I agree with the proposition discussed in the opinion of the court that Local 471 remained the bargaining agent of the employees of Lakeside until its agency was terminated by an election by the employees of another agent or withdrawn by some other affirmative action of a majority of the employees, but do not agree with the effect given to it. Although the proposition is correct the order of the State Board should nevertheless be affirmed, except par. (d) of div. 1 thereof. The substance of the order is stated in the margin.1 *Page 304
The sole ground given in the opinion of the court is that the legend on the banner displayed by the picketers of Lakeside was "literally true." That this does not save picketing banned by a constitutional state statute is held in Carpenters Joiners Union of America v. Ritter's Cafe, 315 U.S. 722,62 Sup. Ct. 807, 86 L. Ed. 1142. The instant picketing is banned by provisions of the Wisconsin Employment Relations Act that were held valid by this court in the Golden Guernsey Case (Wisconsin E. R. Board v. Milk, etc., Union),238 Wis. 379, 299 N.W. 31. The supreme court oncertiorari refused to take jurisdiction of the Golden GuernseyCase, from which it would seem that they found nothing erroneous in our decision of it. Many of the matters here involved were directly there involved also. In that case, as here, there was involved mass picketing; interference with delivery of materials; engaging in a secondary boycott; and attempting to induce the employer to enter into an all-union agreement when three fourths of the employees had not voted therefor.
The existence of the matters above mentioned was held in the Golden Guernsey Case, supra, to render valid the order of the State Board in that case. All of the decisions of the supreme court here relied on by the respondents were relied on by the defendants in the Golden Guernsey Case, and it would seem that that case settled the validity of the instant order, unless subsequent decisions of the United States supreme *Page 305 court require recession from the position there taken. Two such cases deal with labor relations. One of these isCarpenters Joiners Union v. Ritter's Cafe, supra. That case involved a Texas statute restricting picketing "to the area of the industry within which a labor dispute arises." Ritter's care was unionized, and no labor dispute existed between the employer and his employees or the Restaurant Employees' Union to which the employees belonged. Ritter was constructing a building some distance away from the care under a contract with Plaster that left to Plaster the employment of the labor used in the construction. Plaster employed nonunion labor. A carpenters' union picketed the care and the pickets carried a sign reading "This place is unfair to . . . [naming a carpenters' union and a painters' union]," which was afterwards changed to read "The owner of this care has awarded a contract to erect a building to W.A. Plaster who is unfair to . . . [the two unions above indicated]." The purpose of the picketing was to compel Ritter to require Plaster to employ only members of the two unions indicated in the construction of the building. The union to which the employees of the care belonged called Ritter's employees out on a strike as a result of the picketing and withdrew the union card of the care, and union truck drivers refused to cross the picket line to deliver food and other supplies. The effect of all this was "to prevent members of all trade unions from patronizing" the care and "to erect a barrier around plaintiff's care, across which no member of defendants' [the picketing] union or its affiliates would go," and to decrease the cafe's patronage sixty per cent. 62 Sup. Ct. 808. The defense was that the statute involved was void as prohibiting free speech. The state court granted an injunction restraining the picketing and the strike. The supreme court of the United States affirmed the judgment. In its opinion the United States supreme court used the following language which fully supports the validity of the provisions of pars. (f) and (g) of sub. (2) *Page 306 and par. (c) of sub. (1) of sec. 111.06, Stats., under which the State Board's order was held valid in the Golden GuernseyCase, supra, and the instant order is valid. See opinion of the case as reported in Supreme Court Reporter, supra, at pages 809 and 810:
"The right of the state to determine whether the common interest is best served by imposing some restrictions upon the use of weapons for inflicting economic injury in the struggle of conflicting industrial forces has not previously been doubted. . . ." The "circumstance that a labor dispute is the occasion of exercising freedom of expression does not give that freedom any greater constitutional sanction [than it would otherwise have] or render it completely inviolable. Where, as here, claims on behalf of free speech are met with claims on behalf of the authority of the state to impose reasonable regulations for the protection of the community as a whole, the duty of this court is plain."
"While the right of free speech is embodied in the liberty safeguarded by the due-process clause, that clause postulates the authority of the states to translate into law local policies to promote the health, safety, morals, and general welfare of its people. . . . The limits of this sovereign power must always be determined with appropriate regard to the particular subject of its exercise.'"
