Kansas City Star Co., Flambeau Paper Co. Division v. Department of Industry, Labor, and Human Relations, 259

• Citation: 217 N.W.2d 666,62 Wis.2d 783
• Decision Date: 08 May 1974
• Docket Number: No. 259,259
• Parties: The KANSAS CITY STAR CO., FLAMBEAU PAPER CO. DIVISION, Respondent, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS and William A. Abel, et al., Appellants.
• Court: United States State Supreme Court of Wisconsin

Page 666

217 N.W.2d 666

62 Wis.2d 783

The KANSAS CITY STAR CO., FLAMBEAU PAPER CO. DIVISION, Respondent, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS and William A. Abel, et al., Appellants.

No. 259.

Supreme Court of Wisconsin.

May 8, 1974.

Aberg, Bell, Blake & Metzner, Madison, and Watson, Ess, Marshall & Enggas, Kansas City, Mo., for respondent.

Uclair W. Brandt, Chief Counsel DILHR, Madison, and Goldberg Previant & Uelmen, Milwaukee, for appellants.

PER CURIAM (on motion for rehearing).

The employment contract did not spell out the terms of the right of the Union to withdraw its termination notice, nor the existence of a right of the Union to reinstate that notice prior to the ending date of the contract. In the absence of a specific provision in the contract as to the right to withdraw a termination notice, the Department found that the Union withdrew its termination notice and the Department further found that as to the subsequent layoffs there was then no bona fide labor dispute in progress. These findings were supported by credible evidence as discussed in our original opinion.

We do not reach the question now raised for the first time by the employer asserting estoppel as to either the 'Department' or the Union. Estoppel was not asserted before the Department nor was there any point made of it either in the record before the Department or in the trial court.

ROBERT W. HANSEN, Justice (concurring in denial of motion for rehearing).

In A. J. Sweet, Inc. v. Industrial Comm. (1961), 16 Wis.2d 98, 114 N.W.2d 141, 114 N.W.2d 853, this court considered whether a loss of work by claimant employees due to lockout or plant shutdown by an employer constituted a bona fide labor dispute under sec. 108.04(10) of the state unemployment compensation act. On the issue of whether a labor dispute was bona fide within the meaning of the statute, this court in Sweet held that '. . . resolving this issue involves the construction of the agreement between the parties. . . .' (Id. at page 105, 114 N.W.2d at page 145.) In Sweet, this court found that the collective bargaining contracts between the parties '. . . contained no express language prohibiting either strikes or lockouts during their term. . . .' (Id. at page 106, 114 N.W.2d at page 146.) The court held that the contracts contained no express provision or implied promise that '. . . the employers would not utilize the device of a lockout. . . .' (Id. at page 110, 114 N.W.2d at page 148.) It necessarily followed, the court concluded, that the claimant employees' loss of time from work was '. . . due to a bona fide labor dispute within the meaning of sec. 108.04(10), Stats.' (Id. at page 110, 114 N.W.2d at page 148.) In the case before us, the existing agreement between employer and employees expressly provided that: 'The Company agrees that there will be no lockouts during the period of this Agreement.' (labor agreement, page 20.) The employees' organization had filed, pursuant to the agreement, a termination of agreement notice. Subsequently and prior to the lockout, the labor group withdrew that notice, stating: 'In light of President Nixon's ninety day freeze of wages and prices, this letter will serve as a withdrawal of that termination notice and of our desire to continue to work under the terms of the existing agreement, . . .' until a new agreement was reached or new termination notice sent. Under the ruling in Sweet, the writer would on this set of facts hold that claimant employees' loss of time from work for which they seek unemployment benefits was not due to a bona fide labor dispute within the meaning of sec. 108.04(10), Stats. Where the claimant employees had clearly indicated their willingness to continue work under the existing agreement, the writer would further hold that the labor dispute was not 'in active progress' within the meaning of sec. 108.04(10), Stats. The employer here notified the claimant employees: 'The entire mill will be shut down effective no later than the end of the last shift on September 3, 1971, and until further notice.' Whether this notice and shutdown is considered, as it was in concurring opinion, as a permanent closing down of operations, or, as it has been here, as a temporary lockout, it does not under the facts here constitute what the statute requires for disqualification from benefits of employees who have lost time from work due to a lockout precipitated by a bona fide labor dispute that was in active progress.

CONNOR T. HANSEN, Justice (dissenting from denial of motion for rehearing).

The Kansas City Star Co., Flambeau Paper Co. Division, respondent, has filed a motion for rehearing. For the reasons hereinafter set forth, Mr. Justice Beilfuss, Mr. Justice Hanley, and the writer would grant the motion for a rehearing.

The majority opinion correctly holds that 'bona fide labor dispute,' as the term is used in sec. 108.04(10), Stats., means a controversy regarding the terms of employment which in fact exists and is not merely pretextual or feigned on the part of an employer in an attempt to avoid his obligations under the Unemployment Compensation Act. However, the facts of this case clearly support the trial court's conclusion that these employees lost their employment as a result of a bona fide labor dispute.

Section 1(b) of the collective bargaining agreement provides:

'(b) If either party shall desire to change any provision of this agreement, it shall give written notice of such desire to the other party at least sixty (60) days in advance of any anniversary date.'

Both unions gave the requisite notice to the employer by letters on May 10 and May 12, 1971, that certain contract provisions should be renegotiated. Bargaining sessions were conducted on June 11, 1971, and intermittently thereafter for approximately six weeks. The unions sought increased wages and changes in fringe benefits such as pensions, vacations and group insurance. The employer sought changes in certain work rules, wage differentials and contract language.

The parties were unable to agree and a 'bona fide labor dispute' ¹ between the parties existed.

An impasse was reached between the parties on July 23rd. On July 27th, the union notified the employer that the members had agreed to strike by a vote of 291 to 19. Pursuant to section 2 of the collective bargaining agreement, and on August 5th, both unions tendered termination notices, effective in thirty days in accordance with their contracts. At the same time the unions advised the employer that they would be willing to meet to resolve differences any time during the thirty day period.

Because of the nature of the chemicals and machinery used by the employer in its operations, a sudden walkout by employees during full production would have caused extensive damage to facilities and materials. Therefore, the employer immediately...