The opinion
Fowler, J.
(dissenting). I understand it to be conceded by the opinion of the court that unless the labor code referred to in the opinion has so extended the Clayton act as to include labor controversies other than those between employers and their employees the picketing involved should be enjoined. This follows because unless there be such extension the defendants have no right to picket or do any act whatever to the injury of plaintiff’s business. In such case picketing will be enjoined whether otherwise unlawful or not merely because it inflicts injury without any lawful justification or excuse. The protective features of the Clayton act, and those of the labor code unless the code broadens the coverage of that act, against enjoining specified acts do not extend to any one but striking employees and those acting in aid of them in their attempts to better their conditions. As there is no complaint by employees, and no action by them against their employer, there is no- justification under the Clayton act for any acts by anybody in aid of them, and no right to do anything whatever to the hurt of their employer. This follows from the principles stated in the Duplex and Tri-City Cases, cited in the opinion of the court. -So, to justify the picketing involved under the labor code, it jnust appear, that the code extends the provisions of the Clayton act to include controversies other than those between employers and their employees. In my opinion, the code has not so extended that act *376 as to include the instant controversy because it is not a controversy between employer and employees.
The provision of the labor code claimed by respondents to justify the picketing involved is sec. 103.62, Stats. Sub. (1) of that section makes it apply to cases involving or growing out of a “labor dispute.” The act does not profess to apply to any other class of controversies and respondents do not contend that it applies to any other. Sub. (3) of the section defines a labor dispute as “any controversy concerning” several named things or “any other controversy arising out of the respective interests of employer and employee.” The word “other” in the last clause of sub. (3) implies that the “cpntroversies concerning” the several things mentioned must „be between “employer and employee” or it is not a labor controversy within the terms of the act. There is no controversy between employer and employees in the instant case. Thus according to the plain words of the statute itself the statute does not cover such a controversy as is here involved.
It is to be noted that this view of the federal statute was taken by the United States circuit court of appeals for the Seventh circuit, in which this state lies, in United Electric Coal Companies v. Rice (C. C. A.), 80 Fed. (2d) 1, and Lauf v. E. G. Shinner & Co. (C. C. A.) 82 Fed. (2d) 68. It is further to be noted that a writ of certiorari to review that ruling was denied by the United States supreme court. Rice v. United Electric Coal Companies, 56 Sup. Ct. 590, 80 L. Ed. 1000 . As far as the federal act is concerned, the rule of that case is binding upon this court. Maybe this court may construe its own statute differently. But it seems anomalous for this court to construe a statute of this state taken bodily from a federal statute different from the construction directly given it shortly after its enactment by the federal circuit court of appeals of this jurisdiction and inferentially given it by the supreme court of the United States.
*377 I am not unmindful of the contention of respondents that when the bill that'was enacted into the federal statute was before the congress of the United States, the view of the sponsors of the bill was that it would cover every sort of labor controversy. Nor am I unmindful of statements in the reports of committees of the houses of congress to the effect that it was intended to cover deficiences in the Clayton act, and was conceived as covering labor disputes not within that act. Perhaps it was contemplated by the sponsors of the bill that it covered all sorts of labor disputes. Nevertheless, the bill was so framed as not to cover any controversies except those arising between employer and employee. It was intended to cover the point of outside labor organizations espousing the cause of employees when a controversy existed between them and their employer, and there is nothing in the act itself or in the statements in the committee reports to indicate that any controversy except such as arose primarily between employer and employee was in mind. The construction of the act urged by the respondents and upheld by this court would authorize any labor union in Milwaukee or elsewhere to picket every manufacturing plant and every retail mercantile establishment in the state that would not compel its employees against their wishes and when entirely satisfied with their wages and their conditions and hours of labor, to form and join a labor union, or join an existing labor union, or be discharged. I do not believe that the legislature or the congress intended or imagined that the bill would legalize such picketing.
The opinion of this court bases its conclusion that the'instant case involves a labor dispute upon what I consider to be an erroneous view of sub. (1) of sec. 103.62, Stats., headed “Definitions.” Clauses (1), (2), and (3) of said subsection cover the whole matter of the application of the labor code. To be within the code a case must be, (1) “between one or more employers or associations of employers *378 and one or more employees or associations of employees” (no employee or association of employees is a party to this case) ; or a case must be, (2) between “one or more employers or associations of employers and one or more employers or associations of employers” (this case is not between employers or an association of employers) ; or a case must be, (3) “between one or more employees or associations of employees and one or more employees or associations of employees” (there are no employees and there is no association of employees a party to this case) ; or the case must involve conflicting or competing interests between persons as defined by sub. (2) participating or interested in a “labor dispute” as defined by sub. (3). No such labor dispute as is defined in sub. (3) is involved in this case, because, as above pointed out, the word “other” in sub. (3) implies that the dispute must arise out of the “conflicting interests of employers and their employees,” and there is no conflict between the employer and its employees in the instant case. Sec. 103.62, Stats., merely does three things. Sub. (1) defines the “classes of cases” to which the labor code applies. Sub. (2) defines the persons to whom the code applies. And sub. (3) defines the term “labor dispute.” There is no other definition of a labor dispute in the act than that contained in sub. (3).
The case is not within the code for the further reason stated in the opinion in the Rice Case, supra. The term “labor dispute” “infers employment — implies the existence of the relation, of employer and employee.” “The dispute referred to in the statute must be one between the employer and employee or growing directly out of their relationship.” 80 Fed. (2d) 5. The dispute here involved is not such a one. The ruling in the Rice Case was made although the phrase “or any other controversy arising out of the respective interests of employer and employee” does not occur in the federal labor code. The implication that the controversy involved must arise out of conflicting interests of employer and *379 employee is therefore stronger under the state than under the federal code.
