Muskego-Norway Consolidated Schools Joint School District No. 9 v. Wisconsin Employment Relations Board

151 N.W.2d 84, 32 Wis. 2d 478, 1967 Wisc. LEXIS 1257, 63 L.R.R.M. (BNA) 2376

• Court: Wisconsin Supreme Court
• Decided: May 4, 1967
• Status: Published

Opinions

Hallows, J.

Because we are of the opinion the circuit court was correct in holding the WERB was without jurisdiction to make findings of fact, conclusions of law and its order eleven months after the matter was finally submitted to it on briefs, we do not reach or decide the important questions of whether the school board violated any of the practices prohibited by sec. 111.70, Stats., relating to the rights of public employees to organize or join labor organizations.

We construe sec. 111.07 (4), Stats., in the light of sub. (12), to be a limitation upon the jurisdiction of WERB and to command the making of findings substantially within a period of sixty days from the hearing of all testimony and arguments of the parties.¹ The WERB points out that statutes setting time periods within which various officials or agencies are to perform an act are generally construed to be directory and not jurisdictional or mandatory and relies on Appleton v. Outagamie County (1928), 197 Wis. 4, 220 N. W. 393; State v. Industrial Comm. (1940), 233 Wis. 461, 289 N. W. 769; and Worachek v. Stephenson Town School Dist. (1956), 270 Wis. 116, 70 N. W. (2d) 657.

The difference between what is mandatory and directory lies mainly in the duty to comply and the consequence of noncompliance. Generally, a mandatory provision must be strictly complied with and there is no discretion in the agency or public official. Failure to comply with a mandatory statute renders the proceeding void, while noncompliance with a directory provision does not invalidate the proceeding. But we think the jurisdictional aspect of a mandatory requirement is not lost because a standard of compliance less than literal or strict is provided. Such a standard, while more flexible, is nonetheless a limitation upon the exercise of the power or the performance of the duty. Directory provisions can be permissive, enabling or precatory.

In State v. Industrial Comm. (1940), 233 Wis. 461, 466, 289 N. W. 769, the court stated “. . . as a rule a statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of power after such time, or the nature of the act, or the statutory language, shows that the time was intended to be a limitation.” This is a generalization of the holdings in cases interpreting time provisions of statutes and furnishes some guide of statutory construction for this case. See also 50 Am. Jur., Statutes, p. 49, sec. 28; 82 C. J. S., Statutes, p. 869, sec. 376.

True, in this case there is no language in the statute prohibiting the exercise of the power to issue an order after sixty days, but implicit in the language of sec. 111.07 (12), Stats., which provides that substantial compliance shall be sufficient to give effect to the orders of the board, is the intent that compliance which is not substantial in point of time is fatal. This statutory language indicates that substantial compliance with the sixty-day period in sec. 111.07 (4) was intended to be a limitation. In this instance we cannot read the word “shall” in sec. 111.07 (4) as “may” or merely precatory. See Scanlon v. Menasha (1962), 16 Wis. (2d) 437, 114 N. W. (2d) 791; Wauwatosa v. Milwaukee County (1963), 22 Wis. (2d) 184, 125 N. W. (2d) 386; Worachek v. Stephenson Town School Dist., supra.

Because of the express language of these sections, it is not important there is an absence of a positive prohibition on the exercise of the power after sixty days. The equivalent of a positive prohibition of excessive delay is stated affirmatively by requiring substantial compliance. Furthermore, it is in the public interest that questions of unfair labor practices be decided expeditiously. Originally, this section as enacted by ch. 57, Laws of 1939, provided “[a]fter the final hearing the board shall promptly make and file its findings . . . .” By ch. 437, Laws of 1949, “promptly” was changed to “within 60 days.” If this period is not sufficient for the efficient operation of the WERB, the need should be addressed to the legislature.

We think a nine months’ delay beyond the sixty days cannot be said to be substantial compliance. This delay is more than four times the original period allowed for the making of the findings of fact. It is not contended and it cannot be successfully that this delay constitutes an “omission of a technical nature,” which is to be disregarded under the mandate of sec. 111.07 (12), Stats. We need not now decide the periphery of delay after the sixty days beyond which compliance would not be substantial. We hold only that the making and filing of the findings of fact after nine months’ delay, even considering the length of the record before the WERB and the complexity of the legal questions involved, simply does not constitute substantial compliance with sec. 111.07 (4).

By the Court. — Judgment affirmed.

1 “111.07 Prevention of unfair labor practices.

“(4) Within 60 days after hearing all testimony and arguments of the parties, the board shall make and file its findings of fact upon all of the issues involved in the controversy, . . .

“(12) A substantial compliance with the procedure of this sub-chapter shall be sufficient to give effect to the orders of the board, and they shall not be declared inoperative, illegal, or void for any omission of a technical nature in respect thereto.”