Chauffeurs, Teamsters & Helpers "General" Union, Local No. 200 v. Wisconsin Employment Relations Commission

187 N.W.2d 364, 51 Wis. 2d 391, 1971 Wisc. LEXIS 1089, 77 L.R.R.M. (BNA) 2742

• Court: Wisconsin Supreme Court
• Decided: June 7, 1971
• Docket: 39
• Status: Published

Opinions

Wilkie, J.

It is of primary importance to recognize that the issue presented to this court concerns the jurisdiction of the WERC to hear out the unfair labor charge made by Local 200 against Gerovac. In no way is any issue presented as to the merits of that charge involving an alleged violation of the prevailing wage requirements of sec. 103.50, Stats. The sole question is whether Local 200 is a “party in interest” within the meaning of sec. 111.07 (2) (a) involved in a “controversy as to employment relations” within the meaning of sec. 111.06 (1) (L).

The trial court apparently had no quarrel with the WERC’s findings of fact, noting that Local 200 had not claimed representative status, that it had not attempted to secure representative status and had no members in Gerovae’s employ. It also apparently agreed that the picketing of Gerovac was a “publicity picket.”

The court reviewed the purpose of the Employment Peace Act as declared in sec. 111.01, Stats., the definition of “employe” in sec. 111.02(3), and the right of employees to “engage in lawful, concerted activities for the purpose of . . . mutual aid or protection . . .” as set forth in sec. 111.04. The court then concluded:

“From the reading of these three statutes, together, it appears that employees, not necessarily of the employer in question, have the right to engage in lawful, concerted activities for the purpose of mutual aid to maintain an adequate income for themselves. Further, it is the public policy of this state to provide employees with a convenient, expeditious, and impartial tribunal in which to pursue their quest for adequate income. The bringing of a, suit before that impartial tribunal by the representative of employees is a lawful, concerted, activity.’’ (Emphasis supplied.)

The court then went on to note sec. 103.50 (1) and (2), Stats., which require the paying of a prevailing wage to employees on highway projects, and that the failure to comply carries with it criminal sanctions (secs. 103.50 (7), 103.39 (4)), and also noted that this court’s decision in Oreen v. Jones,¹ held that sec. 103.50 also provided civil remedies for effectuating the intent of the statute, i.e., “to stimulate and protect the economic position of individual workers whose jobs are in execution of a highway improvement.” ² Although the trial court referred to Green v. Jones, it concluded that the WERC was the proper body to enforce these civil remedies.³

Addressing itself to the real issue as we view it, i.e., whether Local 200 is a proper party to bring the action, the court noted that Local 200 “could file a [criminal] complaint against the contractor for noncompliance under section 103.50 (8), Wisconsin Statutes . . .” (the WERC had so stated), but went on to hold that Local 200 was also entitled to bring an unfair labor practice charge as well, reasoning:

“It is important that the prevailing wage scale be upheld and enforced. Certainly a union representing employees who are beneficiaries of such a prevailing wage scale have an interest in seeing that wage scale is strictly enforced.

“If the only alternatives open to a union in this case were noncoercive picketing and filing criminal complaints, the public policy of the state would be frustrated. The legislature in enacting section 103.50, Wisconsin Statutes gave all employees who are or may be working in highway construction the guarantee of the prevailing wage rate in the area. Nonpayment of the prevailing wage scale was made a crime and section 111.06 (1) (L), Wisconsin Statutes, makes it an unfair labor practice for an employer:

“ ‘To commit any crime or misdemeanor in connection with any controversy as to employment relations.’

“Certainly, if Gerovac is not paying the prevailing wage rate, there is an unfair labor practice being committed.

“This court finds that in the case at bar, the alleged unfair labor practice would be committed not only against the employees of Gerovac, but rather against all employees in the area who might be affected by the prevailing wage scales. Further, this court feels that it was the intention of the legislature to provide the Wisconsin Employment Relations Commission as a forum for the airing of such complaints by employees so affected.”

We find basic weaknesses in the trial court’s analysis of the problem. The first is its conclusion that the instant action is necessary to effectuate the purpose of the prevailing wage law. The purpose of this law is “to stimulate and protect the economic position of individual workers whose jobs are in execution of a highway improvement.” ⁴ It is clear that the legislature sought to enforce the prevailing wage law through criminal sanctions applicable both to the offending employer ⁵ and to employees who acquiesce in their employer’s illegal action.⁶ The statute specifies that it is the highway commission who has the duty to “require adherence to subs. (1) and (6).”⁷ The statute also specifies that:

“. . . Upon request of the highway commission or upon complaint of alleged violation, the district attorney of the county in which the work is located shall make such investigation as necessary and prosecute violations in a court of competent jurisdiction.” ⁸

Thus, it was obviously the intent of the legislature to enforce the law by means of criminal prosecutions or threat thereof, initiated by the highway commission, or presumably by a citizen or group of citizens. There is no evidence of such action here by the highway commission, or by any other citizen or group of citizens.

