Petition for Writ of Certiorari — Sobczyk v. Aetna Casualty & Surety Co.

[, Sapene Court, US.

LLED

OCT 19 wer

In THE

Supreme Court of the Anited States

OctoserR TERM, 1987

ERWIN N. SOBCZYK,

Petitioner,

vs.

THE AETNA CASUALTY AND SURETY COMPANY and

MILWAUKEE TEACHERS EDUCATION ASSOCIATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF WISCONSIN

MICHAEL T. SHEEDY

CASTELLANI, SHEEDY & McCormick

829 North Marshall Street

Milwaukee, Wisconsin 53202

(414) 272-3636

Counsel for Petitioner

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION PRESENTED FOR REVIEW

Does federal law preclude a negligence action against

a public employee’s union by a member of the public in-

jured as a direct and proximate result of an illegal strike?

il

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ... i

aneens OP CIC | ok soc cveesescvatuca’s ii

TABLE OF AUTHORITIES 2555s ccccccctnces iv

LOWER COURT DECISIONS ............... l

STATEMENT OF GROUNDS

Pasee SEEING REMI bg kG ewen ce nddebaas sees z

SiAlm@menN) OF THE CASE «2.0.0 5.s0seces 2

ARGUMENT:

I.

A PUBLIC EMPLOYEES’ UNION SHOULD BE

HELD LIABLE TO A MEMBER OF THE PUB-

LIC INJURED AS A DIRECT AND PROXI-

MATE RESULT OF AN ILLEGAL STRIKE .. 9

A. Labor Law Anti-Injunction Statutes Do

Not Apply To Third Party Negligence

PPP er oe ee Se REE 9

B. Assuming The Norris-LaGuardia Act

Applied To The Case At Bar, The Evi-

dence Supported The Jury’s Finding Of

Cate CARE 4.54 ica deeuaeuaeeaan 11

CAPMCLUBOON 620c0as ech innns eae pew eeeeene 17

iil

APPENDIX

A— Decision of the Circuit Court for Milwaukee

eo eS SS

B— Jury Verdict, November 20, 1985 .........

C— Decision and Order of the Court of Appeals of

the State of Wisconsin, District I, August 18,

i Se ss pete ascesccaceus’

D— Denial of Petition for Review of the Supreme

Court of the State of Wisconsin, August 18,

NS Ui eae oO a Wok ks sb eas 0 Wises

A-1

B-1

C-1

iv

TABLE OF AUTHORITIES

Cases

Adley Express Co. v. Highway Truck Drivers

Local 107, 349 F.Supp. 436 (1972), reaffd, 365

PAGE

F.Supp. 769 (E.D. Pa. 1978) ..........2.00. 11

Cobb v. Simon, 119 Wis. 597, 97 N.W. 276 (1903) . 17

Consolidation Coal Co. v. UMW, 500 F.Supp. 72

(D. Utah 1980), affd, 725 F.2d 1258 (6th Cir.

SN a nliducdeindes dda ian cseaenhenseunnss 14

Danielson v. United States Seafood Workers, Smoked

Fish & Cannery Union, 405 F.Supp. 306 (1975) .

PO SE eee PST ey TOE roe re 11, 15, 16

Gnat v. Westchester Fire Ins. Co., 167 Wis. 274,

ge A GPP ii ere re etre 16

Harris v. Knutson, 35 Wis. 2d 567, 151 N.W.2d

SE SE Selicde- cds ukigkkend cds caueeeesaes 12

Larkin v. Johnson, 67 Wis. 2d 451, 227 N.W.2d

Oe GS ais Riis a onde kaxesetaebes hah 12

National Labor Relations Board v. United Mine

Workers of America, District 31, 190 F.2d 251

gg: ok: ee rrr reer rT ee Tee 11

New Negro Alliance v. Sanity Grocery Co., 303

Si ET 2. cu Wa eabad nab wats seas 9

North River Energy Corp. v. United Mine Workers,

664 F.2d 1184 (llth Cir. 1983) ......... 10, 12, 14

Scheuer v. Central States Pension Fund, 358

A re Teer TTT Tree 12

United Brotherhood of Carpenters and Joiners of

America v. United States, 330 U.S. 395 (1947) . 10

Vv

United States v. International Union, United Mine

Workers of America, 77 F.Supp. 563 (D. D.C.

1948), affd, 85 U.S. App. D.C. 149, 177 F.2d 29,

cert. denied, 338 U.S. 871, 70 S.Ct. 140, 94

tt FRR rene rer re 11

United States Steel Corp. v. UMW, 519 F.2d 1249

Sisk does dee nhaed dhs babes ewKRES 12

Vulcan Materials Co. v. United Steelworkers, 430

F.2d 446 (5th Cir. 1970), cert. denied, 401 U.S.

963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971) ... 11

Wagner Electric Corp. v. Local 1104, Int’l Union

of Elec., Radio & Machine Workers, 496 F.2d

Ff Oe rp rarer reer Tr 11

Statutes

ee SR I EE dies ne cndnsneeenanede 2

Be eS a re pre 10

er OS nace ee duwweeeene 4, 8,9, 10, 15

ee So he oss do's e5d eens meoe ees 9

eos evccdcawrerstndescuuesae 10

Wis. Stats., Sec. 103.54 ......... 4, 5, 7, 8, 9, 10, 14, 15

Be i EE ni sh ek. vcsnvevssaceaes 9

Wis. Stats., Sec. 111.700 am) .........6.2000- 7

Wis. Stats., Sec. 111.700(01SKL) .............. 7

Woes, Ses, OR GED. sod noantncesdssdccns 6

Constitutional Provisions

Wee: SM UE 6s Wikia es cease dee 14

te whe Oe eee b oe eel

In THE

Supreme Court of the United States

Octroser Term, 1987

ERWIN N. SOBCZYK,

Petitioner,

vs.

THE AETNA CASUALTY AND SURETY COMPANY and

MILWAUKEE TEACHERS EDUCATION ASSOCIATION,

Respondents.

—<—<—<—————————————————————

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF WISCONSIN

LOWER COURT DECISIONS

On November 20, 1985 a Milwaukee County jury of

twelve found the union known as the Milwaukee Teachers

Education Association liable for injuries sustained by Er-

win N. Sobezyk during an illegal strike (App. B. at 1).

In motions after verdict, the trial court found that federal

law precluded liability. The Wisconsin Court of Appeals

initially overruled the trial court, however, upon reconsid-

eration held that as a matter of law the union could not

be held liable for Erwin N. Sobezyk’s injuries (App. C.

at 16). This opinion has not been published to date. There-

after on August 18, 1987 the Wisconsin Supreme Court

declined to review the court of appeals’ determination.

- S

STATEMENT OF GROUNDS

FOR JURISDICTION

This is an appeal from a final judgment of the Wisconsin

Supreme Court entered on August 18, 1987. This Court’s

jurisdiction is conferred by 28 U.S.C. Sec. 1257(3).

STATEMENT OF THE CASE

————

On June 5, 1980 the petitioner, Erwin N. Sobezyk

(“Sobezyk’’) (then 57), was a janitor-boiler attendant at

Pulaski High School in Milwaukee, Wisconsin, On that

day, the students were preparing for their summer vaca-

tion. The students by contract were under the collective

supervision of the teachers, who were all members of or

represented by a union known as the Milwaukee Teachers

Education Association (“MTEA”’’). One of the school ac-

tivities prior to the June 7, 1980 beginning of summer

vacation was the annual student “locker cleanup” which

was scheduled for an extended homeroom period (Tr. Vol.

I, p. 52). Each student was to clean out his locker of the

year’s accumulation of books, papers and other debris. In

preparation for this cleanup, Sobezyk and other members

of the maintenance staff lined the hallways with garbage

containers. At approximately 8:10 a.m. that morning, di-

rectly after an extended “homeroom” cleanup, a dismissal

bell rang and the students proceeded to their first class

of the day. When the students arrived at their first-period

classroom, they discovered that the MTEA union mem-

=

bers had initiated a wildcat strike.! It is uncontroverted

that neither the superintendent of the Milwaukee Public

Schools, the Milwaukee Police Department (Tr. Vol. I, pp.

190, 191) nor members of the public (Sobezyk) had been

given any warning of the union’s pending strike. The

union members had locked their classroom doors, leaving

the students stranded in the hallways, and the members en

masse proceeded to the school library where they locked

themselves in.

In the following 15 to 30 minutes, the 2,000 unsuper-

vised students proceeded from the childish horseplay, such

as kicking over garbage containers, to a series of major

and minor fights, vandalism and even arson to the school

itself.

During the student riot, while Sobezyk was attempting

to gather the discarded debris, an unknown person, pre-

sumably one of the unsupervised students, picked up a

metal trash container filled with debris (estimated weight

50-75 lbs.) and threw it at Sobezyk from behind. This gar-

bage container struck Sobezyk in the right side of the

right knee. It was later learned that this blow caused a

permanent injury known as a tear of the medial meniscus

(a cartilage of the knee). This injury, together with the

Milwaukee School Board’s policy of no light duty, forced

Sobezyk into an early retirement. Due to his age and in-

jury, he has been unable to find employment since the

occurrence.

