Respondents Brief — Senn v. Tile Layers

a vo

MATERIAL FACTS. |

The appellant, Paul Senn, first learned the trade of tile

setting in Miami, Florida, in 1930, during which year he

worked approximately two weeks as a helper and eight

months a a tile setter (R. 48). In 193% he came to Milwau-

kee and entered into the tile-laying business under the

name of Paul Senn & Co., an unincorporated firm, and

started to solicit work as a plastering and tile-setting con-

tractor (R. 39). Previous to this time he had been a

plastering contractor (R. 47, 48).

One of his first acts upon starting business in Milwaukee

was to confer with Mr. Melville, president of the Tile

Setters Union, Local 5, relative to co-operating with union

regulations in the tile-setting industry. At that time the

union had no formal contracts with the various other em-

ployers and contractors in the city, but did have what

might be considered ‘‘gentlemen’s agreements” regarding

the hiring of union labor and complying with union rules.

The appellant agreed to co-operate (R. 85). Later, upon

visiting one of the jobs on which Mr. Senn was employed,

Mr. Melville discovered that he was not working under

union rules, since he (Mr. Senn) was working as & non-

union helper with a union journeyman; and also employed

another nonunion man, his brother, to help on the job. He

was informed of the facts, but did nothing to correct them

(R. 39-41, 86, 88).

The labor history of appellant over the period of years

starting with 1931 and until 1935, when the dispute with

respondents became acute, indicates that no attempt was

ever made to conform with nnion rules and regulations

either in number of hours worked (R. 70), or Sunday em-

ployment (R. 71), oF in payment of the union scale of

ae, ees

wages (R. 71, 73-76). The record further indicates that

he employed his brother and used him as a helper ap--

proximately 10 per cent of the time (R. 69; Old Record

141-142); that he entered into a partnership with William

Neidner, a union journeyman, who gave up his member-

ship in order to enter into the partnership (R. 70); and

for the past two and a half years he has employed Arnold

Holly, a suspended union member, knowing of Holly’s sus-

pension and the reasons theretor (R. 70-71). The question

of Holly’s reinstatement into -the union as a condition

precedent to Senn entering into the contract is a basis of

dispute (R. 34-35, 54, 08).

During the entire period that the plaintiff was engaged

in the tile contracting business a great deal of his time was

devoted to working either as a helper or a tile setter, per-

forming work within the scope of the journeyman’s craft

(R. 49, 50; Old Record 84, 86-89, 177). Most of the work

he did was that of a tile setter. From May, 1934, to May,

1935, out of a total of 1,777 hours on jobs, he attributes

771 hours to himself, or 40 per cent (R. 51, 53).

After the original negotiations which took place when

appellant entered into the contracting business the record

shows that there were occasional conferences with union

officials. Finally, in March, 1935, the proposed contract

was submitted to Mr: Senn, who refused to sign it because

of article III; a series of conferences was to no avail (R.

37), and in December, 1935, the Tile Layers Protective

Union, Local No. 5, started to picket his premises, which

are his home and office, and to follow his truck from his

garage to his jobs to ascertain where those jobs were for

the purpose of picketing (R. 40-41). The pickets varied

in number from two to four, picketed only on working

days, and used no violence (R: 63, 64). Senn decided on

meeting this economic pressure by counter activities; he

on

decided to go-into the brokerage business and sell tile in-

discriminately to any buyers and thereby ‘‘wreck’’ the

industry (R. 41, 61, 72-3).. In pursuance of this plan he

sent letters to contractors and inserted a ‘‘blind ad’”’ in

the Milwaukee Journal (R. 72-73).

During the period of 1931 to 1935 the tile industry in

Milwaukee had been in a very poor condition (R. 76-77,

- 83, 86), and this condition had been further aggravated. by

unskilled persons, and others, starting to competé in the ©

trade and going into the contracting business (R. 38, 87).

Membership in the tile layers union decreased from 112 in

1929 to 41 in 1935 (R. 90).

It was because of these conditions that the local union

adopted the rule which was incorporated in the proposed

eontract as article III (R. 87, 90). In co-operation with

the union at least seven tile contractors, constituting the

greater majority of them, entered into the contract. In

all of these firms recognized craftsmen who would have

been eligible to membership in the union if they were not

employers, but who were partners in or owners of the con-

tracting firms, abided by article III of the contract (R.

43, 87).

As to Mr. Senn’s qualifications as a skilled craftsman in

the tile-laying industry, there is no dispute about the fact

_ that he has fulfilled none of the requirements of the union’s

by-laws and thus he would not have been eligible to mem-

bership in the union in any event. He has.not served the

required apprenticeship nor pursued the course of study

required to entitle him to be recognized as a practical tile

setter (R. 66-68). While there is testimony by himself

and his employee that his work is satisfactory, the record

also shows that the only building contractor who testified

as to his skill admitted that he had never seen Senn do

what is considered highlv skilled: or technical work (Old

—_—_J—_

Record 196-197), and further testimony by veteran mem-

bers that one with Mr. Senn’s limited training and ex-

perience could not be considered a practical mechanic (R.

95-96, 100-101). .Senn was adviséd of this during the

negotiations with the union and was told that under such

circumstances the union could not allow him to work with:

the tools of the trade, nor, because of union-rules, to allow

its members to work with him (R. 54, 79, 84).

The defendant unions are allied with the larger Inter-

national Union, comprising a number of building trades

crafts. All these crafts require service as an apprentice

before a man may be considered a journeyman craftsman

entitling him to do the work of a practical mechanie (Con-

stitution, pages 68, 69, 70).

The Wisconsin Labor Code, Sections 103.51 to 103.63,

Statutes of 1935, set out in the appendix, enumerates what

is to be considered lawful conduct in labor disputes. Such

lawful conduct is defined as including giving publicity and

information regarding the existence of a labor dispute,

ceasing to patronize or to employ any person or persons,

and peaceful picketing and patrolling. The act defines

labor disputes, and further provides that restraining or-

ders shall be issued under certain circumstances and for

limited periods, and that injunctions shall not be issued

except after a hearing had and certain facts found to exist.

The facts to be found are:

(a) That unlawful acts have been threatened or

committed and will be executed or continued unless

restrained;

(b) That substantial and irreparable injury to com-

plainant’s property will follow unless the relief re-

quested is granted;

(c) That as to each item of relief granted greater

injury will be inflicted upon complainant by the denial

on

thereof than will be inflicted upon defendants by the

granting thereof;

(d) That the relief to be granted does not violate

the provisions of section 103.53; —

(e) That complainant has no adequate remedy at

law; and

(f) That the public officers charged with the duty

to protect complainant’s property have failed or are

unable to furnish adequate protection.

After due trial the Court found that the facts in the in-

stant case established that there existed a labor dispute;

that the acts and conduct of respondent union were lawful

and in furtherance of such lawful labor dispute, and that

the appellant was not entitled to relief. The Court also

found that the objects of the union in its dispute with the

appellant were as follows (R. 28):

15. ‘‘That the tile industry for some years last past

has been in a demoralized state because of a lack of

building operations; that the defendants. and their @

members have been in competition with nonunion tile

setters and helpers in their effort to secure work as

a means of livelihood; that for the purpose of en-

hancing the interests of the defendants and their mem-

_ bers, the defendants and their members have found it —

necessary for the protection of their individual rights

in the prosecution of their trade, to require of all em-

ployers agreeing to conduct a union shop to agree:

‘That no individual, member of a copartnership or cor-

poration engaged in the tile contracting business, shall

work with the tools or act as helper, but that the in-

stallation of all materials within the classification of

tile work shall be done by journeymen members of the

Tile Layers Protective Union.’

