Opinion
October 3, 1960 —
November 1, 1960.
APPEALS from two judgments of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Reversed.
For the appellant the cause was argued by John E. Armstrong, assistant attorney general, with whom on the brief was John W. Reynolds, attorney general.
For the respondents there was a brief by Lawton Cates of Madison, and oral argument by Richard L. Cates.
For the complainant Caruso there was a brief and oral argument by Joseph A. Melli of Madison.
On November 18, 1957, Louis Caruso filed a complaint with the Wisconsin Employment Relations Board against Madison Building Construction Trades Council, an organization composed of delegates of the various building trades craft unions in the city of Madison; Pearce Roberts, business manager of said council; Local Union 314 of the United Brotherhood of Carpenters Joiners of America; Carl Eckloff, business agent of said union; Steam Fitters Local Union 394; and A. M. Moen, business agent of the last-named union, as respondents. Throughout this opinion Louis Caruso will be referred to as the complainant and those named as respondents in the complaint will be referred to as the respondents.
The complaint charged that the respondents named therein were engaged in unfair labor practices by illegal picketing and that said illegal picketing constituted a secondary boycott and was illegal. The complaint prayed for an order directing the respondents, and each of them, to cease and desist from said unfair labor practices. The matter was set for hearing on December 2, 1957.
The answer of the respondents therein did not deny the picketing but did deny the effect and purpose thereof. For an affirmative defense the respondents challenged the jurisdiction of the board on the ground that complainant's construction operations affect interstate commerce and that complainant's operations are solely within the jurisdiction of the National Labor Relations Board.
On February 24, 1958, the board filed and served its findings of fact, conclusions of law, and order. By its findings of fact the board first identified the parties and then found that the complainant is a general carpenter-contractor doing business in and about Madison, Wisconsin; that complainant was a member of Local 314 and a signatory to a collective-bargaining agreement with that labor organization; that no dispute of any nature existed between the complainant and any of his employees or between the complainant and any other building contractor, building subcontractor, or any other person or firm doing business with the complainant:
That prior to November 7, 1957, the complainant was engaged as general contractor to construct a residence in the city of Madison; that prior to the issuance of a building permit, the complainant submitted the names of the firms or individuals who were to participate as subcontractors in performing the work necessary to complete the residence; that the name of the Wisconsin Sales Company was submitted as the heating subcontractor, a firm solely owned and operated by Robert Caruso, the complainant's brother, who was neither a member of any labor organization nor a party to any collective-bargaining agreement with any labor organization; that complainant had neither made arrangements with nor had any agreement or understanding with Wisconsin Sales Company to perform any service in the construction of the residence but submitted the name of such firm in order to obtain the building permit;
That sometime prior to November 11, 1957, and subsequent to the issuance of the building permit, delegates of the various labor organizations affiliated with the council met and determined to establish and maintain a picket at the building site for the reason that said delegates were of the belief that the Wisconsin Sales Company was to perform the heating installation in the residence; that during the morning of November 11, 1957, a picket appeared in the immediate area of the building site carrying a sign containing the following legend:
"Construction Workers Organize for Hours, Wages, and Conditions. Join Your AFL Now."
That workmen and subcontractors refused to cross the picket line; that the picketing continued for approximately two weeks and that to the date of the hearing no work was performed on the residence because of the picketing and related activities of the respondents and their agents; that the picketing was engaged in for the purpose of hindering and preventing the obtaining, use, and disposition of materials, equipment, and services by and from the complainant and by and from other firms employing employees in connection with the construction of said residence and for the purpose of injuring the complainant's business by causing persons and firms having contracts with the complainant to cease doing business with him, all in order to coerce the complainant against his will to subcontract the heating installation in the residence to a union contractor;
That during the twelve-month period immediately preceding the hearing, the complainant, in the operation of his business, purchased various materials and supplies in the following amounts: Approximately $223 worth which was manufactured and shipped to the complainant from points outside Wisconsin; approximately $2,325 worth which was manufactured outside Wisconsin but purchased by the complainant from suppliers located in Wisconsin; and approximately $1,085 worth which was manufactured in Wisconsin and purchased by the complainant from suppliers located in Wisconsin; that the value of the materials and supplies required for the completion of the residence would have an approximate value of $9,75O; that included in said materials and supplies would be purchases to be made by the complainant in the approximate value of $6,000 for lumber and hardware; that all of said material and supplies were and had been expected to be purchased in the Madison area; that approximately three fourths of said materials and supplies therefor had been or were to have been shipped into Wisconsin by out-of-state sources; and that the business of Louis Caruso, combined with the business of the firms dealing with him in the erection of said residence, has a trifling effect upon interstate commerce.
The board found as conclusions of law that it had jurisdiction; that the respondents had committed unfair labor practices within the meaning of sec. 111.06, Stats., in that they had engaged in picketing and thereby hindered and prevented the pursuance of lawful work and engaged in a secondary boycott.
By the order therein the respondents were ordered to cease and desist from —
"(a) Picketing or threatening to engage in promoting or inducing picketing at premises on which Louis Caruso is doing business.
"(b) Boycotting or threatening to boycott in any way or manner or inducing others to boycott, by picketing or threatening to picket, persons with whom Louis Caruso may have business relations.
