COURT OF APPEALS DECISION
DATED AND RELEASED
November 23, 1994
STATE OF WISCONSIN
IN COURT OF APPEALS
WISCONSIN STATE EMPLOYEES UNION
(WSEU), AFSCME, AFL-CIO,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
Decision No. 26959-D
APPEAL from an order of the circuit court for Dane County: RICHARD J.
Before Gartzke, P.J., Dykman and Sundby, JJ.
DYKMAN, J. The Wisconsin State Employees Union, AFSCME, and the AFL-CIO
"WSEU") appeal from an order affirming a decision of the Wisconsin Employment Relations
Commission (WERC) which set aside a WERC hearing examiner's determination that the
University, of Wisconsin-Madison Physical Plant Division had not complied with an
award. WERC remanded the case to the arbitrator to clarify whether Stephen Morkin is
to a full or pro rata share of lost wages and benefits for the period during which he was
wrongfully discharged. WSEU contends that WERC incorrectly determined that the
award is ambiguous and therefore argues that remand is not warranted. We agree with
that the arbitrator's award is not ambiguous, and therefore reverse.
In November 1988, the University discharged Stephen Morkin, a building maintenance
for disciplinary violations. WSEU filed a grievance with an arbitrator and hearings were
On July 13, 1990, the arbitrator reduced the discharge to a ten-day suspension and ordered
University to pay Morkin "all lost wages and benefits."
The University reinstated Morkin as of July 30, 1990. On March 15, 1991, the
informed Morkin that annual leave, personal holidays and legal holidays earned from the date
his discharge to reinstatement would be included in total back pay. However, the University
prorated the annual leave and personal holidays for 1990 and credited Morkin with only
hours of annual leave and ten hours of personal holiday for the period between July 30, 1990
through December 31, 1990. The University also prorated Morkin's sick leave based upon
Morkin's history of using of sick leave as it was earned. The University explained, "[b]ased
your prior use, we considered all sick leave earned during the period of November 6, 1988
through July 30, 1990, as used and included as part of the hours paid."
Consequently, Morkin was
not compensated for any sick leave accrued during the period he was wrongfully terminated.
WSEU filed a complaint with WERC to enforce the award, arguing that the University
complying with the arbitrator's award and was committing unfair labor practices in violation
Sec. 111.84, STATS. The WERC hearing examiner found that the issue of what would
an appropriate remedy if Morkin was found wrongfully discharged was not raised or argued
the arbitrator. The examiner determined that by prorating Morkin's sick leave, annual paid
and person holiday credits for 1990, the University had not complied with the terms of the
arbitrator's award. Consequently, the examiner concluded that the University had committed
unfair labor practices.
WERC adopted the examiner's finding that the remedy issue was not raised or argued
arbitrator and reasoned that his view on this issue was unknown. Consequently, WERC set
the examiner's findings that the University was not complying with the arbitrator's award and
concluded that the award did not resolve the question of the extent of Morkin's entitlement to
leave, annual paid leave and person holidays for 1990. WERC remanded this issue to the
arbitrator for clarification. The trial court reviewed WERC's decision with deference and
subsequently affirmed. WSEU appeals.
STANDARD OF REVIEW
We review an administrative agency's decision and not that of the court.
Lewandowski v. State,
140 Wis.2d 405, 409, 411 N.W.2d 146, 148 (Ct. App. 1987). We apply three levels of
to conclusions of law made by an administrative agency. The greatest deference given to
interpretations is the it great weight" standard which is given when the "agency's experience,
technical competence, and specialized knowledge aid the agency in its interpretation and
application of the statute...... Sauk County v. WERC, 165 Wis.2d 406,
413, 477 N.W.2d 267,
270 (1991) (quoting West Bend Education Assn v. WERC, 121 Wis.2d 1,
12, 357 N.W.2d 534,
539 (1984)). The next level of review is the 'due weight' or "great bearing" standard which
given when "the agency decision is 'very nearly' one of first impression." Id. at 413-14, 477
N.W.2d at 270 (citation omitted). The lowest level of deference is the de novo
standard, in which
"no weight" is given when the case is one of first impression and the agency has no special
expertise or experience in the particular area. Id. at 414, 477 N.W.2d at 27071.
