Wis. Emp't Relations Bd. v. Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Emp'rs of Am. Div. 998

Citation42 N.W.2d 471,257 Wis. 43
PartiesWISCONSIN EMPLOYMENT RELATIONS BOARD v. AMALGAMATED ASS'N OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYES OF AMERICA, DIVISION 998 et al.
Decision Date30 June 1950
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Action by the Wisconsin Employment Relations Board against the Amalgamated Association of Street, Electric Railway & Motor Coach Employes of America, Division 998, and certain individual defendants who were officers or members of the General Executive Board of the Association to perpetually restrain and enjoin them from calling a strike or causing an interruption of the public passenger service of the Milwaukee Electric Railway & Transport Company in the state of Wisconsin. The Circuit Court, Milwaukee County, Daniel W. Sullivan, J., granted plaintiff's motion for judgment on the pleadings and the defendants appealed from the judgment. The Supreme Court, Broadfoot, J., held that the employer, Electric Street Railway, was engaged in public passenger transportation within Employment Peace Act and that Act did not deprive union and its members of their liberties to contract or of their property without due process and did not inflict involuntary servitude or deny union and its members constitutional right of free speech and right to assemble to consult for the common good.

Judgment affirmed.

See also Wis., 42 N.W.2d 477.

This action was commenced January 4, 1949, by the Wisconsin Employment Relations Board against the Amalgamated Association of Street Electric Railway and Motor Coach Employes of America, Division 998, and certain individual defendants who were officers or members of the general executive board of said association, to perpetually restrain and enjoin them from calling a strike or causing an interruption of the public passenger service of the Milwaukee Electric Railway and Transport Company in the state of Wisconsin. The pleadings consisted of the plaintiff's complaint and amended complaint, the answer of the defendants, and a reply to the answer by the plaintiff. Plaintiff moved for judgment on the pleadings, and the motion was granted. Defendants appeal from the judgment entered on April 11, 1949, granting the injunction prayed for in the amended complaint.

The findings of fact made and filed are as follows:

‘1. That the Wisconsin Employment Relations Board (hereinafter referred to as the board) is and at all times mentioned herein was an administrative body created and existing pursuant to Chapter 111 of the Wisconsin Statutes and that it has responsibility under sec. 111.63 of the Wisconsin Statutes for enforcement or compliance with the provisions of sec. 111.62.

‘2. That the defendant, Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, Division 998 (hereinafter referred to as Division 998), which has its office and usually transacts business in the City of Milwaukee, Milwaukee County, Wisconsin, is the collective bargaining representative of all employees of the Milwaukee Electric Railway and Transport Company, and that the other named defendants are officers or representatives of said Division 998.

‘3. That the Milwaukee Electric Railway and Transport Company is engaged in the business of furnishing public passenger transportation service in Milwaukee County, Wisconsin; that it employs approximately 2700 employees for the purpose of carrying out such service, who are represented by Division 998 for purposes of collective bargaining; that it transports in excess of 100,000,000 passengers annually.

‘4. That on or about January 3, 1949, the membership of Division 998 in a secret referendum voted to authorize its general executive board to call a strike at such time as the board should deem proper; that pursuant to such action of the membership the general executive board fixed the date of the strike of the employees represented by said Division 998 to begin at 4 o'clock A.M. on Wednesday, January 5, 1949; that the defendants released for publication in newspapers of general circulation in Milwaukee County, Wisconsin an announcement of said action by the membership and by the general executive board.

‘5. That in obedience to a temporary restraining order issued by the Circuit Court of Milwaukee County the strike so authorized and directed by the membership and the general executive board of Division 998 was temporarily postponed to await the outcome of the action instituted by this complaint.

‘6. That the defendants threaten to instigate, induce, conspire with and encourage other persons, more specifically, 2700 employees of the Milwaukee Electric Railway and Transport Company, to engage in a strike.

‘7. That the service of such persons described in the preceding finding are essential to carrying out the operations of said Milwaukee Electric Railway and Transport Company.

