1. A certification by the Wisconsin Employment Relations Board
of a union as the collective bargaining representative of the
employees of an employer engaged in interstate commerce, which
certification has been reviewed and sustained by the highest court
of the State,
held, in view of the effect of the
certification under the state law, a "final judgment" within the
meaning of § 237(a) of the Judicial Code and reviewable here,
although the certification was not in the form of a command. Pp.
336 U. S.
21-24.
2. In a proceeding under state law, the Wisconsin Employment
Relations Board certified that the employees in the plant and
traffic departments of a telephone company had elected to combine
in a single bargaining unit and had chosen a certain labor
organization as their collective bargaining representative, and
that the employees in the office department had elected to
constitute themselves as a separate unit and had chosen not to have
any collective bargaining representative. The National Labor
Relations Board had not undertaken, under the National Labor
Relations Act, to determine the appropriate bargaining
representative or unit of representation of the employees. The
company concededly was engaged in interstate commerce, and the
industry was one over which the National Labor Relations Board had
consistently exercised jurisdiction.
Held: the State Board's certification is invalid as in
conflict with the National Labor Relations Act.
Bethlehem
Steel Co. v. New
Page 336 U. S. 19
York State Labor Relations Board, 330 U.
S. 767, followed. Pp.
336 U. S.
24-26.
3. The Labor Management Relations Act of 1947, which authorizes
the National Board under specified conditions to cede its
jurisdiction to a state agency, does not require a result different
from that here reached. Pp.
336 U. S.
26-27.
251 Wis. 583, 30 N.W.2d 241, reversed.
The appellant telephone company and the appellant union each
brought an action in a state court to set aside a certification by
the Wisconsin Employment Relations Board. The State Circuit Court
held that the State Board was without jurisdiction to issue the
certification. The State Supreme Court reversed. 251 Wis. 583, 30
N.W.2d 241. On appeals to this Court,
reversed, p.
336 U. S.
27.
Page 336 U. S. 20
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
These cases, here on appeal from the Wisconsin Supreme Court, 28
U.S.C. § 344(a), present the question whether a certification
of a union by the Wisconsin Employment Relations Board,
Wis.Stats.1947, ch. 111, as the collective bargaining
representative of the employees of appellant company conflicts with
the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. §
151
et seq.
Prior to 1945, the appellant company recognized the appellant
union as the collective bargaining representative of its plant and
traffic department employees. The company and the union entered
into a collective bargaining agreement which, by its terms, was to
continue from year to year unless terminated by either party on a
specified notice. At a time when certain provisions of that
agreement were being renegotiated a rival union, the Telephone
Guild, filed a petition with the National Board asking that it
certify the collective bargaining representative of these
employees. Before the National Board acted, the Guild withdrew its
petition and filed a petition with the Wisconsin Board seeking the
same relief.
The Wisconsin Board held a hearing and directed that separate
elections be held among the employees in the plant, traffic, and
office departments of the company to determine whether they desired
to be grouped in a single unit or in departmental units, and what
representative, if any, they desired to elect. After the election,
the Wisconsin Board certified that the employees in the plant and
traffic departments had elected to combine in a single bargaining
unit and had chosen the Guild as their collective bargaining
representative, and that the employees in the office department had
elected to constitute themselves as a separate unit and had chosen
not to have any collective bargaining representative.
Page 336 U. S. 21
Each appellant brought an action in the Wisconsin courts to have
the certification set aside. The Circuit Court, relying on
Bethlehem Steel Co. v. New York Labor Relations Board,
330 U. S. 767,
held that the Wisconsin Board was without jurisdiction to issue the
certification. The Supreme Court of Wisconsin reversed. 251 Wis.
583, 30 N.W.2d 241.
