Opinion
No. 252.
Submitted January 2, 1973. —
Decided January 30, 1973.
APPEAL from a judgment of the circuit court for Waukesha county: CLAIR VOSS, Circuit Judge. Appeal dismissed.
For the appellant the cause was submitted on the brief of Willis J. Zick, corporation counsel.
For the respondent the cause was submitted on the brief of Goldberg, Previant Uelmen of Milwaukee.
Facts.
The plaintiff-respondent, Teamsters Union Local No. 695, is a labor organization certified, pursuant to sec. 111.70(4) (j), Stats. 1969, as the exclusive collective-bargaining representative of all law enforcement personnel employed in the sheriff's department of the defendant-appellant, county of Waukesha.
The appellant and respondent entered into a collective-bargaining agreement, which became effective January 1, 1971, covering all law enforcement personnel who have the power to make arrests but specifically excluding the elected sheriff, captain, lieutenants and the administrative assistant of the Waukesha county sheriff's department. Under the terms of this agreement, all unresolved grievances arising under the agreement were to be submitted to final and binding arbitration by a board of arbitration.
On December 29, 1970, the Waukesha county board adopted resolution 103, creating four new positions: Four civilian radio dispatchers in the sheriff's department. Previously, this work had been done or these positions filled by deputy sheriffs, covered under the bargaining agreement.
On March 4, 1971, the respondent union filed a grievance, claiming that the creation or change in these four positions constituted a violation of the bargaining agreement. The formal statement of grievance, amended on March 10, 1971, alleged that the transfer of dispatching work violated the following provisions of the bargaining agreement: (1) Art. I, sec. II, providing that the county is to recognize the union as the exclusive bargaining representative of the covered employees; (2) art. V, sec. III, regarding seniority and tours of duty; (3) art. VI, containing wage provisions; and (4) art. I, sec. III, relating to existing practices being followed. The statement of grievance requested that the work of dispatching be reassigned to deputies within the department.
Pursuant to art. III of the bargaining agreement the first four steps of a specified procedure for handling and settling grievances were followed. The grievance was not settled. Therefore, pursuant to art. III, the union demanded that the fifth step for the settling of grievances, as set forth in the agreement, be followed. The fifth step would be the submission of the grievance to arbitration. The demand that the grievance be submitted to arbitration was refused by the county.
On May 10, 1971, the respondent union commenced the present action against the county. The complaint, among other things, sought a declaration of respondent's right under the contract to have the grievance submitted to arbitration and an order for specific performance compelling the county to submit the grievance to arbitration. The appellant county answered, alleging that the grievance was not referable to arbitration as provided in art. III of the agreement. The union and the county moved for summary judgment.
On October 8, 1971, the circuit court entered judgment, directing that the grievance involved be submitted to arbitration. On November 23, 1971, the county filed a notice of appeal to this court. On December 15, 1972, the parties filed a stipulation waiving oral argument on the appeal.
A number of issues are raised or present themselves on this appeal. However, the threshold that must be crossed to reach any of them is the question of appealability. If the order or judgment of the trial court directing the parties to proceed to arbitration is not appealable, this court is without jurisdiction to do more than to dismiss the appeal. While not raised or argued on this appeal, this basic question of appealability must be initially resolved as it goes to the jurisdiction of this court to hear the appeal at all.
See: Estate of Hillery (1970), 46 Wis.2d 689, 696, 176 N.W.2d 376, holding, "Since the order here appealed from is nonappealable, this court has no jurisdiction to entertain the appeal . . . ." See also: Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 333, 88 N.W.2d 672; Estate of Stoeber (1967), 36 Wis.2d 448, 451, 153 N.W.2d 599.
"`It is the duty of this court, notwithstanding no issue has been raised by counsel, to take notice of a point which goes to the jurisdiction of this court on appeal and to dismiss the appeal on its own motion, if the order of the trial court is not an appealable order.'" Dombrowski v. Tomasino (1964), 24 Wis.2d 16, 18, 127 N.W.2d 786, quoting Yaeger v. Fenske (1962), 15 Wis.2d 572, 573, 113 N.W.2d 411.
This is not a situation where we deal with a resort to arbitration in an effort to resolve a labor dispute as to wages, hours or working conditions. Such a situation involves the use of arbitration to reach an agreement as to the terms of a collective-bargaining agreement not yet agreed to. Rather, this is a resort to arbitration to settle a grievance arising under a collective-bargaining agreement previously entered into and binding upon the parties thereto. This court has held: ". . . The legislature has passed statutes doubtless of statewide concern, which provide that the city's agreement to arbitrate grievances is binding on the city." The statement, made in regard to the city there involved, applies similarly to the county in the present case.
Local 1226 v. Rhinelander (1967), 35 Wis.2d 209, 220, 151 N.W.2d 30.
However, to have thus held that an ". . . arbitration clause contained in the collective-bargaining agreement is binding upon the city [here county] and is specifically enforceable in the courts . . . ," does not exactly answer whether a trial court order directing a city or county to submit a grievance to arbitration, as a bargaining agreement provides, is appealable to this court.
Id. at page 220.
Whether the trial court order compelling submission of the grievance to arbitration is appealable ". . . depends primarily on the language of the statute of the particular jurisdiction, if any, defining appealability or listing or describing the kinds of orders which are or are not appealable. . . ."
