Dunphy Boat Corp. v. Wisconsin Employment Relations Bd.

• Decision Date: 08 June 1954
• Citation: 64 N.W.2d 866,267 Wis. 316
• Parties: , 34 L.R.R.M. (BNA) 2321, 34 L.R.R.M. (BNA) 2379, 26 Lab.Cas. P 68,482 DUNPHY BOAT CORP. v. WISCONSIN EMPLOYMENT RELATIONS BOARD.
• Court: Wisconsin Supreme Court

Page 866

64 N.W.2d 866

267 Wis. 316, 34 L.R.R.M. (BNA) 2321,

34 L.R.R.M. (BNA) 2379,

26 Lab.Cas. P 68,482

DUNPHY BOAT CORP. v. WISCONSIN EMPLOYMENT RELATIONS BOARD.

Supreme Court of Wisconsin.

June 8, 1954.

Proceedings by the Wisconsin Employment Relations Board (hereinafter referred to as 'W. E. R. B.') against the Dunphy Boat Corporation (hereinafter referred to as 'the employer') under sec. 111.07, Stats., for enforcement of an order requiring the employer to cease and desist from violating its collective bargaining contract with the Upholsterers International Union of North America, A. F. of L., Local 352 (hereinafter referred to as 'the Union'); and a separate proceeding by the employer against W. E. R. B. under sec. 111.07(8) and ch. 227, Stats., to review the same order. By stipulation the two proceedings were consolidated for purposes of argument, hearing and decision.

Written collective bargaining contracts have been in existence between the employer and the Union since December 1, 1948. Such contracts provided in part as follows:

'Section 9.01. The minimum hourly rates of pay for employees shall be the rates of pay as set forth in 'schedule' of wage rates and Incentive Bonus attached hereto and made part of this Agreement and made effective beginning with the date of this Agreement.

'Section 9.02. The minimum hourly rates of pay and the incentive bonus may be opened after six (6) months from the effective date of this Agreement by either party hereto giving the other party sixty (60) days written notice thereof. Should a dead-lock develop in negotiations under this Section, the matter shall be arbitrated as provided in Article XIII--Arbitration Machinery.

'Section 9.03. No employee shall suffer a reduction of wages, provided he shall maintain his work standard as provided for in his job classification.

'Section 11.05. Current practices shall be continued with respect to working conditions and other conditions not covered by the terms of this Agreement, until changed through the grievance procedure or by Agreement by and between the Employer and the Union.

'Section 12.01(d). Any dispute other than any complaint or grievance arising under the terms and provisions of this agreement, stoppage, suspensions or work and any claim, demand or action growing therefrom or involved there shall be taken up for adjustment by and between the duly authorized union representative and the duly authorized company representative without resorting to sections (a) and (b) of the within provision. In the event that said parties cannot adjust the matter, then such matter in dispute shall be submitted to arbitration in accordance with arbitration provisions in this Agreement.'

Article XIII of such contracts provided for arbitration machinery, with the board of arbitration to consist of one representative appointed by the employer, one representative appointed by the Union, and a third representative--designated as the impartial chairman--who shall be selected by the parties to the agreement, with the proviso that if the parties are unable to agree within five days upon the selection of the impartial chairman, then the Director of the U. S. Mediation and Conceiliation Service, or the American Arbitration Association, or the Wisconsin Industrial Commission shall forthwith, upon request by either party, appoint such impartial chairman. Included in this article was the following specific provision:

'Failure to submit a matter in dispute to arbitration and failure to comply with any decision of the Board, shall be deemed violation of this agreement.'

Article XIV set forth a 'no strike and no lockout' clause reading as follows:

'It is mutually agreed and understood that during the period the within Agreement is in force, the Union will not authorize a strike, slow down or stoppage of work in any dispute, complaint or grievance arising under the terms and conditions of this Agreement, which is subject to the arbitration provisions contained in this agreement.'

The 'schedule of wage rates and Incentive Bonus' attached to the contracts referred to in Section 9.01 thereof contained no data by which the incentive bonus due each employee could be computed. The latter part of 1949, the employer, without consulting the Union, changed the method of computing the incentive bonus, which the Union contends resulted to the detriment of the employees. The evidence tends to establish that neither the employees nor the Union became aware of this change until sometime later. The Union then requested the employer to change back to the original method but the employer declined, whereupon the Union demanded arbitration of the dispute. This the employer declined to do.

