West Allis Foundry Co. v. State

Eschweiler, J. The information charged plaintiff in error with having on February 27, 1924, unlawfully attempted to influence, induce, persuade, and engage workmen to change from one place of employment to another in this state through and by means of false advertisements in this: that it did publish in a newspaper published in the city of Milwaukee, said county, the following advertisement: “Moulders — Wanted for floor work. West Allis Foundry Company, 75th and Elm Streets,” and further chargingthat the said advertisement then and there failed to state that there was a strike at said place of business and that such strike actually existed at such place. This prosecution is brought under what is now sec. 103.43, having been sec. 1729/> — 1, Stats. 1921, and the language of that statute, so far as here involved, makes it unlawful to induce employees to engage in service by false advertisement through failure to state in any such advertisement “that there is a strike or lockout at the place of the proposed employment, when in fact such strike or lockout then actually exists in such employment at such place.” — 28 — This being a criminal prosecution, it was necessary for the State to prove that at the time of the advertisement by the company there was then at its shop a strike actually existing. If there was, it is conceded that the judgment should be affirmed; if there was not, it must be reversed. The validity of this statute has been upheld in Biersach & Neidermeyer Co. v. State, 177 Wis. 388, 188 N. W. 650, and its general purpose declared to be within proper public policy to protect the public interests and those seeking employment, citing with approval the same view expressed as to the similar statute in Massachusetts in Comm. v. Libbey, 216 Mass. 356, 103 N. E. 923. There can be no question but that when, by concerted action, a number of the company’s employees quit work on October 22d because of the proposed cut in wages, they then entered upon a lawful strike as such term is understood and declared. Walter W. Oeflein, Inc. v. State, 177 Wis. 394, 399, 188 N. W. 633. The proposed general cut in wages was such a grievance as must exist in order to malee concerted withdrawal a justifiable strike. That there must exist a grievance as a basis is unquestioned and is so stated by such a leader of labor unionism as the late Mr. Gompers in his work “Labor and the Common Welfare” published in 1919, at page 75, in giving the union labor definition as being such “when directed against an employer with whom the striking workmen have a direct dispute with regard to wages or conditions of labor for the purpose of obtaining a betterment of these conditions,” and as testified to in the court below by Mr. Taylor. The present recognized definition of “strike” as it is used in the industrial world, and the present-day recognition of the legality of a combination of employees to compel compliance with their demands by an employer against his wishes as distinguished from concerted action to force or compel another to do an act against his will, which latter, — 29 — in many instances, is still unlawful as actionable conspiracy, and the consequent overturning of the old common-law doctrine which made such combinations by workmen unlawful, has been effected largely by the décísions of courts rather than by action of legislatures, as is so clearly pointed out by Mr. Justice Brandéis in his dissent, with which Mr. Justice Holmes and Mr. Justice Clarice concurred, in the case of Duplex P. P. Co. v. Deering, 254 U. S. 443 (41 Sup. Ct. 172), where he said at p. 481: “The change in the law by which strikes once illegal and even criminal are now recognized as lawful was effected in America largely without the intervention pf legislation.” He follows this with numerous citations showing the gradual steps by which courts reversed the old common-law rules. All the recognized definitions of an industrial strike, however, confine it to the concerted action by the employees of the particular employer against whom it is aimed, that is, between the individuals who are under present contract of employment with a particular employer and him, and to no one outside of such class. In determining- the particular question here it cannot therefore be regarded as a dispute between the local union, which has no contract with the company, but between the withdrawing employees and the company alone; no question being here raised but that the local and international unions as such may, within lawful limits, lend aid and assistance to their members who are, as employees for the company, engaged in the strike. The public policy of this state as expressed by its legislature has clearly left the determination of the question as to whether or not a strike actually exists at a given time between the withdrawing employees and the employer to be determined as a simple question of fact before judicial tribunals in proper proceedings such as are involved in this case. Such a question of course cannot be left to either party in such a controversy to be determined by their own declaration as to its existence or non-existence. — 30 — The various statutes of all the other states which - have enacted legislation on this subject all contain substantially the same language as does ours, viz. “actually exists,” and in none of them so far found, except as hereinafter mentioned, is any legislative attempt made to more particularly or precisely fix a criterion for determining when or when not a strike actually exists. An examination of the various bulletins issued by the United States Bureau of Labor and referred to in the latest one accessible, covering the labor legislation of 1922, No. 330, under the heading “Strike, notice of in advertisements, etc.,” in the cumulative index, page 95, discloses that instead of our phrase “actually exists,” supra, the word “existence” is used in California, Maine, Massachusetts, New Hampshire, and Porto Rico, the latter by law adopted in 1917; others use the phrase “then actually exists,” viz. Colorado, Maine, Oklahoma, Oregon, and Tennessee, the latter being apparently one of the first of the states to adopt such legislation and that in 1901. Minnesota in 1923 added to its law as to false statements in labor employment a provision almost identical with our law and using- the phrase “actually exists.” So that during all these years that the matter has been considered for legislation no substantial change has been made in the phraseology. Our own law on the subject first appeared as sec. 1729o by ch. 364, Laws of 1911, and that, as first proposed, made it a felony for any firm, person, or corporation to advertise outside of this state for the purpose of securing employees during the continuance of any strike, lockout, or labor dispute unless stating that there is such a strike going on; but an amendment was adopted changing it to a misdemeanor, and as finally passed it covered the general subject only of false representations in the employment of labor, including the condition that no false statement shall be made concerning “the existence or non-existence of any strike, lockout, or other labor dispute.” — 31 — In 1915, by ch. 457, this sec. 1729o was entirely repealed and a new section, 1729p — 