A. J. Sweet of La Crosse, Inc. v. Industrial Commission

• Citation: 16 Wis.2d 98,114 N.W.2d 141
• Parties: A. J. SWEET OF LA CROSSE, INC., a Wisconsin corporation, Plaintiff-Appellant v. INDUSTRIAL COMMISSION of Wisconsin et al., Defendants-Respondents. CLICK DISTRIBUTING CO., Inc., Plaintiff-Appellant, v. Paul R. COLEMAN et al., Defendants-Respondents. SCHILLING PAPER CO., Plaintiff-Appellant, v. Douglas BYERS et al., Defendants-Respondents. SELRITE GROCERS, INC., Co-op, Plaintiff-Appellant, v. Kenneth A. ALBITZ et al., Defendants-Respondents. WESTERN FRUIT CO., Plaintiff-Appellant. v. Herman E. BERND et al., Defendants-Respondents.
• Decision Date: 06 March 1962
• Court: United States State Supreme Court of Wisconsin

Page 141

114 N.W.2d 141

16 Wis.2d 98

A. J. SWEET OF LA CROSSE, INC., a Wisconsin corporation, Plaintiff-Appellant v. INDUSTRIAL COMMISSION of Wisconsin et al., Defendants-Respondents.

CLICK DISTRIBUTING CO., Inc., Plaintiff-Appellant, v. Paul R. COLEMAN et al., Defendants-Respondents.

SCHILLING PAPER CO., Plaintiff-Appellant, v. Douglas BYERS et al., Defendants-Respondents.

SELRITE GROCERS, INC., Co-op, Plaintiff-Appellant, v. Kenneth A. ALBITZ et al., Defendants-Respondents.

WESTERN FRUIT CO., Plaintiff-Appellant. v. Herman E. BERND et al., Defendants-Respondents.

Supreme Court of Wisconsin.

March 6, 1962.

Rehearing Denied May 1, 1962.

See 114 N.W.2d 853.

Five separate actions instituted by five La Crosse employers, pursuant to the Wisconsin Administrative Procedure Act (ch. 227, Stats.), against the Industrial Commission and certain individual employees of each plaintiff to review findings of fact and orders of the commission granting unemployment compensation benefits to defendant employees. The five actions were consolidated for the purpose of hearing and disposition by the circuit court.

The five plaintiff employers and their businesses are: A. J. Sweet of La Crosse, Inc., wholesale produce business; Click Distributing Company, Inc., distributor of candies, tobacco, school supplies, and sundries; Schilling Paper Company, wholesale dealer in paper and paper supplies; Selrite Grocers, Inc., wholesaler of groceries; and Western Fruit Company, wholesale dealer in fruit and produce. For a considerable number of years these five plaintiffs, together with a sixth La Crosse employer, Ed. Phillips & Sons, a wholesale distributor of liquor, cigarettes, candy and sundries, had collective bargaining agreements with Local 199 of the International Brotherhood of Teamsters (hereinafter the 'Union'). These labor contracts covered those employees of six employers falling within the classifications of truck drivers and warehousemen. Prior to 1956 the six employers had bargained as an association with the Union. However, in 1956 the employers negotiated with the Union on an individual basis, and this resulted in six separate three year contracts expiring May 1, 1959.

The general provisions of all six contracts were identical, but other provisions contained some individual variations to fit the special circumstances of each employer. However, such variations are immaterial to the issues of the instant litigation. The preamble and the provisions relating to settlement of grievances and automatic renewal in each agreement read as follows:

Preamble

'The parties subscribing to this Agreement desiring to prevent strikes and lockouts, to maintain a uniform minimum scale of wages, working hours, and conditions of employment among the members of the Union and the Corporation hiring and employing persons as packers and general haulers of merchandise, and to facilitate peaceful adjustment of all grievances and disputes which may arise from time to time between the Employer and the employee, have entered into this Agreement.'

Grievance Procedure

'There shall be shop steward appointed, one from each plant, and in case of any grievance, the shop steward shall try to settle same with the foreman or superintendent and, if he is unable to settle same, he shall then refer the grievance to the Executive Board of the Local Union or authorized Business Agent. However, if the authorized Business Agent or Executive Board and the company are unable to effect a settlement, it shall then go to an Arbitration Board, composed of five (5) members as follows: Two (2) members elected by each party, and in case the four (4) so chosen are unable to agree on a fifth member, then the Labor Relations Board of the State of Wisconsin shall appoint said fifth member, who shall be wholly disinterested party.'

Automatic Renewal

'This Agreement shall be effective from the 1st day of May, 1956, and shall continue in force until the 1st day of May, 1959.

'If it is the desire of either party hereto to terminate such Agreement, notices of termination must be sent at least sixty (60) days before the expiration date thereof.

