BROWNE, аnd others, Plaintiffs-Appellants, v. MILWAUKEE BOARD OF SCHOOL DIRECTORS, and others, Defendants-Respondents.
No. 77-318
Supreme Court of Wisconsin
May 2, 1978
Motion for rehearing denied, without costs, on June 30, 1978.
265 N. W. 2d 559
Argued February 6, 1978.
There was a brief by John H. Bowers, John C. Carlson and Lawton & Cates, and oral argument by Mr. Bowers, all of Madison, for District Council 48 and Local 1053, Affiliated with District Council 48, American Federation of State, County and Municipal Employees, AFL-CIO, and their officers; joined by James B. Brennan, city attorney, and Patrick B. McDonnell, assistant city attorney, for Milwaukee Board of School Directors; Zubrensky, Padden, Graf & Bratt, attorneys, of Milwaukee, and of counsel Zwerdling & Mauer and A. L. Zwerdling, general counsel, of Washington, D. C., for American Federаtion of State, County and Municipal Employees, AFL-CIO.
Brief amicus curiae for Milwaukee Teachers Education Association was filed by Richard Perry and Perry & First, S. C. of Milwaukee.
The second part of the order denied the plaintiffs’ motion to escrow all fair-share deductions of all objecting fair share employees within defendant union, Local 1053, American Federation of State, County and Municipal Employees, AFL-CIO.1
Statutes Involved.
” ‘Fair-share agreement’ means an agreement between a municipal employer and a labor organization under which all or any of the employees in the collective bargaining unit are required to pay their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required of all members. Such an agreemеnt
shall contain a provision requiring the employer to deduct the amount of dues as certified by the labor organization from the earnings of the employees affected by said agreement and to pay the amount so deducted to the labor organization.”
”
“Municipal employees shall have the right to self-organization, and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, and such employees shall have the right to refrain from any and all such activities except that employees may be required to pay dues in the manner provided in a fair-share agreement.”
“. . . (a) It is a prohibited practice for a municipal employer individually or in concert with others:
“1. To interfere with, restrain or coerce municipal employes in the exercise of their rights guaranteed in sub. (2). . . .”
The issues on this appeal are as follows:
- Was the order referring this case to W.E.R.C. appealable?
- Did the trial court abuse its discretion by referring this case to W.E.R.C. to determine what portion of the plaintiffs’ fair-share funds were being used for purposes unrelated to collective bargaining or contract administration?
- Did the trial court abuse its discretion by refusing to escrow all fair-share deductions pending W.E.R.C.‘s determination?
We hold that the order was appealable and that the trial court did not abuse its discretion in transferring the case or refusing to escrow the fair-share funds.
The plaintiffs are fourteen non-union еmployees of the defendant Milwaukee Board of School Directors (hereafter board). On June 4, 1973 the plaintiffs brought suit in Milwaukee circuit court on behalf of themselves and similarly situated non-union employees. The complaint challenged, on a number of grounds, the facial and as applied constitutionality of
On August 15, 1973, the defendant unions demurred to the complaint on the grounds, inter alia, that the circuit court lacked jurisdiction over the subject matter because W.E.R.C. had exclusive jurisdiction and that the non-union employees had failed to allege exhaustion of administrative and contract remedies. Thе circuit court overruled the demurrer on all grounds on October 9, 1973. That order was subsequently affirmed by this court upon the unions’ appeal. Browne v. Milwaukee Bd. of School Directors, 69 Wis.2d 169, 230 N.W.2d 704 (1975). This court upheld the circuit court‘s overruling of the demurrer on the issues of exclusive jurisdiction in W.E.R.C. and failure to allege exhaustion of administrative remedies.
On March 10, 1976 this case was consolidated with the Milwaukee circuit court case of Gillis W. Gerleman, et al., vs. The Milwaukee Board of School Directors et al. The Gerleman case involved the same issues as this case, but there the plaintiffs were non-union teachers. In this case the plaintiffs are non-union clerical, secretarial and technical employees.