‘8. That the public passenger transportation service furnished by the Milwaukee Electric Railway and Transport Company is furnished wholly by street car and motor bus within Milwaukee County, Wisconsin; that said service furnished to and for residents of the City of Milwaukee and contiguous suburbs is utilized by employees of many establishments engaged in production of goods for interstate commerce; that the equipment utilized by the company in rendering such service is procured in great measure from points outside the State of Wisconsin; that the National Labor Relations Board conducted an election among employees of the company represented by Division 998 respecting the signing of a union security agreement and certified as a result of said election that Division 998 had complied with the conditions of the National Labor Relations Act [29 U.S.C.A. § 151 et seq.] so as to remove any obstacles under that act from entering into a union security agreement.

‘9. That the defendants threaten to instigate, induce, conspire with and encourage other persons, more specifically 2700 employees of the Milwaukee Electric Railway and Transport Company, to engage in a strike which will cause interruption of an essential service.

‘10. That such conduct of the defendants will work irreparable injury to the plaintiff and to the citizens of the State of Wisconsin, will put the plaintiff to the necessity of bringing a multiplicity of suits, and that said plaintiff has no adequate remedy at law for redress against such conduct.’

No testimony was taken in the trial court. As there is no challenge of the above findings they will be accepted as the facts and our decision will be based thereon.

Padway, Goldberg & Previant, Milwaukee, for appellants.

Thomas E. Fairchild, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., for respondent.

BROADFOOT, Justice.

The defendants upon appeal assert that the judgment should be reversed because ch. 414, Laws of 1947, now secs. 111.50 to 111.65, inclusive, Stats., is not applicable to these defendants; that it is unconstitutional and void because it is repugnant to sec. 7 of the National Labor Relations Act as amended, 29 U.S.C.A. § 157, and is therefore contrary to art. I, sec. 8 and art. VI of the United States constitution; the law violates the Fourteenth Amendment to the constitution of the United States and secs. 1, 2, 3, 4, and 9 of art. I of the Wisconsin constitution; the judgment and the statute upon which it is purportedly based violate the Thirteenth Amendment to the constitution in that they impose involuntary servitude; and further, the judgment is invalid because it is based on ch. 414, Laws of 1947, the several sections of which are unconstitutional and are not severable.

Counsel for the defendants ably advance several persuasive arguments in support of each of their contentions. They might be convincing if the rights of the public in the outcome of this litigation were overlooked. The operations of public utilities have long been subject to scrutiny by regulatory bodies set up by the state to protect the rights of the public. Among the details of their operations subject to regulation are the right to engage in or to discontinue operations, the type and amount of service to be rendered, expansion programs, the type and amount of securities to be issued, rates to be charged, accounting systems and the amount of depreciation permitted to be charged off. In ordinary commercial enterprises these matters are left to management. On the other hand, utilities are granted certain privileges by law, such as the elimination of most competition and the right of eminent domain. Persons who invest their savings in the securities of a public utility know their capital is subjected to the regulation and control of the state. They must weigh the advantages against the disadvantages in determining in what type of enterprise they will invest. Management and investors alone cannot operate a public utility. There must be natural persons employed to give it life. All are part of one organization which is subject to control by the state. So persons seeking employment must weigh the advantages and disadvantages of employment by public utilities. There are many advantages to this type of employment: There is generally a continuity of employment in the public utility field; the state has not been adamant in refusing higher rates when necessary to improve service and working conditions or to bring wages to a standard comparable to wages in other lines of endeavor; the public, too, has been generous in its acceptance of higher rates when they are necessary to pay utility employees suitable wages; utilities may not cease operations nor lock out employees. It is with this in mind that we approach the questions to be determined.

As to the contention that the law does not apply to the defendant employees, the pertinent portions of sec. 111.51, Stats. read as follows:

‘111.51 Definitions. When used in this subchapter:

(1) ‘Public utility employer’ means any employer (other than the state or any...

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