Senn v. Tile Layers Protective Union, Local No. 5

The following opinion was filed June 29, 1936:

Fairchild, J.

Appellant is engaged as a contractor in the tile-setting business in Milwaukee. He conducts his business as a small concern, and in addition to hiring tile setters, he, himself performs services usually rendered by a journeyman or helper. It was established on the trial that appellant employed his brother approximately ten per cent of the time; that he entered into a partnership with William Neider, a former union journeyman who gave up his membership in the union to enter into the partnership, and also employed Arnold Holly, a suspended union member. From May, 1934, to May, 1935, out of a total of one thousand seven hundred seventy-seven hours on jobs, appellant himself worked as tile setter seven hundred seventy-one hours.

There were occasional conferences between appellant and the union officials before this contest developed. In March, 1935, a contract was submitted to appellant by the unions, Article III of which requires him to refrain from performing the work which it is his custom to perform, and to agree that such work be done by journeymen members of the Tile Layers Protective Union, Local No. 5. The ultimate object of the negotiations on the part of the respondents was to secure the unionization of appellant’s business. The appellant asserts that he is willing to^ comply with all requirements covered by the union contracts except those which require him to refrain individually from working as a tile setter or helper. The dispute arises over the respective contentions thus outlined. It will readily appear that there are elements involved in this controversy not present in the case of American Furn. Co. v. I. B. of T. C. & H. of A., etc., ante, p. 338, 268 N. W. 250. The demand here by the unions is for the appellant to conform to a definite wage scale prevalent on union jobs, and to conform to a fixed number of hours approved by the union. They also' insist that he conform to the rules of apprenticeship and other working conditions prevalent in the industry where union rules prevail. The requirement that the employer personally refrain from working with the tools of the trade is important and vital to the craftsmen affiliated with defendant unions, because the practices sought to be prevented can so readily affect wages and hours of labor. It is pointed out by respondent that the membership in the union has decreased during the depression years, and that as a necessary requisite for a proper existence and livelihood, these craftsmen find it necessary to require employers to comply with the terms of Article III. Appellant’s method of conducting his business brings into the situation a direct attack by him upon the means relied upon by the unions to protect their scale of wages, hours, and working conditions against the cutting of prices and lengthening of hours of work.

The respondents insist upon their right to exert economic pressure against one who refuses to bring his shop' up to union standards by refusing to agree tO' the union rules requiring the contractor to abstain from working with the tools of the trade, and on this, base their declaration that a labor dispute exists. There does not seem to- be much occasion to question the existence of a dispute between the associations, which are committed to the protection of certain standards of wages and hours, with a contractor engaged in the same craft who proposes to work therein as a journeyman or a helper at a price and during hours that suit him individually and which are below the standard desired by the unions.

The respondents, by the use of the practice of picketing, seek to induce the appellant to abandon his methods and to conform to the union rules. The distinctions between one engaged in the tile-setting business and one working as a journeyman or helper is apparent, and if the proposed contract is entered into by appellant, he will bind himself to respect the union classifications and distinctions. Appellant has declined to sign the suggested contract unless there be eliminated therefrom the provisions which require him to desist from working with his tools and his helping generally in the work of installing material. Respondents insist that the particular rule to which appellant objects is one in the furtherance of the legitimate interests of the members of the unions. In view of our decision in the American Furniture Co. Case, supra, and the cases there analyzed in the opinion written by Mr. Justice Wickhem, it is apparent that, under the laws of Wisconsin, where the primary purpose of the acts complained of is to protect and improve the condition of those whom the unions represent, such action is justifiable, because it tends to promote the welfare of the members of the union engaged in the same craft. There is no effort to induce or compel the appellant to do any unlawful thing. If it be assumed that appellant cannot operate his business successfully upon the conditions insisted upon by the respondents, still no right of appellant now protected by law is invaded by respondents’ efforts to bring appellant’s business to union standard. American Furn. Co. v. I. B. of T. C. & H. of A., etc., supra, and cases there cited. No question exists as to appellant’s right to conduct a nonunion shop under any terms he chooses. An economic contest has developed. Each of the contestants is desirous of the advantage of doing the business in the community where he or they operate. Ele is not obliged to yield to the persuasion exercised upon him by respondents.

The legislature, in outlining the public policy of this state, has precluded him from an appeal to the courts for assistance until some unlawful act has become imminent, or something has occurred to start in motion the administration of equity rules, or the performance of the duties of policing. The respondents do not question that it is appellant’s right to run his own business and earn his living in any lawful manner which he chooses to adopt. What they are doing is asserting their rights under the acts of the legislature for the purpose of enhancing their opportunity to acquire work for themselves and those whom they represent. The nature of the controversy is one in which the court and law enforcing officers can have no interest other than to preserve the equality of each contender before the law, and to require that each refrain from doing any unlawful act. Courts, though differing as to the allowable scope, pretty generally agree that picketing is a legitimate means of economic coercion, if it is confined to persuasion and is free of molestation or threat of physical injury or annoyance. Frankfurter & Green, The Labor Injunction, p. 31.

The respondents’ act of peaceful picketing is a lawful form of appeal to the public to turn its patronage from appellant to the concerns in which the welfare of the members of the unions is bound up. As stated by respondents’ counsel in their brief, “the public is free to accept or reject the appeal and plaintiff is free to perform all work he can get in whatever manner he wishes to perform it.” He may work long hours. He may bid for contracts at a low figure based on low wages for himself and on long hours. In the judgment of respondents, his conduct in this respect affects their opportunity of maintaining a standard of better wages, regulated hours, and improved working conditions, and the collision of the two sets of rights, the one in appellant, the other in the respondents, creates a labor dispute within the definition of the code (secs. 103.51 to 103.63, Stats.). Each appeals to public opinion. If the trade turns from one to the other as a result of this dispute, the injury is incidental, injuria absque damno.

It appears that when issue was first joined between the parties, considerable spirit was manifested on both sides, and evidently acts occurred calculated to intimidate appellant and bring about a secondary boycott. The trial court said:

“That because of their statements made by their counsel in open court and in their presence, that they will not send any more letters to owners, contractors, or architects as hereinbefore referred to, and will not indulge in any of the acts or conduct referred to in said letters, the court concludes that no unlawful acts will be committed or will be executed or continued.”

The discretion of the trial court in determining that there is no occasion for a restraining order in the particulars suggested is well within the scope of duties imposed on it. We are of the opinion that.no occasion exists for overruling the lower court in this particular, and in other respects the judgment is approved.

By the Court. — Judgment affirmed.