1. The questions of what constitutes a "labor dispute" within
the meaning of Wisconsin Labor Code, § 103.62, and what acts done
by a labor union are among those declared lawful by § 103.53, are
questions of state law. P.
301 U. S. 477.
2. If the end sought by a labor union is not forbidden by the
Federal Constitution, the State may authorize the union members to
seek to attain it by combining as pickets. P.
301 U. S.
478.
3. In its application to this case, Wisconsin Labor Code, §
103.53, making lawful the giving of publicity to the existence and
facts of a labor dispute by peaceful picketing in the street,
without intimidation or coercion, fraud, violence, breach of the
peace, or threat thereof, is consistent with the Fourteenth
Amendment. P.
301 U. S.
480.
Page 301 U. S. 469
4. A contractor who carried on a small business of tile setting,
performing his contracts partly by the aid of a few nonunion
workmen but largely by the labor of his own hands with the tools of
his trade, and who, not having served an apprenticeship, was
ineligible to become a member of the Tile Layers' Union under its
rules, was called upon by the union to unionize his shop, and was
willing to do so but for a clause in the agreement proffered to him
(found important for the protection of union workmen) which would
prevent him as a union employer from participating longer in the
manual labor. Upon his refusal to sign the contract with this
stipulation, the union sent two men to his home, which was also his
place of business, and there they patrolled before it in the street
carrying two banners with inscriptions, one of which declared that
the contractor was "unfair" to the union, while the other appealed
to its readers to let the union install their tile work.
Held that the rights of the contractor under the
Fourteenth Amendment were not infringed by a state law authorizing
such picketing. P.
301 U. S.
481.
222 Wis. 383, 400, 268 N.W. 270, 872, affirmed.
Appeal from a decree sustaining the dismissal of the bill in a
suit against two labor unions and their agents to restrain
picketing, etc.
Page 301 U. S. 472
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This case presents the question whether the provisions of the
Wisconsin Labor Code which authorize giving publicity to labor
disputes, declare peaceful picketing and patrolling lawful, and
prohibit granting of an injunction against such conduct violate, as
here construed and applied, the due process clause or equal
protection clause of the Fourteenth Amendment.
The Labor Code occupies §§ 103.51 to 103.63 of the Wisconsin
Statutes, 1935 (Wis.Laws, 1931, c. 376; Laws, 1935, c. 551, § 5).
But only the following provisions of § 103.53 are directly involved
on this appeal:
"(1) The following acts, whether performed singly or in concert,
shall be legal:"
"
* * * *"
"(e) Giving publicity to and obtaining or communicating
information regarding the existence of, or the facts involved in,
any dispute, whether by advertising, speaking, patrolling any
public street or any place where any person or persons may lawfully
be, without intimidation or coercion, or by any other method not
involving fraud, violence, breach of the peace, or threat
thereof."
"
* * * *"
"(1) Peaceful picketing or patroling, whether engaged in singly
or in numbers, shall be legal. [
Footnote 1]"
"(2) No court, nor any judge or judges thereof, shall have
jurisdiction to issue any restraining order or temporary or
permanent injunction which, in specific or general terms, prohibits
any person or persons from doing, whether singly or in concert, any
of the foregoing acts. "
Page 301 U. S. 473
On December 28, 1935, Senn brought this suit in the circuit
court of Milwaukee County against Tile Layers Protective Union,
Local No. 5, Tile Layers Helpers Union, Local No. 47, and their
business agents, seeking an injunction to restrain picketing, and
particularly "publishing, stating or proclaiming that the plaintiff
is unfair to organized labor or to the defendant unions," and also
to restrain some other acts which have since been discontinued, and
are not now material. The defendants answered, and the case was
heard upon extensive evidence. The trial court found the following
facts:
The journeymen tile layers at Milwaukee were, to a large extent,
members of Tile Layers Protective Union, Local No. 5, and the
helpers, members of Tile Layers Helpers Union, Local No. 47. Senn
was engaged at Milwaukee in the tile contracting business under the
name of "Paul Senn & Co., Tile Contracting." His business was a
small one, conducted, in the from his residence, with a showroom
elsewhere. He employed one or two journeymen tile layers and one or
two helpers, depending upon the amount of work he had contracted to
do at the time. But, working with his own hands with tools of the
trade, he performed personally on the jobs much work of a character
commonly done by a tile layer or a helper. Neither Senn nor any of
his employees was, at the time this suit was begun, a member of
either union, and neither had any contractual relations with them.
Indeed, Senn could not become a member of the tile layers union,
since its constitution and rules require, among other things, that
a journeyman tile setter shall have acquired his practical
experience through an apprenticeship of not less than three years,
and Senn had not served such an apprenticeship.
For some years, the tile laying industry had been in a
demoralized state because of lack of building operations, and
members of the union had been in competition with
Page 301 U. S. 474
nonunion tile layers and helpers in their effort to secure work.
The tile contractors by whom members of the unions were employed
had entered into collective bargaining agreements with the unions
governing wages, hours, and working conditions. The wages paid by
the union contractors had for some time been higher than those paid
by Senn to his employees.
Because of the peculiar composition of the industry, which
consists of employers with small numbers of employees, the unions
had found it necessary for the protection of the individual rights
of their members in the prosecution of their trade to require all
employers agreeing to conduct a union shop to assent to the
following provision:
"Article III. 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 as listed under the caption 'Classification of
Work' in this agreement shall be done by journeymen members of Tile
Layers Protection Union Local #5."
The unions endeavored to induce Senn to become a union
contractor, and requested him to execute an agreement in form
substantially identical with that entered into by the Milwaukee
contractors who employ union men. Senn expressed a willingness to
execute the agreement provided article III was eliminated. The
union declared that this was impossible; that the inclusion of the
provision was essential to the unions' interests in maintaining
wage standards and spreading work among their members; and,
moreover, that to eliminate article III from the contract with Senn
would discriminate against existing union contractors, all of whom
had signed agreements containing the article. As the unions
declared its elimination impossible, Senn refused to sign
Page 301 U. S. 475
the agreement and unionize his shop. Because of his refusal, the
unions picketed his place of business. The picketing was peaceful,
without violence, and without any unlawful act. The evidence was
that the pickets carried one banner with the inscription "P. Senn
Tile Company is unfair to the Tile Layers Protective Union,"
another with the inscription "Let the Union tile layer install your
tile work." [
Footnote 2]
The trial court denied the injunction and dismissed the bill. On
the findings made, it ruled that the controversy was "a labor
dispute" within the meaning of § 103.62; that the picketing, done
solely in furtherance of the dispute, was "lawful" under § 103.53;
that it was not unlawful for the defendants "to advise, notify or
persuade, without fraud, violence or threat thereof, any person or
persons, of the existence of said labor dispute. . . ."
"That the agreement submitted by the defendants to the
plaintiff, setting forth terms and conditions prevailing in that
portion of the industry which is unionized, is
Page 301 U. S. 476
sought by the defendants for the purpose of promoting their
welfare and enhancing their own interests in their trade and craft
as workers in the industry."
"That Article III of said agreement is a reasonable and lawful
rule adopted by the defendants out of the necessities of employment
within the industry and for the protection of themselves as workers
and craftsmen in the industry."
Senn appealed to the Supreme Court of the state, which affirmed
the judgment of the trial court and denied a motion for rehearing,
two judges dissenting. 222 Wis. 383, 268 N.W. 270, 274, 872. The
case is here on appeal.
First. The defendants moved to dismiss the appeal for
want of jurisdiction. They contend that the federal question
presented is not substantial. And friends of the court suggest that
the appeal should be dismissed because the decision below was based
upon nonfederal grounds, or that there was an alternative,
independent nonfederal ground broad enough to sustain the judgment;
that the challenge here is not to a statute, but to a judicial
decision based upon principles of general law which have been
approved by some judges and disapproved by others; [
Footnote 3] and that there is nothing to show
that the provisions of the Wisconsin Labor Code here questioned are
not merely declaratory of the common law of Wisconsin as it existed
prior to the statute. But it sufficiently appears that the
provisions of the Labor Code were relied upon; that their validity
under the Fourteenth Amendment was duly challenged below, and that
the rulings by the state courts were based ultimately on the Labor
Code.
Page 301 U. S. 477
Whether the statute as construed and applied violates the
Fourteenth Amendment presents issues never expressly passed upon by
this Court. We deny the motion to dismiss.
Second. The hearings below were concerned mainly with
questions of state law. Senn insisted there that the statute was no
defense, because the controversy was not a "labor dispute" within
the meaning of § 103.62. [
Footnote
4] The courts ruled that the controversy was a "labor dispute,"
and that the acts done by the defendant were among those declared
"lawful" by § 103.53.
See also American Furniture Co. v.
Chauffeurs, Teamsters & Helpers Union, 222 Wis. 338, 268
N.W. 250. Those issues involved the construction and application of
the statute and the Constitution of the state. As to them, the
judgment of its highest court is conclusive. The question for our
decision is whether the statute, as applied to the facts found,
took Senn's liberty or property or denied him equal protection of
the laws in violation of the Fourteenth Amendment. Senn does not
claim broadly that the Federal Constitution prohibits a state from
authorizing publicity and peaceful picketing. His claim of
invalidity is rested on the fact that he refused to unionize his
shop solely because the union insisted upon the retention of
article III. He contends that the right to work in his business
with his own hands is a right guaranteed by the Fourteenth
Amendment, and that the state may not authorize unions
Page 301 U. S. 478
to employ publicity and picketing to induce him to refrain from
exercising it.
The unions concede that Senn, so long as he conducts a nonunion
shop, has the right to work with his hands and tools. He may do so
as freely as he may work his employees longer hours and at lower
wages than the union rules permit. He may bid for contracts at a
low figure based upon low wages and long hours. But the unions
contend that, since Senn's exercise of the right to do so is
harmful to the interests of their members, they may seek by legal
means to induce him to agree to unionize his shop, and to refrain
from exercising his right to work with his own hands. The judgment
of the highest court of the state establishes that both the means
employed and the end sought by the unions are legal under its law.
The question for our determination is whether either the means or
the end sought is forbidden by the Federal Constitution.
Third. Clearly the means which the statute authorizes
-- picketing and publicity -- are not prohibited by the Fourteenth
Amendment. Members of a union might, without special statutory
authorization by a state, make known the facts of a labor dispute,
for freedom of speech is guaranteed by the Federal Constitution.
The state may, in the exercise of its police power, regulate the
methods and means of publicity as well as the use of public
streets. If the end sought by the unions is not forbidden by the
Federal Constitution, the state may authorize working men to seek
to attain it by combining as pickets, just as it permits
capitalists and employers to combine in other ways to attain their
desired economic ends. The Legislature of Wisconsin has declared
that "peaceful picketing and patroling" on the public streets and
places shall be permissible "whether engaged in singly or in
numbers," provided this is done "without intimidation or coercion"
and free from "fraud, violence,
Page 301 U. S. 479
breach of the peace, or threat thereof." The statute provides
that the picketing must be peaceful, and that term as used implies
not only absence of violence, but absence of any unlawful act. It
precludes the intimidation of customers. It precludes any form of
physical obstruction or interference with the plaintiff's business.
It authorizes giving publicity to the existence of the dispute
"whether by advertising, speaking, patroling any public street or
any place where any person or persons may lawfully be," but
precludes misrepresentation of the facts of the controversy. And it
declares that "nothing herein shall be construed to legalize a
secondary boycott."
See Duplex Printing Press Co. v.
Deering, 254 U. S. 443,
254 U. S. 466.
Inherently, the means authorized are clearly unobjectionable. In
declaring such picketing permissible, Wisconsin has put this means
of publicity on a par with advertisements in the press.
The state courts found that the unions observed the limitations
prescribed by the statute. The conduct complained of is patrol with
banners by two or four pickets.
Compare American Steel
Foundries v. Tri-City Central Trades Council, 257 U.
S. 184,
257 U. S. 207.
The picketing was peaceful. The publicity did not involve a
misrepresentation of fact, nor was any claim made below that
relevant facts were suppressed. Senn did not contend that it was
untruthful to characterize him as "unfair" if the requirement that
he refrain from working with his own hands was a lawful one. He did
not ask that the banners be required to carry a fuller statement of
the facts.
Compare American Furniture Co. v. Chauffeurs,
Teamsters & Helpers Union, 222 Wis. 338, 340, 347, 268
N.W. 250-251, 255. Moreover, it was confessedly open to Senn to
disclose the facts in such manner and in such detail as he deemed
desirable, and, on the strength of the facts, to seek the patronage
of the public.