If the acts of the defendants be considered as within the labor code, the picketing involved should nevertheless be enjoined. The decision of the court is based upon the propositions that the acts involved are lawful under that code, and that lawful acts will not be enjoined although they result in injury to another. But I take it as so plain as not to need citation of authority to support it that a person is entitled to in junctional relief against continuance of unlawful acts that will result in irreparable injury to him and that picketing will not be permitted to compel one to do an unlawful act. These two propositions are concededly correct by the statement in the opinion of the court that “the terms of the act [labor code] cannot be stretched to permit a union to enforce by picketing ¿emands which the employer may not lawfully accede toTjlt is likewise plain that an act is unlawful that is contrary to the public policy of the state as disclosed by its statutes.
The labor code, by sec. 103.51, Stats., by its own terms declares the public policy of the state respecting labor controversies. It declares that “negotiation of terms and conditions of labor should result from voluntary agreement between employer and employeesand that “it is necessary that the individual workman 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.” '
An express purpose of the picketing involved by the terms of the contract the defendants demanded that the plaintiff sign is to compel the plaintiff employer to coerce its em *380 ployees into accepting the representatives of a specified labor union “as the sole bargaining agent” of the employees, instead of allowing them “full freedom” in designating such representative. The statute cited by necessary implication prohibits the employer from interfering with, restraining, or coercing its employees in designating a bargaining agent of their own choice. By demanding that the plaintiff sign the agreement providing that it would recognize a bargaining representative not chosen by the plaintiff’s employees but one chosen by the defendants, the defendants demanded that the plaintiff violate the statute cited. They demanded that the plaintiff do an unlawful act under threat of picketing its place of business. And the matter does not stop here. Under the stipulated facts the plaintiff was told that if it signed the agreement it should discharge its employees if they refused to form and join a labor union of the brotherhood with which the defendants are connected. It was told it should require its employees to join the unions with which the defendants are connected, and if they refused the defendants would furnish members of the unions to take their places or men who would join the unions. It is stated in one of defendants’ briefs before us : “We do not hesitate to say that picketing is intended to injure the business of the employer,” and that the purpose of the picketing is that “by losing trade the appellant may be induced to unionize his plant.” The word “induce” is used instead of the word “coerce,” but a spade is a spade, ¡no matter what it may be called. Such acts of an employer were expressly declared unlawful because violative of the statute cited in Trustees of Wis. S. F. of Labor v. Simplex S. M. Co. 215 Wis. 623, 643 , 256 N. W. 56 . This view of the statute was expressly taken by the federal court of appeals of this circuit in the Lauf Case, supra. It is there stated, page 72:
“It being unlawful for appellee to dictate to' its employees what organization they should join, or what representative *381 they should select, ... it follows that appellants’ demand upon appellee was unlawful.”
The opinion of the court herein attempts to evade the contention that the coercion of the plaintiff’s employees involved is contrary to the declaration of the labor code by stating, in effect, that the inhibition of the statute goes only against influencing employees that are organized or in process of organizing. This to my mind is untenable. The language of the statute declaring the public policy of the code is directed to the protection of the “individual unorganized workerit declares that “he should be free to decline to associate with his fellowsthat “it is necessary that he have full freedom of association, of self-organization, and designation of representatives of his own choosing;” that “he shall be free from the interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives.” What is there in this language that warrants the interpretation that the inhibitions apply only to influencing employees that have combined into an organized entity or are moving to do so, or to indicate that it has no application to employees that have not so organized and are not so moving ? The employees here involved, the ■ employees that the defendants’ picketing is aimed to coerce the plaintiff into coercing into joining the unions with which the defendants are connected, have twice expressed their individual wishes by their unanimous vote. They do' not want to be represented in collective bargaining by the representative proposed by the defendants. They do not want to join the unions with which defendants are connected. “Full freedom of association and self-organization” implies freedom to join or not tO' join a specified union; it implies freedom to organize or not to organize into any union. A statute that attempted to prohibit employers from “interference, restraint or coercion” of employees organized into a union in choosing a bargaining agent and left them free to interfere, restrain, or coerce their *382 employees not so organized into accepting a bargaining agent would deny unorganized employees an equal footing before the law with organized employees. It is well known that the purpose of the inhibition against employers in the labor code was to prevent employers from influencing their employees to organize a “company union.” It is no less obnoxious, it is no less violative of the expressed declaration of the labor code, to influence employees into joining a federated union, than it is to influence them into joining a company union. Both species of influence are prohibited to the employer by the code. Any statute that prohibited employers from attempting to influence its employees to join a company union but expressly authorized them to exert influence to coerce them into joining a federated union under threat of discharge if they refused to do so would have small chance of passage by any legislature and equally small chance of standing up before the law. A thing that cannot be done directly, cannot be done by indirection.
If either of the propositions be correct, that the instant case is not within the labor code or that the act required by the defendants of the plaintiff is unlawful, there is no need for discussion of the question whether the provisions of the code considered in the opinion of the court are constitutional. Either proposition being correct, the judgment of the circuit court should be reversed, with directions to enjoin the defendants from picketing the plaintiff’s plant.
I am authorized to state that Mr. Justice Nelson concurs in this opinion.
A motion for a rehearing was denied, with $25 costs, on September 15, 1936.