Neither WERC nor WSEU cite any Wisconsin appellate decision that addresses when
arbitrator's award should be remanded to an arbitrator for clarification. (1) Because this is an issue
of first impression in Wisconsin and this court is as competent as an administrative agency to
determine whether an arbitration award is ambiguous, we apply the de novo
WERC contends that its determination that the arbitration award did not resolve
is entitled to his full sick leave, annual paid leave and personal holidays for 1990 rather than
prorated amount was reasonable and that a remand to the arbitrator for a supplemental award
proper. According to WERC, the arbitrator's award may be read to permit the University to
prorate the award. Consequently, WERC concludes that remand is proper so that the
may clarify the remedy. We disagree.
Courts do not interpret ambiguous arbitration awards. Those which are unclear should
remanded for clarification. United Food & Commercial Workers
Local 1OOA, AFL-CIO & CLC
v. John Hofmeister and Son, Inc., 950 F.2d 1340, 1345 (7th Cir. 1991).
preferred method is to avoid a remand to the arbitrator when possible so as not to frustrate
interest in prompt and final arbitration. Flender Corp. v. Techna-Quip Co.,
953 F.2d 273, 280
(7th Cir. 1992) (citations omitted). Thus, a court may interpret an ambiguous award if the
resolves the ambiguity. Id.
After concluding that Morkin was wrongfully discharged, the arbitrator ordered him
awarded him "all lost wages and benefits." The plain language of this award is unambiguous
susceptible to only one reasonable interpretation: Morkin is entitled to all lost wages and
and not a pro rata share. Thus, since the University prorated Morkin's sick leave, annual
leave and personal holidays for 1990, it did not comply with the arbitrator's clear mandate.
Chicago Newspaper Guild v. Field Enters., Inc., Newspaper Div., 747 F.2d
1153, 1156 (7th Cir.
Just because an award is silent as to whether an award should be offset or prorated by
does not make the award ambiguous. Automobile Mechanics Local
701, Int'l Assn of Machinists
& Aerospace Workers, AFL-CIO v. Joe Mitchell Buick, Inc., 930 F.2d 576,
578 (7th Cir. 1991).
In Joe Mitchell, the arbitrator ordered that the unlawfully discharged
employees be "made whole."
The employer offset the gross wage by amounts owed to the employer due to the employees'
alleged failure to mitigate damages. Id. at 577. The court, however, determined that there
no ambiguity in the award with regard to offsets because the issue was brought to the
the arbitrator and the award was silent. Id. at 578. The court noted: "It is settled that
have discretion to decide whether lost earnings should be offset by interim earnings or a
to mitigate, so that their silence on such issues means that no such offsets are to be made.'
578. The court concluded that "the fact that the award is silent on such a subject [offsets]
not present an ambiguity; otherwise the award would have provided for such a deduction."
578-79 (citation omitted).
In United Steelworkers of Am., AFL-CIO-CLC v. Danly Mach.
Corp., 852 F.2d 1024, 1026 (7th
Cir. 1988), the arbitrator ordered the employer 'to pay grievant [sickness
and accident] benefits
in accordance with the above opinion.' The employee, however, was unable to complete a
claim form because he was not under a treating physician's care. Id. The
employer denied the
benefits and argued that the award was ambiguous as to whether the employee was awarded
actual benefits or merely eligibility for those benefits. Id. The court, however, determined
the award was not ambiguous and that the employee should be awarded the No. 93-3193
Id. at 1027. The court reasoned that the purpose of filing the grievance was to obtain
and ordered the employer to pay them. Id.