16. ‘‘That the plaintiff, by virtue of his status of

an employer and contractor, is not en‘itled to member-

ship in the defendant unions; that the constitution

and rules of the defendant unions require, among other

things, that a tile setter shall be a journeyman tile

setter who shall have acquired his practical experience

by virtue of am apprenticeship, and that such appren-

ticeship shall, among other things, consist of service

as an apprentice of not less than three years; that the

plaintiff has not served an apprenticeship as a tile

setter in accordance with the rules of the defendant

unions. ”’

From these facts it was concluded that in furtherance

of such objects:

‘‘1, That a labor dispute exists between the plain-

tiff and the defendants respecting the unionizing of

plaintiff’s business on the terms proposed by the de-

fendants; that the plaintiff and defendants are parties

to said dispute, and that such dispute is within the

definition of a labor dispute, as defined in the Labor

Code, Sections 268.18 to 268.29 (now secs. 703.51-

103.63), and subsections thereof, of the Wisconsin

Statutes. r

“9 That it is not unlawful for the defendants, in

furtherance of said dispute, to advise, notify or per-

suade, without fraud, violence or threat. thereof, any

person or persons, of the existence of said labor dis-

pute; that it is not unlawful for the defendants to give

publicity to, and,obtain or communicate information

regarding the existence of facts (fol. 94) involyed in

such dispute whether by advertising, speaking, or

patrolling any public street or any place where any

person or persons may lawfully be, providing said acts

are done without intimidation or coercion and without

fraud, violence, breach. of the peace, or threat thereof.

‘‘3 That the defendants have not indulged in vio-

lence or fraud; that because of their ‘statement made

by their counsel in open court and in their presence,

antiion

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 re-

ferred to in said letters, the Court concludes that no

unlawful acts will be committed or will be executed or

continued. —

‘“4. That the agreement submitted by the defend-

ants to the plaintiff, setting forth terms and conditions

prevailing in that portion of the industry which is

unionized, is sought by the defendants for the purpose

of promoting their welfare and enhancing their own

interests in their trade and craft as workers in the

industry. ;

‘*5 That article III of said agreement is a reason-

able and lawful rule adopted by the defendants out

of the necessities of the employment within the indus-

try and for the protection of themselves as workers

and craftsmen in the industry.

“6, That the plaintiff is not entitled to the relief

Arayed for in his complaint.

' «7 That the above-entitled action be dismissed on

its merits without costs.’’

From such findings an appeal was taken based upon

whether (1) the term ‘‘labor dispute’? was applicable to

a situation where the dispute was between members of a

union engaged in the same craft or industry and an em-

ployer engaged in sueh trade, craft or industry, and (2)

if such dispute existed, were the demands made upon the

employer reasonable ones? It was contended that to find

a dispute existed, and that the demands made were rea-

sonable, the effect of denying a remedy by way of injunc-

tion is to deny the appellant the equal protection of the

laws and to deprive him of his property without due

process of law. The Wisconsin Supreme Court affirmed

the findings of the trial court, and from this decision this

appeal was taken.

a

SUMMARY OF ARGUMENT.

1. The Wisconsin Labor Code does not involve the Four-

teenth Amendment; the federal question involved is no,

longer a substantial one by reason of prior adjudications

of this Court.

(a) Limitations on the granting of injunctions are juris-

dictional limitations which dre within the proper power

of the Legislature.

Duplex Printing Press Company v. Deering, 254

U. S. 443; ,

American Steel Foundries v. Tri-City Central Trades

Council, 257 U. S. 184;

Levering and Garrigues v. Morrin, 71 Fed.. (2a) 284

_ (cert. denied 293 U. S. 595, 79 L. ed. 688) ;

United Electric Coal Company v. Rice, 80 Fed. (2d)

1 (cert. denied 297 U. S. 714, 80 L. ed. 1000);

Fenske Bros. v. Upholsterers’ International Union, _

358 Ill. 239, 193 N. KE. 112 (cert. denied 79 U. S.

. L. ed. 1682).

. (b) The federal question is no longer a substantial one,

since it has been decided adversely to the appellant and

prior United States Supreme Court decisions.

Truax v. Corrigan, 257 U. S. 312;

Duplex Printing Press Company v. Deering, 204

U.S. 443;

American Steel Foundries v. Tri-City Central Trades

Council, 257 U. S. 184.

(c) This question has also been decided uniformly in

the lower state and federal courts.

Levering & Garrigues v. Morrin, 71 Fed. (2d) 284;

Fenske Bros. v. ah ith __a Union,

358 Ill. 239, 193 N. E. 112

= we

Miller Parlor Furniture Company v. Furniture W.

_ |. Union, 8 Fed. Sup. 209; ,

Cinderella Theater Co. v. Sign Writers’ Local Union,

6 Fed. Sup. 164;

Dean v. Mayo, 8 Fed. Sup.,73;

Starr v. Laundry Union, C. C. H. Labor Law Serv-

ice, page 16841.

Wallace v. International Association of Mechanics,

C. C. H. Labor Law Service, page 16846.

9. The findings of both the trial and appellate courts

as to the reasonableness and. purpose of the demand are

findings of fact. Such findings of fact are not within the

jurisdiction of this Court for the purposes of review. Under

euch findings of fact no federal right has been denied to

the appellant. .

(a) Findings of fact in the state courts are binding un-

less ascertained to be without support in the evidence, or

unless clear error is shown.

Ward & Gow v. Krinsky, 259 U. S. 503, 42 S. Ct.

Rep.’ 529; s :

Borden ducts Co. v. Ten Eyck, 297 U.S. 251;

Thayer v. Spratt, 189 U. S. 346, 23 S. Ct. Rep. 576.

(b) ‘Upon a finding of fact that the peaceful actions of

a union are-directed to the legitimate objectives and pur-

poses for which working men may organize, the resultant

injury.if there be one to the employer becomes damnum

absque tnjuria. a

Trnax v. Corrigan, 257 U. S. 312; | .

Duplex Printing Press Company v. Deering, 204

U. 8. 443; |

American Steel Foundries v. Tri-City Central Trades

Council, supra;

Pe

New Jersey Painting Company v. Local 26, 96 N. J.

_ Eq. 632, 126 Atl. 399, 47 A. L. R. 384;

Exchange Bakery & Restaurant v. Rifkin, 245 N. Y.

260.

3. The appellant not having met any of the qualifica--—~

tions set up by the union for a qualified practical me-

-chanic, the terms of the proposed contract are justifiable

on that basis alone. Such union rules and regulatioris are

not within the jurisdiction of this Court for the purposes

of review.

Mayer v. Journeymen Stone Cutters’ Union, 47 N. J.

Eq. 519, 20 Atl. 492;

Snow v. Wheeler, 113 Mass. 179;

Carew v. Rutherford, 106 Mass. 114;

New Jersey Printing Company v. Local 26, 96 N. J.

Eq. 632, 126 Atl. 399, 47 A. L. R. 384.

THE WISCONSIN LABOR CODE DOES NOT INVOLVE

THE FOURTEENTH AMENDMENT; THE FED-

ERAL QUESTION INVOLVED IS NO LONGER A

SUBSTANTIAL ONE BY/REASON OF THE PRIOR

ADJUDICATIONS- HIS COURT.

It is the respondent’s position that the United States

Supreme Court has not jurisdiction in this matter since -

_the Wisconsin Labor Code does not involve the Fourteenth

Amendment. Also, the federal question involved is no

longer a substantial one. The enactment of the code is

within the legitimate exercise of the police power of the

state in limiting equitable relief by way of injunction in

order to promote the public welfare, safety and morals of

society. The limitation of this equitable relief is not

meant to be nor is it declared to be an adjudication of the

rights of the appellant in an action at law for damages.

Set out in the appendix hereto is the report of the House

Judiciary Committee on the Norris-LaGuardia Act. At

page 60 through 69 there is an extended discussion and

citation of authorities as to the rights of Congress to limit

the equity jurisdiction of the federal courts. Also, at page

88 of the report of the Senate Judiciary Committee, ap-

pearing in the appendix, there is a discussion of the same .

propositior.

These authorities and suggestions are likewise applica-

ble to the rights of state legislatures in dealing with the

equity jurisdiction of state courts. We quote from the

decision in the case of American Furniture Company VY.