Annot. (1964), 94 A.L.R.2d, Arbitration — Appealability of Order, p. 1078, sec. 4.
In ch. 298 of our statutes dealing with arbitration, sec. 298.15, Appeal from order or judgment, provides:
"An appeal may be taken from an order confirming, modifying, correcting or vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action."
An order or judgment that does no more than direct the parties to proceed with arbitration of a grievance, as provided in a collective-bargaining agreement between them, does not fall within the type of order or judgment listed. The order here did not confirm, modify, correct or vacate an arbitration award. Nor could it be a judgment entered upon an award, for no award had been made. The items listed are those that are made statutorily appealable. Under the general rule of statutory construction, expressio unius est exclusio alterius, it follows that the order compelling submission of the dispute to arbitration is not appealable.
"Under the general rule of express mention and implied exclusion, the express mention of one matter excludes other similar matters not mentioned; . . ." 82 C.J.S. Statutes, p. 668, sec. 333. See also: 50 Am. Jur., Statutes, p. 238, sec. 244.
Since it is the language of the precise statute involved that controls, we do not analyze or summarize decisions on the point involved in other jurisdictions. However, we note that one such other jurisdiction, California, had this matter before it under a statute identical to our sec. 298.15, Stats. On its own motion the California court held that an order directing arbitration under a collective-bargaining agreement to be nonappealable. In an earlier case, the California court spelled out the rationale of its statutory construction:
See: Annot. (1964), 94 A.L.R.2d, Appealability of order or decree compelling or refusing to compel arbitration, at page 1071.
Sec. 1293 of the California Code of Civil Procedure at the time of the Corbett Case, provided an appeal allowed from "an order confirming, modifying, correcting or vacating an award, or from a judgment upon an award, as from an order or judgment in an action."
Corbett v. Petroleum Maintenance Co. (1953), 119 Cal.App.2d 21, 22, 258 P.2d 1077, the court stating: "Although no question has been raised as to the appealability of the order directing arbitration, we are of the opinion that we have no jurisdiction of the purported appeal." The court cited Sjoberg v. Hastorf (1948), 33 Cal.2d 116, 199 P.2d 668, as holding "that an order staying proceedings in an action and directing arbitration was not a judgment from which an appeal would lie . . . where the order did not direct the payment of money or the performance of any act by or against the complaining party."
". . . the fact that the legislature saw fit to specify in one code section the different orders and judgment from which appeals may be taken clearly indicates, in our opinion, an intention to restrict the appeals in such proceeding to the orders and judgment therein specified and the obvious reason for not including among such appealable orders the one which directs the parties to proceed with the arbitration was that if at the very threshold of the proceeding the defaulting party could appeal and thereby indefinitely delay the matter of arbitration, the object of the law and the purpose of the written agreement of the parties would be entirely defeated." (Emphasis supplied.)
Jardine-Matheson Co. v. Pacific Orient Co. (1929), 100 Cal.App. 572, 575, 576, 280 P. 697.
There is no gainsaying the point made in the California decision that the time element involved in appeals of trial court orders to parties to proceed with arbitration, where required by a bargaining agreement, would be adverse to the obvious purpose of the arbitration clause of the agreement. In fact, this court has said: "The very purpose of grievance arbitration is to prevent individual problems from blossoming into labor disputes which cause strikes and lockouts and which require collective bargaining to restore peace and tranquility." However, on the issue of statutory construction here involved, the point made is material only in establishing that the construction given the statute does not lead to an absurd or unreasonable result. The public policy determination of whether trial court orders directing parties to proceed with arbitration under a bargaining agreement are appealable is for the legislature to determine. If it sees wisdom in permitting such appeals, it has only to add orders compelling arbitration to the list of those made appealable. Unless or until it does, we hold that under sec. 298.15, Stats, orders compelling submission of a grievance to arbitration under a bargaining agreement so providing are not appealable.
Local 1226 v. Rhinelander, supra, at page 216.
". . . A statute should not be construed so as to work absurd or unreasonable results." Estate of Evans (1965), 28 Wis.2d 97, 101, 135 N.W.2d 832, citing Isaksen v. Chesapeake Instrument Corp. (1963), 19 Wis.2d 282, 120 N.W.2d 151; Worachek v. School Dist. (1955), 270 Wis. 116, 70 N.W.2d 657.
It is surely apparent that we have treated what is termed a "judgment" by the trial court more as an order than as a final judgment. The distinction between an order and a judgment is not material to holding the direction to proceed with arbitration to be nonappealable under sec. 298.15, Stats. Viewed either as an order or judgment, it does not come within the categories of each made appealable. However, the concept of judgment has an inbuilt implication of finality that is not here appropriate. The trial court remains the forum to which either party may return to assert any and all objections to referral and award following arbitration. No right, including the right to challenge the complaint being a grievance under the terms of the agreement, is lost by holding that the order to proceed with arbitration is not appealable. Under the construction given the statute, such issues may be raised by either party, following the resort to arbitration, but not before. They are not erased nor cut off by such deferral. Holding the trial court's action here to have been in essence an order staying proceedings and directing the parties to proceed with arbitration, as their agreement provided, helps make that consequence clear. We so hold, and, so holding, dismiss the appeal.
By the Court. — Appeal dismissed, with costs.