STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
LOCAL UNION NO. 311, THE INTERNATIONAL
OF FIRE FIGHTERS, AFL-CIO, Complainant,
CITY OF MADISON (FIRE DEPARTMENT),
Decision No. 28920-B
Lawton & Cates, S.C., by Attorney John C. Talis, 214
West Mifflin Street, P.O. Box 2965,
Madison, Wisconsin 53701-2965, on behalf of Complainant Local Union No. 311, I.A.F.F.,
Mr. Larry W. O'Brien, Assistant City Attorney, City of
Madison, Room 401, City-County Building,
210 Martin Luther King, Jr. Boulevard, Madison, Wisconsin 53710, on behalf of
ORDER AFFIRMING EXAMINER'S FINDINGS OF
CONCLUSIONS OF LAW AND
On November 20, 1997, Examiner David E. Shaw issued Findings of Fact,
Law and Order with Accompanying Memorandum in the above matter wherein he concluded
Respondent City of Madison had committed prohibited practices within the meaning of
Secs. 111.70(3)(a)5 and 1, Stats., by refusing to arbitrate a grievance. He ordered
proceed to arbitration.
On December 9, 1997, Respondent filed a petition with the Wisconsin
Commission seeking review of the Examiner's decision pursuant to Secs. 111.70(4)(a)
Stats. The parties thereafter filed briefs in support of and in opposition to the petition, the
which was received February 19, 1998.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Having considered the matter and being fully advised in the premises, the
and issues the following
The Examiner's Findings of Fact, Conclusions of Law and Order are affirmed.
Given under our hands and seal at the City of Madison, Wisconsin this 30th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
James R. Meier /s/
City of Madison
MEMORANDUM ACCOMPANYING ORDER
EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
In its complaint, Local Union No. 311, International Association of Fire Fighters,
alleges that the City of Madison has violated Secs. 111.70(3)(a)5 and 1, Stats.,
by refusing to
arbitrate a grievance. In its answer, the City asserts that the grievance raises issues which
arbitrable under the parties' labor agreement and that its conduct did not violate
or 1, Stats.
THE EXAMINER'S DECISION
The Examiner found that the City was obligated to arbitrate the grievance and that its
violated Secs. 111.70(3)(a)5 and 1, Stats. He reasoned as follows:
This case involves the alleged violation of Sec. 111.70(3)(a)5, Stats., by the
City's refusal to arbitrate the Gentilli grievance. Section 111.70(3)(a)5 provides, in
relevant part, that it is a prohibited practice for a municipal employer:
"To violate any collective bargaining agreement previously agreed
upon by the parties. . ., including an agreement to arbitrate questions
arising as to the meaning or application of the terms of a collective
bargaining agreement or to accept the terms of such arbitration award
where previously the parties have agreed to accept such award as final
and binding upon them.
The law in this State with respect to enforcing an agreement to arbitrate is
well-settled. In Denhart v. Waukesha Brewing Company, Inc., 17 Wis.2d 44
(1962), the Wisconsin Supreme Court adopted the U.S. Supreme Court's view of a
court's limited function in these cases, as is expressed in its decisions in the
Steelworker's Trilogy. 2/ In its decision in Jt. School District No. 10 v.
Jefferson Education Association, supra, the Wisconsin Supreme Court
explained a court's function and the test to be applied in determining arbitrability:
The court has no business weighing the merits of the grievance. It is the
arbitrators' decision for which the parties bargained. . . The court's function
is limited to a determination whether there is a construction of the arbitration
clause that would cover the grievance on its face and whether any other
provision of the contract specifically excludes it.
78 Wis. 2d at 111.
An order to arbitrate the particular grievance should not be denied unless it
may be said with positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage.
78 Wis. 2d at 113.
The question to be answered is whether or not the parties have agreed to
matters raised in Gentilli's grievance, remembering that doubts should be resolved in favor
that they have.
The parties' Agreement provides, in relevant part, as follows:
GRIEVANCE AND ARBITRATION PROCEDURE
A. Only matters involving interpretation, application, or
enforcement of the terms of this Agreement shall constitute a
grievance under the provisions set forth herein.
. . .
STEP THREE: If the grievance is not settled at Step Two, the City
and/or Union may submit the grievance to an arbitrator as hereinafter
I. ARBITRATION may be resorted to only when issues arise
between the parties hereto with reference to the interpretation,
application or enforcement of the provisions of this Agreement.
. . .
Thus, to be grievable and subject to arbitration, a matter must involve the
"interpretation, application or enforcement" of a term of the Agreement. The
grievance in this case alleges, in relevant part:
On or about November 29, 1995, the Madison Fire Department
arbitrarily and capriciously revoked grievant's status as an Apparatus
Engineer. The labor agreement between the City of Madison and
IAFF Local 311 requires that the Fire Department exercise its'
managerial rights, including the right to promote and demote, in a
reasonable manner. Fire Department Administration acted
unreasonably in this situation.
Contrary to the City's assertion that the original grievance only alleged
violations of Article 5, Sections J and K, the grievance also alleges that management
exercised its right to revoke Gentilli's promotional probation in an arbitrary and
capricious manner and exercised its rights to promote and demote in an unreasonable
manner. The City's assertions that its right to promote or demote are not susceptible
to challenge here because it has not in fact taken such actions in this case, are not
well-taken. In those regards, the City relies upon the Wisconsin Supreme Court's
decision in Kaiser, supra, and the Circuit Court's decision in the Hinkes case. The
Kaiser case, however, involved the revocation of the probationary status, and
resulting termination, of a newly-hired police officer and that individual's rights with
regard to a police and fire commission. The Court, in reaching its decision in Kaiser,
found that, due to his probationary status under Sec. 165.85, Stats., Kaiser was not
a subordinate within the meaning of Sec. 62.13(5), Stats., (the basis for the rights he
was claiming) in that he was not a police officer until he passed probation. 104 Wis.
2d at 501-503. Due to the factual differences in the cases and the differences in the
bases of the rights being claimed, the Court's decision in Kaiser may provide some
guidance as to the effect of being considered to be on "probationary" status, but it is
not dispositive. Similarly, while the Hinkes case involved the removal of an employe
from promotional probation, as does this case, the Circuit Court's decision dealt with
Hinkes' rights before the Police and Fire Commission, not with his rights under a
collective bargaining agreement. Again, the decision may provide guidance in some
regards, but it is not dispositive of Gentilli's right to proceed to arbitration under the
parties' Agreement. The determination of whether Gentilli was "promoted,"
"demoted" or "disciplined" are factual calls for an arbitrator to make. The Examiner
would also add at this point that the evidence presented as to the Union's handling of
the grievances filed in the Hinkes case presents a number of possible bases for the
Union's ultimate decision not to pursue them, other than acknowledgment of an
unchangeable management right. It is clear from the foregoing that, on its face, the
grievance arguably raises issues involving the "interpretation, application and
enforcement" of terms of the parties' Agreement, and therefore meets the first
element of the Court's analysis in Jefferson.
