Wis. Tel. Co. v. Wis. Emp't Relations Bd.

• Citation: 253 Wis. 584,34 N.W.2d 844
• Parties: WISCONSIN TELEPHONE CO. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al.
• Decision Date: 16 November 1948
• Court: United States State Supreme Court of Wisconsin

253 Wis. 584

34 N.W.2d 844

WISCONSIN TELEPHONE CO.

v.WISCONSIN EMPLOYMENT RELATIONS BOARD et al.

Supreme Court of Wisconsin.

Nov. 16, 1948.

Appeal from an order and judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Proceedings commenced in the Circuit Court by a petition of the Wisconsin Telephone Company for the judicial review, under Chapter 227, Stats., of the action of the Wisconsin Employment Relations Board in appointing a conciliator under and pursuant to sec. 111.54, Stats., in an alleged labor dispute between said corporation and some of its employees who are members of the Wisconsin Telephone Clerical Union. The Board and the Union moved (1) that the court dismiss the petition for review upon the grounds that the court has no jurisdiction of the subject of the action and that the petition does not state facts sufficient to constitute a cause of action; or (2) that judgment dismissing the petition be entered upon the pleadings. Upon the court's denial of that motion, a return of the Board's record and proceedings in relation to the appointment of the conciliator was duly made to the court and after a hearing upon the matters stated in the Telephone Company's petition and in the return of the Board, the court entered judgment reversing and setting aside the appointment of the conciliator. The Board appealed from that judgment.Grover L. Broadfoot, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., for appellant.

Miller, Mack & Fairchild, J. Gilbert Hardgrove, and James P. Brody, all of Milwaukee, for respondent.

Edwin R. Hackett, of Chicago, Ill., for Wisconsin Telephone Clerical Union.

FRITZ, Justice.

The principal parties will be referred to herein as follows: The Wisconsin Labor Relations Board as the ‘Board’; the Wisconsin Telephone Company as the ‘Employer’ and the Wisconsin Telephone Clerical Union as the ‘Union.’ Briefly stated, the following facts are material on this appeal.

The Board's action in appointing the conciliator under and for the purposes stated in secs. 111.53, 111.54, Stats., was taken pursuant to the Union's petition filed July 1, 1947, which was signed by its name by its president, but was unverified.

In the petition the Union alleged that the Employer is a public utility, and its general business is ‘telephone communication’ and it has approximately 12,000 employees; that the collective bargaining unit (the Union) involved has approximately 570 non-supervisory employes of the accounting department; ‘* * * The undersigned (union) hereby certifies that collective bargaining in a labor dispute between the above named public utility employer and its employes has reached an impasse and stalemate, with the result that the employer and employes are unable to effect settlement thereof, and that the issues involved in such dispute are as follows: The undersigned request that pursuant to sec. 111.54 of the Wisconsin Statutes, the Wisconsin Employment Relations Board appoint a conciliator, who shall expeditiously meet with the disputing parties and shall exert every reasonable effort to effect a prompt settlement of the above dispute.’

On July 2nd the Board appointed a conciliator by a so-called ‘order,’ by which it reiterated, among other matters--

‘* * * it appearing to the Wisconsin Employment Relations Board * * * that the collective bargaining process has reached a stalemate and that such dispute, if not settled, is likely to cause the interruption of an essential service * * *.’

Thereupon the Employer filed a motion, with an affidavit in support thereof, to dismiss the petition for appointment of a conciliator. A motion to strike the Employer's motion was then filed by the Union, together with a statement of its reasons. Upon receipt of these motions, the Board notified the conciliator to take no further steps until it had held a hearing on the counter-motions of the Employer and the Union. After hearing the arguments of the parties in relation to those motions, the Board, on July 7, 1948, denied the Employer's motion to dismiss the Union's petition and reaffirmed the appointment of the conciliator. In an accompanying memorandum the Board, in response to the Employer's contention that the labor dispute in question could not cause an interruption of essential public service by the employer because the Union employes involved all work in the accounting department and are not employed in operational service, stated:

