Layton School of Art and Design v. Wisconsin Employment Relations Commission
| Decision Date | 07 February 1978 |
| Docket Number | No. 75-755,R,AFL-CI,75-755 |
| Citation | 262 N.W.2d 218,82 Wis.2d 324 |
| Parties | , 97 L.R.R.M. (BNA) 2784, 84 Lab.Cas. P 55,148 LAYTON SCHOOL OF ART & DESIGN and Neil Lieberman, Petitioners-Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent, Wisconsin Federation of Teachers, Local 2149, WFT, AFT,oland Poska, Guido Brink, Frank Lukasavitz, Tom Hall, Jack White, Paul Nelson, Joshua Nadel and Murray Weiss, Intervenors. |
| Court | Wisconsin Supreme Court |
L. C. Hammond, Jr., Milwaukee (argued), for appellants; George K. Whyte, Jr., Ronald E. Klipsch and Quarles & Brady, Milwaukee, on the brief.
David C. Rice, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.
John S. Williamson, Jr., Milwaukee (argued), for intervenors; Goldberg, Previant & Uelmen, S. C., Milwaukee, on the brief.
Layton School of Art & Design was an employer operating an institution of higher education. Neil Lieberman was president of the school. The underlying facts giving rise to the appeal before us occurred in February, 1973, when Lieberman dismissed seven teachers for incompetence.
The union to which the discharged teachers belonged disputed the legality of the terminations. When the school and union were unable to resolve their differences, they submitted the dispute to arbitration pursuant to their collective bargaining agreement. The issue before the arbitrator was whether the discharges were for incompetence or for another reason or reasons. The arbitrator held a hearing at which both Layton School and the union presented witnesses and documentary evidence. Lieberman testified that one of the bases upon which he determined that the teachers were incompetent was his visits to their classrooms. The arbitrator found that the discharges were not based on incompetence and ordered the teachers reinstated.
In October of 1973, the union filed a complaint with the Wisconsin Employment Relations Commission(WERC) alleging the commission of numerous unfair labor practices including an allegation that Lieberman had committed perjury in his testimony during the arbitration hearing about classroom visitations.
The WERC held hearings on the charges of unfair labor practices over three days in April of 1974. Layton School, Lieberman and their attorneys did not participate actively in the hearings because the school was about to cease operating. Lieberman did not testify before the WERC.
The WERC found that the school and Lieberman had committed various unfair labor practices, including Lieberman's commission of perjury. Lieberman sought review by the circuit court of that portion of the WERC's findings, conclusions 1 and order relating to his commission of the crime of perjury. 2 The trial court affirmed the findings, conclusions, and order of the WERC. The order of affirmance was appealed, and we affirm.
The questions for this court are as follows:
1. Does sec. 111.06(1)(l ), Stats., which makes it an unfair labor practice "to commit any crime or misdemeanor in connection with any controversy as to labor relations" authorize the WERC to determine whether conduct in violation of the criminal law has occurred or only whether the crime of which one was convicted in a judicial proceeding occurred in connection with a controversy as to employment relations?
2. Was the arbitrator "authorized by statute to determine issues of fact"? Only if he were could Lieberman's testimony constitute perjury within the meaning of Sec. 946.31(1)(d), Stats.
3. Does the statute enabling the WERC to determine whether conduct violates the criminal law constitute an unconstitutional delegation of the judicial function and a violation of due process of law?
The challenged statutory section provides that "it shall be an unfair labor practice for an employer . . . to commit any crime or misdemeanor in connection with any controversy as to employment relations." Sec. 111.06(1)(l ), Stats. 3 Lieberman argues that one cannot be said to have "committed" a crime unless one is convicted of the crime and that therefore the statute authorizes the WERC to determine only (1) whether a party to a labor dispute has been convicted of a crime by a court of competent jurisdiction; and (2) whether the crime of which the party was convicted occurred in the context of an employment relations dispute. Although Lieberman's interpretation is plausible, we do not believe it is correct. 4 Neither in the context of sec. 111.06(1)(l ) nor in the broader context of the criminal code have the words "commission" and "conviction" been read as synonymous.
