Pub. Serv. Employees' Union v. Wisconsin Employment Relations Bd.
| Decision Date | 13 February 1945 |
| Citation | 246 Wis. 190,16 N.W.2d 823 |
| Parties | PUBLIC SERVICE EMPLOYEES' UNION et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Racine County; A. W. Kopp, Judge, Presiding.
Affirmed.
This proceeding was begun by the service of a summons and petition upon the Wisconsin Employment Relations Board and the Wisconsin Gas and Electric Company, hereinafter called the Electric Company, on the 15th day of June, 1943. The proceeding was begun by the Public Service Employees' Union and Theodore C. Rietz to review an order of the Wisconsin Employment Relations Board, dated May 17, 1943. The Wisconsin Employment Relations Board, hereinafter called the Board, filed a cross-petition, asking that the order sought to be reviewed be enforced. The proceeding was brought on for a hearing and on January 14, 1944, the court filed its decision and directions for judgment, dismissing the petition for review and confirming and enforcing the order of the Board. Thereupon judgment was filed pursuant to the order on January 24, 1944. From the judgment of the circuit court, the plaintiffs appeal to this Court.
The facts will be stated in the opinion.
Weisman & Weisman, of Racine, for appellant.
John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., and Fred H. Prosser, of Milwaukee, for respondent.
The nature of the controversy is sufficiently disclosed by the findings and order of the Board, which are not questioned on this appeal. They are as follows:
‘1. That the respondent, Public Service Employees Union, has committed unfair labor practices contrary to the provisions of Section 111.06 of the Wisconsin Statutes in that said respondent
‘A. Has violated the terms of the collective bargaining agreement existing between itself and the complainant, Wisconsin Gas and Electric Company, by walking out and going on strike;
‘B. Engaged in, promoted and induced picketing and boycotting of the complainant, Wisconsin Gas and Electric Company, without a majority of the employes of the employer in the collective bargaining unit above described having voted by secret ballot to call any strike.
‘2. That the respondent, Theodore C. Rietz, has committed unfair labor practices contrary to the provisions of Section 111.06 of the Wisconsin Statutes in that said respondent, Theodore C. Rietz
‘A. As President of the respondent, Public Service Employment Union, without any authorization, directed the employes of the employer to violate the terms of the collective bargaining agreement existing between the complainant, Wisconsin Gas and Electric Company, and the Public Service Employees Union, by engaging in a strike;
‘B. Has induced the employes of the complainant employer to cooperate in engaging in and promoting picketing and boycotting of the complainant, Wisconsin Gas and Electric Company, without a majority of such employes in the collective bargaining unit having voted by secret ballot to call any strike.
‘3. That the Respondent, Erwin A. Kamper, did not commit any unfair labor practice, except such as was committed by all of the employes of the employer, who went on strike at the direction of the president, Theodore C. Rietz.
‘Upon the basis of the above and foregoing Findings of Fact and Conclusions of Law, the Board makes the following
Order‘1. That the Public Service Employees Union immediately cease and desist from violating the terms of the collective bargaining agreement now existing between the complainant employer, Wisconsin Gas and Electric Company, and itself by any strike, walkout or other work stoppage.
‘2. That the respondent, Theodore C. Rietz, immediately cease and desist
‘A. From inducing or attempting to induce the employes of the Wisconsin Gas and Electric Company to violate any of the terms of the collective bargaining agreement existing between the Public Service Employees Union and the Wisconsin Gas and Electric Company.
‘B. From inducing or attempting to induce the employes of the Wisconsin Gas and Electric Company to cooperate in picketing or boycotting the employer.
‘C. From acting or attempting to act as a representative in any capacity for the employes of the complainant employer, either as president of the union, as a member of the grievance committee, bargaining committee, or in any other manner, for a period of one year from the date of the receipt of a copy of this Order.
‘3. That the respondent, Public Service Employees Union, take the following affirmative action:
‘Immediately notify all of its members in writing that it will cease and desist from all activities as above ordered.
‘4. It is further ordered that the right of the respondent, Public Service Employees Union, to act as the collective bargaining representative for the employes of the employer in the collective bargaining unit above described be suspended until such time as the respondent select some person other than the respondent, Theodore C. Rietz, to act as president of such union, and give notice in writing of such selection to the Wisconsin Employment Relations Board, such suspension in no case to exceed a period of six (6) months from the date of receipt of a copy of this Order, and compliance with its terms.
‘5. It is further ordered that the right of Theodore C. Rietz to serve as a representative in any capacity of the employes of the complainant employer, either as president of the respondent union, a member of the grievance committee, bargaining committee, or in any other manner, be and the same hereby is suspended for a period of one (1) year from the date of receipt of a copy of this Order.
The appellants contend-(1) That the board had no jurisdiction to issue an order restraining the president of the union from acting or attempting to act as a representative in any capacity for the employes of the company; suspending the right of the union to act as a collective bargaining representative or as a representative in any capacity for the employes of the company and suspending the right of the officers of the union to serve as a representative in any capacity of the employes of the company.
(2) That the order is void and unconstitutional because in conflict with Art. I, sec. 8 and Art. IV of the constitution of the United States.
(3) That secs. 111.06(2)(c) and (e), Wisconsin Stats., are unconstitutional and void because contrary to Art. I, sec. 8, and Art. IV of the constitution of the United States.
(4) That the Board had no jurisdiction to issue an order restraining the union from engaging in a strike, walkout or work stoppage because the union has been found guilty of engaging in unfair labor practices.
(5) That the order is unconstitutional and void because it deprives the union of the right to strike.
The contentions made by the plaintiffs on this appeal raise several important and substantial questions not heretofore disposed of by this Court. It should be said in the beginning that the plaintiffs base contentions (2), (3), (4) and (5) on the ground that the order and the statute are void because in conflict with the rights guaranteed to plaintiffs by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. We have considered the matter of conflict between Wisconsin and federal law in a number of other cases and have held that where the National Labor Relations Board has not taken jurisdiction of the controversy, no conflict exists.
If counsel will give careful consideration to Amalgamated Util. Workers v. Edison Co., 1940, 309 U.S. 261, 60 S.Ct. 561, 563, 84 L.Ed. 738, and subsequent cases in which it has been affirmed, he will not again present this contention to the Court. In that case the petitioners contended that the National Labor Relations Act created private rights which were enforceable at the suit of a...
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