W. Allis Foundry Co. v. State

Decision Date14 February 1925
Citation202 N.W. 302,186 Wis. 24
CourtWisconsin Supreme Court


Error to Municipal Court of Milwaukee County; August C. Backus, Judge.

The West Allis Foundry Company was convicted of publishing false advertisement for labor, and it brings error. Reversed, with directions.

Writ of error to review a conviction on an information charging false advertisement for labor on February 27, 1924. The case was tried without a jury; there was no material dispute as to the facts, which are substantially:

Plaintiff in error, hereinafter called the company, ran a foundry at West Allis in said county with a normal force of about 35, including core makers and moulders. It had no contracts with any labor unions regarding employment.

October 8, 1923, notice was given to the entire force of a proposed uniform cut of 5 cents per hour in their wages. About nine members of labor union local 125 were then employed as core makers and moulders. Such union was a member of the International Moulders' Union, with headquarters at Cincinnati, and which is a member of the American Federation of Labor. On such notice of the proposed cut John and Caspar Weinhoff, members of said local union, and one Bohl, similarly employed but not a member, quit and did not return. The local union officers, being informed of the matter and of the quitting by the Weinhoffs, sent two men to take their places.

October 12th S. W. Taylor, representative of the International Moulders' Union, called on the company regarding such proposed cut so far as the moulders and core makers were concerned. On the same day the matter was acted upon in the local union, and by the required vote under their by-laws a strike was voted.

October 17th Taylor applied to the International Moulders' Union, according to their regulations, to sanction such strike, and received such sanction by telegram on October 20th.

October 22d Taylor again visited the company and suggested a compromise, which was refused. Thereupon, on direction by Taylor and the secretary of local 125, who had accompanied him, one Zuelke, five more members, and two apprentices belonging to the union, and two nonmembers then employed as core makers or moulders, ceased work, and none thereafter returned. Immediately picketing commenced, and was carried on by groups of strikers who were members of the union, giving notice to those approaching the shop that there was a strike on, and persuading men seeking employment to remain away. The men so picketing were paid out of the funds of the local union and the International Union. From time to time some of such men obtained employment elsewhere, and thereupon the aforesaid allowance to them ceased. On February 27, 1924, only said Zuelke, of the men who quit October 22d, was so picketing and receiving such pay or benefit. The two Weinhoffs were also picketing. Within a few days after October 22d the places of the men who had then left were filled by others and they in turn by still others.

On February 27th there were employed by the company eleven moulders and five core makers, being about 33 1/3 more than had been employed at such labor on October 22d; such new men being all residents of Milwaukee or West Allis. The output and general force had increased, and the production was normal; the production of good castings for the several months being as follows:

                ¦September, 1923 ¦58 tons¦
                ¦October         ¦31 tons¦
                ¦November        ¦38 tons¦
                ¦December        ¦43 tons¦
                ¦January, 1924   ¦68 tons¦
                ¦February        ¦72 tons¦
                ¦March           ¦78 tons¦
                ¦April           ¦48 tons¦

Both local 125 and the International continuously from October 22d to the time of the trial asserted that the strike was still in existence, publishing a statement to that effect in their monthly journals and quarterly circular letters. After such advertisement, the said Zuelke as such picket interviewed a number of men approaching with the idea of obtaining employment, and induced them to remain away.

The plaintiff in error was adjudged guilty May 8, 1924, and fined, and to review such judgment has obtained this writ of error.

Crownhart, J., dissenting.

Lamfrom & Tighe, of Milwaukee (Leon B. Lamfrom and Carl B. Rix, both of Milwaukee, of counsel), for plaintiff in error.

Herman L. Ekern, Atty. Gen., Eugene Wengert, Dist. Atty., George B. Skogmo, Sp. Asst. Dist. Atty., and C. Stanley Perry, Asst. Dist. Atty., all of Milwaukee, for the State.

Padway, Skolnik & Winnecour, of Milwaukee (Joseph A. Padway, of Milwaukee, of counsel), amici curiæ.

ESCHWEILER, J. (after stating the facts as above).

The information charged plaintiff in error with having on February 27, 1924, unlawfully attempted to influence, induce, persuade, and engage workmen to change from one place of employment to another in this state through and by means of false advertisements, in this, that it did publish in a newspaper in the city of Milwaukee, said county, the following advertisement: “Moulders--Wanted for floor work. West Allis Foundry Company, Seventy-Sixth and Elm Streets,” and further charging that the said advertisement then and there failed to state that there was a strike at said place of business and that such strike actually existed at such place.

This prosecution is brought under what is now section 103.43, having been section 1729p--1, Stats. 1921, and the language of that statute, so far as here involved, makes it unlawful to induce employés to engage in service by false advertising through failure to state in any such advertisement “that there is a strike or lockout at the place of the proposed employment, when in fact such strike or lockout then actually exists in such employment at such place.”

