Wis. Emp't Relations Bd. v. Allis-Chalmers Workers Union

• Decision Date: 14 April 1948
• Citation: 252 Wis. 436,31 N.W.2d 772
• Parties: WISCONSIN EMPLOYMENT RELATIONS BOARD, Appellant, v. ALLIS-CHALMERS WORKERS UNION, LOCAL 248 of the United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the C. I. O., Respondent.
• Court: Wisconsin Supreme Court

252 Wis. 436

31 N.W.2d 772

WISCONSIN EMPLOYMENT RELATIONS BOARD, Appellant,

v.ALLIS-CHALMERS WORKERS UNION, LOCAL 248 of the United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the C. I. O., Respondent.

Supreme Court of Wisconsin.

April 14, 1948.

Concurring opinion.

For majority opinion, see 32 N.W.2d 190.

WICKHEM, Justice (concurring).

I agree with the conclusion of the court that this case is not moot for the reasons stated in the opinion and on the authority of the cases there cited. A determination that the case should not have been held to be moot assumes that it was not dealt with on its merits in the lower court and the case is remanded for the purpose of such consideration. Ordinarily this should end our consideration because if the trial court has not dealt with the matter on its merits we have nothing to review in that respect. In this case, however, it appears to me that the situation calls for some suggestion by this court as to the merits all of which with one possible exception are determinable from the record. The trial court in its memorandum stated in part:

‘It now conclusively appears that said order limiting the picketing arose out of and was related to the strike then in progress. The evidence now shows that the strike has been terminated. * * * I am therefore of the opinion that the factual situation which existed and which prompted the board, the plaintiff board, to enter the order herein referred to and sought to be enforced by the judgment, no longer exists, and therefore that the order and the petition herein is moot.'

While the trial court used the word ‘moot’ it appears from the context that the term might have been loosely used and that the court intended to dispose of the case on its merits. If he did I should not want the impression to exist upon remand that such a determination is erroneous on the basis of the record made. The record discloses that on May 3, 1946 upon complaint of the company followed by a full hearing the board found that the union had engaged in mass picketing in blocking entrances and in coercing employees from entering the plant. The board entered the usual general order requiring the union to cease and desist from all practices condemned by the statutes as unfair. This order was enforced by a judgment of the circuit court entered September 9, 1946. On December 6, 1946 the company filed a new complaint alleging continuance and increase of prohibited activities by the union notwithstanding the previous order. Upon hearing of testimony sustaining the complaint the board entered the...