Christoffel v. Wisconsin Employment Relations Bd. | Cases | Westlaw

(1) (a) The plaintiffs objected before the board and before the court and here urge that the state board was without jurisdiction to entertain proceedings because the National Labor Relations Board had taken jurisdiction under the National Labor Relations Act of the matters here involved. Both the board and the court overruled this objection. This contention would seem to be sufficiently met by the rulings of this court in Wisconsin Labor Relations Board v. Fred Rueping Leather Co., 228 Wis. 473, 279 N.W. 673, 117 A.L.R. 398; Hotel & Restaurant Employees' Internat'l Alliance, Local 122 v. Wis. Employment Relations Board, 236 Wis. 329, 294 N.W. 632, 295 N.W. 634; Allen-Bradley Local 1111 et al., v. Wisconsin Employment Relations Board, 237 Wis. 164, 295 N.W. 791, and the rulings of the Supreme Court of the United States in the two latter cases, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946, and 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154. In these cases it was held that there was no conflict of jurisdiction because proceedings between the interested adverse parties had been before the national board involving matters not in issue before the state board.

(1) (b) The plaintiffs in their petition for review lay as ground for reversal of the judgment of the court that since the hearing conducted by the state board the union and the *341 company have entered into an agreement with the approval of the Defense Mediation Board for the sole and exclusive adjudication of all matters that can possibly arise under “Finding 4” of the state board by means of a compulsory reference to Dean Lloyd K. Garrison as referee. Finding 4 merely states in effect that no agreement executed between the union and the company contains an “all union” or “closed shop” provision, and that there is no contract between them requiring that employees shall become or remain members of the union. It is not indicated by what authority the “Defense Mediation Board”—whatever it is and by whatever authority it is established—is empowered to render nugatory the orders of the state board or prevent their enforcement. But by-passing that, the record herein does not disclose that any such agreement as above stated was made or that if made such matters as are involved herein were to be referred. The decision of the circuit judge recites that the minutes of a meeting on May 2, 1941, of representatives of the union and the company, presided over by Dean Garrison as referee by appointment of the National Defense Mediation Board and a report of the referee were considered by the court, but neither these minutes nor the report of the referee are in the record. The record before us consists of the summons and pleadings in the circuit court action, the written decision, findings and judgment of the circuit court, and the record of the proceeding before the state board. The certification of the board proceedings is dated March 13, six weeks before the meeting was held at which Dean Garrison is stated to have been present as referee. The board's decision rested entirely on the record then certified. We can not assume that the trial court was without jurisdiction to review the board's action or enforce its order because of occurrences subsequent to March 13, or erred in its rulings respecting such occurrences when the record before us contains no evidence of any such occurrences.

*342 (2) Plaintiffs' counsel contend that sec. 111.04, Stats., of the state act on which the instant proceeding is based is invalid because in conflict with sec. 7 of the national act. The wording of the two sections is identical except in two particulars: (a) The state act declares the right of employees to engage in “lawful, concerted activities” referred to, while the national act does not contain the word “lawful.” It certainly can not be implied that under the national act any activities but lawful ones may be engaged in. Thus the insertion of “lawful” in the state act raises no conflict. (b) The state act adds to the national act the following “and such employees shall also have the right to refrain from any or all of such activities.”

**201 (3) The plaintiff's claim that none of the findings of fact of the board numbered 6 to 14, inclusive, which are set out in the margin substantially as made,¹ **202 is sustained by the evidence. Perusal of the record of the proceedings before the *343 board shows that they are all amply sustained. These findings are made conclusive by the act if sustained by credible and competent evidence. Sec. 111.07(7). The board *344 was the judge of the credibility of the evidence and we discover no incompetent evidence, or any claim of incompetency.

(4) The plaintiffs claim that the acts of plaintiffs banned by the judgment are not justified because their attempts did not succeed in compelling complainants to join the union and the acts does not make mere attempts unfair labor practices but only successful attempts. The act does not say that only acts that are successful fall within its ban, and that is not to be implied. To give the act the construction contended for would render it ineffectual to protect employees against unfair labor practices. It would not lock the barn until after the horse was stolen. The law provides that any controversy concerning unfair labor practices may be submitted to the board and that any party in interest may complain. Sec. 111.07(1) and (2), Stats.

