Opinion
April 11, 1940 —
June 20, 1940.
APPEAL from a judgment of the circuit court for Dane county: OTTO H. BREIDENBACH, Circuit Judge, Presiding. Reversed.
For the appellant E. G. Shinner Company, Inc., there were briefs by Karon Weinberg of Milwaukee, and oral argument by Morris Karon.
For the appellants Independent Unions there was a brief by Leslie G. Keller of Milwaukee.
For the respondent state of Wisconsin there were briefs by the Attorney General and N. P. Feinsinger, special assistant attorney general, and oral argument by Mr. Feinsinger.
David Beznor of Milwaukee, for the intervenor, Amalgamated Meatcutters Butcher Workmen of North America, Local Union No. 73.
This appeal is from a judgment of the circuit court for Dane county, entered May 1, 1939, affirming and enforcing an order of the Wisconsin Labor Relations Board, dated December 12, 1938, and dismissing the action of E. G. Shinner Company, Inc., against Voyta Wrabetz, Edwin E. Witte, and Francis J. Haas, as members of, and constituting the Wisconsin Labor Relations Board (created by ch. 51, Laws of 1937, ch. 111, Stats. 1937, now nonexistent), which was brought to vacate and set aside said order.
On or about April 28, 1938, Edward Borzykowski, secretary of the Amalgamated Meatcutters Butcher Workmen of North America, Local Union No. 73, filed charges with the Wisconsin Labor Relations Board (hereinafter referred to as the "board") against E. G. Shinner Company, Inc. (hereinafter referred to as the "company") under sec. 111.10(2), Stats. 1937. Therein he charged that the company violated the provisions of sec. 111.08(1) "by creating, fostering and maintaining a company union known as `Independent Union of Shinner's Wisconsin Employees Association,' also as `Shinner's Wisconsin Employees Independent Union,'" and further charged that the company violated the provisions of sec. 111.08(2) "by initiating and interfering with the formation and administration of an organization of employees, and by coercing employees in the exercise of the rights guaranteed in sec. 111.07 of the Wisconsin Labor Relations Act," thereby charging that the company has engaged in and is engaging in unfair labor practices within the meaning of sec. 111.08 of the Wisconsin Labor Relations Act.
On May 17, 1938, the board made and served its complaint upon the company together with a notice of hearing. The charges in the board's complaint followed in substance the charges made by Borzykowski as secretary of the Amalgamated Meatcutters Butcher Workmen of North America, Local Union No. 73. Hearing on the board's complaint was scheduled for May 24, 1938, at the board's office in the city of Milwaukee.
On May 20th, the company, by its counsel, entered a special appearance for the purpose of objecting to the board's jurisdiction, and also filed a motion to dismiss the complaint. Among other reasons for alleged lack of jurisdiction of the board, the company claimed that sec. 111.10, Stats. 1937, was unconstitutional and in violation of the due-process and equal-protection clauses of both the federal and state constitutions. On the same date, the company made answer to the board's complaint, however, reserving any of its rights under its special appearance. The company's answer specifically denies each and all of the allegations of the complaint.
On May 23d, the board entered an order denying the company's motion on special appearance to dismiss, both as to jurisdictional and constitutional grounds. The hearing proceeded on May 24th before Examiner J. K. Kyle. The Independent Union of Shinner's Wisconsin Employees Association, also known as Shinner's Wisconsin Employees Independent Union (hereinafter referred to as the "independent union"), requested that it be permitted to intervene for the purpose of protecting its rights under the contract existing between its association and the company. This request was denied by the examiner and later denied by the board. During the progress of the hearing before Examiner Kyle more than a dozen witnesses were sworn, most of whom were employees of the company and members of the independent union, the substance of whose testimony will be referred to in the opinion. At the conclusion of taking evidence on May 24th, hearing was adjourned to June 1st and then to June 3d, at which adjourned hearing, additional witnesses were sworn. Oral argument was had before the board on July 16, 1938, and on August 24, 1938, the board filed its decision including its findings of fact and conclusions of law, and entered its order based upon said findings and conclusions.
On October 31, 1938, the board on its own motion vacated and set aside its findings, conclusions of law, and order of August 24, 1938, for the purpose of further proceedings. In the meantime, on September 7, 1938, the company commenced its action in Case No. 56 against the board in the circuit court for Dane county, in which it prayed, (a) for a temporary restraining order pending final judgment, restraining the board, its attorneys, agents, etc., from proceeding against or in any manner interfering with the plaintiff company in the conduct of its business, and from in any way attempting to enforce or carry out its order; (b) that the order of August 24th be vacated and set aside upon the ground that the Wisconsin Labor Relations Act, as applied to plaintiff company, violates the company's constitutional rights under both the federal and state constitutions; (c) that the board be directed to enter an order dismissing the entire proceedings pending before it against the plaintiff, and that the board and all persons acting under them, be permanently enjoined and restrained from proceeding against or in any manner interfering with the plaintiff in the conduct of its business; and (d) that in the event that the relief prayed for in (b) and (c) be denied, that the order of August 24, 1938, be reversed and vacated as erroneous.