This court has further recognized ⁹ that sec. 103.50, Stats., also “created a private right with a civil remedy . . . In Green v. Jones our court held sec. 103.50 created no administrative forum for the enforcement of that right, and that, therefore, the right could be enforced in court. Our court specifically declared that the statute created a private right but “sec. 103.50, Stats., created no administrative forum for determination of private rights.” ¹⁰

In the instant case, Local 200 is seeking to have such an administrative forum, the WERC, enforce sec. 103.50, Stats., by the circular route of an unfair labor practice charge. The circuit court approved this action by assuming that the remedies provided in the statute (sec. 103.50) were not adequate to effectuate the purpose of the law, and that the administrative forum (for enforcement) must he the Wisconsin Employment Relations Commission.

In short, this court has said sec. 103.50, Stats., creates a private right enforceable in court because no administrative forum for enforcement was expressly created. It is clear from a reading of the statute that the private right is that of the employees of the noncomplying employer. They may enforce it in court, or their union, as their representative, may presumably enforce it for them.¹¹ However, Local 200 here could probably not enforce this right in court for the employees of Gerovac for an obvious reason: no standing. Local 200 does not represent these employees. Hence Local 200 uses the method here employed to accomplish nearly the same result.

The circuit court would permit this because, in its view, the remedies provided for effectuating the purposes of the prevailing wage law are not adequate. We quarrel with this view. The legislature obviously intended to enforce the prevailing wage law through the use of criminal sanctions and by civil court actions taken by the employees of the noncomplying employer. We cannot assume that these means of enforcement are inadequate. No showing has been made here that they have been tried and found inadequate.

Local 200 has one more remedy: to seek representational status among Gerovac’s employees. This is one of the primary purposes of the Employment Peace Act— collective bargaining in which both sides have rights and responsibilities. This has not been done here.

There is a second weakness in the trial court’s analysis : its analysis leading it to conclude that WERC jurisdiction of this complaint of Local 200 effectuates the purposes of the Employment Peace Act.

The trial court noted that the policy of the Employment Peace Act is to “protect; and promote each of these interests [public, employee, and employer] with due regard to the situation and to the rights of the others.” ¹² Also “to provide a convenient, expeditious and impartial tribunal by which these interests may have their respective rights and obligations adjudicated.” ¹³ The WERC is that “tribunal” designed to enforce the rights enumerated in the Peace Act. (The legislature, however, set up different procedures to enforce the public and private rights created by sec. 103.50, Stats.)

The WERC did not here decide that the prevailing wage law could not be enforced by means of an unfair labor practice charge brought by a proper party. It merely held that Local 200 was not a proper party.

In support of the WERC position, we have the existence of their continuing policy in this regard: a party in interest is one who is a party to a “controversy as to employment relations,” and such a controversy requires “the normal concomitants of disputes between labor organizations and managements, i.e., representative status or a claim thereof . . . .” The WERC has not gone so far as to require the existence of a “labor dispute” which in turn requires majority status of the union. A “claim of representation” is enough.¹⁴

Here the “controversy as to employment relations” alleged by Local 200 to exist is their demand that Gerovac pay the prevailing wage as required by law, Gerovac’s apparent refusal to do so, and Local 200’s picketing. The WERC has said this is not enough, requiring, in effect, that Local 200 at least purport to represent the employees of Gerovac.

The circuit court circumvented this problem by stating that the unfair labor practice in this case was being committed against all in general industry because of their interest and the potential adverse effect on them. However, the unfair labor practice alleged in this case is a misdemeanor: failure to comply with the prevailing wage law. Consequently, the entire public has an interest in seeing it enforced, and a potential economic interest as well. Taking the definition of employee from the Peace Act to mean any employee, as did the trial court, means that any member of the public who is an employee may bring an unfair labor practice charge against a noncomplying employer once his demand for compliance is refused. Had the legislature intended such a result, it is hard to believe they would not have so stated in the Peace Act (as well as in the prevailing wage law) rather than specifying that charges could be brought by a “party in interest.”

Obviously Local 200 has an interest in Gerovac’s employment practices in this case. But is it of such a nature that it must bring an unfair labor practice charge before the WERC in order to protect it? And is it unreasonable for the WERC to hold that Local 200 may not do so?

The WERC holds that it interprets sec. 111.07 (2) (a), Stats., a jurisdictional statute, as limiting “parties in interest” to those engaged in “controversy as to employment relations,” defining such controversies as those involving an employer and his employees or their representational labor organization. Further, the WERC, under some circumstances, extends “party in interest” status to a labor union that is seeking representation. However, it will not extend such status to Local 200, who neither represents nor purports to represent Gerovac’s employees. Despite Local 200’s admitted interest in area standards, there are good reasons to uphold the WERC’s position.

