Wisconsin Employment Relations Commission v. Atlantic Richfield Co.

• Decision Date: 25 June 1971
• Docket Number: 294,I,No. 563,Nos. 293,563,s. 293
• Citation: 187 N.W.2d 805,52 Wis.2d 126
• Parties: , 77 L.R.R.M. (BNA) 2750, 66 Lab.Cas. P 52,590 WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent, v. ATLANTIC RICHFIELO CO., successor to Sinclair Refining Co., Appellant, General Drivers & Dairy Employees Union, Localntervening Respondent(two cases).
• Court: Wisconsin Supreme Court

Page 805

187 N.W.2d 805

52 Wis.2d 126, 77 L.R.R.M. (BNA) 2750,

66 Lab.Cas. P 52,590

WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent, v. ATLANTIC RICHFIELO CO., successor to Sinclair Refining Co., Appellant General Drivers & Dairy Employees Union, Local No. 563 Intervening Respondent(two cases).

Nos. 293, 294.

Supreme Court of Wisconsin.

June 25, 1971.

The plaintiff-appellant, Atlantic Richfield Company, successor to Sinclair Refining Company, operates a bulk plant in Appleton. The intervening respondent, General Drivers & Dairy Employees Union, Local No. 563, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a voluntary, unincorporated association that had been certified by the National Labor Relations Board (NLRB) as the exclusive bargaining representative of certain employees at the plant.

Collective bargaining argeements have been in effect in the past between the appellant and intervening respondent. The most recent of such agreements expired on October 31, 1967. The intervening respondent then demanded bargaining as to a new agreement. The appellant refused. At the time of the refusal there remained but one employee in the bargaining unit that had been certified by the NLRB.

On May 2, 1968, the intervening respondent filed an unfair labor practice complaint with the NLRB against the appellant. On June 6, 1968, the NLRB dismissed the complaint.

Also on May 2, 1968, the intervening respondent filed an unfair labor practice complaint with the respondent, Wisconsin Employment Relations Commission (WERC). On February 12, 1969, an examiner for the WERC issued findings of fact, conclusions of law and order, together with an accompanying memorandum. On March 19, 1969, the WERC affirmed the examiner's order, requiring the appellant to bargain collectively with the union as the exclusive representative of the sole employee in the appropriate bargaining unit. Also, on March 19, 1969, the WERC dismissed appellant's petition for review holding that it had not been filed within the 20-day period prescribed by sec. 111.07(5), Stats., specifically noting that it had not seen fit to exercise its authority to set aside, modify or change the ruling of its examiner as permitted by sec. 111.07(6), Stats.

On May 7, 1969, the respondent commenced an action by filing a petition for enforcement of its decision and order with the circuit court for Dane county. On May 23, 1969, the appellant filed a petition for removal of the action to the United States district court. On May 29, 1969, the intervening respondent filed a motion to intervene. On September 24, 1969, the United States district court granted the motion to intervene and remanded the matter to the circuit court for Dane county.

On July 1, 1970, in a memorandum decision, Circuit Judge William C. Sachtjen affirmed the WERC decision and order, holding on the 'basic issue' of jurisdiction that state jurisdiction to order collective bargaining as to one-man bargaining units of employees engaged in interstate commerce was not preempted by the National Labor Relations Act (NLRA). On July 20, 1970, judgment was entered. From that judgment this appeal is taken.

Lamfrom, Peck & Brigden, Milwaukee, Egon W. Peck and James F. Honzik, Milwaukee, of counsel, for appellant.

Robert W. Warren, Atty. Gen., William H. Wilker, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Goldberg, Previant & Uelmen, Milwaukee, Gerry M. Miller, Milwaukee, of counsel, for intervening respondent.

ROBERT W. HANSEN, Justice.

Does the doctrine of federal preemption preclude the WERC from acting as it did in this case?

Answering requires initially asking and answering another question: Does the NLRB have jurisdiction to certify a representative for bargaining purposes in a unit consisting of only one employee? If it does, the field is federally preempted even though, as a matter of policy, the national board chose not to intervene in one-man bargaining unit situations.

Appellant argues that the NLRB's consistent rejection of one-man bargaining units is a matter of board policy, subject to change, and not a matter of a lack of jurisdiction. Appellant relies upon references in NLRB decisions (refusing to certify a representative for bargaining purposes in a unit consisting of one only employee) to 'contrary to the settled policy of the Board,' ¹ to 'no longer appropriate,' ² to 'will not take jurisdiction,' ³ to 'would not,' ⁴ and to '(not) inherently inappropriate under Section 9(a) of the Act.' ⁵

Respondents contend that NLRB dicisions and federal court rulings clearly establish that the NLRB is without jurisdiction to certify where only one employee is involved. In the first NLRB case involving one-man bargaining units, the board stated: '* * * The Act therefore does not empower the Board to certify where only one employee is involved. * * *' ⁶ Cases subsequently refusing to certify one-man units refer to or cite Luckenbach without altering or reversing its clear statement that the board holds it is without jurisdiction to certify a bargaining representative for a one-employee unit.

In rejecting the union's request to compel the appellant to bargain with a one-man unit and in dismissing the union's complaint to the NLRB in this case, the board's regional director cited the NLRB's holding:

'The Board has held that it will not certify a one-man unit because the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain. The Act therefore does not empower the Board to certify a one-man unit. * * *' ⁷

What might appear to be inconsistent references to lack of jurisdiction and board policy is made clear, we would hold, in the NLRB decision, citing Luckenbach, holding that the national board '* * * has long held that it is without power to certify a lobor organization as the representative of but one employee and has followed the policy of not directing elections in one-man units. * * *' ⁸ (Emphasis supplied.) That case, referring as it does both to lack of jurisdiction and to board policy, makes it clear that the policy involved is based upon and a result of the board being without jurisdiction to entertain certification of a one-man unit. If it can be described as a 'policy' at all, it is a policy to which there is no alternative in view of the lack of jurisdiction in the one-man unit area.

The fifth circuit court of appeals followed Luckenbach and held that the NLRB was not empowered to certify one-man bargaining units, saying:

'* * * It is fundamental that 'the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain. The Act therefore does not empower the Board to certify where only one employee is involved.' (citing Luckenbach) * * * Where occasional employees are excluded from the unit leaving only one employee, the unit is inappropriate and cannot be certified. * * * ' ⁹

The board examiner considered a United States Supreme Court decision, the Hanna Mining Co. Case, ¹⁰ to be determinative of the national board's lack of jurisdiction as to one-man units. We do not find it controlling, but do find its reasoning persuasive. There the nation's highest tribunal held that the Wisconsin state courts did have jurisdiction in an action by an interstate commerce employer for an injunction to restrain a union from picketing the employer's vessels. The picketing was alleged to be an effort to force employees found by the NLRB to be supervisors to be represented by the union. The NLRB had declined to overrule a regional director ruling that, since the personnel involved were supervisors, not covered by the NLRA, the petition of the union for a representation election had to be dismissed. Piercing the reference to a unit as being 'inappropriate,' the United States Supreme Court held that a unit inappropriate by definition established a lack of board jurisdiction. There the supervisors were excluded from the NLRA by statutory exclusion. Here, as to one-man units, as there, as to supervisors, it is the definition given the term 'collective bargaining' that establishes the exclusion from NLRB jurisdiction. An exclusion based on interpretation and inference is not as clear as one statutorily provided, but we agree with the WERC examiner that '* * * there is no indication that there is less integrity in conclusions so based. * * * w-elenntOeee t Hanna, the unit is inappropriate by definition, and hence there is a lack of NLRB jurisdiction.

However, more must be established than lack of NLRB jurisdiction to establish the basis for assertions by state labor agencies for collective bargaining purposes as to employers otherwise subject to the NLRA. To aid in resolving problems it termed of a Delphic nature, ¹¹ the United States Supreme Court has laid down guide-lines as to when state labor law is preempted by federal law, holding:

'* * * When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.' ¹²

So, as the United States Supreme Court pointed out in the Hanna Case:

'The ground rules for preemption in labor law, emerging from our Garmon decision, should first be briefly Summarized: in general, a State may not regulate conduct arguably 'protected by § 7, or prohibited by § 8' of the National Labor Relations Act, * * * and the legislative purpose may further dictate that certain activity 'neither protected nor prohibited' be deemed privileged against state regulation * * *.' ¹³

However, in the instant case, having found the NLRB to be by its own rulings without jurisdiction as to one-man units, the remaining question as to whether the activity involved is protected, prohibited or contrary to the legislative purpose of...