The trial court‘s holding of facial constitutionality was based on its interpretation that “by the statute the non-union monies are to be utilized only for ‘. . . their proportionate share of the cost of the collective bargaining process and contract administration. . . .‘” Recognizing that “the uncontroverted affidavits relate numerous expenses unrelated to the confines of the statute,” the court further held that “a strict accounting procedure should be instituted, if same has not already been accomplished, to ensure that any objecting nonmember is reimbursed for any of his dues which are not strictly related to the collective bargaining process or contract administration” and placed “the burden . . . on defendants to show valid expenditures . . .”
The trial court felt that this fact finding process could be more expeditiously accomplished by W.E.R.C. and suggested, in its opinion, that a motion be brought to
“. . . to have that agency make its findings of fact and conclusions of law with respect to the practices and statutory rights of [the] parties under
sec. 111.70, Stats. ”3
On August 8, 1977 the plaintiffs filed a motion to escrow all fair-share deductions pending a determination of the validity of those deductions. The motion was denied in the same order that referred the case to W.E.R.C. The plaintiffs appealed from the order referring the case to W.E.R.C. and from the denial of temporary escrow relief.4
On October 12, 1977 the plaintiffs petitioned this court for a writ of mandamus requiring the trial court to vacate its order of referral to W.E.R.C. and exercise jurisdiction in the case. On November 16, 1977 this court entered an order holding the mandamus petition in abeyance, pending the disposition of this appeal.
On January 5, 1978 the defendant unions filed a motion to dismiss the appeal for want of jurisdiction in this court. On February 1, 1978 this court denied the motion to dismiss the appeal from the order denying the motion to escrow. The decision on the appealability of the order to transfer the case to W.E.R.C. was held in abeyance until disposition of the merits of the appeal.
The defendant unions contend that the order referring the case to W.E.R.C. is not an appealable order.
In Snajder v. State, 74 Wis.2d 303, 246 N.W.2d 665 (1976), Snajder sought certiorari review of his parole revocation. The circuit court found that the evidence before the court was insufficient to review the propriety of the revocation decision and remanded the case to the Department of Health and Social Services for further explanation and the taking of more evidence. On appeal this court ruled that the order remanding the case to the department was appealable as a provisional remedy because it was a “. . . remedy outside of and beyond those ordinary proceedings in an action which relate merely to matters of practice and procedure.”5
In this case the order of referral to W.E.R.C. is also appealable as a provisional remedy because it is “outside of and beyond those ordinary proceedings in an action.” The plaintiffs sought injunctive and dеclaratory relief and damages in the Milwaukee Circuit Court on the grounds that their fair-share funds were being spent for an impermissible purpose. The referral to W.E.R.C. was not within the ordinary proceedings in such an action.
Referral To W.E.R.C.
The trial court order transferred this case to W.E.R.C. for the purpose of making findings of fact and conclu-
Where primary jurisdiction is at issue
“. . . a trial court can, in its discretion, either hear a case or defer to the expertise of an administrative agency . . . the question of primary jurisdiction arises only in cases where thеre is concurrent jurisdiction in the administrative agency and in the courts. Accordingly, the question is not one of subject matter jurisdiction, but which portion of the dispute-settling apparatus—the courts or the agencies—should, in the interests of judicial administration, first take the jurisdiction that both the agency and the court have.” Browne v. Milwaukee Bd. of School Directors, 69 Wis.2d 169, 175, 230 N.W.2d 704 (1975).
Where questions of primary jurisdiction are involved and the court declines to exercise its jurisdiction, the question on review is whether the court has abused its discretion. Sawejka v. Morgan, 56 Wis.2d 70, 79, 201 N.W.2d 528 (1972).
