CERTIORARI TO THE SUPREME COURT OF WISCONSIN.
Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan, Brennan; Whittaker took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is one more in the long series of cases in which this Court has been required to consider the limits imposed by the Fourteenth Amendment on the power of a State to enjoin picketing. The case was heard below on the pleadings and affidavits, the parties stipulating that the record contained "all of the facts and evidence that would be adduced upon a trial on the merits . . . ." Respondent owns and operates a gravel pit in Oconomowoc, Wisconsin, where it employs 15 to 20 men. Petitioner unions sought unsuccessfully to induce some of respondent's employees to join the unions and commenced to picket the entrance to respondent's place of business with signs reading, "The men on this job are not 100% affiliated with the A. F. L." "In consequence," drivers of several trucking companies refused to deliver and haul goods to and from respondent's plant, causing substantial damage to respondent. Respondent thereupon sought an injunction to restrain the picketing.
The trial court did not make the finding, requested by respondent, "That the picketing of plaintiff's premises has been engaged in for the purpose of coercing, intimidating and inducing the employer to force, compel, or induce its employees to become members of defendant labor organizations, and for the purpose of injuring the plaintiff in its
business because of its refusal to in any way interfere with the rights of its employees to join or not to join a labor organization." It nevertheless held that by virtue of Wis. Stat. § 103.535, prohibiting picketing in the absence of a "labor dispute," the petitioners must be enjoined from maintaining any pickets near respondent's place of business, from displaying at any place near respondent's place of business signs indicating that there was a labor dispute between respondent and its employees or between respondent and any of the petitioners, and from inducing others to decline to transport goods to and from respondent's business establishment.
On appeal, the Wisconsin Supreme Court at first reversed, relying largely on A. F. of L. v. Swing, 312 U.S. 321, to hold § 103.535 unconstitutional, on the ground that picketing could not constitutionally be enjoined merely because of the absence of a "labor dispute." 270 Wis. 315, 71 N. W. 2d 359.
Upon reargument, however, the court withdrew its original opinion. Although the trial court had refused to make the finding requested by respondent, the Supreme Court, noting that the facts as to which the request was made were undisputed, drew the inference from the undisputed facts and itself made the finding. It canvassed the whole circumstances surrounding the picketing and held that "One would be credulous, indeed, to believe under the circumstances that the union had no thought of coercing the employer to interfere with its employees in their right to join or refuse to join the defendant union." Such picketing, the court held, was for "an unlawful purpose," since Wis. Stat. § 111.06 (2)(b) made it an unfair labor practice for an employee individually or in concert with others to "coerce, intimidate or induce any employer to interfere with any of his employes in the enjoyment of their legal rights . . . or to engage in any practice with regard to his employes which would
constitute an unfair labor practice if undertaken by him on his own initiative." Relying on Building Service Employees v. Gazzam, 339 U.S. 532, and Pappas v. Stacey, 151 Me. 36, 116 A. 2d 497, the Wisconsin Supreme Court therefore affirmed the granting of the injunction on this different ground. 270 Wis. 321a, 74 N. W. 2d 749.
We are asked to reverse the judgment of the Wisconsin Supreme Court, which to a large extent rested its decision on that of the Supreme Judicial Court of Maine in Pappas v. Stacey, supra. When an appeal from that decision was filed here, this Court granted appellee's motion to dismiss for lack of a substantial federal question. 350 U.S. 870. Since the present case presents a similar question, we might well have denied certiorari on the strength of our decision in that case. In view of the recurrence of the question, we thought it advisable to grant certiorari, 352 U.S. 817, and to restate the principles governing this type of case.
It is inherent in the concept embodied in the Due Process Clause that its scope be determined by a "gradual process of judicial inclusion and exclusion," Davidson v. New Orleans, 96 U.S. 97, 104. Inevitably, therefore, the doctrine of a particular case "is not allowed to end with its enunciation and . . . an expression in an opinion yields later to the impact of facts unforeseen." Jaybird Mining Co. v. Weir, 271 U.S. 609, 619 (Brandeis, J., dissenting). It is not too surprising that the response of States -- legislative and judicial -- to use of the injunction in labor controversies should have given rise to a series of adjudications in this Court relating to the limitations on state action contained in the provisions of the Due Process Clause of the Fourteenth Amendment. It is also not too surprising that examination of these adjudications should disclose an evolving, not a static, course of decision.
The series begins with Truax v. Corrigan, 257 U.S. 312, in which a closely divided Court found it to be violative
of the Equal Protection Clause -- not of the Due Process Clause -- for a State to deny use of the injunction in the special class of cases arising out of labor conflicts. The considerations that underlay that case soon had to yield, through legislation and later through litigation, to the persuasiveness of undermining facts. Thus, to remedy the abusive use of the injunction in the federal courts (see Frankfurter and Greene, The Labor Injunction), the Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. § 101, withdrew, subject to qualifications, jurisdiction from the federal courts to issue injunctions in labor disputes to prohibit certain acts. Its example was widely followed by state enactments.
Apart from remedying the abuses of the injunction in this general type of litigation, legislatures and courts began to find in one of the aims of picketing an aspect of communication. This view came to the fore in Senn v. Tile Layers Union, 301 U.S. 468, where the Court held that the Fourteenth Amendment did not prohibit Wisconsin from authorizing peaceful stranger picketing by a union that was ...