On November 15th and 25th further proceedings were had before the board's examiner. The nature of the testimony at these hearings will be referred to in the opinion. On December 12, 1938, the board made its findings of fact, conclusions of law, and entered the order, which are here under review.
On December 19, 1938, the board filed a petition in the circuit court for Dane county for the enforcement of its order of December 12, 1938; and on the same date, filed in said court, the record of the proceedings had before it. The company made answer to the board's petition, and also filed an amended complaint in its action against the board, praying in substance for the same relief as in its original complaint.
In the circuit court action, the independent union and the Amalgamated Meatcutters Butcher Workmen of North America, Local Union No. 73, were permitted to intervene. By stipulation of the parties, the equity suit brought by the company against the board and the board's petition for the enforcement of its order were tried together. In the equity suit, the court below held that the provisions of ch. 111, Stats. 1937, for a review of the findings and order of the board furnishes an exclusive remedy, and dismissed the company's complaint in that action. However, the court held, in its decision of April 19, 1939, that the company's complaint in the equity suit be treated as an application under the statute to set aside the order of the board, thus making the issue upon the board's petition for the enforcement of its order, and the complaint of the company as a petition to set aside the order.
The trial court held that the board's findings are supported by the record, and therefore deemed to be conclusive, and that the board's order is supported by its findings, and must therefore be enforced under sec. 111.10(5), Stats. 1937. A single judgment was entered on May 1, 1939, affirming and enforcing the board's order of December 12, 1938, and dismissing the action of the company against the board, from which judgment the company and the intervenors, independent union, appeal. Further material facts will be stated in the opinion.
The complaint of the board in substance alleges: (1) That the company had initiated, created, dominated, and interfered with the formation and administration of an organization of its employees known as the Independent Union of Shinner's Wisconsin Employees Association, also known as Shinner's Wisconsin Employees Association, in violation of sec. 111.08(2), Stats. 1937, and (2) that the company had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in sec. 111.07 in violation of sec. 111.08(1). Sec. 111.08(2), provides that it shall be an unfair labor practice for an employer:
"(2) To initiate, create, dominate or interfere with the formation or administration of any organization of employees or contribute financial or other support to it, provided that an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay, and provided that nothing in this chapter, or any other chapter, or in any code or agreement approved or prescribed by law, shall prevent an employer from entering into an `all-union agreement.' as hereinbefore defined, with a labor organization or labor organizations."
Sec. 111.07, Stats. 1937, provides:
"Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining" or other mutual aid or protection. Nothing contained herein shall be deemed to prevent an employer from entering into an `all-union agreement,' as hereinbefore defined, with a labor organization or labor organizations."
Sec. 111.08 (1), Stats. 1937, provides that it shall be an unfair labor practice for an employer:
"(1) To interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 111.07."
The specific findings made by the board as to the company's alleged violations of the foregoing statutes are as follows:
"(4) That the respondent [company], through its officers and executive agents, by advice, attendance at organizational meetings and otherwise participated in the creation of the Association [independent union] in 1934.
"(5) That from the time the Association was created in 1934, to April 15, 1937, the effective date of the Wisconsin Labor Relations Act, the respondent, through its officers and executive agents, participated in the management and operations of the Association, by membership in and attendance at meetings of said Association and otherwise, and assisted in maintaining and financing the Association, by donating office and meeting space and otherwise.
"(6) That neither on April 15, 1937, nor for some time thereafter, did respondent take any overt action, by public announcement, meeting with the Association or its officers, or otherwise, to cease participating in the management and operations of the Association, or to cease its assistance in maintaining and financing the Association.
"(7) That despite the elimination of certain improper aspects, the relations between the respondent and the Association have remained substantially unchanged since their inception, and the respondent has continued to and does now dominate, influence and control the Association.
"(8) That a `bargaining agreement' dated May 4, 1937, signed by the respondent and the Association provides that the respondent recognizes the Association `as the sole bargaining agents on hours, wages, and working conditions for all its journeymen meatcutter members in the employ of the corporation [company] in the state of Wisconsin,' said agreement to be automatically renewed for one year in the absence of thirty days' notice to the contrary.
"(9) That the Association, by virtue of the circumstances of its creation and the continued domination, influence and control of the respondent, is not capable of acting as an effective representative of respondent's employees for the purposes of collective bargaining.
"(10) That the continued recognition of the Association as the collective-bargaining representative of respondent's employees has interfered with and continues to interfere with the right of such employees to self-organization and collective bargaining through representatives of their own choosing."