First. We are met at the outset with a contention that
the certification of the Wisconsin Board which has been sustained
by the Wisconsin Supreme Court is not a "final judgment" within the
meaning of § 237(a) of the Judicial Code, 28 U.S.C. §
344. The argument is that, under Wisconsin law, the certification
is no more than a report on the results of an investigation made
known to the parties for such use as they may desire, that nothing
can be done by any state agency to enforce observance of the
certification, that the company cannot be required to bargain with
the certified union until and unless an unfair practice charge is
lodged against it, and that, in such proceeding, all the issues
involved in the certification proceeding can be relitigated. If
that contention is correct, the case is, of course, not ripe for
the intervention of the federal judicial power.
See Rochester
Telephone Corp. v. United States, 307 U.
S. 125,
307 U. S.
130-131, and cases cited.
But it has not been shown that the Wisconsin law gives such
slight force to the certification. The statute provides that the
representative chosen by the employees shall be the exclusive one
for purposes of collective bargaining. § 111.05(1). Provision
is made for the board to take a secret ballot of the employees and
to certify the results thereof, whenever a question arises
concerning the representation of employees in a collective
bargaining unit. § 111.05(3). And the statute contains the
following direction:
"The board's certification of the results of any election shall
be conclusive as to the findings included
Page 336 U. S. 22
therein unless reviewed in the same manner as provided by
subsection (8) of section 111.07 for review of orders of the board.
[
Footnote 1]"
§ 111.05(3). The certification in these cases has been
reviewed and sustained by the highest court of Wisconsin. While
that certification is not irrevocable for all time, [
Footnote 2] it fixes a status to which
Wisconsin provides a sanction. For it is an unfair labor practice
for an employer to refuse to bargain with the representative of a
majority of the employees. [
Footnote 3] § 111.06(d). And, since § 111.05(3)
makes the certification, subject to judicial review, "conclusive as
to the findings included therein," it would seem that the
certification cannot be collaterally attacked in that proceeding or
heard
de novo. We are pointed to no Wisconsin authority to
the effect that it can be.
On this phase of the case, we are, indeed, referred to only one
Wisconsin authority, and that is
United R. & W.D.S.E. v.
Wisconsin Board, 245 Wis. 636, 15 N.W.2d 844. But that case
merely held that an order of the Wisconsin Board that a referendum
of employees by secret ballot be held to determine whether an "all
union" agreement was desired was not reviewable. It did not
Page 336 U. S. 23
deal with a certificate which was, in fact, reviewed and
sustained by the same court as in the present cases. It is true
that, in the opinion below, the Wisconsin Supreme Court said that
the "mere factfinding procedure" of the Wisconsin Board in
ascertaining the facts in ordering an election and in certifying
the result "constitutes action in merely its ministerial capacity."
251 Wis. at 592, 30 N.W.2d at 245. But that comment was directed to
the lack of discretion which the state statute had left the
Wisconsin Board. It had no relevance to the effect of the
certification under Wisconsin law.
While the Wisconsin Employment Relations Board seems readier
than some to reexamine the status of a bargaining representative on
the ground that it has lost the support of a majority, [
Footnote 4] it nevertheless appears to
be Wisconsin law that a certification is binding upon an employer
so long as it stands. [
Footnote
5]
We assumed, in
Allegheny Ludlum Steel Corp. v. Kelley,
330 U. S. 767,
that the certification of a collective bargaining representative,
sustained by the highest court of the state, was a final judgment,
although it did not, of itself, command action, but, like the
certification here, was enforceable in law only by another
proceeding. [
Footnote 6]
We think that is the correct view. The fact that Wisconsin's
certification was not in the form of a command
Page 336 U. S. 24
is immaterial.
See American Federation of Labor v. Labor
Board, 308 U. S. 401,
308 U. S. 408.
It was not an abstract determination of status. Nor was it merely
an interim adjudication in an uncompleted administrative process.
It established legal rights and relationships. It told the
employer, subject to judicial review, with whom he could not refuse
to negotiate without risk of sanctions. The character of the
certification was therefore such as to make it reviewable under the
appropriate standards for exercise of the federal judicial
power.
