60 Wis. 2d 591 | Wis. | 1974
Lead Opinion
The following opinion was filed May 8,1974.
(on motion for rehearing). The employment contract did not spell out the terms of the right of
We do not reach the question now raised for the first time by the employer asserting estoppel as to either the “department” or the union. Estoppel was not asserted before the department nor was there any point made of it either in the record before the department or in the trial court.
Concurrence Opinion
(concurring in denial of motion for rehearing). In A. J. Sweet, Inc. v. Industrial Comm. (1962), 16 Wis. 2d 98, 114 N. W. 2d 141, 114 N. W. 2d 853, this court considered whether a loss of work by claimant employees due to lockout or plant shutdown by an employer constituted a bona fide labor dispute under sec. 108.04 (10) of the Wisconsin Unemployment Compensation Act. On the issue of whether a labor dispute was bona fide within the meaning of the statute, this court in Sweet held that “. . . resolving this issue involves the construction of the agreement between the parties . . . .” (Id. at page 105.) In Sweet, this court found that the collective bargaining contracts between the parties “. . . contained no express language prohibiting either strikes or lockouts during their term. . . .” (Id. at page 106.) The court held that the contracts contained no express provision or implied promise that “. . . the employers would not utilize the device of a lockout . . . .” (Id. at page 110.) It necessarily fol
Dissenting Opinion
(dissenting from denial of motion for rehearing). The Kansas City Star Company, Flambeau Paper Company Division, respondent, has filed a motion for rehearing. For the reasons hereinafter set forth, Mr. Justice Beilfuss, Mr. Justice Hanley, and the writer would grant the motion for a rehearing.
The majority opinion correctly holds that “bona fide labor dispute,” as the term is used in sec. 108.04 (10), Stats., means a controversy regarding the terms of employment which in fact exists and is not merely pretextual or feigned on the part of an employer in an attempt to avoid his obligations under the Unemployment Compensation Act. However, the facts of this case clearly support the trial court’s conclusion that these employees lost their employment as a result of a bona fide labor dispute.
Sec. 1 (b) of the collective bargaining agreement provides:
“ (b) If either party shall desire to change any provision of this agreement, it shall give written notice of such desire to the other party at least sixty (60) days in advance of any anniversary date.”
Both unions gave the requisite notice to the employer by letters on May 10 and May 12, 1971, that certain contract provisions should be renegotiated. Bargaining sessions were conducted on June 11,1971, and intermittently thereafter for approximately six weeks. The unions sought increased wages and changes in fringe benefits such as pensions, vacations and group insurance. The employer sought changes in certain work rules, wage differentials and contract language.
The parties were unable to agree and a “bona fide labor dispute”
An impassé was reached between the parties on July 23d. On July 27th, the union notified the employer that
Because of the nature of the chemicals and machinery used by the employer in its operations, a sudden walkout by employees during full production would have caused extensive damage to facilities and materials. Therefore, the employer immediately began to wind down its operations. Customers and material suppliers were notified and, naturally, a drastic decline in new orders for paper goods was soon evident.
On August 15th, the President of the United States asked for a ninety-day wage and price freeze and four days later, on August 19th, the employer received the following letter from the unions:
“In light of President Nixon’s ninety day freeze on wages and prices, this letter will serve as a withdrawal of that termination notice and of our desire to continue to work under the terms of the existing agreement, unless, or until, a new termination is sent or full agreement reached on a new contract.” (Emphasis supplied.)
Somehow the commission and the majority opinion of this court interpret this withdrawal of termination notice as the end of the labor dispute. The fact is, it was not. A “bona fide labor dispute” existed before the termination notice was served and continued to exist after the purported withdrawal and continued until a new collective bargaining agreement was finally entered into between the parties in December, 1971.
All that the August 5th letter from the unions purported to accomplish was to withdraw the strike notice for the ninety-day wage freeze and until the unions sent
The employer refused to accept this attempted withdrawal of termination notice by the unions because the collective bargaining agreements did not provide for such a withdrawal of the termination notice, and because it had already begun to wind down its operations and if full operations were resumed the unions could, at some impropitious moment, issue a new notice of termination. Also, without what were believed to be adequate assurances that the employees would continue on the job, the employer could not serve its customers as a reliable source of supply. The commission, in support of its conclusion that the employees did not lose their employment because of a bona fide labor dispute, found that “. . . the good faith efforts by the unions to continue the contracts required the employer to accept the withdrawal notice even though the contract is silent as to the unions’ right to withdraw the termination notices,” notwithstanding other facts. This finding of fact by the commission, alone, is evidence of a labor dispute. Also, the commission held that . . the employer’s actions in continuing to ‘wind down’ its business operations . . . were not required, necessary or warranted business decisions, . . .” and the attendant loss of work by these employees was “. . . solely because of economic worries over the preservation of its relations with its suppliers and its customers [and that] this was a business judgment and did not constitute a ‘bona fide labor dispute’ as contemplated by section 108.04 (10).”
Undeniably, the decision to continue to wind down operations was a business judgment as, indeed, is every decision that an employer or a union makes with respect to its respective operations during a period such as this. However, an employer has the. right, when confronted with a labor controversy, to evaluate his position in view
The two-member majority of the commission relied on Barrett v. Wasson Coal Co. (1949), 404 Ill. 11, 87 N. E. 2d 769, as authority to support their conclusion. In Barrett, supra, page 17, the operations of a coal mine ceased because the owner was losing money on it and the court held that the employees were not laid off because of a labor dispute, explaining as follows:
“. . . There was no dispute concerning hours or terms of employment about which the parties were trying to agree. The trouble was the uncertainty of prices and conditions under the prevailing economic setup [govern*790 ment regulations] which caused the company to fear the future and to retire behind closed doors rather than to continue operation and take the chance of failure.”
This paper plant was not closed because it was failing to generate a sufficient economic return or because of an uncertain market for its products.
A bona fide labor dispute in fact existed in this case both before and after the purported withdrawal of the termination notice. The dispute was not pretextual or feigned on the part of the employer.
We conclude as a matter of law that there was a bona fide labor dispute and would grant the motion for rehearing.
See: Secs. 103.62, 111.02, 111.70 (1) (i), and 111.81 (8), Stats., for definitions of a labor dispute.
