Dunphy Boat Corp. v. Wisconsin Employment Relations Board

Gehl, J.

{dissenting). That an executory agreement to arbitrate any and all disputes between the parties which *328might thereafter arise was unenforceable at common law is not questioned. It was so held by the court in Local 1111 v. Allen-Bradley Co. 259 Wis. 609, 49 N. W. (2d) 720. In the instant case the board does not contend otherwise. If it was the purpose of the legislature to change the law, clear expression of such intent must be found in the statute. “To have such effect ‘the language [of the statute] must be clear, unambiguous, and peremptory.’ ” Wisconsin B. & I. Co. v. Industrial Comm. 233 Wis. 467, 474, 290 N. W. 199. There is no language in either ch. Ill or ch. 298, Stats., which suggests a purpose to change the law as it affects contracts between employers and employees. Sec. 298.01, Stats., in express terms, makes the ordinary contract to settle future disputes enforceable and thus changes the common law. But in language just as clearly and plainly expressed it makes its provisions inapplicable to such contracts between employers and employees.

The board contends, however, that secs. 111.07 (4) and 111.06 (1) (f), Stats., grant to it authority which has been denied to the courts. If the board, a nonjudicial agency, is to be considered as having been vested with the right to exercise the judicial power claimed by it, we must find at least statutory authority therefor.

“No proposition of law is better established than that administrative agencies have only such powers' as are expressly granted to them or necessarily implied and any power sought to be exercised must be found within the four corners of the statute under which the agency proceeds.” American Brass Co. v. State Board of Health, 245 Wis. 440, 448, 15 N. W. (2d) 27.

Sec. 111.07 (4), Stats., authorizes the board, upon finding of an unfair labor practice, to—

. . require the person complained of to cease and desist from the unfair labor practices found to have been committed, *329. . . and require him to take such affirmative action, . . . as the board may deem proper. . . .”

Sec. 111.06 (1) (f), Stats., makes it an unfair labor practice—

“To violate the terms of a collective-bargaining agreement (including an agreement to accept an arbitration award).”

It is to be observed that the inhibition is not against a refusal to arbitrate in accordance with an agreement therefor — it is against a refusal to accept an award and presupposes that arbitration proceedings have been had. Having in mind the broad and all-inclusive provision for exclusion of the provision of sec. 298.01, Stats., and unless it is to be entirely ignored, the statutes upon which the board relies may not be interpreted otherwise.

By ch. 274, Laws of 1931, ch. 298, Stats., was amended so as to provide that “a provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract” shall be enforceable but expressly excluded contracts between employers and employees from its operation.

It is thus clear that by ch. 274, Laws of 1931, the legislature expressed a purpose to make contracts for the settlement of future disputes enforceable, except those between employers and employees.

Sec. 298.01, Stats., was amended by ch. 57, Laws of 1939, and contains the precise language but adds at its very end “except as provided in section 111.10 of the statutes.” Sec. 111.10 is not applicable here because it provides for arbitration by “parties to a labor dispute” indicating a purpose to have it apply only to existing disputes.

The Labor Peace Act of which sec. 111.06 (1) (f), Stats., is a part was created by ch. 57, Laws of 1939, and it is quite significant that sec. 298.01 was amended by that very act of the 1939 legislature; it indicates very clearly that no part *330of the Labor Peace Act was intended to repeal or amend the broad provisions of sec. 298.01 and the exclusion of labor contracts from its operation.

It is most significant that when sec. 298.01, Stats., was amended by the legislature of 1939, provision was made for the enforcement of an existing labor dispute, one contemplated by provisions of sec.' 111.10; It seems that if the legislature had intended 'that contracts for arbitration of future labor disputes should be enforceable it would have said so, and that the legislature must have had in mind in the enactment of sec. 111.06 (1) (f) that to refuse to submit to an award made upon an agreement to settle by arbitration only an existing dispute is an unfair labor practice.

If sec. 111.06 (1) (f), Stats., is to be construed as the board contends, it would create an inconsistency, a result which should be avoided “when a reasonable interpretation can be adopted which will not do violence to the plain words of the act and will carry out the intention of (the legislature).” 50 Am. Jur., Statutes, p. 367, sec. 363. Plain words are employed in sec. 298.01. They are not open to construction, and definitely and clearly exclude from their application the legislative departure from the common-law rule that contracts for arbitration of future disputes are not enforceable. The two statutes are made reconcilable only by construing sec. 111.06 (1) (f) as being applicable only to the situation where an agreement to arbitrate is made as to an existing dispute, a construction which does no violence to its terms. I would concede that generally there has been a judicial tendency to question the rule against stipulations to arbitrate future disputes. I might also be inclined to join with the courts which have repudiated the rule, had the legislature refrained from or omitted to declare the policy with respect to such agreements. We have nothing to do with questions of public policy: The determination of those matters rests exclusively with the legislature. I would affirm the judgment.