Sigmon, Richard R.

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Maryland Law ReviewVolume 16 | Issue 4 Article 7State Labor Board Prevention of Violent UnionConduct, Even Though an Unfair Labor PracticeUnder NLRA - United Automobile, Aircraft andAgricultural Implement Workers of America v.Wisconsin Employment Relations Board andKohler Co.Richard R. SigmonFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Labor and Employment Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationRichard R. Sigmon, State Labor Board Prevention of Violent Union Conduct, Even Though an Unfair Labor Practice Under NLRA - UnitedAutomobile, Aircraft and Agricultural Implement Workers of America v. Wisconsin Employment Relations Board and Kohler Co., 16 Md. L.Rev. 344 (1956)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol16/iss4/7MARYLAND LAW REVIEWcases, thus preserving the vigor of the test for post-nuptialcases. Either would have been preferable to the decisionin this case which weakens a desirable presumption to avoida holding upon a widely discredited rule. Eighteen yearshave passed since the Lord Mansfield Rule was first at-tacked in this REVEw,47 and though the court has referredto the Rule in derogatory terms,4 s its pernicious effect hasbeen avoided, as in this case, by decreasing the quantum ofproof necessary to set it aside, a result which is not desir-able. Perhaps this case indicates that the Rule is too deeplyembedded in the law of this state to be readily overruled"and that remedial legislation" is necessary.RICHARU R. BuRGEEState Labor Board Prevention Of Violent UnionConduct, Even Though An Unfair LaborPractice Under NLRAUnited Automobile, Aircraft and Agricultural ImplementWorkers of America v. Wisconsin EmploymentRelations Board and Kohler Co.'Appellant union and appellee, Kohler Co., failed to reachan accord concerning a collective bargaining agreement.The company's production workers struck and picketedthe company premises. Ten days later the company filed acomplaint with the Wisconsin Employment Relations Board,charging the appellant union and others with unfair laborpractices under the state labor act.2 The complaint alleged"7Note, 3 Md. L. Rev. 79 (1938). The author, after discussing the LordMansfield Rule, made a strong bid to the courts of this state to limit orabolish it."The Court of Appeals in the Clark case, supra, n. 39, referring to therule, at page 368 said: "In 1777, Lord Mansfield was inspired - apparentlyby some brooding omnipresence in the sky - to declare that 'decency,morality and policy' required the law to be (such). . . ." Parentheticalmaterial supplied. Again, at page 369: "The Poulett Peerage case cited noauthority for its conclusion - it merely announced in certainties as Jovianas those of Lord Mansfield that the law was so.""7 WxoU0Ro, EVIDENCP (3rd ed. 1940) 367, Sec. 2063: "It may have be-come, in some jurisdictions, too deeply planted to be uprooted." Cited inHarward v. Harward, 173 Md. 339, 354, 196 A. 318 (1938).8D Legislation is recommended on the order of 9 U. L. A. Sec. 16, as setforth, supra, n. 10. For a caustic criticism of the Lord Mansfield Rule seeWO[roon, op. cit., ibid, Secs. 2063, 2064.176 S. Ct. 794 (1956).2 WiSC. STAT. (1953), Sec. 111 et seq.[VOL. XVI1956] AUTO WORKERS v. WISCONSIN BOARD 345that members of appellant union engaged in mass picketing,thereby obstructing entrance to and egress from the Kohlerplant; interfered with the free and uninterrupted use ofpublic ways; prevented persons desiring to be employedby Kohler from entering the plant; and coerced employeeswho desired to work, and threatened them and their fami-lies with physical injury. Finding the allegations true, theState Board ordered appellant union and certain of itsmembers to cease such activities. The order was enforcedwithout substantial change by a Wisconsin Circuit Court,whose decision was affirmed by the State Supreme Court.3On appeal, the question is presented whether or not a Statemay enjoin through its labor board acting under its laborstatute violent union conduct such as here which may alsobe an unfair labor practice under the National Labor Rela-tions Act, as amended." The Supreme Court, through Mr.Justice Reed, held the State could so enjoin. Mr. JusticeDouglas, with the Chief Justice and Mr. Justice Black con-curring, dissented.Although finding that the alleged conduct was a viola-tion of Section 8(b) (1) of the National Labor RelationsAct,5 so that the National Board might have issued an ordersimilar to that of the State Board, it seemed obvious to themajority of the Court that the Laburnam case' made it clearthat Section 8(b) (1) was not to be the exclusive methodof controlling violence. As further support for the non-exclusive nature of the Federal remedy, the majority re-ferred to Senator Taft's admission of concurrence of Stateand Federal remedies,7 which could not have referred solely8269 Wis. 578, 70 N. W. 2d 191 (1955).'29 U. S. C. A. (1956), Sec. 158(b)1.8 Ibid."