COURT OF APPEALS DECISION
DATED AND RELEASED March 13, 1996
STATE OF WISCONSIN
IN COURT OF APPEALS
CITY OF MENASHA, WISCONSIN,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION, ARBITRATOR
KRISTIN ERICKSON and MENASHA CITY EMPLOYEES UNION LOCAL 1035,
APPEAL from an order of the circuit court for Winnebago County: BRUCE
Before Brown, Nettesheim and Snyder, JJ.
PER CURIAM. The City of Menasha has appealed from a trial court order denying a
petition for a writ
of prohibition or declaratory judgment and remanding the matter to an arbitrator. The action
three grievances filed by Kristin Erickson, a former employee of the City, and the Menasha
Employees Union Local 1035 (the Union). Erickson and the Union sought arbitration of the
by an arbitrator appointed by the Wisconsin Employment Relations Commission (WERC)
pursuant to a
collective bargaining agreement existing between the City and the Union. The City argues
is barred by principles of claim preclusion and issue preclusion, and because it withdrew any
to arbitrate. (1) We agree with the trial court
that these arguments must first be addressed by the arbitrator,
and we affirm its order denying relief and remanding the matter to the arbitrator.
The grievances filed by Erickson and the Union allege that the City wrongfully
requested an updated
medical status report while Erickson was on leave from her job with the City after an injury,
refused to provide her with light duty, and wrongfully discharged her without cause and
refused to rehire
her. The City contended that the same facts and issues underlying these grievances were
litigated in a worker's compensation claim filed by Erickson before the Department of
Industry, Labor and
Human Relations (DILHR), and that arbitration of the grievances was therefore barred by
claim and issue preclusion. It also contended that the arbitrator lacked jurisdiction to hear the
because to the extent that an agreement to arbitrate existed, the City withdrew from the
Before the grievances were heard by the arbitrator, the City petitioned the trial court
for a writ of
prohibition or declaratory judgment determining that the grievances were not arbitrable. In
which is the subject of this appeal, the trial court denied relief and remanded the matter to
holding that the City's arguments regarding issue and claim preclusion were affirmative
had to first be heard and decided by the arbitrator. (2)
We agree with the trial court's analysis. The City's arguments regarding claim and
issue preclusion are
defenses to the grievances asserted by Erickson and the Union. If a collective bargaining
entitles an employee or union to arbitration of a dispute, the merit of any defenses available
employer must first be considered in the arbitration proceeding, rather than by the courts.
Corp. v. Wisconsin Employment Relations Bd., 267 Wis. 316, 327, 64
N.W.2d 866, 872 (1954).
The City contends that Dunphy is inapplicable
because the provision for grievance arbitration in its
collective bargaining agreement was required by law and was therefore not voluntary, and
withdrew any agreement to arbitrate. It contends that the arbitrator therefore lacks
jurisdiction to consider
the grievances or defenses.
It is undisputed that the collective bargaining agreement executed by the City and the
Union provides for
arbitration of grievances. The City cites no law in support of the proposition that it is
unilaterally withdraw from this portion of the agreement. Similarly, it cites no law to
proposition that because final and binding interest arbitration is mandated by Sec.
it is not bound by the agreement to arbitrate.
Generally, this court will not consider arguments which are not supported by
references to legal
authorities. State v. Shaffer, 96 Wis.2d 531, 545-46,
292 N.W.2d 370, 378 (Ct. App. 1980). In any
event, since these grievances fall within the broad language of the collective bargaining
providing for arbitration of disputes concerning the interpretation or application of the
argument that the City was entitled to withdraw from the arbitration process must first be
presented to the
By the Court.--Order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
1. The Wisconsin Supreme Court has recently
replaced the terms "res judicata" and "collateral
estoppel" with the terms "claim preclusion" and "issue preclusion."
Northern States Power Co. v.
Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723, 727 (1995).
2. The trial court initially granted the writ of
prohibition based on this court's decision in County of
LaCrosse v. WERC, 174 Wis.2d 444, 497 N.W.2d 455 (Ct. App.
1993), rev'd, 182 Wis.2d 15, 513
N.W.2d 579 (1994). We reversed the trial court's order in City of
Menasha v. WERC, No. 93-1221,
unpublished slip op. (Wis. Ct. App. April 27, 1994), after release of the Wisconsin Supreme
decision determining that the exclusive remedy provision in the Worker's Compensation Act
is not a bar
to an employee's right to grieve a refusal to rehire after an injury. County
of LaCrosse, 182 Wis.2d at
25, 513 N.W.2d at 582. We remanded the matter to the trial court to permit it to address
currently being raised by the City on appeal.