32 N.W.2d 417 | Wis. | 1948
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *551 An action was commenced on November 5, 1947, by Wisconsin Employment Relations Board against Algoma Plywood 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 Veneer Company to review that portion of the order which sustains the jurisdiction of the board. Hereinafter the Algoma Plywood 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 Joiners, A.F.L., Local No. 1521, will be referred to as the "union." The material facts will be stated in the opinion. The company is a manufacturing concern operating in the city of Algoma and having approximately six *552 hundred fifty 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 of 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 conciliator 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 at work and you wilt also be fined $1." He did not pay his dues and was ordered to report to the vice-president *553 of the company. He there stated that he would quit 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.
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 1111 v. WisconsinE.R. Board,
We now come to the case of Bethlehem Steel Co. v. NewYork State L.R. Board,
"The state argues for a rule that would enable it to act until the federal board had acted in the same case. But we do not think that a case-by-case test of federal supremacy is permissible here. The federal board has jurisdiction of the industry in which these particular employers are engaged and has asserted control of their labor relations in general. . . . We do not believe this leaves room for the operation of the state authority asserted." (p. 776.)
This court was called upon in International Union v.Wisconsin E.R. Board,
"On its facts the case is easily understood simply as an application of the doctrine that state regulation cannot be permitted to frustrate national policy — in this situation a policy definitely adverse to foremen unionization, not merely neutral in the matter."
We next consider the consequences of the fact that the union here had been certified as a collective-bargaining unit by the National War Labor Board. This circumstance was not present in the Rueping or Allen-Bradley Cases, supra, orHotel R. E. I. Alliance v. Wis. E.R. Board,
The next question has to do with the portion of the orders requiring the employer to make the employee whole for loss of pay resulting from his discharge. The trial court held that in this case the board abused its discretion and ordered the provisions for back pay to be deleted from the order. The statute involved is sec.
". . . Final orders may . . . require the person complained of to cease and desist from the unfair labor practices found to have been committed,. . . and require him to take such affirmative action, including reinstatement of employees with or without pay, as the board may deem proper. . . ."
It was held by this court in Folding Furniture Works v.Wisconsin L.R. Board,
We deal here with a matter committed by statute to the discretion of the board and in order to reverse we must find that the order had no reasonable tendency to effectuate the purposes of the act. In this connection see Christoffel v.Wisconsin E.R. Board,
It follows that the judgment of the trial court should be affirmed in so far as it sustains the jurisdiction of the board, *562 and reversed with directions to enforce the portion of the board's order dealing with back pay.
By the Court. — Judgment affirmed in part and reversed in part, and cause remanded for the entry of judgment in accordance with the opinion.