Opinion
December 9, 1955 —
January 10, 1956.
APPEAL from judgments of the circuit court for Manitowoc county: F. H. SCHLICHTING, Circuit Judge. Affirmed.
For the appellant there was a brief by Clark, Rankin Nash, and oral argument by John M. Spindler, all of Manitowoc.
For the respondent 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.
These actions concern a dispute between the Aluminum Goods Manufacturing Company, hereinafter referred to as the "employer," and Aluminum Workers International Union, Local No. 130, hereinafter referred to as the "union," which latter represents the productive employees of the employer at its plant at Two Rivers, Wisconsin. At the times mentioned there was in existence between the employer and the union a collective-bargaining agreement which contains certain provisions for arbitration of grievances. By its provisions it was stipulated that in case of dispute as to working conditions, layoffs, et cetera, certain prescribed progressive steps should be taken in an attempt to settle the dispute, and that if the preliminary or intermediate steps should prove fruitless, the union or the employee might present the grievance to an executive officer of and designated by the employer for his action, he to advise the union and the employee affected by letter within ten days "of the company's final decision relative to said grievance."
It is then provided that if either the employer or the union be not satisfied with the adjustment of the grievance by the executive officer, a request may be made that the matter be submitted to arbitration, but that demand for arbitration must be made "within thirty days of the date of the company's letter to the union with its final decision relative to such grievance."
On June 8, 1954, Elsie Baker, an employee of the employer, was laid off and she filed a grievance with the employer. The intermediate steps required and permitted by the terms of the contract were taken, and on July 8, 1954, the designated executive officer of the employer addressed a letter to the union, advising it of its final decision relative to the layoff grievance.
On June 24, 1954, Elsie Baker was transferred to another department in the employer's plant and on June 28, 1954, she filed another grievance protesting her transfer. This grievance was also processed as provided by the contract and resulted in a letter dated July 20, 1954, written by the designated executive officer to the union. Because the determination of the question presented on this appeal rests upon the construction of this letter, it is set forth in full:
"July 20, 1954 "Mr. John C. Black, President Aluminum Workers International Union Local No. 130 — A. F. of L. 2700 Jackson Street Two Rivers, Wisconsin "Dear Mr. Black:"Your letter of July 2 relative to the grievance of Mrs. Elsie Baker arising out of her transfer from Mr. De Foe's department to Mr. Gloe's department in plant #1, is received.
"After the meeting of July 7, 1954, between Mr. Wentorf, Mr. Ruedebusch, and the members of your grievance committee relative to the transfer grievance of Mrs. Baker, I was advised that you took the position that you would not divulge any further information relative to this grievance to Mr. Wentorf or Mr. Ruedebusch and would not discuss this grievance with them further. I also was advised that you stated you would only give this information to me and that your committee wanted to have a conference with me relative to this matter.
"In reply, I wish to say that the grievance procedure set up in our contract was established so that grievances could be thoroughly discussed and disposed of, if possible, at the lowest level. Your refusal to divulge information you claim you have relative to this grievance to Mr. Wentorf, the plant manager, or Mr. Ruedebusch is, in effect, a refusal to comply with the grievance procedure. Of course, I cannot be a party to any act to avoid following the grievance procedure set forth in our contract. Therefore, I must advise you that unless you give this information to Mr. Wentorf or Mr. Ruedebusch and give them an opportunity to investigate this information it will be useless for me to hold a conference with your committee. I am therefore urging that arrangements be made for you and your committee to meet with Mr. Wentorf and Mr. Ruedebusch and that you furnish them with the information you claim you have relative to this grievance so that Mr. Wentorf can render a determination based on all the information relative to this grievance.
"On the basis of the information I now have, it is my opinion that Mr. Wentorf was very lenient with Mrs. Baker when he gave her the election to either accept a transfer to Mr. Gloe's department or be discharged because of her insubordination, falsification of timecards and records, interfering and causing dissension among the other employees in Mr. De Foe's department. It was because of Mrs. Baker's violation of the company's rules and working conditions, as well as our contract, that she was transferred out of Mr. De Foe's department. The company cannot and will not tolerate employees falsifying work and time records and when the company learns of such violations it will discipline the employee or employees involved. On the basis of the information I now have, there is certainly no discrimination against Mrs. Baker involved in this transfer.