The first element of the test in Jefferson having been met, it is necessary to
apply the second element of that analysis, i.e., to determine whether there is a
provision of the parties' Agreement that specifically excludes such matters from
arbitration. In this regard, the City relies upon the introductory paragraph of Article
5, Management Rights, and Section K of that same provision, and Article 9, Section
Q, 2, of the Agreement. The City argues that, when read together, these provisions
mean "that unless a 'right' is applied in a fashion contrary to an official abridgment,
delegation or modification in the Agreement, it is not arbitrable." The City's
there are no applicable official abridgments, delegations or modifications clearly and
expressly set forth in the Agreement that limit its rights in this case, ignores the
express modification of its right to exercise its management rights set forth in the
remainder of Article 5, Section K. That provision expressly provides that "any
grievance with respect to the reasonableness of the application of said Management
Rights may be subject to the grievance procedure contained herein." It is also noted
in this regard that the parties use essentially the same terms in Article 9, Section I, to
define what is arbitrable as they use in Article 9, Section A, to define what is
grievable, i.e., issues regarding the "interpretation, application or enforcement" of the
provisions of the Agreement. Thus, while the City's construction of the arbitration
clauses in the parties' Agreement may be a reasonable one, it is not the only
construction and the wording of those clauses is not so clear and unambiguous that
it may be said with positive assurance that those provisions are not susceptible of an
interpretation that covers this dispute. It must also be remembered that "doubts are
to be resolved in favor of coverage." Jefferson, 78 Wis. 2d at 113. Therefore, it has
been found that the parties' dispute is arguably covered by the Agreement's
arbitration clauses and is not specifically excluded.
It is also noted that Gentilli's grievance alleges a violation of Article 5, Section
J of the Agreement. That provision relates to management's right to establish work
rules and expressly provides the right to grieve and arbitrate the reasonableness of the
application of such work rules. The Union has alleged that it would show that Gentilli
had been involved in a heated discussion with Division Chief Aldworth and that he
was subjected to an additional requirement in his probation, unlike anyone else, and
that he had his probation revoked because he did not meet that requirement. Whether
or not the Union can sufficiently establish such facts, and whether doing so would
establish the unreasonable application of a work rule, are issues for an arbitrator to
For the foregoing reasons, the Examiner has concluded that by refusing to
proceed to arbitration on the Gentilli grievance, the City has violated Sec.
111.70(3)(a)5, and derivatively, Sec. 111.70(3)(a)1, Stats. (footnote omitted)
POSITIONS OF THE PARTIES ON
The City contends the Examiner erred when he concluded that the City violated
Secs. 111.70(3)(a)5 and 1, Stats., by refusing to arbitrate the promotion grievance in
City asks that the Examiner be reversed and the complaint dismissed.
The City asserts that under the holdings of Hinkes v. Board of Police & Fire
(Circt-Dane) 91 CV 4422; Kaiser v. Board of Police & Fire Commission, 104 Wis.2d
(1981); Milwaukee Police Association v. City of Milwaukee, 113 Wis.2d 192 (1983); and
of Janesville v. WERC, 193 Wis.2d 492 (1995), it is clear that the City of Madison Police
Commission (PFC) has exclusive and supreme statutory authority over all matters related to
promotions and that no contract provision can allow an arbitrator to intrude into the PFC's
power. The City alleges that the record establishes the Complainant's awareness of the
of the PFC and understanding that it
has no right to arbitrate grievances over the termination of an employe's probationary
whether that probationary period relates to an initial hire or to an employe who has been
on a probationary basis. The City argues that the Examiner failed to accept the exclusive
the PFC's authority when deciding this case.
The City emphasizes that because of the exclusive nature of the PFC's statutory
the language of the contract does not and cannot control the outcome of this case. The City
that it cannot give the arbitrator power to overturn promotional/probationary decisions which
within the exclusive statutory authority of the PFC. Thus, the presence or absence of
language limiting the scope of what is arbitrable is irrelevant to the outcome of this case.
authority of the PFC does not depend on the presence of contract language.
The City urges the Commission to reject the Complainant's attempts to draw
between the probationary period applicable to new hires and probationary periods related to
promotions. In both instances, the probationary period serves as a selection tool and the City
that selection for promotion is indistinguishable from selection for hiring. Both types of
ultimately relate to matters requiring PFC approval-promotion and hiring. The PFC rule
Fire Chief authority to act on behalf of the Commission in matters of promotional
periods is a valid exercise of the PFC's statutory authority. The Chief's exercise of PFC's
statutory authority cannot be subject to an arbitrator's authority.
Given the foregoing, the City asks that the Examiner be reversed.
Complainant urges affirmance of the Examiner. It argues that the City's position in
litigation blithely disregards the strong statutory policy in Wisconsin favoring arbitration of
in municipal employment and ignores the application of Joint School District No. 10 v.
Education Association, 78 Wis.2d 94 (1978) to the language in the parties' contract. The
Complainant contends the Examiner properly applied Jefferson when he concluded the City
obligated to arbitrate the grievance.
Complainant contends the Examiner properly ignored the City's attempt to litigate the
of the grievance as part of its effort to avoid arbitration. Complainant asserts the merits of
grievance are irrelevant to the issue of arbitrability.
Complainant disputes the City's contention that permitting arbitration will
intrude on the statutory authority of the PFC. Complainant contends the PFC has specifically
indicated in this case that it has no jurisdiction over the matter. Thus, Complainant argues
can be no conflict with PFC authority if the grievance is arbitrated and that the holding of
Janesville is therefore inapplicable to this case.
Complainant also asserts the City has failed to establish any actual conflict between
provisions of Chapter 62 and arbitration of this grievance. The Complainant argues that
(4)(a), Stats. does not grant the PFC the power to promulgate and enforce rules regarding
and thus that arbitration of the grievance does not conflict with the PFC's statutory power.
Even if the PFC's rules are valid, Complainant contends they cannot override
provisions of the Municipal Employment Relations Act, particularly where, as here, the PFC
disclaimed jurisdiction. Complainant asserts the City and Complainant have the bilateral right
bargain a contract which requires arbitration of unresolved grievances as to matters over
PFC has no jurisdiction.