In consequence of the position taken by the employer, the Union filed a complaint with W. E. R. B. charging an unfair labor practice on the part of the employer and prayed that the employer be required to name an arbitrator and to proceed with the arbitration procedure embodied in Article XIII of the current collective bargaining contract existing between the parties. The employer answered the complaint and thereafter W. E. R. B. held a hearing in the matter at which the parties appeared and presented their testimony and evidence.

Under date of October 8, 1953, W. E. R. B. made and entered findings of fact and conclusions of law, wherein it was determined: (1) that the issue raised by the Union as to the employer's change in the method of computation of the incentive bonus was arbitrable; and (2) that the employer, by its refusal to arbitrate such dispute, violated its collective bargaining agreement and committed an unfair labor practice within the meaning of sec. 111.06(1), Stats.

The order of W. E. R. B. entered thereon, which also bore date of October 8, 1953, ordered the employer to immediately: (1) cease and desist from refusing to name an arbitrator and from refusing to submit the dispute to arbitration; and (2) that it take the affirmative action of naming an arbitrator to meet with the one designated by the Union for the purpose of resolving the dispute, and notify W. E. R. B. within five days of receipt of a copy of the order as to the steps taken by the employer to comply therewith.

The employer failed to comply with such order and the within proceedings above mentioned were then instituted in the circuit court for Winnebago county by both W. E. R. B. and the employer. The trial court by memorandum decision determined that the issue raised by the Union as to computation of the incentive bonus was an arbitrable issue, but that W. E. R. B. was without statutory authority to issue its order requiring the employer to arbitrate the issue. Pursuant thereto, judgment was entered under date of February 17, 1954, denying W. E. R. B.'s petition for enforcement of its order, and setting aside such order.

W. E. R. B. has appealed from such judgment, and the employer has filed a motion to review the determination by W. E. R. B. that the issue as to computation of the incentive bonus is arbitrable.

Vernon W. Thomson, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., for appellant.

Thompson, Gruenewald & McCarthy, Oshkosh, Max Raskin, Milwaukee, amicus curiae for State Industrial Union Council and International Union UAAAIW of America.

STEINLE, Justice.

The principal issue before us in this matter is whether W. E. R. B. has authority under sec. 111.07(4), Stats., to compel an employer, who has violated a provision in a collective bargaining contract requiring it to arbitrate future disputes between it and the Union by refusing to arbitrate a particular dispute, to comply with such provision of the contract and to proceed to arbitrate such dispute.

In order to resolve this issue it is necessary to construe certain portions of the Wisconsin Employment Peace Act, ch. 111, Stats., enacted by our legislature in 1939. Sec. 111.06(1)(f), Stats., makes it an unfair labor practice for an employer 'to violate the terms of a collective bargaining agreement (including an agreement to accept an arbitration award).' Nowhere else in ch. 111 does there appear any express provision excepting from the operation of this clause a provision in a collective bargaining contract providing for the arbitration of future disputes between the parties thereto. Necessarily a provision inserted in a collective bargaining contract requiring the doing of something illegal or against public policy would be implication be void and excluded from the provisions of sec. 111.06(1)(f). However, there is nothing illegal or against public policy in a contract provision requiring the parties to arbitrate a future dispute. At common law such an agreement was not illegal but merely not specifically enforcible. On this point see authorities cited at page 614 of our decision in Local 1111 of United Electrical, Radio and Machine Workers of America v. Allen-Bradley Co., 1951, 259 Wis. 609, 49 N.W.2d 720, at page 723.

The words 'including an agreement to accept an arbitration award', appearing in parentheses in sec. 111.06(1)(f), Stats., do not have reference to a particular clause in a customary collective bargaining agreement but rather to a separate agreement between an employer and a union relating to the arbitration of a present dispute which has arisen between them. By employing such language the legislature apparently wished to make sure that such a separate agreement was embraced within the category of a 'collective bargaining agreement'. The rule of statutory construction, expressio unius est exclusio alterius' has no application here.

We are satisfied that the violation by an employer of a clause in its collective bargaining agreement, which requires it to arbitrate a future dispute which may arise during the term of the contract between it and the Union, does constitute an unfair labor practice within the meaning of sec. 111.06(1)(f), Stats. What are the powers...