On January 22, 1947, the Wisconsin Employment Relations Board entered a petition for enforcement of its order of December 26, 1946, against Allis-Chalmers Workers' Union, Local 248 of the United Automobile, Aircraft Agricultural Implement Workers of America, affiliated with the C.I.O. Judgment entered August 4, 1947, dismissing the petition on the ground that the issues it raised were moot. The Wisconsin Employment Relations Board appeals.

On May 31, 1946, the Wisconsin Employment Relations Board, referred to hereinafter as the "board" entered an order finding the defendant, Local 248, to have committed unfair practices under sec. 111.06(2)(f), Stats. 1945, by interfering with the conduct of lawful work and with ingress and egress to a factory, by means of mass picketing, coercion, intimidation, violence, and the like. The board directed Local 248 to cease and desist from such interference and to take certain affirmative action.

Mass. picketing and allied activities were discontinued after the issuance of the May, 1946, order, but Local 248 did not comply with the affirmative-action requirements of the board's order. A petition of the board for enforcement of its order was granted by judgment of the circuit court of Milwaukee county on September 9, 1946.

October 28 to 31, 1946, Local 248 resumed mass picketing and the sort of forbidden activities which had resulted in the board's order of May 31st. Contempt proceedings were begun October 31, 1946. (See Wisconsin E. R. Board v. Allis-Chalmers W. Union (1946), 249 Wis. 590, 25 N.W.2d 425; Wisconsin E. R. Board v. Allis-Chalmers W. Union (1947), ante, p. 43, 30 N.W.2d 183.)

During the pendency of contempt proceedings Local 248 again conducted mass activities of a flagrant nature on November 25, December 4, and December 9, 1946. In these latter activities Local 248 procured the assistance of members from affiliated unions. The plant's entrances were blocked by pickets numbering into hundreds and sometimes thousands, so that public roads and crosswalks were blocked. Considerable damage was done to vehicles attempting to enter the plant. Workers who attempted to enter or leave on foot were jostled, shoved, kicked, tripped, and otherwise mistreated. Extra police officers were called in an attempt to cope with the situation, but defiance of the officers was advocated by union representatives. They made use of sound trucks and the distribution of publications in the vicinity.

A complaint respecting these activities was filed with the board on December 6, 1946, and after hearing evidence of the circumstances, the board on December 26, 1946, entered the order complained of here. The order was similar to the order of May, 1946, except that it limited the number of pickets. Because of the pending contempt proceedings for violation of the previous order, the hearing on the board's petition for enforcement of its December 26th order was deferred until May 26, 1947. At that time, after counsel had completed argument for the board, Local 248 moved to introduce evidence showing a strike had been terminated and picketing discontinued after the board's order of December 26th had been entered. On those grounds Local 248 moved to dismiss the board's petition for enforcement as moot. Over the board's objection, the court heard the union's evidence. Union officials testified that the strike, called in April, 1946, was terminated by the union March 23, 1947; that the picketing was discontinued March 21st; and admitted that the union had never complied with the affirmative requirements of the board's December 26th order and that the demands for which the strike was called were not settled at its termination. The board's petition for enforcement was dismissed.

FAIRCHILD, J.

The judgment appealed from dismisses the petition of the Wisconsin Employment Relations Board for the enforcement of its order entered December 26, 1946. From the record it appears that when the record made before the Wisconsin Employment Relations Board was brought on for hearing, a motion was made by the respondents to dismiss the matter on the ground that the action was moot. Thereupon the court proceeded to take testimony with respect to the motion. Upon the basis of that testimony the court entered its judgment of dismissal.

Sec. 111.07(7), Stats. 1945, provides:

". . . Upon such hearing the court may confirm, modify, or. set aside the order of the board and enter an appropriate decree. No objection that has not been urged before the board shall be considered by the court unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact made by the board, if supported by credible and competent evidence in the record, shall be conclusive. The court may, in its discretion, grant leave to adduce additional evidence where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing before the board. The board may modify its findings as to facts, or make new findings by reason of such additional evidence, and it shall file such modified or new findings with the same effect as its original findings and shall file its recommendations, if any, for the modification or setting aside of its original order. . . ."

The record discloses that the facts upon which the court held that the proceeding before it was moot arose after the board had made its order and petitioned the court for its enforcement. In proceeding to take further evidence the court acted in excess of and beyond its jurisdiction. If the court was of the view that either of the parties was entitled to present further evidence it should, in accordance with the language of the statute, have remanded the case to the board for further proceedings. The statute does not authorize the taking of additional evidence by the court. If additional evidence is to be adduced it must be adduced before the board, and the court was in error in proceeding as it did. Century Building Co. v. Wisconsin E. R. Board (1940), 235 Wis. 376, 381, 291 N.W. 305.

