American Furniture Co. v. I. B. of T. C. and H. of A., Chauffeurs, Teamsters and Helpers General Local No. 200 of Milwaukee | Cases | Westlaw

The facts in this case are not in dispute, and the questions presented are two: (1) Upon the facts presented, was there a labor dispute as defined in subsection 3 of section 103.62 so as to bring the activities of defendants within the protection of the Wisconsin Labor Code and render lawful picketing of plaintiff's store by defendants? (2) If so construed, is the labor code to that extent unconstitutional, (1) as denying due process and equal protection of the laws as guaranteed by the Fourteenth Amendment to the Federal Constitution, and (2) as invalidly limiting the jurisdiction of the circuit court in violation of sections 1, 9, and 22 of article 1, and sections 2 and 8 of article 7 of the Constitution of Wisconsin.

*252 It now becomes convenient to state briefly the facts as set forth in the stipulation. [The findings of fact are set forth in the margin.^a1]

Plaintiff is a corporation engaged in the retail furniture business. Its employees include seventeen men who are workers in the crafts represented by defendant unions. *253 None of the seventeen employees are members of the defendant unions. Many of these employees have been employed by plaintiff continuously for ten or more years. On July 15, 1935, defendant Koerner, business agent of defendant Local 1342 Furniture Sales and Service Men's Union, communicated to plaintiff a request that plaintiff *254 execute certain contracts affecting the labor relations of plaintiff's employees in the crafts represented by the union. The proposed contracts involve the following agreements on the part of the employer:

(1) Recognition of the unions as bargaining agents in matters of wages, hours, and working conditions for the respective crafts; (2) the payment of a wage scale included in the agreement; (3) regulation of hours and holidays. Other details of the relationship such as vacations with pay, the seniority rule with respect to lay–offs, an agreement that the employer will not, during the term of the contract, attempt to persuade any employee not to join the union and other matters were covered by this proposed agreement. The president *255 agreed to submit the matter to the directors, but expressed some doubt as to the disposition of the company to sign the contract, whereupon Koerner stated that unless the contracts were signed the unions would picket the store. The officers of plaintiff brought the demands of the union to the attention of the seventeen employees affected by the contracts. These employees thereupon took a secret ballot on the question whether they desired to join one of the defendant unions and unanimously voted against so joining. The result of the vote being communicated to the representatives of the union, Koerner insisted that plaintiff require the employees to join one of the unions, and upon their refusal, the unions would furnish men to fill their places from its members or from men who were willing to join unions. On of the officers of plaintiff then stated that plaintiff company had no objection to the men joining the union, but did not feel it proper to bring pressure upon the men to join since that was a matter which should be left to the employees to decide; that if the defendant unions desired to induce the employees to join and the men were willing to do so, there would be no objection on the part of the plaintiff. Several days thereafter, representatives of the union expressed doubt whether the vote previously taken was the free expression of the employees. As a result, the employees were requested to reconsider their answer, and representatives of the plaintiff told the employees that they were perfectly free to do as they desired, and that whatever course they took would be satisfactory to the company. The vote was again taken and resulted in a unanimous decision not to join the union and in an expression of satisfaction with their services, labor conditions, and relations with their employer. Plaintiff elected to abide by the employees' decision and declined to sign the contracts. On September 3, 1935, picketing of plaintiff's store took place. The character of the picketing need not be discussed since defendants have abandoned their motion to review, and plaintiff's appeal is based on a contention that, under the facts as presented, picketing in any form is not permitted by the code.

Upon these facts, the question is squarely presented whether there was a labor dispute involving plaintiff and defendants in view of the fact (1) that no employee of plaintiff was a member of defendant unions; (2) that none desired or was willing to become a member; (3) that the employees were wholly satisfied with the conditions of their employment; (4) that the employees opposed the execution of the contracts proposed for plaintiff's execution; (5) that plaintiff has been unwilling to coerce its employees to join the unions and has throughout been willing to take such position in that respect as its employees desired.

