Wis. Employment Relations Bd. v. Milk & Ice Cream Drivers & Dairy Emps. Union

• Decision Date: 07 October 1941
• Citation: 299 N.W. 31,238 Wis. 379
• Parties: WISCONSIN EMPLOYMENT RELATIONS BOARD v. MILK & ICE CREAM DRIVERS & DAIRY EMPLOYEES UNION, LOCAL NO. 225.
• Court: Wisconsin Supreme Court

238 Wis. 379

299 N.W. 31

WISCONSIN EMPLOYMENT RELATIONS BOARD

v.MILK & ICE CREAM DRIVERS & DAIRY EMPLOYEES UNION, LOCAL NO. 225.

Supreme Court of Wisconsin.

June 25, 1941.

Rehearing Denied Oct. 7, 1941.

Appeals from a judgment and an order of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Affirmed.

Petition by the Wisconsin Employment Relations Board against Milk & Ice Cream Drivers & Dairy Employees Union, Local No. 225, etc., under subsec. (7) of sec. 111.07, Stats.1939, for enforcement of an order of the Board requiring the union to “cease and desist” from “unfair labor practices” found by the Board to have been committed by the union and its officers. From a judgment confirming the order and adjudging its enforcement, the union appeals. From an order punishing the officers of the union for contempt of court for disobedience of the judgment, the officers appeal.

Some evidentiary facts about which there is no dispute and make more readily apparent the issues will be here stated. The Golden Guernsey Dairy Co-operative, referred to herein as “the company,” is a corporation engaged at Milwaukee in the wholesale and retail dairy business, buying and selling milk, cream and other dairy products and producing and processing some of its products. It sells its merchandise by truck and its drivers are paid commissions on their sales. The Milk & Ice Cream Drivers & Dairy Employees Union, Local 225, referred to herein as “the union,” is a labor union affiliated with the American Federation of Labor. It has about two thousand members engaged as drivers, salesmen and other employees in the ice cream and dairy business at Milwaukee. The company had for several years had an all-union contract with the union which was about to expire upon notice, but to continue for another year unless notice of discontinuance was given. The union was the bargaining agent for the company employees. On giving notice of the termination of the existing contract the company informed the union that it would enter into a new contract with the union, but would not enter into a contract containing an all-union provision unless such provision were desired by three-fourths of its employees as required by sec. 111.06(1)(c), Stats., and requested cooperation by the union in procuring a vote on that question. The company petitioned the plaintiff Board to hold such referendum, which was held, and of the 192 employees voting, the vote was 118 against and 74 for the all-union provision. One hundred ninety-four of the company's employees were members of the union and comprised more than a majority of the company's employees. When the result of the referendum was certified by the Board to the company, it again informed the union that it would negotiate a new contract with the union and that it would accept the contract existing between the union and other employees in the dairy business in Milwaukee with the all-union provision eliminated, which all other contracts contained. A bargaining meeting was arranged, but prior thereto the union advertised in the city newspapers that it would not enter into a contract with the company unless the contract contained an all-union provision. Before the time of this meeting was fixed the employees of the company had formed an organization named “The Independent Association of Golden Guernsey Employees” hereinafter referred to as “the independent union.” This independent union notified the company that it desired to be the bargaining agent of the employees. At the meeting referred to the company informed the union of this demand and suggested that the matter of which union should represent the employees should be decided by a vote of the employees under the supervision of the Board but until such vote was taken it would recognize the union as the representative of its employees. The meeting between the company and the union for negotiations was held on April 3, 1940. The union there presented a contract for the company's acceptance which contained an all-union provision and price, hour, vacation and sick leave provisions far in excess of those in force in the contract with all the other employers in the dairy business in the city and so exorbitant as would make the aggregate cost to the company for the ensuing year, on the basis of the company's employment experience of the previous year, $134,500, and in excess of the company's entire profits of $92,265 for that year. The company offered some concessions but said that it would not accept an all-union contract because of the vote of its employees and the prerequisite of the statutes for a vote of three-fourths of its employees to authorize such a provision. The night after this meeting a special meeting of the members of the union was held to take up the matters between the union and the company. At this meeting certain questions were submitted by secret ballot to the members present. Question 3 was: “Do you favor a strike at the Golden Guernsey Company if it does not sign the all-union agreement which the rest of the industry has agreed to?” The vote was 553 “Yes” and 2 “No.” By like vote taken at the meeting the executive board of the union was professedly authorized to call a strike. After this meeting adjourned the executive board met the same night and decided to call a strike against the company. The committee included the president, vice-president, secretary-treasurer and other members of the union. The president testified on the hearing before the Board that the committee decided to declare the company unfair; to notify its employees and ask them not to go to work; to give each employee a copy of the union by-laws, which by their terms obligate members on call of strike by the executive committee to cease work, and subjects a member who fails to do so to fine, suspension or expulsion at the discretion of the executive committee; to ask them to help advertise that the company and its employees “would be unfair.” A copy of the by-laws was given next morning to each employee member. Of the company employees twenty signed a writing refusing to go to work. The union had signs prepared “Golden Guernsey Company unfair to organized labor. Local 225. Please do not patronize.”“Golden Guernsey and its employees unfair to organized labor. Please do not patronize.” Other signs were made up as follows: “2000 milkmen cannot be wrong; please do not patronize Golden Guernsey Dairy employees, Local 225.” “Help 2000 milkmen.” “2000 milkmen from Local 225 A. F. of L. beg your support. Please do not patronize Golden Guernsey employees.” Signs were posted on a hack driven about the city: “We ask you, please do not patronize the Golden Guernsey Dairy employees.” All these signs were “on the street” until the trial. Picketing of the plant as arranged by the executive committee of the union began early on April 5th.