(5) The contention that the union is not bound by such acts of its members as are here involved can not be sustained. The plaintiffs in their brief cite cases to the effect that employers are bound by the acts of their supervising employees: International Ass'n of Machinists v. National Labor Relations Board, 311 U.S. 72, 80, 61 S.Ct. 83, 85 L.Ed. 50; H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 521, 61 S.Ct. 320, 85 L.Ed. 309; Nat'l Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 599, 61 S.Ct. 358, 85 L.Ed. 368; Phelps Dodge Corp. v. Nat'l Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. It is a poor rule that does not work both ways. Christoffel, president of the union, at least was in the same relation to the union as a supervising employee to his employer. It is said that the rule under the national act as to supervising employees rests on the public policy of that act. But it is as much the public policy of the instant act to protect employees against acts of fellow employees declared to be unfair labor practices as it is to protect them against unfair *346 labor practices by their employer. The ordinary rules of agency do not apply to the instant act just as they do not apply to the national act. Interference with the rights of complainants declared by the act by the union is the matter involved. It is said in Internat'l Ass'n of Machinists v. National Labor Relations Board, supra, 311 U.S. at page 80, 61 S.Ct. at page 88, 85 L.Ed. 50 that: “The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible. Thus when the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and on behalf of the management, the Board would be justified in concluding that they (employees) did not have the complete and unhampered freedom of choice which the act contemplates.” This was said of acts by employers, but under the instant act it is applicable to acts of the union. The members of the union who “continuously solicited” the complainant Bohachef against his will to pay up his back dues and come into the union were obviously doing so for and on behalf of the union and those who did the other acts complained of were just as obviously so acting. And it is said in Milk Wagon Drivers' Union, etc., v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 556, 85 L.Ed. 836, 132 A.L.R. 1200: “It is true of a union as of an employer that it may be responsible for acts which it **203 has not expressly authorized or which might not be attributable to it on strict application of the rules of respondeat superior. * * *” Besides the evidence shows that a steward and committeeman of the union participated in the continuous solicitation of Bohachef against his will to get him to pay his back dues and come back into the union. Christoffel, as president of the union, wrote the company demanding the discharge of Bohachef and Imp and under threat of a strike which was *347 subsequently voted by the union members. A committeeman of the union directed members of the union to be present when stones were thrown at the car in which Bohachef and Imp were sitting and their use of the street and their exit from the plant were obstructed. From all this the board might properly infer that the acts complained of were acts of the union and justified the cease and desist order.

(6) The cease and desist order of the board and the court are claimed to be erroneous because they ban coercion and intimidation instead of specifically banning the specific acts that the board found the plaintiffs committed. We construe the judgment of the court as specifically banning those acts. The judgment of the court is what we are directly concerned with. The material portions of that judgment are set out in the margin.² It contains two provisions: (1) Is a cease and *348 desist order; (2) grants affirmative relief. Part (1) contains two provisions, “A” and “B”. (1) “A” applies to coercion and intimidation of the complainants to join the union and (1) “B” to coercion of the company **204 to discharge complainants for refusal to join.

*349 It is urged that (1) “A” is too broad because it applies to employees of the company other than the complainants Bohachef and Imp. As “A” covers only unlawful acts and restrains no lawful acts, the inclusion of employees other than Bohachef and Imp does not harm the plaintiffs and not being prejudicial may be ignored. But it further appears from the record that the attorneys for Bohachef and Imp at the commencement of the hearing before the board moved to make “a number of men” on their request parties to the proceeding. The board has power to bring in additional parties, sec. 111.07(2), Stats., and the board granted the motion, although we do not find the list of the names of the persons added. Manifestly, however, they were employees of the company. This warranted banning the plaintiffs from interfering with the rights of employees other than the complainants in the cease and desist order, and the order as a whole was proper under sec. 111.06(2) (a).

Provision “A” of part (1) of the judgment required the plaintiff union and its members specifically to cease and desist from doing the following acts in attempting to coerce or intimidate employees of the company to join the union, all which members of the union had done to Bohachef and Imp or one of them: (1) Continuously soliciting employees to join the union over their objection; (2) assaulting them or threatening them with bodily harm; (3) threatening them with loss of their jobs; (4) falsely accusing them of commission of criminal offenses. Inferentially by its general language “or in any other manner,” the judgment also required the union and its members not to (5) obstruct the exit of employees from the plant or (6) the street adjacent to the plant to interfere with the passage of employees, and (7) not to injure their property. The things banned by (2), (5), (6) and (7) above stated have been held within the power of the board to prohibit in the cases cited under (1) (a), supra; and (3) was held valid in *350 Wisconsin Employment Relations Board v. Milk, etc., Union, 238 Wis. 379, 299 N.W. 31, of which the Supreme Court of the United States refused jurisdiction on certiorari; and in Retail Clerks' Union v. Wisconsin Employment Relations Board, 242 Wis. 21, 6 N.W.2d 698. In this case it is said at page 36 of 242 Wis., at page 706 of 6 N.W.2d of the opinion that “a man may be coerced into doing or refraining from doing by fear of the loss of his business or wages as well as by the dread of physical violence or force.” This manifestly covers attempts to coerce Bohachef by threat of loss of his job. As to (1), while no cases have held that the specific acts of continuous solicitations to join the union against objection is an unfair labor practice, the continous and persistent solicitations of Bohachef harassed and hindered him in the enjoyment of his legal right not to join the union. It was done for the purpose of so harassing, annoying and persecuting him as to cause him eventually to join the union against his will rather than endure it. The board might rightly so infer from the evidence. Such solicitations tend to provoke breaches of peace by violence. They destroy the right of the persecuted employee to pursue his work in peace, and frustrate the declared purpose of the act to promote “industrial peace”, sec. 111.01(2), Stats., and peaceful relations between employees as well as between employer and employees.

