(dissenting). Under the recent decisions of the United States supreme court in such cases as Local Union No. 10 v. Graham (1953), 345 U. S. 192, 73 Sup. Ct. 585, 97 L. Ed. 946, Giboney v. Empire Storage & Ice Co. (1949), 336 U. S. 490, 69 Sup. Ct. 684, 93 L. Ed. 834, and Building Service Union v. Gazzam (1950), 339 U. S. 532, 70 Sup. Ct. 784, 94 L. Ed. 1045, it is clear that state courts may enjoin peaceful picketing where such picketing is for an unlawful purpose as established by state statute, or court decisions ; and, that the issue of such an injunction does not raise any question under the Fourteenth amendment to the United States constitution.
The question of whether the findings of the Wisconsin Employment Relations Board are supported by substantial evidence in view of the entire record under sec. 227.20, Stats., of our Uniform Administrative Procedure Act is not the only question, as I view it, before us on this appeal. Such is the question with respect to the finding of the board that the *201peaceful picketing on the part of the defendants violated sec. 111.06 (2) (b) as being for the unlawful purpose of attempting to coerce and induce the employer to interfere with the right of its employees to refrain from affiliation with the defendant union.
However, with respect to the other finding of the board, that the peaceful picketing was for the unlawful purpose of “attempting to coerce and intimidate the employees of Block Brothers Company in the enjoyment of their legal rights to refrain from affiliation with the” defendant union, there is presented the question of whether such peaceful picketing in the instant case constituted a violation of sec. 1J 1.06 (2) (a), Stats.
To persuade nonunion employees to join the union is not to persuade them to violate any law. The fact that the union had lost the election conducted by the board did not preclude it from continuing its efforts to organize the employees of Block Brothers Company. Therefore the real issue as to this aspect of the case is whether peaceful picketing of a place of employment constitutes coercion or intimidation so far as employees who work there are concerned. I do not believe that it does. It is significant that sec. 111.06 (2) (a), Stats., specifically prohibits the picketing of a domicile of an employee, but is silent about picketing the place of employment. If it is assumed that the peaceful picketing in the instant case would have the effect of diverting patronage from the store' of Block Brothers Company to other stores in Kenosha having collective-bargaining agreements with the union, such effect is too indirect and remote to constitute coercion of the employees working in Block Brothers Company store.
I am satisfied that the legislature, when it used the terms “coerce or intimidate an employee in the enjoyment of his legal rights” in sec. 111.06 (2) (a), Stats., had in mind the employment of more forceful means than merely peaceful picketing of the employer’s premises.
*202However, peaceful picketing of an employer’s place of business may be coercive so far as the employer is concerned. It is well known that many members of unions will refuse to patronize any business establishment which is being picketed by a union so that, in so far as the owner of such an establishment is concerned, the picketing does carry with it a direct application of economic pressure. If there was any substantial evidence in view of the entire record to support the board’s finding, that the picketing in this instance was for the unlawful purpose to “coerce, intimidate, or induce” Block Brothers Company to interfere with the free right of its employees to “refrain from affiliation with or representation by” the defendant union, the order of the board, as enforced by the judgment of the trial court, would have to be affirmed.
The majority opinion relies on two pieces of evidence as sustaining the board’s finding with respect to such unlawful purpose. The first is the statement of Whiteside in the publication “The Kenosha Labor” to the effect that the picketing would continue intermittently “until the employees join Local 526and the demand which the union made upon the Block Brothers Company that it sign a contract with the union prior to the holding of the election by the board on November 16, 1951.
Whiteside’s statement in the labor newspaper is evidence which tends to support the finding of the board with respect to the union’s purpose of inducing, the employees to join the union but contains no intimation that the picketing was for the purpose of forcing Block Brothers Company to do anything. If it has any probative effect on the issue of the union’s purpose to coerce the employer into acting illegally, it is to negative such intent.
This leaves as the only evidence bearing on the finding of unlawful purpose to coerce the employer into interfering with the right of its employees to refrain from joining the union, or being represented by it, the demand made by the union *203upon Block Brothers Company on October 22, 1951, that it enter into a contract with the union, which demand preceded the union’s petition to the board for an election dated October 24, 1951.
I cannot agree with the majority opinion that the making of such demand evidenced any intent of unlawful purpose on the part of the union. In fact, such a demand is followed as a matter of course in the procedure utilized by all unions in attempting to establish collective bargaining with an employer. The first step is to secure signed applications for membership from the employee group. The second step is the making of the demand upon the company that it recognize the union and enter into a contract with it. Such a demand is usually made when the union thinks it has obtained sufficient membership applications that it may be successful in securing a majority vote of the employees designating the union as their collective-bargaining agent in an official election conducted under the auspices of the - appropriate governmental agency. In Wisconsin such agency is either the Wisconsin Employment Relations Board or the National Labor Relations Board, depending on whether the employer is engaged in interstate commerce or not.
