Opinion
October 11, 1949. —
November 15, 1949.
APPEAL from an order of the circuit court for Milwaukee county: CHARLES L. AARONS, Circuit Judge. Affirmed.
For the appellant there was a brief by Lines, Spooner Quarles, and oral argument by John G. Kamps, all of Milwaukee.
Daniel D. Sobel of Milwaukee, for the respondents.
The order of the circuit court appealed from by defendant company overruled a demurrer to the complaint of the plaintiffs. The complaint alleges that the plaintiff union is the bargaining agent for production and maintenance employees of the defendant company; that during the past seven years the company and the union have had bargaining agreements which require submission of all grievances to certain designated procedure and, if unsuccessful, to arbitration, the machinery for arbitration being set up in the contract; that at all times material to the complaint plaintiff Rose Giaimo was a member in good standing of the union and an employee of the company.
The complaint further alleges that the contract executed by the union and the defendant provided:
"In cases where it is necessary for employees with seniority to be absent for more than two weeks on account of sickness, they will be granted a leave of absence at their request, when substantiated by a doctor's certificate of necessity, and such leave will be extended at the end of each three-month period under the same provision. In confinement cases the leave of absence shall be limited to six (6) months after birth. Full seniority credit shall be given for sick leave.
"During the life of this agreement there shall be no strike, deliberate slowdown, or stoppage of work. Any violation of this provision shall be cause for discharge of any one (1) or more of the employees taking part in such act.
"During the life of this agreement there shall be no lockout by the company."
It is alleged that Rose Giaimo, during the existence of the contract, applied for and was granted a leave of absence on account of illness; that she applied for re-employment following such illness and that the defendant refused to grant such reemployment. It is then alleged that such refusal was treated as a grievance by the parties and processed through all the steps set up in the contract without settlement until arbitration was reached; that the defendant refused and continues to refuse to arbitrate.
The complaint alleges that plaintiffs are entitled to have the grievance arbitrated under the contract and that the company's refusal creates a situation in which the plaintiffs have no adequate remedy at law. It concludes:
"7. That the collective-bargaining agreement between the plaintiff union and the defendant employer is in full force and effect, and the plaintiff is entitled to the judgment of this court so declaring.
"8. That the said plaintiffs and each of them are entitled to have the grievance concerning Rose Giaimo arbitrated in accordance with the terms of said collective-bargaining agreement, and more particularly set forth hereinabove, and the judgment of this court so declaring.
"Wherefore, plaintiffs and each of them demand judgment against the defendant employer, —
"1. Declaring the collective-bargaining agreement dated June 22, 1948, is binding and in full force and effect;
"2. For an order of this court requiring the defendant company to arbitrate the grievance concerning the employee, Rose Giaimo, under the provisions of said collective-bargaining agreement;
"3. For an order of this court restraining and enjoining the defendant company from further violating the terms and provisions of the said agreement; and
"4. That the plaintiffs and each of them be granted such other and further relief as to the court may seem just and proper in the premises."
Appellant contends that the circuit court for Milwaukee county does not have jurisdiction of the subject matter of this action, and that the complaint does not state facts sufficient to constitute a cause of action.
It is claimed by appellant that the complaint does not allege that Rose Giaimo is covered by the contract, since it is alleged that the contract covered only production and maintenance workers of the company and that Rose Giaimo is an employee of appellant, and not that she is a production and maintenance employee.
The complaint alleges that she is a member of the union. If she were not a production or maintenance worker, it is probable that she would not belong to this union. The facts alleged permit of a reasonable inference that the ultimate fact exists. Matters which may be fairly inferred from the facts alleged may be regarded as sufficiently pleaded as against a demurrer. Bitzke v. Folger (1939), 231 Wis. 513, 518, 286 N.W. 36. In addition, the nature of her work is well known to the company, and if she were not covered by the provisions of the contract, it is probable that the company would not have treated the grievance under the contract to the extent that it did. Likewise, if she is not an employee subject to the contract, appellant can assert that as an affirmative defense to the complaint.
Appellant's second objection to the sufficiency of the complaint is that it does not allege that Rose Giaimo furnished a doctor's certificate with her application for a leave, or that extensions of the leave were granted upon showing of a doctor's certificate, or in the alternative, that the leave of absence was for less than six months.
The complaint alleges the application for re-employment and that the appellant "failed and refused to grant such reemployment; that a grievance under the terms of said agreement on account thereof was processed by the union and the said defendant company" up to arbitration and refusal of the company to arbitrate.
If there is a claimed violation of the respondent Rose Giaimo's rights to re-employment, then the company has the duty to arbitrate. Under the terms of the contract the arbitrator must examine the facts and determine whether she is entitled to re-employment and, of necessity, whether she complied with conditions precedent.
The important question presented is whether the courts have jurisdiction to aid either party to a contract under the circumstances which here exist.
Counsel for appellant cite the rule that a court of equity will not invoke its jurisdiction where the plaintiff has an adequate legal remedy.
What is the legal remedy of the respondent Giaimo? The appellant contends that it is an action at law for damages. On the other hand, the union contends that because of the contract her remedy is limited to arbitration.
This presents the gist of the question upon this appeal. While the respondents allege that they have no adequate remedy at law, they do ask the court for a declaratory judgment, which is a form of legal action.
Where it appears that any cause of action is stated by the complaint, a demurrer thereto should be overruled.
". . . this court has uniformly held that it is no longer necessary in pleading a cause of action for equitable relief to show that adequate legal remedies do not exist. If a cause of action for legal relief is stated, a general demurrer must be overruled even though no cause of action for equitable relief is stated." State ex rel. Dame v. LeFevre (1947), 251 Wis. 146, 148, 28 N.W.2d 349.
The complaint certainly states a cause of action for declaratory relief. If upon the trial the respondents establish a right to judgment declaring the contract in force and requiring the appellant to submit to arbitration, it is to be presumed that the appellant will comply with the judgment. If, after the judgment, it violates the contract by refusing to arbitrate, the union will have the right to treat the contract as breached and to consider itself relieved from the obligation to refrain from striking.
Whether the respondents would be entitled to a further remedy in a court of equity need not now be considered.
By the Court. — Order affirmed.