Opinion
April 3, 1963 —
April 30, 1963.
APPEAL from an order of the circuit court for Milwaukee county: LEO B. HANLEY, Circuit Judge. Affirmed.
For the appellant there were briefs by Quarles, Herriott Clemons, attorneys, and John G. Kamps and James Urdan of counsel, all of Milwaukee, and oral argument by Mr. Urdan.
For the respondent there was a brief by Robert E. Gratz, attorney, and Gratz Shneidman of counsel, all of Milwaukee, and oral argument by Robert E. Gratz.
On September 1, 1956, Lodge 78 of the International Association of Machinists, A.F.L.-C.I.O., called a strike in the toolroom of the Milwaukee plant of the Allen-Bradley Company. During the strike, 14 members of the union crossed the union's picket line and continued to work for the company. After the conclusion of the strike, the 14 members were tried by the union on charges that their conduct constituted a violation of the union's constitution and bylaws, and each was fined $100. On January 24, 1957, the union instituted 14 separate actions in the then civil court of Milwaukee county to collect such fines. This appeal relates to one of such actions.
The company served a motion to intervene on September 28, 1961. This appeal is from an order denying the company the right to intervene in the suit between the union and its members.
A substantial amount of litigation surrounds the history of this case. It took place after this action was commenced by the union on January 24, 1957, but before the motion to intervene was filed by the company on September 28, 1961.
The defendant union members appeared specially in the original action and challenged the jurisdiction of the court, claiming that the questions involved in this suit were preempted by federal law. Their special appearance was overruled. Thereafter, these union members requested the general counsel of the national labor relations board to issue a complaint charging the union with an unfair labor practice in its attempt to collect these fines. The general counsel denied the members' request and refused to issue a complaint (Opinion F-198, October 28, 1957).
An action was then started by two of the 14 employees in the United States district court for the District of Columbia to compel the general counsel to issue a complaint. The members were again unsuccessful, and the district court was affirmed on appeal by the United States court of appeals for the District of Columbia. Bandlow v. Rothman (D.C. Cir. 1960), 278 F.2d 866, certiorari denied, 364 U.S. 909, 81 Sup. Ct. 273, 5 L.Ed.2d 224.
The remaining 12 defendants filed complaints with the Wisconsin employment relations board ("W.E.R.B."), charging the union with an unfair labor practice under the Wisconsin Employment Peace Act (ch. 111, Stats.). In its answers the union alleged the W.E.R.B. had no jurisdiction. On November 21, 1958, the W.E.R.B. held that it lacked jurisdiction to pass upon the complaints filed by the employees. However, on April 27, 1959, the W.E.R.B. reversed itself and held that it did have jurisdiction.
The issue of whether the W.E.R.B. had jurisdiction of the complaints filed by the employees was reviewed by the circuit court for Milwaukee county, and its judgment was appealed to this court. In Wisconsin E. R. Board v. Lodge 78, I. A. of Machinists (1960), 11 Wis.2d 292, 105 N.W.2d 278, certiorari denied, 365 U.S. 878, 81 Sup. Ct. 1028, 6 L.Ed.2d 190, this court, reversing the circuit court, held the W.E.R.B. did not have jurisdiction to try these complaints because they presented questions of federal law pre-empted by the Labor Management Relations Act. The company then filed the motion to intervene, and this appeal is from the order denying the company the right to intervene.
Statute Involved.
"260.19 PARTIES INTERPLEADED. (1) When a complete determination of the controversy in court cannot be had without the presence of other parties, or when persons not parties have such interests in the subject matter of the controversy as require them to be parties for their protection, the court shall order them brought in; and when in an action for the recovery of property a person not a party has an interest therein and makes application to the court to be made a party it may order him brought in."
While the background of this case is lengthy and involved, the issues to be resolved upon the appeal are limited ones. The principal question before this court is whether the Allen-Bradley Company is entitled as a matter of right to intervene in the union's civil action against one of its members to collect a fine for a violation of the union's constitution and bylaws. A second issue is whether the trial court abused its discretion in denying the application for intervention.
Intervention as a Matter of Right.
Sec. 260.19(1), Stats., provides that the court shall order parties brought into an action when they "have such interests in the subject matter of the controversy as require them to be parties for their protection." If the company does have such an interest, it has an absolute right to intervene. Kennedy-Ingalls Corp. v. Meissner (1958), 5 Wis.2d 100, 109, 92 N.W.2d 247.
Intervention under Wisconsin law is a statutory device; it was not recognized at common law. White House Milk Co. v. Thomson (1957), 275 Wis. 243, 247, 81 N.W.2d 725. This court has had numerous occasions on which to consider the problem of intervention. See, for example, Jordan-Jefferson, Inc., v. Scheer (1962), 16 Wis.2d 288, 114 N.W.2d 408; Muscoda Bridge Co. v. Worden-Allen Co. (1928), 196 Wis. 76, 219 N.W. 428.
It is apparent that the appellant has, in one sense of the word, an "interest" in this controversy; the problem is whether it has such an "interest" as is contemplated in sec. 260.19(1), Stats. The interest which entitles one to intervene in a suit between other parties must be an interest of such direct and immediate character that the intervenor will either gain or lose by the direct operation of the judgment. One whose interest is indirect cannot intervene as a matter of right.
In our opinion, the employer does not have such an interest, as that word is used in sec. 260.19(1), Stats., so as to give it the right to intervene in a disciplinary action by the union against one of its employees. It is well settled in Wisconsin that the constitution and bylaws of a union constitute a contract between a union and its members. United Automobile, A. A. I. Workers v. Woychik (1958), 5 Wis.2d 528, 531, 93 N.W.2d 336; Local No. 261, International Union v. Schulze (1958), 3 Wis.2d 479, 483, 89 N.W.2d 191; Herman v. United Automobile, A. A. I. Workers (1953), 264 Wis. 562, 567, 59 N.W.2d 475.
The plaintiff union is suing on its contract and in so doing is treated as an entity apart from its members. Fray v. Amalgamated, etc., Local Union No. 248 (1960), 9 Wis.2d 631, 638, 101 N.W.2d 782. The Allen-Bradley Company is clearly not a party to the contract between the union and its members. On its claim that the result of the lawsuit will have an effect on its labor relations, we must conclude that this gives the Allen-Bradley Company only an indirect concern.
The employer may be influenced by the result of this action, but the lawsuit, nevertheless, remains a contract action by the union against a member. The company has failed to show that it will be influenced in any way other than indirectly.
Discretionary Intervention.
The proposed intervenor also contends that it was an abuse of discretion on the part of the trial court to deny its petition. Judge CURLEY, as judge of the county court, indicated that in his opinion the intervenor had no rights in this matter other than those relating to unfair labor practices which have already been litigated in other courts. It has not been shown that the trial judge abused his discretion in reaching the foregoing conclusion.
In view of the prolonged history of litigation in this case, we are particularly loath to intrude upon the trial court's determination and its denial of the right to intervene. The breadth of a trial court's discretion on the bringing in of third parties is shown in the following cases: White House Milk Co. v. Thomson (1957), 275 Wis. 243, 248, 81 N.W.2d 725; Schatzman v. Greenfield (1956), 273 Wis. 277, 281, 77 N.W.2d 511; Fish Creek Park Co. v. Bayside (1956), 273 Wis. 89, 93, 76 N.W.2d 557; Muscoda Bridge Co. v. Worden-Allen Co. (1928), 196 Wis. 76, 98, 219 N.W. 428.
By the Court. — Order affirmed.