Wis. Emp't Relations Bd. v. Algoma Plywood & Veneer Co.

• Decision Date: 11 May 1948
• Citation: 252 Wis. 549,32 N.W.2d 417
• Parties: WISCONSIN EMPLOYMENT RELATIONS BOARD v. ALGOMA PLYWOOD & VENEER CO.
• Court: Wisconsin Supreme Court

252 Wis. 549

32 N.W.2d 417

WISCONSIN EMPLOYMENT RELATIONS BOARD

v.ALGOMA PLYWOOD & VENEER CO.

Supreme Court of Wisconsin.

May 11, 1948.

Appeals from a portion of the judgment of the Circuit Court for Kewaunee County; Edward M. Duquaine, Circuit Judge.

Affirmed in part and reversed in part.

An action was commenced on November 5, 1947 by Wisconsin Employment Relations Board against Algoma Plywood and Veneer Company to enforce an order theretofore made by the board. The appeal is by the Wisconsin Employment Relations Board from that portion of the judgment which modifies the board's order by striking a provision requiring the employer to pay back pay in addition to reinstating the employee involved.

There is a motion by Algoma Plywood and Veneer Company to review that portion of the order which sustains the jurisdiction of the board. Hereafter the Algoma Plywood and Veneer Company will be referred to as ‘the company’; the Wisconsin Employment Relations Board as ‘the board’ and Victor Moreau whose rights are under question in this action will be referred to as ‘the employee’. The Carpenters and Joiners, A. F. of L. Local No. 1521 will be referred to as ‘the union’.

The material facts will be stated in the opinion.John E. Martin, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., for appellant.

Whyte, Hirschboeck & Minahan, of Milwaukee, for respondent.

Padway, Goldberg & Previant, of Milwaukee, amicus curiae.

WICKHEM, Justice.

The company is a manufacturing concern operating in the city of Algoma and having approximately 650 production workers. In 1942 the union was designated as bargaining agent by a majority of the company's employees in an election conducted by the National Labor Relations Board. Since that time it has entered into contracts with the company concerning wages, hours and working conditions. On April 5, 1946 a contract was executed which contains the following provision:

‘* * * All employees who, on the date of the signing of this agreement, are members of the Union in good standing in accordance with the constitution and by-laws of the Union, and those employees who may thereafter become members shall, during the life the agreement as a condition of employment, remain members of the Union in good standing.’

This provision had been inserted in the 1943 contract and was included in all contracts thereafter negotiated. It was inserted in the 1943 contract upon the recommendation of a federal consiliator in accordance with an alleged policy of the War Labor Board but no directive of this board was ever issued requiring the inclusion of such a provision. It was the practice in enforcing the provision for the union to notify the company of delinquencies on the part of any employee in respect of his dues. The company would then interview the delinquent employee and take whatever steps were necessary to restore his membership to good standing and failing that would discharge him.

The employee began to work for the company steadily in October, 1945 but had been employed from time to time prior to that time. On one occasion in 1944 he had been reported by the union as delinquent and ordered to leave work but he paid his dues and was restored to this job. Thereafter he maintained his membership until early in 1947 when he received a notice from the union stating that he was in arrears and that if he was not paid up within a week that would ‘be your last day of work and you will also be fined $1.’ He did not pay his dues and was ordered to report to the vice-president of the company. He there stated that he would quite before he would pay and indicated dissatisfaction with the union. He was then discharged.

Upon these facts the board ordered that the company cease from encouraging membership in the union by any discrimination in respect of the hire or tenure of its employees or by requiring as a condition of employment that any employee become or remain a member of the union unless and until the employees shall have approved such provision by referendum under sec. 111.06(1)(c), Stats. The company was required to take the following affirmative action: (1) reinstate employee; (2) pay employee a sum of money equal to the amount he normally would have earned in wages during the period from his discharge to the date of the company's order of reinstatement, less earnings he may have had during such period; (3) post the usual notices; (4) notify the board within five days of the steps taken to comply with the order.

