Wisconsin Employment Relations Board v. Mews

138 N.W.2d 147, 29 Wis. 2d 44, 1965 Wisc. LEXIS 779
CourtWisconsin Supreme Court
DecidedNovember 30, 1965
StatusPublished
Cited by8 cases

This text of 138 N.W.2d 147 (Wisconsin Employment Relations Board v. Mews) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wisconsin Employment Relations Board v. Mews, 138 N.W.2d 147, 29 Wis. 2d 44, 1965 Wisc. LEXIS 779 (Wis. 1965).

Opinion

Wilkie, J.

There are four issues presented on this appeal:

First, can appellant raise alleged procedural defects in connection with the underlying order and enforcement judgment as a defense against the contempt judgment?

Second, can civil contempt proceedings be employed to enforce a judgment based on a collective-bargaining agreement?

Third, do the provisions of ch. 103, Stats., apply to a contempt proceeding for violation of a judgment entered under sec. 111.07 (7) ?

Fourth, did the trial court err in allowing evidence to be presented in the contempt proceedings ?

Defense to Contempt Judgment.

Pointing out that he was not present at the December 10, 1963, hearing when the complaint was amended so as to make him a party, appellant argues that the original order (March 25, 1964) was invalid as to him and that he cannot be found in contempt for failing to obey a judgment (May 20,1964) based on it. We do not consider the merits of this technical assault on the original order and enforcement judgment for the reason that Mews did not appeal from the judgment within the thirty days allowed by statute.1 Having failed to directly challenge the judgment which expressly named him as a party, appellant is now precluded from collaterally asserting its invalidity.

[49]*49Because the appellant is foreclosed from challenging the enforcement judgment in the contempt proceedings it is unnecessary to consider whether or not he is barred from attacking the validity of the underlying order by his failure to seek review of that order within the thirty days allowed by statute.2

Appellant was bound to obey the order and the judgment until they were reversed or modified by this court.3 Since no timely attempt was made to review either the order or the judgment their validity is assumed and the question of contempt turns on whether directions of the enforcement judgment were disregarded.

Availability of Contempt to Implement Enforcement Judgment.

Appellant argues that contempt proceedings will not even lie in this instance for several reasons:

First, that since the contempt judgment is based on a failure to make payments to the pension and welfare funds as required by the collective-bargaining agreement, appellant is being imprisoned for a debt arising out of a contract in violation of sec. 16, art. I of the Wisconsin constitution.4 This analysis ignores the fact that thirty days of the imprisonment were for the failure to discharge Schlei, which does not involve any payment of money, and that the second thirty-day sentence was for not making payments and for failing to submit certain records. Even if appellant could not be imprisoned for refusing to contribute to the two funds, he could be for not turning over the records.

[50]*50In any event, this court has expressly held in In re Milburn5 that a statute permitting imprisonment for failing to comply with the mandate of a judgment was not repugnant to sec. 16, art. I of the constitution even though the judgment was for a debt arising out of a contract. There the court said:

“ Tt is true that the order relates to the debt evidenced by the judgment against the relator, but this in no way alters the fact that the imprisonment is for contempt, not for the debt. And the contempt does not consist in the relator’s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver. The fact that the property in question is to be handed over for the purpose of being applied to the payment of the judgment, is in no way important. The commitment is, nevertheless, in no proper sense imprisonment for debt.’ ” 6

Second, that sec. 295.01 (3), Stats.,7 permits contempt punishment only where executions will not lie to collect the sums owed. However, as previously discussed, even if it were error to cite Mews for contempt for not making the required payments to the fund, the contempt judgment could validly be based on appellant’s refusal to discharge Schlei and submit his books for examination.

Third, that the contempt action could not be brought when an accounting action was available as a remedy. However, it is apparent from an examination of the cases in this area that collective-bargaining contracts can be enforced through ch. Ill, Stats., even though they would have been enforceable by other remedies in a [51]*51direct court action. For example, Tecumseh Products Co. v. Wisconsin Employment Relations Board,8 and General Drivers & Helpers Union v. Wisconsin Employment Relations Board,9 were both cases brought under ch. Ill and involved disputes turning on monetary claims. In General Drivers & Helpers Union, the court said:

“This court has passed upon cases in which the board has exercised jurisdiction to order the employer to pay money to designated employees. E. g., Wisconsin E. R. Board v. Gateway Glass Co. (1953), 265 Wis. 114, 60 N. W. (2d) 768. We recognize that in such cases the alleged unfair labor practice involved a contract which was still in force.
“This court is of the opinion that the legislature intended the W. E. R. B. to have the power to make orders for the payment of money notwithstanding the fact that the claimed unfair labor practice arose after the termination of the contract which was allegedly violated.” 10

Fourth, that since the May 20, 1964, judgment improperly extends the mandate that he submit his payroll for audit beyond March 25, 1964, when the order was entered, he cannot be held in contempt for disobeying it. While this contention is directed to the issue of the availability of contempt proceedings, it actually amounts to an attack on the validity of the enforcement judgment itself. The time for appealing that judgment has long since lapsed and appellant cannot now challenge indirectly what he did not attack directly.

Fifth, that the punishment is too drastic. The general rule is that since their primary function is to enforce a judgment, civil contempt proceedings are primarily remedial. 11 However, there may be imprisonment in which case the “dominant character of the imprisonment is remedial and coercive, although a punitive effect may [52]*52also result.” 12 Appellant has not cooperated with either the board or the court in complying with the enforcement judgment of May 20, 1964. He failed to attend court hearings, was previously (July 3, 1964) found to be in contempt for refusing to obey the judgment, was found by the court to have kept Schlei in his employ after notifying the court that he had been discharged, and refused to comply with the other provisions of the order. The trial court, which had the benefit of first-hand observations, summed up appellant’s conduct in these words:

“Mr. Mews in his attitude with relation to the union and the pension fund and the welfare fund has been one in which he has had a chip on his shoulder.

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Bluebook (online)
138 N.W.2d 147, 29 Wis. 2d 44, 1965 Wisc. LEXIS 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisconsin-employment-relations-board-v-mews-wis-1965.