' This “strike” had its genesis in a dispute over the suspension

of a student who had returned to school over the objections of

the teaching staff (Dr. Lee McMurrin, Tr. Vol. II) (Mr. Robert

Buege, Tr. Vol. II).

oe

On March 10, 1982 Sobezyk commenced the present neg-

ligence action against the defendant union, the MTEA.

Thereafter the complaint was amended to add the Aetna

’ Casualty and Surety Company (‘‘Aetna”), the insurer of

the MTEA.

On August 16, 1982 the defendants brought on for hear-

ing a motion for summary judgment, alleging that by vir-

tue of the “little Norris-LaGuardia Act’’?, Wis. Stats.,

Sec. 103.543, it was immune from suit. The plaintiff in re-

sponse argued that Sec. 103.54 did not immunize the de-

fendants from suit, but rather created a burden of proof

which a plaintiff must meet to sustain liability. The Cir-

2 Sec. 103.54 provides:

103.54 Responsibility for unlawful acts. No officer or member

of any association or organization, and no association or orga-

nization Lage ee | or interested in a labor dispute (as these

terms are defined in s. 103.62) shall be held responsible or

liable in any civil action at law or suit in equity, or in any

criminal prosecution, for the unlawful acts of individual officers,

members, or agents, except upon proof by a preponderance

of the evidence and without the aid of any presumptions of

law or fact, both of (a) the doing of such acts by persons who

are officers, members or agents of any such association or or-

ganization, and (b) actual participation in or actual authoriza-

tion of, such acts, or ratification of such acts after actual

knowledge thereof by such association or organization.

3 This section of the Norris-LaGuardia Act was adopted by the

Wisconsin Legislature in 1932 from 29 U.S.C. 106 which provides:

s. 106. Responsibility of officers and members of associations

or their organizations for unlawful acts of individual

officers, members, and agents.

No officer or member of any association or organization, and

no association or organization participating or interested in a

labor dispute, shall * held responsible or liable in any court

of the United States for the unlawful acts of individual officers,

members, or agents, except upon clear proof of actual partici-

pation in, or actual authorization of, such acts, or of ratifica-

tion of such acts after actual knowledge thereof.

a

cuit Court of Milwaukee County, Wisconsin, requested

briefs upon the interpretation of Sec. 103.54 and then

issued a lengthy written opinion denying summary judg-

ment (R. 33-16, App. A at 1, 15). In that decision, under

United States Supreme Court precedents, the trial court

found, inter alia, that:

1. A union, its officers and members, can be sued

for negligence under Sec. 103.54;

2. Under federal case law a union cannot distin-

guish actions taken by its rank and file from that of

union leadership for as a general proposition a func-

tioning union must be held responsible for the mass

actions of its members (App. p. 107);

3. A union has a duty to supervise and control its

members (App. pp. 109, 110); and

4. There existed as questions of fact for the jury

whether or not the union “authorized”, “participated

in” or “ratified” its members’ acts of June 5, 1980

(App. p. 114).

On September 23, 1983 the defendants brought on a mo-

tion to reconsider the decision denying the defendants’

summary judgment (R. 39-3, 38-2, 40-3). On November 7,

1983 the circuit court again denied the motion for sum-

mary judgment, again finding that there were material

questions of fact to be determined by the jury. The mat-

ter was tried to a jury of twelve from November 11, 1985

to November 20, 1985.

In the jury trial further evidence was adduced which

showed that:

1. The rank and file MTEA members at Pulaski

High School were upset due to an assault upon a fel-

low union member.

— =

2. The student who committed the assault was

scheduled for a hearing before the school board

wherein the sanction could have been potential ex-

pulsion (Wis. Stats., Sec. 120.13(1)).

3. Due to a lack of a quorum of school board mem-

bers, the student could not be expelled under state

law (Testimony of school superintendent, Dr. Lee

MeMurrin).

4. The school superintendent informed the people

at the meeting that the administration also sought

to expel the student, however, because of a lack of

a quorum and due to the express provisions of state

law, he was constrained the allow the student to re-

turn to school.

5. The assistant executives* on the MTEA union

staff knew the night before the strike that a strike

was planned and failed to tell the authorities.

6. On the evening of June 4, 1980, various union

members and officers discussed over the telephone

the proposed labor action.

7. On the morning of June 5, 1980, the union

Building Committee, chaired by the MTEA Building

Representative, Mr. Robert Buege, called the strike.

As the MTEA Building Representative, he was charged

with handling all local union problems and grievances

with the local administration.

8. The strike meeting occurred on June 5, 1980

just prior to the beginning of the school day. In at-

tendance at the meeting were eight to ten union

members and they discussed a “‘walkout”’.

4 The union members and the executive director of the union

testified that he and his staff were not members of the union and

were only the union’s paid employees.

olin,

9. By contract the Milwaukee School Board was

required by the MTEA to recognize the MTEA rep-

resentatives and the MTEA Building Committee as

the union’s official representatives at each school.

10. The building representatives and committee-

men were elected by the union members as their

union representatives. These individuals hold a posi-

tion in the union as constitutional officers.

At the close of evidence, the court denied all motions

challenging the sufficiency of the evidence and in addi-

tion ruled as a matter of law that Sobczyk was not con-

tributorily negligent. The court also ordered that the jury

be submitted a special verdict with an ultimate fact ques-

tion regarding Sec. 103.54 (Tr. Vol. V, pp. 924, 925). The

jury deliberated and returned a verdict finding the MTEA

negligent and assessed total special damages in the amount

of $122,821.64 (App. B at 1, 2).

On motions after verdict, the trial court held that al-

though the strike was illegal under state law (Wis. Stats.,

Sec. 111.70(4X13)XL)> and further, that the teacher mem-

bers of the union were negligent in failing to supervise

the 2,000 students, that absent a formal strike vote “au-

thorizing” union action, the Strike by the entire staff at

5 Wis. Stats., Sec. 111.70(4X13\L) states:

(L) Strikes prohibited: exception. Except as authorized

under par. (cm) 5 and 6.c. nothing contained in this subchapter

constitutes a grant of the right to strike by any municipal em-

ploye, and such strikes are hereby expressly prohibited. (Em-

phasis supplied).

Sec. 111.70(1Xnm) defines a strike as:

(nm) “Strike” includes any strike or other concerted stoppage

of work by municipal employes, and any concerted slowdown

or other conce interruption of operations or services by

municipal employes, or any concerted refusal to work or per-

form their ee | duties as municipal employes, for the pur-

pose of enforcing demands upon a municipal employer.

wo

Pulaski High School was not “participation” under federal

law. It then granted the defendants’ judgment notwith-

standing the verdict. Stated in another fashion, the trial

court held that prior to a finding of union culpability for

damages there must be “authorization” and “participa-

tion” before liability accrues, whereas Sec. 103.54 and 29

U.S.C. 106 both state that upon a finding of either “‘par-

ticipation . . ., or . . . authorization” liability accrues®.

The appellant Sobezyk timely appealed and moved the

Wisconsin Court of Appeals for summary disposition of

the appeal. The court of appeals, on August 18, 1986,

based upon Wisconsin procedural law, reversed the trial

court and directed entry of judgment upon the verdict

in favor of the plaintiff (App. C at 1, 4). Thereafter,

defendant-respondent moved the court of appeals to recon-

sider upon its own motion, which the Wisconsin Court of

Appeals did by order of September 2, 1986. On June 12,

1987 the court of appeals ruled that notwithstanding the

trial court’s procedural errors, it found further fault with

the trial court’s failure to hold a second summary judg-

ment motion and held that if that motion had been heard,

the trial court would have granted the defendant’s motion

for reconsideration of summary judgment. The court of ap-

peals specifically held that Wis. Stats., Sec. 103.54, was

in pari materia with 29 U.S.C. 106 and that under federal

case law the union could not be held liable for damages re-

sulting from the illegal strike (App. C at 5, 16). A petition

for review was filed with the Wisconsin Supreme Court

which on August 18, 1987 refused to review the decision

(App. D at 1). The resulting precedent is that a member

of the public cannot hold a union culpable for damages

sustained directly caused by an illegal strike.

6 The Wisconsin Court of Appeals never addressed this question

in its written decision (App. C at 5, 16).

~

ARGUMENT

I

A PUBLIC EMPLOYEES’ UNION SHOULD BE HELD

LIABLE TO A MEMBER OF THE PUBLIC INJURED AS

A DIRECT AND PROXIMATE RESULT OF AN ILLEGAL

STRIKE.

A. Labor Law Anti-Injunction Statutes Do Not Apply To

Third Party Negligence Suits.

The case at bar presents a novel question of law never

resolved by any court in the union. It was presented to the

Wisconsin courts in a vacuum of law, inasmuch as Wis.