Thereafter, on November 5, 1947 the board petitioned the circuit court for enforcement of its order and the judgment in this case reversed that portion of the order requiring the company to make the employee whole for loss of pay. Otherwise the order was confirmed and enforced. Both union and employer contend that the board was without jurisdiction for the reason that the National Labor Relations Board in supervising the election for bargaining agent and certifying the union as such had so intervened in the labor relations of the company as to oust the Wisconsin board of jurisdiction.

As pointed out in Allen-Bradley Local No. 1111 v. Wisconsin E. R. Board, 237 Wis. 164, 295 N.W. 791, 794, we are again confronted with a question of delicacy and difficulty concerning ‘the delimitation of the power of the state and the federal government over a matter which is subject to some extent to their concurrent jurisdiction.’ See also International Brotherhood of E. W. v. Wisconsin E. R. Board, 245 Wis. 532, 15 N.W.2d 823. The question first came before this court in Wisconsin Labor Relations Board v. Fred Rueping Leather Co., 228 Wis. 473, 279 N.W. 673, 676, 117 A.L.R. 398. At that time there was in force in this state a labor relations act substantially identical in all important respects with the Wagner Act, 29 U.S.C.A. § 151 et seq. The question was whether the Wisconsin board had jurisdiction to consider and to determine proceedings initiated under the Wisconsin Act by employees charging unfair labor practices on the part of an employer. This court held that the state had power to regulate labor relations in the interest of the peace, health and order of the state and that the federal government had the power to ‘regulate this relationship to the extent that unregulated it tends to obstruct or burden interstate commerce.’ It was conceded that in the field where there was an overlapping of jurisdiction the federal power was supreme and that the federal statute could preempt this field. It was held, however, that the National Labor Relations Act had not preempted the field and in view of the discretion in the National Labor Relations Board to take or to refuse jurisdiction in accordance with its determination whether the situation proximately affected Interstate Commerce it was held that the state was ousted of jurisdiction only where there was an administrative conflict created by the intervention of the National Labor Relations Board. It was unnecessary to determine what the situation might be if the state act had been in any way repugnant to the policy and purposes of the National Act. The Rueping case did not involve any intervention by the National Labor Relations Board and this court did not consider what would constitute such an administrative intervention by the National Board as would oust the Wisconsin Board of Jurisdiction. The Allen-Bradley case, supra, arose under the Wisconsin Employment Peace Act which was different in several important particulars from the so-called Little Wagner Act. Among other things it defined unfair labor practices by employees and in several other respects departed from the provisions of the former statute. It was contended in the Allen-Bradley case that the Wisconsin Employment Peace Act was repugnant to the purpose and policy of the National Labor Relations Act and that for that reason it could not be enforced in the face of the federal enactment. It was held that at least so far as unfair labor practices by employees was concerned the Employment Peace Act covered a field not dealt with by the national act or within the jurisdiction of the National Labor Board and that there was no conflict fatal to the jurisdiction of Wisconsin. It was intimated that mere repugnancy in the language of the two acts did not go to the matter of jurisdiction and that there could be no conflict even in such a situation until it was attempted to apply them to the same labor dispute. The Allen-Bradley case was appealed to the United States Supreme Court and was affirmed. Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154. The opinion was put upon quite narrow grounds and the court deliberately avoided the question whether the Wisconsin view that jurisdiction was wholly dependent upon administrative conflict was valid. It was held, however, that a state law so construed and applied as to delete, impair or defeat the rights declared by the National Labor Relations Act would be unconstitutional but it was held that the court would not consider the state act as a whole but rather the parts of it applied in the case involved and that the conflict with the federal act must be found in those very parts. It was held that since the federal act did not govern employer-union activity of the type involved in the Allen-Bradley case the portions of the Wisconsin Act under attack constituted a valid exercise of jurisdiction. It was stated that if the order of the state board had affected the status of employees or caused a forfeiture of collective bargaining rights a different question would arise.

We now come to the case of Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 1028, 91 L.Ed. 1234. That case dealt with a situation in which the New York State Labor Board had permitted foremen to organize to constitute a collective bargaining unit. The...