Lastly , Complainant urges close examination of the Kaiser and City of Milwaukee
cited by the City. Kaiser involves a statutory provision (Sec. 165.85(4)(b), Stats.) which is
inapplicable to firefighters and, most importantly, presents contractual language far more
than that at issue herein. Thus, Kaiser is inapplicable to this dispute. City of Milwaukee also
involves statutory provisions inapplicable to firefighters and raised the question of whether
termination of police officers during their probationary period was arbitrable -- not the
of a promotional dispute involving an 18-year firefighter. Complainant also points out that in
of Milwaukee, the Court noted that the case before it did not involve promotion of permanent
employes, a matter found appropriate for collective bargaining in Glendale Professional
Policeman's Association v. City of Glendale, 83 Wis.2d 90 (1978).
Given all of the foregoing, Complainant asks that the Examiner's decision be
On appeal, the City has largely abandoned the arguments made to the Examiner and
focused on a contention that the statutory authority of the PFC and the Fire Chief over
cannot be limited by contract. Perhaps this abandonment is because the Examiner so
rejected the arguments the City made to him. In any event, we think it clear that the
properly applied the teachings of Jefferson to the contract language in question when he
that the Gentilli grievance is substantively arbitrable. We adopt the Examiner's above-quoted
reasoning as our own.
In effect, the City now argues that even if a conventional Jefferson analysis would
a conclusion that the Gentilli grievance is substantively arbitrable, that conclusion is
the exclusive statutory power of the PFC and the Chief. In essence, the City contends that it
have the authority to contractually limit the promotional power of the PFC and the Chief
collective bargaining agreement . We would initially note that this argument presumes that
Gentilli grievance only involves contractual rights related to promotions. As is evident from
above-quoted portions of the Examiner's decision, the grievance also raises potential issues
demotion, discipline, and application of work rules. However, even assuming the issues to be
arbitrated can be restricted to a promotional context, we do not find the City's argument
The City raises its defense within the following statutory and factual context.
Section 62.13(4)(a), Stats., provides:
SUBORDINATES. (a) The chiefs shall appoint subordinates subject to approval by
the board. Such appointments shall be made by promotion when this can be done
with advantage, otherwise from an eligible list provided by examination and approval
by the board and kept on file with the clerk.
Section 62.13(6)(a)1, Stats. provides:
OPTIONAL POWERS OF BOARD. (a) The board of fire and police commissioners
shall have the further power:
To organize and supervise the fire and police departments and to
prescribe rules and
regulations for their control and management.
The Rules and Regulations of the Board of Police and Fire Commissioners of the
Madison, Wisconsin (PFC) provide in pertinent part:
Appointments to Commissioned Positions within the Police and Fire
other than the Positions of Police Officer and Firefighter. (emphasis in original)
5.01 The following rules apply to the appointment to commissioned positions within
the police and fire departments other than the positions of Police Officer, Firefighter
5.02 The Chief shall appoint subordinates subject to approval by the Board. Such
appointments shall be made by promotion when this can be done with advantage
otherwise from an eligible list provided by examination.
. . .
5.04 All promotional appointments shall be probationary for 12 months unless
extended by the appointing authority for a longer probationary period. During said
probationary period the Chief may reduce the person appointed to that person's
former rank. The appointee shall not be entitled to an appeal to the Board from the
termination of a probationary appointment or any reduction in rank which results
therefrom. (emphasis added)
5.05 Promotional probation periods will expire automatically after twelve (12)
months period of time unless the Chief of the Department requests an extension for
a longer probationary period.
By letter dated December 6, 1994, Fire Chief Roberts advised the PFC as follows:
I respectfully request your approval to promote the following individuals to the
position of Fire Apparatus Engineer effective January 1, 1995:
. . .
The letter listed the names of 55 employes including Chris Gentilli.
The minutes of the December 12, 1994 PFC meeting state in pertinent part:
Fire Department Promotions. Asst. Ch. Kinney presented Chief Robert's
recommendation for the promotions to the new rank of Fire Apparatus Engineer
shown on the Chief's letter of December 6, 1994, attached. Motion: to approve
promotions to the rank of Fire Apparatus Engineer pursuant to the recommendations
of Chief Roberts dated December 6, 1994, effective Jan. 1, 1995, subject to standard
probation in rank. (McMurray: unanimous consent)
By letter dated November 29, 1995, Chief Roberts advised Gentilli as follows:
Dear Firefighter Gentilli:
I am revoking your Apparatus Engineer probation effective immediately.
On December 22, 1995, the Union filed the following grievance on Gentilli's behalf:
This grievance alleges violation of Article(s) 5 Section(s) J & K of Labor
Describe the grievance - state all facts, including time, place of incident, names of
persons involved, etc. (attach additional sheets)
On January 1, 1995, grievant was promoted to the position of Apparatus Engineer on
the Madison Fire Department. During the course of 1995, grievant received
satisfactory marks when he was evaluated on his performance of his new Apparatus
Engineer duties. On or about November 29, 1995, the Madison Fire Department
arbitrarily and capriciously revoked grievant's status as an Apparatus Engineer. The
labor agreement between the City of Madison and IAFF Local 311 requires that the
Fire Department exercise its' managerial rights, including the right to promote and
demote, in a reasonable manner. Fire Department Administration acted unreasonably
in this situation.
That grievant be restored to the position of Apparatus Engineer, and that he be made
whole for any lost wages or other benefits.
The grievance was denied.
The Union also requested a hearing before the PFC "concerning the demotion of
Gentilli. . . ." By letter dated January 4, 1996, the PFC responded as follows:
Your letter of December 15 to Chief Roberts does not formally require a response
from me or the Board, but we appreciate your sending us a copy and for the sake of
good communications take this opportunity to clarify our views, which we believe are
shared by department management. We do not regard a promotion as complete until
probation has been satisfactorily completed. Therefore, non-completion of probation
is not a "demotion" or "reduction in rank," as the statute calls it. Without a demotion
in rank, there is no basis for the officer to compel the chief to file a statement of
charges with us. And of course, with no statement of charges, the Board cannot hold
To the best of my knowledge, this policy and practice has been consistently followed
by both chiefs and by the Board for many years; the only variations I recall were a
shortening of the standard promotional probation from 18 months to 12 months
several years ago, and individual adjustments to the probationary period based on
special circumstances for example, extending probation non-prejudicially because
of lost time due to temporary disability.
If these comments are not satisfying I hope they are at least informative.
Very truly yours,
For the Madison Board of Police and Fire Commissioners,
. . .
In Glendale Prof. Policemen's Asso. v. Glendale, 83 Wis.2d 90 (1978), our
Court laid out the law and analytical framework within which this City defense must be
In Glendale, the Court was confronted with the question of whether the same statutory
language before us in this proceeding (i.e. Sec. 62.13(4), Stats.) could be reconciled with the
promotion provision of a collective bargaining agreement. The Court held as follows:
Is the promotion provision of the collective
bargaining agreement enforceable?
