Christoffel v. Wis. Emp't Relations Bd.

• Decision Date: 16 June 1943
• Citation: 243 Wis. 332,10 N.W.2d 197
• Parties: CHRISTOFFEL et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al.
• Court: Wisconsin Supreme Court

243 Wis. 332

10 N.W.2d 197

CHRISTOFFEL et al.

v.WISCONSIN EMPLOYMENT RELATIONS BOARD et al.

Supreme Court of Wisconsin.

June 16, 1943.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

Action by Harold Christoffel and Allis Chalmers Workers' Union, Local No. 248, United Automobile Workers of America, affiliated with the C. I. O., against the Wisconsin Employment Relations Board and others, to review an order of the defendant board. The board cross-complains for enforcement of its order. From a judgment affirming the order of the board and directing its enforcement, the plaintiffs appeal. The facts are stated in the opinion.

A. W. Richter, of Milwaukee, for appellants.

John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., for respondents.

FOWLER, Justice.

The respondents, Nicholas Imp and Michael Bohachef, employees of the Allis Chalmers Manufacturing Company, hereinafter referred to as “the company,” were complainants in a proceeding before the Wisconsin Employment Relations Board, hereinafter referred to as “the board,” in which the appellants, Harold Christoffel and Allis Chalmers Workers' Union No. 248, United Automobile Workers of America, C. I. O., hereinafter referred to as “the union” or “local 248,” were charged with unfair labor practices. Christoffel is an employee of the company, and a member and president of the union, and a member of the bargaining committee of the union, and the union is the bargaining representative of the employees of the company under appointment of the National Labor Relations Board in proceedings previously before that board under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The complainants before the state board alleged that Christoffel and the union had engaged and were engaged in three unfair labor practices: (1) They had promoted and were conducting a strike at the West Allis plant of the company without a majority of the bargaining unit of the employees having by secret ballot voted therefor contrary to sec. 111.06(2) (e), Wis.Stats. (2) They had orally and in writing attempted and were presently attempting to coerce, intimidate and induce the company to discharge the complainants as employees and thereby to interfere with the enjoyment of their legal right guaranteed by sec. 111.04, Stats., to refrain from joining or assisting the union, contrary to sec. 111.06(2) (b). (3) They had intimidated the complainants by threatening them with bodily harm, by bringing false criminal charges against them, by injury and threatened injury to their persons and property and had harassed and hindered them for their refusal to join or assist the union to the prejudice of their legal rights guaranteed by said sec. 111.04, contrary to sec. 111.06(2) (a), Stats.

Upon hearing the board found charge (1) not sustained and dismissed the complaint as to that charge. The board made no order in any way relating to or affecting the conduct of plaintiffs in connection with the strike. The board found charges (2) and (3) sustained, made cease and desist orders upon its findings, and directed affirmative action. The plaintiffs brought action in the circuit court for Milwaukee county to review the action of the board. The trial court affirmed the action of the board and entered judgment for enforcement of its order. From that judgment the plaintiffs have appealed.

To avoid confusion, Bohachef and Imp, the parties who instituted the proceedings before the board, will hereinafter be referred to as “complainants” and Christoffel and the union, who commenced the circuit court action, as the “plaintiffs.”

The plaintiffs in effect make seven contentions: (1) The state board was without jurisdiction. (2) The provisions of sec. 111.04, Stats., declaring the right of employees to refrain from joining and assisting labor organizations is invalid. (3) The findings of fact of the board are not sustained by the evidence. (4) The board had no power to issue the order because the attempts of the plaintiffs did not effect coercion. (5) The orders are erroneous because the union is not bound by the acts of its members. (6) The cease and desist order is erroneous because indefinite. (7) The order of the board violates the free speech clause of the United States Constitution. We will take up these contentions seriatim.