1. B. of T. C. and H. of A., 268 N. W. 250 (not yet officially

— >)

reported), which was decided at the same time as the

instant case, and which is set out in the appendix:

«@ @ © Tt is beyond question that the legislature

may change the substantive law ard in doing so in-

crease or reduce the subject matter upon which the

jurisdiction of courts operate. It may enact a stat-

ute creating a crime or repeal such a statute. The

first enactment does not increase nor does the latter

diminish the jurisdiction of a court. It merely is an

exercise of the power of the legislature to declare the

public policy of the state and punish offenses against

its sovereignty. Unless there is some other constitu-

tional objection, such laws would not be invalid as

interferences with the jurisdiction of the courts. When

the legislature makes peaceful picketing valid under

certain prescribed circumstances it leaves nothing for

an injunction to operate upon. The provisions of such

a law are substantive in character. They may or may

not be unconstitutional on some other ground, but it

is certain they are not unconstitutional upon the

ground assigned.’’

A similar jurisdictional question involving the Norris-

LaGuardia Act (the federal law, of which the Wisconsin

Labor Code is a counterpart) was raised in the case of

Levering & Garrigues v. Morrin et al, 71 Fed. (2d) 284

(1934) (C. C. A. [2d]), in which the Court said:

‘Since Congress may curtail this remedy or with-

draw the jurisdiction of the District Court, no con-

stitutional rights based upon the withdrawal of reme-

dial rights can be successfully raised, since the. liti-

gant never had an absolute constitutional right to

have a federal court take jurisdiction.’’

Certiorari denied in this case in 293°U. S. 595, 79 L. Ed.

688 (1934).

—*

Likewise, similar questions were raised in the case of

United Electric Coal Company v. Rice, 80 Fed. (2d) 1

(C. C. A. 7th), wherein it was claimed that limiting the

power of a federal court of equity to restrain threatened

injuries to property is unconstitutional. The Court held:

‘‘Inasmuch as Congress may take from as well as

‘confer upon inferior federal courts jurisdiction of

eases which involve controversies between different

states ° ° ° we find-ho support for a conclusion

which would deny validity of this legislation.

“The legislation in question took from: distriet

courts jurisdiction of cases involving labor dispute

injunction suits between citizens of different states,

in certain limited instances, and was within the power

of Congress conferred by Article III, Sections 1 and 2,

of the United States Constitution.’’

Certiorari was denied in this case in 297 U. S. 714, 80 L.

Ed. 1000 (1935).

In the recent case of Starr v. Laundry and Dry Cleaning

Workers Union (not yet officially reported, but appearing

at page 16841 of the C. C. H. Labor Law Service, decided

December 29, 1936), we find this pertinent statement:

‘“At all times legislation, prescribing the procedure

in cases brought to secure injunction has been recog:

‘nized as controlling upon the courts. We find support

- in reasons of public policy why the procedure in labor

cases should be different from that to be followed in

other cases.”’

Likewise, in the case of Fenske Bros. v. Upholsterers

International Union, 358 II]. 239, 193 N. E. 112, 97 A. L. R.

1318 (Ill.), the Illinois Supreme Court, in discussing the

validity of the Illinois Anti-Injunction Act, held such act

to be constitutional on the precise procedural question.

~~ vn

Certiorari was denied in this case in 79 U. 8. (L. Ed.)

1682, 55 Sup. Ct. 645 (April, 1935).

In the case of Duplex Printing Press Co. v. Deering, 254

U. S. 443, this Court had occasion for the first time to con-

sider paragraph 20 of the Clayton Act. This section of

the act provides:

“That no restraining order or injunction shall be

granted by any court of the United States, or a judge

or the judges thereof, in any case between an em-

ployer and employees, or between employers and em-

ployees, or between employees, or between persons em-

ployed and persons seeking employment, involving, or

growing out of, a dispute concerning terms, or condi-

tions of employment, unless necessary to prevent ir-

reparable injury to property, or to a property right,

of the party making the application, for which injury

there is no adequate remedy at law, and such prop-

erty or property right must be. described in particu-

larity in the application, which must be in writing,

and sworn to by the applicant, or by his agent or

attorney. .

‘‘And no such restraining order or injunction shall

prohibit any person or persons, whether singly or in

concert, from terminating any relation of employment,

or from ceasing to perform any work or labor, or

from recommending, advising, or persuading. others

by peaceful means so to do; or from attending any

place where any such person or persons may lawfully

be, for the purpose of peacefully obtaining or com-

municating information, or from peacefully persuad-

ing any person to work, or to abstain from working;

or from ceasing to patronize or to employ any party:

to such dispute, or from recommending, advising, or

persuading others by peaceful or lawful means so to

do; or from paying or giving to, or withholding from,

any person engaged in such dispute, any strike bene-

fits or other moneys or things of value; or from peace-

—_|

fully assembling in a lawful manner and for lawful

purposes; or from doing any act or thing which might

lawfully be done in the absence of such dispute by

any party thereto; nor shall any of the acts specified

in this paragraph be considered or held to be viola-

tions of any law of the United States.”’

The foregoing provisions are limitations upon courts of

equity in respect to issuance of injunctions. The Court

not only did not invalidate these restrictions, but held that

they put into statutory form familiar restrictions upon the

granting of injunctions already established, and of general

application in the equity ‘practice of the courts of the

United States. .

We believe that the Court’s observations as to the valid-

ity of Section 20 of the Clayton Act are herein pertinent;

that the ‘‘familiar restrictions upon the granting of injune-

tions already established, and in general application, in

the equity practice of the courts of the United States,”’

are: valid restrictions and a legitimate exercise of con- «—

gressional powers not in violatién of the Fifth or Four-

teenth Amendments to the United States Constitution.

Likewise, in the case of ‘American Steel Foundries v.

Tri-City Central Trades Council, 257 U. S. 184, this Court

again considered Section 90 of the Clayton Act, saying:

‘Tt is clear that Congress wished to forbid the use

by Federal Courts of their equity arm to prevent

peaceable persuasion by employees, discharged, or

expectant, in promotion of their side of the dispute,

and to séeure them against judicial restraint in ob-

taining or communicating information in any place

where they might. lawfully be. This introduces 10

new principle into the equity jurisprudence of those

courts. It is merely declaratory of what was the best

policy always. Congress thought it wise to stabilize

a RT aon

this rule of action and render it uniform.’’? (Empha-

sis ours.)

The application of the principles of law to Section 20

of the Clayton Act and Sections 103.51 to 103.63 of the

Wisconsin Statutes are essentially the same. Both Section

. 20 of the Clayton Act and Sections 103.51 to 103.63 of the

Wisconsin Statutes limit or restrict the use of injunctions

in labor disputes after defining what such disputes are;

and both enumerate actions in connection with suck labor

dispute that are deemed to be lawful acts in restraint of

which a court of equity may not issue an injunction.

While it is true that in the Duplex and American Steel

Foundries cases certain injunctions were’ allowed-to issue,

such injunctions were issued only because the Court de-

termined that under the Clayton Act the provisions did

not extend as far as they were claimed to by the unions,

and the conduct complained of consisted of violence and

secondary boycotting. The Court did not declare an ex-

tension of the act to other disputes ‘‘free from ‘fraud, vio-

lence, breach of the peace or threat thereof’’ [Wisconsin

Statutes, 103.53 (c)] would result in unconstitutional leg-

islative power, but based its decisions on what it con-

sidered to be a correct construction of the Clayton Act.

In the instant case, the Wisconsin Supreme Court, in

determining the legislative intent, concluded that the term

“labor dispute,’? as used and defined in the Wisconsin

Labor Code, included disputes between unions composed

of members engaged in the same craft, trade or industry

of the employers and employers engaged in such craft or

industry. This construction was based not only upon

what the Court concluded to be the legislative intent, but

also upon the wording of the Wisconsin statute, which is

broader than the terms of Section 20 of the Clayton Act

on .

in its definitions of labor disputes and those who are par-

titipants therein. As pointed out in the decision of the

Wisconsin Supreme Court in the case of American Furni-

ture Company v. I. B. of T. C. and H. of A. Chauffeurs, .