Stats., Sec. 103.54 and the Norris-LaGuardia Act upon

which that state statute is based have never been used

in application to a third party’s negligence suit against

a union. Theoretically, as both the trial court and the ap-

pellate court found, Sec. 103.54 and 29 U.S.C. 106 applied

to the cause of action because a public employee’s strike

in Wisconsin is an “illegal’’ act and negligence is an “‘un-

lawful” act. Legislative history of both statutes indicate

that these anti-injunctive statutes were not drafted to ap-

ply to third parties’ common law actions for damages but

were codified to govern the issuance of injunctions dur-

ing labor disputes? between employee and employer.

The relationship of employer and employee must exist

or dispute must grow out of that relationship before

the Labor Disputes Act has application. New Negro

Alliance v. Sanity Grocery Co., 303 U.S. 552, 553

(1938). See: 29 U.S.C. Service sec. 118, sec. 12

Absence of Labor Dispute.

7 The definition of a labor dispute (Wis. Stats., Sec. 103.62) is

in pari materia with the federal definition of a labor dispute. 29

U.S.C. See. 113.

ee

See, United Brotherhood of Carpenters and Joiners of

America v. United States, 330 U.S. 395 (1947).

One of the principal errors made by the Wisconsin Court

of Appeals is that it used Taft-Hartley cases in determin-

ing liability under Sec. 103.54. As this Court is aware,

liability under the Norris-LaGuardia Act of 1932, 29

U.S.C. Sees. 101-115, is not governed by case law under

the Taft-Hartley Act of 1947 (29 U.S.C. Sec. 141, et seq.).

This Court should note that Wisconsin law codified a por-

tion of the Norris-LaGuardia Act of 1938 (Sec. 103.54 is

in pari materia with 29 U.S.C. Sec. 106). Wisconsin has

never codified any of the provisions of the Taft-Hartley

Act, 29 U.S.C. 141, et seq., of 1947 (sometimes known

as the Labor Management Relations Act of 1947)8.

In the case at bar there exists as an issue upon review,

a serious question of the applicability of these anti-injunc-

tion statutes to civil damage suits brought by a member

of the public injured when a public employee union struck

in violation of the state law. It is the appellant’s position

that in the absence of a relationship of employer and em-

ployee, these statutes should not be used to deprive a

member of the public of a remedy for the wrong inflicted

upon him.

8 For example, in a case cited by the court of appeals, North

River Energy Corp. v. United Mine Workers, 664 F.2d 1184 (1ith

Cir. 1983), suit was brought under the Labor Management Rela-

tions Act of 1947. That employer sought injunctive relief against

a management unauthorized strike over a “lunchbox”’ search no-

tice. Said case makes it patently clear that the Taft-Hartley Act

and the Norris-LaGuardia Act have different purposes and tests

for liability. The Wisconsin Court of Appeals failed to distinguish

between the two statutes.

=

B. Assuming The Norris-LaGuardia Act Applied To The

Case At Bar, The Evidence Supported The Jury’s Find-

ing Of Union Culpability.

Authorization

Assuming, arguendo, that the labor anti-injunction

statutes do apply to common law negligence suits, the evi-

dence presented to the jury satisfied the burden of proof

under the Norris-LaGuardia Act. The Wisconsin Court of

Appeals analyzed the evidence under all three tests

(authorization, participation and ratification). In so doing,

the court of appeals disregarded federai precedent regard-

ing a union’s liability for the acts of its members:

A union is responsible for the mass action of a rank

and file member as long as it is a functioning entity.

Wagner Electric Corp. v. Local 1104, Int’l Union of

Elec., Radio & Machine Workers, 496 F.2d 954, 956

(8th Cir. 1974); Vulcan Materials Co. v. United Steel-

workers, 430 F.2d 446, 455, 457 (5th Cir. 1970), cert.

denied, 401 U.S. 963, 91 S.Ct. 974, 28 L. Ed.2d 247

(1971); National Labor Relations Board v. United

Mine Workers of America, District 31, 190 F.2d 251,

252 (4th Cir. 1951); Adley Express Co. v. Highway

Truck Drivers Local 107, 349F.Supp. 436, 443 (1972);

reaffd 365 F.Supp. 769, 771 (E. DI Pa. 1973); United

States v. International Union, United Mine Workers

of America, 77 F.Supp. 563, 566 (D.D.C. 1948), aff'd

85 U.S.App. D.C. 149, 177 F.2d 29, cert. denied, 338

U.S. 871, 70 S.Ct. 140, 94 F.Ed. 535 (1949). The ra-

tionale for the mass action theory has been described

as follows... .

Danielson v. United States Seafood Workers Smoked Fish

& Cannery Union, 405 F.Supp. 306 (1975).

The court held that as to authorization there was no

material question of fact because the affidavits provided

prior to trial showed that the “building committee had

i

=

no authority to call a strike’ (Ct. App. Decision, p. 8).

It is correct that there is no actual authority granted the

committee to formally call a strike. Nonetheless, there is

no dispute that they in fact did call a strike under union

auspices. The test under all case law is not whether the

building committee had actual authority to call a strike |

but rather did they have the apparent authority to do

so. In this regard, it should be noted that even under the

Taft-Hartley case of North River, supra, a case cited by

the court of appeals in its decision of June 12, 1987, the

court held:

It is necessary, however, that the acts of a union

agent be committed within the scope of his general

apparent authority and on behalf of the union. [cita-

tion omitted] Such acts bind the union, regardless of

whether they were specifically authorized or ratified.

[citations omitted] (Emphasis supplied).

In United States Steel Corp. v. UMW, 519 F.2d 1249

(1975), another case noted by the court of appeals, the

court held:

Vulcan reaffirmed the principle, that no actual

authority of agents is required for union responsibility

as long as they are acting within the scope of their

= authority. [citations omitted] (Emphasis sup-

plied).

As noted, it is Hornbook law in Wisconsin and else-

where that questions of apparent authority are always

questions of fact’.

® See, Scheuer v. Central States Pension Fund, 358 F.Supp. 1332

(1973) wherein it is stated that issues of apparent authority are

to be resolved by a jury; Larkin v. Johnson, 67 Wis. 2d 451, 227

a W.2d 90 (1975) which states that the question of whether the

hree-prong test of apparent authority has been met is one of fact;

ae arris v. Knutson, 35 Wis. 2d 567, 151 N.W.2d 654 (1967)

which states that ordinarily, facts upon issues of apparent author-

ity should be resolved by a jury.

= =

As to apparent authority, the affidavits showed the

man who led the strike held a constitutional office in the

union. The contract between the MTEA and the Milwau-

kee School Board, introduced as Exhibit 1, states:

The MTEA may in each school have a Building Rep-

resentative and a School Representative Committee.

Principals shall recognize such committees and shall

meet with such committee. (Emphasis supplied).

Testimony showed that by virtue of this contract, the

Milwaukee School Board was required by the MTEA to

recognize the Building Representatives as the MTEA rep-

resentatives and the MTEA Building Committee as the

union’s official representatives at each particular school

(Tr. Vol. I, p. 164).

The Building Representatives and union members who

in toto composed the Building Committee were elected

by the union rank and file in each school (R. 92-1).

Testimony also showed that the Building Committee

chairman acted as the union’s steward at each school and

as such acted in the capacity of the union’s liaison with

the local administration (Tr. Vol. I, p. 33) (See Ex. 2,

Union Contract with the Milwaukee School Board). Mr.

Buege, the Building Representative at Pulaski, was the

admitted leader of this illegal strike on June 5, 1980 (Tr.

Vol. II, p. 347, et seq.).

In addition, most of the MTEA members who testified

admitted that the Building Representatives were the

union’s stewards (Tr. Vol. I. p. 33). For example, Mrs.

Elizabeth Bullock (the union member who under the com-

mand of the stewards took over the public address system

and announced the strike to the MTEA rank and file),

testified that she considered the Building Committee to be

the union’s representatives as Pulaski (Tr. Vol. I. p. 89).

=e

Finally, it should be noted that the officers who called

the strike were specifically created and empowered by the

MTEA union constitution’, just as the United States and

Wisconsin Constitutions create the offices of secretary of

state (Wisconsin Constitution, Art. VI). Clearly, when one

considers the facts that a strike occurred, that it was

called by a union steward who is by union constitution

a union officer with constitutional and contractual author-

ity, the question of apparent authority under Sec. 103.54

is a question of material fact for the jury to consider and

decide.

Participation

As to the proofs regarding “‘participation’’, it is undis-

puted that on June 5, 1980 there was a mass action by

members and officers of the MTEA at Pulaski High

School. The Wisconsin Court of Appeals disregarded this

doctrine, stating:

... A union has an identity separate and apart from

its members, Consolidation Coal Co. v. UMW, 500

F.Supp. 72, 74 (D. Utah 1980), aff'd, 725 F.2d 1258

(6th Cir. 1984), and the fact that a strike occurred

is not sufficient in itself to raise a presumption that

the union, as an entity separate from its members,

is responsible. North River Energy Corp., 664 F.2d

at 1192. Moreover, sec. 103.54, Stats., does not allow

presumptions to be used in determining union partici-

pation. Hence, the mass action theory has question-

10 The MTEA constitution provides:

Section 3. Duties. It shall be the duty of the Building Rep-

resentative to carry out the policies of the Association, enforce

the negotiated contract, post notices, conduct building elections

and serve as a liaison betweeen the Representative Assembly '

and the group he/she is representing.