Section 103.62 (3) reads as follows:

“The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employe, regardless of whether or not the disputants stand in the proximate relation of employer and employe.”

The act of which this section is a part is substantially similar to the Federal Norris–LaGuardia Act (29 U.S.C.A. §§ 101–115). The italicized words in section 103.62 (3) are not contained in the Norris–LaGuardia Act as finally enacted by Congress, although this clause was in the act as originally introduced. Consideration must also be given to sections 103.62 (1) and (2) which read as follows:

“When used in sections 103.51 to 103.63, and for the purposes of these sections:

(1) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade, craft, or occupation; or who are employes of one employer; or who are members of the same or an affiliated organization of employers or employes; whether such dispute is (1) between one or more employers or associations of employers and one or more employes or associations of employes; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employes or associations of employes and one or more employees or associations of employes; or when the case involves any conflicting or competing interests in a ‘labor dispute’ (as defined in subsection (3)) of ‘Persons participating or interested’ therein (as defined in subsection (2)).

(2) A person or association shall be held to be a person participating or interested in a labor dispute if relief is *256 sought against him or it and if he or it is engaged in the industry, trade, craft, or occupation in which such dispute occurs, or is a member, officer, or agent of any association of employers or employes engaged in such industry, trade, craft, or occupation.”

Preliminary to a determination of the scope and meaning of the labor code, it is necessary to give some attention to precedent legislation and judicial decision. Prior to adoption of the code, the only legislation in Wisconsin dealing with injunction in connection with picketing activities was section 133.07, which was substantially equivalent to the Clayton Act (38 Stat. 730) covering the same general subject. See Monday Co. v. Automobile Aircraft & Vehicle Workers, etc., 171 Wis. 532, 177 N.W. 867, where this court characterized section 133.07 as an attempt to engraft upon the laws of this state certain provisions of the Act of Congress commonly known as the Clayton Act.

Subsection 1 of the section provides that working people may organize and carry on labor unions for the promotion of their general interests as workers. Subsection 2 provides that no restraining order or injunction will be granted by any court of this state in any case between an employer and employees or between employers and employees, or between employees, or between persons employed and persons seeking employment involving and growing out of any dispute whatever concerning employment, unless necessary to prevent irreparable injury to property and for which there is no adequate remedy at law. Subsection 3 provides in substance that no such restraining order shall prohibit any person or persons, whether singly or in concert, from terminating the relation of employment and ceasing to work or advising or persuading others by personal means to doing so, or from peacefully persuading any person to work or to abstain from working or from ceasing to patronize or employ any party to such dispute and other enumerated actions. The only interpretation of section 133.07 by this court was in the Monday Case, supra. It was there held that a dispute over the maintenance of a closed shop was not within the protection of section 133.07. Since the section in question is so similar to the Clayton Act, it is of some moment to consider the interpretation of the Clayton Act by the United States Supreme Court.

The principal case is that of Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 178, 65 L.Ed. 349, 16 A.L.R. 196. This was a suit in equity to restrain defendants from maintaining a boycott. Complainant was a manufacturing concern employing, among others, some 200 machinists. Defendants were the business agents of the machinists' union and the union itself. Plaintiff conducted an open shop without discrimination between union and non–union men. None of the defendants was or ever had been an employee of complainant, nor had the plaintiff been in any relationship whatever with the defendant unions. The union called a strike in plaintiff's factory as a result of which about 14 union machinists left complainant's employ. This, however, did not materially interfere with the operation of the factory. Defendants proceeded to warn customers that it would be better for them not to purchase or install presses made by complainant and to threaten them with loss if they did so; to threaten sympathetic strikes in other trades; to threaten a trucking company with trouble if it hauled presses manufactured by plaintiff; to incite employees of the trucking company to strike in order to interfere with the hauling and installation of presses; to demand that the repair shop do no work on Duplex presses; and to threaten union men with loss of union standing if they participated in the installation of such presses.

