Opinion
October 11, 1956 —
November 7, 1956.
APPEAL from portions of two judgments of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellant there were briefs by Fairchild, Foley Sammond, James I. Poole, and Herbert P. Wiedemann, all of Milwaukee, and oral argument by Mr. Wiedemann.
For the respondent Wisconsin Labor Relations Board there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and Beatrice Lampert, assistant attorney general, and oral argument by Mrs. Lampert.
For the respondent International Union, United Automobile, Aircraft Agricultural Implement Workers of America there was a brief by Max Raskin, and oral argument by Mr. Raskin and by Mr. Philip L. Padden, both of Milwaukee.
The proceedings before the Wisconsin Employment Relations Board (hereinafter referred to as "W.E.R.B.") were initiated by complaints of unfair practice by Wisconsin Motor Corporation (hereinafter referred to as the "company") against the International Union, United Automobile, Aircraft Agricultural Implement Workers of America (C.I.O. and its Local 283). The union filed countercomplaints of unfair practice against the company.
The history of the proceedings and the steps taken appear in the following findings of fact and conclusions of law made by the W.E.R.B.:
"Findings of Fact and Conclusions of Law.
"The above-entitled matter having come on for hearing before the Wisconsin Employment Relations Board on the 9th day of September, 1955, in the Milwaukee county courthouse, Milwaukee, Wisconsin, the entire board being present, and the board having considered the evidence, arguments, and briefs of counsel and being fully advised in the premises, snakes and files the following findings of fact, [and] conclusions of law. . . .
"Findings of Fact.
"1. That the Wisconsin Motor Corporation, hereinafter referred to as the complainant, is a corporation, organized and existing under the laws of the state of Wisconsin, having its general office and plant located in the city of Milwaukee, Wisconsin.
"2. That the International Union United Automobile, Aircraft Agricultural Implement Workers of America is a labor organization, affiliated with the Congress of Industrial Organizations, and its Local 283, hereinafter referred to as the respondents, have their offices in the city of Milwaukee, Wisconsin.
"3. That on the 1st day of May, 1954, the complainant and respondents entered into a collective-bargaining agreement covering certain employees of the complainant, which agreement has continued in full force and effect since that date, to and including all dates material herein, and which agreement contains, among others, the following provisions material herein:
"`Article II
"`Collective Bargaining
"`13. Step 3. Grievances not resolved in step 2, shall be reviewed by the grievance committee and management representatives.
"`14. Step 4. Grievances not resolved in step 3, shall be submitted to a meeting of the bargaining committee, representatives of the union, and representatives of the company.
"`15. Section 6 — Should any dispute, differences, or grievances arising because of interpretation of the contract fail to have been concluded in the above steps within ten ( 10) workdays after reduction to writing in the manner herein and above provided, the matter may be referred to a mutually agreed upon arbitrator, and if the parties cannot agree upon an arbitrator within five (5) workdays after written notification of intent to arbitrate is given, the appointment of an arbitrator shall be requested of the Federal Mediation and Conciliation Service, Wisconsin State Industrial Commission, or Wisconsin Employment Relations Board. The arbitrator shall have no authority to change any provision of this contract and shall have no power to decide any matter, the disposition of which in step 4 occurred more than six (6) months prior to submission to arbitration, provided the company gave notice of such pending grievances at least thirty (30) calendar days prior to the expiration of the six (6)-month period. The fees of the arbitrator and his expenses, if there are such expenses, shall be shared equally by the company and the union.
`Article XI
`Wages
`95. Section 8 — When present machines are replaced by new machines put into operation or new jobs created, the company will make a proposal to the union as to the rating of the new machine or job. The rate of the new job or machine will be considered final unless the union tenders its objections to the proposal within five (5) workdays after receipt of such proposal. If the union objects the matter shall be referred to step 3 of the grievance procedure.'
"4. That on April 27, 1955, representatives of the complainant and the respondents met in a fourth-step grievance meeting to discuss a number of unresolved grievances; that during the early portion of this meeting representatives of the complainant and the respondents had some discussion with regard to machine classifications for the Cleveland Threading Machine, the Sundstrand Model 8A, the Sundstrand Vertical Milling Machine, and the Simplex Two-Way Boring Machine that in discussing the machine classifications, the respondents contended that said grievances were proper to consider in a step-4 grievance meeting. The complainant refused to concede that the grievances were properly in step 4, it being its position that while the grievances could be discussed in step 3 of the grievance procedure, no further action was possible; that said grievances were not satisfactorily concluded at such meeting. . . .
"6. That during such fourth-step grievance meeting held on April 27, 1955, while various grievances, including those relating to the machine classifications, were being discussed and not concluded, the respondents frequently orally advised the complainant that all unresolved grievances would be taken to arbitration. During the meeting the names of various persons who might be selected to arbitrate such disputes, if arbitration proved necessary, were mentioned. At the close of the meeting, the representatives of the respondents delivered to the complainant a notice in writing as follows: `This is a notice of our intention to arbitrate all the pending unresolved issues between your company and our union. This is to include the wage-classification issues discussed 4-27-55.'