[1] This being a criminal prosecution, it was necessary for the state to prove that at the time of the advertisement by the company there was then at its shop a strike actually existing. If there was it is conceded that the judgment should be affirmed; if there was not, it must be reversed.

The validity of this statute has been upheld in Biersach & Neidermeyer Co. v. State, 177 Wis. 388, 188 N. W. 650, and its general purpose declared to be within proper public policy to protect the public interests and those seeking employment, citing with approval the same view expressed as to the similar statute in Massachusetts in Comm. v. Libbey, 216 Mass. 356, 103 N. E. 923, 49 L. R. A. (N. S.) 879, Ann. Cas. 1915B, 659.

[2] There can be no question but that when, by concerted action, a number of the company's employés quit work on October 22d because of the proposed cut in wages they then entered upon a lawful strike as such term is understood and declared. Oeflein v. State, 177 Wis. 394, 399, 188 N. W. 633.

The proposed general cut in wages was such a grievance as must exist in order to make concerted withdrawal a justifiable strike. That there must exist a grievance as a basis is unquestioned, and is so stated by such a leader of labor unionism as the late Mr. Gompers in his work “Labor and Common Welfare,” published in 1919, at page 75, in giving the union labor definition as being such “when directed against an employer with whom the striking workmen have a direct dispute with regard to wages, or conditions or labor for the purpose of obtaining a betterment of these conditions,” and as testified to in the court below by Mr. Taylor.

The present recognized definition of strike as it is used in the industrial world, and the present day recognition of the legality of a combination of employés to compel compliance with their demands by an employer against his wishes, as distinguished from concerted action to force or compel another to do an act against his will, which latter, in many instances, is still unlawful as actionable conspiracy, and the consequent overturning of the old common-law doctrine which made such combinations by workmen unlawful has been effected largely by the decisions of courts rather than by action of Legislatures, as is so clearly pointed out by Mr. Justice Brandeis in his dissent, with which Mr. Justice Holmes and Mr. Justice Clarke concurred, in the case of Duplex Co. v. Deering, 254 U. S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196, where he said, at page 481 (41 S. Ct. 181):

“The change in law by which strikes once illegal and often criminal are now recognized as lawful was effected in America largely without the intervention of legislation.”

He follows this with numerous citations showing the gradual steps by which courts reversed the old common-law rules.

All the recognized definitions of an industrial strike, however, confine it to the concerted action by the employés of the particular employer against whom it is aimed; that is, between the individuals who are under present contract of employment with a particular employer and him, and to no one outside of such class. In determining the particular question here it cannot therefore be regarded as a dispute between the local union which has no contract with the company but between the withdrawing employés and the company alone; no question being here raised but that the local and international unions as such may, within lawful limits, lend aid and assistance to their members who are, as employés for the company, engaged in the strike.

[3] The public policy of this state, as expressed by its Legislature has clearly left the determination of the question as to whether or not a strike actually exists at a given time between the withdrawing employés and the employer, to be determined as a simple question of fact before judicial tribunals in proper proceedings such as are involved in this case. Such a question, of course, cannot be left to...

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  • Samuel Hertzig Corp. v. Gibbs
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 9, 1936
    ...N.E. 450; Moore Drop Forging Co. v. McCarthy, 243 Mass. 554, 562, 137 N.E. 919; G.L.(Ter.Ed.) c. 150, § 4. West Allis, Foundry Co. v. State, 186 Wis. 24, 202 N.W. 302; Frankfurter & Greene, The Labor Injunction (1930), 31. Organized Labor & Industrial Conflicts (1927), § 311. The right of p......
  • E. M. Loew's Enterprises, Inc. v. International Alliance of Theatrical Stage Employees
    • United States
    • Connecticut Supreme Court
    • May 5, 1939
    ... ... in a substantially diminished state up to the time of the ... trial. The plaintiff at all times operated its theater ... without ... factors may enter. See dissenting opinion in West Allis ... Foundry Co. v. State, 186 Wis. 24, 39, 202 N.W. 302 ... Thus, to mention a few: The employer ... ...
  • Blonder v. United Retail Employees of Newark, Local No. 108
    • United States
    • New Jersey Court of Chancery
    • August 28, 1940
    ...incident has ceased. Into the determination of that question various factors may enter. See dissenting opinion in West Allis Foundry Co. v. State, 186 Wis. 24, 39, 202 N.W. 302. Thus, to mention a few: The employer may be able to establish that he can, despite the efforts of labor, carry on......
  • People v. Johnson
    • United States
    • Illinois Supreme Court
    • September 29, 1964
    ...Upon facts very similar to those in the case at bar a conviction was reversed by the Wisconsin Supreme Court in (West Allis Foundry Co. v. State, 186 Wis. 24, 202 N.W. 302.) Like that of Illinois the Wisconsin statute made it unlawful to induce employees to engage in service by failing to s......
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