Wisconsin E. R. Board v. Plankinton Packing Co. , 255 Wis. 285 ( 1949 )

The proceeding was commenced in circuit court on January 17, 1947, under sec. 111.07 (7), Stats., for enforcement of an order of the Wisconsin Employment Relations Board issued December 6, 1946. The Plankinton Packing Company petitioned the circuit court for Milwaukee county for a review of the order dated December 6, 1946, holding the Plankinton Packing Company guilty of unfair labor practices and requiring the re-employment of William Stokes. Stokes appeared in support of the order. The Wisconsin Employment Relations Board appeared in opposition to the petition of the Plankinton Company.

There was a hearing before the board and the board found in addition to formal findings, as follows:

"4. That on or about the 20th day of February, 1945, the National War Labor Board, in the settlement of a dispute then pending before such board involving the respondent company and the respondent union, issued a directive order which provided for union security. By the terms of such directive, all employees, who on March 9, 1945, are members of the union in good standing in accordance with its constitution and by-laws and all members who become members after that date, shall, as a condition of employment, maintain their membership in the union in good standing for the duration of the collective-bargaining agreement in which this provision is incorporated or until further order of the board.

"5. That the complainant, William Stokes, was at the time that the directive order referred to in finding number 4 above was issued, a member of the respondent union in good standing. That prior to the 9th day of March, 1945, and on or about the 6th day of March, 1945, the complainant, Stokes, pursuant to the provisions of such directive, tendered to the respondent union, in writing, his resignation from such union. That a copy of such resignation was mailed to the respondent employer.

"6. Immediately after receipt by the union officers of the letter of resignation from the complainant Stokes, the employees employed by the respondent employer in the department in which Stokes was employed, all of whom were members of the respondent union, commenced a course of conduct intended to coerce and intimidate the complainant, Stokes, and to cause his loss of employment for the reason he had exercised his right to refrain from membership in the respondent union. That at the same time officers, agents, and members of the respondent union began a course of conduct intended to coerce, intimidate, and induce the respondent employer to discharge the complainant, Stokes, for the reason that Stokes had exercised his right to refrain from membership in such union. That such course of conduct consisted of calling names, engaging in work stoppages, prevailing upon the employee with whom Stokes had been riding to and from work to discontinue such arrangement; and by requesting and attempting to induce the employer to discharge the complainant Stokes.

"7. That on the 9th day of May, 1945, at the request of the respondent union, the respondent employer discharged the complainant as the result of the coercion, intimidation, and inducement of the respondent union and thus interfered with the right of the complainant, Stokes, to refrain from membership in the respondent union.

"Upon the basis of the above and foregoing findings of fact, the board makes the following

"CONCLUSIONS OF LAW. "(1) That the United Packing House Workers of America, C.I.O., Local No. 50, committed an unfair labor practice by coercing and intimidating William Stokes in the exercise of his right to refrain from membership in such organization, and by coercing, intimidating, and inducing the respondent employer to interfere with the right of complainant, Stokes, to refrain from membership in such organization, and by inducing the respondent employer to discharge Stokes from its employment.

"2. That the respondent, Plankinton Packing Company, committed an unfair labor practice by interfering with the right of William Stokes to refrain from membership in the respondent union by discharging said Stokes at the request of and pursuant to the coercive tactics of the respondent union.

"Upon the basis of the foregoing findings of fact and conclusions of law, the board, under and pursuant to sec. 111.07 of the Wisconsin statutes, makes the following

"ORDER. "1. It is ordered that the respondent, United Packing House Workers of America, C.I.O., Local No. 50, shall immediately cease and desist from engaging in any activities such as name calling, work stoppages, or other coercive or intimidatory activities for the purpose of interfering with the right of William Stokes or any other employee of the respondent, Plankinton Packing Company, to refrain from membership in the respondent union.

"2. It is further ordered that the respondent, Plankinton Packing Company, immediately cease and desist from interfering with the rights of any of its employees to refrain from membership in the respondent union.

"It is further ordered that the respondent, Plankinton Packing Company, take the following affirmative action which the board finds will effectuate the policies of the Wisconsin Employment Relations Act:

"(a) Offer to William Stokes immediate and full reinstatement
to his former position without prejudice to the
rights and privileges he previously enjoyed.
  "(b) Make whole William Stokes for any loss of pay he
may have suffered by reason of the employer's
discrimination against him by payment to him of the sum
of money equal to the amount he normally would have
earned as wage's during the period from the time of
his discharge to the date of the employer's offer of
reinstatement, less any earnings and unemployment
compensation he may have received during that period
of time.
  "(c) Immediately post in conspicuous places at its' place of
employment, notice to all of its employees that it will
cease and desist as above ordered."

It was further ordered that notices be posted and maintained in the customary manner.

Upon the appeal the order of the board was challenged by the company and the union as not being supported by credible and competent evidence. The trial court concluded that under the law, assuming that the state board has jurisdiction, there is in this record sufficient evidence and inferences to be drawn therefrom to support the findings of the board.

The trial court further stated that the chief contention of the company and the union is that the order of the board should be set aside for the reason that the state board is without jurisdiction or power to make said order. Judgment was entered dismissing the petition of the Wisconsin Employment Relations Board for enforcement of the order and sustaining the petition of the Plankinton Packing Company, and the court directed the Wisconsin Employment Relations Board to dismiss the proceedings before it for lack of jurisdiction. The Wisconsin Employment Relations Board appealed from the judgment on the 15th day of December, 1948. Further facts will be stated in the opinion. Upon this appeal two principal questions are raised: (1) Does the evidence sustain the findings of the board as the trial court held? (2) Was the Employment Relations Board without jurisdiction to hear and determine the controversy?

