United Retail & Wholesale Dep't Store Emps. of Am. v. Wis. Employment Relations Bd.

• Decision Date: 10 October 1944
• Citation: 15 N.W.2d 844,245 Wis. 636
• Parties: UNITED RETAIL AND WHOLESALE DEPARTMENT STORE EMPLOYEES OF AMERICA, LOCAL 174, C. I. O., v. WISCONSIN EMPLOYMENT RELATIONS BOARD.
• Court: Wisconsin Supreme Court

245 Wis. 636

15 N.W.2d 844

UNITED RETAIL AND WHOLESALE DEPARTMENT STORE EMPLOYEES OF AMERICA, LOCAL 174, C. I. O.,

v.WISCONSIN EMPLOYMENT RELATIONS BOARD.

Supreme Court of Wisconsin.

Oct. 10, 1944.

Appeal from an order of the Circuit Court for Milwaukee County; John C. Kleczka, Judge.

Reversed.

Petition filed in the circuit court by the United Retail and Wholesale Department Store Employees of America, Local 174, C. I. O., for the review of an order made by the Wisconsin Employment Relations Board. The latter filed a demurrer to the petition on the ground that it appears upon the face thereof that the court has no jurisdiction of the subject matter of the proceeding. The court overruled the demurrer, and from the order to that effect the Board appealed.

John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., for appellant.

A. W. Richter, of Milwaukee, for respondent.

FRITZ, Justice.

The order, which the United Retail and Wholesale Department Store Employees of America, Local 174, C. I. O. (hereinafter called the ‘Union’), petitioned the circuit court to review, was made by the Wisconsin Labor Relations Board (hereinafter called the ‘Board’) after a hearing pursuant to a petition filed by A. Goldman & Sons, as an employer. In that petition the employer requested that a referendum by secret ballot of its employees be conducted by the Board, pursuant to sec. 111.06(1)(c), Stats., for the purpose of determining whether or not the required number of the petitioner's employees desire an ‘all-union agreement’ between the employer and the Union; and that the Board certify the result of such referendum. The Board's order provided that a referendum be conducted for said purpose under the Board's direction. In support of the Board's demurrer on the ground that it appears upon the face of the Union's petition that the court has no jurisdiction to review the order in question, the Board contends that its order, directing merely the conduct of the referendum, is not reviewable in court because there is no statutory provision authorizing such a review. And as the Union admits in its brief that ‘the right of review is entirely statutory’, and that ‘the orders of the Board are not reviewable unless made so by the statutes', it suffices on this appeal to determine solely the question as to whether there is any statute authorizing the court review sought by the Union in this action.

The Union contends that such a review of the order in question is authorized by the provisions in sec. 111.07, Stats. (so far as pertinent here), that, ‘(1) Any controversy concerning unfair labor practices may be submitted to the board in the manner and with the effect provided in this chapter, * * *’; and that, ‘(8) (as amended by Ch. 375, L. 1943-see margin¹) The order of the board shall also be subject to review in the manner provided in chapter 227, except that the place of review shall be the circuit court of the county in which the appellant or any party resides or transacts business.’

Those provisions the Union claims are made applicable and authorize the court review sought by reason of (A) the provision in the seventh sentence in subd. (c) of sec. 111.06(1), Stats., which reads, ‘Any person interested may come before the board as provided in section 111.07 and ask the performance of this duty’; and (B) the provision in the first sentence in subd. (c) which reads, ‘* * * provided, that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employes in a collective bargaining unit, where at least three-quarters of such employes voting (provided such three-quarters of the employes also constitute at least a majority of the employes in such collective bargaining unit) shall have voted affirmatively by secret ballot in favor of such all-union agreement in a referendum conducted by the board.’ The Union contends that because in this provision in that first sentence there is the statement in relation to ‘a referendum conducted by the board’, and because in the seventh sentence in the same subd. (c) there is the provision that ‘any person interested may come before the board as provided in section 111.07 and ask the performance of this duty’, it was the legislative intent that questions raised under sec. 111.06(1)(c),-including questions in relation to such a referendum,-should be handled as controverted matters under sec. 111.07; and that, therefore, under subsec. (8) of sec. 111.07, Stats., a court review of the Board's order for a referendum is authorized.

Those contentions cannot be sustained. The fact that in the first sentence in sec. 111.06(1)(c), Stats., there is the statement in relation to ‘a referendum conducted by the board’ does not render the Board's order for a referendum subject to such proceedings and review as are authorized under the provision in the seventh sentence in sec. 111.06(1)(c), Stats., that ‘Any person interested may come before the board as provided in section 111.07 and ask the performance of this duty.’ By reason of the use of the demonstrative term ‘this duty’, in that provision in the seventh sentence, and by reason of the context of that provision and the provision in the immediately preceding, sixth sentence, in sec. 111.06(1)(c), which reads: ‘The board shall declare any such all-union agreement terminated whenever it finds that the labor organization involved has unreasonably refused to...