=i

able applicability to sec. 103.54 liability. In addition,

the A members who walked out at Pulaski High

School comprise less than two percent of MTEA’s

membership. This was hardly a “mass action.”

There is no federal case law which holds that if there

is a low percentage of strikers to the total membership,

then participation ceases to be a question of fact for the

jury. If that were the case, as long as a union did not

have more than 50% of its members involved in a job

action, be it a wildcat strike, a slowdown or other pro-

hibited activity, there would be no liability for participa-

tion in an illegal strike. The appellant believes that such

an unreasonable precedent would allow illegal strikes as

an everyday occurrence for which there would be no cul-

pability for any injuries or harm caused the public.

Sec. 103.54 (just as 29 U.S.C. 106) addresses members’

actions. No organization shall be held “‘. . . liable for the

unlawful acts of . . . officers, members or agents except”

upon a showing of the three grounds. The appellant sub-

mits that participation is a question of fact for a jury,

especially in this instance where the union hierarchy was

aware of the pending strike the night before and failed

to warn anyone. This would comport with the federal

precedent as articulated.

In Danielson, supra:

A union is responsible for the mass action of rank

and file members as long as it is a functioning entity.

[citations omitted]. The rationale for the mass action

theory has been described as follows:

“When all the members of a union employed by a

given employer engage in a concerted strike not for-

mally authorized by the union, as happened here,

many courts hold the union responsible on the theory

that mass action by union members must realistical-

ly be regarded as union action. The premise is that

~16—

large groups of men do not act collectively without

leadership and that a functioning union must be held

responsible for the mass action of its members.” [cita-

tions omitted]

Ratification

Finally, as to the issue of ratification, the court of ap-

peals held that “. . . the only benefit Sobezyk alleges is

that the teachers got what they wanted—the student was

not returned to class”. This apparently was an oversight

on the court’s part, for not only did the union obtain that

concession but it also crowed about its collective success

in the union newspaper headline, which credited the strike

to the entire union, “MTEA INSISTS STUDENT NOT

BE RETURNED” (Tr. Vol. II. p. 469). More important-

ly, prior to the union members’ return to work, the union

by its executive staff bargained for and received from the

Milwaukee School Board a “non recrimination” agreement

to the effect that its members would not and couid not

be punished by the school board for an illegal strike which

violated not only the no-strike clause of the contract but

Wisconsin state law. If this type of activity is not ratifica-

tion, then nothing short of a formal vote of ratification

qualifies as evidence for a jury.

The court of appeals also concluded that the union could

not punish for an illegal strike. Nonetheless, it did pre-

vent punishment of the rank and file by a third party.

Under the state precedents of Gnat v. Westchester Fire

Ins. Co., 167 Wis. 274, 277, 167 N.E. 250, 251 (1918), these

facts should be properly resolved by a jury. However, the

court summarily refused to follow the precedent of Gnat,

finding it inapplicable.

Furthermore, it should be pointed out that the court’s

finding that the union could not punish for the illegal

—

strike was factually erroneous. The MTEA constitution,

an exhibit introduced at trial, states:

Section 9. Twenty-five (25) Building Representatives

may accuse a Building Representative/Alternate of

malfeasance by presenting a written petition to the

President of the Association. . .. If the committee

believes the accused should be removed from office

by a majority vote, . . .. (R. 92-1, Ex. 2, Union Con-

stitution).

The record is quite clear that absolutely no disciplinary

action was taken against union rank and file or the

Building Representative who led the strike. Clearly, the

Wisconsin Supreme Court’s precedent, Cobb v. Simon, 119

Wis. 597, 97 N.W. 276 (1903) should apply. However, the

court of appeals disregarded this state precedent.

CONCLUSION

The case at bar presents a novel question of law which

affects every walk of life in every state. In light of the

practice of negotiated non-recrimination agreements, there

is no sanction for such activity nor remedy for the harm

caused. The appellant requests the Supreme Court to re-

view the precedent so as to provide guidance for all the

states in the union as to when a public employee’s union

can be held liable to a member of the public for damages

incurred due to an illegal strike.

Respectfully submitted,

MICHAEL T. SHEEDY

CASTELLANI, SHEEDY & McCorMICK

829 North Marshall Street

Milwaukee, Wisconsin 53202

(414) 272-3636

Counsel for Petitioner

A-l

APPENDIX A

[Dated June 16, 1983]

STATE OF WISCONSIN

CIRCUIT COURT :: MILWAUKEE COUNTY

ERWIN N. SOBCZYK,

Plaintiff,

vs. Case No. 577-324

MILWAUKEE TEACHERS

EDUCATIONAL ASSOCIATION,

Defendant.

DECISION ON MOTION

FOR SUMMARY JUDGMENT

STATEMENT OF FACTS

On June 5, 1980 at approximately 8:30 A.M., members

of the Pulaski High School M.T.E.A. building committee

called a faculty meeting in the school’s library. The reason

for the meeting was to discuss the faculty’s contractual

rights because of a dispute between Pulaski High School

members of M.T.E.A. and the Milwaukee School Board

and the Pulaski High School administration. This dispute

was over what action should be appropriately taken with

respect to a suspended student. While this meeting was

going on, classroom doors were locked and the students

were left to their own devices.

A-2 -

This was also the date of the annual locker cleanout

which was held prior to summer vacation. Garbage cans

and containers were in the school hallways to facilitate

the pre-vacation clean-up. Finding themselves locked out

of their classrooms and largely unsupervised, the students

proceeded to knock over these garbage containers and

otherwise engage in “horseplay”. During this period an

unknown person, presumably a student, picked up and

threw a metal trash can filled with garbage at the plain-

tiff, Erwin N. Sobezyk. At the time of the incident, Mr.

Sobezyk, a long-time Pulaski High School boiler attendant,

had been engaged in his duties of policing debris in the

first floor foyer.

Due to the blow, Sobezyk was unable to get help and

only obtained assistance some 15-20 minutes later due to

the aid rendered by a student. During this 15-20 minute

period teachers remained locked in the library, the police

were not summoned, and Mr. Sobezyk was given no assist-

ance by school personnel. Plaintiff contends that due to

the continued instability of Sobezyk’s right leg, because

of the blow received on June 5, he was forced to stop

working on October 10, 1980.

Defendant M.T.E.A. is asking for summary judgment

based on two contentions:

1. Defendant did not authorize, participate or ratify

the actions of Pulaski High School teachers on

June 5, 1980 and therefore it is immune from civil

liability under Wis. Stat. 103.54,

and

2. The Defendant’s action fail to meet the require-

ments necessary to establish a cause of action

grounded in negligence.

A-3

QUESTIONS PRESENTED

I. Does Wis. Stat. 103.54, “Responsibility for Unlawful

Acts,” establish that a Wisconsin union is totally immune

from culpability for tortious conduct?

A. Does negligence, as a cause of action, come with-

in the parameters of an unlawful act?

B. Even if Wis. Stat. 103.54 is interpreted to estab-

lish a general rule of union immunity, are there

questions of fact precluding summary judgment

as to whether the Defendant union might fall

within the statutory exceptions to nonliability?

II. Are there questions of fact which, if proven, could

establish negligence as a viable cause of action against

M.T.E.A.?

A. Did M.T.E.A. owe a duty based-on the collec-

tive bargaining agreement which it negotiated

between the teachers and the City of Milwaukee

to control the students?

B. Were M.T.E.A.’s acts and omissions the proxi-

mate cause of Plaintiff Sobczyk’s injuries?

C. Even if M.T.E.A. is negligent, are there public

policy factors which, when applied, would deny

M.T.E.A. liability?

DISCUSSION

I. Does Wis. Stat. 103.54, “Responsibility for Unlawful

Acts”’, establish that a Wisconsin union is totally immune

from culpability for tortious conduct?

It appears clear that both parties agree that the June

5, 1980 incident constituted a “labor dispute’’. Therefore,

at least initially, Wis. Stat. 103.54 is applicable. Defen-

dant claims that this statute establishes a general rule

of non-liability subject only to the exception stated by the

A-4

statute. Conversely, Plaintiff contends that the statute

‘“’, . does not grant total or partial immunity for union

tort culpability, but rather establishes a burden of proof

which a Plaintiff must meet to sustain criminal or civil

liability”. (Memo of Law in Opposition to Summary Judg-

ment, p. 6. Hereinafter Plaintiffs Brief.)

Although it is undoubtedly of scholarly interest whether

this statute establishes a general non-liability rule with

a specific exception or the Plaintiff's burden of proof for

establishing liability, it is not really a question which this

court needs to address in deciding this summary judgment

motion. Instead, emphasis can be placed on whether or

not there are questions of fact which do establish union

liability, i.e. can the Plaintiff show by a preponderance

of the evidence that:

1. the acts done on June 5, 1980 were done by of-

ficer, members or agents of M.T.E.A.

and

2. M.T.E.A. participated in, or actually authorized

the acts, or knowingly ratified the acts.