1, created. It thereby added to the subject matter of fraudulent advertisements as contained in the first statute a provision giving a cause of action for damages arising out of any such false advertisement; the original bill as proposed in 1915 providing, as to such newly created cause of action, that application might be made by any person or “any central labor organization or recognized labor union” on behalf of such person, alleging facts showing a right of action, to the industrial commission, and providing for a hearing upon notice, findings of fact by the commission, and that such findings should be held prima facie true in any action brought by such person. In its final passage, however, this provision was entirely omitted. The legislative records, both as to the law of 1911 and 1915, show no c attempt to make more explicit or definite the language concerning or to establish any particular standard whereby to determine whether a strike “actually exists” as found in the present law or as to its “existence or nonexistence” as found in the earlier law. Several states, in making provision for a state board of conciliation or arbitration, give to such body the duty of determining when their functioning as such shall cease and that to be when they find that the business of the employer in respect to which the strike or labor trouble occurred “is being carried on in the normal and usual manner and to the normal and usual extent.” This particular language in the Massachusetts statute of 1910 was passed upon in the case of Comm. v. Libbey, 216 Mass. 356, 360, 103 N. E. 923, supra, and to the effect that such particular method was a proper one but not exclusive. A statute similar to' that of Massachusetts and using the words last above quoted was adopted in Maine and New Hampshire in 1913. Other states have provided for the filing, on behalf of either employees or employers, their respective statements — 32 — as to the existence or non-existence of a strike at a particular place of employment, which information shall, under certain conditions, be given to all who seek employment at public employment bureaus. It was so provided in New York in 1914, Pennsylvania in 1915, South Dakota in 1920, and North Dakota in 1921. An inspection, therefore, of the legislative declarations in all parts of this country and over a period of more than twenty years shows that in no instance a labor union as such, with no contract by it with a particular employer, has been recognized as having a right to control or determine, as though a party to such controversy concerning grievances between employer and employees, such question as here presented. Further, that in all these instances of labor legislation the only attempt to declare what shall be a standard in determining such question is that expressed in dhe above quoted phrase from the Massachusetts laws and which in effect is, that so far as the interference by the state is concerned for the interests of the general public and those seeking employment, such state interference or control is deemed to be properly ended when the withdrawal of the striking employees no longer prevents the employer carrying on his business in the normal and usual manner and to* the normal and usual extent. Such suggested test was recognized as proper in the following cases: Moore D. F. Co. v. McCarthy, 243 Mass. 554, 562, 137 N. E. 919; M. Steinert & Sons Co. v. Tagen, 207 Mass. 394, 397, 93 N. E. 584; Dail-Over-Land Co. v. Willys-Overtand, Inc. 263 Fed. 171, 188, 190, and the same case in the court of appeals, 274 Fed. 56, 65. We do not, however, care to adopt such language, framed as it was in a statute with a different purpose than the one here before us. That a person charged with a criminal offense is entitled under our constitution to know in advance the nature of the offense charged is firmly established (Roth v. State, 180 Wis. 573, 193 N. W. 650; In re Carlson, 176 Wis. 538, 547, — 33 — 186 N. W. 722), and such information was given the defendant here; but to determine when a given state of facts as known to one so charged brings him within or without many particular statutes is much more difficult. Such troublesome field of definition was discussed by Mr. Chief Justice Vinje in Mulkern v. State, 176 Wis. 490, 187 N. W. 190, in an opinion upholding a conviction under our statute prohibiting the driving of an automobile at a rate of speed greater than was reasonable and proper. On the other hand, in U. S. v. L. Cohen G. Co. 255 U. S. 81, 89, 41 Sup. Ct. 298, it was held that a portion of the Lever Act of 1919 was void because too indefinite to permit proper carrying out by court and jury which made it unlawful “for any person wilfully ... to make any unjust or unreasonable rate or charge in handling or dealing in or with necessaries.” In the present case, there being no given legislative standard in the statute here present or in any other of our state laws, including sec. 133.07, cited to our attention and which provides for the organization of labor unions and regulating injunctions in labor disputes, we shall hold that the defendant might, at the time of the advertisement, be lawfully justified in considering that a strike shall be deemed at an end when conditions are such that the business of the employer is not materially affected by it, and there are no reasonable grounds for believing that a continuance thereof will materially affect his business. Under the undisputed facts in this case, the employees withdrawing on October 22d were lawfully exercising a right, by such concerted withdrawal, to lessen production, delay or impair the employer’s work, increase the costs thereof, or cause material interference with his carrying on of contracts he may have had with others, in order to thereby redress their grievance. It is the concerted withdrawal, however, of such employees that makes the strike. Picketing and persuading others to keep away from such employment are but incidents of and not the strike itself. At the time — 34 — of the advertisement in February, 1924, the force or economic pressure that had been exerted on the employer by such withdrawal was no' longer in existence. At such time the employer had more than a normal and usual force of men and more than the normal and usual force of core-makers and moulders at work. There is no testimony whatsoever to indicate that the employees who were then doing the work that had been done by those who withdrew in October were what are designated as strike-breakers or employed solely or principally for the purpose of thwarting the purpose of the striking employees, but were residents of Milwaukee county or other than bona fide employees. The production obtained as a result of the work being then done by such in the factory was in fact increasing its capacity. Clearly, the conditions in defendant’s business were then such that it was not materially affected by the strike, and there were no reasonable grounds for believing that a continuance thereof would materially affect defendant’s business. We are compelled, therefore, to come to the conclusion that at the time charged in the information there was not a strike actually existing, and that the conviction cannot be sustained. By the Court. — Judgment reversed, with directions . to dismiss.