Green v. Granville Lumber & Fuel Co., Inc.

• Decision Date: 30 October 1973
• Docket Number: No. 231,231
• Citation: 211 N.W.2d 467,60 Wis.2d 584
• Court: Wisconsin Supreme Court
• Parties: , 86 L.R.R.M. (BNA) 2569, 72 Lab.Cas. P 14,061 Harry W. GREEN, Sr., et al., as Trustees of the Building Trades United Pension Trust Fund, et al., Respondents, v. GRANVILLE LUMBER & FUEL CO., INC., a Wisconsin corp., Appellant.

Page 467

211 N.W.2d 467

60 Wis.2d 584, 86 L.R.R.M. (BNA) 2569,

72 Lab.Cas. P 14,061

Harry W. GREEN, Sr., et al., as Trustees of the Building

Trades United Pension Trust Fund, et al., Respondents, v. GRANVILLE LUMBER & FUEL CO., INC., a Wisconsin corp., Appellant.

No. 231.

Supreme Court of Wisconsin.

Oct. 30, 1973.

Honeck, Mantyh & Arndt, Milwaukee, for appellant.

Goldberg, Previant & Uelmen, Thomas P. Krukowski and John S. Williams, Jr., Milwaukee, for respondents.

CONNOR T. HANSEN, Justice.

The cause was submitted to the trial court on a stipulation of facts which the court adopted as its findings of fact. The stipulation reflects that the defendant had entered into two collective bargaining agreements with the Carpenters' District Council of Milwaukee County and Vicinity of the United Brotherhood of Carpenters and Joiners of America, ALF-CIO, Local 1582 (hereinafter Union). The first contract ran from June 1, 1964, to May 31, 1966, and the second one from June 1, 1966, to May 31, 1969. Both contracts required the defendant to pay certain sums to the union pension trust fund and the union welfare fund. The first contract provided for the payment of fifteen cents per employee per hour for actual time worked by each employee, with a maximum of forty straight-time hours per week. The second contract increased the payment to the welfare fund to twenty cents per hour, effective December 1, 1966.

The second contract also provided for a vacation pay plan. This provision required the defendant to pay into the vacation fund the sum of $6 per week per man, except 'trainees.' Both contracts provided that the payments were to be made monthly with a $2 per employee penalty to be assessed for each month, or fraction thereof, that the defendant is delinquent.

For the purposes of this litigation, the parties further stipulated that the following amounts are due and owing pursuant to the collective bargaining agreement:

                "Building Trades United Pension Trust
                   Fund ................................ $648.25
                "Carpenters District Council Welfare
                   Fund ................................  709.30
                "Carpenters District Council Vacation
                   Fund ................................   14.00"
                

Defendant argues that since the contributions which it is admittedly obligated to pay pursuant to the terms of the collective bargaining agreement are determined by the number of hours actually worked by each employee, it follows that such payments are a part of one wage 'package.' Therefore, the contributions which have not been paid to the respective funds are, in fact, unpaid wages for personal services and barred by the two-year statute of limitations contained in sec. 893.21(5), Stats., which provides:

'(5) Any action to recover unpaid salary, wages or other compensation for personal services, except fees for professional services.'

Plaintiffs argue that these contributions arise out of the collective bargaining agreement and are a 'form of deferred compensation' which 'serve to wed the employee to the job.' Therefore, these obligations arise out of a contract and do not represent 'unpaid salary, wages or other compensation for personal services,' and are subject to the six-year statute of limitations of sec. 893.19(3), Stats., which provides:

'(3) An action upon any other contract, obligation or liability, express or implied, except those mentioned in ss. 893.16 and 893.18.'

Thus, the issue presented is, which statute of limitations is controlling in this particular case.

In Estate of Javornik (1967), 35 Wis.2d 741, 749, 151 N.W.2d 721, 725, this court construed sec. 893.21(5), Stats., in determining whether the plaintiff was barred in her claim against the decedent's estate for the care she had given Mr. Javornik before he died. It was held:

'We think 'personal services' as used in sec. 893.21(5), Stats., means human labor such as is commonly rendered in return for a salary or a wage in the case of an employee and for 'other compensation' in the case of an independent contractor or one not in an employee relationship. Such human labor must be in the nature of a service as distinguished from the end product or the fruit of the service. While some personal services may result in salable article or an endproduct, the distinguishing feature of personal services for the purpose of this section is whether the human labor itself is sought and is the object of the compensation or whether the end-product of the service is purchased.'

Later, in Younger v. Rosenow Paper & Supply Co. (1971), 51 Wis.2d 619, 625, 188 N.W.2d 507, this court considered whether the plaintiff's action to recover money allegedly due under a stock purchase or bonus plan set up by his past corporate employer was governed by sec. 893.21(5), Stats. The plaintiff in Younger argued that the plan had been set up not to compensate the plaintiff for his personal services but rather to 'purchase' the end product of the services, i.e., profit. The court concluded:

'Given all of the circumstances and facts available in this record, it is reasonable to hold that plaintiff's action here is one for breach of contract, failure to pay him the bonus as agreed, either originally or subsequently. In his complaint plaintiff was careful to allege that the bonus plan was separate from any agreement as to salary and that he had been fully compensated as agreed in that respect. Defendant does not dispute this. Although the precise terms of the agreement and the intent of the parties thereto are in dispute in ...