Pfankuch, William S.

English

Marquette University Law School

Marquette Law ReviewVolume 34Issue 1 Summer 1950 Article 12Labor Law - Financial Contribution by Employerto Union as Unfair Labor PracticeWilliam S. PfankuchFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationWilliam S. Pfankuch, Labor Law - Financial Contribution by Employer to Union as Unfair Labor Practice, 34 Marq. L. Rev. 45 (1950).Available at: http://scholarship.law.marquette.edu/mulr/vol34/iss1/12RECENT DECISIONSson unless an emergency exists which makes the curtailment of theright necessary, or unless he is so acting that he is violating the rightsof others, or gives indication that he will violate the rights of others,or that he is breaking or will break some valid law.In the instant case there was no showing of an emergency, nor wasthere any showing that the defendants were violating the rights ofothers or that they were violating any valid laws. Therefore it is theopinion of the writer that the ordanance in the instant case is not a validexercise of the police power because it violates the right of the individ-ual to move about freely without interrogation by police as to his pur-pose when conducting himself in an orderly manner, without violatingthe rights of others, or violating any valid law.EMIL SE3ETICLabor Law -Financial Contribution by Employer to Union as Un-fair Labor Practice - In the midst of negotiations for a new contractbetween the defendant union and the employer, the proprietor of asmall beauty shop employing four employees, the defendant demandedthat the employer join the union as a non-voting or non-active member.When he refused to do so the defendant began peacefully to picket hisplace of business, whereupon the employer applied to the WisconsinEmployment Relations Board for relief. The Board found the defen-dant guilty of an unfair labor practice under the Wisconsin EmploymentPeace Act and instituted the present suit for an injunction to enforcetheir order that the union cease picketing. Held: Section 111.06(1) (b),Wisconsin Statutes, defines as an unfair labor practice employer contri-bution of financial support to any labor organization, and though itis true that the term "financial support" is much broader than themere payment of dues and includes financial support of any kind, italso includes the payment of dues. Picketing an employer to compelhim to do that which the law prohibits him from doing is not con-stitutionally protected free speech and may be enjoined. WisconsinEmployment Relations Board v. Journeymen Barbers Union, 256 Wis.77, 39 N. W. (2d) 725 (1949).In Senn v. Tile Layers Protective Union: the United States Su-preme Court held that there is no absolute federal constitutional rightof an individual to work with his hands, and that a state statute mightauthorize or permit the union to picket his shop to make him stop doingso in order to spread employment of union members. And in CafeteriaEmployees Union v. Angelos2 they determined that a state court may1 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229 (1937).2320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58 (1943).1901oMARQUETTE LAW REVIEWnot enjoin a union from picketing to coerce the owners of a cafeteriaemploying no help to join the union.3 Since the decision in the Angeloscase there have been various and conflicting state court decisionson almost identical fact situations,4 and at least two courts 5. pointedout that the "union"' was not really a union at all but merely an asso-ciation of proprietors of one man businesses trying to force their hoursand prices on others, an objective outweighed by the public interest infree competition.If there is confusion in the situation involving the one man busi-ness, is it any wonder that there is in the situation involved in theprincipal case. Here the individual picketed is more than merely an-other worker out on his own. He has, by hiring others6 to aid him,crossed the line of normal distinction between two economic classes,and has become an employer, though still retaining many of the char-acteristics of his former status. It is in this area, this Never-NeverLand of labor disputes, that the traditional concepts of labor law be-come rather difficult to apply and, once applied, are sometimes hardto justify and reconcile. The right of a man to work with his handsto make a living must be balanced with the right of the union to seekbetter conditions for its members and protect their gains against thosewho have no regard for the legitimate ends of unionism. When thebarbers' union, an international organization, changed its constitutionto require employer-workers to become non-active members of theunion, cases arose in at least two other states 7 on precisely the same3 It might be pointed out that in that case there was no statute involved declar-ing the picketing an unfair labor practice. The result might have been dif-ferent if there had been such a statute in view of the decision in Giboney v.Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684. (1949), that picketingmay not be used as "an essential part of a grave offense against an importantpublic law." See also 1 Baylor L.R. 455 (1949). Wisconsin Statutes, 103.535provides that it shall be unlawful for anyone to picket the establishment ofanyone engaged in business where there is no labor dispute as defined in103.62 (3), wherein a labor dispute is defined as any controversy between anemployer and the majority of his employees. The above provisions wouldseem to govern the fact situation in the Angelos case. However, the consti-tutionality of such a statute has been questioned in view of the decision inAmerican Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed.855; see 42 Wis. L.R. 115 (1942).4 Accord with the Angels case, Coons v. Journeymen Barbers, 222 Minn. 100,23 N.W. (2d) 345, 18 LRRM 2084 (1946); Kellar v. Sun, 93 N.Y.S. (2d) 165,25 LRRM 2044 (1949) : contra, Bautista v. Jones, 25 Cal. (2d) 746, 155 P. (2d)343 (1949); Saveall v. Demers, 322 Mass. 70, 76 N.E. (2d) 12, 21 LRRM2180 (1947); Hanke v. Teamsters Union, - Wash. (2d) -, 207 P. (2d) 206,24 LRRM 219 (1949).5 Saveall v. Demers, and Hanke v. Teamsters Union, supra, note 4.6 The complainant in this case employed four persons but in shops of this kindthe number is often only one. This is pointed out by the Court in the instantcase at p. 84.7 Riviello v. Journeyman Barbers (Cal. Dist. Crt. of Appeals), 88 C.A.(2d) 499,199 P.(2d) 400, 23 LRRM 2120 (1948); Foutts v. Barbers Union (Ohio,Common Pleas), 88 N.E. (2d) 317, 25 LRRM 2180 (1949).