Crime is defined in sec. 939.12, Stats., as "conduct which is prohibited by state law and punishable by fine or imprisonment or both." 5 One commits a crime, therefore, by engaging in conduct which is potentially punishable by fine or imprisonment. Only upon conviction can that potentiality be realized. Section 939.73, Stats., provides that "(a) penalty for the commission of a crime may be imposed only after the actor has been duly convicted in a court of competent jurisdiction." (Emphasis added.) Because "commission" and "conviction" are not synonymous, sec. 111.06(1)(l ) need not be construed to require that a conviction be established before the WERC can determine that an employer has committed an unfair labor practice.
We believe that by using the words "to commit any crime or misdemeanor," the legislature incorporated by reference statutory descriptions of conduct which constitute unfair labor practices if committed in the course of a labor relations controversy. The effect of a statutory reference is the same as if the terms of the incorporated statutes had been explicitly written into sec. 111.06, Stats. 6 By using this technique, the legislature avoided the lengthy task of restating the elements of conduct which it wished to label an unfair labor practice when it occurred in the context of employment relations. 7 Thus with the use of six words it incorporated a multitude of descriptions of undesirable conduct. 8 Changes in the criminal code are automatically incorporated as they occur. 9 The elements specified in a criminal statute are significant in this context only as requisites of an unfair labor practice. Their source Panama R.R. Co. v. Johnson, 264 U.S. 375, 389, 44 S.Ct. 391, 394, 68 L.Ed. 748 (1924). Thus, in the case at bar, sec. 111.06(1)(l ) should be read as if the legislature had said the following:
It shall be an unfair labor practice for an employer individually or in concert with others and in connection with any controversy as to employment relations orally to make under oath or affirmation a false material statement which he does not believe to be true in any matter, cause or action or proceeding before an arbitrator authorized by statute to determine issues of fact.
This interpretation of the phrase "to commit any crime or misdemeanor" is consistent with the interpretation that phrase has been given by the WERC, as well as by labor and management, 10 since sec. 111.06(1)(l ) was enacted. The WERC has on numerous occasions determined that a party who has not been convicted of a crime has nonetheless committed a "crime or misdemeanor in connection with (a) controversy as to employment relations" and therefore has committed an unfair labor practice. 11
The WERC's interpretation of the statute is contemporaneous with the enactment of the statute and has been consistent over time. 12 Long-standing administrative construction of a statute is accorded great weight in the determination of legislative intent because the legislature is presumed to have acquiesced in that construction if it has not amended the statute. 13
We believe this interpretation of the statute is consistent with its purpose. The legislature intended to provide a convenient and expeditious tribunal to adjudicate the rights and obligations of parties to a labor dispute. Sec. 111.01(4), Stats. We do not believe the legislature intended the WERC to be dependent on criminal law enforcement agencies in the exercise of its powers. Expeditious resolution of labor disputes might require the WERC to act before a criminal conviction could be obtained, 14 or to act notwithstanding the fact that the district attorney has exercised his discretion not to press criminal charges and impose criminal penalties on admittedly criminal conduct. 15 Sec. 111.06 is not a substitute for any of the substantive or procedural provisions relating to a criminal proceeding. 16 It is an independent proceeding. The WERC's ability to determine conduct which constitutes an unfair labor practice (and which is also subject to criminal prosecution) is incidental and reasonably necessary to furthering state labor policy.
For the reasons set forth above, we conclude the legislature intended the WERC to be able to determine whether particular conduct (which is described in the statutes as a crime) has occurred in connection with an employment relations controversy. The legislature did not intend the WERC merely to determine whether an adjudication of criminal guilt has been made by a court.
Sec. 946.31, Stats., describes the crime of perjury as follows: "(1) Whoever under oath or affirmation orally makes a false material statement which he does not believe to be true, in any matter, cause, action or proceeding, before any of the following, whether de jure or de facto, . . .
". . .
"(d) An administrative agency or arbitrator authorized by statute to determine issues of fact . . . ." Sec. 946.31(1)(d), Stats. 17
The question before this court is whether the arbitrator in the instant case was an "arbitrator authorized by statute to determine issues of fact." 18
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