Senn v. Tile Layers Protective Union Local No 5/Dissent Butler
Mr. Justice BUTLER dissenting.

Plaintiff is a tile layer and has long been accustomed to work as a helper and mechanic in that trade. The question presented is whether, consistently with the due process and equal protection clauses of the Fourteenth Amendment, the state may by statute authorize or make it lawful for labor unions to adopt and carry into effect measures intended and calculated to prevent him from obtaining or doing that work. The decision just announced answers that question in the affirmative. The facts are not in controversy. Let them disclose the concrete application of the legislation now held valid.

Plaintiff lives and works in Milwaukee. Since the latter part of 1931, he has been engaged in performing small tile laying jobs. He has personally performed almost half the manual labor required. He usually employs a tile setter and helper; occasionally he has more than one of each. He has never been a member of the tile layers union. Though a competent mechanic in that trade, he is excluded from membership because he takes contracts and because he has not served the apprenticeship required by union rules. In 1935 he had about forty jobs. His net income was $1,500 of which $750 was attributed to his own labor. The balance, constituting his profit as contractor, was not enough to support him and family.

Defendant Local No. 5 is composed of tile layers. Its membership, 112 in 1929, had fallen to 41 at the time of the trial in January, 1936. Early in 1935 it proffered to all local contractors including plaintiff a contract fixing wages, hours and the like. About half of them signed; the others did not. It contained the following: 'It is definitely understood that no individual, member of a partnership or corporation engaged in the Tile Contracting Business shall work with the tools or act as Helper, but that the installation of all materials claimed by the party of the second part (Local No. 5) as listed under the caption 'Classification of Work' in this agreement, shall be done by journeymen members of Tile Layers Protective Union Local #5.' Because of that provision, plaintiff declined to sign. But repeatedly he declared to representatives of the union that he was willing to employ its members and to comply with its rules as to wages, hours, and working conditions; he assured them that, when his business was sufficient to permit, he would refrain from manual labor, and explained that without personally working he could not now continue in business. Conceding the truth of that statement, the union nevertheless persistently declined to modify its demands.

The president of Local No. 5 testified that, if plaintiff did not sign the contract, it would do everything 'to harass and put things in his way'; that it intended to announce to the world that he is a nonunion contractor and on that account should not be patronized, to picket his place of business, to ascertain where he had jobs, and to picket them and in that way bring pressure to bear upon him to become a union contractor, to put him in the category of a nonunion contractor unless he agrees to lay aside the tools of the trade. The program so declared corresponds with what the unions had already done against him.

In July, 1935, Local No. 5 sent to all contractors and architects letters stating: 'Some time ago we presented to each individual tile contractor in the city a copy of our new agreement (this refers to the one plaintiff was called on to sign) in which we specified what constitutes a bona fide contractor and who should install the work. Not having heard from some of these so called tile contractors in a given time, we beg of you to contact the list of fair contractors listed below in awarding the tile work in your building operations. If in two weeks time anyone outside this list is awarded tile work we will then picket such jobs, contractors' or architects' offices, or employ other lawful means to help us in our fight to better the conditions of our trade.' Plaintiff's name was not on the list approved by the union. Therefore the letter meant that, in order to prevent him from working, the union would apply the described pressure to him, his work, the jobs of which his tile laying was a part, the contractors, and the architects from whom he got work.

Commencing December 6, 1935, it put in front of his house two men carrying signs, one being: 'P. Senn Tile Company (meaning the plaintiff) is unfair to the Tile Layers Protective Union,' and the other: 'Let the Union tile layers install your tile work.' And regularly from 8 in the morning until noon and from 1 to 4 in the afternoon it carried on picketing of that sort, sometimes using four men. They refrained from speaking to plaintiff or others and committed no breach of the peace. In that sense they carried on 'peaceful picketing.' The union sent men in automobiles to follow plaintiff when going from his home to his work, and instructed all its members to discover where he had jobs in order to picket them.

To justify the elimination of plaintiff, counsel told the court that 'because of the demoralized condition of the trade, the union decides it does not want a contractor, whether he be skilled in the trade or unskilled, to work with the tools of the trade with the men because there is not enough work to go around.' And on the witness stand the president of Local No. 5 expressed the idea that, if the contractors did not work, members of the union would be taken off relief.

The trial court found the picketing peaceful and lawful; it did not pass on other acts constituting pressure put on plaintiff. But the unions themselves deemed unlawful much that they had threatened and done to coerce him. The findings say that 'the defendants, by their counsel, have stated in open court that they will not pursue the automobile of the plaintiff from his place of business to his jobs; that they will refrain from sending any further letters to architects or contractors, and will not indulge in any acts or conduct referred to in said letters towards said contractors and architects.' The trial court held plaintiff not entitled to relief. The Supreme Court affirmed. 222 Wis. 383, 268 N.W. 270, 872. Following its decision in American Furn. Co. v. I.B. of T.C. & H., 222 Wis. 338, 268 N.W. 250, 106 A.L.R. 335, construing section 103.62, it held that within the meaning of that section a 'labor dispute' existed between plaintiff and defendants and that under section 103.53 the picketing was legal.

The clauses of the Fourteenth Amendment invoked by plaintiff are: 'No State shall * * * deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Our decisions have made it everywhere known that these provisions forbid state action which would take from the individual the right to engage in common occupations of life, and that they assure equality of opportunity to all under like circumstances. Lest the importance or wisdom of these great declarations be forgotten or neglected, there should be frequent recurrence to decisions of this court that expound and apply them.

'While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 29 A.L.R. 1446.

'The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase 'pursuit of happiness' in the declaration of independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' * * * I hold that the liberty of pursuit the right to follow any of the ordinary callings of life-is one of the privileges of a citizen of the United States.' Concurring opinion of Mr. Justice Bradley in Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 762, 4 S.Ct. 652, 657, 28 L.Ed. 585, approvingly quoted in Allgeyer v. Louisiana, 165 U.S. 578, 589, 17 S.Ct. 427, 41 L.Ed. 832.

'Included in the right of personal liberty and the right of private property-partaking of the nature of each-is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money.' Coppage v. Kansas, 236 U.S. 1, 14, 35 S.Ct. 240, 243, 59 L.Ed. 441, L.R.A.1915C, 960.

'It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.' Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283.

'Under that amendment, nothing is more clearly settled than that it is beyond the power of a state, 'under the guise of protecting the public, arbitrarily (to) interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them." New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 374, 76 L.Ed. 747.

'The fourteenth amendment * * * undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness, and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition.' Barbier v. Connolly, 113 U.S. 27, 31, 5 S.Ct. 357, 359, 28 L.Ed. 923.

'For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.' Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220.

The legislative power of the state can only be exerted in subordination to the fundamental principles of right and justice which the guaranties of the due process and equal protection clauses of the Fourteenth Amendment are intended to preserve. Arbitrary or capricious exercise of that power whereby a wrongful and highly injurious invasion of rights of liberty and property is sanctioned, stripping one of all remedy, is wholly at variance with those principles. Truax v. Corrigan, 257 U.S. 312, 327, 42 S.Ct. 124, 127, 66 L.Ed. 254, 27 A.L.R. 375.

It may be assumed that the picketing, upheld in virtue of the challenged statute, lawfully might be employed in a controversy between employer and employees for the purpose of persuading the employer to increase pay, etc., and dissuading nonunion workers from displacing union members. The right of workers, parties to a labor dispute, to strike and picket peacefully to better their condition does not infringe any right of the employer. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360; United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 386, 42 S.Ct. 570, 574, 66 L.Ed. 975, 27 A.L.R. 762; Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 540, 541, 43 S.Ct. 630, 634, 635, 67 L.Ed. 1103, 27 A.L.R. 1280; Dorchy v. Kansas, 264 U.S. 286, 289, 44 S.Ct. 323, 324, 68 L.Ed. 686. But strikes or peaceful picketing for unlawful purposes are beyond any lawful sanction. The object being unlawful, the means and end are alike condemned. Dorchy v. Kansas, 272 U.S. 306, 311, 47 S.Ct. 86, 87, 71 L.Ed. 248; Toledo, A.A. & N.M. Ry. Co. v. Pennsylvania Co. (C.C.) 54 F. 730, 737-739, 19 L.R.A. 387. And see Truax v. Corrigan, supra, 257 U.S. 312, 327, 42 S.Ct. 124, 127, 66 L.Ed. 254, 27 A.L.R. 375; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N.Y. 260, 262, 263, 157 N.E. 130.