The court was also in error in holding that the action to enforce the order of the board was moot. A moot case has been defined as one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy. In re Matter of Creager, 323 Ill. App. 594, 56 N.E.2d 649, 652, 653; 1 C.J., Actions, p. 973, sec. 68. See State ex rel. La Follette v. Kohler (1930), 202 Wis. 352, 232 N.W. 842.

Although it is a general rule that an appeal will be dismissed if the right in controversy has expired by lapse of the time fixed for its continuance, it is otherwise if interests of a public character are asserted under conditions that may be immediately repeated, as here. 4 C.J.S., Appeal and Error, p. 1951, sec. 1354 c; 3 Am. Jur., Appeal and Error, p. 310, sec. 733.

Similar cases which have arisen in federal courts regarding the orders of federal administrative agencies provide authority for our holding that the board's petition for enforcement in this case should not have been dismissed as moot. In Southern Pac. Terminal Co. v. Interstate Commerce Comm. (1911) 219 U.S. 498, 515, 31 Sup. Ct. 279, 55 L.Ed. 310, the interstate commerce commission had ordered a carrier to desist from granting a shipper an alleged undue preference for a period of not less than two years. At the time of the appeal the order of the commission had expired. The United States supreme court denied the motion to dismiss the appeal as moot, saying,

"The questions involved in the orders of the interstate commerce commission are usually continuing . . . and their consideration ought not to be, as they might be, defeated by short term orders, capable of repetition, yet evading review, and at one time the government and at another time the carriers have their rights determined by the commission without a chance of redress."

The opinion goes on to quote an earlier case, United States v. Trans-Missouri Freight Asso. 166 U.S. 290, 309, 17 Sup. Ct. 540, 41 L.Ed. 1007, to this effect:

"Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained or while the case is on appeal, and in any such case the court, being informed of the facts, will proceed no further in the action. Here, however, there has been no extinguishment of the rights (whatever they are) of the public, the enforcement of which the government has endeavored to procure by a judgment of a court under the provisions of the act of congress above recited. The defendants cannot foreclose those rights, nor prevent the assertion thereof by the government as a substantial trustee for the public under the act of congress, by any such action as has been taken in this case."

In National Labor Relations Board v. Pennsylvania Greyhound Lines (1938), 303 U.S. 261, 271, 58 Sup. Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307, the National Labor Relations Board had ordered an employer to cease domination of an employees' organization, to withdraw recognition of such organization as the representative of the employees, and to post notices informing them of such withdrawal. It was contended the case had become moot because the board had certified another organization as representative of the employees for collective bargaining, but the court said,

"But an order of the character made by the board, lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made."

That language of the Pennsylvania Greyhound Case has been applied in National Labor Relations Board v. Westinghouse Air B. Co. (3d Cir. 1941) 120 F.2d 1004, and in National Labor Relations Board v. Bachelder (7th Cir. 1942), 125 F.2d 387. A similar holding was made in J. I. Case Co. v. National Labor Relations Board (1944), 321 U.S. 332, 64 Sup. Ct. 576, 88 L.Ed. 762.

The people through their representatives in the legislature have expressed in the Employment Peace Act, secs. 111.01 to 111.19, Stats. 1945, the policy of the state to recognize and protect the rights of the public, employees, and employers and to promote the interests of each with due regard to the situation and rights of the others. That act and the Wisconsin Employment Relations Board, for which it provides, are created "to establish standards of fair conduct in employment relations and to provide a convenient, expeditious, and impartial tribunal by which these interests may have their respective rights and obligations adjudicated." Sec. 111.01(4). When the statutes (sec. 111.07(4)) say the board may order affirmative action to be taken and reports to be made, and when the board accordingly does make such an order, its order is to be obeyed. To dismiss enforcement proceedings, provided for by sec. 111.07(7), on the grounds that the cessation of the activities which gave rise to the order make it moot would invite circumvention of the established policy of the state. Rather than comply with the entirety of an order of the board, a union or an employer would know that he could wait until enforcement proceedings were begun, then desist from the unfair labor practice in question and move to dismiss the proceedings as moot, thereby evading the authority of the board. That would not be substituting "processes of justice for the more primitive methods of trial by combat." Sec. 111.01(4).

Upon the return of the record to the trial court it will be its duty to proceed in one of two ways. First, to determine upon the record made before the board whether the order of the board of December 26, 1946, should be confirmed, modified, or set aside. Second, if proper application is made under the provisions of sec. 111.07(7), Stats., if the court, in the exercise of its discretion is of the opinion that further evidence should be taken, the matter should be referred to the board in accordance with the provisions of that subsection.

By the Court. — The judgment appealed from is reversed, and cause remanded to the trial court for further proceedings as indicated in this opinion.

The following opinion was filed April 14, 1948: