Wisconsin Employment Relations Bd. v. Retail Clerks Intern. Union, Local No. 526

• Decision Date: 02 June 1953
• Citation: 58 N.W.2d 655,264 Wis. 189
• Parties: , 32 L.R.R.M. (BNA) 2419, 23 Lab.Cas. P 67,646 WISCONSIN EMPLOYMENT RELATIONS BOARD, v. RETAIL CLERKS INTERNATIONAL UNION, LOCAL NO. 526 et al.
• Court: Wisconsin Supreme Court

Page 655

58 N.W.2d 655

264 Wis. 189, 32 L.R.R.M. (BNA) 2419,

23 Lab.Cas. P 67,646

WISCONSIN EMPLOYMENT RELATIONS BOARD, v. RETAIL CLERKS INTERNATIONAL UNION, LOCAL NO. 526 et al.

Supreme Court of Wisconsin.

June 2, 1953.

Dissenting Opinions Filed June 2, 1953.

Appeal by Retail Clerks International Union, Local No. 526, affiliated with the A. F. of L., and Paul L. Whiteside, from a judgment of the circuit court for Kenosha County, affirming an order of the Wisconsin Employment Relations Board requiring the union to cease and desist from engaging in picketing at or near the premises of Block Brothers Company, a corporation engaged in the operation of a retail department store at Kenosha, and hereinafter referred to as 'the employer.'

Padway, Goldberg & Previant, Milwaukee, for appellants.

Vernon W. Thomson, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., for respondent.

GEHL, Justice.

There is presented upon this appeal the question whether the record sustains a finding by the Board that picketing was conducted by the defendant union for the unlawful purpose of (a) inducing the employer to interfere with the right of its employees to refrain from joining or assisting the union, and (b) attempting to coerce and intimidate the employees of the employer to join the union against their will.

The trial court determined that there is such support in the record, and rejected the claim of the union that the order of the Board violates rights assured to the union by the Fourteenth Amendment to the United States Constitution, the right to freedom of speech. Judgment confirming and for enforcement of the Board's order was entered on October 1, 1952.

The parties agree that the picketing was conducted without violence. Counsel for the union concede that if the picketing was carried on for an unlawful purpose there is no invasion of its right to freedom of speech, and say that 'the only question to be resolved is whether the union's activities were carried on for an unlawful purpose'. The issue is correctly stated, Local Union No. 10, etc., v. Graham, 345 U.S. 192, 73 S.Ct. 585. If the board's findings are supported by credible and competent evidence in the record they are conclusive, sec. 111.07(7), Stats.

On October 22, 1951, the union through its business representative, Paul L. Whiteside, requested the employer to recognize the union as the collective bargaining agent for its clerks. The employer refused. Upon petition of the union to the Board the latter ordered and on Novembe 16th conducted an election for the purpose of determining whether a majority of the employees desired the union to act as their bargaining representative. Eight of the employees voted in favor of the union and thirteen against. On November 24th the union sent letters to the employees inviting them to meet with its representative on November 27th. None appeared.

On April 4, 1952 the union commenced picketing in front of and along the side of the employer's store. The pickets carried signs stating that 'Employees in This Store Are Not Members of Local 526, R. C. I. A.--A. F. of L.' In addition to the picketing at the premises a single picket walked along one of the main streets of Kenosha carrying a sign reading, 'The Clerks Working at Block Brothers Company Do Not Belong to Retail Clerks Local No. 526, A. F. L.' The picketing was conducted during Friday and Saturday evenings, the busiest store hours of the week, and continued until the time of the hearing before the board.

There was received in evidence without objection the April 10, 1952 issue of 'The Kenosha Labor', a newspaper published by the A. F. of L. and C. I. O. Unions of Kenosha. There is contained in it a story regarding picketing by Local 526 at Block Brothers Store. The newspaper contains a list of the names of the board of directors and officers of the publisher and recites that Whiteside is a member of the board and the treasurer thereof. The article contains among other things the following:

'There was picketing last week Friday and Saturday and there will be intermittent picketing until the employees join Local 526. The action has the approval of the International Union, Whiteside said.'