(b) It shall be an unfair labor practice for a labor organization orits agents - (1) to restrain or coerce (A) employees in the exerciseof the rights guaranteed in section 157 .. "0 United Workers v. Laburnum Corp., 347 U. S. 656, 666-669 (1954).'Supra, n. 1, 798, quoting: 93 Cong. Rec. 4437 (1947) :"The Senator from Oregon a while ago said that the enactment ofthis proposed legislation will result in duplication of some of the Statelaws. It will duplicate some of the State laws only to the extent, asI see it, that actual violence is involved in the threat or in the operation."Mr. President, I may say further that one of the arguments hassuggested that in case this provision covered violence it duplicatedState law. I wish to point out that the provisions agreed to by thecommittee covering unfair labor practices on the part of labor unionsalso might duplicate to some extent that State law. Secondary boy-cotts, jurisdictional strikes, and so forth, may involve some violationof State law respecting violence which may be criminal, and so to someextent the measure may be duplicating the remedy existing underState law. But that, in my opinion, Is no valid argument."MARYLAND LAW REVIEWto state criminal law "since Allen-Bradley Local No. 1111,United Electrical Radio and Machine Workers of Americav. Wisconsin Employment Relations Board,' the leadingcase dealing with violence under this same Wisconsinstatute, was well known to Congress".9 Thus, though aState may not, in furtherance of its public policy, enjoinconduct "which has been made an 'unfair labor practice'under the federal statutes","0 the Court in the instant casestated that its post Taft-Hartley opinions "have made itclear that this general rule does not take from the Statespower to prevent mass picketing, violence, and overt threatsof violence"." Because the State's dominant interest inpreventing violence and property damage cannot be ques-tioned and since the States are the natural guardians of thepublic against violence, the Court refused to interpret anact of Congress as leaving the States powerless to avert thefear and loss occasioned by coercion and destruction with-out compelling directions to that effect.The dissenting Justices, favoring the Garner case's 2"duplication-of-remedies test", saw the majority decisionas a "retreat from Garner" which will "open the door tounseemly conflicts between state and federal agencies"."The dissent distinguished the Allen-Bradley case as beingdecided at a time when the Federal Act made no provisionfor enjoining union activity. Admitting that both State andFederal regulation of the same act may survive to the ex-tent of permitting State criminal sanctions and non-dupli-cating civil sanctions, the dissenting Justices saw the stateadministrative remedy here as reaching the same conductin the very same manner as the Federal administrativeremedy and therefore "a precise duplication of remedieswhich is pregnant with potentialities of clashes andconflicts". 4The problem of defining the area of exclusive Federaljurisdiction under the Labor Management Relations Act isa difficult one since the Act "leaves much to the states,though Congress has refrained from telling us how much".There has been created a "penumbral area [which] can berendered progressively clear only by the course of litiga-8315 U. S. 740, 748-749 (1942).9 Supra, n. 1, 799.10 Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 475 (1955).76 S. Ct. 794, 799 (1956)."Garner v. Teamsters Union, 346 U. S. 485 (1953).Supra, n. 11, 800."Ibid."Garner v. Teamsters Union, supra, n. 12, 488.[VOL. XVI1956] AUTO WORKERS v. WISCONSIN BOARD 347tion".1 The extent to which the "course of litigation" hasbrought clarity to this area has been the subject of recentarticles and comments." The decision of the Court inGarner v. Teamsters Union18 has been cited as "oust[ing]the state courts of all jurisdiction over peaceful picketing ' 11and deciding that state courts "were without power toenjoin picketing by a labor union in violation of both federaland state labor relations statutes"."Although the Court, in the Garner case, specificallyrecognized the state's "historic powers over such tradi-tionally local matters as public safety and order and the useof streets and highways",2' the language is sweeping withregard to the prohibition of duplicate state and federalremedies.2  