Wis. Employment Relations Bd. v. Allis-Chalmers Workers' Union

• Decision Date: 18 December 1946
• Citation: 249 Wis. 590,25 N.W.2d 425
• Parties: WISCONSIN EMPLOYMENT RELATIONS BOARD v. ALLIS-CHALMERS WORKERS' UNION, LOCAL 248. SAME v. ALLIS-CHALMERS WORKERS' UNION, LOCAL 248, et al.
• Court: Wisconsin Supreme Court

249 Wis. 590

25 N.W.2d 425

WISCONSIN EMPLOYMENT RELATIONS BOARD

v.ALLIS-CHALMERS WORKERS' UNION, LOCAL 248.

SAME

v.ALLIS-CHALMERS WORKERS' UNION, LOCAL 248, et al.

Supreme Court of Wisconsin.

Dec. 18, 1946.

Appeal from an order of the Circuit Court for Milwaukee County; Roland J. Steinle, Judge.

Affirmed.The proceeding was initiated on September 9, 1946, by petition of the Wisconsin Employment Relations Board for an order to show cause directing that Allis Chalmers' Workers' Union Local 248, U.A.W.A., C.I.O., be required to show cause why they should not be punished as and for a civil contempt for failing to obey and in disobeying a judgment of the circuit court for Milwaukee county entered September 9, 1946 in an action under chapter 111 of the statutes brought by Wisconsin Employment Relations Board against Allis Chalmers' Workers' Union, Local 248, U.A.W.A., C.I.O., and Robert Buse, Joseph W. Dombek, Fred McStroul, Arne H. Hansen, Jr., Herbert Nagi, Charles M. Fisher, John F. Kennedy, Raymond G. Mickelson, Alfred Reinke, Robert O. Wartchow, John Fallon, George Laich, Walter Golon, Virgil Steele, William Zastrow, Nicholas Ostovich, Edwin Peters, Michael Sheehan, Owen N. Lambert, Richard Pearson, John Krier, Ralph Kagenkord, Anthony Todryk, Morris Kipnis, Charles Kompas and Kermit F. Gavigan, to enforce certain orders of the board relating to picketing. The amended petition alleges that copies of the judgment were mailed to each member of the Union and posted in the meeting halls and offices of the Union prior to the events later described in the petition. It is alleged that the Union and the officers and members specifically named have failed to conform to the provisions of the judgment and to desist from enjoined activities; ‘that on the contrary on the 27th, 28th, 29th, and 30th days of October, 1946,’ they and each of them have engaged in inducing picketing of a character to hinder and prevent persons on foot and in conveyances from freely entering and leaving the premises of the Allis-Chalmers Company; that on the same dates they have engaged in mass picketing, force and coercion and thereby hindered the pursuit of lawful work and employment on the premises of said company and have obstructed and interfered with ingress and egress to and from the premises respectively; that the acts and omissions were calculated and do impair the rights of petitioner which is charged with the duty of preventing such acts and omissions in the interests of employers, employees and the general public.

The petition prays for an order to show cause why the respondents should not be punished ‘for said civil contempt’ and for such other relief as is just and proper.

Respondents demurred to the petition on the grounds (1) that petitioner has no legal capacity to sue; (2) that the petition does not state facts sufficient to constitute a cause of action.

In addition, three motions were made, two purporting to be on and in behalf of ‘the respondent’ and one on behalf of ‘the individuals named in the order to show cause.’ The motions were doubtless made in this form in order to cover all possible contingencies, and since this necessarily involved some repetition, it is deemed sufficient simply to summarize the motions as a whole. They were to the effect (1) that the amended petition states no cause of action; (2) that it states no facts entitling plaintiff to relief by way of civil contempt; (3) that the petitioner is not a proper party; (4) that the proceedings be entitled criminal contempt under chapter 256; (5) that the individuals named in the order to show cause be made parties to the proceedings and permitted to file written answers.

On November 12, 1946, the court entered an order overruling the demurrer and denying all of respondents' motions. Respondents appeal.

To avoid confusion resulting from the fact that respondents to the petition are appellants here, attention is called to the fact that in the opinion the petitioners will be referred to as respondents, and the respondents to the petition will be referred to as appellants.