"7. That later, the complainant caused to be delivered to the respondents a reply in writing, dated April 27, 1955, to the respondents' demands that certain grievances be submitted to arbitration. The reply read as follows:
"`This will acknowledge receipt of your notice of intention to arbitrate dated April 27, 1955. We agree that the following grievances are ready for arbitration under the contract: 504678 B 215523, B 444006, B 215524.
"`With respect to the machine-classification proposals dated: 3-10-55, 3-14-55, and 4-15-55, we do not agree that these issues may be arbitrated. They have never been processed through step 4 of the grievance procedure. It is our position that under paragraph 95 of the contract we are not required to process them beyond step 3 and we are prepared to arbitrate this question at any time.'
". . .
"Upon the basis of the above and foregoing findings of fact, the board makes the following
"Conclusions of Law
". . .
"2. That a question exists between the parties relating to rates for various machine classifications which is a dispute relating to interpretation of the contract, by the terms of the contract grievance, relating to such disputes, commencing in step 3 of the grievance procedure; that the failure of the parties to conclude the dispute in step 4 of the grievance procedure entitled the grievant to have such question submitted to final and binding arbitration; that the refusal of the complainant to submit such questions to arbitration is a violation of the terms of the collective-bargaining agreement and, by so doing, the complainant has committed an unfair labor practice."
Upon those findings of fact and conclusions of law, W.E.R.B. entered an order directing "that the complainant, Wisconsin Motor Corporation, immediately cease and desist refusing to submit to arbitration the grievances undisposed of which relate to machine classifications." That order was dated December 22, 1955. The Wisconsin Motor Corporation thereafter petitioned the board to reconsider the provision of its order relating to machine classifications, to set aside such provision, and to direct the parties to resolve the dispute concerning the interpretation of paragraph 95, section 8, in the manner provided by paragraph 15, section 6. On January 9th, the petition to reconsider was denied. The company then sought relief in proper proceedings before the circuit court for Milwaukee county, asserting that the order of W.E.R.B. is in excess of statutory authority and is affected by an error of law in that it constitutes a decision on the merits of a controversy which, by the terms of the collective-bargaining agreement between the company and the union is to be resolved by arbitration and could not properly be subject to decision by the board. The W.E.R.B. thereafter petitioned the court for enforcement of its order. The circuit court, at the conclusion of the hearing therein, confirmed the order as entered by the board., decreed its enforcement, and dismissed the petition of the company for review of said order. From these rulings the company appeals.
The appellant company contends that W.E.R.B. should not have determined that the grievance over machine classifications was arbitrable. This is because in so holding W.E.R.B. decided a matter of interpretation of the collective-bargaining agreement, which the contract provided might be arbitrated in the event of a dispute over the same.
The matter of classification rates for new machines was covered by paragraph 95, section 8 of the collective-bargaining agreement, reading as follows:
"When present machines are replaced by new machines put into operation or new jobs created, the company will make a proposal to the union as to rating of the new machine or job. The rate of the new job or machine will be considered final unless the union tenders its objections to the proposal within five (5) workdays after receipt of such proposal. If the union objects the matter shall be referred to step 3 of the grievance procedure."
Paragraph 15, section 6 of the collective-bargaining agreement provided:
"Should any dispute, differences, or grievances arising because of interpretation of the contract fail to have been concluded in the above steps within ten (10) workdays after reduction to writing in the manner herein and above provided, the matter may be referred to a mutually agreed upon arbitrator, and if the parties cannot agree upon an arbitrator within five (5) workdays after written notification of intent to arbitrate is given, the appointment of an arbitrator shall be requested of the Federal Mediation and Conciliation Service, Wisconsin State Industrial Commission, or Wisconsin Employment Relations Board."
The employer maintains, under the provision contained in the above-quoted paragraph 95, section 8, that, though new-classification rates could be processed under step 3 of the grievance procedure, they could not be processed beyond that point. The union, on the other hand, contends that the provisions of paragraph 95, section 8, merely did away with processing the grievance through the first two steps of the grievance procedure; but that in the event the parties failed of agreement in step 3, those provisions did not bar the union from processing the grievance through step 4, and thence through arbitration, in the event the parties were unable to agree.
On this appeal we find it unnecessary to determine the proper interpretation of paragraph 95, section 8, quoted above, because of our conclusion below that the company, by its actions, has waived any right to question the union's processing of the grievance over the new-machine classification rates through step 4 of the grievance procedure, and thence through arbitration.