The lower court was of the opinion that these acts constituted an interference with interstate commerce subject to being enjoined unless the Clayton Act forbade this injunction. The principal question upon appeal was whether under section 20 of the Clayton Act (29 U.S.C.A. § 52), which is substantially subsection 2 of section 133.07, Stats., there was such authorization of defendant's conduct as to require the conclusion that no injunction should issue. It was held that all of the provisions of section 20 are subject to a general qualification respecting the nature of the controversy and the parties affected. It was held that the restriction upon the use of the injunction was in favor only of those concerned as parties to such a dispute as the act describes. The court repudiated the conclusion of the Circuit Court of Appeals (252 F. 722) that the words “employers” and “employees” refer to the business class or clan to which the parties litigant belong, thus bringing within the operation of section 20 a dispute between the machinists' *257 union or its members and the plaintiff, although these members stand in no relation to plaintiff. “Congress had in mind particular industrial controversies, not a general class war. ‘Terms or conditions of employment’ are the only grounds of dispute recognized as adequate to bring into play the exemptions.” It was held that the action could not be regarded as bringing in all members of the labor union as parties to a dispute which proximately affected only a few of them.

The dissenting view was expressed by Mr. Justice Brandeis, who was of the opinion that defendants had a common interest threatened by plaintiff, and that it was legitimate for the union to refuse to handle materials, the production of which would weaken the standing and efficiency of the union in protecting the interest of its members. He expressed the opinion that the act as a whole gave no evidence of being restricted to legal relations between a specific employer and his employees and asserted that the majority opinion proved too much because it would automatically withdraw from the protection of the act the striker who by his very act of striking terminated his employment.

In the case of American Steel Foundries v. Tri–City Central Trades Council et al., 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360, which followed the Duplex Case, supra, the facts were as follows:

Plaintiff was a corporation operating a factory for the manufacture of steel products. It sought to enjoin the Tri–City Trades Council and 14 individual defendants, some of whom were officers of the council, from conspiring to prevent plaintiff from obtaining and retaining skilled laborers in its plant. It was charged that the conspiracy was executed by organized picketing accompanied by threats, intimidation, and violence, against persons employed or seeking employment with plaintiff. Defendants admitted picketing for the purpose of notifying persons entering the plant that a strike was called because of reduction of wages and to persuade such persons not to replace striking workmen. Defendant denied threats or violence or responsibility for any such activities. An injunction issued enjoining defendants in any manner by use of persuasion, threats, personal injury, intimidation, from hindering, stopping, obstructing any person in the employ of the complainant and from picketing or maintaining at or near the premises of complainant or on the streets leading to these premises any picket or pickets. The Tri–City Council was a labor organization consisting of representatives of 37 trade unions in three cities. In 1914, plaintiff, which ordinarily employed 1600 men and whose plant had been closed for some 6 months, opened operations with 350 regular men, 150 being skilled workmen. The men employed on the reopening of the plant were offered a lower wage. The Tri–City Council sought to intervene and to negotiate for a restoration of the wage, but were informed that plaintiff was running an open shop and did not propose to recognize or deal with labor unions. On April 22, the council declared a strike, displayed a sign outside the entrance announcing the strike, and called on union men to stay away from the works. Only 2 men acted on the order to strike, 1 a member of the machinists' union and 1 who was not a union member. After discussing the evidence, the court states that it is clear that violent methods were so pursued as to characterize the attitude of the picketers as continuously threatening, and that it had the effect of putting employees and wouldbe employees in such fear that many abandoned work. The question was whether section 20 of the Clayton Act was applicable. It was held, following the Duplex Case, that section 20 applied only to cases growing out of a dispute between the employer and employee concerning terms or conditions of employment. Only 2 of the defendants (the 2 who responded to the strike order) were employees qualified to invoke section 20. As to them, the court considered how far under section 20 their conduct might go without constituting a violation of the rights of those whom they would influence. It was the view of the court that picketing must not be done under circumstances which constitute intimidation or by numbers that produce such a result, and that the acts of defendant employees were not within the protection of section 20. The decree was modified as to them, however, by striking the restraint against “persuasion.”