"It is true that by peaceful picketing workingmen communicate their grievances. As a means of communicating the facts of a labor dispute, peaceful picketing may be a phase of the constitutional right of free utterance. But recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power to confine the sphere of communication to that directly relating to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the states the power to draw this line is to write into the constitution the notion that every instance of peaceful picketing — anywhere and under any circumstances — is necessarily a phase of the controversy which provoked the picketing. Such a view of the due-process clause would compel the states to allow the disputants *Page 307 in a particular industrial episode to conscript neutrals having no relation to either the dispute or the industry in which it arose."
"We must be mindful that `the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist. This is but an instant of the power of the state to set the limits of permissible contest open to industrial combatants.'"
Four justices of the United States supreme court dissent in the Ritter's Cafe Case, supra, but the above quotations declare the law as it presently is and it is for this court to follow that law.
The other case referred to decided since our GoldenGuernsey Case, supra, was decided is Bakery Pastry Drivers,etc., v. Wohl, 315 U.S. 769, 62 Sup. Ct. 816,86 L. Ed. 1178. In that case a decision of the New York state courts upheld an injunction under a state statute defining a labor dispute. The ground on which the injunction was granted was that no labor dispute was involved under that definition. The supreme court of the United States reversed the state decision on the ground that the state could not merely by defining a labor dispute, deprive the plaintiff union of its constitutional right of free speech. The plaintiffs were not violating any state statute or doing any other unlawful act. The supreme court's decision expressly recognizes that "a state is not required to tolerate in all places and at all circumstances even peaceful picketing by an individual, notwithstanding the guaranty by the Fourteenth amendment of the right to `free speech.'" 2 Syllabus of the case. This decision does not affect the validity of the order herein involved.
It would seem that the above is sufficient to justify the instant order of the board without further discussion, but it will perhaps clarify this opinion to state the general principles upon which it is based. Picketing may not be engaged in *Page 308 when it is unlawful, and whatever is violative of a statute is unlawful, unless the statute is unconstitutional or invalid for some other reason. No ground of invalidity of par. (f), (g), or (c) of the statutes instantly involved is claimed, except that they violate the free-speech provision of the United States constitution. The rights protected by the free-speech provision are not absolute. They may be restricted so far as may be reasonably necessary or reasonably adapted to promote the general welfare. The respondents concede that picketing may be restricted so far as necessary or reasonably adapted to restrain violence. This is so because the use of violence is unlawful. Likewise like restraint may be imposed by the state against picketing when for any other reason it is unlawful. Such in effect is the ruling in American Furn. Co. v. I. B. ofT.C. H. of A., etc., 222 Wis. 338, 367,268 N.W. 250, wherein it is said that the terms of a statute cannot be stretched to permit a union to enforce by picketing demands which an employer may not lawfully accede to it. The underlying reason of this statement is that such picketing is unlawful. The defendant union could not lawfully picket to compel the instant employer to enter into an all-union contract because three fourths of its employees had not voted for such a contract, and it would be unlawful for the employer to enter into such contract; for it would be unlawful for him to do so under par. (c) of sec. 111.06 (1), Stats., reading as follows:
"(c) To encourage or discourage membership in any labor organization, employee agency, committee, association or representation plan by discrimination in regard to hiring, tenure or other terms or conditions of employment; provided, that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employees in a collective-bargaining unit, where three-quarters or more of the employees in such collective-bargaining unit shall have voted affirmatively by secret ballot in favor of such all-union agreement in a referendum conducted by the board. . . ." *Page 309
Nor could the defendant union lawfully picket to prevent delivery of materials to Lakeside required for the performance of its contracts, especially its contracts with the United States government for articles required for naval construction; nor could it picket when the picketing created a secondary boycott. All such picketing is banned by pars. (f) and (g) of sec. 111.06 (2), Stats., which read:
"(2) (f) To hinder or prevent, by mass picketing, threats, intimidation, force or coercion of any kind the pursuit of any lawful work or employment or to obstruct or interfere with entrance to or egress from any place of employment, or to construct or interfere with the free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance.