"Yours very truly, Aluminum Goods Manufacturing Company (s) Albert L. Vits Vice President."On August 23, 1954, the union's representative requested of the plant manager that a meeting be held for a further discussion of the transfer grievance. The plant manager stated that he was of the opinion that the union had waived its right to arbitrate. On or about August 24, 1954, the union's representative wrote the company's executive officer requesting that the dispute be arbitrated. On or about August 27, 1954, the union received a letter from the employer's executive officer advising the union that the time for requesting arbitration of both grievances had expired on August 19, 1954, and that, therefore, there was nothing to arbitrate.
The Employment Relations Board found in proceedings instituted by the union and had under the provisions of sec. 111.06, Stats.:
"That the complainant's request to arbitrate the Baker layoff grievance was made on a date more than thirty days after the respondent [employer] had given its final decision on the grievance.
"That on no date prior to the request for arbitration by the complainant on the Baker transfer grievance had the respondent given its final answer on such grievance."
And made conclusions of law:
"That the respondent has not violated the provisions of the collective-bargaining agreement with regard to the arbitration of grievances by refusing to arbitrate the grievance filed by Elsie Baker with regard to her layoff and, therefore, in that respect the respondent has not committed a violation of the Wisconsin Employment Peace Act.
"That the respondent, by refusing to arbitrate the grievance filed by Elsie Baker with respect to her transfer, has violated the provisions of the collective-bargaining agreement relating to the arbitration of grievances and, therefore, the respondent has committed an unfair labor practice within the meaning of sec. 111.06(1)(f) of the Wisconsin statutes."
(When the foregoing findings and conclusions are read, it should be kept in mind that the board was concerned with two grievances, first, the layoff grievance, and second, the transfer grievance. We are concerned only with the latter.)
On March 4, 1955, the board ordered that the employer cease and desist violating the terms of the bargaining agreement by refusing to submit to arbitration the grievance of Elsie Baker pertaining to her transfer.
An action was commenced by the employer in the circuit court for Manitowoc county for a review of the order. At about the same time the board commenced an action in the same court demanding an order confirming its action and judgment requiring the employer to comply therewith. The actions were consolidated for trial and heard together, as they are in this court. Judgments were entered on June 23, 1955. In the action brought by the employer, its position for a review of the order was dismissed, and in that brought by the board the order was confirmed and the employer required to submit to arbitration in accordance with the terms of the contract. The employer appeals from each of the judgments.
The sole question presented upon this appeal is whether the evidence supports the board's finding that the union's request for arbitration of the transfer grievance was made within the time limited by the contract. If the letter of July 20, 1954, is to be construed as stating the employer's "final decision," the thirty-day period began to run on that date and the union's request for arbitration made on August 25, 1954, came too late. The trial court held that it is not to be so construed. We agree.
Nowhere in the letter do we find an assertion that the employer considers the matter closed. The writer complains of the refusal of the union's grievance committee to divulge to the subordinate representatives of the employer, with whom prior negotiations had been had, certain information relative to the grievance, and urges that the union's committee furnish them with such information "so that Mr. Wentorf [the employer's representative who had conducted the second step of the proceeding had under the terms of the contract] can render a determination based on all the information relative to this grievance." We construe the letter as an invitation to reconsider and renegotiate the grievance so that it might be "thoroughly discussed and disposed of, if possible, at the lowest level."
The employer cites a number of authorities to the proposition that time limitations contained in the collective-bargaining agreements are to be strictly enforced. There is no quarrel with their statement of the rule. The difficulty is that there is no occasion for its application until it has been established that the time within which action is to be taken has begun to run. The same is to be said with respect to the employer's contention that it had consistently insisted that each of the parties observe the time limitations prescribed in the contract, and that the members of the union were aware of its policy.
By the Court. — Judgments affirmed.