We are not persuaded that Hofmeister and Teamsters, Chauffeurs,
Sales-Drivers & Helpers, Local
Union No. 330 v. Elgin Eby-Brown Co., 670 F. Supp. 1393 (N.D. M. 1987),
requires a contrary
result. (2) In Hofmeister, the
arbitrator determined that a wrongfully discharged employee "must
be reinstated and made whole." Hofmeister, 950 F.2d at 1342. The
employer contended that
because the employee was injured after he was wrongfully terminated and could not work, he
not entitled to back pay. Id. The employer did not raise the issue before the arbitrator but
employee's union offered evidence that the employee could work with a back brace. Id. The
employee's union argued that regardless of his afterdischarge injury, he was entitled to lost
and benefits. Otherwise the arbitration award would be nullified. Id. Nevertheless, the court
concluded that the award was ambiguous and that the record did not resolve the ambiguity.
at 1345. According to the court, neither the complaint, pleadings, nor briefs provided "a
consistent basis for the back pay which the Union claims is due under the arbitrator's make
award." Id. With conflicting medical evidence before the arbitrator, the court determined
was "unclear what 'make whole' means." Id. Thus, the court remanded the case to the
for clarification of the award. Id.
Hofmeister is distinguishable in two important ways. First, we are construing the
meaning of "all
lost wages and benefits" and not "make whole." The latter phrase is broader and may be
ambiguous in certain contexts when conflicting evidence is before the arbitrator. Second, the
University did not present evidence to the arbitrator regarding Morkin's history of using his
time or whether prorating an award would be a proper remedy. Therefore, we cannot say
there is any ambiguity with regard to what the arbitrator intended. The arbitrator said that
should be awarded "all lost wages and benefits." This statement is not ambiguous but
that the University compensate Morkin for the full amount of time owed him and not a
amount. That the arbitrator may not have considered the possibility that its remedy might be
prorated, does not render the award ambiguous. We will not impute an ambiguity where
Similarly, in Elgin, the arbitrator awarded the wrongfully discharged
employee full back pay, less
earnings from other employment and offsets for unemployment compensation. Elgin, 670 F.
Supp. at 1395. The arbitrator also ordered that the employee be "made whole" with respect
benefits. Id. The employer contended that the employee failed to mitigate his damages
he did not actively seek employment until after his unemployment compensation expired.
And, while the employer did not raise this issue before the arbitrator, it nonetheless
even though the award was silent as to mitigation, it was implicit in the award. Id. at 1396.
The Elgin court concluded that the award was ambiguous because it
failed to specify the amounts
to be deducted from the back pay award, but avoided remand by determining that evidence in
record showed that "[t]he award is very clear that the only amounts to be deducted from [the
employee's] back pay award are (1) 'earnings, if any, from other
employment,' and (2) 'the
appropriate offset for unemployment compensation.'" Id. at 1396-97. The court, however,
concluded that the award was not ambiguous with regard to mitigation of damages because
issue was never before the arbitrator and therefore, it was clear that the arbitrator did not
mitigation at all. Id. at 1397. See also Joe Mitchell, 930
F.2d at 578-79.
In Morkin's case, the arbitrator never indicated that his award should be offset or
prorated by any
factor. And like the mitigation issue in Joe Mitchell and Elgin, prorating the
award was never
before the arbitrator. Consequently, it is clear that the arbitrator did not consider prorating
award. Therefore, there is no ambiguity. Accordingly, we reverse the decision of WERC
order the University to pay Morkin all lost wages and benefits.
By the Court. Order reversed.
Recommended for publication in the official reports.
GARTZKE, P.J. (dissenting). Unfair labor practice complaints are
submitted to WERC. Section
111.84(4), STATS. The complaint in this case has to do with arbitration of a labor
Labor arbitration raises issues within WERC's expertise. When, as here, the issue turns on
meaning of "all lost wages and benefits" in an arbitrator's award, it is proper for WERC to
remand the matter to the arbitrator to find out what the arbitrator meant. WERC did not
the court did not know, and one member of this panel does not know. The majority's claim
it knows is surprising.
1. WERC concedes in its argument as to why it
believes this opinion should be published that
"there are no Wisconsin judicial decisions which address the issue of when it is proper to
a matter to an arbitrator for clarification of an arbitration award and the issuance of a
2. WERC also argues that WERC V.
Teamsters Local No. 563, 75 Wis.2d 602, 606, 250
N.W.2d 696, 698 (1977), overruled by City of Madison V. Madison Professional
Ass'n, 144 Wis.2d 576, 425 N.W.2d 8 (1988), supports its contention that
an ambiguous award
should be remanded to the arbitrator for clarification. That award was remanded because it
not a final and binding award with respect to whether a discharge was for just cause, not
the award was ambiguous. Id.