"(c) Hindering or preventing, by threats, intimidation, force or coercion, the obtaining, use, or disposition of materials, equipment, or services by Louis Caruso."
The respondents were also directed to take affirmative action by posting notices to their officers, members, and agents, in conspicuous places in their headquarters, of a notice prescribed by the board and by forwarding a copy of the executed notice to certain subcontractors of the complainant.
On February 28, 1958, the respondents petitioned the circuit court for Dane county for a review of the board's order. On April 11, 1958, the board filed a petition wherein it sought an order of enforcement of its order of February 24th by said circuit court under the provisions of sec. 111.07 (7), Stats. The two petitions were considered together by the circuit court and a joint memorandum decision covering both cases was filed on December 31, 1959. Therein the trial court announced its determination that the board had jurisdiction; that its findings of fact and conclusions of law were supported by substantial evidence in the record and that its cease-and-desist order was a valid exercise of the board's lawful authority when entered. However, the trial court felt that the necessity for the cease-and-desist order had been substantially fulfilled and the court directed judgments confirming the decision of the board in all respects except that the cease-and-desist order terminate as of December 31, 1959. Separate judgments were accordingly entered on January 29, 1960, and the board appealed from said judgments.
The sole issue presented to this court upon the appeals is the authority of the circuit court to enter the judgments herein. Each side approaches the issue from a different angle.
The attorney general deals with the matter as though the only case before the court was the appeal by the respondents from the order of the board. Such reviews are under the provisions of ch. 227, Stats. It is contended that the circuit court exceeded the authority given it in reviewing the orders of administrative agencies under the provisions of that chapter. Undoubtedly the board would have been correct if that were the only matter before the circuit court. However, the court was dealing with two separate, though related, matters. The board had petitioned for an enforcement order and the procedure therein is governed by sec. 111.07 (7), Stats. A portion of that section effective at the time of the petition as follows:
"Upon such hearing the court may confirm, modify, or set aside the order of the board and enter an appropriate decree. No objection that has not been urged before the board shall be considered by the court unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact made by the board, if supported by credible and competent evidence in the record, shall be conclusive."
The respondents argue the issue as though the enforcement proceeding was the only matter before the court. They refer to the first portion of the quoted part of the statute and contend that the circuit court's refusal to enforce the board's order was proper since the order was no longer necessary. They contend that the picketing had stopped prior to the hearing before the board; that the controversy involved only a limited amount of construction, i.e., one dwelling, which had obviously been completed by the end of 1959; that the board's findings directed attention exclusively to the building site that was picketed; that its determination of jurisdiction was based upon the complainant's business activities in the year 1957 and, since conditions and facts change, the court could modify the cease-and-desist order.
The respondents further contend that certain language in sec. 111.07 (7), Stats., gives to the court in enforcement proceedings such discretion as usually vests in a court of equity. In Condura Construction Co. v. Milwaukee Bldg. — Construction Trades Council, 8 Wis.2d 541, 99 N.W.2d 751, a permanent injunction was entered by the circuit court enjoining defendants from picketing plaintiff's premises and construction sites. In that case we held that permanent injunctions are not irrevocable but they are permanent only so long as the conditions which justified the injunction remain permanent. A court of equity has authority to modify a permanent injunction once issued by it. In the present case we are dealing with an administrative review and with a field of administrative law that is governed by statute.
The respondents also refer to the concurring opinion of the late Mr. Justice WICKHEM in Wisconsin E. R. Board v. Allis-Chalmers Workers' Union, 252 Wis. 436, 445, 31 N.W.2d 772, wherein he stated, "I assume that this commits to the court such discretion as usually vests in a court of equity." With all due respect to the great judicial stature of Mr. Justice WICKHEM, that statement was his personal opinion and was not the opinion of the court. However, the decision in that case is controlling here.
The defendants in that case, while on strike against the Allis-Chalmers Company in November and December, 1946, engaged in mass picketing and violence. A complaint based upon the activities of the defendants was filed with the board and, after hearing, the board entered an order directing the union to cease and desist from interfering with the conduct of lawful work and with ingress and egress to the factory by means of mass picketing, coercion, intimidation, violence, and the like. In that case, as here, the board filed a petition for enforcement. The union moved to dismiss the petition for enforcement since the strike had been settled and the matter was moot. The circuit court granted the motion of the union. This court reversed. In the decision several United States supreme court cases were cited which held that although private parties may settle their controversies at any time, because of the public interest in orders of administrative agencies an order made by an administrative board, lawful when made, does not become moot because a change in circumstances indicates that the need for it may be less than when made.
Here the trial court had before it only the record made before the board. The determination by the trial court that there was no longer any necessity for the cease-and-desist order was the equivalent of saying that the case was moot, and comes squarely within the rule laid down in the Allis-Chalmers Case, supra. We conclude, therefore, that the circuit court for Dane county had no authority to modify the cease-and-desist order of the board as of December 31, 1959, for the reason that the order had served its purpose and was no longer necessary.
By the Court. — Judgments reversed. Causes remanded to the circuit court with directions to enter a judgment affirming the order of the Wisconsin Employment Relations Board dated February 24, 1958, upon the petition for the review thereof, and to enter a judgment confirming and enforcing the provisions of the order as prayed for in the petition for enforcement by said board.