Local 1111 of United Elec., Radio and Mach. Workers of America v. Allen-Bradley Co., ALLEN-BRADLEY

• Decision Date: 06 November 1951
• Docket Number: ALLEN-BRADLEY
• Citation: 259 Wis. 609,49 N.W.2d 720
• Parties: , 20 Lab.Cas. P 66,617 LOCAL 1111 OF UNITED ELECTRICAL, RADIO AND MACHINE WORKERS, OF AMERICA et al. v.CO.
• Court: Wisconsin Supreme Court

Page 720

49 N.W.2d 720

259 Wis. 609, 20 Lab.Cas. P 66,617

LOCAL 1111 OF UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA et al. v. ALLEN-BRADLEY CO.

Supreme Court of Wisconsin.

Nov. 6, 1951.

Daniel D. Sobel, Milwaukee, for Local 1111 of United Electrical, Radio and Machine Workers of America et al.

Lines, Spooner & Quarles, Milwaukee (John G. Kamps and Robert L. Mann, Milwaukee, of counsel), for Allen-Bradley Co.

FRITZ, Chief Justice.

The plaintiff, Rose Giaimo, was an employee of the Allen-Bradley Company (hereinafter called 'Employer'). Local 1111 (hereinafter called 'Union') is a labor union which on June 22, 1948, entered into a Collective Bargaining Agreement with the Employer, wherein the Union was recognized as the exclusive Bargaining Agent for all of the Employer's production and maintenance employees. Said agreement provided for the settlement of 'grievances', leaves of absence etc. and it had the following provision: 'In cases where it is necessary for employees with seniority to be absent for more than two weeks on account of sickness, they will be granted a leave of absence at their request, when substantiated by a doctor's certificate of necessity, and such leave will be extended at the end of each three month period under the same provisions. In confinement cases the leave of absence shall be limited to six (6) months after birth. Full seniority credit shall be given for sick leave.'

Plaintiffs alleged in their complaint that under and pursuant to the Bargaining Agreement, Rose Giaimo applied for and was granted a leave of absence on account of illness; and following her illness she applied for re-employment but the Employer refused to grant such re-employment; that a grievance under the terms of said Collective Bargaining Agreement was processed by the Union and the Employer, concerning Rose Giaimo, but the Employer refused to reinstate her. The parties were unable to settle said grievance satisfactorily, whereupon the Union invoked the arbitration provision in Paragraph 42 of said Agreement. In answer to the complaint the Employer alleged matters of defense because of which it denied that Rose Giaimo was entitled to be reinstated as an employee, and alleged that the court had no jurisdiction to grant the prayer of the plaintiffs' complaint or to order defendant to arbitrate the controversy existing between the parties to the action.

After a trial of issues under the pleadings Judge Breidenbach stated in a written decision:

'The parties before the commencement of the trial entered into an oral stipulation setting forth the facts as follows:

"Plaintiff, employee, Rose Giaimo, was employed by the defendant in December, 1943, as a production employee and as included by the bargaining unit represented by the plaintiff Union; she continued in her employment until May of 1946, when she applied to her employer, the defendant herein, for leave of absence on account of illness and submitted in connection with her application for such leave, a doctor's certificate of the necessity therefor. The leave was granted to her by the employer. The employee was admitted to the Hospital for Mental Diseases in Milwaukee county. On September 25, 1946, the employer defendant sent a letter addressed to Rose Giaimo to her home, which requested in effect that Rose Giaimo advise the employer as to her health status. That letter, although not received by Rose Giaimo herself was actually received by members of her family and in response to that letter, the employer received two communications, the first dated, October 7, 1946, from a doctor stating in effect that Rose Giaimo was under his care and would remain so for a period of about ninety days; the second letter received by the employer defendant is dated December 26, 1946, which second letter was sent by the Hospital for Mental Diseases advising the employer that Rose Giaimo was a patient at that hospital and she would remain there indefinitely. Following the receipt by the employer of the letter from the Hospital for Mental Diseases, no further doctor's certificates were received by the employer.

"On April 25, 1947, defendant employer sent a letter to the plaintiff Union advising, among other things, that the employee Rose Giaimo had 'quit.'

"On October 1, 1948, plaintiff employee, Rose Giaimo, appeared at the plant of the defendant Employer, and requested her job back. She was advised at that time by the personnel department that no work was available for her at that time. Upon hearing this, Rose Giaimo informed the plaintiff Union of the action taken by the defendant. Whereupon the Union filed a grievance with the employer. The grievance was discussed between the plaintiff Union and the employer on several occasions with the top bosses of the respective parties. It appeared to the plaintiff Union that no adjustment could be made of the grievance to this employee; when it appeared to the Union that no amicable adjustment could be reached between the parties, the Union, by written communication, invoked arbitration in this matter. Whereupon, the defendant Employer by written communication to the Union advised, in effect, that in its judgment this was not a grievance, that it would not agree to arbitrate the matter relating to Rose Giaimo and it would refuse to participate in any arbitration relating to her and her job.

"Whereupon the Union commenced the instant declaratory judgment proceeding."

Judge Breidenbach then stated:

'It appears, therefore, that Rose Giaimo, was confined to the Hospital for Mental Diseases during the period of her leave of absence and was therefore unable to comply with the provisions with respect to furnishing doctor's certificates of necessity during the period of such confinement and that under all of the facts and circumstances disclosed by the stipulation and the testimony taken upon the trial the question of the right of Rose Giaimo for re-employment presented a 'grievance' within the intent and contemplation of the bargaining agreement and that, therefore, the plaintiffs were entitled to have such question and grievance submitted for arbitration pursuant to provisions of Paragraph 22 of the bargaining agreement; and plaintiffs are entitled to judgment declaring the contract in full force and effect; and that it was the intent of the contract that under the facts disclosed that the grievance herein should be submitted to arbitration * * *.

'The prayer of plaintiffs' complaint demands judgment (2) 'for an order of this court requiring the defendant company to arbitrate the grievance concerning the employee, Rose Giaimo, under the provisions of said Collective Bargaining Agreement; (3) for an order of this court restraining and enjoining the defendant company from further violating the terms and provisions of the said Agreement.'

'Section 298.01, Stats., relating to arbitration provides: 'A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract; provided, however, that the provisions of this chapter shall not apply to contracts between employers and employes, or between employers and associations of employes, except as provided in section 111.10 of the statutes.''

Judge Breidenbach also stated:

'Thus it appears that the provisions for specific enforcement of arbitration of future disputes does not apply to contracts between employers and employes. We must, therefore, look to common law to determine whether or not such contracts are enforceable.

'Plaintiffs in support of their contention rely upon Hopkins v. Gilman, 22 Wis. 476; Schneider v. Reed, 123 Wis. 488, 101 N.W. 682; Kipp v. Laum [Laun], 146 Wis. 591, 131 N.W. 418; Depies-Heus Oil Co. v. Sielaff, 246 Wis. 36, 16 N.W.2d 386. These cases are distinguishable upon the ground that they involved the principle of appraisement and not of arbitration, and therefore are not applicable to the situation here presented. 'The distinction between appraisal and arbitration is of great importance, as appraisals are subject at common law to rules in many respects different from those applied to arbitration, and the modern arbitration statutes are held not to apply to appraisals.' Williston on Contracts, Sec. 1921.

'In Utility Workers Union of America v. Ohio Power Co., Ohio Com.Pl., 77 N.E.2d 629, in construing a statute similar to the Wisconsin statute, the Court said:

"In the absence of a statute requiring the specific performance of a contract...