St. John v. Wisconsin Employment Relations Board

90 F. Supp. 347, 26 L.R.R.M. (BNA) 2171, 1950 U.S. Dist. LEXIS 3787

• Court: District Court, E.D. Wisconsin
• Decided: April 28, 1950
• Docket: Civ. No. 4844
• Status: Published

Opinions

DUFFY, Circuit Judge.

Plaintiffs bring this action individually and as officers of Local 18, United Gas, Coke and Chemical Workers (CIO) (hereinafter called the “union”), upon behalf of all the union members'who are employees of the corporate defendent. Plaintiffs seek a permanent injunction enjoining and restraining the enforcement of. subchapter 3 of Chap. Ill,-Wis.Stats. of 1947,¹ sometimes referred to as the Public Utility Anti-Strike Law.² They also seek a declaratory judgment that, said subchapter of the statutes is invalid. Defendants Gooding, Fitzgibbons and Rule are the individual commissioners comprising the Wisconsin Employment Relations Board. Defendant Fairchild is the Attorney General for the State of Wisconsin. The corporate defendant (hereinafter called the “company”) is a public utility under Wisconsin law, and is the employer of approximately 770 men who are members of the union. The company’s utility service is rendered in an area entirely within the State of Wisconsin; however it purchases a substantial portion of its supplies and materials outside the State, and it furnishes gas to manufacturing concerns that produce goods for interstate commerce.

Commencing in June, 1937, and annually thereafter including June, 1948, the union and the company entered into collective bargaining agreements. On August 1, 1943, the union was certified by the National Labor Relations Board as the exclusive bargaining representative for the employees of the company. The most recent contract expired on June 1, 1949.

In September, 1949, the union filed a petition with the National Labor Relations Board, charging that the company was guilty of an unfair labor practice by refusing to bargain with the union. The National Labor Relations Board did not take any action on this complaint. Thereafter the union and the company did engage in collective bargaining covering wages, pensions and other conditions of employment, but no agreement was reached. The Wisconsin Employment Relations Board then appointed a conciliator whose efforts to bring the union and the company into agreement were unsuccessful. On October 3, 1949, the Wisconsin Employment Relations Board issued an order listing five names as a panel of arbitrators, and ordering the union and the company each to strike one name therefrom, pursuant to provisions of Sec. 111.55, Wis. Stats. The remaining three were to act as arbitrators. On October 4, 1949, the plaintiffs and other employees, acting in concert and in agreement, left their employment and started picketing the premises of the company.

On October 6, 1949, the union and the company agreed upon wages, hours, and other conditions of employment but did not agree upon the terms and conditions of the pension plan. The Wisconsin Employment Relations Board and the Attorney General, so the complaint herein alleges, threatened-to compel the plaintiffs to submit the unresolved issues of pensions to arbitrators.

On October 13, 1949, in an action commenced in the Circuit Court of Milwaukee County, wherein the Wisconsin Employment Relations Board was plaintiff, the plaintiffs herein were enjoined from calling a strike, or going out on strike, or causing an interruption in the service of the company. It was further ordered that certain of the officers of the union notify all employees who had been called out on strike to resume their employment. This order was issued pursuant to subchapter 3 of Chap. 111. The Attorney General and the Wisconsin Employment Relations Board thereafter caused process to issue looking to the punishment of the plaintiffs and other employees for violating said injunction. The Attorney General likewise threatened to invoke criminal penalties.

In the case at bar, after putting in issue various allegations of the complaint, the defendants pleaded that prior to the commencement of the case at bar plaintiffs chose as their forum for the litigation of the same issues the Circuit Court of Milwaukee County, in which action, on demurrer, the court entered judgment that sub-chapter 3 of Chap. Ill, Wis.Stats, of 1947, was constitutional and valid. Defendants plead such State court action as res judicata.

We proceed to a consideration of the defense of res judicata. The judgment of the Circuit Court of Milwaukee County, which is pleaded as a bar, provided in part, as follows: “It Is Hereby Adjudged and Determined that Chapter 414, Laws of 1947, being Subchapter III of Chapter 111 of the Wisconsin Statutes, 1947, is a valid and constitutional act, and does not violate nor conflict with any of the provisions of the Constitution of the State of Wisconsin, nor with any of the provisions of the Constitution of the United States, nor with any amendment thereto, and does not conflict with the United States Labor-Management Relations Act of 1947 [29 U.S.C.A. § 141 et seq.], and does not deny to the plaintiffs nor to any of the employees of the defendant Milwaukee Gas Light Company represented by them, * * * any rights, privileges or protection secured to them under either of said Constitutions or said act of Congress; and that the plaintiffs, the defendant Milwaukee Gas Light Company, and its employees represented by the plaintiffs herein, are subject to and controlled by said Subchapter III of Chapter 111 of the Wisconsin Statutes, 1947.”