The next question was thus stated: Is interference of a labor organization by persuasion and appeal to induce a strike against low wages without lawful excuse and malicious when its members are in the employ or have been in the employ of the employer involved? The court held that this must receive a negative answer under the Clayton Act. It was recognized that to make labor organization effective employees *258 must make their combination extend beyond one shop, for the reason that the conditions in one shop are bound to affect the standards and wages in other shops at least in the neighborhood. It was considered that unions may use all lawful propaganda to enlarge their membership, especially among those whose labor at lower wages will injure the entire guild. The Hitchman Case (Hitchman Coal & Coke Co. v. Mitchell), 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260, L.R.A.1918C, 497, Ann.Cas.1918B, 461, is distinguished on the grounds that there the purpose to induce a breach of contract was not lawful and that here it is. The Duplex Case, supra, is distinguished because that dealt with a secondary boycott on the part of persons having nothing to do with the machinists' union. Since the acts with which defendants are charged involved no secondary boycott, and since there was in fact a dispute between an employer and a labor union, many of whose members were employees and many more of whose members had been employees and might reasonably be expected to be re–employed, the court held that the injunction should be modified by deleting the restraint against persuasion.

The Tri–City Case followed the Duplex Case in holding that section 20 had application only to the two members of the union who at that time happened to be employed by the plaintiff. However, the opinion recognizes that employees must make their combination extend beyond one shop in order to avoid the general lowering of the standards in other shops and that they may engage in lawful propaganda to this end and also, with certain limitations, in peacefully persuading employees to leave an employer. While the Duplex Case holds that a labor union, none of whose members are working for a particular employer, has no right to adopt coercive measures for the purpose of unionization, the Tri–City Case holds that if a union has members working for the particular employer, it may employ, under the protection of the Clayton Act, peaceful persuasion, at least for the purpose of improving wages and working conditions. There appears to be no doubt that the limited effect given to the Clayton Act by these decisions aroused the dissatisfaction of labor and brought the attention of Congress to the subject, resulting in the enactment of the Norris–LaGuardia Act. The House Committee Report on the Norris–LaGuardia Act refers to the Duplex and Tri–City Cases and recites the fact that the act was construed to restrict the use of injunctions in favor only of the immediate disputants “and that other members of the union not standing in the proximate relation of employer and employee could be enjoined.” With respect to section 13 of the Norris–LaGuardia Act (29 U.S. C.A. § 113), containing a definition of a labor dispute, the report states that this section contains “a definition of a person participating in a labor dispute which is broad enough to include others than the immediate disputants and thereby corrects the law as announced in the case of Duplex Printing Press Co. v. Deering,” supra, which is said to have held that section 20 of the Clayton Act “only related to those occupying the position of employer or employee and no others.” The report quotes Mr. Chief Justice Taft's statement in the Tri–City Case as to the necessity for labor organizations to enter labor disputes for the purpose of protecting general standards of working conditions. It concludes that since labor has the right to combine for the purpose of securing increased wages or better conditions of labor, and since the strike is a lawful instrument in the struggle betwen employer and employee, it would be hypocrisy to concede these rights and then to prohibit any effective exercise of them by labor. The primary purpose of the legislation is said to be to protect, first, the right of free association, and, second, the right to advance the lawful object of association.

Specifically, it is the contention of plaintiff that the Norris–LaGuardia Act and the Wisconsin Labor Code enlarge the immunities conferred by the Clayton Act and its *259 Wisconsin equivalent so as to enable employees engaged in a dispute with their employer to receive the aid of others in the same craft or industry, but that both these acts, like the Clayton Act, depend for their application in every instance upon the existence of a basic employee–employer dispute. It is claimed that the text of the act supports this view. This claim necessitates an examination of the language of subsections (1) and (3) of section 103.62.