Sec. 62.13, Stats., is a provision of the general charter law which applies to
all cities except cities of the first class, i.e., Milwaukee. In Wisconsin,
have no inherent power to govern, and the general charter law, like the special charter
legislation before it, is the necessary enabling legislation setting out the areas in which
local government can enact legislation. Van Gilder v. City of Madison, 222 Wis.
58, 85, 268 N.W. 108, 109 (1936).
Sec. 62.13, Stats., governs the organization of police and fire departments.
Subsection (4)(a) states that "The chiefs shall appoint subordinates subject to the
approval of the board." Sec. 62.13(12), Stats., states that "The provisions of section
62.13 . . . shall be construed as an enactment of state-wide concern for the purpose
of providing a uniform regulation of police and fire departments."
The City contends that by making the chief's appointments subject only to
approval by the board, sec. 62.13(4)(a), Stats., vests unfettered discretion in the chief
concerning promotion of subordinates, restricted only by the requirement of board
approval. The City argues that a contract term requiring the chief to promote the
most senior qualified candidate cannot be reconciled with sec. 62.13(4)(a). The City
contends further that, since sec. 62.13(4)(a) is a statewide concern prompted by an
effort to achieve uniformity in city organization, a provision of a labor agreement
restricting this discretion is illegal. 3/
A labor contract may not violate the law. In WERC v. Teamsters Local
No. 563, supra, we held that a contract provision interpreted to permit an employee
to violate an ordinance requiring him to live within the city was illegal. In Durkin v.
Board of Police & Fire Commissioners, 48 Wis.2d 112, 180 N.W.2d 1 (1970), we
held that an amnesty clause in a contract could not foreclose an elector from
exercising his statutory power to file disciplinary charges with the board. However,
we are not persuaded by the City's argument that the promotion provision of this
labor agreement is void because it violates sec. 62.13(4)(a), Stats.
Although sec. 62.13(4)(a), Stats., requires all subordinates to be appointed by
the chief with the approval of the board, it does not, at least expressly, prohibit the
chief or the board from exercising the power of promotion of a qualified person
according to a set of rules for selecting one among several qualified applicants. In
fact, the record shows that the Chief of Police has already accepted limitation of his
discretion to promote by considering as qualified only those three candidates
recommended to him by the Board. A labor contract requiring the chief to appoint
the most senior qualified candidate does not contradict an express command of law.
Compare: WERC v. Teamsters Local No. 563, supra. It does not purport to
away a power expressly conferred by law. Compare: Durkin v. Board of
& Fire Commissioners, supra. A requirement that the chief promote
3/ We note that the same contention could not be made if the employer were
the City of Milwaukee. Sec. 111.70(4)(jm)4.d., Stats., provides that at a collective
bargaining impasse between the City of Milwaukee and representative of the police
department a promotional program can be established by an arbitrator.
the most senior qualified applicant merely restricts the discretion that would
otherwise exist. 4/ The City appears to concede that the Chief himself can decide to
limit his discretion without violating sec. 62.13(4)(a), Stats. We conclude that the
same can be done through a labor agreement ratified by the Common Council.
Moreover, as a municipal employer under sec. 111.70(1)(a), Stats., the City
of Glendale must bargain with the chosen representatives of the municipal employees
concerning "wages, hours, and conditions of employment," the mandatory subjects
of collective bargaining under sec. 111.70(1)(d). Beloit Education Asso. v.
WERC, supra. Promotions are a condition of employment and are subject to
mandatory collective bargaining. Because a promotions provision of this collective
bargaining agreement is directly authorized by sec. 111.70, Stats., we are constrained
to give effect to both the agreement and the statutes if this can be done.
Muskego-Norway Consolidated Jt. School Dist. No. 9 v. Wisconsin
Employment Relations Board, 35 Wis.2d 540, 556, 151 N.W.2d 617 (1967), we
held that sec. 111.70, Stats., should be harmonized with other statutes whenever
possible and that the provisions of sec. 111.70 can modify preexisting statutes.
Specific contract provisions authorized by MERA must also be harmonized with the
preexisting statutory scheme. In Joint School Dist. No. 8 v. Wisconsin
Employment Relations Board, 37 Wis.2d 483, 492, 155 N.W.2d 78 (1967), we
held that matters concerning wages, hours, and conditions of employment which are
fixed by the school statutes in ch. 40 cannot be the subject of collective bargaining,
but that "[w]hat is left to the school boards in respect to the school calendar is subject
to compulsory discussion and negotiation." 5/ This conclusion was based, at least in
part, on the conclusion that because sec. 111.70, Stats., was enacted after ch. 40, it
is presumed to have been enacted with full knowledge of the preexisting statutes and
that these statutes should be harmonized by construction.
4/ Prior to the existence of a labor contract, an employer has all rights
connected with promotions and transfers, and the employer need pay no heed to
seniority. See: Aaron, Reflections on the Legal Nature and Enforceability of
Seniority Rights, 75 Harv. L. Rev. 1532, 1534-5 (1962). This freedom with regard
to promotions and transfers can be limited by a collective bargaining agreement using
seniority as a system of employment preference. It has been said that "one of the
principal purposes for entering into a collective bargaining agreement is usually to
secure for the employees the prized right of seniority in case of layoff and promotion."
Cournoyer v. American Television & Radio Col., 249 Minn. 577, 581, 83
N.W.2d 409 (1957).
Again, in Board of Education v. Wisconsin Employment Relations
Board, 52 Wis.2d 625, 638, 191 N.W.2d 242 (1971), the court held that sec.
118.21(4), Stats., which provides in part that "School boards may give to any teacher,
without deduction from his wages, the whole or part of any time spent by him in
attending a teachers' . . . convention . . .," gives school boards discretion as to
whether teachers individually or collectively will be given time off to attend
conventions, how much time off, how many conventions, or whether the time off shall
be with or without pay in whole or in part. But the court also held that "although the
final determination must rest with the board of education, it is a subject upon which
the board . . . must negotiate with the representative of the majority labor
organization representing the teachers." 52 Wis.2d at 639.
Finally, in Richards v. Board of Education, 58 Wis.2d 444, 206 N.W.2d
597 (1973), a school board relieved a teacher of his coaching assignment without
notice and a hearing. This was permitted by sec. 118.22, Stats. but it violated the
grievance provisions of the collective bargaining agreement. In its original opinion
the court concluded that:
"[The defendant, subject to sec. 118.22, Stats., was empowered to
relieve the plaintiff of his coaching assignment without prior notice
and the requirement of a common-law hearing. To the extent that the
master agreement purports to limit this power, it is void.]" Richards
v. Board of Education, supra at 460a.
On motion for rehearing this language was withdrawn. In its stead the court
substituted in pertinent part:
"Under the act, a school district is considered to be a
'municipal employer,' sec. 111.70(1)(a), Stats., and this court has no
difficulty in concluding that a grievance procedure established by a
collective bargaining agreement, and relating to dismissals falls within
the embrace of 'wages, hours and conditions of employment,' and that
the conditions of such an agreement are binding on the parties. See,
our opinion in Local 1226 v. Rhinelander (1967), 35 Wis.2d 209,
151 N.W.2d 30." Richards v. Board of Education, supra, at
5/ United Steelworkers Of America v. American Mfg. Co., 363 U.S. 564
(1960); United Steelworkers Of America v. Warrior & Gulf Navigation Co.,
363 U.S. 574 (1960); United Steelworkers Of America v. Enterprise Wheel &
Car Corp., 363 U.S. 593 (1960).
The relationship between public sector bargaining agreements and other
statutes governing terms and conditions of employment can be one of the most
difficult issues in public sector labor law. 6/ As one commentator has pointed out, a
rule giving automatic priority to the statute can reduce the statutory duty to bargain
into insignificance, while a rule giving automatic priority to the agreement can result
in effective repeal of state Law. 7/ The scope of the employer's duty to bargain under
sec. 111.70, Stats., in light of the other statutes, is particularly difficult because sec.
111.70, Stats., does not contain a legislative resolution of any statutory conflicts as
does the State Employment Labor Relations Act, secs. 111.80-97, Stats. The State
Act provides that the labor agreement supersedes provisions of civil service and other
to wages, hours, and conditions of employment. Sec. 111.93, Stats. In the absence
of such a legislative resolution of the problem in sec. 111.70, Stats., et
seq., we have
held that collective bargaining agreements and statutes also governing conditions of
employment must be harmonized whenever possible. When an irreconcilable conflict
exists, we have held that the collective bargaining agreement should not be interpreted
to authorize a violation of law. WERC v. Teamsters Local No. 563, supra.
The labor agreement in this case can be harmonized with
Stats. The statute vests authority in the chief to appoint subordinates with the
approval of the board. Appointments are to be made by promotion within the ranks
"when this can be done with advantage," presumably when qualified insiders exist.
Under the labor agreement, the chief is under no compulsion to promote an unqualified
person or a person determined solely by the union. The seniority restriction operates
only where there is more than one qualified candidate. Nothing in sec. 17.01 of the
labor contract requires an appointment by promotion of the most senior officer if there
are no qualified candidates within the police force or in other City employment. The
arbitrator found Officer Kerber to be qualified, and the City does not challenge that
determination. Although by entering into the collective bargaining agreement the City
relinquished some of the discretion the Chief and the Board enjoyed previously
concerning appointments and promotions, it has not transferred from the Chief or the
Board the authority to determine who is qualified, and it has not transferred away the
6/ See generally: Comment, The Civil
Service-Collective Bargaining Conflict
in the Public Sector: Attempts at Reconciliation, 38 U. Chi. L. Rev. 826 (1971);
Weisberger, The Appropriate Scope of Bargaining in the Public Sector: The
Continuing Controversy and the Wisconsin Experience, 1977 Wis.L.Rev. 685 (1977).
7/ Weisberger, The Appropriate Scope of Bargaining in
the Public Sector:
The Continuing Controversy and the Wisconsin Experience, supra n. 6 at 740.
Our construction given effect to both the Chief's power under
and the municipality's duty to bargain under sec. 111.70, Stats. Sec. 62.13(4)(a) is
enabling legislation which places the exercise of discretion in a certain office, while sec.
111.70 permits the City to limit the scope of this discretion through a collective
bargaining agreement. The Common Council has not, as the City contends, bargained
away a power possessed by the Chief that is not the City's to bargain. In ratifying the
agreement, the Council has effectuated the municipal employer's statutory duty to
bargain on conditions of employment and has preserved the statutory requirement that
only qualified persons be appointed.
Because we have concluded that the contract and the statute can be
harmoniously construed, we are not persuaded that the promotions provision of the
contract violates the home rule amendment. The home rule amendment provides in
part that "Cities . . . organized pursuant to state law are hereby empowered, to
determine their local affairs and government, subject only to this constitution and to
such enactments of the legislature of state-wide concern as shall with uniformity affect
every city . . . ." Wis. Const., art. XI, sec. 3. Since the legislature has declared sec.
62.13(4)(a), to be a statute of statewide concern, the City contends that the contract
term which limits the chief's discretion is illegal.
The home rule amendment makes a general grant of legislative power to
municipalities with respect to matters of local concern. State ex rel. Michalek v.
LeGrand, 77 Wis.2d 520, 526, 253 N.W.2d 505 (1977). It also restricts the power
of cities and villages to elect not to be subject to state laws or to enact, repeal, or
amend any part of their charger where the matter involved is a matter of statewide
concern. Van Gilder v. City of Madison, supra. On the other hand, the fact that
a state statute is one of statewide concern does not make invalid all local regulation in
the area covered by the statute. The home rule amendment limits a municipality's
power to veto, block, or withdraw from legislation of statewide concern, but it does
not prohibit the legislature from authorizing local regulation to further proper public
interests, even in areas of statewide concern. Menzer v. Elkhart Lake, 51 Wis.2d
70, 186 N.W.2d 290 (1971). Sec. 111.70, Stats., is legislation that specifically
authorizes local action, i.e., the adoption of collective bargaining agreements
wages, hours, and conditions of employment even though statutes of statewide concern
also govern wages, hours, and conditions of employment.
Thus this is not a case of a municipality in the exercise of its home rule power
deciding to "withdraw" from or circumvent sec. 62.13(4)(a), Stats. Sec. 17.01 of the
agreement is authorized by sec. 111.70, Stats., a statute which also deals
matter of statewide concern. In entering into this agreement, the City is not illegally
exercising local autonomy in an area of statewide concern but is effectuating the
legislature's mandate in sec. 111.70. Under these circumstances, where the issue is
the relationship between the requirements of two state laws, home rule considerations
The promotions provision of the labor agreement does not violate the home
rule amendment. It complements, rather than contradicts, sec. 2.13(4)(a), Stats., and
for that reason the circuit court erred in declaring it unenforceable. Since the
arbitrator did not exceed his powers in enforcing this contract and since no other
ground for vacating the award has been alleged, we must set aside the order vacating
the award and direct the circuit court to enter an order confirming the award.
By the Court. Judgment reversed, with directions to
enter an order
confirming the arbitrator's award.
As reflected above, Glendale conclusively establishes that collective bargaining
can restrict the promotional authority of the PFC and Chief so long as the authority is not
1/ Thus, the question before us is whether the promotion provisions of the 1994-1995
between the City and the Union restrict the statutory promotional authority of the Chief and
or transfer same to the arbitrator. If the contract restricts the statutory authority, the City's
must fail. If it transfers the promotional authority to the arbitrator, then the City's defense is
meritorious and it has no obligation to arbitrate the grievance.
