34 N.W.2d 844 | Wis. | 1948
Proceedings commenced in the circuit court by a petition of the Wisconsin Telephone Company for the judicial review, under ch. 227, Stats., of the action of the Wisconsin Employment Relations Board in appointing a conciliator under and pursuant to sec.
The board's action in appointing the conciliator under and for the purposes stated in secs.
In the petition the union alleged, —
That the employer is a public utility, and its general business is "telephone communication" and it has approximately twelve thousand employees; that the collective-bargaining unit [the union] involved has approximately five hundred seventy nonsupervisory employees 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 employees has reached an impasse and stalemate, with the result that the employer and employees are unable to effect settlement thereof, and that the issues involved in such dispute areas follows: The undersigned request that pursuant to sec.
On July 2d the board appointed a conciliator by a so-called "order," by which it reiterated, among other matters, —
". . . 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 countermotions of the employer and the union. After hearing the arguments of the parties in relation to those motions, the board, on July 17, 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 employees involved all work in the accounting department and are not employed in operational service, stated:
". . . There is no doubt that 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 employees either would or would not result in the interruption of telephone service anywhere 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 *588 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 employees, 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 ch. 227, Stats., of the board's determination, on July 17, 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 ch. 227, Stats., of the board's action in appointing a conciliator under sec.
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. *589
The relief sought by the employer in the proceeding commenced in the trial court is the statutory relief authorized on a judicial review under ch. 227, Stats., of such administrative decisions as are within the terms of sec.
There is no statutory provision which expressly authorizes the judicial review of the board's action in the appointment of a conciliator under sec.
"The particular specification of jurisdiction conferred 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.
"Administrative decisions, which directly affect the legal rights, duties or privileges of any person, whether affirmative or negative in form, except the decisions of the department of taxation, the commissioner of banks and the commissioner of savings and loan associations, shall be subject to judicial review as provided in this chapter; . . ."
On the other hand, the board contends that such judicial review is not permissible because, (1) the board's appointment of a conciliator is not a "decision" which is reviewable within the meaning of that statute, but is rather a preliminary act by the board in its legislative capacity that does not directly affect the legal rights, duties, or privileges of the parties; and (2) that the employer has not shown itself aggrieved by such act of the board.
The board's contention in those respects must be sustained. As we said in United R. W. D. S.E. of A. v Wisconsin E.R. Board, supra, p. 641, —
". . . under sec.
Likewise, as in the case at bar, the employer is not directed to do or to refrain from doing anything by the board's *591 preliminary action in merely appointing the conciliator, the employer can no more be aggrieved thereby than the union could be considered aggrieved by the board's order for the referendum in the case last cited.
The fact that under the terms used in sec.
As stated in 42 Am. Jur., Public Administrative Law, pp. 577-579, sec. 196, —
"Courts are averse to review interim steps in an administrative proceeding. Whether review is sought in nonstatutory or statutory proceedings, review of preliminary or procedural orders is generally not available, primarily on the ground that such a review would afford opportunity for constant delays in the course of administrative proceedings for the purpose of reviewing mere procedural requirements or interlocutory directions. Broad language of statutes providing for judicial review of orders of regulatory commissions has been construed as not extending to every order which the commission may make, and mere preliminary or procedural, as distinguished from final, orders have been held not to be within such statutes, especially where the context of the provision indicates that the orders for which review is provided are such as are of a definitive character dealing with the merits of a proceeding and resulting from a hearing upon evidence and supported by findings . . . . Statutory review has been denied by the courts where, although the action sought to be reviewed may have the effect of forbidding or compelling conduct on the part of the person seeking to review it, this result will follow only if some further action is taken by the administrative authority, on the theory that the order sought to be reviewed does not of itself adversely affect the complainant, but only affects his *592
rights adversely on the contingency of future administrative action." 42 Am. Jur., Public Administrative Law, pp. 577, 578, sec. 196; Federal Power Comm. v. Edison Co.
The scope or nature of the matters reviewable under ch. 227, Stats., is limited under the definitions in sec.
The term "contested cases" as defined in sub. (3) of sec.
". . . a proceeding in which, after hearing required by law, the legal rights, duties or privileges of any party to such proceeding are determined or directly affected by a decision or order in such proceeding and in which the assertion by one party of any such right, duty or privilege is denied or controverted by another party to such proceeding."
The board's action which the employer seeks to have reviewed is neither an exercise of the rule-making power, nor is it a determination in a proceeding in which there was "a hearing required by law", and after such a hearing, "the legal rights, duties or privileges of any party to such proceeding are determined or directly affected by a decision or order in such proceeding;" or in which "the assertion by one party of any such right, duty or privilege is denied or controverted by another party to such proceeding." *593
Moreover, that it was the legislative intent that the decisions which were intended to be subject to review are final orders entered at the end of the contested proceedings and are based on findings made pursuant to the evidence submitted in a formal hearing "required by law," is clearly indicated by such provisions in ch. 227, Stats., as the following, —
The mere fact that the board designated its action in appointing a conciliator upon the union's petition an "order" does not make it, as a matter of fact or law, an "administrative decision or order" within the meaning of that term as used in secs.
The provisions in sec.
"If in any case of a labor dispute between a public utility employer and its employees, the collective-bargaining process reaches an impasse and stalemate, with the result that the employer and the employees are unable to effect a settlement thereof, then either party to the dispute may petition the board to appoint a conciliator from the panel, provided for by section
Under those provisions the appointment of a conciliator is not something which the board cannot do until after a hearing required by law. There is no provision in secs.
The only prerequisites prescribed by sec.
In view of these provisions it is evident that the legislature did not intend that such an appointment could not be made until after a hearing by the board at which evidence was introduced upon which the board made findings of fact as the basis for such appointment.
However, when the conciliator is duly appointed, he has no power to issue any subpoena or order which would bind the employer or any of the parties, or require or compel them to meet with him if they do not choose to do so or to do or refrain from doing anything; nor is there any penalty for their refusing to conform with the requests of the conciliator. His only function is to expeditiously meet with the disputing parties to effect a voluntary settlement and if he is unable to do so to report back to the board within the fifteen-day period provided in sec.
As is stated in 42 Am. Jur., Public Administrative Law, p. 413, sec. 85, —
". . . Powers of investigation may be exercised as preliminary to legislative action, as a step in determinative action, or apart from either of these . . . . The great bulk of information needed by the administrative agencies to effectuate their purposes is obtained without compulsion by voluntary testimony and production of documents, and by the use of public records and official reports . . . . An officer conducting an attempted investigation, lacking legal sanction, stands no better than any other interloper, but if an investigation is duly authorized, it is no more subject to obstruction than judicial proceedings. An official inquisition to compel disclosures of fact is not an end, but, a means to an end, and the end must be a legitimate one to justify the means . . . ."
The duty which the conciliator is to perform under secs.
In view of the limited scope of the conciliator's authorized activities and the consequences thereof, which are merely preliminary to a possible subsequent appointment of an arbitrator, there can be no restriction on the employer's freedom of contract or its rights in any other respect; and the board's *596
action in appointing a conciliator is not of such a nature as to directly affect the legal rights, duties, or privileges of the employer so that it can be considered aggrieved thereby. Consequently, as the board's appointment of a conciliator is not an "administrative decision" in a "contested case," within the meaning of those terms as used in secs.
By the Court. — Order and judgment reversed and cause remanded with directions to dismiss the employer's petition for review.
BROADFOOT, J., took no part.