With respect to subsection (3), it is contended that the words “regardless of whether or not the disputants stand in the proximate relation of employer and employe” were inserted merely to repudiate the doctrine of the Duplex Case which made the Clayton Act available only to the actual employees and to repudiate the rule that other members of a union not standing in the proximate relation of employer and employee could be enjoined from interference in the dispute. This view was taken by the Circuit Court of Appeals for the 7th Circuit in the United Electric Coal Companies and Lauf Cases, supra. In the first of these, United Electric Coal Companies v. Rice, supra, plaintiff operated a mine. It had a contract with the United Mine Workers of America, and this contract called for the employment of members of this union. A rival union sought to oust the United and demanded recognition as the union with which plaintiff must deal. There was no dispute in the plant as to wages or working conditions. This court held that the Norris–LaGuardia Act did not apply to give the Progressive union any standing as a disputant. It held that there must be a dispute between the employer and employee growing directly out of their relationship; that the act does not apply to disputes between employees or to disputes between employee unions to which the employer is not a real party. It held that there was no controversy between the plaintiff and the Progressive union on any subject. The plaintiff's men could join any union they wished.

In Lauf v. E. G. Shinner & Co. (C.C.A.) 82 F.(2d) 68, the question involved was the right of a union to picket the plaintiff's market in Milwaukee. In that case there was no dispute between the employer and employees, and the labor union did not represent any of the employees of the plaintiff. It was held that no labor dispute existed within the meaning of the Wisconsin act or Norris–LaGuardia Act; that the Wisconsin act is not materially different from the Norris–LaGuardia Act; and that on the authority of the United Electric Coal Companies Case there must be a labor dispute between the employer and employee before outsiders may participate. Some weight is also given to the fact that under the Wisconsin and federal acts any coercion of its employees by plaintiff would be a violation of the act.

In spite of the authority of these cases, it is our view that the language of the labor code is plain and unambiguous and does not exact as a prerequisite to a labor dispute that there be a controversy between an employer and his employees. Subsection (3) makes the scope of a controversy broad enough to include questions relating to association or representation of persons relative to conditions of employment or industrial relations, and this regardless of whether or not the disputants stand in the proximate relation of employer and employee. While an able argument is made to the effect that this last clause was merely intended to permit a labor union to come to the aid of members or at the most workmen who are engaged in a labor dispute, this construction cannot be sustained. It is the disputants who need not stand in the relation of employer and employee. Plaintiff's contention implies that basically the disputants must be the employer and the employee, whereas the act plainly indicates that the disputants, that is to say, the principals to a labor dispute, need not stand in the relation of employer and employee. This is further fortified by subsection (1) which provides as follows:

“(1) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade, craft, or occupation; or who are employes of one employer; or who are members of the same or an affiliated organization of employers or employes; whether such dispute is (1) between one or more employers or associations of employers and one or more employes or associations of employes; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employes or associations of employes and one or more employes or associations of employes; or when the case involves any conflicting or competing interests in a ‘labor dispute’ *260 (as defined in subsection (3) ) of ‘persons participating or interested’ therein (as defined in subsection (2) ).”

This language is extremely broad and we find it impossible to escape the conclusion that labor unions have standing as disputants, provided the subject–matter of the dispute comes within the definitions as set forth in subsection (3), and this in spite of the fact (1) that there is no dispute between the employer involved and his employees; (2) that no members of the union are employed by the employer in question; and (3) that the only dispute relates to the unionization of the plant. Apart from the language of the act, we cannot believe, in the light of the history of this legislation, that either the Norris–LaGuardia Act or Wisconsin Labor Code was ever designed to have the limited effect contended for by plaintiff. Only a strained construction of the House Committee Reports and the text of the statutes can give color to such an argument.