Second. The Wisconsin Supreme Court concluded that the
Wisconsin Board could exercise jurisdiction here until and unless
the National Board undertook to determine the appropriate
bargaining representative or unit of representation of these
employees. That view was urged on us in the like cases coming here
under a New York statute. In
Bethlehem Steel Co. v. New York
State Labor Relations Board, supra, at
330 U. S. 776,
we rejected that argument, saying:
"The State argues for a rule that would enable it to act until
the federal board had acted in the same case. But we do not think
that a case by case test of federal supremacy is permissible here.
"
Page 336 U. S. 25
We went on to point out that the National Board had jurisdiction
of the industry in which those particular employers were engaged
and had asserted control of their labor relations in general. Both
the state and the federal statutes had laid hold of the same
relationship, and had provided different standards for its
regulation. Since the employers in question were subject to
regulation by the National Board, we thought the situation too
fraught with potential conflict to permit the intrusion of the
state agency, even though the National Board had not acted in the
particular cases before us.
Those considerations control the present cases. This employer is
concededly engaged in interstate commerce, and the industry is one
over which the National Board has consistently exercised
jurisdiction. [
Footnote 7] The
Wisconsin Act provides that a majority of employees in a single
craft, division, department, or plant of an employer may elect to
constitute that group a separate bargaining unit. § 111.02(6).
The federal act leaves that matter to the discretion of the board.
[
Footnote 8] When, under those
circumstances, the state board puts its imprimatur on a particular
group as the collective bargaining agent of employees, it freezes
into a pattern that which the federal act has left
Page 336 U. S. 26
fluid. [
Footnote 9] In
practical effect, the true measure of conflict between the state
and federal scheme of regulation may not be found only in the
collision between the formal orders that the two boards may issue.
We know that administrative practice also disposes of cases in
which no order has been entered. Disposition of controversies on an
administrative, as distinguished from a formal, basis will often
reflect the attitudes of the National Board which have not been
reduced to orders in those specific cases. A certification by a
state board under a different or conflicting theory of
representation may therefore be as readily disruptive of the
practice under the federal act as if the orders of the two boards
made a head-on collision. These are the very real potentials of
conflict which lead us to allow supremacy [
Footnote 10] to the federal scheme even though
it has not yet been applied in any formal way to this particular
employer. The problem of employee representation is a sensitive and
delicate one in industrial relations. The uncertainty as to which
board is master and how long it will remain such can be as
disruptive of peace between various industrial factions as actual
competition between two boards for supremacy. We are satisfied with
the wisdom of the policy underlying the Bethlehem case and adhere
to it.
The result we have reached is not changed by the Labor
Management Relations Act of 1947, 61 Stat. 136, 29
Page 336 U. S. 27
U.S.C.Supp. I, § 141
et seq. That Act grants the
National Board authority under specified conditions to cede its
jurisdiction to a state agency. [
Footnote 11] But it does not appear that there has been
any cession of jurisdiction to Wisconsin by the National Board in
representation proceedings. [
Footnote 12]
Reversed.
MR. JUSTICE RUTLEDGE, having joined in the dissent in
Bethlehem Steel Co. v. New York Labor Relations Board,
330 U. S. 767,
see p.
330 U. S. 777,
acquiesces in the Court's opinion and judgment in this case.
* Together with No. 39,
International Brotherhood of
Electrical Workers, Local B-953, AFL v. Wisconsin Employment
Relations Board et al., also on appeal from the same
court.
[
Footnote 1]
That review extends to administrative decisions affecting legal
rights, duties, and privileges whether affirmative or negative in
form, § 227.15, and is allowed any person aggrieved and
directly affected by the administrative decision. §
227.16.
[
Footnote 2]
Section 111.05(4) provides:
"The fact that one election has been held shall not prevent the
holding of another election among the same group of employees,
provided that it appears to the board that sufficient reason
therefor exists."