The order of the board required the employer to reinstate William Stokes, an employee of the Plankinton Company up to the time that he was discharged by the company. The Employment Relations Board, hereinafter referred to as the "board," held that the union committed an unfair labor practice by coercing and intimidating William Stokes in the exercise of his right to refrain from membership in such organization and by coercing, intimidating, and inducing the respondent employer to interfere with the right of the complainant Stokes to refrain from membership in such organization and by inducing respondent employer to discharge Stokes from its employment. That the Packing Company committed unfair labor practice by interfering with the right of William Stokes to refrain from membership in the respondent union b.y discharging said Stokes at the request of and pursuant to the coercive tactics of the respondent union. The findings generally are attacked on the ground that they are not supported by the evidence. No useful purpose would served by setting out the testimony, which we have carefully examined and from which examination we conclude that there is ample substantial evidence to sustain the findings of the board.

Only one serious question is raised. Sec. 111.07(4), Stats., among other things provides:

". . . Final orders may dismiss the charges . . . and require him [the person complained of] to take such affirmative action, including reinstatement of employees with or without pay, as the board may deem proper. . . ."

On the hearing Stokes testified as follows:

"So far as I know I have a steady job now. Offhand I think I made 90 ¢ an hour. I started for 82 ¢. When I left Plankinton my rate was 82 1/2 ¢ an hour. I receive overtime where I work now after eight hours in any day. I receive overtime for the hours I work after thirty-two. I work some weeks less and some more than forty hours."

This appears to be all the evidence in the record as to Stokes' employment by E.R. Godfrey Sons Company.

Stokes had been employed by the Plankinton Company for seventeen years. It is the contention of Plankinton Packing Company and the union that at the time the order of the commission was entered under the provisions of sec. 111.02 (3), Stats., Stokes was not an employee.

Sec. 111.02 (3), Stats., provides:

"The term `employee' shall include any person, . . . working for another for hire in the state of Wisconsin in a nonexecutive or nonsupervisory capacity, and shall not be limited to the employees of a particular employer unless the context clearly indicates otherwise; and shall include any individual whose work has ceased solely as a consequence of or in connection with any current labor dispute or because of any unfair labor practice on the part of an employer and . . . (c) who has not obtained regular and substantially equivalent employment elsewhere, . . ."

It is the contention of the union and the Packing Company that the evidence shows that Stokes has obtained regular and substantially equivalent employment, in other words that Stokes is within an exception, and therefore the introductory part of the section does not operate to continue him as an employee.

The Packing Company and the union are claiming the benefit of an exception and the burden is upon them to establish the facts necessary to bring Stokes within the exception. Admittedly he was a discharged employee of the company. The company and the union claim he has ceased to be an employee, therefore the burden is on them to establish the fact. The contention assumes that the fact that the wages are more than substantially equivalent to the wages which Stokes received at the Packing Company is sufficient to sustain this burden. Obviously factors other than wages are to be considered. The trial court held this was not sufficient.

The trial court said:

"The record, however, does not disclose whether Stokes was unemployed for any period of time after his discharge by the company, and up to the time that he obtained employment elsewhere. The fact that complainant instituted and prosecuted this proceeding is persuasive that complainant does not consider his new employment the equivalent of his former job with the company. The additional fact that by reason of his discharge the complainant lost certain security arising out of his seventeen years of employment with the company was a further fact which the board had a right to consider in determining whether Stokes has `obtained regular and substantially equivalent employment elsewhere.'"

The court held that the finding of the board in this respect could not be disturbed. We see no grounds upon which the determination of the trial court can be reversed.

The chief contention of the company and the union is that the order of the board should be set aside for the reason that the state board is without jurisdiction or power to make said order. The trial court found that Plankinton Company had admitted that it is engaged in commerce within the meaning of the National Labor Relations Act. The court further states that from Vol. 5, Decisions and Orders of the National Labor Relations Board, p. 813, it appears that the board found that the Plankinton Company is the wholly owned subsidiary of Swift Company.

The trial court also refers to other facts and then states:

"There is nothing in the record in the instant case, nor has my attention been called to any decision, to the effect that the order of the National War Labor Board of February 20, 1945, has ceased to be effective. It therefore appears to me that under the facts in this case the Wisconsin board is without jurisdiction to make the order of reinstatement."

In so concluding the trial court overlooked the fact that the War Labor Board and the effect of all its directives was wholly terminated by Presidential order No. 9672, December 31, 1945, 1 CFR, 1946 Supp., p. 82. As already stated the state board's order was entered on December 6, 1946, almost a year after the War Labor Board went out of existence.

Every argument made by the company and the union in support of their contention that the state board was without jurisdiction is answered adversely to them by the opinion of this court in Wisconsin E.R. Board v. Algoma P. V.Co. (1948), 252 Wis. 549, 32 N.W.2d 417, affirmed (1949), 336 U.S. 301, 69 Sup. Ct. 584, 93 L.Ed. 000. No useful purpose would be served by reiterating here what was so well said there.

By the Court. — The judgment of the circuit court is reversed with directions to enter judgment confirming and enforcing the provisions of the order of the Wisconsin Employment Relations Board as prayed for in its petition.