The hearing before the board was held twelve days after publication of the article.

Counsel for the union stated for the record that Whiteside 'has full authority to represent and bind the union'. Upon adverse examination Whiteside testified that he read the newspaper article on the day of its publication, that it did not correctly state his position, and that there had been no retraction of the statement in any subsequent issue of the newspaper. On his direct examination, apparently for the purpose of explaining why the article did not correctly state his position, he testified that on the night before the hearing he met the editor and told him that the story contained several inaccuracies, that 'one of them I object to very much, and that was we were trying to organize the retail clothing field,' and 'you are sort of givng me credit for more than I said there, because I did not say we'd picket until they became members of the union.' It will be observed that this testimony refers only to what he told the editor. He was not asked at the hearing nor did he testify that he was misquoted in the statement that 'there will be intermittent picketing until the employees join Local 526.' He testified also that if the employees became members of the union it could be reasonably assumed that picketing would be discontinued.

Does the conduct of the union described above support the finding that there was an unlawful purpose on the part of the union? Specifically, was there a purpose to induce the employer to violate the provisions of sec. 111.06(2)(b) which declares that it shall be an unfair labor practice

'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.'

The board was not bound to accept the union's claim that the picketing was carried on for but one purpose--to publicize the fact that the employees were not members of its organization. That purpose would not of itself be unlawful. But if the trier has properly found that the publication was accompanied by conduct which constitutes a violation of a valid statute, the immunity affords no protection to the violator. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. The board was required to determine the real end sought by the union.

'Peaceful picketing is now recognized as an exercises 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.' Retail Clerks' Union v. Wisconsin Employment Relations Board, 242 Wis. 21, 6 N.W.2d 698, 706, 149 A.L.R. 452.

Whitside's demand that the employer recognize his union, followed immediately by the effort to persuade the employees to join and then by his statement published in a labor paper owned by a corporation of which he was an officer and director, that 'there will be intermittent picketing until the employees join Local 526', and his testimony that picketing would be discontinued if the employees became members of the union, afford ample support for the finding that it was the purpose of the union to coerce and induce the employer, in violation of sec. 111.04, Stats., to interfere with the rights of its employees to refrain from joining the union.

It is true as the union contends that picketing may not be enjoined upon the sole ground that it results or may result in a reduction in the volume of the business of the employer. Competition, whether it be between management and labor, between one labor organization and another, or between commercial or industrial concerns, may quite naturally result in the loss of business or membership of the one to the advantage of the other. We do not, however, base our conclusion upon the ground that the activity of the union in this case may have resulted in a loss in the volume of the employer's business. The circumstances to which we have referred and which occurred before and during the picketing, and not their immediate effect upon the employer's business, demonstrate a purpose to induce the employer to coerce and intimidate its employees in the enjoyment of their legal rights, sec. 111.06(2)(b) Stats., including the right to refrain from joining a labor organization, sec. 111.04, Stats.

One of the more recent cases involving the issue here presented brought to the United States Supreme Court is Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.C. 784, 788, 94 L.Ed. 1045. The employer in that case operated a hotel at which he employed about fifteen people. Just prior to May 1, 1946 representatives of the petitioner union called upon him about organizing his employees and asked him to sign a contract with the union which would require his employees to join it. None of his employees was a member of any union. The respondent replied that that was a matter for the employees to decide. He made no effort to interfere with the union's representatives in their effort to induce the employees to join. The union representatives, after having solicited the employees without success, called upon him again and were told once more that the matter was one for his employees.

On May 2 another meeting was had between the union's representative and the employer and he was again asked to sign the contract and declined on the ground that that would require him to coerce his employees to join a union,...