In making such demand for recognition upon the employer the union anticipates that the usual reaction of the employer will be to refuse the demand to enter into a contract or begin collective-bargaining negotiations until the appropriate governmental, agency has conducted such an election among the employees, unless the union has been so successful in its organizational efforts that it is able to present convincing evidence to the employer that it does have signed application cards from a majority of the employees. In other words, the demand upon the employer to enter into a contract, or recognize the union as the collective-bargaining agent of the employees, is but a preliminary and necessary step in obtaining an election. Upon the employer’s refusal to the demand, *204the union then petitions the proper governmental agency to conduct such election.
In case the application for election is to the National Labor Relations Board it conducts a preliminary investigation to ascertain whether the union has sufficient signed membership applications to indicate that there is a sufficient probability that the employees will select the union to represent them if an election is conducted. The National Labor Relations Board has adopted a policy that if the union has signed membership applications from at least 30 per cent of the employees, this is sufficient evidence to warrant ordering an election; and if there is less than such percentage, there is insufficient union interest among the employees to justify ordering an election. 1 C. C. H., Labor Law Reporter (4th ed.), p. 1148, par. 1110.17. This rule is founded upon the experience of the National Labor Relations Board gained from the many thousands of elections it has conducted among employees. Such experience has demonstrated that if a union has signed membership applications from 30 per cent of the employees it is probable that a majority of the employees will vote in favor of the union as their collective-bargaining agent in the election. Such elections are secret and employees who have refused to sign union-membership applications will often vote in favor of the union as their collective-bargaining agent in such secret elections upon the theory that the union may be able to gain some advantage from the employer for the employees in the way of increased compensation, better working conditions, insurance or pension benefits, etc.
The official form of petition prescribed by the National Labor Relations Board for use by a union for certification (as the result of an election) requires, as one of the necessary allegations to be contained in such petition, “a statement that the employer declines to recognize the petitioner [the union] as the representative [of the employees as their collective-bargaining agent].” 1 C. C. H., Labor Law Reporter *205(4thed.),pp. 1188, 1189, par. 1115.53. Therefore a demand upon the employer for recognition is a virtual necessity in order for a union to secure an election under the auspices of the National Labor Relations Board.
The Wisconsin Employment Relations Board’s form of petition for election does not require such an allegation but it is common knowledge that steps for collective bargaining take no different course in Wisconsin where the election follows under the proper auspices of the Wisconsin Employment Relations Board than it does where interstate commerce is involved and the National Labor Relations Board has jurisdiction. Therefore in the instant case, when the union made its demand upon the Block Brothers Company for a contract it was but pursuing the generally accepted mode of procedure employed in all union organizational efforts leading up to the securing of an election among the employees to determine whether they desire the union as their collective-bargaining agent regardless of whether such election falls under the jurisdiction of the Wisconsin Employment Relations Board or the National Labor Relations Board. The union did follow through and immediately request an election from the Wisconsin Employment Relations Board upon such demand being refused by the employer, which election was held resulting in eight employees voting in favor of the union as their collective-bargaining agent, and thirteen against.
The majority opinion states, “It is conceded, as it must be, that Whiteside represented none of the employees” (referring to October 22, 1951, when Whiteside in behalf of the union made the demand for recognition upon the employer). There is no evidence in the record bearing directly on the question of whether the union had any signed membership applications from employees of Block Brothers Company at that time. However, it is difficult to imagine an apparently able union representative, such as Whiteside, making such a request without then representing some of the employees, *206because the union followed such demand by immediately petitioning the Wisconsin Employment Relations Board for an election.
A demand for recognition made by a union in order to secure an election conducted by the appropriate governmental agency is, in-my opinion, no evidence whatever of any intent on the part of the union that it will apply unlawful pressure upon the employer after the election to induce the employer to interfere with the right of its employees in refraining from joining the union. This is especially true in the instant case where the election was held in November and the picketing did not commence until the following April.
As previously mentioned, without resort to such original demand upon the employer to enter into a contract with the union, there is no evidence whatever in the record to sustain the finding of the board with respect to the unlawful purpose of inducing the employer to interfere with the free right of its employees to join the union or to refrain from so doing. The peaceful picketing could either be for a lawful or an unlawful purpose, and the surrounding circumstances were not such as to cause the reasonable probabilities to favor one inference over the other. If there is any presumption at all arising under such equivocal circumstances it is against the picketing being for an unlawful purpose. Certainly the board should not be permitted to speculate in inferring such unlawful purpose where the burden of proof rested on the complainant employer to establish that the picketing was for an unlawful purpose. There may be fact situations where peaceful picketing may be conducted under circumstances where the overwhelming probabilities point to it being for an unlawful purpose without any direct evidence of unlawful intent being present, but this is not such a case.
For the foregoing reasons I believe that the judgment of the trial court should be reversed and the cause remanded to set aside the order of the board.