1/ The Supreme Court reaffirmed the legitimacy of
contractual limitations on Sec. 62.13, Stats., power in Iowa
County v. Iowa County Courthouse, 166 Wis.2d 614, 619 (1992) when it
A police chief is employed by and is an agent of the city.
Section 62.13(1) and (3).
Furthermore, a city qualifies as a "municipal employer" under
sec. 111.70(1)(j) and thus may
enter into a collective bargaining agreement for its employees. It is entirely reasonable then
allow the city to modify, through a collective bargaining agreement, the hiring discretion of
In resolving this question, we find two post-Glendale decisions by the Supreme Court
In Milwaukee Police Asso. v. Milwaukee, 92 Wis.2d 145 (1979), herein City of
Milwaukee I, the Court was confronted with a contention that the statutory power of the
Chief of Police over transfers was sufficient to preclude arbitration of a grievance regarding
exercise of that power. The Court held:
AUTHORITY TO ARBITRATE.
Appellant contends that there is no provision in the collective bargaining
agreement that makes a
denial of a request for transfer arbitrable, and therefore the arbitrator was without
arbitrate the dispute.
". . . The arbitrators obtain their authority from the contract, and the
task of interpreting the
contract to determine whether the dispute is arbitrable and whether the arbitrator has
is for a court." Jt. School District No. 10 v. Jefferson Ed. Asso., 78 Wis.2d 94, 101, 253
N.W.2d 536 (1977).
". . . The arbitrator cannot, except by agreement of the parties, be the
judge of the scope of his
authority under the contract. . . ." Id. At 101, 102.
In this case, the collective bargaining agreement is an agreement to
submit certain future
grievances to arbitration. Part III, Section I.A.1 of the Agreement states:
"1. Differences involving the interpretation, application or enforcement
of the provisions of this
Agreement or the application of a rule or regulation of the Chief of Police affecting wages,
or conditions of employment and not inconsistent with the 1911 Special Laws of the State of
Wisconsin, Chapter 586, and amendments thereto shall constitute a grievance under
provisions set forth below."
The agreement does not expressly or impliedly give the arbitrator the
authority to determine the
scope of his jurisdiction and make a final and binding decision on the question of
Moreover, the parties did not submit the issue of arbitrability for a final and binding
parties submitted the merits of the dispute to the arbitrator, and at the same time the
challenged the arbitrability of the transfer question. Therefore, this court may determine the
of substantive arbitrability that is, whether Stabbe's grievance was arbitrable within
the terms of
the collective bargaining agreement.
"When the Court determines arbitrability it must exercise great caution.
The court has no business
weighing the merits of the grievance. It is the arbitrators' decision for which the parties
bargained. In Dehnart v. Waukesha Brewing Co., Inc., 17 Wis.2d 44, 114 N.W.2d 490
(1962), this court adopted the Steelworkers Trilogy teachings of the court's limited function.
The court's function is limited to a determination whether there is a construction of the
clause that would cover the grievance on its face and whether any other provision of the
specifically excludes it. . . ." Jt. School District No. 10 v. Jefferson Ed.. Asso., supra, at
In Jt. School District No. 10 v. Jefferson Ed. Asso., supra, this court
held that, although the
Steelworkers cases involved broad arbitration clauses submitting questions of contract
interpretation to the arbitrator and the contract in the case before the court contained a
arbitration clause, the fundamental pronouncements of the issue of arbitrability as set forth in
Steelworkers Trilogy were applicable to that case.
The present case involves a broad arbitration clause, providing for
arbitration of any differences
arising between the parties as to the interpretation, application or enforcement of the
the agreement. Therefore the grievance alleged in this case is subject to arbitration because,
state din the Steelworkers Cases:
"An order to arbitrate the particular grievance should not be
denied unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the
asserted dispute. Doubts should be resolved in favor of coverage."
United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582, 583 (1960).
The provisions in the collective bargaining agreement to which appellant refers
in order to support its contention that the matter of transfers is not arbitrable appear
in Part II of the Agreement under Section C. MANAGEMENT RIGHTS, and state
"6. The City and the Chief of Police shall have the right to
transfer employes within the Police Department in a manner most
advantageous to the City.
"7. Except as otherwise specifically provided in this
Agreement, the City, the Chief of Police and the Fire and Police
Commission shall retain all rights and authority to which by law they
But respondent contends that it is precisely that provision granting the city and chief
of police the right to transfer employees "in a manner most advantageous to the City"
which gave the arbitrator the authority to arbitrate the dispute.
Appellant argues that subsections 6 and 7 quoted above specifically
acknowledge the statutory authority of the chief to transfer. Respondent, on the other
hand, argues that the chief of police and the city improperly interpreted and applied
section 6 when the chief refused to grant grievant's request for a transfer. The
arguments of both parties center around the interpretation to be given to subsection
6 of Part II, C of the Agreement. Thus, a "difference involving the interpretation" of
the Agreement has arisen. The arbitration clause, therefore, covers the grievance on
its face and there is no other provision of the contract which specifically excludes it.
Jt. School District No. 10 v. Jefferson Ed. Asso., supra.
After finding the grievance substantively arbitrable, the Court went on to consider
the arbitrator had exceeded his authority under the contract and stated:
AUTHORITY TO MAKE THE AWARD.
Appellant contends that the arbitrator exceeded his authority in awarding that
Officer Stabbe be given first consideration for transfer to District One.
This court has repeatedly held that it has a "hands off" attitude toward
arbitrators' decisions. WERC v. Teamsters Local No. 563, 75 Wis.2d 602,
611, 250 N.W.2d 696 (1977); Milwaukee Pro. Firefighters, Local 215 v.
Milwaukee, 78 Wis.2d 1, 21, 22, 263 N.W.2d 481 (1977); Jt. School District No.
10 v. Jefferson Ed. Asso., supra, at 117.
"'Judicial review of arbitration awards is very limited. The strong policy
favoring arbitration as a method for settling disputes under collective bargaining
agreements requires a reluctance on the part of the courts to interfere with the
arbitrator's award upon issues properly submitted . . . Thus the function of the court
upon review of an arbitration award is a supervisory one, the goal being to insure that
the parties receive the arbitration they bargained for.' Milwaukee Professional
Firefighters v. Milwaukee, supra.