At a minimum these statutory grounds which establish

liability modify what initially appears to be a non-liability

rule. No matter which way the statute is interpreted, the

court’s primary concern must be focused on the impact

of this latter language.

A. Does negligence, as a cause of action, come within

the parameters of an unlawful act?

In Plaintiff's Brief, p. 7, Plaintiff half-heartedly acknowl-

edges the potential issue as to whether “the term ‘unlaw-

ful’ includes the doctrine of negligence”. This question

arises from the ‘“‘title” of Wis. Stat. 103.54, ‘“‘Responsibil-

ity for Unlawful Acts’. If “unlawful” does not include

A-5

negligence, then the statute is arguably inapplicable in the

first instance.

Black’s Dictionary, 5th ed., defines unlawful as “That

which is contrary to, prohibited, or unauthorized by law

. . . While necessarily not implying the element of crimi-

nality, it is broad enough to include it”. This latter phrase

indicates that contrary to what many laymen may think,

“unlawful” is not restricted to criminal actions. One of

Black’s definitions of negligence is: ““Conduct which falls

below the standard established by law for the protection

of others against unreasonable risk of harm. . . .” (empha-

sis added). Since such conduct is measured against a stan-

dard established by law, it would at least appear to fall

within the dictionary parameters “‘unauthorized by law’’.

Therefore, the applicability of Wis. Stat. 103.54 to a negli-

gence cause of action cannot reasonably or logically be

rejected.

B. Even if Wis. Stat. 103.54 is interpreted to establish

a general rule of union immunity, are there ques-

tions of fact precluding summary judgment as to

whether the defendant union might fall within the

statutory exceptions to nonliability?

In order for the defendant to incur liability under Wis.

Stat. 103.54(a), the acts in question must have been done

by persons who are officers, members or agents of the

M.T.E.A. As the Plaintiff points out in its brief, p. 7, this

appears to be a non-issue because in the Defendant’s brief,

pps. 1-2, it was stated that “the building committee (a

group of union representatives, located at each of the Mil-

waukee Public Schools) for Pulaski High School called for

all faculty members to assemble in the library. The con-

gregation met to discuss . . . their rights under the pro-

vision of the contract. . .”. This language, by the Defen-

A-6 ’

dant, appears to concede that the “doing such acts” stat-

utory requirement for M.T.E.A. liability is met in this

case.

In addition to the “doing such acts” requirement, in

order to incur liability, according to Wis. Stat. 103.54(b),

it must also be found that the union participated OR au-

thorized, OR ratified the Pulaski High School teachers’

actions. Plaintiff contends that further discovery is neces-

sary to determine if authorization was given. However,

Plaintiff does contend that there was union participation

because “‘all of the union members at Pulaski, in response

to a union committee call, walked off their jobs, abandon-

ing their contractual duties”. (Plaintiff's Brief, p. 9). This

appears to present a question of fact as to the extent of

union participation and as to who initiated the walkout.

It would appear from the facts as conceded by the parties,

that the union building committee by calling the meeting

did participate in the walkout within the meaning of this

statute.

In contradiction, Defendant contends that Donald Ernest,

M.T.E.A.’s agent or employee, told the teachers that

M.T.E.A. would not approve of the walkout and worked

with the school administration to resolve the situation.

(Defendant’s Brief, pps. 6-7). Rather than bolstering an

argument in favor of summary judgment, this appears to

create only more issues of fact.

It does appear that the Defendant is trying to distin-

guish actions taken by its rank and file from those taken

by the union leadership. However, “as a general proposi-

tion, a functioning union is held responsible for the mass

actions of its members. This ‘rule’ is not a statement of

the law, but a common sense proposition of logical fac-

tual inference”. Adley Express Co. v. Highway Truck

te Pan hs Ri net lat hai

tine NE (ge aren abr wisn.

A-7

Driv. & H., Loc. No. 107, 349 F. Supp. 436, 448 (E.D.

Pa. 1972). The Defendant, in its reply brief, p. 2, attempts

to distinguish Adley from the case at bar because in

Adley the secretary-treasurer and chief executive officer

had recommended the union’s action. This rule, however,

does not appear to be so circumscribed. In addition, this

distinction appears to be illusory. The statute makes no

distinction as to whether the participation is by union

members or its leadership. In reality what impact would

union participation ever have if not for its members?

Even if it is found by this court that there was no

union participation or authorization, Plaintiff contends that

M.T.E.A. ratified the teachers’ actions by retaining the

benefits of the “unlawful strike” (whatever those bene-

fits might be) and by not punishing its members (Plain-

tiffs Brief, pps. 10-11, based on Gnat v. Westchester Fire

Ins. Co., 167 Wis. 274 (1918) and Cobb v. Simon, 119 Wis.

597 (1903)). In contrast, the Defendant contends there was

no ratification based on the actions of Donald Ernest, as

previously discussed. Again, this difference between the

parties appears to boil down to questions of fact. How-

ever, the actions of Donald Ernest really do not address

the issue of ratification because they occurred simultane-

ously with the labor dispute. Instead, ratification involves

M.T.E.A.’s actions after the dispute. This was not really

addressed by the Defendant.

In summary, assuming that the “doing of acts” require-

ment is met, the statutory requirements of participation,

authorization or ratification is phrased in the disjunctive.

Whether or not any one of these latter three was done

by the M.T.E.A. raises questions of fact which make sum-

mary judgment inappropriate.

A-8

II. Are there questions of fact which, if proven, could

establish negligence as a viable cause of action against

M.T.E.A. ?

It appears clear that in order to establish negligence

four elements must be proven:

1. existence of a duty

2. breach of the duty

3. causal connection between the conduct and the

injury

4. actual damages resulting from the injury.

E.G., Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531;

247 N.W. 2d 132 (1976). Defendant contends that M.T.E.A.

was under no duty, that M.T.E.A. actions did not cause

Plaintiff's injuries, and in any event, even if M.T.E.A. was

negligent, liability should not be imposed for public policy

reasons.

A. Did M.T.E.A. owe a duty based on the collective

bargaining agreement which it negotiated between

the teachers and the City of Milwaukee to control

the students?

The basis for M.T.E.A.’s argument that it had no duty

to control the student whose actions caused Plaintiff’s in-

juries is that its relationship with the students does not

fall within any of the exceptions to the rule enunciated

in Restatement (Second) of Torts, Sec. 315. This section,

which has been adopted in Wisconsin, establishes the gen-

eral rule that in the absence of a special relationship, like

that of parent-child, an individual has no duty to control

the conduct of a third person.

In contrast, Plaintiff alleges such a duty arises from the

collective bargaining agreement and M.T.E.A.’s failure to

ee ee ee ee

a en ee es

A-9

keep the teachers in their classrooms according to their

contract was a breach of its duty. According to the Plain-

tiff, by undertaking to negotiate a contract for the teachers’

services, the union undertook the duty of supervising its

members.

“.. the union herein undertook the collective respon-

sibilities of its members and when the members all

breached their duty, the union breached its duty. It

would be imprudent social policy to grant associations

benefits without said associations bearing the concom-

mitant responsibilities due society.”

(Plaintiffs brief, p. 12). Additionally, Plaintiff cites several

cases which support the agency argument and the duty

of unions to protect the public health and safety. (See

Plaintiff's brief, pps. 13-14.)

Logically, it would appear that a union has a duty to

supervise and control its members because otherwise any

collective bargaining agreement would be rendered use-

less. Why would any school system sign such an agree-

ment which, for example, provided that teachers would

get one hour for lunch, if any or every teacher could in-

dividually decide to take two hours for lunch without suf-

fering any reprimand? Therefore, as long as the actions

taken by teachers fall within the parameters of the col-

lective bargaining agreement, M.T.E.A. would appear to

share the duty. This presents questions of fact preciud-

ing summary judgment.

Additionally, it is clear that ‘{a] teacher in the public

schools is liable for injury to the pupils in his charge caused

by his negligence or failure to use reasonable care”’. Cirillo

v. Milwaukee, 84 Wis. 2d 705, 711 (1967), citing Grosso

v. Wittemann, 266 Wis. 17, 20, 62 N.W. 2d 386 (1954).

What the Plaintiff is really contending is that the teachers

breached their duty by not supervising the students. The

A-10

teachers’ breach is to be imputed to the union and/or the

union is directly responsible because it failed to adequately

control the teachers’ actions, an obligation which it im-

plicitly accepted by participating in the collective bargain-

ing process. Assuming that the union has such a duty,

a question of fact would exist as to the type and degree

of control they attempted to exercise over their members

in the situation at Pulaski High School.

B. Were M.T.E.A.’s acts and omissions the proximate

cause of Plaintiff Sobczyk’s injuries?

Defendant contends that none of M.T.E.A.’s actions

were a substantial factor in causing Sobezyk’s injury. In-

stead fault lies with “. . . either the administration, in

failing to properly supervise during this assembly, or the

teachers when they left their designated assignments”.

