Hotel R. E. I. Alliance v. wis.E. R. Board , 236 Wis. 329 ( 1940 )

On this motion appellants open their argument with the following statement:

"Since receipt of the supreme court's decision we have gone over it carefully and searchingly in order that we might have a clear and precise understanding of the basis for such decision.

"Only one thing was clear. That was that the Wisconsin supreme court, traditionally liberal and traditionally alert to protect the civil liberties of the citizens of this state, had placed its stamp of approval upon a statute, and an order based thereon, prohibiting minority groups from engaging in those rights guaranteed by the constitution of the United States. This for the sole reason that they were minority groups."

What counsel refer to is their claim that the act which provides that what is denominated in the opinion "an unauthorized strike," that is, one not made pursuant to a majority vote of employees, is an unfair labor practice, deprives the minority group of a constitutional right to strike and infringes the right free speech. It is almost futile to attempt to reply to a contention of this kind in the face of the provisions of the statute and the explicit language of the opinion. Counsel continue to misinterpret the statute and, as a consequence, misunderstand the opinion.

Section 111.15 of the Employment Peace Act provides, among other things:

"Except as specifically provided in this chapter, nothing therein shall be construed so as to interfere with or impedeor diminish in any way the right to strike . . .; nor shall anything in this chapter be so construed as to invade unlawfullythe right to freedom of speech."

The last sentence contained in the opinion is —

"Since we interpret the order of the board to be coextensive with the statute as construed, we find it unnecessary to modify the order or judgment."

It is explicitly stated in the opinion that the order of the board, the judgment of the circuit court affirming it, and the opinion of this court did not deal with anything approaching peaceful picketing. We pointed out —

"In this case it is undisputed that numerous assaults were committed by pickets; that the pickets acted in concert; that the fines of these pickets were paid by the unions; that ingress and egress to and from the premises of the employer were prevented by force and arms. It was at conduct of that kind that the statute was aimed. It is conduct of that kind that is dealt with in this case. It is conduct of that kind that is declared to be an unfair labor practice by the statute, and from which the defendants are ordered to cease and desist. The statute does not even declare conduct of that kind to be unlawful, nor does it subject the offender to a criminal prosecution."

How this can be tortured into a statement that minority groups are, by the order affirmed in this case, prohibited from peaceful picketing as described in the Thornhill Case, is beyond our understanding. Under the statute and the order of the board as interpreted and construed by the explicit language of the opinion, freedom of speech and the right peacefully to picket is in no way interfered with. The appellants could not be ordered to cease and desist from something they were not engaged in.

We did not deal with every provision contained in the Employment Peace Act for the reason, as stated in the opinion, upon this appeal sec. 111.06 (2) (e), Stats. 1939, was the only section of the statute drawn in question and it is with the construction of that section that we deal and it is explicitly so stated in the opinion. We did not attempt, because it was not involved in this case, to distinguish between what a majority group may do in carrying on a strike from what the minority group may do. We pointed out that the statute nowhere prohibited employees from withdrawing from their employment either singly or in groups and certainly it in no way interferes with the right of free speech. Par. (e), as construed, does not prohibit, as described in the ThornhillCase, peaceful picketing. We may say this, however, that the statute does not authorize the majority group, even though it has voted to strike, to commit acts of violence, to take possession of the employer's property and forcibly to prevent ingress and egress to and from the premises.

The appellant employees, unions, and officers are not in a position in this case to raise any question respecting the right peacefully to picket or the right of free speech. The picketing carried on in this case was not peaceful and the right of free speech is in no way infringed by the statute or the order of the board.

This court does not seek applause on the ground that it is progressive and liberal, or indeed, upon' any other ground. The court has, however, a duty, fairly and impartially to apply and interpret the law in all cases where the rights of citizens are involved to the end that their rights under the constitution and the law may be preserved to them inviolate. This duty it strives to discharge with fidelity to the law and the constitution. As we said in American Furn. Co. v. I. B. of T. C. H. of A. (1936) 222 Wis. 338, 365, 268 N.W. 250, 106 A.L.R. 335:

"We conclude that the act as we construe it . . . is a valid exercise of legislative power. . . . Whether such laws constitute a wise solution may, of course, be fairly put in question, but the forum for such a controversy is the legislature and not the courts. The question is irrelevant here, and we cannot resist the conclusion that one of the purposes of the labor code was to make it so and to substitute a legislative declaration of policy for the varying standards and views theretofore expressed in judicial opinions."

By the Court. — Motion denied with $25 costs.