The question of primary jurisdiction was first considered in Wisconsin in the case of Wisconsin Collectors Asso. Inc. v. Thorp Finance Corp., 32 Wis.2d 36, 145 N.W.2d 33 (1966). In that case the collectors claimed that Thorp was engaged in running a collection agency without having complied with the statutory licensing requirements. The trial began and immediately after the first witness was sworn, Thorp made a motion “. . . in the nature of a demurrer ore tenus,” claiming that the court had no jurisdiction because the collectors’ association had not exhausted its administrative remedies. The trial court reserved decision on the demurrer and pro-
In determining who should have heard the case this court stated,
“Nonetheless, we believe it improper to couch such priority in terms of power or jurisdiction. The standard, in our opinion, should not be power but comity. The court must consider which course would best serve the ends of justice. If the issue presented to the court involves exclusively factual issues within the peculiar expertise of the commission, the obviously better course would be to decline jurisdiction and to refer the matter to the agency. On the other hand, if statutory interpretation or issues of law are significant, the court may properly choose in its discretion to entertain the proceedings. The trial court should exercise its discretion with an understanding that the legislature has created the agency in order to afford a systematic method of fact-finding and policy-making and that the agency‘s jurisdiction should be given priority in the absence of a valid reason for judicial intervention.” Wisconsin Collectors, supra at 32 Wis.2d 44, 45.
In Wisconsin Collectors this court held that it would not have been an abuse of discretion to transfer the case to the agency at the beginning of trial, but that it was an abuse to do so after such an extensive hearing.
To determine whether this trial court abused its discretion in transferring the case to W.E.R.C., it must first be determined what the trial court decided in granting the previous motion for partial summary judgment. The issues remaining unresolved after that decision must
Concerning the application of the statute the court stated,
“Further the uncontroverted affidavits relate numerous expenses unrelated to the confines of the statute. Thus there may be an unconstitutional application of the funds collected.
“Since all the defendant unions receive a portion of plaintiffs’ funds (albeit slight in the case of the state and national organizations) a strict accounting procedure should be instituted, if same has not already been accomplished, to ensure that any objecting nonmember is reimbursed for any of his dues which are not strictly related to the collective bargaining process or contract administration. . . .”
“Perhaps it may prove less burdensome to rebate all ‘per capita’ dues to the regional, state and national organizations but that is defendants’ option. If not so exercised defendants must show what proportion of those ‘per capita’ assessments come within the statutory confines and which do not.”
The plaintiffs contend that the trial court decision still leaves оpen questions about whether the statute is being constitutionally applied to them, but at a June 29, 1977 hearing after the opinion was issued the trial court stated that,
“Although the Court declared the Wisconsin Statute constitutional on its face, a further constitutional issue would normally be apparent in this case on First Amendment rights, but that issue really is moot since the
statute itself indicates the expenditures by the unions of fair-share monies are limited to contract administration and collective bargaining, which gives greater rights to the plaintiffs than solely First Amendment rights.”
At an August 22, 1977 hearing the trial court referred to its previous decision and stated that,
“There is no question that the issue before the Court in the May 16th decision was solely the question of whether or not that portion of the statutes was unconstitutional on its face. The Court did make referral in its opinion to certain expenditures that would be placed in the record by the plaintiffs concerning a number of different expenditures in both the Browne and Gerleman cases, and only for purposes of guidance for any agency or referee that will be adopted when it makes its determination on findings of fact and conclusions of law as to whether or not the expenditures come within the statute, which, as I have indicated on a number of occasions, is more restrictive of the union‘s rights than the plaintiffs’ First Amendment rights.” (emphasis added).
Based on the above statements the trial court must have determined that the issue of the “as-applied” constitutionality of the statute was foreclosed by the statute itself.
This approach complies with the rule that when,
“. . . a legislative enactment . . . is attacked as being unconstitutional . . . the cardinal rule of statutory construction is to preserve a statute and to find it constitutional if it is at all possible to do so.” Gottlieb v. Milwaukee, 33 Wis.2d 408, 147 N.W.2d 633 (1967).