The conclusions of law and the order of the board are in conformity with the foregoing findings, and we do not deem it necessary to make same a part of this opinion.
Appellants contend that there is no evidence to sustain the board's findings. Sec. 111.10 (5), Stats. 1937, so far as here material, provides: "The findings of the board as to the facts, if supported by evidence in the record, shall be conclusive." Before referring to the evidence, we deem it advisable to state the rule which should be applied in testing the sufficiency of the evidence to sustain the findings.
In Wisconsin Labor R. Board v. Fred Rueping L. Co. (1938) 228 Wis. 473, 279 N.W. 673, the court held that the extent of the review under the Wisconsin Labor Relations Act is the same as that under the Workmen's Compensation Act, and that if supported by the evidence in the record, the findings shall be conclusive.
The National Labor Relations Act and the Wisconsin Labor Relations Act of 1937 have the same provision, namely, "The findings of the board as to the facts, if supported by evidence . . . shall be conclusive." In Consolidated Edison Co. v. National Labor Relations Board (1938), 305 U.S. 197, 229, 59 Sup. Ct. 206, 83 L.Ed. 126, the court said:
"We agree that the statute, in providing that `the findings of the board as to the facts, if supported by evidence, shall be conclusive,' means supported by substantial evidence. [Citing cases.] Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
In National Labor Relations Board v. Columbian Enameling Stamping Co. (1939) 306 U.S. 292, 299, 59 Sup. Ct. 501, 83 L.Ed. 660, the court said:
"`The findings of the board as to the facts, if supported by evidence, shall be conclusive.' But as has often been pointed out, this, as in the case of other findings by administrative bodies, means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred. [Citing cases.]"
To the same effect, see National Labor Relations Board v. Newport News Shipbuilding Dry Dock Co. (1939) 308 U.S. 241, 60 Sup. Ct. 203, 84 L.Ed. 219. The foregoing rule is also approved by this court in Folding Furniture Works v. Wisconsin L. R. Board (1939), 232 Wis. 170, 285 N.W. 851, 286 N.W. 875; Jasperson v. Industrial Comm. (1939) 231 Wis. 142; 146, 285 N.W. 391; State Young Men's C. Asso. v. Industrial Comm., ante, p. 161, 292 N.W. 324.
It appears that the company owns and operates five meat markets in the city of Milwaukee and employs between thirty-five and forty people. The Independent Union of Shinner's Wisconsin Employees was organized in August, 1934, more than two years before the effective date of the Wisconsin Labor Relations Act. For sometime preceding its formation, the company employees had a social club and held monthly meetings. The local managers of the company stores were invited to attend these meetings. All the testimony is to the effect that it was through the social meetings of the employees that the independent union came into existence. The store managers are not members of the independent union and do not attend the union meetings which are held once a month.
Mr. E.G. Shinner is the president of the company, Mr. Anderson is vice-president, and A.H. Russell is the secretary-treasurer. It appears that when the company employees were about to form a union, some of the employees asked for a copy of a constitution and by-laws. This was furnished by Mr. Anderson. The employees also obtained several copies of the constitutions and by-laws of different labor organizations, from which they formulated their constitution and by-laws.
Bert Wolf, president of the independent union, testified in substance as follows: That he had been employed by the company since 1923; that he helped found the union and draft its constitution and by-laws; that the union was the outgrowth of the employees' social organization; that the union has a council consisting of one employee from each of the company's stores; that all the regular employees belong to the independent union but that they are not required to become members; that the union meets once a month; that the store managers do not participate in and never attend a union meeting; that none of the officers of the company told the employees to form a union or told them the kind of a constitution or by-laws they should have; that the employees were never coerced or influenced by any of the officers or representatives of the company as to forming or not forming a union. He further testified that he had been a member of a butchers' union before he joined the independent union; that there were three or four butchers' unions in the city that went broke; that those butchers' unions were all broke and they had to start all over again; that they (the company employees) figured that they should have a union of their own that would stand up and that is why they formed the independent union.
Mr. A.J. Sokoloski, business agent for the independent union, testified in substance that he had been president of the union for three years and was active in its formation; that the union copied its constitution and by-laws from the constitution and by-laws of the American Federation of Labor and several other labor organizations; that the company in 1934, in celebration of its twentieth anniversary, gave the employees a dinner; that this led to a good-fellowship club which later developed into the formation of the employees' independent union; that they got their ideas about collective bargaining from the by-laws of labor organizations and from the propaganda about unionism; that he drafted the employment contract between the company and the union with the help of similar contracts from several other unions; that from the time the union was organized in 1934, they had an oral understanding with the company as to wages, apprentices, and hours; that their hours were always shorter than those of other employees in like employment in the city of Milwaukee; that the company never violated its agreement with the union.