One of the committee consultants when the Norris–LaGuardia Act was under consideration in Congress was Prof. Frankfurter of the Harvard Law School. In his text on the subject of “The Labor Injunction” it is said, after reciting the problem with which the Norris–LaGuardia Act deals: “How far a union in one craft may use its power to achieve the unionization of non–union plants within the same craft. * * *” He states that section 9 of the proposed bill (29 U.S.C.A. § 109) settles all of these questions so far as application for equitable relief is concerned. “Immunity from injunctions extends to all the categories we have described save alone as to persons who are not engaged in the same industry with the complainant. * * * The interpretation given to the Clayton Act by the Duplex Case to the effect that the privileges of that act may be invoked only in a dispute between an employer and his employees, is thus rendered innocuous. * * *”

It is plain to us that the proponents of the Norris–LaGuardia Act intended to enact into law the views thus expressed in Exchange Bakery & Restaurant v. Rifkin, 245 N.Y. 260, 157 N.E. 130, 132:

“The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways, may justify what would otherwise be a wrong. So would an effort to increase its numbers and to unionize an entire trade or business. It may be as interested in the wages of those not members, or in the conditions under which they work as in its own members because of the influence of one upon the other. All engaged in a trade are affected by the prevailing rate of wages. All, by the principle of collective bargaining. Economic organization to–day is not based on the single shop. Unions believe that wages may be increased, collective bargaining maintained only if union conditions prevail, not in some single factory, but generally. That they may prevail, it may call a strike and picket the premises of an employer with the intent of inducing him to employ only union labor. And it may adopt either method separately. Picketing without a strike is no more unlawful than a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured.”

This seems to have been the view of the court in Levering & Garrigues Co. v. Morrin (C.C.A.) 71 F.(2d) 284. See, also, Miller Parlor Furniture Co. v. Furniture W. I. Union (D.C.N.J.) 8 F.Supp. 209; Cinderella Theater Co. v. Sign Writers' Local Union (D.C.) 6 F.Supp. 164; 36 Col. Law Review, 157.

We consider that the language of this act clearly accomplishes that result. The addition to the Wisconsin Labor Code heretofore indicated by italics which extends the scope of labor disputes to controversies concerning employment relations or any other controversy arising out of the respective interests of employer and employee makes it even clearer that such was the intention of the Legislature in enacting this subsection.

In the Truax Case plaintiffs owned a restaurant in the city of Bisby, Ariz. The defendants were cooks and waiters formerly *261 in plaintiff's employ and the labor union and trades' assembly of which they were members. In April, 1916, a dispute arose between plaintiffs and the union concerning terms and conditions of employment of members of the union employed by plaintiff. Plaintiff refused the demands of the union, and it ordered a strike of its members who were in plaintiffs' employ. Thereafter, defendants entered into a conspiracy and boycott to enforce the demands of the union. The method included picketing, displaying banners advertising the strike, denouncing plaintiffs as unfair to the union, circulation of hand bills containing abusive and libelous charges against plaintiffs and intimations of injury to future patrons. The state of Arizona had a statute with provisions substantially similar to those of the Clayton Act. It was argued that if these provisions made defendants' acts lawful, plaintiffs' rights under the Fourteenth Amendment were violated and the law void. The state courts dismissed the complaint. The state Supreme Court (20 Ariz. 7, 176 P. 570) took the position that the gist of plaintiffs' charge was that defendants were merely inducing patrons to cease patronage by making public the fact of the dispute and the attitude of plaintiffs in it; that no man has a fixed property right in the esteem of the public; that while plaintiff had a right to refuse the demands of the union, the union had a right to advertise the cause of the strike; that picketing, if peacefully carried out for a lawful purpose, was not a violation of plaintiffs' rights under the Arizona statute; and that while picketing was unlawful in Arizona prior to this act, plaintiffs had no vested right to have such a rule continue in that state. The Supreme Court of the United States held that under the statute as thus construed, picketing may be exercised in any form without invading plaintiffs' rights, providing violence is not employed. The court describes the method of picketing by defendants as follows: (1) Having agents of the union walk back and forth constantly during business hours displaying a banner announcing that the restaurant was unfair to cooks, waiters, and their union; (2) having these agents attend at or near the entrance to the restaurant and announce the same matters in a loud tone of voice; (3) characterizing employees of plaintiff as scab Mexican labor and applying opprobrious epithets to them in hand bills circulated to would–be customers in front of the restaurant; (4) including in such hand bills abusive and libelous attacks upon the senior member of plaintiffs' firm; (5) seeking to disparage food, service, and prices and general conduct of plaintiffs' restaurant; (6) attacking the character of those who would patronize the restaurant; and (7) threatening those who disregarded the urging of the pickets and actually patronized plaintiffs' restaurant. The court states the real question to be whether the means used were legal and concludes that they were not and that the defendants' acts constituted palpable wrongs. The court states:

“It was not lawful persuasion or inducing. It was not a mere appeal to the sympathetic aid of would–be customers by a simple statement of the fact of the strike and a request to withhold patronage. * * * It was moral coercion by illegal annoyance and obstruction, and it thus was plainly a conspiracy.”

It was held that an act which operates to make lawful such a wrong deprives the owner of the business of property without due process and is void under the Fourteenth Amendment. In reply to the contention that this was a proper exercise of the police power and that property rights must yield to such power reasonably exercised, the court says:

“The board distinction between one's right to protection against a direct injury to one's fundamental property right by another who has no special relation to him, and one's liability to another with whom he establishes a voluntary relation under a statute is manifest upon its statement.”

It is pointed out that this is not a mere case of a peaceful secondary boycott as to the illegality of which courts have differed. Here the illegality of the means was without doubt and fundamental. The means used were libelous and abusive attacks on the plaintiffs' reputation, like attacks on their employees and customers, threats of such attacks on would–be customers, picketing and patrolling of the entrance to their place of business, and the consequent obstruction of free access thereto––all with the purpose of depriving the plaintiffs of their business. To permit these definitely illegal acts and to decline to give a remedy effective against them would be to deny and disregard fundamental rights of liberty and property. Under the Constitution of Arizona the plaintiffs would have had the right to an injunction. If defendants' acts had been *262 done as the result of any other controversy than a labor dispute, an injunction would necessarily have issued. To deny it in this case would be to deny equal protection of the laws.

It seems to us that this case is not applicable to the present situation. As we read the case, it is held that with respect to acts constituting libel, slander, intimidation, threats, breaches of the peace, or threatened breaches of the peace, which are recognized as definitely illegal, statutory immunity from legal redress cannot validly be conferred upon labor unions, and the Legislature must retain and give effect to all legal and equitable remedies created by the Constitution for the enforcement of rights and the redress of wrongs. See 13 N.Y.U.L.Q.Rev. 92, at page 96. It is not apparent to us, however, that the Legislature may not recognize the peculiar status of labor organizations in labor disputes because of the self–interest of the union and its members and the assumed necessity for protective group action and confer an immunity with respect to acts involving none of these wrongful features whether they take the form of picketing or not. There is no substantial question of classification. To hold that there was would put into question the validity of both the Clayton Act, the Norris–LaGuardia Act, and the Wisconsin Labor Code, no matter how these acts were construed.

The question has given us much concern, and its solution is attended with very substantial difficulties. Plaintiff stands indifferent, willing to permit the union to persuade his men to join a union, willing to bargain with the union if it succeeds in winning the allegiance of the men, and, with its employees' consent, to sign contracts vesting in the union the right to represent the men. It declines, however, to coerce its employees in any respect. May it be subjected to picketing to compel it to insist, as a condition of continued employment, that its men consent to the designation of defendant unions as their bargaining agents?

If the above analysis is correct, the question is whether in this case defendants are seeking by such pressure as is involved in peaceful picketing to compel plaintiff to violate the rights of free association and collective bargaining which this court has held to be vested in the employees *264 under section 103.51. Trustees of Wisconsin State Federation of Labor v. Simplex Shoe Mfg. Co., 215 Wis. 623, 256 N.W. 56.