Teamsters and Helpers of Local No. 200 of Milwaukee

et al, supra, the inclusion in the Wisconsin statute [sec-

tion 103.62 (3)]} of the language ‘‘regardless whether or

not disputants stand in the proximate relation of empioyer

and employee’’ was meant to overcome the restrictive lan-

guage of the Clayton Act as construed in the Duplex Case,

and when construed with other pertinent sections of the

statute clearly covers the situation presented in this case,

that is, a dispute between an employer in a particular

trade, craft or industry and an association of employees

engaged in the same trade, craft or industry, whose wages,

hours and working conditions are affected by that em-

ployer’s practices. This proposition was affirmed in the

case of American Steel Foundries v. Tri-City Central

Trades Council, 257 U. S. 184, at page 209:

«“*® © ©.Jt is thus probable that members of the

- local unions were looking forward to employment

when complainant should resume full operation, and

even though they were not ex-employees within the

Clayton Act, they were directly. interested in the

wages which were to be paid.

‘“Ig interference of a labor organization by per-

suasion and appeal to induce a strike against low

wages, under such circumstances, without lawful. ex-

cuse and malicious? We think not. Labor unions are

recognized by the Clayton Act as legal when insti:

tuted for mutual help and lawfully carrying out their

legitimate objects. They have long been thus recog:

nized by the courts. They were organized out of the

necessities of the situation. A single employee was

helpless in dealing with an employer. He was de-

a ia inl nines te

pendent ordinarily on his daily wage for the mainte-

nance of himself and family. If the employer refused

to pay him the wages that he thought fair, he was

nevertheless unable to leave the employ and to resist

arbitrary and unfair treatment. Union was essential

to give laborers opportunity to deal on equality with

their employer. They united to exert influence upon

him and to leave him in a body, in order, by this in-

convenience, to induce him to make better terms with

them. They were withholding their labor of economic

‘ value to make him pay what they thought it was.

worth. The right to combine for such a lawful pur-

pose has, in many years, not been denied by any court.

The strike became a lawful instrument in a lawful

economic struggle or competition between employer

and employees as to the share or division between

them of the joint product of labor and capital. To

render this combination at all effective, employees

must make their combination extend beyond one shop.

It is helpful to have as many as may be in the same

trade in the same community united, because, in the

competition between employers, they are bound to be

affected by the standard of wages of their trade in

the neighborhood. Therefore, they may use all law-

ful propaganda to enlarge their membership, and es-

pecially among those whose labor at lower wages will

injure their whole guild. It is impossible to hold such

persuasion and propaganda, without more, to be with-

out excuse and malicious. The principle of the un-

lawfulness of maliciously enticing laborers still re-

mains, and action may be maintained therefor in

proper cases; but to make it applicable to local labor

unions in such a case as this seems to us to be unrea-

sonable.’’ (Emphasis ours.)

In the exercise of the appellate jurisdiction of the Fed-

eral Supreme Court over state courts the former court is

=

bound by the construction of a state law adopted by its

court of last resort.

Ward & Gow v. Krinski, 259 U. S. 503, 42 Sup. Ct.

. ‘Rep. 529, 66 L. Ed. 1033;

Thornton v. Duffy, 254 U. S. 361, 41 Sup. Ct. Rep.

137, 68 L. Ed. 304;

Quong Ham Wah Co. v. Industrial Accident Com-

mission, 253 U. S. 445, 41 Sup. Ct. Rep. 337, 65

L. Ed. 723;

Faircomb v. Denver, 252 U. S. 7, 40 Sup. Ct. Rep.

271, 64 L. Ed. 424;

Guarantee Trust Co. v. Blodgett, 287 U. S. 509, 53

Sup. Ct. Rep. 244, 77 L. Ed. 463;

Hartford Accident & Indemnity Co. v. N. O. Nelson

Mfg. Co., 291 U. S. 352, 54 Sup. Ct. Rep. 392,

78 L. Ed. 840.

The Wisconsin Act, as construed by the Wisconsin

courts, enlarges the class of disputes in whieh the issuance

of an injunction is limited, but the statute is still confined

to disputes arising out of the rights of laboring men to -

pursue peacefully the objects for which they organize,

free from judicial restraint. So the Wisconsin Labor

Code still remains, in effect and purpose, the same type of

legislation as Section 20 of the Clayton Act, and such

legislation has never before been considered by this Court

as a violation of the Fifth or Fourteenth Amendments

(Tri-City case, supra). There are many cases in the fed-

eral and state courts which have adopted the same con-

struction as the Wisconsin Supreme Court did in connec-

tion with both the Norris-La Guardia Act and state anti-

injunction acts. Some of the cases which have adopted

this construction are:

Levering & Garrigues v. Morrin, 71 Fed. (2d) 28

(1934, C. C. A. 2nd) (certiorari denied) ;

ae ie

—

Miller Parlor Furniture Co. v. Furniture W. I.

Union (District Court N. J.), 8 Fed. Supp. 209;

Cinderella Theatre Co. v. Sign Writers Local Union

(D. C. Mich.), 6 Fed. Supp. 164;

Dean v. Mayo (Dist. Ct. La.), 8 Fed. Supp. 73;

Fenske v. Upholsterers Internationa] Union, 358 III.

239, 193 N. E. 112 (certiorari denied) ;

Starr v. Laundry & Dry Cleaning Workers Union

(Oregon Sup. Ct., Dee. 29, 1936) (reported in

C. C. H. at page 16841) (not yet officially re-

ported); and

Wallace v. International Association of Mechanics,

a companion case to Starr v. Laundry Work-

ers, supra, C. C. H., page 16846.

In Levering & Garrigues v. Morrin, supra, the Court

said:

‘‘We think that the relief granted in the decree

appealed from is in violation of the above statute .

(Norris-La Guardia Act). The case gréws out of a

labor dispute as defined in Section 113 (c) and is a

controversy between members of an association of

employers and members of an association of employees

engaged in the same industry [Sec. 113 (a), (c)]. The

appellees were seeking to arrange terms or conditions

of employment.”’

In the Miller case, supra, the Court said:

‘‘However, I am convinced, after carefully vending

the aforesaid act of Congress, that it is intended to

apply to just the situation here presented; that a labor

dispute may arise by reason of the desire of a labor

organization to unionize any factory in its line of

business, and a Federal Court may not, against the

effort of the union to accomplish its purpose, inter-

fere with it or its members ‘giving publicity to exist-

ence of, or the facts involved in, any labor dispute,

-

(errs ee re ey perme Oe re

_— oo

whether by advertising, speaking, patrolling, or by

any other method not involved in fraud or violence’

(29 U. S.C. A., See. 104 (e)].”’

In the Cinderella case, supra, the Court held that a con-

troversy to replace a nonunion employee by a union em-

ployee, none of the members of which union were employed

by the employer, was a labor dispute within the Norris-

‘La Guardia Act because

‘“‘By the express terms of the statute, it is none the

less a ‘labor dispute’ because of the fact that none

of the officers or members of the defendant union have

any contractual relations with the plaintiffs, and none

of the ‘disputants stand in proximate relation of em-

ployer and employee.’ If the applicability of the stat-

ute were otherwise doubtful, such doubt would be re-

moved by a consideration of the following language in

the report of the House Committee on the Judiciary

(H. R. Report 669, 72d Congress, First Session) favor-

ably reporting the bill (H. R. 5315) a few days before

= @9?

its passage:

In the Wallace case, supra, referring to the Oregon Anti-

Injunction Law, the Court said:

se ¢ © The definition of a labor dispute is so

broad and comprehensive that it undoubtedly extends

the scope of the Clayton Act as. interpreted by the ©

United States Supreme Court by placing a greater re-

striction upon courts in the matter of issuing injune-

tions. We are convinced that the immunity from in-

junctions clearly, extends to disputes between persons -

engaged in the same industry or craft who have 4

‘direct or indirect’ interest therein, and is not lim-

ited to a dispute between an employer and his im-

mediate employees. The Act provides that ‘an asso-

ciation of employees has an interest in a labor dispute,

—_ yr

‘regardless of whether or not the disputants stand in

the proximate relation of employer and employee.’ If

there were any doubt as to the intention of Congress

in enacting the Norris-La Guardia Act it ought to be

removed by the following language on the Report of

the House Committee on the House Judiciary favoring

the passage of the bill: ° ° °.’’ (See appendix.)