(Defendant’s brief, p. 11). Defendant further contends that

“the assembly occurred independently and not as a con-

certed union activity”. (Defendant’s brief, p. 11). This lat-

ter point obviously presents a question of fact since it has

been acknowledged that the teachers’ meeting was called

by the building committee which is a group of union rep-

resentatives. As the Plaintiff points out, causation is gen-

erally a question of fact to be left to a jury. Webster v.

Krembs, 230 Wis. 252, 282 N.W. 564, 567 (1939). (Addi-

tional citations may be found in Plaintiff's brief pps. 16-17).

Although this court need not decide if the teachers’ ab-

sence from the classrooms was a substantial factor in caus-

ing Mr. Sobezyk’s injuries in ruling on this summary judg-

ment motion, it appears clear that such a finding could

be made. In Cirillo v. Milwaukee, 84 Wis. 2d 705 (1967)

the court held that a jury could find that a teacher’s

failure to supervise a gym class was a cause of the in-

juries sustained by one of the students. The court said:

Me 6th I Nha § tthe AAAs OUI te ies! EC Aan Mish

A-11

“That a group of almost 50 adolescents left unsuper-

vised in a gymnasium for this period of time contains

within it at least the seeds of unruliness is perhaps

not a proper object of judicial notice. However, the

least that can be said is ‘Boys will be boys’.”

Id. at 713-14 quoting the dissenters in Thompson v. Board

of Education of City of New York, 255 App. Div. 786,

6 N.Y. Supp. 2d 921, 922 (1938). A finding similar to that

of Cirillo seems appropriate here.

C. Even if M.T.E.A. is negligent, are there public

policy factors which, when applied, would deny

M.T.E.A. liability?

The Defendant contends that even if it has been found

to be negligent, liability should be precluded, as a matter

of law, based on any of the following public policy reasons:

(1) the injury is too remote from the negligence; or

(2) the injury is too fully out of proportion to the

culpability of the negligent tortfeasor; or (3) in retro-

spect it appears too highly extraordinary that the

negligence should have brought about the harm; or

(4) because allowance of recovery would place too un-

reasonable a burden on the negligence and tortfeasor;

or (5) because allowance of recovery would be too

likely to open the way for fraudulent claims; or (6)

allowance of recovery would enter a field that has

no sensible or just stopping point”.

(Defendant’s brief, p. 12, based on Stewart v. Wulf, 85

Wis. 2d 461, 479, 271 N.W. 2d 79 (1978); Coffey v. Mil-

waukee, 74 Wis. 2d 526, 541, 247 N.W. 2d 885 (1979)).

Basically the Defendant contends that liability should not

be imposed against M.T.E.A. for acts done by a third per-

son when M.T.E.A. had no control over the third person

because the imposition of such liability has no sensible

or just stopping point. (Defendant’s brief, p. 12)

A-12

In contrast, Plaintiff contends that to preclude liability

on public policy grounds would be to immunize unlawful

activity, i.e. a strike by public employees. In addition,

Plaintiff contends that to permit a private damage action

against a public sector union would further the goal of

deterring public employee strikes. (Plaintiff's brief, p. 22).

Since neither side cites any precedent on point, this falls

within this court’s discretion. Although public policy tests

as to recovery or damages does not always require a full

factual resolution of the cause of action by trial before

they will be applied, it is my opinion that this is not such

a case. See Rieck v. Medical Protective Co., 64 Wis. 2d

514, 520, 219 N.W. 2d 242 (1974); Hass v. Chicago & North-

western Ry. Co., 48 Wis. 2d 321, 326-27, 179 N.W. 2d 885

(1970). Without doubt, this case involves sensitive issues,

and, therefore, further discovery and knowledge of all

relevant facts should be obtained before the court if it

would be in the public interest to preclude liability.

CONCLUSION

It appears that Wis. Stat. 103.54 is applicable to the

case at bar and that the acts or omissions in question

were, at a minimum, done by M.T.E.A. members. Ques-

tions of fact exist which necessitate further discovery as

to whether M.T.E.A. authorized the teachers’ actions.

Such similar information is needed to determine whether

M.T.E.A. ratified the teachers’ actions by retaining the

benefits or subsequently rejected their actions by taking

some punitive measures. It is a little harder to find union

participation because of the apparent rejection of the

teachers’ acts by Donald Ernest, M.T.E.A. agent or em-

ployee. However, the role of the building committee pre-

sents a question of fact with respect to union participa-

tion. In any event, the requirements of authorization, par-

FO Re a et re RES, UR I NT oman 6 tone

A-13

ticipation and ratification are stated in the disjunctive. If

any one of them are found, M.T.E.A. would incur liability.

There appears to be no question that the teachers breached

their duty to properly supervise and control the students

under their charge. Arguably the teachers’ negligence can

be imputed to the union, just as the negligence of a cor-

porate worker is imputed to the corporation.

“.. a corporation acts of necessity through its

agents whose acts within the scope of the agents’ au-

thority are acts of the corporation both for the im-

position of civil and criminal liability”.

(Plaintiff's brief, p. 13, quoting State v. Dried Milk Prod-

ucts Co-operative, 16 Wis. 2d 357, 361, 114 N.W. 2d 412

(1961).) Alternatively, it can be argued that the union as-

sumed direct responsibility for the teachers and their ac-

tions by negotiating their collective bargaining agreement.

Whether the collective bargaining agreement in this case

involves the situation involved here is a question of fact.

Once a duty is found, or at least recognition of ques-

tions of fact as to the duty, causation is generally a jury

matter. Although the application of public policy tests

without a full trial to preclude liability is within the

court’s discretion, the invitation to so decide must be de-

clined. The sensitivity of the issues in this case and the

countervailing public policy reasons for creating liability

make such a course premature.

For the reasons afore-stated, the defendant’s motion for

summary judgment is denied.

By the Court,

/s/ WILLIAM A. JENNARO

William A. Jennaro, Circuit Judge

Dated: June 16, 1983.

B-1

APPENDIX B

[Filed November 20, 1985]

STATE OF WISCONSIN

CIRCUIT COURT : MILWAUKEE COUNTY

Branch 6

ERWIN N. SOBCZYK,

Plaintiff,

vs. Case No. 577-324

MILWAUKEE TEACHERS

EDUCATIONAL ASSOCIATION,

Defendant.

SPECIAL VERDICT

QUESTION No. 1: Was the plaintiff, Erwin N. Sobczyk, in-

jured on June 5, 1980, during a locker clean-out at Pulaski

High School?

ANSWER: Yes

QUESTION No. 2: Was the defendant, Milwaukee Teachers

Educational Association, negligent on June 5, 1980, dur-

ing a locker clean-out at Pulaski High School?

ANSWER: Yes

QUESTION No. 3: If you have answered “‘yes” to Ques-

tion No. 2, then answer this question: Was the negligence

of the defendant, Milwaukee Teachers Educational Associ-

ation, a cause of the injuries sustained by the plaintiff,

Erwin N. Sobezyk, on June 5, 1980, during a locker clean-

out at Pulaski High School?

; B-2

ANSWER: Yes

QUESTION No. 4: What sum of money will fairly and rea-

sonably compensate the plaintiff, Erwin N. Sobezyk, for

the following:

a) Medical Expenses to Date?

ANSWER: 1666.84 Answered by the court.

b) Pain and suffering to date?

ANSWER: 10,000.00

c) Pain and suffering in the future?

ANSWER: 15,803.10

d) Loss of wages to date?

ANSWER: 55,341.70

e) Loss of wages in the future?

ANSWER: 40,000.00

Dissenting Jurors Question Number

/s/ RosE M. HRENAK #4-C, D, E

/s/ MARK D. Povic #4-D, E

Dated at MILWAUKEE, WISCONSIN, this 20th day of

November, 1985.

/s) RosE M. HRENAK

Foreperson

C-1

APPENDIX C

DISTRICT I

(Letterhead Of)

Office of the Clerk

COURT OF APPEALS

OF WISCONSIN

Madison, August 18, 1986

Michael T. Sheedy Clerk of Circuit Court

Milwaukee, Wisconsin (L.C. #577-324)

To: (Milwaukee County)

George W. Greene

Anna M. Pepelnjak Hon. Robert W. Landry

Milwaukee, Wisconsin Milwaukee County

Courthouse

James C. Reiher

Milwaukee, Wisconsin

You are hereby notified that the Court entered the follow-

ing opinion and order:

86-0532 Erwin N. Sobezyk v. The Aetna Casualty and

Surety Company, et al.

Before Moser, P.J., Wedemeyer and Sullivan, JJ.

Erwin N. Sobezyk (Sobezyk) has filed a motion for sum-

mary disposition. He requests this court to summarily re-

verse the judgment dismissing his complaint. He alleges

that Aetna Casualty and Surety Company (Aetna) and the

Milwaukee Teachers Education Association (MTEA) fail to

C-2

comply with sec. 805.16, Stats., when they served their

motion for judgment notwithstanding the verdict twenty-

one days after the verdict was rendered. Sobezyk asserts

that this late service deprived the trial court of the juris-

diction to grant the motion. 'Based upon our review of

the memoranda and record, we conclude that this case

is appropriate for summary disposition. We reverse the

trial court’s judgment.

