Opinion
January 11, 1956 —
February 7, 1956.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed in part; reversed in part.
For the appellants there was a brief by Warne, Duffy Dewane of Green Bay, and oral argument by Lloyd O. Warne.
For the respondent there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and Beatrice Lampert, assistant attorney general, and oral argument by Mrs. Lampert.
For the complainant Archie McMaster there was a brief by Welsh, Trowbridge, Wilmer Bills, and oral argument by Lloyd J. Planert, all of Green Bay.
Petition by the Wisconsin Employment Relations Board (hereinafter referred to as "W. E. R. B.") to the circuit court for a judgment enforcing an order of W. E. R. B. against journeymen Barbers, Hairdressers, Cosmetologists, Proprietors International Union of America (hereinafter referred to as the "barbers union," or simply the "union"); Local No. 115 of said barbers union; Guild No. 27 of said barbers union; John Billie (international representative of the union); and Louis Bellin (secretary of Local No. 115). The union, the local, the guild, Billie, and Bellin will hereinafter be referred to collectively as the "defendants." These defendants instituted a separate action under the Wisconsin Administrative Procedure Act (ch. 227, Stats.) in the same court for review of said W. E. R. B. order.
This is a companion case to Wisconsin E. R. Board v. Journeymen Barbers, ante, p. 84, 74 N.W.2d 815, and has the same procedural history.
The proceedings before W. E. R. B. were instituted by a complaint charging the defendants with unfair labor practices filed by Archie McMaster, the proprietor of a barbershop in the city of Green Bay. McMaster resigned from Guild No. 27 on December 29, 1953, and on February 17, 1954, the defendant Billie, representing the union, entered McMaster's shop and removed the union-shop card previously on display there.
On August 1, 1952, McMaster had entered into a collective-bargaining agreement with the union which continued in effect at all times material to the issues of the present case, and he has complied with the terms of such agreement. However, the conditions governing the continued display of the union-shop card were not covered in this collective-bargaining agreement but were printed on the back of the shop card and also set forth in a separate contract. Such conditions were identical with those in Wisconsin E. R. Board v. Journeymen Barbers, supra.
At the time of such removal of the union-shop card, McMaster had but one employee working for him, William Device, who was a member of the defendant local. When the defendant Billie removed the union-shop card he told Device, "You can work here as long as you want, but the card must go." However, ten days later on February 27, 1954, Device terminated his employment with McMaster and stated to the latter that he was quitting because the union wanted him so to do inasmuch as McMaster no longer had a union-shop card. Device gave contradictory testimony as to why he quit in that he testified that his act of quitting was voluntary on his part, but also that he knew, when the union-shop card was removed, that he either "had to quit him [McMaster] or quit the union."
W. E. R. B. made a specific finding of fact that Device quit working for McMaster because of the provision contained in sec. 3, art. VII of the union's constitution, by the terms of which he was subject to suspension from the union and other penalties if he continued to work in a barbershop which did not display the union-shop card. The material portions of the conclusions of law, and the order to cease and desist and to return the union-shop card to McMaster, entered by W. E. R. B. were practically identical with those entered in Wisconsin E. R. Board v. Journeymen Barbers, supra, in the proceedings in which Leland J. Le Mieux was complainant.
The defendants appeal from the judgment of the circuit court enforcing such order and dismissing the action for review instituted by the defendants.
The issue with respect to those portions of the W. E. R. B. order, and of the enforcing judgment of the circuit court, which deal with the union-shop card is ruled by Wisconsin E. R. Board v. Journeymen Barbers, ante, p. 84, 74 N.W.2d 815. However, unlike in that case, we have here a specific finding by W. E. R. B. that the employee Device quit his employment with McMaster because of the provision in the constitution of the barbers union, which subjected him to suspension and penalties if he continued to work in a barbershop where the union-shop card was not displayed. Inasmuch as there is credible evidence to sustain such finding, a court on review cannot disturb the same.
It would appear to be clear that any enforcement of such provision in the union's constitution under the facts of the instant case would constitute coercion exercised against the employer McMaster to compel him to rejoin Guild No. 27. Such coercion constitutes a violation of sec. 111.06 (2) (m), Stats. No constitutional question of freedom of speech is involved as to such issue. In fact, counsel for the defendants conceded in the oral argument that such provision of the union constitution (sec. 3, art. VII) would violate this statute, and stated that because of this the union was not attempting to enforce it in Wisconsin.
We conclude that the portion of the W. E. R. B. order, which restrained the defendants from enforcing the provisions of sec. 3, art. VII of its constitution, is supported by the findings and was properly entered. Therefore, that part of the judgment enforcing the same must be affirmed. Such provision of the judgment so affirmed adjudges that the defendants cease and desist from "enforcing or attempting to enforce any provisions of the constitution governing the affairs of Journeymen Barbers, Hairdressers, Cosmetologists Proprietors International Union of America, Local Union No. 115, Journeymen Barbers, Hairdressers, Cosmetologists Proprietors International Union of America, and Local Guild No. 27, journeymen Barbers, Hairdressers, Cosmetologists Proprietors International Union of America, providing for the suspension and of the imposition of penalties against any members of said labor organization who seek employment with, or who are now employed by Archie McMaster."
By the Court. — That portion of the judgment described in the last sentence of the opinion is affirmed; all the remaining portions of the judgment, except the preliminary recitals, are reversed; and the cause is remanded with directions to enter a judgment in the action for review instituted by the defendants setting aside all portions of the W. E. R. B. order dated October 29, 1954, which are inconsistent with the opinion and this mandate.