Kenosha Unified School Dist. No. 1 v. Kenosha Ed. Ass'n.

• Decision Date: 28 October 1975
• Docket Number: No. 157,157
• Citation: 234 N.W.2d 311,70 Wis.2d 325
• Parties: , 90 L.R.R.M. (BNA) 3203, 78 Lab.Cas. P 53,789 KENOSHA UNIFIED SCHOOL DISTRICT NO. 1, Respondent, v. KENOSHA EDUCATION ASSOCIATION et al., Appellants. (1974).
• Court: Wisconsin Supreme Court

Page 311

234 N.W.2d 311

70 Wis.2d 325, 90 L.R.R.M. (BNA) 3203,

78 Lab.Cas. P 53,789

KENOSHA UNIFIED SCHOOL DISTRICT NO. 1, Respondent, v. KENOSHA EDUCATION ASSOCIATION et al., Appellants.

No. 157 (1974).

Supreme Court of Wisconsin.

Oct. 28, 1975.

This is an appeal from an order denying a motion to vacate or reduce fines imposed for contempt of court in violation of a temporary injunction in a municipal employees' labor dispute.

The issues before us arise from a strike by the teachers in the Kenosha school district in September of 1973.

The teachers in the Kenosha Unified School District No. 1 were employed under the terms of a collective bargaining agreement which expired on June 30, 1973. Negotiations for a new contract began in December, 1972, between the district, represented by the school board, and the teachers, represented by the Kenosha Education Association, their duly certified bargaining agent. Despite approximately 24 negotiating sessions, an agreement was not reached prior to the commencement of school.

On september 5, 1973, the first scheduled day for classes, the members of the teachers' association went on strike. About 750 of a total of 1150 teachers did not report for work. Approximately 8,900 of 21,500 students in the district reported for classes on September 5, and about 5,600 on September 6. The district schools were closed effective September 7 because of the strike. On September 11, 1973, by verified complaint, the Kenosha school district sought a temporary and permanent injunction to restrain the members of the association from continuing the strike and related activities. Named as defendants were the association, its individual officers and 'all persons acting in concert or in combination with the named defendants, their agents, servants and employees.' Upon filing of the summons and complaint in the circuit court for Kenosha county, the court signed an order directing defendants to show cause why a temporary injunction and temporary restraining order should not be granted.

Several conferences and testimonial hearings on the order to show cause were held on September 13, 14 and 16 before Circuit Judge Gordon Myse (who was substituted for Judge Harold Bode). At the September 16 hearing, the trial court found that a showing of irreparable harm had been made and ordered that defendants be temporarily enjoined from continuing the strike effective Monday, September 17. A written order was filed, nunc pro tunc, on September 18, 1973. The individual defendants, as officers of the association, were instructed to inform the membership of the order for temporary injunction and a meeting for that purpose was held at 6 a.m., on Monday, September 17. At that meeting the teachers decided not to return to school to teach. Of the 1,150 teachers employed by the district, 397 reported for work on the 17th and 396 on the 18th.

On September 17, the district secured an order to show cause why defendants should not be found in contempt for failing to obey the order for temporary injunction. Three members of the association's negotiating team who were not named as individual defendants in the original summons and complaint were also served with this order to show cause.

Hearings on the order to show cause for contempt were held on Tuesday, September 18, and Wednesday, September 19. At the September 18 hearing the district acceded to a motion by counsel for defendants that interrogatories be served pursuant to sec. 295.12, Stats., ¹ specifying the facts and circumstances alleged against defendants.

Court reconvened shortly after midnight on the morning of September 19, 1973, for the purpose of hearing evidence on the order to show cause for contempt. At that hearing the motion to dismiss for want of jurisdiction was denied. Joseph Anderson, a member of the association's negotiating team, testified to the manner in which the membership decided to defy the injunction order at the September 17 meeting. John Niemeier, a member of the association's executive committee, stated that he had made a tape recording on September 17 for the purpose of radio broadcast, wherein, speaking on behalf of the president of the association, he asked parents not to send their children to school because the teachers had voted to remain on strike. Counsel for the association conceded that the evidence showed a violation of the order for temporary injunction.