'If it is the desire of either party hereto to continue such Agreement but to make alterations, amendments, or changes herein, and if no notice of termination has been given by either party, then such party desiring amendments, additions, alterations, or modifications shall give notice at least thirty (30) days before the expiration date thereof (or the anniversary of such date) specifying the type and nature of the amendments, additions, alterations, or modifications, so desired. The parties shall thereafter commence negotiations concerning such modifications and the contract shall continue in full force and effect during such period of negotiations. Any agreement subsequently reached by the parties relating to amendments, additions, alterations, or modifications, shall be retroactive to the anniversary date. In the event no agreement is reached within sixty (60) days after the service of the thirty (30) day notice and unless the parties hereto shall otherwise agree, the contract may then be terminated upon a five (5) day notice by the party requesting such alterations. If no such five (5) day notice is given within ten (10) days after the expiration of such sixty (60) day period the contract shall be continued in full force and effect as though no notice has been given.'

Pursuant to this automatic renewal clause, the Union served on each of the six employers the required 60 day written notice in February, 1959, stating that it desired to negotiate changes in the terms of the contract. In March the Union served upon Ed. Phillips & Sons the required 30 day notice of the specific changes it desired to have made in the contract. Thereafter, bargaining negotiations between the employers and the Union were had. An impasse was reached in such negotiations. On May 12, 1959, the Union served upon the Wisconsin Employment Relations Board (hereinafter 'WERB') a 10 day notice of intention to strike each of the six employers. On May 13, 1959, WERB sent the following letter to each of the employers:

'This is to notify you that on May 12, 1959, the above named labor union filed with this Board a notice of intention to strike unless the dispute now in existence between your company and that union is settled in the meantime.

'This notice is given to you in accordance with the provisions of Section 111.11 of the Wisconsin Statutes. The Statute provides that a union cannot strike until ten days after the filing of such notice. The ten days will expire as of midnight, May 22, 1959. Within the next few days a representative of the Board will endeavor to contact the parties in an attempt to aid in bringing about a settlement of the existing dispute.

'We are enclosing a questionaire for your convenience in informing us of the status of negotiations.

'Very truly yours,

'WISCONSIN EMPLOYMENT RELATIONS BOARD

'/S/ L. E. Gooding, Chairman

'LEG:md

'Enc.

'cc: Mr. Elmer Seebold'

On May 19, 1959, Attorney Quincy H. Hale of the law firm of Hale, Skemp, Hanson, Schnurrer & Sheehan wrote a letter to Elmer Seebold, business agent of the Union, advising him that Hale had been retained by the six employers to represent them in connection with negotiating a new labor contract, and that all future negotiations were to be conducted on a group as distinguished from an individual basis. In the meantime, the employers had formed themselves into an informal association and agreed among themselves that if the Union struck any one employer the others would forthwith lock out those of their employees in the bargaining units represented by the Union. Several meetings were held between the Union and Mr. Hale, representing the employers. A WERB examiner also participated in these meetings as mediator.

On Monday June, 1, 1959, the Union struck Ed. Phillips & Sons. During the course of that week the other five employers locked out those of their employees who were represented by the Union, advising them that their employment was being suspended until the existing labor dispute had been resolved.

The Union and Ed. Phillips & Sons reached a tentative agreement on a new labor contract on June 22, 1959. This employer then submitted the tentative agreement to the other employers in the group and obtained their approval of it. On Tuesday, June 22, 1959, the pickets were removed from the place of business of Ed. Phillips & Sons and its striking employees returned to work. During that week, the other five employers recalled their locked out employees. Negotiations continued between the employers and the Union, and on July 20, 1959, the employers and the Union signed new labor contracts which were made retroactive to May 1, 1959.

Thereafter, the employees, who had been locked out by the five plaintiff employers, filed claims with the Industrial Commission for unemployment compensation benefits for the period of time they were out of work during the lockout. These claims were denied by the commission's deputy on the ground that claimants' unemployment had been due to a bona fide labor dispute. On appeal, the same determination was reached by the commission's appeal tribunal. On this review, the commission reversed and held that the lockouts violated the existing collective bargaining contracts and, therefore, claimants' loss of employment was not due to a bona fide labor dispute. Thus, the commission's decision allowed benefits to the claimant employees. The five employers then instituted the instant action for review in the circuit court.

The circuit court on August 28, 1961, entered judgment confirming the decision of the commission, and plaintiff employers have appealed therefrom.

Hale, Skemp, Hanson, Schnurrer & Skemp, Joseph D. Becker, La Crosse, for appellants.

Arnold J. Spencer, Ralph E. Kline, Madison, for respondents.

CURRIE, Justice.

Sec. 108.04(10), Stats., of the...