An appeal from this judgment was taken by the plaintiffs in that case to the Supreme Court of Wisconsin, which court affirmed the Circuit Court judgment. United Gas, Coke & Chemical Workers v. Wisconsin Emp. Relations Board, 255 Wis. 154, 38 N.W.2d 692. Plaintiffs did not appeal to the United States Supreme Court or seek other relief from the action of the Wisconsin Supreme Court. Since the time for appeal to the United States Supreme Court has long since elapsed, the judgment of the Circuit Court, affirmed by the Wisconsin Supreme Court, is conclusive. Angel v. Bullington, 330 U.S. 183, 189, 67 S.Ct. 657 91 L.Ed. 832. See also: Grubb v. Public Utilities Commission of Ohio, 281 U.S. 470, 475, 50 S.Ct. 374, 74 L.Ed. 972; Mitchell v. First National Bank of Chicago, 180 U.S. 471, 480, 21 S.Ct. 418, 45 L.Ed. 627.

The judgment of the Circuit Court of Milwaukee County, affirmed by the Wisconsin Supreme Court, is res judicata, and bars a subsequent action in this court, if it falls within the rule that a judgment of a State court of competent jurisdiction is binding and conclusive as to all matters put in issue and decided in the State court, and bars a subsequent action in a federal court if the causes of action, subject matter and parties are the same. Angel v. Bullington, supra, 330 U.S. at pages 192-193, 67 S.Ct. at page 662, 91 L.Ed. 832; Treinies v. Sunshine Mining Co., et al., 308 U.S. 66, 75-78, 60 S.Ct. 44, 84 L.Ed. 85. Indeed such a judgment is binding as to all relevant issues which could have been raised and litigated therein. Heiser v. Woodruff et al., 327 U.S. 726, 735, 66 S.Ct. 853, 90 L.Ed. 970; Troxell, Administratrix v. Delaware, Lackawanna & Western Railroad Co., 227 U.S. 434, 440, 33 S.Ct. 274, 57 L.Ed. 586; Reinkey v. Wilkins, 172 Wis. 515, 520, 179 N.W. 751.

We think it clear that the causes of action and the subject matter aré the same in the two suite. The cause of action in the case at bar is based upon the same facts as in the State court action. This is so even though some of the actions wnich could only be considered in a prospective way by the State court have since come to pass. The fact that a strike was actually called since the State court judgment was rendered does not create a different situation. The allegations in the pleadings in the two cases áre substantially the same. The facts necessary to .sustain the two actions are the same. As for the subject matter, the issues in the case at bar and in the State court action arose from the claimed repugnancy of subchapter 3 of Chap. Ill, Wis. Stats., to the federal' Constitution and to the Labor-Management Relations Act of 1947, and those issues were decided against the union in the State court action. The questions essential to a determination herein are the same as those of the State court case.

It is true that the opinion of the Wisconsin Supreme Court contains some equivocal language which furnishes some foundation for the contention of plaintiffs herein that all of the issues were not squarely met. Nevertheless it is the action which the Supreme Court took which is important rather than any reasons which it might give for such action. The appeal was from the judgment of the Circuit Court. Included in the issues squarely raised were the claimed repugnancy of subchapter 3 of Chap. Ill to the federal Constitution and to the Labor-Management Relations Act of 1947. .The Wisconsin Supreme Court was empowered to reverse, affirm or modify the Circuit Court judgment; it did not reverse or modify, but affirmed the judgment without any condition or qualification. The mandate of the Wisconsin Supreme Court did not affirm an order sustaining a demurrer, but rather it affirmed the judgment of the Circuit Court of Milwaukee County in that case. Moreover, it is not important whether we refer to the judgment which was affirmed as a judgment of the Circuit Court or of the Supreme Court.

Plaintiffs’ argument that all of the merits of the controversy were not passed upon is conclusively answered in Angel v. Bullington, supra, 330 U.S. at page 190, 67 S. Ct. at page 661, 91 L.Ed. 832, where the controlling opinion holds:

“It is suggested that the North Carolina Supreme Court did not adjudicate the ‘merits’ of the controversy. It is a misconception of res judicata to assume that the doctrine does not come into operation if a court has not passed on the ‘merits’ in the sense of the ultimate substantive issues of a litigation. ' An adjudication declining to reach such ultimate substantive issues may bar a second attempt to reach them in another court of the State. * * *

“The ‘merits’ of a claim are disposed of when it is refused enforcement. If an asserted federal claim is denied enforcement on a professed local ground, but a so-called local ground which is subject to review here because it is in fact the adjudication of a federal question, then the ‘merits’ of that claim were adjudicated in 'the only sense that adjudication of the ‘merits’ is relevant' to the principles of res judicata. * H= *»

As the State court litigation, in both the Circuit Court and Supreme Court, involved questions and issues identical to those present and raised in the instant action, and the plaintiffs not having appealed to the United States Supreme Court, it follows that, if the parties to each of the actions are the same, plaintiffs herein are precluded from further litigating the questions and issues in this action under the doctrine of res judicata.