First, considerable weight should be accorded the WEEC’s interpretation of this statute. The legislature entrusted the interpretation and enforcement of the Peace Act in the first instance to the WEEC. It has considerable expertise in the field,¹⁵ with the perspective that comes from continued dealing with labor controversies of all kinds. The rationale of this court’s recent decision in State v. Chippewa Cable Co.16 has meaning here:

“Our principal reason for relying on the agency’s interpretation of a statute is found in the comparative qualifications of the court and the agency. The court is reluctant to substitute its own judgment for the agency’s where the statute in question requires application of the agency’s expertise. Although the agency’s interpretation of a jurisdictional statute, as here, is entitled to less weight than its interpretation of other statutes, we must observe here that the commission ... is made up of experts in the field of aviation safety who we may assume are knowledgeable about the problems (both existing and prospective) in the field. The commission has concluded that exercise of the maximum jurisdiction possible under the statute is necessary to permit it to adequately protect navigable airspace and it is reasonable to conclude, therefore, that the legislature must have intended to grant such jurisdiction.” ¹⁷

Here, the WEEC has concluded that the exercise of maximum jurisdiction possible under the statute is not necessary to effectuate the purposes of the Peace Act (not the prevailing wage law), but that some limits should be placed on the extending of “party in interest” status.

Second, this construction given the statute by the WEEC is not unreasonable. It does not frustrate the purposes of the Peace Act, with which it is concerned. Even if Local 200’s interpretation of the statute, as accepted by the trial court, should be considered reasonable, in the event of differing interpretations of the statute, both reasonable, the agency’s construction is accepted by this court.¹⁸

Local 200 is primarily concerned with effectuating the purpose of the prevailing wage law. And, as has already been discussed, the legislature chose to make the highway commission primarily responsible for the latter’s enforcement, not the WERC. It also made the various district attorneys responsible through their usual law enforcement function. The method of enforcement chosen was that of criminal sanctions, with proceedings initiated by the highway commission or, presumably, the public generally.

In addition, the employees of the noncomplying employer may seek recovery of wages due them under the act in court, pursuant to Green v. Jones, supra. An interested union may engage in noncoercive picketing to publicize the employer’s illegal pay practices. That union may always seek to organize the employees.

It has not been shown that these remedies are inadequate thereby making resort to the instant approach a necessity. Even so, this is a function for the legislature to perform.

Third, to allow any interested union to follow the route here proposed by Local 200 raises the question of limitations discussed earlier. How strong must the interest be? Isn’t all of labor somehow affected? ¹⁹ Admittedly, the “interest” might be limited to the particular industry, but how does one distinguish between the various trades in this day of specialized skills with their complex interdependent functions in a particular industry? And a large union such as that of the Teamsters (of which Local 200 is a part) covers many industries, from supermarkets to highway construction. They then would be “interested” in the wages paid to retail clerks and street workers. It is clear that there is some value and reason for the WERC, with its expertise, to limit their jurisdiction as it has.

We conclude that the construction which the WERC has placed on its jurisdictional statute should be upheld.

The legislature has detailed the means for enforcing the prevailing wage law: criminal sanctions activated primarily by the highway commission. These means have been supplemented by the additional remedy made available by Green v. Jones: ²⁰ civil suit by an affected employee. The legislature has not provided for any WERC jurisdiction in this area and the construction made by the WERC imposing limits on its own jurisdiction is entirely reasonable.

By the Court. — .Order reversed.

2 Id. at page 558.

3 However, Green v. Jones states at page 560, as the trial court noted:

“. . . Sec. 103.50, Stats., does not create a quasi-judicial body to conduct hearings in relation to violations of certified wage rates. Statutes providing an administrative forum for enforcement of workers’ rights expressly create such a body.”

4 Green v. Jones, supra, footnote 1, at page 558.

5 Sec. 103.50 (7) (a), Stats.

6 Sec. 103.50 (7) (c), Stats.

7 Sec. 103.50 (8), Stats.

8 Bid.

9 Green v. Jones, supra, footnote 1, at page 561.

10 Id.

11 Milwaukee Fire Fighters Asso. v. Milwaukee (1971), 50 Wis. 2d 9, 20, 183 N. W. 2d 18.

12 Sec. 111.01 (1), Stats.

13 Sec. 111.01 (4), Stats.

14 Milwaukee Cheese Co., WERC Dec. No. 5792, August, 1961.

15 Muskego-Norway Consolidated, Schools Joint School Dist. No. 9 v. Wisconsin Employment Relations Board (1967), 35 Wis. 2d 540, 562, 151 N. W. 2d 617.

16 (1970), 48 Wis. 2d 341, 180 N. W. 2d 714.

17 Id. at page 354.

18 Id. See also: Milwaukee Transformer Co. v. Industrial Comm. (1964), 22 Wis. 2d 502, 510, 126 N. W. 2d 6.

19 Note that the Milwaukee Building & Construction Trades Council submitted an amicus curiae brief to the circuit court.

20 Supra, footnote 1.