“. . . the duty of this court is . . . if possible, to so construe the statute as to find it in harmony with accepted constitutional principles.” State ex rel. Harvey v. Morgan, 30 Wis.2d 1, 13, 139 N.W.2d 585 (1966).
We agree with the trial court‘s interpretation of
[9]
In applying the doctrine of primary jurisdiction to the unresolved facts and issues of this case the trial court did not abuse its discretion in transferring the case to W.E.R.C.
The plaintiffs raise a number of arguments to show that the referral to W.E.R.C. was erroneous. Their most significant argument is that this case does not involve an issue of primary jurisdiction because the agency did not have jurisdiction to resolve the constitutional issues raised here. Based on the previous discussion, constitutional issues are no longer apparent in this case. Nonetheless, there must be some basis for W.E.R.C. jurisdiction over the remaining issue of statutory violations or a primary jurisdiction analysis is inapplicable. An agency or board created by the legislature only has those powers which are expressly or impliedly conferred on it by statute. Such statutes are generally strictly construed to preclude the exercise оf power which is not expressly granted. Racine Fire & Police Comm. v. Stanfield, 70 Wis.2d 395, 399, 234 N.W.2d 307 (1974).
In City Firefighters Union v. Madison, 48 Wis.2d 262, 179 N.W.2d 800 (1970), the procedural issue was
“Appellants . . . argue that they did not have a choice of forums between WERC and the circuit court. They argue that the Chief‘s acts constitute a breach of contract and that nowhere in
sec. 111.70, Stats. , is WERC given authority to hear a breach of contract action.“This is true, but the very same acts, if рroven, would also have served as a basis of a ‘prohibited practice’ action which WERC is clearly empowered to hear. Thus, appellants did have a choice of forums, depending upon what label they selected for their action.” City Firefighters, supra at 48 Wis.2d 268, 269.
“In the instant case, there is no substantial factual dispute. For demurrer purposes at least, it is agreed that money is deducted from the wages of the plaintiffs and some of that money is used for political purposes not related to the collective bargaining process. The issue posed by the case is the constitutionality of the statutes that authorizes those deductions under a ‘fair-share agreement’ that conformed to the statutory prescription.” Browne, supra at 69 Wis.2d 176.
On this second appeal the case is not at the demurrer stage, constitutional issues have been resolved and factual issues now predominate.
Denial Of Motion To Escrow.
The plaintiffs contend that the trial court erred by refusing to escrow all fair-share funds pending resolution of the remaining issues in this case. The plain-
The power to grant a temporary injunction lies within the discretion of the trial court. The trial court‘s decision concerning an injunction will not be reversed unless the discretion has been abused. Culligan v. Rheaume, 269 Wis. 242, 247, 248, 68 N.W.2d 810 (1955). An abuse of discretion in granting or refusing to grant a temporary injunction may occur if the trial court: (1) has failed to make a record of factors relevant to the discretionary determination in a particular case; (2) considered clearly irrelevant or improper factors; or (3) clearly given too much weight to one factor. Joint School v. Wisconsin Rapids Ed. Asso., 70 Wis.2d 292, 309, 234 N.W.2d 289 (1975).
Pertinent factors to consider in deciding whether to grant a temporary injunction appear at
“Temporary Injunction; When Granted. (1) When it appears from his pleading that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure him, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.”
