Opinion
May 31, 1955 —
June 28, 1955.
APPEAL from an order of the circuit court for Waukesha county: ALLEN D. YOUNG, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by William F. Quick of Milwaukee.
For the respondents there was a brief and oral argument by William G. Callow, city attorney, for the city of Waukesha, and by A. J. Palasz of Milwaukee for Martin Ristow.
Upon an order to show cause why appellant union should not be restrained from picketing the site where respondent city was constructing a swimming pool, the circuit court enjoined the picketing. The union appeals.
Respondent city took bids for the construction of a municipal swimming pool and let the contract for the required plumbing to respondent Ristow, who was the low bidder for that work. Thereafter the business agent of the union appeared before the city's "park board" and stated that Ristow's employees did not belong to an A. F. of L. union and for that reason he requested the park board, — or the city, — to cancel the contract with Ristow. In response to a question the business agent said that there would probably be some trouble at the pool unless the Ristow contract was canceled. The city did not cancel Ristow's contract and the business agent ordered pickets to patrol the jobsite. Thereupon the employees of the other contractors engaged in building the pool, — all of whom belonged to A. F. of L. unions, — walked off the job and did not return until the pickets were removed.
There is no contention that there was any disorder or physical coercion due to the picketing or that the information publicized by the pickets was untrue. It is undisputed that there was no controversy between Ristow and any of his employees.
The trial court found as a fact and as a conclusion of law that no labor dispute exists between the defendant and any employees of the plaintiffs and that the picketing is illegal and in violation of sec. 103.535, Stats. Accordingly, the court enjoined such picketing.
The parties agree that the only issue concerns the constitutionality of sec. 103.535, Stats., as applied to the foregoing facts. The pertinent statutes are:
"103.535 UNLAWFUL CONDUCT IN LABOR CONTROVERSIES. It shall be unlawful for any one to picket, or induce others to picket, the establishment, employees, supply or delivery vehicles, or customers of anyone engaged in business, or to interfere with his business, or interfere with any person or persons desiring to transact or transacting business with him, when no labor dispute, as defined in subsection (3) of section 103.62, exists between such employer and his employees or their representatives."
"103.62(3) The term `labor dispute' means any controversy between an employer and the majority of his employees in a collective-bargaining unit concerning the right or process or details of collective bargaining or the designation of representatives. Any organization with which either the employer or such majority is affiliated may be considered a party to the labor dispute. The provisions of this subsection shall supersede any provision of the statutes in conflict therewith."
The record makes it clear that there was no labor dispute as defined by statute and, therefore, picketing the jobsite violated sec. 103.535, Stats. The injunction must be upheld if that statute is constitutional. But we are precluded from finding it constitutional by the decision of American Federation of Labor v. Swing (1941), 312 U.S. 321, 61 Sup.Ct. 568, 85 L.Ed. 855, discussed more fully in Vogt, Inc., v. International Brotherhood, (1955), ante, p. 315, 71 N.W.2d 359, determined at this session.
Respondents suggest in argument that the picketing was in aid of an illegal purpose, to wit, interference with a contract legally entered into between the city and Ristow, and might be enjoined for that reason. The parties asked for no finding concerning the purpose of the picketing and the trial court made none. We determine the cause on the sole issue presented to the trial court and declared to us in the statement of "question involved" appearing in both briefs.
By the Court. — Order reversed, and cause remanded with directions to dissolve the injunction.
MARTIN, J., dissents.