Dairy Emp. Independent Union at Blochowiak Dairy v. Wisconsin Employment Relations Bd.

• Decision Date: 07 October 1952
• Citation: 55 N.W.2d 3,262 Wis. 280
• Parties: , 30 L.R.R.M. (BNA) 2735, 22 Lab.Cas. P 67,184 DAIRY EMPLOYEES INDEPENDENT UNION AT BLOCHOWIAK DAIRY, v. WISCONSIN EMPLOYMENT RELATIONS BOARD.
• Court: Wisconsin Supreme Court

Page 3

55 N.W.2d 3

262 Wis. 280, 30 L.R.R.M. (BNA) 2735,

22 Lab.Cas. P 67,184

DAIRY EMPLOYEES INDEPENDENT UNION AT BLOCHOWIAK DAIRY, v. WISCONSIN EMPLOYMENT RELATIONS BOARD.

Supreme Court of Wisconsin.

Oct. 7, 1952.

This appeal involves a review of proceedings had to determine which of two unions should be recognized as the bargaining unit of the driver salesmen and helpers of Blochowiak Dairy Company of Milwaukee. The contending unions are Dairy Employees Independent Union, hereinafter referred to as 'Independent', and Milk and Ice Cream Drivers and Dairy Employees Union, Local 225, A. F. L., hereinafter referred to as 'Local 225.'

The order here involved was made on September 6, 1951 upon the petition of Local 225 by the Wisconsin Employment Relations Board, hereinafter referred to as 'the Board', directing that 'an election * * * be conducted * * * among all driver salesmen and helpers (of the Company), excluding executives, supervisors, inside dairy workers, office employes and garage and maintenance employes * * * for the purposes of determining: (1) whether or not a majority of such employes desire to constitute themselves a separate collective bargaining unit; and (2) whether a majority of such employes desire to be represented for the purposes of collective bargaining * * *' by Local 225, by the Independent, or by neither.

Petition was made by Independent to the Circuit Court for Milwaukee County for a review of the order. On May 26, 1952, that court entered judgment dismissing the petition. Independent appeals.

Sydney M. Eisenberg, Harold Harris, Milwaukee, for appellant.

Vernon W. Thomson, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., Padway, Goldberg & Previant, Saul Cooper, Milwaukee, for respondent.

GEHL, Justice.

In 1947, following an election by the Company's employes the Board certified the Independent as the bargaining unit for all the employes. Prior to the time of the petition of Local 225 here involved and since 1947 there had been other proceedings before the Board to determine differences existing between the two unions, the last of which was instituted on January 23, 1950 upon the petition of Local 225 that the Board direct an election be conducted among the driver salesmen and helpers to determine the same issues as were directed to be determined by the order here involved. The board denied the petition on April 7, 1950. Our conclusion is not necessarily dependent upon what took place before September 6, 1951, except that in connection with one of the contentions made by Independent we should, and may with the consent of the Attorney General, consider the last of the proceedings had before that date.

Independent contends that the action of the Board taken on September 6, 1951, is 'capricious, arbitrary and whimsical' in that it is a reversal of the Board's determination made so recently before, on April 7, 1950. A determination made by an administrative agency is not the exercise of a judicial function; it is an administrative act merely and has not the force of the judgment of a court. Duel v. State Farm Mut. Automobile Ins. Co., 240 Wis. 161, 1 N.W.2d 887, 2 N.W.2d 871. State ex rel. Schleck v. Zoning Board of Appeals, 254 Wis. 42, 35 N.W.2d 312. Its ruling relates only to the facts and conditions presented upon the pending proceeding. It is not bound by its prior determinations, 73 C.J.S., Public Administrative Bodies and Procedure, §§ 146-147, p. 480.

We find no suggestion in any of the authorities which we have examined that the action of an administrative agency should be controlled solely by the fact that there has been a previous determination of the same issue. It should be noted that the last preceding order of the Board to which Independent refers was made eighteen months before entry of that which we have for...