(1) (a) The plaintiffs objected before the board and before the court and here urge that the state board was without jurisdiction to entertain proceedings because the National Labor Relations Board had taken jurisdiction under the National Labor Relations Act of the matters here involved. Both the board and the court overruled this objection. This contention would seem to be sufficiently met by the rulings of this court in Wisconsin Labor Relations Board v. Fred Rueping Leather Co., 228 Wis. 473, 279 N.W. 673, 117 A.L.R. 398;Hotel & Restaurant Employees' Internat'l Alliance, Local 122 v. Wis. Employment Relations Board, 236 Wis. 329, 294 N.W. 632,295 N.W. 634;Allen-Bradley Local 1111 et al., v. Wisconsin Employment Relations Board, 237 Wis. 164, 295 N.W. 791, and the rulings of the Supreme Court of the United States in the two latter cases, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946, and 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154. In these cases it was held that there was no conflict of jurisdiction because proceedings between the interested adverse parties had been before the national board involving matters not in issue before the state board.

If this is not sufficient on the point of conflict of authority, reading of the national act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., shows that the national board has no jurisdiction of matters such as are involved in the instant proceeding. The powers of the national board as to unfair labor practices are limited by sec. 10(a) of the act to preventing, as in the act provided, “any person from engaging in any unfair labor practice (listed in sec. 8) affecting commerce.” The matters comprised in the orders of the board in no way affected commerce. Sec. 8 provides that “It shall be an unfair labor practice for an employer” to do certain specified things. Subsec. (b) of sec. 10 provides that “Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice” the board may proceed to hear the charge and if established (c) may make cease and desist orders or dismiss the proceedings as the facts found may require. There is no such thing under the national act as an unfair labor practice by employees, or any provision for investigation or determination of controversies between employees. The state act, however, sec. 111.06(2), declares that: “It shall be an unfair labor practice for an employe individually or in concert with others: (a) To coerce or intimidate an employe in the enjoyment of his legal rights, including those guaranteed in section 111.04 * * * or injure the * * * property of such employe”; and “(b) To coerce, intimidate or induce any employer to interfere with any of his employes in the enjoyment of their legal rights, including those guaranteed in section 111.04.”

By sec. 111.04, Stats., employees are guaranteed the right to refrain from joining or assisting any labor organization.

Sec. 111.07, subsecs. (2) and (1), gives to any “party in interest” the right to file with the board a complaint in writing charging any person with having engaged in any specific unfair labor practice, and thereby submit any controversy concerning unfair labor practices to the board; and subsec. (4) of the section empowers the board on hearing on such a complaint to make such findings as the facts in evidence warrant and to dismiss the complaint or enter such cease and desist orders and take such affirmative action as the facts found may require. It thus appears both that the state board did have, and the national board did not have, jurisdiction of the matters here involved which comprise only unfair labor practices by employees and protection of some employees against interference by other employees with their legal rights through unfair labor practices of such other employees.

(1) (b) The plaintiffs in their petition for review lay as ground for reversal of the judgment of the court that since the hearing conducted by the state board the union and the company have entered into an agreement with the approval of the Defense Mediation Board for the sole and exclusive adjudication of all matters that can possibly arise under “Finding 4” of the state board by means of a compulsory reference to Dean Lloyd K. Garrison as referee. Finding 4 merely states in effect that no agreement executed between the union and the company contains an “all union” or “closed shop” provision, and that there is no contract between them requiring that employees shall become or remain members of the union. It is not indicated by what authority the “Defense Mediation Board”-whatever it is and by whatever authority it is established-is empowered to render nugatory the orders of the state board or prevent their enforcement. But by-passing that, the record herein does not disclose that any such agreement as above stated was made or that if made such matters as are involved herein were to be referred. The decision of the circuit judge recites that the minutes of a meeting on May 2, 1941, of representatives of the union and the company, presided over by Dean Garrison as referee by appointment of the National Defense Mediation Board and a report of the referee were considered by the court, but neither these minutes nor the report of the referee are in the record. The record before us consists of the summons and pleadings in the circuit court action, the written decision, findings and judgment of the circuit court, and the record of the proceeding before the state board. The certification of the board proceedings is dated March 13,...