Wisconsin Employment Relations Bd. v. Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors Intern. Union of America

• Decision Date: 07 February 1956
• Docket Number: J,No. 27,No. 115,115,27
• Parties: , 37 L.R.R.M. (BNA) 2610, 29 Lab.Cas. P 69,754 WISCONSIN EMPLOYMENT RELATIONS BOARD, Respondent, v. JOURNEYMEN BARBERS, HAIRDRESSERS, COSMETOLOGISTS AND PROPRIETORS INTERNATIONAL UNION OF AMERICA, Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors International Union of America, Localourneymen Barbers, Hairdressers, Cosmetologists and Proprietors International Union of America, Guildohn Billie, Charles Cole, and Emil Pire, Appellants.
• Court: Wisconsin Supreme Court

Page 815

74 N.W.2d 815

272 Wis. 84, 37 L.R.R.M. (BNA) 2610,

29 Lab.Cas. P 69,754

WISCONSIN EMPLOYMENT RELATIONS BOARD, Respondent, v. JOURNEYMEN BARBERS, HAIRDRESSERS, COSMETOLOGISTS AND PROPRIETORS INTERNATIONAL UNION OF AMERICA, Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors International Union of America, Local No. 115, Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors International Union of America, Guild No. 27, John Billie Charles Cole, and Emil Pire, Appellants.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Rehearing Denied April 3, 1956.

Warne, Duffy & Dewane, Green Bay, for appellants.

Vernon W. Thomson, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., Welsh, Trowbridge, Wilmer & Bills, Green Bay, for claimants McMaster and Le Mieux.

Lloyd J. Planert, Green Bay, for respondent.

CURRIE, Justice.

For many years the craft unions organized by the American Federation of Labor in the skilled trades have followed the policy that, where an employer works with the tools of his trade, he, as well as his employees, must be members of the union in order that the employer be considered as operating a 'union shop'. Pursuant to this policy the barbers union has provided by sec. 5, art. VII, of its constitution, as follows: 'No [Union] Shop Card shall be displayed in a barber or beauty shop unless all persons working in the shop with the tools of the trade are members of the union in good standing'. Both the conditions printed on the back of the union shop card, and the separate written agreements exacted from shop proprietors governing the display of the card, make observance of such provision of the union's constitution necessary in order to entitle the shop proprietor to continue to display the card in his shop.

This court in Wisconsin Employment Relations Board v. Journeymen Barbers, 1949, 256 Wis. 77, 39 N.W.2d 725, held it to be a violation of sec. 111.06(1)(b), Stats., as such section was then worded, for an employer to belong and pay dues to the same union of which his employees were members. This was because such section made it an unfair labor practice for an employer to contribute financial support to any labor organization. The first general session of the legislature following such decision, that held in 1951, amended sec. 111.06(1)(b) by adding thereto the following proviso: 'Provided, however, that it shall not be an unfair labor practice for an employer to become a member of the same labor organization of which his employees are members, when he and they work at the same trade'. At the same time the 1951 legislature created sec. 111.06(2)(m) which makes it an unfair labor practice for an employee individually, or in concert with others, 'to coerce or intimidate an employer working at the same trade of his employees to induce him to become a member of the labor organization of which they are members, permissible pursuant to sec. 111.06(1)(b)'.

Inasmuch as Le Mieux had ceased to be a member of Guild No. 27 at the time the union shop card was removed from his shop in February, 1954, there is no question but that the union had the right under the printed conditions appearing on the back of the card, and those of the separate contract entered into with the father, to so remove the card. The issue before us on this appeal is whether either the contract governing the display of the card, or the removal of the card when such contract was breached by Le Mieux, constituted coercion within the meaning of sec. 111.06(2)(m) so as to make the defendants guilty of an unfair labor practice.

We think the first approach to the problem is to analyze the nature of the union shop card. It would appear obvious that it stands in the same category as a union label attached to, or imprinted upon, goods made by union labor. Both are in the nature of a recommendation by the union, which owns the card or label, of the services or goods to which such card or label appertains.

The recommendation by the barbers union of a particular barbershop to those of the general public who may be interested in patronizing such shop, by furnishing the proprietor with a union shop card to be displayed on the wall of his shop, is an exercise of the right of free speech guaranteed by the First amendment of the United States constitution as incorporated by the Fourteenth amendment. In the absence of any untruthful statement publicized by such card, we doubt if any legislature or court would have the constitutional right to interfere with the exercise of such right. On principle we cannot distinguish the act of withdrawing such recommendation, by removing the card pursuant to a contract entered into between the shop proprietor and the union, from the right to make use of the card in the first place for the purpose of recommending the shop to the public. The right to cease to speak would seem to be as much a right of free speech as the right to speak.

The attorney general contends that while an act, which if performed by one person, might be lawful, if it be done by several people in concert to attain an illegal objective, would be unlawful and subject to regulation. In support of such contention there are cited the cases of International Union, etc., v. Wisconsin E. R. Board, 1947, 250 Wis. 550, 563, 27 N.W.2d 875, 28 N.W.2d 254, and Judevine v. Benzies-Montanye Fuel & Warehouse Co., 1936, 222 Wis. 512, 525, 269 N.W. 295, 106 A.L.R. 1443. While we have no quarrel with the correctness of the principle as stated by the attorney general, we fail to see how it is applicable to the instant case. Since the 1951 amendment to sec. 111.06(1)(b), it has been a legitimate objective for the barbers union to seek to have barbershop operators working at the barber trade belong to the union, or a local affiliated with it, as well as their employees.

For this same reason we consider the case of Journeymen Barbers, etc., v. Industrial Comm., 1953, 128 Colo. 121, 260 P.2d 941, 42 A.L.R.2d 700, to be readily distinguishable from the case at bar. The controlling Colorado statute in such case was similar to the provisions of sec. 111.06(1)(b), Wis.Stats., as it stood prior to the adoption of the 1951 amendment. The Colorado court held that the contract between the barbershop proprietor and the barbers union, which permitted the withdrawal of the union shop card when the proprietor ceased to be a member of the union, contravened the statute and was void. Because of this the union was...