Other relevant considerations concerning temporary injunctions were collected in Fromm & Sichel, Inc. v. Ray‘s Brookfield, Inc., 33 Wis.2d 98, 103, 146 N.W.2d 447 (1966),
” ‘Injunctions are not to be issued lightly.’ Bartell Broadcasters, Inc. v. Milwaukee Broadcasting Co. (1961), 13 Wis. (2d) 165, 171, 108 N.W. (2d) 129, The ‘remedy usually is made available only when necessary to preserve the status quo of the parties or to prevent a multiplicity of suits.’ Rust v. State Board of Dental Examiners (1934), 216 Wis. 127, 132, 256 N.W. 919. The general rule is that, ‘Injunctions do not issue for inconsequential or trivial causes.’ Milwaukee Electric Railway & Light Co. v. Pallange (1931), 205 Wis. 126, 134, 236 N.W. 549. They ‘should only be granted where there is an irreparable injury.’ Kuntz v. Werner Flying Service, Inc. (1950), 257 Wis. 405, 410, 43 N.W. (2d) 476, quoting from Maitland v. Twin City Aviation Corp. (1949), 254 Wis. 541, 37 N.W. (2d) 74. In addition, ‘Past injuries are in themselves no ground for an injunction, and it is only granted when necessary to restrain irreparable mischief, suppress oppressive and interminable litigation, or prevent a multiplicity of suits.’ Cobb v. Smith, (1863), 16 Wis. 692, 697.”
“The appellees therefore remain obliged, as a condition of continued employment, to make the payments to their respective unions called for by the agreement. Their right of action stems not from constitutional limitations on Congress’ power to authorize the union shop, but from § 2, Eleventh itself. In other words, appellees’ grievance stems from the spending of their funds for purposes not authorized by the Act in the face of their objection, not from the enforcemеnt of the union-shop agreement by the mere collection of funds. If their money were used for purposes contemplated by § 2, Eleventh, the appellees would have no grievance at all. We think that an injunction restraining enforcement of the union-shop agreement is therefore plainly not a remedy appropriate to the violation of the Act‘s restriction on expenditures. Restraining the collection of all funds from the appellees sweeps too broadly, since their objection is only to the uses to which some of their money is put. Moreover, restraining collection of the funds as the Georgia courts have done might well interfere with the appellant unions’ performance of those functions and duties which the Railway Labor Act places upon them to attain its goal of stability in the industry. Even though the lower court decree is subject to modification upon proof by the appellants of cessation of improper expenditures, in the interim the prohibition is absolute against the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves. The complete shutoff of this source of income defeats the congressional plan to have all employees benefited share costs ‘in the realm of collective bargaining,’ Hanson, 351 U.S. at p. 235, and threatens the basic congressional policy of the Railway Labor Act for self-adjustments between еffective carrier organizations and effective labor organizations.” (footnote omitted). Street, supra at 367 U.S. 740, 771, 772.
“One remedy would be an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union‘s total expenditures made for such political activities to the union‘s total budget. . . . A second remedy would be restitution to each individual employee of that portion of his money which the union expended, despite his notification, for the political causes to which he had advised the union he was opposed.” Street, supra at 367 U.S. 774, 775.
In Brotherhood of Railway Workers v. Allen, 373 U.S. 113, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963), the issue of approрriate temporary relief was squarely before the court. In Allen the appeal was from a judgment providing for an injunction restraining the union from collecting dues from objecting union shop members until the union showed what portion of the exacted funds were being used for collective bargaining.11 Relying on Street, supra, the court determined that this interim relief was too broad and stated,
“It also follows from Street that the Superior Court erred in granting respondents interim relief against compliance with the financial obligations imposed by the Agreement. As a result of this relief none of the respondents has taken any steps toward compliance since the suit was instituted. We think that lest the important functions of labor organizations under the Railway Labor Act be unduly impaired, dissenting employees (at least in the absence of special circumstances not shown here) can be entitled to no relief until final judgment in their favor is entered. Therefore, on remand respondents would be given a reasonable time within which they must pay to the bargaining representative of their class or
craft all sums required under the Agreement, including arrears, that are owing; as to any respondent failing to do this, the action must be dismissed.” Allen, supra at 373 U.S. 120.