We now focus our attention on the question whether the parties to the State court action were the same as the parties in the case at bar. Manifestly they are not identical. Certain individuals are named in the pleadings in the case at bar, both as plaintiffs and defendants, who were not thus named in the State court action. The union and Thomas Lansing, its then president, were plaintiffs in the State court action and they are also plaintiffs in the case at bar. The parties plaintiff are not changed because the amended complaint herein now names Arthur St. John, the current president of the union, and lists other officers of the union and members of its bargaining committee. Plaintiffs in both cases are the union and the officers thereof who represent the membership. We hold that the parties plaintiff are the same in both actions.

The Wisconsin Employment Relations Board and the Milwaukee Gas Light Company were named defendants in both actions. In addition, the three individuals who are the Wisconsin Employment Relations Board are named individually in the case at bar, as well as Thomas E. Fairchild, the Attorney General of the State of Wisconsin. However, the three members of the board are sued in the present action only as members of the board, and not in their capacity as private citizens. The Attorney General is sued only in his official capacity, that of attorney representing the Wisconsin Employment Relations Board. We hold that the parties defendant are the same in both actions.

The fact that the union seeks an injunction in the case at bar in addition to the declaratory judgment sought in both cases does not prevent the judgment in the State court action from operating as an estoppel in this court. 50 C.J.S., Judgments, § 900 (a). A change in the form or measure of the relief asked in the complaint in a second cause of action does not preclude the application of the doctrine of res judicata. 30 Am.Juris., Judgments, Sec. 176.

A valid distinction cannot be drawn between a judgment entered in a State court action sustaining a demurrer to a complaint and a judgment rendered after a trial upon the merits. In Northern Pacific Railway Co. v. Slaght, 205 U.S. 122, 130, 27 S.Ct. 442, 445, 51 L.Ed. 738, the court stated: a * * * It is well established that a judgment on demurrer is as conclusive as one rendered upon proof.”

In Ellis v. Northern Pacific Railroad Co., 80 Wis. 459, 465, 50 N.W. 397, 398, 27 Am. St.Rep. 44, the court said: “ * * * It is sufficient to say that by repeated decisions it has become the settled law in this state that the decision of this court upon a demurrer is conclusive upon the questions legitimately involved, and is res ad judicata in that case. * * * ”

In Lewko v. Chas. A. Krause Milling Co., 219 Wis. 6, 8, 261 N.W. 672, 673, the court said: “The plaintiff first argues that a decision sustaining a demurrer is not res judicata because there has been no trial upon the merits. In this contention it is considered that the plaintiff is in error. * * ”

It follows that each member of the union upon whose behalf the State court action was brought is bound by the judgment that was entered in that action. This court has no discretion to pass upon the merits of the important questions raised in the case at bar, and ignore the defense of res judicata. In 30 Am.Juris., Judgments, Sec. 254, it is said, at p. 983: “ * * * Where the prior judgment is properly brought to the attention of the court, the question whether the doctrine of res judicata should be applied is one of law, and not for the discretion of the court.”

The full faith and credit clause of the United States Constitution, Art. IV, Sec. 1, applies to federal courts. 28 U.S. C.A. § 1738. Federal courts are required to give full faith and credit to the judgments of State courts. Davis v. Davis, 305 U.S. 32, 39-40, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518.

The defendants’ defense of res judicata must be sustained. Formal findings of fact and conclusions of law, together with formal judgment, will be prepared by counsel for defendants and submitted to counsel for plaintiffs for approval as to form, and if so approved then to the court for signatures and entry; but if not approved, then, upon notice, to the court for settlement, signatures and entry.

STONE, District Judge, concurs.

1 . The Wis.Stats. designate this section as subchapter III of Chap. 111. To avoid confusion we shall refer to this section as subchapter 3 of Chap. 111.

2 . Subchapter 3 of Chap. Ill contains a legislative declaration of policy that “the interruption of public utility service results in damage and injury to the public wholly apart from the effect upon the parties immediately concerned and creates an emergency justifying action • which adequately protects the general welfare.” It also imposes upon employers and employees the duty of reaching agreements on wages and working conditions through collective bargaining. It authorizes the Wisconsin Employment Relations Board to appoint a conciliator when tbe bargaining process reaches a stalemate. Sec. 111.54, and, where interruption of essential service is likely, authorizes the Wisconsin Employment Relations Board to appoint arbitrators, Sec. 111.55. The award of the arbitrators, subject to judicial review is final and endures for one year, Secs. 111.59 and 111.60. Strikes are forbidden and are made a misdemean- or, Sec. 111.62. The Wisconsin Employment Relations Board is made responsibile for the enforcement of the sub-chapter and is authorized to compel compliance by commencing an aetion in a circuit court.