Truax v. Corrigan, 257 U. S. 312, is
not applicable. The statute there in question was deemed to have
been
Page 301 U. S. 480
applied to legalize conduct which was not simply peaceful
picketing, not "lawful persuasion or inducing," not "a mere appeal
to the sympathetic aid of would-be customers by a simple statement
of the fact of the strike and a request to withhold patronage." It
consisted of libelous attacks and abusive epithets against the
employer and his friends; libelous and disparaging statements
against the plaintiff's business; threats and intimidation directed
against customers and employees. The means employed, in other
words, were deemed to constitute "an admitted tort," conduct
unlawful prior to the statute challenged.
See pp.
257 U. S.
327-328,
257 U. S. 337,
257 U. S. 346.
In the present case, the only means authorized by the statute and
in fact resorted to by the unions have been peaceful, and
accompanied by no unlawful act. It follows, that, if the end sought
is constitutional -- if the unions may constitutionally induce Senn
to agree to refrain from exercising the right to work in his
business with his own hands, their acts were lawful.
Fourth. The end sought by the unions is not
unconstitutional. Article III, which the unions seek to have Senn
accept, was found by the state courts to be not arbitrary or
capricious, but a reasonable rule
"adopted by the defendants out of the necessities of employment
within the industry and for the protection of themselves as workers
and craftsmen in the industry."
That finding is amply supported by the evidence. There is no
basis for a suggestion that the unions' request that Senn refrain
from working with his own hands, or their employment of picketing
and publicity, was malicious, or that there was a desire to injure
Senn. The sole purpose of the picketing was to acquaint the public
with the facts, and, by gaining its support, to induce Senn to
unionize his shop. There was no effort to induce Senn to do an
unlawful thing. There was no violence, no force was applied, no
molestation or interference, no coercion. There
Page 301 U. S. 481
was only the persuasion incident to publicity. As the Supreme
Court of Wisconsin said:
"Each of the contestants is desirous of the advantage of doing
the business in the community where he or they operate. He is not
obliged to yield to the persuasion exercised upon him by
respondents. . . . The respondents do not question that it is
appellant's right to run his own business and earn his living in
any lawful manner which he chooses to adopt. What they are doing is
asserting their rights under the acts of the Legislature for the
purpose of enhancing their opportunity to acquire work for
themselves and those whom they represent. . . . The respondents'
act of peaceful picketing is a lawful form of appeal to the public
to turn its patronage from appellant to the concerns in which the
welfare of the members of the unions is bound up."
The unions acted and had the right to act as they did to protect
the interests of their members against the harmful effect upon them
of Senn's action.
Compare American Steel Foundries v. Tri-City
Central Trades Council, supra, 257 U. S.
208-209. Because his action was harmful, the fact that
none of Senn's employees was a union member or sought the union's
aid is immaterial.
The laws of Wisconsin, as declared by its highest court, permit
unions to endeavor to induce an employer, when unionizing his shop,
to agree to refrain from working in his business with his own hands
-- so to endeavor although none of his employees is a member of a
union. Whether it was wise for the state to permit the unions to do
so is a question of its public policy -- not our concern. The
Fourteenth Amendment does not prohibit it.
Fifth. There is nothing in the Federal Constitution
which forbids unions from competing with nonunion concerns for
customers by means of picketing as freely as one merchant competes
with another by means of advertisements in the press, by circulars,
or by his window
Page 301 U. S. 482
display. Each member of the unions, as well as Senn, has the
right to strive to earn his living. Senn seeks to do so through
exercise of his individual skill and planning. The union members
seek to do so through combination. Earning a living is dependent
upon securing work, and securing work is dependent upon public
favor. To win the patronage of the public, each may strive by legal
means. Exercising its police power, Wisconsin has declared that in
a labor dispute peaceful picketing and truthful publicity are means
legal for unions. It is true that disclosure of the facts of the
labor dispute may be annoying to Senn, even if the method and means
employed in giving the publicity are inherently unobjectionable.
But such annoyance, like that often suffered from publicity in
other connections, is not an invasion of the liberty guaranteed by
the Constitution.
Compare Pennsylvania Railroad Co. v. United
States Railroad Labor Board, 261 U. S. 72.
[
Footnote 5] It is true also
that disclosure of the facts may prevent Senn from securing jobs
which he hoped to get. But a hoped-for job is not property
guaranteed by the Constitution. And the diversion of it to a
competitor is not an invasion of a constitutional right.