Sobezyk was injured during a student riot at the Pulaski

High School when an unknown individual struck him in the

leg with a trash can. The jury awarded Sobezyk $112,811

in damages. The trial court granted Aetna and MTEA’s

motion for judgment notwithstanding the verdict. The mo-

tion was timely filed but service by mail—which would

have been complete upon mailing—was ineffective because

of an error in addressing the envelope. Though the mo-

tion was not served on Sobezyk within twenty days of

the verdict, the trial court granted it. The judge dismissed

the complaint and taxed costs against Sobezyk. Sobezyk

appealed.

The relevant facts are not in dispute. The application

of a statute to a given set of facts is a question of law,

Bitters v. Milcut, Inc., 117 Wis. 2d 48, 49, 343 N.W.2d

418, 419 (Ct.App. 1983), which this court decides without

deference to the trial court’s determination. Ball v. Dis-

trict No. 4, Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d

389, 394 (1984).

Sobezyk argues that compliance with the twenty day

rule for filing and serving post-verdict motions in sec.

805.16, Stats., is mandatory. Sobezyk relies on Brookhouse

v. State Farm Mutual Insurance, 130 Wis. 2d 166, 387

N.W.2d 82 (Ct.App. 1986), in which the court of appeals

held that the requirement that post-verdict motions be

C-3

filed in the trial court within twenty days of the verdict

was jurisdictional. Jd. at 170-71, 387 N.W.2d at 83.

Brookhouse also held that sec. 801.15(2Xa), Stats., which

allows the enlargement of specified time periods if based

upon excusable neglect, was not available to cure a late

filing under sec. 805.16, Stats. Jd. Aetna and MTEA argue

that the holding in Brookhouse is distinguishable because

they filed their motion within twenty days of the jury’s

verdict but only failed to serve it on Sobcezyk within that

period.

The distinction Aetna and MTEA assert is without legal

significance. Section 805.16, Stats., requires both filing and

service within twenty days of the verdict: “Time for Mo-

tions after Verdict. Motions after verdict shall be filed

and served within 20 days after the verdict is rendered.

...’ This language is clear an unambiguous. We conclude

that the late service of the post-verdict motion on Sobezyk

deprived the trial court of the authority to grant it.

Alternatively, Aetna and MTEA argue that its late filing

should be excused under sec. 805.18(1), Stats. That statute

permits the trial court to disregard errors or defects in

the proceedings which do not affect the substantial rights

of an adverse party. The practical effect of this argument

is to enlarge the time for service of the post-verdict mo-

tion. This position was directly struck down in Brook-

house. Id. at 169-71, 387 N.W.2d at 83-84.

Finally, Sobezyk argues that this court could review the

appeal under sec. 752.35, Stats. See Jos. P. Jansen Com-

pany, Inc. v. Milwaukee Area District Board of Voca-

tional, Technical & Adult Education, 105 Wis. 2d 1, 10,

312 N.W.2d 818, 817 (1981). Such review requires an eval-

uation of the merits of the appeal. However, the court

need not address this contention since application of sec.

C-4

805.16, Stats., and Brookhouse, supra, is dispositive of the

appeal. Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W.

663, 665 (1938).

Upon the foregoing reasons,

IT IS ORDERED that the judgment of the trial court

is summarily reversed pursuant to Rule 809.21, Stats., and

the court is directed to enter judgment on the verdict.

Marilyn L. Graves

Clerk of Court of Appeals

C-5

[DATED JUNE 12, 1987]

No. 86-0532

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

ERWIN N. SOBCZYK,

Plaintiff-Appellant

and Cross-Respondent,

Vv.

THE AETNA CASUALTY AND SURETY COMPANY and

MILWAUKEE TEACHERS EDUCATION ASSOCIATION,

Defendants-Respondents

and Cross-Appellants.

APPEAL and CROSS-APPEAL from a judgment of the

circuit court for Milwaukee county: ROBERT W. LANDRY,

Judge. Reversed and remanded with directions.

Before Moser, P.J., Wedemeyer and Sullivan, JJ.

PER CURIAM. Erwin N. Sobczyk appeals a judgment

holding that, notwithstanding the verdict, the Milwaukee

Teachers Education Association (MTEA) and its insurer

are not liable to him for an injury he sustained during

a disturbance at Pulaski High School. MTEA raises sev-

eral issues on cross-appeal, one of which we find disposi-

tive. We conclude that summary judgment should have

been granted to MTEA following its motion to reconsider.

Accordingly, we reverse the judgment and remand the

matter, directing the trial court to enter summary judg-

ment in favor of MTEA and its insurer.

C-6

Sobezyk, a custodian at Pulaski High School, was in-

jured by a trash can thrown by an unknown student on

June 5, 1980. On the previous evening, the Milwaukee

Board of School Directors had failed to act, due to the

lack of a quorum, on the school’s recommendation that

a violent student be expelled. Consequently, the board

ordered the student to return to school the next morn-

ing. Several Pulaski teachers became upset, fearing for

their safety. Donald Ernest, assistant executive director

of the MTEA, heard rumors of a possible wildcat strike

by Pulaski teachers.

On June 5, prior to the start of classes, a meeting was

held by several teachers comprising Pulaski’s building

committee and building representative. Ernest attended

the meeting and urged the teachers not to strike or walk-

off, reminding them that MTEA’s contract with the board

had a no-strike clause.

Ernest then met with Pulaski’s principal, Carl Thom,

and the building representative, Robert Buege, to resolve

the problem of the returning student. It was agreed that

the student would be kept in another building under super-

vision. During this meeting, someone other than Ernest,

Thom, or Buege announced over the school’s P.A. system

that all teachers were to lock their classrooms and report

to the library.

Ernest went to the library and told the teachers that

the disruptive student would not be attending classes, and

he urged them to return to their classrooms. They com-

plied. The first class period had already begun. The meet-

ing in the library had lasted about twenty minutes.

Duriny that time the students, locked out of their first-

period classes, became unruly. Large trash cans had been

placed in the halls for the annual locker clean-out, and

C-7

a student threw or pushed one of the cans, causing in-

jury to Sobezyk’s knee. Sobezyk sued MTEA and its in-

surer, claiming that the library meeting was a wildcat

strike by MTEA’s Pulaski members and that it was the

cause of his injury.

MTEA brought a motion for summary judgment, claim-

ing that sec. 103.54, Stats., precluded its liability. The trial

court denied the motion and, after judicial rotation, re-

fused to reconsider. Trial proceeded to a jury, which found

MTEA liable. The trial court, however, granted MTEA’s

postverdict motion for judgment notwithstanding the ver-

dict. Sobezyk appeals, asserting that he proved MTEA’s

liability under sec. 103.54 and that the trial court lost

jurisdiction to enter a judgment notwithstanding the ver-

dict due to MTEA’s failure to timely serve him with its

postverdict motion. MTEA cross-appeals asserting, inter

alia, that summary judgment should have been granted

in its favor.

We first address Sobezyk’s jurisdictional challenge to

the judgment. MTEA’s postverdict motion for judgment

notwithstanding the verdict was timely filed but Sobezyk

was not served until the twenty-first day. Service by mail

was ineffective due to an error in addressing the envelope.

Nevertheless, the trial court granted the motion.

Section 805.16, Stats., states that “(motions after ver-

dict shall be filed and served within 20 days after the ver-

dict is rendered.” The application of this statute to the

undisputed facts above is a question of law. Bitters v.

Milcut, Inc., 117 Wis. 2d 48, 49, 343 N.W.2d 418, 419 (Ct.

App. 1983). We therefore do not defer to the trial court’s

determination that the untimely service was insignificant.

The requirement that postverdict motions be filed within

twenty days is jurisdictional, and this time period may

C-8

not be enlarged due to excusable neglect. Brookhouse v.

State Farm Mut. Auto. Ins. Co., 130 Wis. 2d 166, 170-71,

387 N.W.2d 82, 84 (Ct. App. 1986). Because sec. 805.16,

Stats., requires both filing and service within twenty days,

the Brookhouse rationale applies to late service as well.

MTEA’s failure to timely serve its motion on Sobezyk

deprived the trial court of the authority to grant it.

The trial court, therefore, had no jurisdiction to enter

the judgment notwithstanding the verdict. MTEA argues,

however, that the trial court still had jurisdiction to ad-

dress MTEA’s earlier motions to dismiss, which the trial

court had taken under advisement. We need not decide

whether the trial court retained jurisdiction over these

earlier motions or whether, in fact, it granted any of

them. Rather, we hold that judgment should have been

entered in favor of MTEA and its insurer on their re-

newed motion for summary judgment.

We apply the same standard on summary judgment as

the trial court does: summary judgment is appropriate if

the pleadings, depositions, answers to interrogatories, ad-

missions, and affidavits on file show that there is no gen-

uine issue of material fact and that the movant is entitled

to judgment as a matter of law. Messner v. Briggs &

Stratton Corp., 120 Wis. 2d 127, 131, 353 N.W.2d 363, 365

(Ct. App. 1984). Once a defendant has shown a prima facie

case for summary judgment, the burden shifts to the plain-

tiff to produce evidentiary proofs creating material issues

of fact. Spitz v. Continental Casualty Co., 40 Wis. 2d 439,

444-45, 162 N.W.2d 1, 3-4 (1968).