Following the testimony and arguments by counsel, the court found the association and the individual defendants in contempt. The court imposed a fine of $7,500 per day, commencing on Monday, September 17, on the association. A fine of $10 per day over the same period was imposed on the individual defendants. The court also provided that defendants could purge themselves of the contempt finding by reporting for work on Wednesday, September 19, 1973. They did not and were found to have violated the injunctive order for a period of five days.

On September 21, a motion by the association to vacate the fines or, in the alternative, to reduce them was taken under advisement. By memorandum decision filed November 12, 1973, the court denied the motion to vacate but reduced the fine imposed on the association to $3,000. Both parties appeal from this decision.

Lawton & Cates, Madison, for appellants.

Davis, Kuelthau, Vergeront, Stover & Leichtfuss, Walter S. Davis, Milwaukee, John P. Savage, Milwaukee, of counsel, for respondent.

BEILFUSS, Justice.

The Kenosha Education Association contends the trial court erred in assessing any fine against it and, if this was not error, the fine assessed was in excess of the statutory maximum permitted in either sec. 111.70(7) or sec. 295.14, Stats., and therefore error.

The Kenosha Unified School District contends the court abused its discretion in reducing the fine imposed upon the association to $3,000.

Upon finding defendants in contempt for having violated the order for temporary injunction, the circuit court fined the individual defendants $10 for each for of violation and the Kenosha Education Association $7,500 for each day of violation. The fines assessed against the individuals are not at issue on this appeal. The fine assessed against the association was later reduced to a total of $3,000. The defendant association's first contention on appeal is that the court erred in imposing any fine on the association as a separate entity. It asserts that the penalty for contempt for violating an injunction issued against a municipal employees' strike is controlled by the provisions of sec. 111.70(7), Stats. That section provides:

'Penalty for striker. Whoever violates sub. (4)(L) after an injunction against such a strike has been issued shall be fined $10. After the injunction has been issued, any employe who is absent from work because of purported illness shall be presumed to be on strike unless the illness is verified by a written report from a physician to the employer. Each day of continued violation constitutes a separate offense. The court shall order that any fine imposed under this subsection be paid by means of a salary deduction at a rate to be determined by the court.'

The association argues that the history of that section indicates a legislative intent that no fine in excess of $10 per day may be imposed on individual strikers. Relying on a rule that association liabilities must ultimately be borne by its individual members, it asserts that the intent of the statute is thwarted where a court imposes an additional fine on the association as a separate entity.

The school district disputes defendants' claim that sec. 111.70(7), Stats., limits a court's authority to punish by contempt the violation of injunctional orders against municipal employee strikes, and contends that the legislative intent, argued by the teachers' association to be evident from the section's history, is not thwarted in this case.

The record indicates that there were 1,150 teachers in the district. At the September 14 hearing, Otto Huettner, superintendent of schools, stated that approximately 400 teachers reported for work on September 5 and thereafter. At the contempt hearing on September 19, Huettner testified that 397 teachers reported for work on September 17 and 18 following the issuance of the injunction. In his affidavits in support of the order to show cause for temporary injunction and the order to show cause for contempt, Huettner asserted that only 380 teachers reported on September 6 and that 750 remained on strike on Monday, September 17. The district contends that this record indicates that, at various times during the strike, 750 teachers failed to report for work. It is further argued that the original fine of $7,500 per day imposed by the court on the association is consistent with the statutory formula ($10 per striker 750 strikers = $7,500).

We conclude that the plain language of sec. 111.70(7), Stats., indicates that it was intended to serve only as a limitation on the fine which might be imposed upon individual strikers who are found to have violated an injunction issued against an illegal strike. The section provides that 'whoever' continues to strike in the face of an injunction 'shall be fined $10.' It appears to be the rule that when the word 'whoever' is employed in a statute, it is considered to refer only to 'persons,' whether natural or corporate, and not to unincorporated associations. ² This principle is fortified in this case by the last sentence in the section which states that the fine imposed shall be paid by means of a salary deduction. It cannot be logically argued that this sentence refers to any entity but an individual municipal employee. The association did not receive a salary, and obviously none from the district.

However, we believe the provisions of sec. 111.70(7), Stats., do not, standing alone, preclude the imposition of an additional fine on the association as a separate entity. This...