Sixth. It is contended that, in prohibiting an
injunction the statute denied to Senn equal protection of the laws,
and
Truax v. Corrigan, supra, is invoked. But the issue
suggested by plaintiff does not arise. For we hold that the
provisions of the Wisconsin statute which authorized the conduct of
the unions are constitutional.
Page 301 U. S. 483
One has no constitutional right to a "remedy" against the lawful
conduct of another.
Affirmed.
[
Footnote 1]
Subsections (h), (i), and (k) are likewise relevant to the
present issue, as supplementing subsections (e) and (l), but do not
require special discussion.
[
Footnote 2]
The complaint as to certain action of defendants other than the
picketing was disposed of by defendants' agreement to discontinue
the same, and is not now in question. It had been shown that, with
a view to picketing Senn's jobs, the unions had caused his
automobile to be followed from his place of business to the jobs
where he and his men were working. It had also been shown that,
some months earlier, the unions had sent letters to local
architects and contractors requesting them not to patronize Senn
because he was conducting a nonunion shop, and threatening to
picket them if they did so, but that there had been no picketing of
any architect or contractor, and no such steps had been taken by
the unions. Through counsel, the unions agreed: (1) that thereafter
they would not pursue plaintiff's automobile from his residence to
his jobs, and (2) that they would refrain from sending any further
letters to architects or contractors, and would not indulge in any
acts or conduct referred to in the letters theretofore sent. The
court treated this agreement by counsel as disposing of the claim
for relief on this ground.
[
Footnote 3]
Compare Zaat v. Building Trades Council, 172 Wash. 445,
20 P.2d 589;
Roraback v. Motion Picture Machine Operators'
Union, 140 Minn. 481, 168 N.W. 766, 169 N.W. 529;
Hughes
v. Motion Picture Machine Operators, 282 Mo. 304, 221 S.W. 95;
Finke v. Schwartz, 28 Ohio N.P. 407.
See Thompson v.
Boekhout, 249 App.Div. 77, 291 N.Y.S. 572.
[
Footnote 4]
That section provides:
"The term 'labor dispute' includes any controversy concerning
terms or conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment,
or concerning employment relations, or any other controversy
arising out of the respective interests of employer and employee,
regardless of whether or not the disputants stand in the proximate
relation of employer and employe."
[
Footnote 5]
The state has, of course, power to afford protection to
interests of personality, such as "the right of privacy." The
protection by decision or statute of such interests of personality
rests on other considerations than are here involved.
See
Moreland, The Right of Privacy Today (1931) 19 Ky.L.J. 101; Lisle,
The Right of Privacy (1931) 19 Ky.L.J. 137; Green, The Right of
Privacy (1932) 27 Ill.L.Rev. 237, 238.
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
Page 301 U. S. 484
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
Page 301 U. S. 485
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
Page 301 U. S. 486
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. Chauffeurs, Teamsters
& Helpers Union, 222 Wis. 338, 268 N.W. 250, construing §
103.62, it held that, within the meaning of that section, a "labor
dispute" existed between plaintiff and defendants, and that, under
§ 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
Page 301 U. S. 487
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,
262 U. S.
399.
"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,
111 U. S. 762,
approvingly quoted in
Allgeyer v. Louisiana, 165 U.
S. 578,
165 U. S.
589.
"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,
236 U. S. 14.
"It requires no argument to show that the right to work for a
living in the common occupations of the community
Page 301 U. S. 488
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,
239 U. S.
41.
"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,
285 U. S.
278.
"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 anyone 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,
113 U. S.
31.
"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,
118 U. S.
370.
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
Page 301 U. S. 489
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,
257 U. S.
327.
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,
257 U. S. 209;
United Mine Workers v. Coronado Coal Co., 259 U.
S. 344,
259 U. S. 386;
Wolff Packing Co. v. Industrial Court, 262 U.
S. 522,
262 U. S.
540-541;
Dorchy v. Kansas, 264 U.
S. 286,
264 U. S. 289.
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,
272 U. S. 311;
Toledo, A.A. & N.M. Ry. Co. v. Pennsylvania Co., 54 F.
730, 737-739.
And see Truax v. Corrigan, supra,
257 U. S. 327;
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
Page 301 U. S. 490
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 purpose 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 percent 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
Page 301 U. S. 491
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;
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
Page 301 U. S. 492
clauses of the Fourteenth Amendment.
Truax v. Corrigan,
supra, 257 U. S.
328.
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.