*1 fаct, must and therefore the record be returned the board that it fact so make and new deci- may proper findings sion such new based upon findings. the Court.—The
By circuit court reversed, with directions return matter Person- nel Board further in accordance with this proceedings opinion. Electrical,
Local United Radio & others, Plain Machine of America Workers Allen-Bradley tiffs, vs. Dеfendant. [Two Company, appeals.]*
October 9 November 1951. * denied, costs, rehearing February 5, Motion for $25 1952. *2 Milwaukee, for the D. plaintiffs.
Daniel Sobel Lines, briefs by Spooner defendant there were For the L. Kamps and John G. and Robert Quarles, attorneys, & Milwaukee, counsel, all and oral argument by Mann of Mann. Mr. Giaimo, Rose an em- was C. plaintiff,
Fritz, J. called Allen-Bradley' (hereinafter Cоmpany ployee is called “union”) 1111 (hereinafter Local “employer”). a entered into on union which labor June with the wherein employer, collective-bargaining agreement as the exclusive agent recognized bargaining was union and maintenance em- production all of employer’s for for settlement of provided Said ployees. absence, etc., and had the following leaves “grievances,” : provision for with seniority it necessary employees “In cases where sickness, than two weeks account for more absent
to be a leave of absence at their when request, will be granted they certificate such a doctor’s necessity, substantiated of each three-months end period will be extended leave under the same In confinement provisions. cases the leave of absence shall be limited to six months after birth. Full (6) credit shall be seniority for sick leave.” given Plaintiffs in their alleged under and complaint pur- suant to the agreement, Rose Giaimo bargaining applied and was granted leave of absenсe on illness; account of her illness she following applied but the re-employment employer refused to that a grant re-employment; griev- ance under the terms of said collective-bargaining was processed employer, concerning Giaimo, Rose but the refused to her. The reinstate were unable to settle said grievance satisfactorily, the union whereupon invoked provision *3 42 of said In answer to the agreement. complaint the matters employer alleged of defense because which it that denied Rose Giaimo was entitled to be reinstated that the court had employee, no alleged jurisdiction the grant or to prayer plaintiffs’ complaint order defendant to arbitrate the between controversy the existing to the action. parties
After a trial issues under the pleadings Judge Breiden- in a written stated decision: bach
“The before the commencement of the trial entered into an oral forth the facts as follows: stipulation setting “ ‘Plaintiff, Giaimo, Rose was employee, the employed by Decembеr, 1943, as a production defendant employee the unit as included the by bargaining represented by plain- union; in her tiff she continued until employment May herein, 1946, when she her the defendant applied employer, for leave of absence on account of illness and submitted leave, her connection with for such a doctor’s application certificate of the therefor. The leave was necessity granted to her the by was admitted to the employer. employee for Mental Diseases in Milwaukee Hospital county. On 25, 1946, the defendant sent a September employer letter home, Giaimo to her addressed Rose which requested effect that Rose advise the her Giaimo аs to health employer letter, Rose by not received Giaimo although That status. her members of by family received actually
herself was letter, the received two communica- employer to that response dated, a tions, stating October from doctor first the his care and Giaimo was under would that Rose in effect the second a of abоut ninety days; period so remain the dated Decem- defendant employer received by letter 26, 1946, sent the second letter was by Hospital which ber the that Rose Giaimo Diseases advising employer Mental and she remain there at that would hospital awas patient by the the employer Following receipt indefinitely. Diseases, for Mental no furthеr Hospital from the letter were received by employer. certificates doctor’s “ 25, 1947, sent letter defendant employer ‘On April other that the union advising, among things, plaintiff Rose Giaimo had “quit.” employee “ Giaimo, 1, 1948, Rose plaintiff ‘On October employee, re- at the employer, plant appeared at that her back. She was advised timе job by quested that no work was available for her department personnel at this, time. Rose Giaimo informed hearing Upon union of the action taken the defendant. the plaintiff with the the union filed grievance employer. Whereupon This was discussed between the union and plaintiff grievance several occasions with bosses of top It union aрpeared plaintiff respective parties. be made of the to this that no could adjustment that no when amicable appeared employee; union, could be reached between the adjustment parties, communication, invoked arbitration in matter. written *4 the written communica- Whereupon, employer by advised, effect, in'its to the union tion judgment that it not arbitrate was not would to the grievance agree matter to Rose Giaimo and it would refuse to relating her arbitration to her and relating job. any participate “ commencedthe instant declaratory- the union ‘Whereupon ” judgment proceeding.’ then stated: Judge Breidenbach Giaimo, therefore, that was confined to “It Rose appears, the her Diseases of the for Mental during period Hospital of and was therefore leave absence unable to with comply the doctor’s respect the furnishing certificates provisions of such confinement period of and that necessity during all the facts under of and circumstances disclosed the and the takеn trial upon the the stipulation testimony ques- of Rose for tion Giaimo right re-employment pre- within intent sented and of ‘grievance’ contemplation that, therefore, and bargaining agreement plaintiffs to have such were entitled and question submitted grievance of for arbitration pursuant provisions and bargaining are entitled agreement; plaintiffs effect; the contract full force and judgment declaring that it was the intent of contract that under the facts disclosed that the herein should be grievance submitted to arbitration.