The object that defendants seek to attain is an unlawful one.

Admittedly, it is to compel plaintiff to quit work as helper or title layer. Their purpose is not to establish on his jobs better wages, hours, or conditions. If permitted, plaintiff would employ union men and adhere to union requirements as to pay and hours. But, solely because he works, the unions refuse to allow him to unionize and carry on his business. By picketing, the unions would prevent him working on jobs he obtained from others and so destroy that business. Then, by enforcement of their rules they would prevent him from working as a journeyman for employers approved by the union or upon any job employing union men. Adhering to the thought that there is not enough work to go around, unquestionably the union purpose is to eliminate him from all tile laying work. And highly confirmatory of that purpsoe is the failure of the contract proposed by the union to permit plaintiff personally to do work in the performance of jobs undertaken by him for prices based upon union rates of pay for all labor, including his own.

The principles governing competition between rival individuals seeking contracts or opportunity to work as journeymen cannot reasonably be applied in this case. Neither the union nor its members take tile laying contracts. Their interests are confined to employment of helpers and layers, their wages, hours of service, etc. The contest is not between unionized and other contractors or between one employer and another. The immediate issue is between the unions and plaintiff in respect of his right to work in the performance of his own jobs. If as to that they shall succeed, then will come the enforcement of their rules which make him ineligible to work as a journeyman. It cannot be said that, if he should be prevented from laboring as helper or layer, the work for union men to do would be increased. The unions exclude their members from jobs taken by nonunion employers. About half the tile contractors are not unionized. More than 60 per cent. of the tile layers are nonunion men. The value of plaintiff's labor as helper and tile layer is very small-about $750 per year. Between union members and plaintiff there is no immediate or direct competition. If under existing circumstances there ever can be any, it must come about through a chain of unpredictable events making its occurrence a mere matter of speculation. The interest of the unions in the manual labor done by plaintiff is so remote, indirect, and minute that they have no standing as competitors. Berry v. Donovan, 188 Mass. 353, 358, 74 N.E. 603. Under the circumstances here disclosed, the conduct of the unions was arbitrary and oppressive. Roraback v. Motion Picture Machine Operators' Union, 140 Minn. 481, 486, 168 N.W. 766, 169 N.W. 529, 3 A.L.R. 1290; Hughes v. Motion Picture Machine Operators, 282 Mo. 304, 221 S.W. 95.

Moreover, the picketing was unlawful because the signs used constitute a misrepresentation of the facts. One of them declared plaintiff 'unfair' to the tile layers union and, upon the basis of that statement, the other sign solicited tile work for union tile layers. There was given neither definition of the word nor any fact on which the accusation was based. By the charge made, there was implied something unjust or inequitable in his attitude toward labor unions. But there was no foundation of fact for any such accusation. There was no warrant for characterizing him as 'unfair' or opposed to any legitimate purpose of the tile layers union or as unjust to union men. There is no escape from the conclusion that the unions intended by the picketing they carried on to misrepresent plaintiff in respect of his relation to, or dealing with, the tile layers union and by that means to deprive him of his occupation. The burden may not justly be held to be on him, by counter-picketing or otherwise, to refute or explain the baseless charge.

The judgment of the state court, here affirmed, violates a principle of fundamental law: That no man may be compelled to hold his life or the means of living at the mere will of others. Yick Wo v. Hopkins, ubi supra. The state statute, construed to make lawful the employment of the means here shown to deprive plaintiff of his right to work or to make lawful the picketing carried on in this case, is repugnant to the due process and equal protection clauses of the Fourteenth Amendment. Truax v. Corrigan, supra, 257 U.S. 312, 328, 42 S.Ct. 124, 128, 66 L.Ed. 254, 27 A.L.R. 375.

I am of opinion that the judgment should be reversed.

Mr. Justice VAN DEVANTER, Mr. Justice McREYNOLDS, and Mr. Justice SUTHERLAND join in this dissent. 

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