Pursuant to the plans of the executive committee of the union, extensive like advertising was carried on by the union throughout the city, through newspapers, by men carrying signs, by automobiles following delivery wagons of the company, by a man on a bicycle. The gist of the matter thus advertised was that the company and its employees were unfair to organized labor. Pickets carried such signs at the company's plants and at some places where its products were delivered.

From the evidence before it the Board made findings as to the activities of the union which are more specifically referred to in the body of the opinion. Other facts relating to these activities will be there stated so far as deemed material to our rulings.

Padway, Goldberg & Tarrell and David Previant, all of Milwaukee, for appellant.

John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., and N. S. Boardman, Asst. Atty. Gen., for respondent.

Walter H. Bender, of Milwaukee, amicus curiae.

FOWLER, Justice.

The proceedings involved were duly instituted by the Wisconsin Employment Relations Board upon the petition of the Golden Guernsey Dairy Co-operative against the Milk & Ice Cream Drivers & Dairy Employees Union, Local 225, under Ch. 111, Wis. Stats.1939, hereinafter referred to as “the act,” enacted in furtherance of “the public policy of the state as to employment relations and collective bargaining.” Secs. 111.06(1) and (2) of the act declare “What are unfair labor practices.” Sec. 111.07 by subsec. (1) provides that any controversy concerning such practices may be submitted to the Board; by subsec. (4), that after hearing the Board shall “make and file its findings of fact” and “its order,” and that the order may dismiss the charge or require the person complained of to cease and desist from an unfair labor practice found to have been committed; and (7) provides that if a person against whom an order runs fails or neglects to obey it the Board may bring an action in the circuit court to enforce it. In the instant case the Board made an order against the union, the union did not comply with it, and the Board brought an action to enforce it. The union asked the court to set aside the order. The circuit court sustained the order and entered its judgment of enforcement, and from that judgment the union appeals.

After the judgment of the court was entered and notice of its entry given to the union, the Board by petition to the circuit court charged that the union, its officers and certain members, wilfully and contumaciously committed acts in violation of provisions of the court's judgment and asked that they be dealt with as in contempt of the court. The court by order required the defendant union to show cause why it should not be so dealt with. The union by answer denied in part committing the acts charged and admitted them in part and claimed justification of the admitted acts under the free speech clause of the United States Constitution and the XIVth Amendment. Upon hearing had before the judge who rendered the judgment, the president, vice-president...