‘* * * There can be no doubt so far as these parties are concerned an impasse or stalemate in the collective bargaining process, as contemplated in the statutes, has been reached. * * * The principal question submitted to the Board by this motion is whether or not this dispute if not settled is likely to cause the interruption of an essential service. * * * It is, of course, true that no one can say with any assurance that a strike by these employes either would or would not result in the interruption of telephone service in this state. With plant and operating departments both working, telephone service would undoubtedly continue for some period of time. A prolonged strike always carries with it the ominous threat of disorder. Strikers lose patience, wise counsel gives way to irresponsibility. There is frequently an infiltration into the picket lines of communists and others of their ilk bent upon stirring up trouble. Any time that a strike is called and a picket line established, such conditions are likely to arise. If they would as a result of a strike called by these employes, there is likely to be a stoppage of telephone service and thus an interruption of an essential service.’

The proceeding in the Circuit Court for Dane County was commenced by the Employer filing a petition alleging matters upon which it prayed (1) for the review under Chapter 227, Stats., of the Board's determination, on July 7, 1948, denying the Employer's motion to dismiss the Union's petition for the appointment of the conciliator and (2) for the reversal and setting aside of the Board's order making said appointment, with directions to the Board to dismiss the Union's petition for such an appointment. The Employer's principal contention in relation to matters alleged and the relief sought in that petition is that the appointment of a conciliator was invalid because of the Board's failure to take any evidence prior to making the appointment, and because there was no basis, either in the evidence or in facts of which the Board could take official notice, for such an appointment.

The Board moved to dismiss the Employer's petition upon the grounds, principally, that it appears upon the face thereof that the circuit court has no jurisdiction for a judicial review, under Chapter 227, Stats., of the Board's action in appointing a conciliator under sec. 111.54, Stats.

After a hearing in relation to the matter stated in the Employer's petition and in the return thereto by the Board, the trial court denied the Board's motion to dismiss the Employer's petition and entered the order and judgment reversing and setting aside the appointment of the conciliator; and from that order and judgment the Board appealed.

The relief sought by the Employer in the proceeding commenced in the trial court is the statutory relief authorized on a judicial review under Chapter 227, Stats., of such administrative decisions as are within the terms of sec. 227.15, Stats. Consequently if, as the Board contends, its action in appointing a conciliator under sec. 111.54, Stats., is not an ‘administrative decision’ within the definition of that term in sec. 227.15, Stats., the Board's action in that respect is not reviewable under Chapter 227, Stats. In that event the Employer's petition for review should have been dismissed by the trial court. As we stated in United Retail and Wholesale Department Store Employees of America, Local 174, C. I. O., v. Wisconsin Employment Relations Board, 245 Wis. 636, 638, 15 N.W.2d 844, 845, in relation to the judicial review under Chapter 227, Stats., of an order of the Wisconsin Employment Relations Board, ‘* * * ‘the right of review is entirely statutory’ and that ‘the orders of the Board are not reviewable unless made so by the statutes,’ * * *.' When an attempt is made to appeal from a non-appealable order, the circuit court does not have jurisdiction for any purpose, except to dismiss the appeal. Wendt v. Dick, 219 Wis. 230, 262 N.W. 576; Delpo Corporation v. Northern States Power Co., 215 Wis. 329, 330, 254 N.W. 553.

There is no statutory provision which expressly authorizes the judicial review of the Board's action in the appointment of a conciliator under sec. 111.54, Stats. But any intent on the part of the legislature that there may be such a review can be deemed to be impliedly negatived by the fact that although in secs. 111.60 and 111.59, provision is duly made for judicial review on certain grounds of the order by an arbitrator appointed under sec. 111.55, Stats., there is no similar provision in respect to steps by the Board preliminary thereto. When in such statutes, the legislature enumerates grounds of judicial jurisdiction it is considered to imply its intent to withhold jurisdiction in cases which are not enumerated. As the court said in State ex rel. Owen v. Reisen, 164 Wis. 123, 126, 159 N.W. 747, 748:

‘The particular specification of jurisdiction in certain cases excludes the idea that the Legislature intended to confer jurisdiction in other cases.’

However, the Employer contends that although there is no express statutory authorization for review of the Board's appointment of a conciliator under sec. 111.54, Stats., the review sought by the Employer is authorized under the general provisions in sec. 227.15, Stats., that--

‘Administrative decisions, which directly affect the legal rights, duties or privileges of any person, whether affirmative or negative in form, except the decisions...