(Emphasis ours.) ;

The appellant, however, insists that to apply the pro-

visions of the Code to the facts in the instant case is to

deprive him of his property without due process of law,

and to deny to him the equal protection of the laws. - In

support of this position reliance is placed on the cases of

Truax v. Corrigan, 257 U. S. 312, and Coppage v. Kansas,

236 U. S. 1.

The Truax decision rested on two propositions: (1) The

acts alleged in the complaint and admitted by demurrer

were acts which were tortious.in and of themselves—their

tortious character Jay not in the purposes toward. which

they were directed, and (2) since those acts were tortious

it was held that. to deprive the employer of a remedy by

injunction against such tortious acts was to deprive the

employer of equal protection of the laws, and to deprive

him of his property without due process of law. The

United States Supreme Court held that where certain ac-

tions were tortious per se it would be a violation of the

Fourteenth Amendment and not a valid exercise of the

state police power to deny to the complainant its right

of remedy by injunction. The Court did not hold, how-

ever, that where labor disputes are involved an act re-

stricting the power of courts to issue injunctions against

peaceful acts was an unconstitutional deprivation of prop-

erty, or a denial of equal protection of the laws

In the instant case, after a trial on the merits, the Court

—24—.

found that the only tortious acts consisted of a proposed

secondary boycott, which the defendants, through their

counsel, agreed to withdraw, and to cease further activ-

ities in that direction. Since the act requires that the

Court shall be satisfied that the unlawful acts complained

of ‘‘will be executed or coiMinued unless restrained’’ (See.

103.56, Wis. Stats.), the Court, both under the act and un-

der the general principles of equity, being satisfied that

such acts will not be continued, did not issue an injune-

tion. This ruling of the trial court was affirmed by the

court of last resort in Wisconsin, Justice Fairchild saying:

‘“‘It appears when issve was first joined between

the parties, considerable spirit was manifested on both

sides, and evidently acts occurred calculated to in-

timidate appellant and bring about a secondary boy-

eott. 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 con-

duct referred to in said letters, the court con-

cludes that no unlawful act will be committed or

will be executed of continued.’

‘““The discretion of the trial court in determining

that there is no occasion for-a restraining order in

the particular suggested is well within the scope of

duties oe 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 ap-

proved.’’

Also, in the case of United Chain Theatres v. Philadel-

phia M. P. M. O. Union, 90) Fed. (2d) 189, in referring to

the issuance of an injunction against certain acts, which

— oe

acts counsel for the defendants advised the Court would

not be continued, the Court said:

‘Specifically, in the regard to the matter just re-

ferred to, my finding is that the conduct criticized

has been discontinued, and there is no reason to ap-

prehend that it will be resumed.”’

It must also be pointed out that the case of Coppage v.

Kansas, supra, relied upon by the appellant to confer jur-

isdiction on this Court, is one involving a state statute

which imposed criminal penalties on employers and did

not involve anti-injunction statutes patterned after the

Norris-LaGuardia Act. .

As was said in the case of Starr v. Laundry and Dry

Cleaning Workers, supra:

‘‘The Coppage case construes laws making it a crim-

inal offense for an employer to enter into a contract

with an employee containing a clause to the effect

-that the employee will refrain from joining a labor

union during the term of his employment. The ques-

tion of striking by employees is not involved. Neither

is the question of picketing nor the propriety or legal-

ity of statutory provisions prescribing procedure in

cases wherein injunctive relief is sought.

“To attempt to impute criminality to an act that is

sapcticned by the Constitution is obviously different

from prescribing a special procedure to be followed

to obtain injunctive relief in a special class of cases.”’

In this eénnection we also refer the Court to the case

of Texas & N. O. R. Co. v. Brotherhood of Railway Clerks,

281 U. S. 548, 74 L. Ed. 1034. This is the most vital deci-

sion on the subject of constitutionality. of labor legisla-

tion since the case of Truax v. Corrigan, supra. In the

light of this decision, decided May 26, 1930, all legisla-

a

= we

tion on the subject of labor disputes where constitutional

questions are involved, must be approached with a recog-

nition that the Adair and Coppage cases were effectively

limited, if not made entirely innocuous: The Court said:

‘‘The legality of collective action on the part of the

employees in order to safeguard their proper interests,

is not to be disputed. It has long been recognized

that employees are entitled to organize for the purpose

of securing wh redress of grievances and to pro-

mote agreements wif employers relating to rates of

pay and conditions tf ork

American Steel Foundries v. Tri City Central

Trades Council, 257 U. S. F8# 209, 66 L. ed.

189, 199, 27 A.’L. R. 360, 42 Sup. Ct. Rep. 72.

‘‘Thus the prohibition by Congress of interference

with the selection of representatives for the purpose

of negotiation and conference between employers and

employees instead of being an invasion of the consti-

tutional right of either was based on the recognition

of the rights of both. The pétitioners invoked the

“principles declared in Adair v. U. S., 208, 161, 52 L.

ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764, and

Coppage v. Kansas, 236 U.S. 1, 59 L. ed. 441, L. R. A.

1915 C 960, 35 Sup. Ct. Rep. 240, but these decisions

are inapplicable. The Railway Labor Act of 1926

does not interfere with the normal exercise of the

right of the carrier to select its employees or to dis-

charge them. The statute is not aimed at this right

of the employers, but at the interference with the

right of employees to have representatives of their

own choosing. As the carriers subject to the act have.

no constitutional right to interfere with the freedom

of employees in making their selections, they cannot

complain of the statute on constitutional grounds.”’

=

Thus, by a unanimous court, this Court has committed

itself to the recognition of the rights ef organized labor to

‘a degree which, as a matter of policy and legal princi-

ples, is applicable to the case gt bar.

il.

‘

THE FINDINGS OF BOTH THE TRIAL AND, THE

APPELLATE COURT AS TO THE PURPOSES AND

REASONABLENESS OF THE DEMAND ARE

FINDINGS OF FACT. SUCH FINDINGS ARE NOT

REVIEWABLE BY nite POURT. UNDER SUCH

FINDINGS OF FACT NO FEDERAL RIGHT HAS

BEEN DENIED TO THE APPELLANT. |

However, it is asserted here that, while the Act standing

alone may be constitutional, itis invalid if eonstrued so

as tO apply to the facts in the instant case. It is asserted

that the demand made upon the appellant is unreasonable,

and that to refuse to enjoin the Otherwise legal acts by

the union directed to the enforcement of such demand is

to deprive the appellant of his constitutional rights.

Ite is the respondents’ contention that the findings of

both the trial and appellate courts as to the reasonable-

ness and purposes of their demand being findings of fact,

it Is notywithin tne purview of the jurisdiction of this

Court to review such findings. The findings of fact are

set out in the transctipt of the record at pages 24 to 29.

We take the opportunity to set out what we consider to be

the most pertinent paragraphs thereof:

‘*12. That the agreement entered into by the de-

fendants with other tile contractors in the city and

county of Milwaukee is a collective agreement govern-

ing wages, hours and working conditions for their

=

members who are journeymen and journeymen help-

ers recognized as craftsmen in accordance with the

Constitution of the defendant organizations.

‘13. That all contractors who have entered into

such agreement with the defendant unions are classed

by the defendants as union contractors, and that all

contractors who have refused to enter into said agree-

ment are classed-by the defendant unions as nonumian

contractors. .

‘44. That by virtue of the agreement between the

defendant unions and the union contractors, the de-

fendant uhions and their members secure advantages

in wages, hours and working conditions in maintain-

ing a standard of wages and working conditions satis-

factory to the defendants and their membership; that

the wages paid to the defendants and their members

by union contractors have for some time been higher

than the wages paid by the plaintiff to his employees.

‘15. That the tile industry for some years last past

has been in a demoralized state because of a lack of

building operations; that the defendants and their

members have been in competitiofi with nonunion tile

setters and helpefs in their effort to secure work as a

means of livelihood; that for ‘the purposes of enhanc-

ing the interests of the defendants and their members,

the defendants and their members have found it nee-

essary for the protection of their individual rights in

the prosecution of their tradé, to require of all em-

ployers agreeing to conduct a union shop to agree:

‘That no individual, members of a copartnership or

corporation engaged in the tile contracting business

shall work with the tools or act as helper, but that the

installation of all materials within the classification of

tile work shall be done by journeymen members of the

Tile Layers Protective Union.’

