Summary
In Appleton Chair Corp. v. United Brotherhood (1941), 239 Wis. 337, 343, 1 N.W.2d 188, this court observed that the legislature deals with labor disputes "not primarily as a method of enforcing private rights, but to enforce the public right as well."
Summary of this case from General D. H. Union v. Wisconsin E. R. BoardOpinion
November 7, 1941 —
December 2, 1941.
APPEAL from three judgments of the circuit court for Outagamie county: J. R. McCARTHY, Circuit Judge. Affirmed.
Heber H. Pelkey of Appleton, for the appellant.
For the respondent Millmen's Local No. 1748 the cause was submitted on the briefs of Walter Melchoir, attorney, and A. J. Cohen of counsel, both of Appleton.
For the respondent Wisconsin Employment Relations Board there were briefs by the Attorney General, James Ward Rector, deputy attorney general, and Beatrice Lampert, assistant attorney general, and oral argument by Mrs. Lampert.
These appeals involve a statutory review of two orders of the Wisconsin employment relations board upon which two of the judgments appealed from were based.
One order is based on the finding that the Appleton Chair Corporation as employer was guilty of unfair labor practices and it directed the corporation to cease and desist from such practices and to take certain affirmative action. The circuit court by its judgment provided for the enforcement of that order. The second order of the board dismissed the complaint of the Appleton Chair Corporation charging the union and certain of the company employees with unfair labor practices; it dismissed the petition of the corporation to review; and it confirmed the order of the board. These judgments were dated April 26, 1941. A supplementary judgment was entered July 1, 1941, ordering and adjudging the Appleton Chair Corporation and Willard Westbury, its president, guilty of contempt of court in having wilfully disobeyed the judgment of the court. The Appleton Chair Corporation appeals from all three judgments.
The Appleton Chair Corporation is a manufacturing concern located at Appleton, Wisconsin. On November 6, 1940, it had ninety-one production employees. Prior to that time there had been no labor organization in the plant, but there had been some discussion among the employees about obtaining more pay, the average wage being thirty-six to thirty-seven cents an hour. Part of the employees did not work on the afternoon of November 6th, but remained gathered around the time clock where they had eaten their lunch. Various estimates of the number of employees who did not return to work ranged from forty-two to fifty-one. A committee was appointed which called on the president of the company and demanded an increase in wages of five cents an hour. All requests were denied. At about 4:30 that afternoon the company's president had a notice posted on the company's bulletin board which read:
"In view of the fact that we have many applications of people who wish to work, all of our employees who do not wish their jobs, please notify us, and those not reporting for work in the morning, of November 7th, we will consider that they have quit. The Management."
That evening a group of the strikers met and a yellow sheet was passed and signed by those present. Later other employees were asked to and did sign the paper. It was oval in shape and so signed that it would be impossible to detect who signed first or in what order. This paper had no other writing but the signatures on it. The next morning nonstriking employees found one of the company's three gates wired shut and the other two attended by strikers. A picket line was formed at one of the gates. Although the evidence is somewhat cloudy as to just what transpired before work that morning there is no evidence of any violence at that time and the employer's agent testified that when forty-six were on strike on November 7th, there were forty-five employees working. The mill continued to operate with a reduced personnel. There was evidence of swearing and name-calling on the part of the strikers. Nonstrikers found sugar in the gasoline tanks of their cars. There was no direct testimony that the strikers did put the sugar in the tanks. Roofing nails were also found in the driveway.
Between November 7th and December 20th, the union was declared to be the lawful bargaining unit for the employees, and several conferences were held between representatives of the employer and of the employees but no definite agreement could be arranged. At the last meeting the employees were told there could be no basic wage increase but that an engineer would be called in to make a survey of the plant to determine the possibility of adopting a bonus plan. No definite plan for such a system or for the employment of the strikers in the interim was presented. When asked if anything could come of the meeting the employer's agent answered in the negative. Just after the meeting formally broke up the principal stockholder was asked to, put the strikers back to work at the old wage base but that request was refused. Filing of complaints with the labor board then followed.
Refusal to increase wages was attributed by the company to the fact that operating losses had been experienced in 1936, 1937, 1938, and 1939, and that the corporation had been reorganized twice within a period of three years in an effort to keep it a going concern. Lack of business was also given as an excuse, but testimony of the corporation's president showed that shipments during 1940 were ninety-one per cent of those in 1939 and that in January, 1941, employees were working forty-nine hours per week.
The cases were briefed and argued together in the court below as well as before this court and the findings and orders in both matters before the board will be considered together. The labor board found that the union members picketed without a majority vote by secret ballot to strike, but that they were not guilty of any unfair labor practices and dismissed the complaint against them. The employer, however, was found to be guilty of interfering with the formation of a union by threatening the loss of employment and in refusing to reinstate striking employees and in refusing to bargain in good faith with the representatives of a majority of its employees. An order was entered to cease and desist such activity and to take certain affirmative action. That order has not been complied with.
Appellant assigns as error the findings by the labor board as well as the failure to find the employer-employee status had been terminated by the unfair practice of the union. Appellant charges the court erred in not setting aside those orders of the board and in adjudging the company and its president guilty of contempt of court for violation of the judgment commanding specific action on the part of the company.