"The decision of an arbitrator cannot be interfered with for mere errors of
judgment as to law or fact. Courts will overturn an arbitrator's award if there is
perverse misconstruction or if there is positive misconduct plainly established, or if
there is manifest disregard of the law, or if the award itself is illegal or violates strong
public policy." Jt. School District No. 10 v. Jefferson Ed. Asso., supra, at 117,
Before the arbitrator, appellant contended that subsection 6 of Part II, C,
MANAGEMENT RIGHTS, of the collective bargaining agreement gave the chief of
police the sole right to decide when and where transfers are to be made. Appellant
also argued that the Milwaukee City Charter gives the police chief so broad a mandate
in regard to matters relating to refusal to transfer that such refusals do not constitute
Sec. 1, Chapter 586, Laws of 1911, (formerly section 959-46d. 23 of the
statutes, and presently 62.50(23), Stats.) provides:
"The chief engineer of the fire department and the chief of police of said
shall be the head of their respective departments and shall have power to regulate said
departments and prescribe rules for the government of its members. The chief of
police shall cause the public peace to be prescribed and see that all laws and
ordinances of the city are enforced. He shall be responsible for the efficiency and
general good conduct of the department under his control. Each of said chiefs shall
have the custody and control of all public property pertaining to said departments and
everything connected therewith and belonging thereto. They shall have the custody
and control of all books, records, machines, tools, implements, and apparatus of every
kind whatsoever necessary for use in each of said departments."
Various provisions of the collective bargaining agreement, in addition to
subsections 6 and 7 of Part II, C, MANAGEMENT RIGHTS, and the arbitration
clause in section I.A.1 of Part III, GRIEVANCE AND ARBITRATION
PROCEDURE, recognize the power of the chief of police to manage and direct the
operation of the police department and give deference to his authority conferred by
Chapter 586, Laws of 1911 and the amendments thereto. These provisions are:
"WHEREAS, it is intended that the following Agreement shall be an
implementation of the provisions of Section 111.70, Wisconsin Statutes, consistent
with the legislative authority which devolves upon the Common Council of the City
of Milwaukee, the Special laws of the State of Wisconsin, Chapter 586 of the Laws
of 1911 and amendments thereto, relating to the Chief of Police and the Board of Fire
and Police Commissioners, the municipal budget law, Chapter 65,l Wisconsin
Statutes, 1971, and other statutes and laws applicable to the City of Milwaukee; and
"WHEREAS, it is intended by the provisions of this Agreement that there be
no abrogation of the duties, obligations, or responsibilities of any agency or
department of City government which is not expressly provided for respectively either
by: state statutes, charter ordinances and ordinances of the City of Milwaukee except
as expressly limited herein; . . .
". . . .
". . . .
"H. SUBJECT TO CHARTER
"In the event that the provisions of this Agreement or
application of this
Agreement conflicts with the legislative authority which devolves upon the Common
Council of the City of Milwaukee as more fully set forth in the provisions of the
Milwaukee City Charter, the Special Laws of the State of Wisconsin, Chapter 586 of
the Laws of 1911 and amendments thereto pertaining to the powers, functions, duties
and responsibilities of the Chief of Police and the Board of Fire and Police
Commissioners or the municipal budget law, Chapter 65, Wisconsin Statutes, 1971,
or other applicable laws or statutes, this Agreement shall be subject to such
". . . .
"C. MANAGEMENT RIGHTS
"1. The Association recognizes the right of the City and
the Chief of Police
to operate and manage their affairs in all respects in accordance with the laws of
Wisconsin, ordinances of the City, Constitution of the United States and Section
111.70 of the Wisconsin Statutes. The Association recognizes the exclusive right of
the Chief of Police to establish and maintain departmental rules and procedures for the
administration of Police Department during the term of this Agreement provided that
such rules and procedures do not violate any of the provisions of this Agreement.
". . . .
"11. The Association pledges cooperation to the increasing of departmental
efficiency and effectiveness. Any and all rights concerning the management and
direction of the Police Department and the police force shall be exclusively the right
of the City and the Chief of Police unless otherwise provided by the terms of this
Agreement as permitted by law.
". . . .
"II. GRIEVANCE ARBITRATION
". . . .
"F. In reviewing any difference over application of a departmental rule or
regulation under this grievance and arbitration procedure the arbitrator shall take into
account the special statutory responsibilities granted to the Chief of Police under the
1911 Special Laws of the State of Wisconsin, Chapter 586, and amendments thereto.
The arbitrator shall not impair the ability of the Chief of Police to operate the
department in accordance with the statutory responsibilities under the Special Laws
of the State of Wisconsin, Chapter 586 of the Laws of 1911 and amendments thereto
nor shall he impair the authority of the Chief of Police to maintain, establish and
modify rules and regulations for the operation of the Police Department, provided
such rules and regulations are not in violation of the specific provisions of this
Agreement. In addition the arbitrator shall not prohibit the Chief of Police from
executing departmental rules and regulations in a fair and equitable manner.
". . . .
"A. AID TO CONSTRUCTION OF PROVISIONS OF
". . . .
"2. The Association recognizes the powers, duties, and responsibilities of the
Chief of Police as set forth in Chapter 586, Session Laws of 1911 and that pursuant
thereto the Chief of Police and not the Common Council of the City of Milwaukee has
the authority to establish rules and regulations applicable to the operation of the
Police Department and to the conduct of the police officers employed therein."
The arbitrator acknowledged that the chief's right to transfer employees in a
manner most advantageous to the city would seem to place the subject of transfers in
a non-grievable category. He further recognized that Chapter 586 of the Laws of
1911 was incorporated in the collective bargaining agreement and gives the chief
powers not normally enjoyed by other governmental department heads. The arbitrator
even declared that "both the explicit terms of the contract and the state law
incorporated therein seem to give the chief unbridled transfer power." However, the
arbitrator discussed Confederation of Police v. City of Chicago, 629 F.2d 89
(7th Cir. 1976), 1/ The arbitrator stated that in his opinion the arbitrator
in his opinion the City of Chicaco Case ruled that matters concerning adverse
transfers are grievable, therefore, in order to be consistent, matters concerning
requested transfers should be grievable. Thus, he found that the union's prayer for
relief was reasonable. He declared:
"In view of the unanimous feeling of the parties, and in view of the recent
Federal Court decision in our Circuit which seems to eliminate possible constraints
of the Contract, I can freely rule that the request of the Grievant is not unreasonable."
Finally, the arbitrator directed that when and if an opening for a police officer
develops in District Number One, Stabbe be given the first consideration for transfer
to the district; and if the city does not transfer him, that he be given the right to a
hearing to establish why the transfer is not advantageous to the city.
We believe that the arbitrator had no authority to direct that Stabbe be given
the next assignment in District One, since both the statutes and the collective
bargaining agreement vest authority in the chief of police to make decisions
"An arbitrator obtains his authority form the contract of the parties.
Wisconsin Employment Relations Board v. Teamsters Local No. 563, 75
Wis.2d 602, 611, 250 N.W.2d 696 (1977). The function of the arbitrator in disputes
under a collective bargaining agreement is to interpret and apply the agreement.
