Opinion
September 9, 1960 —
October 4, 1960.
APPEAL from two judgments of the circuit court for Milwaukee county: ELMER W. ROLLER, Circuit Judge. Reversed.
For the appellant there were briefs by Robert E. Gratz, attorney, and Daniel L. Shneidman of counsel, both of Milwaukee, and oral argument by Mr. Gratz.
For the respondent the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief were John W. Reynolds, attorney general, and Jay Schwartz, attorney.
Case ruled by Local 248, U.A., A. A. I. W. v. Wisconsin E. R. Board, ante, p. 277.
In Case No. 81 the Wisconsin Employment Relations Board (hereinafter referred to as "W.E.R.B.") petitioned the circuit court pursuant to sec. 111.07(7), Wis. Stats., for enforcement of an order by W.E.R.B. requiring Lodge 78 of the International Association of Machinists, A.F.L.-C.I.O. (hereinafter referred as the "union"), to cease and desist from attempting to collect certain fines from 12 of its members. In Case No. 82, the union petitioned the circuit court pursuant to the Wisconsin Administrative Procedure Act (ch. 227, Stats.) for review of this same order entered by W.E.R.B. The two proceedings were consolidated by the circuit court for the purpose of hearing and determination.
At all times material to the instant litigation the union was the certified collective-bargaining agent for the employees employed in the toolroom of the Milwaukee plant of the Allen-Bradley Company (hereinafter referred to as the "company"). The company is one whose business affects interstate commerce within the meaning of the Labor Management Relations Act, 1947. On September 1, 1956, the union called a strike at such plant, which strike terminated in the last week of such month.
During the strike 14 members of the union crossed the union's picket line and continued to work for the company. After the conclusion of the strike, such 14 members were tried by the union on charges that their conduct constituted a violation of the union's constitution and by-laws, and each was fined $100. Such members made no appearance before the trial committee and were tried in absentia. Demand was made upon each of the 14 for payment of such fines and on January 24, 1957, the union instituted 14 separate actions in the civil court of Milwaukee county to collect such fines. Such actions are still pending.
The 14 affected employees filed charges with the National Labor Relations Board accusing the union of an unfair labor practice in levying such fines and attempting to collect them. The general counsel for such board, in Opinion F-198, dated October 28, 1957, refused to take action on the ground that the conduct of the union was not an unfair labor practice under the proviso appearing in sec. 8 (b) (1) (A) of the Labor Management Relations Act, 29 USCA, p. 258, sec. 158 (b) (1) (A).
Two of the 14 employees filed an action in the United States district court for the District of Columbia to compel the National Labor Relations Board and its general counsel to issue a complaint against the union, which litigation is also pending.
The remaining 12 of these 14 employees filed complaints with W.E.R.B. charging the union with an unfair labor practice under the Wisconsin Employment Peace Act (ch. 111, Wis. Stats.). In its answers the union alleged that W.E.R.B. had no jurisdiction to act in the matter and denied that any violation of the Wisconsin Act had been committed.
The hearing before the W.E.R.B. was held on August 28, 1958, at which time all of the facts were stipulated by counsel. On November 21, 1958, W.E.R.B. made certain findings of fact and conclusions of law which held that the activities of the union were regulated by the Labor Management Relations Act, as amended, and that, therefore, W.E.R.B. had no jurisdiction of the subject matter. W.E.R.B. unanimously dismissed the complaints.
On December 9, 1958, complainants moved W.E.R.B. for a rehearing, and on January 14, 1959, such motion for rehearing was granted. Hearing was again held by W.E.R.B. on February 4, 1959, at which time further argument was had and no further facts adduced.
On April 27, 1959, two of the three members of W.E.R.B. filed amended findings of fact and conclusions of law in which they found that W.E.R.B. had jurisdiction of the subject matter and that a violation of the Wisconsin Employment Peace Act was committed. Affixed to such findings and conclusions was an order directing the union to cease attempting to collect the fines imposed and to set aside the fines. The two-member majority also filed a memorandum accompanying such order.
The minority member filed a memorandum of dissent in which he objected to W.E.R.B.'s asserting jurisdiction; he further disagreed with the majority holding that a violation of state law had been committed.
The union then petitioned for review of such order in the circuit court, and W.E.R.B. sought a judgment of enforcement of its order from such court. Separate judgments in each proceeding were entered under date of April 22, 1960. One dismissed the union's petition for review and the other decreed enforcement of W.E.R.B.'s order. From such judgments the union has appealed.
The same issue of federal pre-emption under the Labor Management Relations Act, 1947, 29 USCA, p. 151 et seq., secs. 151 to 187, is presented here as in Local 248, U. A., .4. A. I. Workers v. Wisconsin E. R. Board, ante, p. 277, 105 N.W.2d 271. Therefore, our decision this day rendered in such case governs the outcome in the instant appeals, and requires that the judgments below be reversed.
By the Court. — Judgments reversed, with directions in Case No. 82 that the order of the Wisconsin Employment Relations Board be vacated and set aside.