Section 103.54, Stats., states that

no association or organization participating or inter-

ested in a labor dispute . . . shall be held responsi-

ble or liable in any civil action . . . for the unlawful

aiacenea cease

C-9

acts of individual officers, members, or agents, ex-

cept upon proof by a preponderance of the evidence

and without the aid of any presumptions of law or

fact, both of (a) the doing of such acts by persons

who are officers, members or agents of any such as-

sociation or organization, and (b) actual participation

in, or actual authorization of, such acts, or ratifica-

tion of such acts after actual knowledge thereof by

such association or organization. [Emphasis added.]

Section 103.54 is based on sec. 6 of the Norris-LaGuardia

Act, 29 U.S.C. sec. 106 (1982). The only differences are

that the federal law requires proof by clear and convincing

evidence rather than by a preponderance, and the state

law does not allow presumptions. A union’s liability based

on its authorization, participation, or ratification of mem-

bers’ illegal acts may also arise under sec. 301 of the

Labor Management Relations (Taft-Hartley) Act of 1947,

as amended, 29 U.S.C. sec. 185 (1982). Under that statute,

general agency principles apply. Because sec. 103.54 is

partially patterned after these federal statutes, federal

case law is presuasive. See State v. Wickstrom, 134 Wis.

2d 158. 162, 396 N.W.2d 188, 190 (1986).

MTEA concedes that it was “interested in a labor dis-

pute” and that the library meeting was an act by its

members. We assume for this analysis, that the acts of

the Pulaski MTEA members were “unlawful acts” under

sec. 103.54, as either negligence or an illegal strike. The

parties do not dispute the historical facts but only their

legal effect. Thus, our only question is whether the acts

of Ernest or the Pulaski teachers on June 5, 1980, or any

subsequent conduct of the union, amounted to the union’s

actual authorization of, actual participation in, or ratifica-

tion of the teachers’ walk-off. We will consider eviden-

tiary materials submitted pursuant to MTEA’s original

motion for summary judgment and those submitted pur-

C-10

suant to its motion for reconsideration and renewed mo-

tion for summary judgment.

Sobezyk asserts that the union authorized the strike be-

cause it was called by the building committee. Documents

and affidavits submitted by MTEA, however, establish

that the building committee has no authority to call a

strike and that Ernest, in his capacity as assistant ex-

ecutive director of MTEA, informed the teachers that a

strike would be illegal and urged them to return to work.

Sobezyk has not shown a material issue of fact regarding

authorization, therefore we conclude, as a matter of law,

the June 5th actions of Ernest and the building commit-

tee members do not amount to union authorization. See

also North River Energy Corp. v. UMW, 664 F.2d 1184,

1192 (11th Cir. 1982) (fact that all union committeemen

and officials failed to work during illegal strike “cannot be

construed as participation and authorization by the union”’).

Sobezyk bases his assertion that the union participated

in the strike on the facts that (1) all MTEA members at

Pulaski participated (the mass action theory) and (2) Ernest,

as a union executive, negotiated an end to the strike. We

hold that these facts, as a matter of law, do not amount

to union participation.

The mass action theory, that a union is responsible for

the mass actions of its members, is based on the supposi-

tion that vast numbers of people do not act without lead-

ership. It is not “a per se rule that a union is liable any

time its members go on strike.” United States Steel Corp.

v. UMW, 519 F.2d 1249, 1253 (5th Cir. 1975) reh’g denied,

526 F.2d 337 (1976). A union has an identity separate and

apart from its members, Consolidation Coal Co. v. UMW,

500 F. Supp. 72, 74 (D. Utah 1980), aff'd, 725 F.2d 1258

(6th Cir. 1984), and the fact that a strike occurred is not

sufficient in itself to raise a presumption that the union,

C-11

as an entity separate from its members, is responsible.

North River Energy Corp., 664 F.2d at 1192. Moreover,

sec. 103.54, Stats., does not allow presumptions to be used

in determining union participation. Hence, the mass ac-

tion theory has questionable applicability to sec. 103.54

liability. In addition, the MTEA members who walked out

at Pulaski High School comprise less than two percent

of MTEA’s membership. This was hardly a “mass action.”

Nor do Ernest’s actions amount to union participation in

the illegal action. Rather, Ernest’s actions were directed

towards first preventing and then ending the strike. In

similar cases, unions have been held not liable. £F.g.,

United States Steel Corp., 519 F.2d at 1253 (‘‘Clearly, a

union is not responsible for an unauthorized strike which

the union officials are endeavoring to stop.’’); Consolida-

tion Coal Co., 500 F. Supp. at 75 (union official told mem-

bers that strike was illegal and violated contract, and ad-

vised them to return to work). In UMW v. Gibbs, 383

U.S. 715 (1966), a union representative went to the scene

of a violent but otherwise legal strike, took control of the

situation, and stopped the violence. In holding the union

not liable, the Court was persuaded “that the [union] did

what it could to stop or curtail the violence.” Jd. at 739.

We conclude that Ernest’s actions in trying to avert or

end the strike are not union participation rendering the

union liable under sec. 103.54, Stats.

Finally, Sobezyk asserts that the union ratified the il-

legal action by either retaining the benefits of the strike

or not disciplining the members who struck. Neither fac-

tor is persuasive.

For his first proposition, Sobezyk cites Gnat v. West-

chester Fire Ins. Co., 167 Wis. 274, 277, 167 N.W.2d 250,

251 (1918), which states that retaining the benefits of an

unauthorized contract, but repudiating its responsibilities,

C-12

creates ratification of the unauthorized contract and,

hence, liability. The only benefit Sobezyk alleges is that

the teachers got what they wanted: the student was not

returned to class. For his second proposition, Sobezyk

cites Cobb v. Simon, 119 Wis. 597, 606, 97 N.W. 276, 279

(1903), which states that retention of a servant in his em-

ployment after notice to the employer of the servant’s tort

is evidence of ratification. Under MTEA’s constitution and

bylaws, however, there is no provision allowing the union

to discipline members for an illegal strike. Sobezyk has

not shown a material issue of fact regarding the union’s

ability to discipline its members. Nor is he entitled to

judgment as a matter of law.

In Falls Stamping & Welding Co. v. UAW, 744 F.2d

521, 527 (6th Cir. 1984), the court rejected the company’s

argument that by negotiating with the company, the union

was ratifying the strike and seeking to gain a benefit from

the violation of the collective bargaining agreement. See

also United Steelworkers of America v. Lorain, 616 F.2d

919, 922-23 (6th Cir. 1980), cert. denied, 451 U.S. 985 (1981)

(union’s attempts to discuss grievances with employer do

not constitute ratification). Moreover, a union is not required

to impose sanctions on members striking in violation of a

collective bargaining agreement, and the union may meet

with the employer to resolve grievances in order to ex-

pedite a return to work. Falls Stamping & Welding Co.,

744 F.2d at 526; United Steelworkers, 616 F.2d at 923

(union’s failure to discipline strikers, when discipline was

not legally available to it, was not ratification). Thus, the

actions of Ernest and the Pulaski MTEA members do not,

as a matter of law, constitute ratification.

By the Court.—Judgment reversed and cause remanded

with directions to enter a summary judgment dismissing

the complaint on its merits.

Not recommended for publication in the official reports.

D-1

APPENDIX D

(Letterhead Of)

Office of the Clerk

SUPREME COURT

STATE OF WISCONSIN

Hon. Robert W. Landry

Milwaukee County Circuit Court

901 N. 9th St., Rm. 513

Milwaukee, WI 538233

Madison, August 18, 1987

Michael T. Sheedy Dorothy H. Dey

Castellani, Sheedy George W. Greene

& McCormick Prosser, Wiedabach

To: 829 N. Marshall St. & Quale

Milwaukee, WI 53202 310 W. Wisconsin Ave.,

#1000

James C. Reiher Milwaukee, WI 53203

von Breisen &

Purtell, S.C.

411 E. Wisconsin

Ave., #700

Milwaukee, WI 53202

The Court today announced an order in your case as fol-

lows:

No. 86-0532 Sobczyk v. The Aetna Casualty and Surety

Company, et al. T.C.#577324

A petition for review pursuant to sec. 808.10, Stats.,

having been filed on behalf of plaintiff-appellant and cross-

respondent-petitioner Erwin N. Sobezyk, and a petition

for cross-review by de‘endants-respondents and cross-

D-2

appellants-cross petitioners The Aetna Casualty and Sure-

ty Co., and Milwaukee Teachers Education Association,

and an objection to the response which has been treated

as a motion to strike that document, and considered by

the court,

IT IS ORDERED that the motion is denied, with no

costs;

IT IS FURTHER ORDERED that the petitions for

review and cross-review are denied, with no costs.

Heffernan, C.J., and Day, J., did not participate.

Marilyn L. Graves

Clerk of Supreme Court