(a) To coerce or intimidate an employe in the enjoyment of his legal rights, including those guaranteed in section 111.04, or to intimidate his family, picket his domicile, or injure the person or property of such employe or his family.

'(b) To coerce, intimidate or induce any employer to interfere with any of his employes in the enjoyment of their legal rights, including those guaranteed in section 111.04, or to engage in any practice with regard to his employes which would constitute an unfair labor practice if undertaken by him on his own initiative.'

Section 111.04 Stats., provides that:

'Employes shall have the right of self-organization and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection; and such employes shall also have the right to refrain from any or all of such activities.'

By the provisions of subsection (3) of the statute it is made an unfair labor practice for any person to do any act so prohibited.

The United States Supreme Court has conceded to the states the right to prohibit the conduct defined in these statutes. In Building Service Employees International Union Local 262 v. Gazzam, supra, [339 U.S. 532, 70 S.Ct. 787] the court recognized the right of the State of Washington to declare its public policy on the subject and said:

'The State of Washington has by ...