On April 27, 1955, a step-4 meeting between the representatives of the company and the representatives of the union was held to discuss grievances, and the machine rates were also talked about, the company insisting that it was discussing them as a continuation of step 3. The parties had failed to agree at step 3, and at such meeting of April 27, 1955, during the course of the meeting, the union delivered to the company a written demand that the machine rates be arbitrated. After the meeting the company sent the union a letter declining to arbitrate the machine rates and stating it as the company's position that "under paragraph 95 of the contract we are not required to process them beyond step 3, and we are prepared to arbitrate this question at any time."
Nothing further was done until the union, without consulting the company, wrote a letter to the industrial commission asking for the appointment of an arbitrator. The commission appointed Mr. Rauch as arbitrator on May 24, 1955. On May 26th, the company's attorney wrote the union, protesting its unilateral, ex parte, application for an arbitrator, asserting that the appointment of Mr. Rauch was void, and stating that, "We are prepared to meet with you at the earliest mutually convenient time in an attempt to agree upon an arbitrator."
The significant point to note in this letter of the company dated May 26, 1955, is the fact that the company raised no question as to the right of the union to process grievances with respect to new-machine classification rates through arbitration, but only raised the question as to the method the union had pursued to secure arbitration.
On June 3d, the company and the union held a meeting in an attempt to agree upon an arbitrator. On June 13th, the union informed the company it would stand by its original request to the industrial commission that an arbitrator be appointed.
Thereafter the company filed its complaint against the union under date of June 14, 1955, in which the union was charged with an unfair labor practice in asking the industrial commission to appoint an arbitrator without first attempting to agree with the company upon a mutually acceptable arbitrator. Such complaint contained no mention of the fact that the company contended that the new-machine classification rates were not arbitrable under the wording of paragraph 95, section 8, of the collective-bargaining agreement, or that the company desired to have such issue of interpretation arbitrated.
The company did not avail itself, as it should have done, of its claimed right under paragraph 15, section 6 of the contract, to insist on arbitration of the question whether the machine rates mentioned in paragraph 95, section 8, are subject to arbitration; but, on the contrary, it failed to take timely steps to demand and bring about such arbitration.
Two features of paragraph 15, section 6 of the contract are here pertinent. First, it does not say that disputes shall be arbitrated, but only that they may be referred to an arbitrator. Thus, arbitration is not automatic. It is a right which a party may avail himself of only by taking the necessary affirmative steps to that end. The references to ten and five workdays show that time is of the essence, and that the contract contemplates prompt action to bring about an arbitration.
In the light of these provisions and its own conduct, the company was in no position before the W.E.R.B. to insist that the arbitrability of machine-classification rates must be arbitrated instead of the machine rates themselves.
We, therefore, are of the opinion that, in the circumstances here present, the company had, by its failure to take any affirmative steps to bring about timely arbitration of the question of contract interpretation, and by its letter of May 26, 1955, and its complaint of an unfair labor practice, dated June 14, 1955, foreclosed itself from insisting that the W.E.R.B. should order arbitration of the dispute as to the interpretation of the contract relative to the arbitrability of machine rates. The company cannot now be heard to object to the board's determination that it must arbitrate the machine rates rather than the arbitrability of the machine rates.
The company seeks to escape the result of its want of diligence in asserting its claimed right to arbitrate the question of contract interpretation, by arguing that only the union can take the initiative in processing grievances. While that may be true with respect to the usual type of employee grievance, there is nothing in paragraph 15, section 6 of the contract which adopts any such rule with respect to arbitration of other disputes. That section specifically authorizes arbitration with respect to "any dispute, differences, or grievances arising because of interpretation of the contract," and it is a fair implication that the party desiring to arbitrate such a dispute must take reasonable and timely steps to bring about arbitration.
With this removal from the case of the question of the arbitrability of the interpretation of paragraph 95, section 8, the only remaining issue is whether W.E.R.B. properly held the company guilty of an unfair labor practice in refusing to arbitrate the grievance under step 4 of the grievance procedure. It is our conclusion, based upon our decision in Dunphy Boat Corp. v. Wisconsin E. R. Board (1954), 267 Wis. 316, 64 N.W.2d 866, that the board did properly find the company guilty of an unfair labor practice, and that the order directing arbitration of the machine rates must be upheld.
If the instant collective-bargaining agreement had made it mandatory that all issues over its interpretation must be arbitrated, W.E.R.B. would have committed an "error of law" within the provisions of sec. 227.20 (1) (b), Stats., to have done otherwise than order the interpretation of paragraph 95, section 8, be arbitrated. However, as previously pointed out herein, the wording of paragraph 15, section 6, made such arbitrability of a question of contract interpretation optional with the parties, and the company, by its conduct, waived its right to have W.E.R.B. order arbitration of such issue. Therefore, it was proper for W.E.R.B. to interpret paragraph 95, section 8, as well as other portions of the contract, to determine whether the company had committed an unfair labor practice.
Other issues were raised in the briefs which we find it unnecessary to determine in view of our decision holding that there was a waiver by the company of its right to request arbitration of the contract-interpretation question.
By the Court. — Judgments affirmed.