"(g) To engage in a secondary boycott; or to hinder or prevent, by threats, intimidation, force, coercion or sabotage, the obtaining, use or disposition of materials, equipment or services; or to combine or conspire to hinder or prevent, by any means whatsoever, the obtaining, use or disposition of materials, equipment or services, provided, however, that nothing herein shall prevent sympathetic strikes in support of those in similar occupations working for other employers in the same craft."
While pars. (f) and (g) of (2) and par. (c) of (1) by the opening clause of sec. 111.06, Stats., run against employers and employees and those acting with them, sub. (3) of the statute bars any person doing or causing to be done anything prohibited by par. (c), (f), or (g) "in connection with or to influence the outcome of any controversy as to employment relations." That the picketing involved accomplished the prohibited things next above specified covered by pars. (c), (f), and (g) was found by the State Board and is without dispute.
As to the claim that doing these things violates the defendants' rights of free speech, they do not violate those rights the statute itself does not violate them. No statute is void *Page 310 as violative of the free-speech constitutional provision where there is a balancing of the considerations for the protection of public welfare against those for the protection of free speech, and there is reasonable ground for judging that the former overbalance the latter. This is expressly recognized in the Ritter Cafe decision, supra, and is in effect held in the Meadowmoor Dairies Case, 312 U.S. 287,61 Sup. Ct. 552, 85 L. Ed. 836. There was such a balancing of considerations by the legislature in enacting the Employment Relations Act. Sec. 111.01 (4) of the act declares:
"It is the policy of the state, in order to preserve and promote the interests of the public, the employee, and the employer alike, to establish standards of fair conduct in employment relations and to provide a convenient, expeditious and impartial tribunal by which these interests may have their respective rights and obligations adjudicated . . . ."
The supreme court of the United States has no more lawful right or power to override that legislative judgment in enacting the instant act than it had to override the state legislatures in the Meadowmoor and Ritter Cafe Cases, supra. But may be that for trivial or unimportant considerations it might be held unconstitutional to apply the statute to ban picketing. The act of the defendants in stopping the construction of a building deemed by the government necessary to provide for the manufacture of articles for the navy for use in the common defense, or in stopping the construction of a fence deemed by the government necessary for the protection of the Lakeside plant to enable Lakeside to properly perform its contract for naval construction, certainly cannot be held not unreasonably to overbalance the exercise of the defendants' claimed right of free speech to compel unionization of the Lakeside plant. The considerations for protection of the public welfare in the respect stated most certainly overbalance the right of the defendants' free speech, and that right was properly restricted by the State Board. The facts that the *Page 311 Lakeside was engaged in performing naval construction contracts, and that the building and fence above mentioned were being erected for the purpose stated, are not mentioned in the statement of facts preceding the opinion of the majority or in the opinion, but the State Board so found, and the evidence supporting the finding is without dispute.
For the reasons above stated, the judgment of the circuit court should be reversed with directions to modify the order of the State Board as indicated in this opinion and affirm it as modified.
1 The material parts of the order of the State Board instantly involved and some comments in connection are here given — The defendants shall: 1. Immediately cease and desist from (a) Engaging in promoting or inducing picketing of the Lakeside plant or any place where Lakeside is manufacturing products or where its products are being installed by others. (b) Attempting to hinder or prevent, or hindering or preventing, by threats, intimidation or coercion of any kind the pursuit of lawful work by employees of Lakeside or by employees of those with whom it is having business relations. Comment: There is no evidence of coercion or attempts to coerce employees of Lakeside, but the provision as relating to them if uncalled for is not prejudicial. (c) Attempting to hinder or prevent, or hindering or preventing, by threats, intimidation or coercion of any kind, the pursuit of lawful work by employees of Lakeside, or employees of those having or attempting to have business relations with Lakeside. Comment: The ban against boycotting Lakeside should be omitted, but the remainder is proper under the statute as it bans a secondary boycott. (d) Attempting to induce Lakeside to bargain collectively with Local 471. Comment: This provision is invalid. (e) Attempting to induce Lakeside by any means whatever to agree to specific terms in a collective-bargaining contract, the performance of which would be an unfair labor practice. Comment: The provision might better specifically limit the ban to attempts to induce an all-union contract, but the general terms are not prejudicial. (f) Engaging in a secondary boycott against employers performing contracts with Lakeside or supplying materials or making deliveries to it by refusing to furnish labor or service to such employers.