[
Footnote 3]
Section 111.06(d) also provides that, where an employer files
with the board a petition requesting a determination as to majority
representation,
"he shall not be deemed to have refused to bargain until an
election has been held and the result thereof has been certified to
him by the board."
But we are pointed to no authority holding that, where a
certification has already been made, a recertification can be
demanded. Section 111.05(3), indeed, makes the certification
"conclusive."
[
Footnote 4]
[
Footnote 5]
See In re United Brotherhood of Carpenters &
Joiners, 2 L.R.M. 894 (Wis.County Cir.Ct., 1938);
In re
Charles Abresch, 3 L.R.M. 639 (Wis.E.R.B. Decision No. 744,
1938);
cf. Wisconsin Board v. Hall Garage Corp., 18 L.R.M.
2419 (Wis.County Cir.Ct., 1946).
[
Footnote 6]
In
Allegheny Ludlum Steel Corp. v. Kelley, supra, suit
had been brought in the state court for a declaratory judgment to
restrain the state labor board from determining a representative of
plaintiff's supervisory employees to bargain collectively with the
plaintiff. Under New York law, the labor board had authority to
hold elections to determine employee representation and to certify
the results. 30 McKinney's Consol.Laws, c. 31, Labor Law, §
705. Certification, in itself, as in the instant case, did not
impose a legal penalty. Suit had to be brought in an unfair labor
practice proceeding to accomplish such result. 30
id.
§ 706. Refusal to bargain with the representative of the
employees was an unfair labor practice. 30
id. §
704(6). Even though the New York law did not state, as does the
Wisconsin law, that certification by the board was conclusive, we
considered a decision of the New York court approving the
jurisdiction of the state board to conduct a representative
proceeding a final judgment ripe for our consideration.
[
Footnote 7]
See Elyria Telephone Co., 58 N.L.R.B. 402;
Newark
Telephone Co., 59 N.L.R.B. 1408;
Peoples Telephone
Co., 69 N.L.R.B. 540;
Ohio Telephone Service Co., 72
N.L.R.B. 488.
The appellant company operates a telephone business in La Crosse
County, Wisconsin. It is a subsidiary of the Central Telephone Co.,
whose subsidiaries operate telephone businesses in many states. The
concession that the company is engaged in interstate commerce is
based on the interstate telephone calls which it handles.
[
Footnote 8]
"The Board shall decide in each case whether, in order to insure
to employees the full benefit of their right to self-organization
and to collective bargaining, and otherwise to effectuate the
policies of this Act, the unit appropriate for the purposes of
collective bargaining shall be the employer unit, craft unit, plant
unit, or subdivision thereof."
[
Footnote 9]
Moreover, the Wisconsin Act excludes from the definition of
employee those working in a supervisory capacity. § 111.02(3).
They were, however, included under the protection of the federal
act as then written.
Packard Motor Co. v. Labor Board,
330 U. S. 485. The
definition of employee under the Wisconsin Act also excludes
certain strikers and others who have not been at work for certain
periods. § 111.02(3). These latter exceptions likewise do not,
in the main, square with the definition of employee contained in
§ 2(3) of the federal act.
[
Footnote 10]
U.S.Const. Art. VI.
[
Footnote 11]
Section 10(a) of the National Labor Relations Act, §
amended, now provides in part:
"the Board is empowered by agreement with any agency of any
State or Territory to cede to such agency jurisdiction over any
cases in any industry (other than mining, manufacturing,
communications, and transportation except where predominantly local
in character) even though such cases may involve labor disputes
affecting commerce, unless the provision of the State or
Territorial statute applicable to the determination of such cases
by such agency is inconsistent with the corresponding provision of
this Act or has received a construction inconsistent
therewith."
[
Footnote 12]
The agreement of August 27, 1948, between the National Board and
the Wisconsin Board is restricted to the implementation of §
14(b) of the federal act.
See 22 L.R. 268.