Browne v. Milwaukee Bd. of School Directors

• Decision Date: 30 June 1975
• Docket Number: AFL-CIO,No. 421,421
• Citation: 230 N.W.2d 704,69 Wis.2d 169
• Parties: , 90 L.R.R.M. (BNA) 2412, 77 Lab.Cas. P 53,743 Phyllis Ann BROWNE et al., Respondents, v. The MILWAUKEE BOARD OF SCHOOL DIRECTORS et al., Defendants, American Federation of State, County and Municipal Employees,, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 704

230 N.W.2d 704

69 Wis.2d 169, 90 L.R.R.M. (BNA) 2412,

77 Lab.Cas. P 53,743

Phyllis Ann BROWNE et al., Respondents, v. The MILWAUKEE BOARD OF SCHOOL DIRECTORS et al., Defendants American Federation of State, County and Municipal Employees, AFL-CIO, et al., Appellants.

No. 421.

Supreme Court of Wisconsin.

June 30, 1975.

Goldberg, Previant & Uehlmen, John S. Williamson, Jr., Milwaukee, for appellants.

Willis B. Ferebee, Milwaukee, Michael E. Merrill, Raymond J. LaJeunesse, Jr., Fairfax, Va., and John L. Kilcullen, Washington, D.C., of counsel, for respondents.

HEFFERNAN, Justice.

The appeal is by the defendants, the American Federation of State, County and Municipal Employees, AFL-CIO, from an order overruling the demurrer to the complaint. The action was brought by named secretarial, clerical, and technical employees of the Milwaukee Board of School Directors. The action was brought on behalf of themselves and on behalf of approximately 150 other employees who are similarly situated to test the constitutionality of that portion of the Municipal Employment Relations Act which provides that a union representing a majority of the employees in a bargaining unit may enter into a 'fair-share agreement' which obligates all employees in the bargaining unit, even those who are not members of the union, to 'pay their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required of all members.' That agreement is authorized by secs. 111.70(1)(h) and 111.70(2), Stats.

The named plaintiffs are not members of the union, but under that 'fair-share agreement,' a sum is deducted from their wages an an amount equal to the dues that are required of union members. They seek to have that deduction from their wages declared unconstitutional, because a portion of it, they allege, is used for political purposes unrelated to collective bargaining and contract administration. They also seek the general declaration that statutes authorizing 'fair-share agreements' are unconstitutional.

They have asked for an order determining that the action may be maintained as a class action and also for a temporary and permanent injunction restraining the defendants, the Board of Education and the Union, from enforcing the 'fair-share agreement' against the named plaintiffs and the 150 other members of the same class. In addition, they request judgment awarding them damages in the sum of money heretofore collected under the 'fair-share agreement.'

In response to the complaint, the School Board answered, stating that it took no position on the merits of the controversy, and in effect it has agreed to abide without argument with whatever disposition is made of the case as the result of the controversy between the plaintiffs and the defendant union.

The union demurred to each of the four counts of the complaint. It demurred on the grounds that the complaint failed to state a cause of action, in that the plaintiffs had failed to allege an exhaustion of administrative remedies, they had failed to allege an exhaustion of contractual remedies, and they had failed to allege they had exhausted internal union remedies.

The union also contends that the plaintiffs did not allege facts sufficient to show that they represent a proper class and, therefore, that the case should not proceed as a class action. This latter argument was the basis for the demurrer on the ground of defect of parties.

The trial judge, on October 9, 1973, ordered the demurrer overruled on each ground. The union has appealed. We affirm.

Since this is an appeal from a demurrer, those facts properly pleaded are admitted. It is thus undisputed, in these proceedings only, that the union has used the money for purposes unrelated to collective bargaining. The plaintiffs allege that such purposes include (1) the financial support of political campaigns of candidates for public office; (2) the propagation of political and economic doctrines, concepts, ideologies, and legislative programs opposed by the plaintiffs and the class they represent; and (3) the payment of costs of publications, conventions, and strike benefits. The plaintiffs allege that these expenses are not embraced in the phrase, 'cost of the collective bargaining process and contract administration.' They allege that the use of the money for these purposes violates the rights guaranteed to the plaintiffs under the Fourteenth Amendment to the United States Constitution and various provisions of the Bill of Rights of the Wisconsin Constitution.