[Vol. 34RECENT DECISIONSfacts as in the principal case, both of which clearly recognized as alegitimate labor objeftive the right of a union to picket the employer-worker to compel him to join their organization, but both of whichenjoined the picketing on widely divergent.reasoning sThe decision of the Court in the instant case was based solely uponstatutory interpretation and involved no considerations of policy otherthan those considered by the legislature when it passed the WisconsinEmployment Peace Act. But it is a serious question as to whetheran act, apparently designed to meet the needs of large scale industry,should be resorted to in order to find an answer for the situation dis-closed by the principal case. The intent of the Legislature discernablefrom a reading of Section 111.06 (1) (b) appears to have been toprevent the domination of a union by an employer in order to safe-guard the absolute freedom of association of the employees and to en-able the union to maintain its bargaining power as a true representativeof the employees free of the influence of the employer.9 And thoughat first blush the decision here appears to go beyond that purpose andto stretch the literal language of the statute out of its context becausethe amount of "financial support" involved is so small, 0 yet is was,as the Court pointed out, large when viewed percentagewise, and forthe employer involved constituted twenty per cent of the total amountoriginating within his place of business. If his employees are to havetrue autonomy it would seem that twenty per cent of the financial back-ing of their union cannot come from their employer."- And yet is itthe main purpose of a union of semi-independent craftsmen to bargainwith their employers in the sense that large industrial unions bargainwith theirs? It would hardly seem so. On the contrary the interestsof the employer are almost the same as those of his few employees8 California decided that to coerce the barber-employer to join the union as anon-active member, a membership sterile of all rights save that of paying dues,was discriminatory and hence violative of the public policy of California;while Ohio reached the strange conclusion that the removal of the union cardfrom the premises of the employer was "constructive force."9 At least that is the result that the National Labor Relations Board came toin their interpretation of Section 8 (a) (2) of the National Labor RelationsAct, 29 U.S.C.A. 158 (a) (2), which is substantially similar to Section 111.06(1) (b) of the Wisconsin Statutes, the section under discussion. In re RadioCorporation of America, 63 N.L.R.B. 55, 16 LRRM 311 (1943) held that it ismerely evidence of the company dominated nature of a union to be financiallysupported by the employer, and the mere fact that the employer contributedsomething to the union was not of itself the "support" contemplated by theNational Labor Relations Act where the union appeared to have establisheditself as "a free and untrammeled bargaining agent." See also Teller, LaborDisputes and Collective Bargaining, Sec. 297 (1940).20 Appellant union even claimed that the rule of de minimus non curat lex wasapplicable.11 In the case of the shop retaining the services of only one employee, the percent of financial support originating with the employer would seem quiteclearly to be excessive if the union is to remain free from the influence ofthe employer.1950]MARQUETTE LAW REVIEWsince he does the same work as those whom he employs.12 In fact anorganization of men whose labor is personal service sold directly to thepublic, rather than directly to the employer who in turn sells the pro-duct of their labor to the public as in a manufacturing plant, is morelike as association of semi-professional men than a labor union.13 Thiscommon interest between employer and employee becomes of less andless importance as the number of employees is increased and the at-tention of the owner of the shop is increasingly directed more to therunning of the shop than to the rendition of personal service by him-self. Yet the test of the Wisconsin Supreme Court here as to the percent of union support attributable directly to the employer also growsless and less pertinent as the number of employees is increased. Andso it would appear that as their interests become more dissimilar, andhence the need for the protection of the Wisconsin Employment PeaceAct greater, there is increasingly less reason to invoke the prohibitionof Section 111.06 (1) (b). This case discloses the need for legislationmore pertinent to the specialized relation of the independent and semi-independent craftsmen, comprising so large a part of our laboring class.They have been neglected in the present statute, fashioned primarilyto meet the needs of others.WILLIAM S. PFANKUCHCorporations - Non-Delegable Powers of Board of Directors - Thedirectors of two corporations considered it in the best interests of bothfor defendant Carlisle to obtain 80% or more of Dart's outstandingstock by an exchange of defendant's stock for Dart's stock. Theycaused the two corporations to enter into an agreement whereby de-fendant promised to make available shares of its stock in exchange forshares of Dart's "on the basis of such number of shares of Carlislefor each 1 share of Dart as may be determined to be fair and equitableby an independent appraiser to be designated by Carlisle, provided,however, that such exchange shall not exceed a maximum of 218 sharesof Carlisle for each 1 share of Dart." The rest of the agreement bounddefendant irrevocably to issue, but neither Dart or its stockholdersbound themselves to accept, up to 174,400 shares of defendant's stock.12 The similarity of those interests was used by the appellant union as one ofthe reasons why the employer should be amenable to the coercion of the unionby means of peaceful picketing, so as to require him to share in the expenseof furthering those common interests; ". . . the working employer enjoysmany benefits as a journeyman which were obtained only by unceasing andcostly struggles of the . . . union. The prices he can get for his services, theregulated training under apprenticeship laws, the beneficent legislation regu-lating the trade and entrance to the trade.. ."; p. 80 of the principal case.13 As pointed out above the courts of at least two states have come to the sameconclusion; supra note 5.[Vol. 3

Labor Law - Financial Contribution by Employer to Union as Unfair Labor Practice

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Labor Law - Financial Contribution by Employer to Union as Unfair Labor Practice

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