Respondent contends that there was competent and credible evidence to sustain the board's findings and that they were properly affirmed. Respondent also claims that the employee status is not automatically terminated by participation in a strike without first holding a secret ballot and that the court had jurisdiction to adjudge appellant and its president guilty of contempt of court.
Had the financial difficulties of the employer been thoroughly understood by the complaining employees or had the patience of the management not been so quickly exhausted, the dispute in all probability would not have required the intervention of the Wisconsin employment relations board. But each side, yielding to its basic prejudices, took positions opposed to the other. The employer adhered firmly to its position and as found by the board it refused to bargain in good faith. Under such circumstances an adjustment could not be accomplished without an investigation and a determination by the board as to who was failing to enter in good faith into an effort calculated to unravel a labor dispute. The board reached a conclusion and the evidence fairly sustains the findings. The court cannot exercise the powers conferred on the board as an administrative agency and substitute its opinion for the judgment of the board.
In dealing with this matter of labor disputes the legislature has recognized a public interest in the relation between employer and employee. It grows out of the employment and the operation of the industry of the employer. The enactments in relation thereto do not destroy nor are they calculated to invade contract rights, but they do seek to protect the public against unfair labor practices and to foster the continuance of that relation in which the public is interested. Wisconsin Labor R. Board v. Fred Rueping L. Co. 228 Wis. 473, 279 N.W. 673. It has been definitely declared that the relation shall not be dissolved because of differing ideas as to the right of collective bargaining or union membership. It is an established and justified rule which gives the authority to the labor board to determine, in a labor dispute over wages or working conditions, whether the act of an employee or employees is a complete and irrevocable termination of the employee status. Bitterness engendered at such time might lead either side to act in utter disregard of the public interest which the legislation has declared shall be protected. As pointed out in the case of Allen-Bradley Local 1111 v. Wisconsin E. R. Board, 237 Wis. 164, 183, 295 N.W. 791, the legislature deals with a labor dispute, not primarily as a method of enforcing private rights, but to enforce the public right as well. In that case it was considered, "in view of the large discretionary power committed to the board, that the act affects the rights of parties to a controversy pending before the board only in the manner and to the extent prescribed by the order" of the board. Appellant urges a review the ruling in that case. But there is a direct relation between continuity of the relation of employer and employee and the public interest. It is the order of the board which determines the status and relative rights of the parties. The findings merely furnish the factual situation to which the board in the exercise of its discretion applies the law. The existence of a certain fact does not of itself require the board to reach a certain result. Such an interpretation would deprive the board of the power to do anything but find the facts. Sec. 111.07 (4), Stats., says that "final orders may" do the things stated. It does not say the board shall do them. It clearly vests in the board a power which it may exercise according to its discretion. In furtherance of public policy where there are unfair labor practices on the part of both employer and employee the board by reason of its disinterested position is authorized to order the remedy most consistent with the public interest. We are of the opinion that the correct rule was announced in the Allen-Bradley Case, supra.
The appeal from the so-called supplementary judgment does not bring the contempt matter before us. The finding of guilty of contempt is not a final sentence of the law pronounced by the court. It is not an appealable order nor is it a final judgment. We find no occasion, therefore, for the exercise at this time of any authority over the so-called contempt proceedings.
By the Court. — Appeal from the ruling dated July 1, 1941, is dismissed. The judgments are affirmed.
I agree that the court correctly determined that the findings of fact made by the labor relations board are sustained by the evidence but am of opinion that the board exceeded its jurisdiction in ordering the reinstatement of the striking employees upon the complaint of the union and erred in dismissing the complaint of the employer.
These two cases were heard together and decided upon the same evidence by the board and by the court. The findings of fact in the case of the employer should in this situation be considered and given effect in the case of the labor union.
The board found in the case of the employer that the employees "co-operated in engaging in, promoting and inducing picketing without a majority of a collective bargaining unit having voted by secret ballot to hold a strike." This under sec. 111.06 (2) (e), Stats., was an "unfair labor practice." The board having found the employees guilty of an unfair labor practice should not have dismissed the employer's complaint, but should have issued an order directing the strikers to cease and desist from continuing that practice until a strike had been voted by secret ballot of all employees.
This finding having been made in the employer's case it should have been carried on into the case of the labor union and there given such effect as the act gives it.
Sec. 111.02 (3), Stats., defines the term "employee" when used in ch. 111, Stats. To be considered as an employee under the chapter, par. (b) provides that one must not "have been found to have committed or to have been a party to any unfair labor practice" under the act. This plainly implies that by committing an unfair labor practice, as did the strikers, the strikers forfeited their status as employees.
By sec. 111.07 (4), Stats., the board's power respecting reinstatement "with or without pay" is limited to reinstatement of employees. As the strikers by their illegal picketing lost their standing as employees, the portion of the board's order reinstating them was erroneous and should have been stricken from the order by the circuit court.
I am therefore of opinion that the judgment affirming the dismissal of the complaint of the employer should be reversed with directions to enter an order requiring the strikers to cease and desist from the unfair labor practice found; and the judgment in the case on the union's complaint should be modified by striking therefrom the provision for reinstatement and affirming the judgment as modified.