Street, supra and Allen, supra stand for the proposition that employees who are compelled to pay union dues are still required to pay those dues pending a determination of what portion of those dues are being used for statutorily impermissible purposes.12
In support of their request to escrow all funds the plaintiffs cite Robbinsdale Educ. Ass‘n v. Teacher‘s Local 872, 239 N.W.2d 437 (Minn. 1976) (vacated and remanded for reconsideration in light of intervening changes in state law sub. nom. Threlkeld v. Teacher‘s Local 872, 429 U.S. 880 (1976)). In that case the Minnesota Supreme Court construed a public employee fair-
Regardless of the Minnesota court‘s rationale in allowing an injunction, Robbinsdale is not a persuasive precedent in this case because the use of injunctive relief was sanctioned by construction of a Minnesota statute not present here. Here, plaintiffs base their demand for injunctive remedy on constitutional claims that were not decided in Robbinsdale.
Returning, finally, to the initial question: Did the trial court abuse its discretion by refusing to escrow all fair-share dues? In denying the motion the trial court stated,
“. . . it would be pure speculation on the part of this Court to determine without any factual basis upon which to make such a conclusion what percentage of funds have in fact been spent by unions of objecting employes outside of the confines of thе statute. I could only guess that it runs anywhere from 0 to 100%.”
The court‘s rationale is not entirely clear, but the statement at least demonstrates an exercise of discretion because if the court does not know what portion of the dues were spent for political purposes, it can not very well find the required danger of irreparable injury. Kuntz, supra.
By the Cоurt.—Order affirmed and cause remanded to the Milwaukee Circuit Court to transfer the cause to W.E.R.C. for further proceedings not inconsistent with this opinion.
The following opinion was filed June 30, 1978.
PER CURIAM (on motion for rehearing).
On their motion for rehearing the plaintiffs contend that the proceedings in the circuit court must be stayed pending W.E.R.C.‘s factual determination or they will be prejudiced by the inability of W.E.R.C. to hear class actions.
A stay in the trial court pending administrative proceedings is proper where necessary to avoid possible prejudice to one of the parties. United States v. Michigan National Corp., 419 U.S. 1, 95 S. Ct. 10, 42 L. Ed. 2d 1 (1974).
In this case, as in all cases where questions of primary jurisdiction occur, both the trial court and the administrative agency have concurrent jurisdiction. Browne v. Milwaukee Bd. of School Directors, 69 Wis.2d 169, 175,
When W.E.R.C. has determined all issues before it, both W.E.R.C. and the trial court will be precluded from any further action. The trial court may not retain jurisdiction of this case for purposes of
The motion for rehearing is denied.
Notes
The court stated that these findings raised grave constitutional questions. In resolving these questions the court made an exhaustive review of the legislative history of the Railway Labor Act and determined that only expenditures for negotiating and administering the collective bargaining agreement аnd adjusting grievances fell within, “the reasons accepted by Congress why authority to make union shop agreements was justified.” Street, supra at 367 U.S. 768. The Court therefore ruled that the use of compulsory union dues for political purposes violated the purpose of the act and it,
“. . . is to be construed to deny the unions, over an employee‘s objection, the power to use his exacted funds to support political causes which he opposes.” Street, supra at 367 U.S. 768, 769.
“In view of the newly adopted Union internal remedy, it may be appropriate under Michigan law, even if not strictly required by any doctrine of exhaustion of remedies, to defer further judicial proceedings pending the voluntary utilization by the parties of that internal remedy as a possible means of settling the dispute.” Abood, supra, at 431 U.S. 242.
The union procedure was explained as follows,
“Under the procedure adopted by the Union, as explained in the appellees’ brief, a dissenting employee may protest at the beginning of each school year the expenditure of any part of his agency-shop fee for ‘activities or causes of a political nature or involving controversial issues of public importance only incidentally related to wages, hours, and conditions of employment.’ The employee is then entitled to a pro rata refund of his service charge in accordance with the calculation of the portion of total Union expenses for the specified purposes. The calculation is made in the first instance by the Union, but is subject to review by an impartial board.” Abood, at 431 U.S. 240 n. 41.