“The prayer demands plaintiffs’ complaint ‘for an order of this court the defendant (2) requiring com- to arbitrate the pany Rose concerning employee, Giaimo, under the of said provisions collective-bargaining order of this court agreement; (3) restraining the defendant from enjoining further company violating terms and of the said . . . provisions agreement.’ 298.01, Stats.,
“Section to arbitration relating provides: “ ‘A in any written contract to provision settle arbitra- contract, tion a thereafter controversy out of such or arising thеreof, out the refusal to whole or perform any part or an between two or more agreement writing persons submit to arbitration any controversy between them existing submit, valid, at the time of the be shall irrev- ocable, and enforceable save upon as exist grounds contract; for the or revocation of equity any provided, however, that the of this shall not provisions chapter apply to contracts between employers between employees, and associations employers employees, except provided ” in section 111.10 statutes.’ also stated: Judge Breidenbach “Thus it that the appears enforce- specific ment of future not does disputes aрply contracts must, between employers We employees. therefore, to common law look to determine whether or not such contracts are enforceable.
614 Hop their contention rely upon support “Plaintiffs Reed, 476; Gilman, Schneider v. 123 Wis. 22 Wis. v. kins 591, Lawn, v. 146 131
488, 682; Wis. Kipp 101 N. W. 36, v. 246 Oil Co. Wis. 418; Sielaff, Depies-Heus N. W. These cases are distinguishable upon 386. 16 N. W. (2d) of appraisement that involved they principle the ground are to and therefore not applicable not of arbitration here the situation presented'.' “ arbitration is ‘The distinction betweeq appraisal are common subject as appraisals great importance, those different from many applied to rules respects law held arbitration, arbitration statutes are to and the modern Williston, 6 Contracts (rev. ed.), to not to apply appraisals.’ 5371, p. sec. 1921. Workers Union v. Ohio Power Co. “In Utility [Ohio 629, in a statute similar Com. N. E. construing 77 (2d) Pl.] statute,
to said: court Wisconsin “ of a statute the specific per- ‘In absence requiring arbitrate, is held formance of a contract generally that this country the various jurisdictions throughout an arbitrate either an existing possible en- will not be specifically future forced, while not dispute, illegal, of an award. . . . making prior “ Ohio, ‘The is of the that court opinion present under a contract between-a labor union which provides as of labor shall be sub- and conclusions wages disputes state, but since mitted arbitration is nоt invalid no in Ohio a court to decree authorizing there is statute as of a labor-arbitration specificperformance is not enforceable an arbitration agreement specifically prior law, an under the common the court award making entertain the authority without plaintiff’s petition.’ Contracts, Restatement, 2 “The is stated proрosition sec. 1055, 550, as follows: p. “ 558, stated in section to arbitrate ‘Except bargain or a future is not either existing possible dispute illegal, unfair; will unless the terms of arbitration are agreed enforced, nominal are only not be specifically damages for its breach.’ recoverable 266, v. (2d) Arizona Co. Ariz. 95 Pac. Brewing “Gates Award,
49; Am. Arbitration and Jur., pp. *6 Williston, 70, 74; Contracts 31, ed.), 906, (rev. seсs. sec. 33. 5324, 1900; see 6 C. S. sec. p. J. that court it follows the herein the reasons given “For enforcement. specific the prayer must deny in accordance of law fact and conclusions of “Findings be submitted signature.” this decision may 856, Award, p. Arbitration stated in 3 Am. Jur., As 31, cited by Judge sec. : Breidenbach arbitrate, in advance of made “So long agreements rules different prevail remain executory, the controversy, at It is settled of executed agreements. than in the case in or collateral to a law that general agreement, common contract, arbitrators to final determination by a to submit the with respect any the liabilities of rights the con- thereafter arise under that may and all disputes time beforе any at will either by party be enforced tract is voidable courts, made, the and will not by a award is valid cannot, a contract by of the rule that private persons because arbitrate, constituted the jurisdiction legally oust call such contracts the courts illegal courts. Many void, criticized as characterization has been wanting but this enforсe- of the authority sustaining in strict view accuracy, and other cases which appar- ment of executed agreements, in case of breach. a damages ently support right recover rule, been which has variously the foregoing “Whether the the courts early jealousy concerning attributed to considerations of their and to jurisdiction exсlusiveness of been basis had satisfactory ques- rests on policy, public tioned, that the courts are been settled has long sq Arbitration it.” also 3 Am. Jur., disturb See -to unwilling and Id., Award, 70; sec. 74. sec. p. p. introduced court on the evidence The facts found by of law made conclusions trial warranted the following on the court, wit: Rose Giaimo to right That the question “(1) within the intent cоnstituted ‘grievance’ re-employment agreement; (2) of the collective-bargaining and meaning submitted are entitled to have grievance that plaintiffs to arbitration of the said pursuant agree- ment; that are entitled to court (3) plaintiffs effect; in full force and that declaring it was the intent of the said (4) that under the facts disclosed testimony stipulation griеvance arbitration; Rose Giaimo be should submitted to (5) the court is or common-law lacking statutory authority require to arbitrate said company to Rose Giaimo as it was intent pertaining of the parties be should done and therefore denies the for enforce- prayer ment thereof.” in view of the fifth
Consequently conclusion law there was duly warranted court’s adjudication, *7 No. 4 of that: judgment, in or lacking statutory
“The court is common-law author- to arbitrate the corporation said ity require defendant it Rose Giaimo as ivas grievance pertaining plaintiff union and the intent of the plaintiff company be therefore the court denies the prayer should done and plaintiffs for enforcement thereof.” 298.01, Stats., which for the settlement Sec. provides arbitration and that contracts to settle contro- disputes by enforceable, versies arbitration are and by valid expressly from its effect contracts between and excepts employers existed in when the ch. employees, legislature, by enacted the Peace Act.” that act the By “Employment in detail for the settlement of legislature provided great certain and acts on the designated labor disputes part as unfair labor In employee practices. both employer ch. sec. 298.01 is re-enacted. closing 298.01, Stats., of sec. re-enactment the same act with deals matters exclusively which otherwise affecting is most It significant. relationships, employer-employee that it of the intended to continue legislature the expression for the arbitration of the rule that labor agreements disputes be enforceable. Whether not we should should not agree that the common us with Judge requires Breidenbach to hold an for the arbitration of future disputes unenforceable, we not overlook the may declaration positive that such legislature made between agreements em- not ployer are enforceable as are employee such contracts made others. by
If the had legislature that the contemplated 298, Stats., ch. should to contracts between apply employers it employees would not re-enact certainly ch. Laws of 1939.
By Judgment affirmed. Court.— Most (dissenting). CurRie, collective-bargaining J. agreements effect Wisconsin today between labor unions employers provide as the procedure final In step these settling grievances. agreements strike, usually gives up and the right to lock out its right return for employees, the mutual for a settlement of grievances рrocedure, arbitration as the final both to be step, bound agreeing arbitrator, the decision or arbitrators. Such agree- ments are much in the very interest as public they tend strikes, reduce the occurrence greatly and therefore would seem to public policy require be agreements *8 lived to both up unions. employers decision, trial the learned court’s
While that enforcement in provision collective-bargaining agree- in this case is not law, ment at issue enforceable at common rule, with the is in accord such rule majority has been in some jurisdictions. author definitely repudiated for Future the annotation Arbitration” “Agreement appear- 79, in A. L. R. states : 94) 135 (p. ing a judicial “In recent to years tendency question the rule arbitrate all future to disputes has been against stipulations evident. In few jurisdictions rule increasingly has been definitely repudiated.”
618
I cannot subscribe to the
that the common
theory
is an inflexible instrument which does not permit
growth
adjustment
meet the social needs of the times. This
court in the
has
past
repudiated
very
Mr.
theory.
in his
Garlt,
Schwanke v.
opinion
Nelson
Justice
367, 371,
176,
Wis.
263 N. W.
declared:
“While
are at
we
all times bound to
the con-
uphold
state,
stitution of this
and to
due effect to
give
its paramount
provisions, we
not
may
the fact ‘that
ignore
the common
law is
susceptible
growth
to new circum-
adaptation
situations,
stances and
and that courts have
to declare
power
and effectuate what is the
rule in
present
of a
respect
given
subject without
.
regard
old rule.
. . The common
immutable,
law is
flexible,
not
its own
upon
princi-
itself
ples
adapts
Schiedt,
conditions.’ Dimick
varying
v.
474,
293 U. S.
Ct. 296. To the
effect
Sup.
same
Funk
States,
v.
United
290 U. S.
Ct.
Sup.
While, as pointed majority opinion, legis- out. lature has not authorized court enforcement specifically arbitration clauses contained labor collective-bargaining agreements, nevertheless this does not the court preclude from such a clause if it enforcing possesses so power to do at common law of statute. independently Stats.,
Sec. 269.56 (8), “Further provides relief based or decree declaratory judgment bemay whenever granted I necessary would reverse the proper.” judgment trial court and enter com- ordering with the pany join submitting arbitration in the manner in the provided contract.
I am authorized to state Mr. joins Broadfoot Justice in this dissent.