**205 Part “B” of part (1) of the judgment required the plaintiffs to cease and desist from attempting to coerce the company to interfere with complainants Bohachef and Imp in the *351 exercise of their right to refuse to join the union or refrain from the other activities mentioned in “A”. That the board had power to do this was directly held in the Retail Clerks' Union case, supra, and was inferentially held in American Furniture Co. v. I. B. of T. C. & H. of A. etc., supra, where it is said as above quoted, and under the instant act an employer may not in absence of a “closed shop” contract lawfully discharge an employee because he will not join a union.

It is urged that the general application of the cease and desist provisions of (1) to ban coercion or intimidation “by any other manner or in any other way” is too broad, but we think not. Attempts by peaceful persuasion to solicit membership in the union or assist the union in its collective bargaining or other lawful activities is not banned. It is also urged that the terms “coercion” and “intimidation” are so indefinite and uncertain in meaning that employees will not know what acts are and what are not banned. We do not ascribe ignorance and stupidity to the members of labor unions. We consider they will without difficulty be able to determine whether their acts done and statements made to induce membership and assistance in union activities are merely persuasive and peaceful or threaten injury if the requests made are not granted and therefore coercive or intimidating. In the Rueping Leather Co. case, supra, it is said, 228 Wis. at page 496, 279 N.W. at page 683, 117 A.L.R. 398: “The distinction between the exercise by an employer of his right of freedom of speech and the actual use of the spoken word as an instrumentality to overpower the will of employees is well understood, and constitutes the dividing line between what an employer may do and what he may not do.” The same may be said under the instant act as to what an employee may and may not do. Employees are as well able as employers to draw the dividing line. To hold otherwise would impute to employees lack of intelligence which ordinary employers are assumed to possess.

As to the affirmative action required by the judgment, the board found it would “effectuate the policies of the act”. Sec. 111.07(4) provides that the board may require “the person complained of * * * to take such affirmative action * * * as the board may deem proper.” The finding that the action required would effectuate the purposes of the act indicates that the board deemed the action ordered proper, and whether the action ordered was appropriate to effectuate the purposes of the act was for the board to decide. In National Labor Relations Board v. Link-Belt Co., supra [311 U.S. 584, 61 S.Ct. 366, 85 L.Ed. 368], it is said: “The Board (National) not the courts determines under this (the) statutory scheme how the effect of unfair labor practices may be expunged.” So of the state board. We consider that the affirmative action ordered was justified.

(7) Contention is made that the judgment of the circuit court violates the free speech provision of the United States Constitution, Amendments 1, 14, as construed in Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. We consider that the previous decision of this court and decisions of the Supreme Court of the United States subsequent to the Thornhill case *353 take the instant case without the rule of the Thornhill case. The same kind of acts as are here involved were involved in cases that have been decided by this court and been affirmed. The instant case involves violence and injury to property and threats thereof as in the Hotel & Restaurant Employees' Internat'l Alliance, Local 122, and Allen-Bradley Local 1111, et al., cases, supra. It involves such acts as were involved in Wisconsin Employment Relations Board v. Milk, etc., Drivers' Union, Local No. 225, supra, obstruction of entrance of street, economic pressure by threats, loss of earnings, of which the Supreme Court of the United States refused jurisdiction, and of such acts **206 as were involved in the Retail Clerks' Union case, supra. While peaceful persuasion to join a union and join in its lawful activities is permissible, concerted action by unions may be exerted only for lawful purposes. When such action is exerted for an unlawful purpose, the free speech provision affords no protection. Carpenters' & Joiners' Union v. Ritter, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143, inferentially so indicates; and it is definitely so held in Retail Clerks' Union case, supra. It is also indicated in American Furniture Co. case, supra, 222 Wis. at page 367 of the Wisconsin opinion, 268 N.W. 250, 106 A.L.R. 335. We perceive no need to add to the discussion of the subject of free speech given in the Retail Clerks' Union case, supra.