‘16, That the plaintiff, by virtue of his status of an

employer and contractor, is not entitled to member-

—

ship in the defendant unions; that the Constitution

and Rules of the (fol. 93) defendant unions require

among other things that a tile setter shall be a jour-

neyman tilgsettey who shall have acquired his prac-

tical experience by virtue of an apprenticeship, and

that such apprenticeship shall, among other things,

consist of service as an apprentice of no®less than

three vears; that the plaintiff has not served an ap-

prenticeship as a tile sétter in accordance with the

rules of the defendant unions.

‘‘17. That the picketing has been peaceful, without

violence, and without any unlawful acts.’’

We also point out that the decision of the Wisconsin Su-

preme Court, appearing in the transcript of record, pages

116 to 122, affirms these findings at page 120:

‘‘The demand here by the unions is for the appel-

lant 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 con-

form to the rules of apprenticeship and other working

conditions prevalent in the industry where union rules

prevail. The requirement that the employer person-—

ally refrain from working with the tools of the trade

is important and vital to the craftsmen affiliated with

defendant unions, because the practicés sought to be

prevented ean so readily affect wages and hours of

labor. It is pointed out by respondent that the mem-

bership in the union has decreased during the de-

pression years, and that as a necessary requisite for a

proper existence and livelihood, these craftsmen’ find

it necessary to require employers to cemply with the

terms of Article III. Appellant’s method of conduct-

ing his business brings into the situation a ‘direct at-

tack by him upon the means relied upon by the nnions

to protect their scale of wages, hours and working

conditions against the cutting of prices and lengthen-

.ing of hours of work.”’

o- §f

That the above are findings of fact and Aonelusions of

law cannot be disputed. As was held in the case of W. A.

Snow Iron Works v. Chadwick, 227 Mass. 582, L. R. A.

755, 116 N. E. 801, the object or motive of a strike is a

question of fact.

We believe that it is axiomatic that the United States

Supreme Court will not disturb the findings of fact of the

State Supreme Court, and that such findings are conclu-

sive upon the Court; that this Court will not entertain

jurisdiction to determine a case which is based upon such

findings.

Findings of fact by a state trial court that the inspec-

tion of gasoline provided for by state statute protects the

community from fravds and promotes the public safety,

are accépted as conclusive by the Federal Supreme Court

on writ of error. Pure Oil Co. v. Minnesota, 248 U.S. 158,

39 Sup. Ct. Rep. 35, 63 L. Ed. i180.

Findings of fact are binding unless ascertained to be

‘without support m evidence. Ward & Gow v. Krinski,

259 U. S. 503, 42 Sup. Ct. Rep 529, 66 L. Ed. 1033.

Findings of a court supported by substantial evidence

will not be disturbed on appeal. Borden Products Co. v.

Ten Eyck, 297 U. S. 251, 56 Sup. Ct. Rep. 453, 80 L.

Ed. 669.

. Findings of fact in which two lower courts concur will

’ . . ,

be accepted by the Supreme Court uniess clear error is

shown:

Texas & N. O. B. Co. v. Brotherhood of Railway &

8. 8. Clerks, 281 U. S. 548, 50 Sup. Ct. Rep. 422,

74 L. Ed. 1034;

U. 8. v. Commercial Credit Co., 286 U.S. 63, 52 Sup.

Ct. Rep. 46, 76 L. Ed. 978;

=

Continental Illinois National Bank & Trust Co. v.

Chicago B. I. & P. RB. Co., 294 U. S. 648, 55 Sup.

Ct. Rep. 595, 79 L. Ed. 110.

If it appears that the decision of the federal question

was so plainly right as not to require argumett, the writ

should not be allowed. Re Spies, 123 U.S. 131, 7 Sup. Ct.

Rep. 22, 31 L. Ed. 80; Re Bordman, 169 U. S. 39, 18 Sup.

Ct. Rep. 291, 42 L. Ed. 633.

The Federal Sapreme Court upon. a writ of error toa

state court has no right te review the decision upon the

ground that the finding was against the evidence or the

weight of evidence. Thayer v. Spratt, 189 U. S. 346, 23

Sup. Ct. Rep. 576, 47 L. Ed. 845.

Whatever was a question of fact in the state court is a

question of fact on writ of error from the Federal Supreme

Court to that court. Hanley v. Donoghue, 116 U. S. 1,

6 Sup. Ct. Rep. 242, 29 L. Ed. 535.

The findings of fact are conclusive upon the Federal Su-

preme Court on writ of error to a state court,‘in ordinary

cases other than those arising under the contract clause of

the Federal Constitution, unless there is a ground for in-

sistence that.a federal right has been denied as a result

of a finding that is without support in the evidence.

Interstate Amusement Co. v. Albert, 239 0. S. 560, 36 Sup.

Ct. Rep. 168, 60 L. Ed. 439.

A finding of fact by an inferior state-court affirmed in

the highest court of that state by a divided court is con-,

clusive on the Federal Supreme Court in reviewing a judg-

ment of the highest state court. Minneapolis Railway Oo.

v. Minnesota, 193 U. S. 53, 24 Sup. Ct. Rep. 396, 48 L. Ed.

— 32+-

It is true that in the Truax case the United States Su-

preme Court was held to have the right to examine the

facts and to determire whether the findings are without

or with substantial support. But it must be remembered

that in that case the defendants demurred to the complaint,

thereby admitting the truth of the alleged facts; and the

Court found that the acts which were admitted by de-

murrer were illegal per se, having consisted of ‘‘lbelous

attacks”’ and ‘‘abusive epithets.’’ In that case it was held

that the undisputed facts were necessary to a determina-

tion of the isste as presented, and it was apparent that the

Supreme Court of Arizona ignored the admitted facts in

coming to its conclusion. But in the instant case a trial.

was had on the merits. The Court found that those acts

which were questionable would no longer be persisted in;

all other acts of respondents were associated with picket- :

ing, and as to those acts the Court found that ‘‘the picket-

ing has been peaceful, without violence, and without any

unlawful acts.”’

It is apparent from the record and the decision that the

facts relating to the time and manner of picketing are not

issues in this case. The issues in the appellate court and

‘the decision were confined to consideration of whether the

peaceful picketing was to be free from injunctive restraint

-in view of the.type of demand made upon the appellant.

The proper answer to this question rested upon a deter-

mination of whether the acts arose out of a’malicious de-

sire to interfere with plaintiff’s right to work, or whether

they were reasonably directed to the objects and purposes

for which laboring men are allowed to organize. The

Court’s finding that the latter was the purpose is not at-

tacked or disputed. It is the appellant’s position that if

acts in furtherance of respondents’ rights affect adversely

his right to work, and to conduct his business as he sees

eo

fit, then respondents’ conduct is per se illegal. Such posi-

tion, of course, is utterly inconsistent with the prior adju-

dications of this Court.

In the Truax, Duplex and Tri-City cases this Court af-

firmed the proposition that peaceful picketing and per-

suasion, when directed toward the legitimate objectives

and purposes for which working men organize, and when

conducted in a legal and orderly manner, are properly free

from restraint. In the absence of unlawful means it is the

purpose toward which the organization’s activities are

directed that must be determined. If such purposes and

objectives bear no direct relationship to the needs of the

workingmen and to improve their standards of .living,

wages, hours.and conditions of employment, then their

actions may properly be restrained. However, if the pur-

poses are directed towards improvement of working con- -

ditions, then the peaceful activities are lawful, and the re-

sultant hardships, if any, to the employer become damnum

absque injuria.

In the instant case the Supreme Court of Wisconsin re-

afirmed this proposition (R. 120-122):

‘‘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 dis-

tinctions between one engaged in the tile setting busi-

ness 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 de-

clined 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. Re-

spondents insist that the particular rule to which ap-

oa 34

pellaz.t objects is one in the furtherance of the legiti-

mate 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 pur-

pose of the acts complained of is to protect and im.

prove the condition of those whom the unions repre-

sent, such action is justifiable, because it tends to pro.

mote 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, stilk nowcight of appellant now protected

by law is invaded by respondents’ efforts to bring

appellant’s business to union standard. American

Furniture Co. v. I. B. of T. C. and H. of A. Chauf-

feurs, Teamsters and Helpers General Local No. 200

of Milwaukee, supra, and cases there cited. No ques-

tion exists as to appellant's right to conduct a non-

- union shop under any terms he chooses. An economic

contest has developed. Each of the contestants is

desrious of the advantage of doing the business in the

community where he or they operate. He 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 -be-

come imminent, or something has occurred to start in

motion the adminjetration of equity rules, or the per-

formance 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 man-

ner which he chooses to adopt. What they are doing

is asserting their rights under the acts of the Legis-

lature 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 {njunction, p. 31.