The allegation of the plaintiffs is that the statute itself is unconstitutional, in that it compels the payment of a 'fair-share' in the amount equal to member dues. There is no contention that the deduction is not in the sum mandated by the statutes.

They also allege that no public purpose is accomplished by a government-compelled exaction from their wages, for the money exacted goes to a private organization, and in fact a portion of the money is used against the public purpose because it financially supports strikes by public employees in violation of state law.

They also allege that there is an unconstitutional delegation of legislative power, because the union, under the statutorily approved agreement, may determine the amount or tax to be deducted from the wages of public employees.

They also allege that the statutes are unconstitutional, because the procedures for testing a 'fair-share agreement' by referendum are more onerous to nonunion municipal employees than the procedures approved by statute in respect to nonunion employees in private industry.

Since the question is before us on demurrer, the merits of these allegations are not under consideration by the court. The question is: Did the plaintiffs state a cause of action. We conclude that they did.

One of the grounds for demurrer is that the court lacks jurisdiction over the subject matter because the Wisconsin Employment Relations Commission has exclusive jurisdiction over the subject matter.

The union argues that the remedy before the Wisconsin Employment Relations Commission is exclusive, at least in the sense that that remedy must first be exhausted, because sec. 111.70(2), Stats., provides:

'Such fair-share agreement shall be subject to the right of the municipal employer or a labor organization to petition the commission to conduct a referendum.'

For the purposes of this appeal it is assumed, and the plaintiffs do not contest that assumption, that nonunion members could petition for such referendum to be conducted by the W.E.R.C. The union, therefore, argues that, because the plaintiffs have not alleged that they have exhausted the remedy of referendum or that any attempt to use that remedy would be futile, the jurisdiction of the W.E.R.C. is exclusive. This argument fails, we conclude, because the plaintiffs are not attacking the underlying factual premise of a 'fair-share agreement,' i.e., that it has the support of the majority of the employees. Their implicit assumption is that the statutes have been complied with but the statutes themselves are unconstitutional. This issue, which is at the heart of the plaintiffs' complaint, is irrelevant to the W.E.R.C.'s exclusive jurisdiction to order a referendum.

The issue in this case, the constitutionality of the statutes, is one in which both the courts and the W.E.R.C. arguably have jurisdiction. Accordingly, the question is not that of exhaustion of remedies, which may grant exclusivity of jurisdiction to an administrative agency, but rather the priority with which jurisdiction should be exercised. The issue, therefore, is one of primary jurisdiction under which a trial court can, in its discretion, either hear a case or defer to the expertise of an administrative agency. The doctrine of primary jurisdiction was ably discussed in Wisconsin Collectors Ass'n, Inc., v. Thorp Finance Corp. (1966), 32 Wis.2d 36, 44 ff., 145 N.W.2d 33. That discussion emphasized that the question of primary jurisdiction arises only in cases where there is concurrent jurisdiction in the administrative agency and in the courts. Accordingly, the question is not one of subject matter jurisdiction, but which portion of the dispute-settling apparatus--the courts or the agencies--should, in the interests of judicial administration, first take the jurisdiction that both the agency and the court have. As we said in Wisconsin Collections Assn, Inc.:

'Nonetheless, we believe it improper to couch such priority in terms of power or jurisdiction. The standard, in our opinion, should not be power but comity. The court must consider which course would best serve the ends of justice. If the issue presented to the court involves exclusively factual issues within the peculiar expertise of the commission, the obviously better course would be to decline jurisdiction and to refer the matter to the agency. On the other hand, if statutory interpretation or issues of law are significant the court may properly choose in its discretion to entertain the proceedings. The trial court should exercise its discretion with an understanding that the legislature has created the agency in order to afford a systematic method of factfinding and policymaking and that the agency's jurisdiction should be given priority in the absence of a valid reason for judicial intervention.' (Pp. 44, 45, 145 N.W.2d p. 36.)

In the instant case, there is no substantial factual dispute. For demurrer purposes at least, it is agreed that money is deducted from the wages of the plaintiffs and some of that money is used for political purposes not related to the collective bargaining process. The issue posed by the case is the constitutionality of the statutes that authorize those deductions under a 'fair-share agreement' that conformed to the statutory prescription.

Applying the rationale of Wisconsin Collectors Assn, Inc., where...