“In the interpretation and application of sections 103.51 to 103.63 the public policy of this state is declared as follows:

Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employes. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workmen have full freedom of association, self–organization, and the designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self–organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Plaintiff naturally lays much stress upon the requirement that a negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees, and that portion of the section which confers upon the individual workman full freedom of association and designation of representatives of his own choosing free from interference, restraint, or coercion by his employer. Defendants' contention is that this section was for the purpose (1) of encouraging associations of workmen to conduct collective bargaining; (2) to insure that such associations would be free from the dominance or control by employers to the end that workmen might be able to bring to bear in their negotiations with employers whatever weight or power results from collective or group effort. We are of the opinion that defendants' contention with respect to the general purpose of the act is sound. The futility of individual negotiation is expressly recognized, and the purpose of the act is to encourage group negotiation as a substitute and to protect the latter activity from dominance or coercion by the employer.

There is nothing in the act to indicate that existing closed shop agreements are intended to be invalidated or future agreements of this character prohibited unless such intention is to be implied from the requirement that employers practice no restraint or coercion upon the exercise by the employees of their right to associate and to name their bargaining agents. See 44 Yale L.J. 1067; 48 Harv.Law Review, 656. On the other hand, it is plain that the act does not require the employees to adopt any specified form of organization or to affiliate with existing outside labor organizations. We are faced with the seeming contradiction that while the act contains no expressed intention to outlaw closed shop agreements, it is expressly provided that activities of employees in the direction of association and organization for bargaining purposes shall not be subject to coercion or interference by employers. The conclusion that the latter was one of the principal purposes of this act as well as the Norris–LaGuardia Act is indicated not merely by the text of the acts, but by the practical construction given substantially similar provisions of section 7(a) of the National Industrial Recovery Act (15 U.S.C.A. § 707(a) by the National Labor Board. See 4 George Washington Law Review, 433.

The question is not easy of solution. Defendant contends that the purpose of the act is merely to prevent dominance by an employer of the organization of his employees and that, so long as he exacts as a condition of continued employment membership in an outside union over which he has no control, the purposes of the act are promoted rather than defeated. While much may be said for this view, it is extremely difficult to reconcile with the full freedom of association and designation of representatives which the act expressly secures to the men. It may well be that if, when negotiations for a closed shop are initiated between an outside labor union and an employer, the employees have already exercised, free from their employer's domination, or are in the process of so exercising their right to organize and to select representatives for collective bargaining, the employer may not insist that another or different plan of organization be adopted or that other representatives *265 be chosen. If he may not, then no pressure may be brought to bear upon him by an outside union to compel such action. Whether pressure of the sort authorized by the act may be brought upon the employees by the outside union, it is unnecessary to determine, although in this connection it may be significant that neither the Wisconsin Labor Code nor the Norris–LaGuardia Act contain any provisions expressly inhibiting labor organizations from exercising the coercion and domination prohibited to employers. See 47 Harv.L.Rev. 117; 21 Cornell Law Quarterly Rev. 640.

We do not find it necessary finally to determine the difficult questions above set forth. Assuming that defendant's contentions with respect to them be rejected and the rule most favorable to plaintiffs established, the result in this case would not be affected.

This is the situation presented by the facts in this case. The employees involved in the crafts represented by defendant unions were not organized, had taken no steps to organize, and did not desire so to do. The mere refusal by the employees to join defendants' unions or to assent to a contract making the unions their bargaining representatives did not constitute the exercise of steps leading to organization of the employees for bargaining purposes. What happened was that the men simply declined or neglected to organize or at least had taken no steps in that direction. In such a situation, plaintiff could exercise the right that it always had, in the absence of statute, to establish whatever conditions for continued employment its judgment might dictate with the one exception that it could not insist upon a type of organization which preserved to it a position of dominance.

Thus, we conclude that such peaceful picketing as was authorized by the court in this case cannot be said to have had as its objective pressure upon the employer to do an unlawful act by interfering with the rights of his employees to carry on such measures of organization and collective bargaining as they might freely decide upon. While plaintiff might lawfully decline to enter into such a contract as defendants proposed, we think that when it did so it was in dispute with the union, and the latter might adopt such measures as are sanctioned by the labor code.

Judgment affirmed.