“The respondents’ act of peaceful picketing is a

lawful form of appeal to the public to turn its patroz-

age from appellant to the concerns in which the wel-

fare of the members of the union is bound up. As

stated by respondents’ counsel in their brief, ‘the pub-

lic is free to accept or reject the appeal and the plain-

tiff 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 im-

proved 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 af the code (St. 1935, Sees. 103.51-103.63).

Each appeals to public opinion. If the trade turns

from one to the other as a result of this dispute, the

injury is incidental, mjuria absque damno.’’ (Empha-

sis ours.)

This has always been the judgment of the United States

Supreme Court, and has always been the view, with very

few exceptions, of the great majority of states and lower

federal courts. We refer the Court tq the very extensive

nw $B sce

note appearing in 71 L. Ed. 248, in connection with the

ease of Kansas v. Dorchy, indicating that the following

are proper and legitimate demands of workingmen’s asso-

ciations and bear direct and reasonable relationship to the

purposes for which they are allowed to organize: .

Payment of wages during working hours; rates of wages

payable by outside contractors; hours of labor; statement

of working records; amount of work required; piecework,

enforcement of contract rights; arbitration; method of en-

- forcing agreements; enforcing negotiations; retention of

obnoxious employees; number of apprentices; amount we

help to be employed; reinstatement of employees; closed

shop; collective bargaining. Of course, these are not all.

As was stated in the case of New Jersey Painting Com-

pany v. Local 26, 96 N. J. Eq. 632, 126 Atl. 399, 47 A. L. R.

3o4:

‘‘Economieally, the conclusion reached by the lower

court confuses the possible or probable effect of the &

defendants’ action upon the employers with the de-

fendants’ rights. The law gives the defertdants a right

to sell their labor to whom they please, when and

under such conditions as they may fix, individually or

in combination. They may make rules and regula-

tions passed in good faith, providing for what they

deem to be an economic advantage to themselves. If

in the enforcement of such rulés and regulations they

violate no law, but act solely for the declared purpose,

the courts ought not and cannot legally enjoin them

from such concerted action, simply because sueh ac-

tion may affect some employers. ° ° °”’

And in Exchange Bakery & Restaurant v. Rifkin, 245 \.

Y. 260:

‘*‘The purpose of a labor union to improve the con-

—_— j(—

ditions under which its members do their work, to in-

crease their wages, to assist fhem in other ways, may

justify what would otherwise be a wrong. Se 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 eonditions

un@er which they work, as in its own members because

of the influence of one upon the other. ~All engaged.

‘na trade are affected by the prevailing rate of wages.

All, by the principle of collective bargaining. Eco-

-nomic organization today is not based on the single

shop. Unions believe that wages may be increased,

collective bargaining maintained, only if union condi-

tions 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 induc-

ing him to employ union labor. And it may adopt

either method separately. Picketing without a strike

‘s no more unlawful than a strike without picketing.

Both are based upon a lawful purpose. Resulting in-

jury is incidental and must be endured.’’

The question then is one of fact, to be determined by the

triers of fact in the state courts, whether by judge or jury.

In the instant ease the Court has found:

1. That the means used were peaceful and lawful and

without fraud, violence, or breach of the peace, and —

2. That those lawful acts were directed toward the

proper protection of the members’ legitimate interests.

Under such findings, fuily supported by the evidence,

both under the law as it existed prior to the adoption of a

labor code, and under the labor code, the appellant here 1s

not entitled to the injunctive relief which was sought.

It is apparenf, then, that this appeal is now sought and

the jurisdiction of this Court is now invoked in order that

_—

this Court make findings of fact as to motives and pur-

poses contrary to the findings in the state courts. We

must respectfully submit that such determination is not the

proper function of this Court, and that the record is not

now subject to such attack. The findings were made after

due and proper trial, all the facts having been submitted

and litigated. Such findings are now siding and not sub-

ject to review.

ITT.

SINCE 1T IS ADMITTED THAT THE APPELLANT IS

NOT A QUALIFIED CRAFTSMAN .ACCORDING

TO THE UNION RULES AND CONSTITUTION

AND WOULD NOT BE ENTITLED TQ MEMBER.

SHIP IN THE UNION, THE FURTHER RULE

THAT UNION CRAFTSMEN MAY NOT WORK

WITH NONUNION: OR UNQUALIFIED CRAFTS.

MEN JUSTIFIES THE TERMS OF THE PRO.

POSED CONTRACT. SUCH UNION RULES AND

REGULATIONS ARE NOT WITHIN THE JURIS. -

DICTION OF THIS COURT FOR THE PURPOSES

OF REVIEW.

There is another reason why the Court should ‘not take

jurisdiction in this case; that is, the appellant was un-

qualified to work with the respondent union members be-

cause of a rule of the union which provides that:

‘‘Members of the I. U. shall not accept employment

with a coptractor who works with the tools of the

trade unless said contractor is-a practical bricklayer,

stonemason, cement mason, plasterer, marble mason,

tile setter, mosaic or terrazzo worker.

‘‘This section shall be inserted in all subordinate

anions’ by-laws.’’ (Article XX, Sec. 6, Constitution

and Rules of Order.) (R. 39.)

— von

¢

A ‘‘practical tile setter’” is one who has served an ap-

I

prenticeship as provided by the union constitution and

by-laws. The above provision was asserted by the re-

spondents as being a pertinent issue in the case (R. 39,

66, 67, 77, 79). It was stated unequivocally that under no

cireymstances could they permit the members to wark

with Senn, because he was not a qualified craftsman. It

was not denied by appellant that he had not served the

appranticeship or received the training required by the

by-laws of the union, which apprenticeship and training

the union deemed necessary before one could be consid-

ered a qualified, skilled craftsman or a competent me-

chanie so as to permit union members to work with him.

As a matter of fact, counsel for the appellant stipulated

to this effect (R. 68).

With reference to this question the trial court made

findings of fact as follows:

‘16. That the plaintiff, by virtue of his status of

an employer and contractor, is not entitled to member-

ship in the defendant unions; that the Constitution

and Rules of the defendant unions require among

other things that a tile setter shall be a journeyman

tile setter who shall have acquired his practical expe-

rience by virtue of an apprenticeship, and that such

apprenticeship shall, among other things, consist of

service as an apprentice of not less than three years;

that the plaintiff has not served an apprenticeship as

a tile setter in accordance with the rules of the de-

fendant unions.’’

The Supreme Court of the State of Wisconsin, in affirm-

ing the decision of the trial court, said:

‘<@ © © The demand here by the unions is for the

appellant to conform to a definite wage scale prevalent

I hes

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 em-

ployer personally refrain from working with the ‘tools

of the trade is important and vital to the craftsmen

affliated 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 dur-

ing 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.’’ (Emphasis:

ours.)

It has been the consistent holding of the lower courts

that since labor unions have-the right to make ;ules gov-

erning their trade and for the benefit of their craft, they

have the right to set up qualifications for membership,

and they can make rules for the admission of new mem- -

bers and restrict the membership as may best promote

their interests. In adhering to apprenticeship qualifica-

tions the union is not arbitrary or capricious. The rules

relating to apprenticeship are the result of a long and

wide expérience in that particular field. The conclusion

drawn from this experience and knowledge was that cer-

tain training is necessary in order to fully qualify a man

to be a skilled mechanic. The work of practical tile setting -

requires a.high degree of skill. This skill can be aequired

| oe

only after many years of apprenticeship, training and

observation of the actual work of a competent craftsman.

We refer the Court to the testimony appearing at page

95 and pages 100 to 102 of the record. Apprenticeship

statutes and rules are the oldest recognized method of reg-

ulation contributing to the maintenance of fair wage stand-

ards. A three-year term of apprenticeship in any of the

skilled crafts in the building trades has been a requirement

for over half a century. Generally, the apprenticeship rule

has been recognized and enforced in England since 1688.

