Pattenge v. Wagner Iron Works

• Citation: 275 Wis. 495,82 N.W.2d 172
• Parties: , 39 L.R.R.M. (BNA) 2770, 32 Lab.Cas. P 70,626 Raymond PATTENGE et al., Respondents, v. WAGNER IRON WORKS, a corporation, Appellant.
• Decision Date: 09 April 1957
• Court: United States State Supreme Court of Wisconsin

Page 172

82 N.W.2d 172

275 Wis. 495, 39 L.R.R.M. (BNA) 2770,

32 Lab.Cas. P 70,626

Raymond PATTENGE et al., Respondents, v. WAGNER IRON WORKS, a corporation, Appellant.

Supreme Court of Wisconsin.

April 9, 1957.

Morris Karon (of Karon & Weinberg), Milwaukee, for appellant.

Max Raskin, Leonard S. Zubrensky, Milwaukee, for respondents.

WINGERT, Justice.

1. The plaintiffs' action is not barred by the fact that the asserted right to vacation pay arises under the terms of a collective bargaining contract to which the plaintiffs are not parties. The weight of authority, and the trend of the more recent cases, permits an individual employee to maintain an action to enforce provisions of a collective bargaining contract which are for his individual benefit, as contrasted with provisions which are for the benefit of the union. See Note in 18 A.L.R.2d 361, 365, Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 460, 75 S.Ct. 488, 99 L.Ed. 510; Hudak v. Hornell Industries, 304 N.Y. 207, 214, 106 N.E.2d 609, 31 Am.Jur. 880 and 1956 Cumulative Supplement 112. In the present case we need go no further than to hold that the employee may sue on a specific money claim which has accrued to him under the terms of the collective bargaining contract.

The provisions of the contract for vacation pay are clearly for the benefit of the individual employees rather than for that of the union as such. In the absence of something in the contract to the contrary, vacation pay is in the nature of additional compensation for services rendered. In re Wil-Low Cafeterias, Inc., 2 Cir., 111 F.2d 429, 432, and see Note in 30 A.L.R.2d 352. An action by individual employees to recover vacation pay provided by a collective bargaining contract was entertained on the merits without question in Skibb v. J. I. Case Co., 255 Wis. 447, 39 N.W.2d 367.

2. In such a case it is not necessary that the union be joined as a party to the action. In legal effect the employee sues on his individual contract of hire, into which the applicable terms of the collective bargaining contract which are for his benefit are imported by law. See J. I. Case Co. v. N. L. R. B., 321 U.S. 332, 335-336, 64 S.Ct. 576, 88 L.Ed. 762.

3. The action is not barred or subject to abatement because of failure to exhaust, or even invoke, the grievance and arbitration procedures set up by the collective bargaining contract.

We may assume for present purposes, without deciding, that the company's refusal to pay vacation pay to the plaintiffs constituted a grievance within the meaning of the contract, and that the facts that the contract terminated on July 1 and that plaintiffs had ceased to be employees would not have barred them from access to the grievance procedure specified by the contract.

The contract is explicit that where available the grievance procedure 'shall be the sole means of disposing of grievances.' Nevertheless we consider that in the special circumstances of the present case, plaintiffs were not bound to invoke the grievance procedure or arbitration in lieu of an action at law.

The contractual grievance procedure consisted of three steps before arbitration. The first step specified an effort to settle the grievance by the complaining employee, the shop steward and the 'squad leader' or foreman. The second and third steps required conferences between union representatives and company representatives, to which the complainant was not made a necessary party. Obviously the union would dominate those proceedings on the complainant's side, it doubtless having been contemplated that in the normal case the union would act as the employees' agent and advocate.

We do not construe the contract or the law as requiring an individual employee to invoke this grievance procedure to assert an accrued pecuniary claim in circumstances where it is reasonably apparent that the union is hostile to him and will not give him adequate representation. To do so would place the employee's accrued rights against his employer more or less at the mercy of an unfriendly union. Both congress and the Wisconsin legislature have shown solicitude to protect employees from such consequences, by the provisions of the Federal Labor-Management Act, 1947, sec 9(a), 29 U.S.C.A. § 159(a), and the Wisconsin Employment Peace Act, sec. 111.05(1) that any individual employee shall have the right at any time to present grievances to the employer. See discussion and authorities cited in Lehnhoff, The Effect of Arbitration Clause upon the Individual, 9 Arbitration Journal, 3, and Elgin J. & E. R. Co. v. Burley, 325 U.S. 711, 733, 736, 65 S.Ct. 1282, 89 L.Ed. 1886.

Here the plaintiffs were CIO sympathizers, engaged in a revolt against the AFL union. They were striking in sympathy with some of their leaders in the CIO faction, who had been discharged earlier. They were notified by the AFL union on June 20 that if they did not go back to work, the company would be justified in permanently replacing them. The union business agent testified that he had instructions from the president and board members of the union to refuse to arbitrate the differences between the management and the discharged leaders. The AFL union did nothing to represent the strikers in any grievance or arbitration growing out of their discharges. It was war between the unions, and from the AFL union's standpoint, and that of the company, plaintiffs were with the enemy. Plaintiffs could reasonably believe that no sympathy or help could be expected from either the AFL union or the company.

In a proceeding arising out of this same interunion fight, the National Labor Relations Board held that the discharge of the present plaintiffs was an unfair labor practice and the company was ordered to reinstate them with back pay. The board also held the AFL union guilty of the unfair labor practice of coercing employees and contributing to the employer's discharge of two of the plaintiff leaders of the movement to the CIO union.

The court of appeals of the seventh federal circuit sustained the board's findings on these matters and entered judgment enforcing its orders against the employer...