The Laburnum case reiterated the "duplication-of-remedies" test and distinguished the Garner decisionon the basis of that test.2 3 Again, in Weber v. Anheuser-Busch, Inc.,2 4 the Court discussed the pertinence of both theGarner and Laburnum decisions in terms of duplicationof remedy.Whether one characterizes the majority opinion as hav-ing "wiped away a portion of the doctrine of 'preemption'and exclusiveness of the National Labor Relations Board'sjurisdiction in 'unfair labor practice' cases in which masspicketing and violence were present",2 5 or merely as havingpointed up a distinction which was implicit in prior de-cisions, it seems clear that the Court, if not "abandoningthe conflict-of-remedies argument that was given so muchweight in Garner",8 is at least stating a major qualificationof that argument in instances where the state interest inlaw and order is involved .2  The majority clearly refuses tooust the States from their power to enjoin mass picketingand violent union conduct, whether determination thereof10 Weber v. Anheuser-Busch, Inc., supra, n. 10, 480-481. Parentheticalmaterial supplied.11 Isaacson, Labor Relations Law: Federal versus State Jurisdiction, 42A. B. A. J. 415 (1956) ; Cox, Federalism in the Law of Labor Relations, 67Harv. L. Rev. 1297 (1954). See also notes, 53 Mich. L. Rev. 602 (1955);54 Mich. L. Rev. 540 (1956).Supra, n. 12.10 Note, 22 Geo. Wash. L. Rev. 770, 773 (1954).2* Note, 40 A. B. A. J. 145 (1954).21 Supra, n. 12, 488.Ibid, 488-491.mUnited Workers v. Laburnum Corp., 347 U. S. 656, 663-665 (1954).348 U. S. 468, 474-477 (1955).Note, 7 Labor Law Journal 599 (1956).'*Review of Supreme Court's Work, 25 L. W. 3025 (1956).07 Other cases dealing with state power to stop violence in labor relationscases include Automobile Workers v. O'Brien, 339 U. S. 454, 459 (1950)Auto Workers v. Wis. Board, 336 U. S. 245, 253 (1949).MARYLAND LAW REVIEWbe by state administrative board or the courts, "withoutcompelling directions to that effect" 2 from Congress, eventhough Congress has vested in the national board and thefederal courts power to exercise the same remedy.RICA2m R. SIGCONJoint Adventure Agreement Survives IncorporationDeBoy v. Harris4In 1948 A, B and C orally agreed to associate themselvesas joint adventurers in a business of furnishing warehousefacilities. They formed a corporation as an instrumentalityto carry out the joint enterprise. It was agreed that eachventurer was to have a fixed proportionate interest in theassets and to receive a fixed percentage of the profits.Shares in the corporation were issued according to theagreed interests of the parties: A, 28%, B, 52%, and C, 20%.By 1952 the venture had become quite successful, andit would appear that the net worth of the enterprise farexceeded the par value of the shares held by the jointadventurers. B and C removed A as an officer and directorin the corporation. By resolution of the board of directors,they recommended an increase in the authorized capitalstock of the corporation, and as stockholders, approved thenecessary charter amendment. New shares were laterissued to B and his nominees. A's pre-emptive right to pur-chase a proportionate share of the new issue, however, wasnot denied. A alleged that B's and C's purpose in causingthis additional issue of stock was to destroy his interest inthe enterprise since they knew that by offering such a largenumber of shares A would be financially unable to pur-chase enough of the shares to maintain his agreed propor-tionate interest.A brought suit at law for the breach of the joint adven-ture agreement to recover the damages he sustained bythe watering down of the interest allotted to him in theagreement. The lower court sustained a demurrer, and2876 S. Ct. 794, 799 - The argument (ibid, p. 796) "that a State Boardwill use this power to stop force and violence in order to further state laborpolicy, thus creating a conflict with the federal policy as developed by theNational Labor Relations Board" did not impress the majority as beingsufficient to oust historic state police power, absent more explicit directionsfrom Congress.1207 Md. 212, 113 A. 2d 903 (1955).[VOL. XVI

State Labor Board Prevention of Violent Union Conduct, Even Though an Unfair Labor Practice Under NLRA - United Automobile, Aircraft and Agricultural Implement Workers of America v. Wisconsin Employment Relations Board and Kohler Co.

State Labor Board Prevention of Violent Union Conduct, Even Though an Unfair Labor Practice Under NLRA - United Automobile, Aircraft and Agricultural Implement Workers of America v. Wisconsin Employment Relations Board and Kohler Co.

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