Webb, History of Trade Unionism, pages 42 and following.

In Mayer v. Journeymen Stone Cutters Union, 47 N. J.

Eq. 519, 20 Atl. 492, a case involving an action brought

by two individuals for membership in a union, it was said:

‘‘These organizations are formed for purposes

mutually agreed upon. Their right to make by-laws

and rules for the admission of members and the trans-

action of business is unquestionable. They may re-

quire such qualifications for membership and such

formalities for election as they choose. They may

restrict membership to original promoters or limit

the number to be thereafter admitted. The very idea

of such organizations is association mutually accept-

able, or in accordance with regulations agreed upon;

a power to require the admission of a person in any

way objectionable to the society is repugnant to the

scheme of its organization. While courts have inter-

fered to inquire into and restrain the action of such

societies in the attempted exclusion of persons who

have been regularly admitted to membership, no case

can, I think, be found where the power of any court

has been exercised, as sought in this case, to require

the admission of any person to original membership

in any such voluntary association. Courts exist to

protect rights, and where the right has once attached.

=

they will interfere to prevent its violation, but no

person has any abstract right to be admitted to such

membership; that depends solely upon the action of

the society, exercised in accordance with its regula-

tions, and until so admitted no right exists which

the courts can be called upon to protect or enforce.

‘These corsiderations result in the conclusion that

this court bas no jurisdiction to grant the relief

prayed for, and that the bill must be dismissed.’’

In the case of Snow v. Wheeler, 113 Mass. 179, the Court

quotes approvingly from the earlier case of Carew v. Ruth-

erford, 106 Mass. 1, 14, wherein it was said:

‘‘Every man has a right to determine what branch

of business he will pursue, and to make his own cea-

tracts with whom he pleases and on the best terms

he ecan..* * * He may refuse ta deal with any man

or class of men, and it is no crime for any number

of persons, without an unlawful object in view, to as-

sociate themselves tegether and agree that they will

not work for or deal with certain men or classes of

men, or work under a certain price, or withor. cer-

tain conditions.’”’

In the Snow case, supra, the Court further says:

‘‘In the case at bar there is no evidence offered by

the documents submitted to us that the purposes of

this association are unlawful by the rules stated. Un-

lawful coercion certainly does net appear to be in-

tended, and the right of the members to instruct

whom they choose in the nrysteries of their trade can-

not be denied.. The ease presented is not one where

there is evidence to justify us in finding that the ob-

jects and purposes of the association are fraudulently

and colorably declared as a cover for a secret unlaw-

— pee

ful agreement of its members. It will be time enongh

to dea] with such a case when it arises,’’

In the case of N. J. Painting Co. v. Local 26, 96 N. J.

Eq. 632, 126 Atl. 399, 47 A. L. R. 384, it was held that a

clause in the constitution of a labor union which provides

that ‘‘where there is a difference between the wage scale

of two cities, all members employed upon a job in one of

the tvo cities by an employer from the other * * ° shall

receive the higher of the two wage scales,’’ is not illegal as

creating an unfair discrimination or an unfair restraint

of trade. The Court held that such clause may be en-

forced by a voluntary combination since the prime object

of the rule is to establish a standard of wages.

As to the rights of an organization of laboring men to

strik@and picket because there are nonunion men working

on the job, or because the doing of certain work by cer-

tain men is in violation of union rules, there can be no

question. In Pickett v. Walsh, 192 Mass. 572, 78 N. E.

753, the Supreme Court of Massachusetts held that a com-

bination of workmen can refuse to work when the point-

ing of bricks is given to others than the menibers of the

organization who lay the bricks. The Court says that the

‘fact that the employers are forced to do what they do not

want to do is not decisive of the legality of the union’s

acts’’ and ‘‘the fact that the business of a plaintiff is de-

stroyed by the acts of the defendants done in pursuance of

their right of competition is not decisive of the legality

of the acts.

There is an abundance of cases in the lower federal and

state courts sustaining the right of organizations of work-

ingmen to strike or picket, or to do both, when the con-

ditions under which they work are inimicable to their

best interests. This is also true when they are requested

oni im

to work with men who are not members of their organiza-

tion or are not eligible for membership therein. The fol-

%. lowing are just a few of such cases:

Scott Stafford Opera House Co. v. Minneapolis Mu-

sicians Association, 118 Minn. 410, 136 N. W.

1092;

Empire Theatre Company v. Cloke, 53 Mont. 183,

163 Pac. 107;

Cohn & Roth Electric Co. v. Brick Layers, ons

and Plasterers Local Union, 92 Conn. 161, 101

Atl. 659; 3

Parkinson v. Building Trades Council, 154 Calif.

581, 90 Pac. 1027; :

Rhode Bros. v. Musicians Protective Union, 37 RK. I.

281, 92 Atl. 641;

National Fireproofing Company v. Mason Builders

Ass’n, 169 Fed. 259;

Wabash Railway Company v. Hanahan, 121 Fed.

163;

Purvis v. Local No. 500, 214 Pa. 348, 63 Atl. 585;

Kemp v. Amalgamated Ass’n of Street Railway Em-

‘ployes, 255 Ill. 241, 99 N. E. 388.

It thus can be readily seen that union rules and regula-

tions as to membership, and rules that its members shall.

not work with anyone who is not a‘‘‘practical craftsman”’

are not subject to review nor can relief be had therefrom

in any court of the United States. This is especially true

where, as in this case, the rule is promulgated on reason-

able grounds. The fact that appellant is not a ‘‘practical

craftsman’’ and therefore union men are not permitted to

work with such unqualified mechanic, are disabilities. dis-

tinctly personal to the appellant. According to the rules

and constitution of the respondent union the appellant was

disqualified to work with the tools of the trade in so far as

the union is concerned; and the union members were dis-

— yon

*

qualified from working with him as an employer since he

was not a skilled craftsman. In order, therefore, for ap-

pellant to secure a union contract he would be obliged to

agree not to work with the tools of the trade. If he per-

sists in working with the tools of the trade, thus refusing

to accede to the union request, it is within the rights of the

union to advertise to the world that he is a nonunion con-

tractor, and to engage in the acts which have always been

declared lawful and which are declared lawful under the

act. The failure to restrain those lawful acts in further-

ance of such dispute does not deprive the appellant of any

rights under the Constitution or laws of the United States

or the State of Wisconsin, regardless of the existence of

the Wisconsin Labor Code or similar enactments.

CONCLUSION.

It is respectfully submitted that the United States Su-

preme Court has no jurisdiction in this case, nor can it

allow this appeal for the purposes of reviewing the de-

cision of the Supreme Court of the State of Wisconsin,

because there is no federal question involved here. The

Wisconsin Labor Code is a_ jurisdictional enactment.

Within the proper exercise of the police power of the

State Legislature, the Code provides for a certain pro-

cedure to be taken in cases growing out of involving labor

disputes. Further than that, the federal question which

it is claimed is involved in this case has been decided

adversely to the appellant by this Court, and for that rea-

son it is no longer a substantial one. This Court cannot

éntertain jurisdiction for the further reason that the only

purposes for which such jurisdiction is invoked now is

to disturb the findings of fact made by the Wisconsin

inition

Supreme Court, which findings of fact are amply sup-

ported by the record: Under such findings, since it has

been determined that the acts complained of are peaceful

ones, and also determined that such acts are for the legiti-

mate purpose of furthering the interests of defendant

unions and not for the purpose of maliciously interfering

with the plaintiff’s rights, it is clear that the question has

been decided adversely by this Court in prior cases. Also,

this Court should not take jurisdiction in this matter be-

cause the refusal on the part of the defendants to enter

into a contract with the appellant is based on a rule of

the defendant unions that its members shall not work

with a person, be he employer or journeyman, who has

not served an apprenticeship, entitling him to be classed

as a ‘‘practical craftsman.’’ Rules of apprenticeship are

reasonable, and such rules and regulations are not subject *

to judicial interference.

Respectfully submitted,

JOSEPH A. PADWAY,

Attorney for Respondents.