It appears that on May 4, 1937, a written agreement was entered into between the company and the independent union. In explanation of why the written agreement was made at that time, Mr. Sokoloski testified that the American Federation of Labor union was creating disturbances and trying to force the company employees to join their organization; that because of this agitation and disturbance, they decided that they wanted something a little more binding; that they wanted a guarantee as to employment and wages for a definite period.
Mike Dropp, who has been manager of the company stores in Milwaukee for over twenty years, testified that he had nothing to do with the forming of the independent union, that the employees had never talked to him about it, and that he never attended any union meetings. He further testified that the union rented the basement of the Mitchell street store for their meeting place, for which the company charged the union $5 a month rental.
It appears that in April, 1935, the American Federation of Labor commenced picketing the company's Milwaukee stores. This caused considerable disturbance, resulting in litigation in the federal courts which finally reached the United States supreme court (see Lauf v. E.G. Shinner Co. (1938) 303 U.S. 323, 58 Sup. Ct. 578, 82 L.Ed. 872). During the period of picketing disturbances, the independent union caused certain advertisements to be inserted in some of the Milwaukee newspapers at a cost of $277.12. There is a suggestion in the board's brief that possibly the company paid for these ads. However, there is positive uncontradicted testimony that the independent union borrowed $250 of this amount and gave a note therefor, payable in eighteen months. The party who borrowed the money and the party who made the loan so testified.
A further circumstance which the board relies upon to establish company control and domination of the independent union is the fact that the union took steps to intervene in the federal court action. And, in this connection, the members of the union, all being employees of the company, held a special meeting at the company's Third street store — which was not the union's regular meeting place, without payment of rent. Another circumstance which the board contends shows company control and domination of the independent union is the fact that in one instance, an employee of the company was solicited for membership by the union on the premises of the company. Another is the fact that trips were made by Sokoloski to organize the employees of the company store in Beloit' and in certain cities in Michigan, which trips were made by Sokoloski in July of 1937 during his vacation period and in September during the time he had a leave of absence. The Beloit employees joined the Independent Union of Shinner's Wisconsin Employees. These trips were made without expense to the company, and according to the uncontradicted evidence, were paid by the union.
Another circumstance is the fact that for a time the cashiers of the company stores at Milwaukee deducted the union dues from the wages of the employee members of the union. This arrangement, while it lasted, existed without the knowledge or consent of the store managers or of any of the company officers. As heretofore stated, the union had a council representative in each of the company stores. The testimony is to the effect that each councilman arranged with the person acting as cashier in each of the stores, with the consent of the employee members of the union, to deduct fifty cents per month from each employee's wages and turn same over to the councilman.
The record discloses that twenty-eight of the company employee members of the union, in oral testimony given at the different hearings before the board's examiner or in affidavit form, submitted and received in evidence, denied that the company or anyone in its behalf attempted to dominate, influence, or interfere in the administration of the affairs of the independent union; that the company never participated in or supervised the conduct of the union's management, its operations, or elections. They further testified that the relationship between the employee members of the independent union and the company had always been mutually satisfactory and peaceful; that any differences that arose between the employees and the company were satisfactorily adjusted by the union representing such employee or employees. They all testified that they had free choice in the matter of labor organization and were informed by company officials back in 1934 when they were considering forming a union, that they could join any labor union they desired.
We have possibly prolonged this opinion beyond the limits of useful purpose in setting out the evidence. We have carefully examined all the evidence and considered every circumstance upon which the board relies for support of its findings and order, and we are of the opinion that there is no evidence in the record to sustain the findings.
Appellants vigorously contend that the Wisconsin Labor Relations Act is unconstitutional for the reason that under the act the board is made investigator, complainant, prosecutor, and judge. Obviously evils are inherent where the one body is given such powers. However, in view of the conclusion indicated above, and the further fact that the Labor Relations Act of 1937 has been repealed and succeeded by the new Labor Relations Act of 1939, we do not deem it necessary to decide this question.
There are some additional questions discussed in the briefs of counsel, but since the final result must depend on whether the evidence is sufficient under the authorities above quoted to sustain the findings, we see no occasion to consider further questions. The case of the board for the enforcement of its order fails.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment vacating and setting aside the findings of fact, conclusions of law, and the order entered by the Wisconsin Labor Relations Board on December 12, 1938.
After careful consideration of the entire record in this case, I am of the view that the chain of circumstances recited in the opinion of the court constitutes evidence having a reasonable tendency to prove the facts as found by the labor board. It may well be that the findings are not supported by any preponderance of the evidence, but under familiar and well-established rules this is of no materiality. As to issues raised in the case and not treated in the opinion I express no opinion.
I am authorized to state that Mr. Chief Justice ROSENBERRY and Mr. Justice FRITZ concur in this opinion.