A. W. Richter, Daniel D. Sobel, and W. O. Sonnemann, all of Milwaukee, for appellants.

John E. Martin, Atty. Gen. Stewart G. Honeck, Deputy Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., for respondent.

WICKHEM, Justice.

Appellants make the following contentions upon this appeal: (1) That Wisconsin Employment Relations Board under sec. 111.07(7) has no statutory authority to carry enforcement of its orders beyond judgment in circuit court and that therefore it has no standing to seek enforcement of a judgment by contempt; (2) that the amended petition charges only criminal contempt. Such questions as are subordinate to the two main issues will be discussed in the course of this opinion.

We proceed to appellants' first contention. Section 111.07(7), Stats., provides in substance that if any person neglects to obey an order of the board, the board may petition the circuit court in the county where such person resides ‘for the enforcement of such order and for appropriate temporary relief or restraining order, and shall certify and file in the court its record in the proceedings.’ Provision is made for notice and hearing and upon hearing the court may ‘confirm, modify, or set aside the order of the board and enter an appropriate decree.’ Appellants' contention is that the statute merely authorizes the board to seek enforcement of its order by an injunctive decree of the circuit court; that upon the entry of judgment the order becomes merged therein and further relief by contempt proceedings is in aid of the judgment and not of the board's order. While appellants concede that under the decisions the National Labor Relations Board may invoke the remedy of contempt in aid of a judgment enforcing its order, they contend that the Wisconsin Peace Act differs in essential particulars from the national act. In the first place, it includes unfair labor practices of employees, as well as those of employers, while the national act is confined to labor practices of employers, most of which did not previously constitute causes of action enforceable in ordinary legal actions. This is claimed to point to the necessity in the national act of furnishing new machinery of enforcement which is not present under the state act, at least as far as employees are concerned. It is pointed out that while the National Labor Relations Board may act upon its own initiative, the jurisdiction of the Wisconsin Board is not aroused except when complaints are made to it either by employers or employees. Citations are made to 29 U.S.C.A. § 160(a) empowering the National Labor Relations Board to ‘prevent any person from engaging in any unfair labor practice * * * affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.’ On the other hand, the Wisconsin Act in sec. 111.07(1), Stats., provides that any controversy concerning unfair labor practices may be submitted to the board, but that nothing in the section shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction. In other words, it is claimed that the federal act created new wrongs and that the remedies to redress them were exclusively vested in the National Labor Relations Board, thereby justifying an implication of authority in this board to institute contempt proceedings in support of decrees entered upon its orders, whereas the Wisconsin Labor Relations Board was intended to exercise a passive and more definitely impartial function upon the applications of parties who were not thereby precluded from seeking ordinary legal remedies in courts of competent jurisdiction. This matter has been decided adversely to appellants in Wisconsin Employment Relations Board v. Milk, etc., Union, 238 Wis. 379, 299 N.W. 31, but it is contended by appellants that the matter was not raised or argued, and that this court assumed rather than decided the point.

We have carefully considered the contentions of appellants, and see no reason to depart from the holding of Wisconsin Employment Relations Board v. Milk, etc., Union, supra. Sec. 111.07(7), Stats., provides that if any person neglects to obey an order of the board the latter may petition the circuit court of the county where such person resides ‘for the enforcement of such order and for appropriate temporary relief or restraining order.’ Although the propriety of the board's order may be examined in such an action, the proceedings are quite distinct from those to review an order of the board which are specifically provided for in subsection (8) of the same section. Under sec. 111.07(7), Stats., the board is not only a proper party to an action to enforce, but is the only party authorized to move so far as proceedings under that section are concerned. We deem it unimportant that sec. 111.07(1), Stats., which provides that ‘* * * Nothing herein shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction,’ indicates that chapter 111 may not completely exhaust the remedy of parties affected by a labor dispute. It is enough that the chapter does give the board sole power to seek enforcement of its orders by action in the circuit court. The only question is whether this includes the power to initiate contempt proceedings in support of the final judgment ordering compliance with the board's order.

Respondent argues that this power is necessarily implied from the express statutory grant of power to enforce its orders by an action in court and that upon identical enforcement provisions in the National Labor Relations Act, the National Labor Relations Board concededly had this power. In this connection see Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738. It is clear to us that...