Elkouri & Elkouri, How Arbitration Works 296 (1976).
1/ Actually the decision in the City of Chicago Case had been vacated
by the United
States Supreme Court, Confederation of Police v. City of Chicago, 427 U.S. 902
(1976) and was subsequently reversed in Confederation of Police v. City of
Chicago, 547 F.2d 375 (7th Cir.1977).
"'[A]n arbitrator is confined to the interpretation of the collective bargaining
agreement; he does not sit to dispense his own brand of justice. He may of course
look for guidance from many sources, yet his award is legitimate only so long as it
draws its essence from the collective bargaining agreement. When the arbitrator's
words manifest an infidelity to his obligation, courts have no choice but to refuse
enforcement of the award.' United Steelworkers of America v. Enterprise
Wheel & Car Corp., 363 U.S. 593, 597 (1960)." Milw. Pro. Firefighters, Local
215 v. Milwaukee, supra, at 21.
The direction that Stabbe be given first consideration for transfer to District
Number One or be afforded the right to a hearing if he is not transferred, does not
draw its essence from the contract. The arbitrator was authorized to resolve only
questions of contractual rights, and thus, the question before him was whether the
contract required that Stabbe be given first consideration for transfer. Although he
did direct that Stabbe be given first consideration, it is very clear from his decision
that he did not do so because the agreement, as he interpreted it, required such a
remedy. Rather, this direction by the arbitrator was based upon his understanding of
the feeling of the parties and upon a federal circuit case which had been vacated at the
time of his decision and which he interpreted "to eliminate possible constraints of the
Contract." The arbitrator ignored numerous provisions in the agreement giving
deference to the authority and responsibilities placed upon the chief of policy by
Chapter 586, Laws of 1911, and, in particular, subsection F of Part III, section II,
GRIEVANCE ARBITRATION, which provides in part:
". . . The arbitrator shall not impair the ability of the Chief of Police to
the department in accordance with the statutory responsibilities under the Special
Laws of the State of Wisconsin, Chapter 586, of the Laws of 1911 and amendments
thereto. . . ."
Furthermore, by directing that Stabbe be given first consideration for transfer, at the
same time that he failed to find that the agreement required that Stabbe be given first
consideration, the arbitrator has added to the labor agreement a provision compelling
employee transfers. This is contrary to subsection D of Part III, section II providing
that "The arbitrator shall neither add to, detract from, nor modify the language of the
Agreement. . . ."
This case is similar to Milw. Pro. Firefighters, Local 215, v. Milwaukee,
supra, in which the union challenged certain orders issued by the fire chief calling for
implementation of new rules regarding the scheduling of overtime work, vacation
days and off days for the firefighters for the upcoming two years. The arbitrator
found in favor of the union and his award, among other things, required that
scheduling be conducted in the same manner that it had been prior to the issuance of
the orders. On appeal, the city contended that the arbitrator exceeded his powers by
disregarding the collective bargaining agreement. This court stated that the arbitrator
was authorized to resolve only questions of contractual rights and so the question
before him was whether the contract required that past practice be maintained. This
court held that the circuit court erred in confirming the part of the award which
directed the maintenance of past practice, since it was clear from the arbitrator's
decision that he did not give such a direction because the agreement, as he interpreted
it, required maintenance of past practice. Instead, his decision showed that his
direction was based upon his understanding of the wishes of the parties. This court
stated at page 25 of its decision:
". . . Although arbitrators are to be afforded flexibility and latitude in
formulating remedies, the arbitrator here has not confined himself to the agreement,
as he is required, and thus has denied the appellants the arbitration they bargained for.
Since this aspect of the award has not drawn its essence from the collective bargaining
agreement, the arbitrator exceeded his power in respect thereto."
In the case before us we conclude the arbitrator exceeded his power and
contract authority. Therefore the circuit court erred in confirming the award.
In Milwaukee v. Milwaukee Police Asso. 97 Wis.2d 15 (1980), herein City of
the Supreme Court applied its holding in City of Milwaukee I and stated:
The City asserts that the arbitrator did not have the authority to arbitrate the
grievance filed by Mr. Lund. However, the motion to vacate the arbitration award did
not challenge the authority of the arbitrator to hear the grievance. 4/ The motion
stated that ". . . an arbitration award was entered . . . settling a controversy that
existed between the . . . parties . . . in accordance with the arbitration provisions of
the Wisconsin Statutes." Nevertheless, the circuit court and the court of appeals ruled
that the grievance in this case was not arbitrable.
While there is a broad presumption of arbitrability, the interpretation of the
arbitration clause remains a judicial function unless the parties voluntarily submit the
question of arbitrability to the arbitrator. Intern U. Of Operating Engineers,
Local Union No. 139 v. Carl A. Morse, Inc., 529 F.2d 574, 580 (7th Cir.
From the limited record before this court, it cannot be determined whether the parties
submitted the question of the arbitrability of the dispute to the final and binding
decision of the arbitrator. The agreement does not expressly or impliedly give the
arbitrator the authority to determine the scope of his authority to make a binding
determination as to arbitrability. Although the arbitrator noted the City's objection
to the power of the arbitrator to arbitrate the dispute and to restore Mr. Lund to his
status as an acting detective, it is not apparent whether the arbitrator's determination
on the arbitrability issue was intended to be final and binding on the parties. This can
be of substantial importance because, as this court has stated:
"If the parties submitted the issue of arbitrability to the
arbitrators for final and binding decision, the scope of review of the
award on the issue of arbitrability would be limited, as is the scope of
review of the merits of the award.
4/ Because the defendants-petitioners do not raise the issue of whether the City has
waived its right to contest the arbitrability of the dispute, we proceed to the merits of
whether the arbitrator had the authority to hear the grievance of Marvin Lunc.
"If the parties submitted the merits to the arbitrators and at the
same time challenged the arbitrability of the question and reserved the
right to challenge in court an adverse ruling on arbitrability, the court
would decide the issue of arbitrability de novo." Jt. School Dist. No.
10 v. Jefferson Ed. Asso., 78 Wis.2d 94, 106, 253 N.W.2d 536
Because we conclude that the grievance involved in this case was arbitrable,
even upon de novo judicial review, we need not determine whether the issue
arbitrability of the grievance was subject to the arbitrator's final and binding decision.
In Denhart v. Waukesha Brewing Co., 17 Wis.2d 44, 61, 119 N.W.2d 490
(1962), this court adopted the language from one of the decisions forming a part of
the now famous "Steelworkers Trilogy" 5/ which outlined the court's role in
determining when an issue should be submitted to an arbitrator when the collective
bargaining agreement provides that all questions of contract interpretation are for the
arbitrator. The United States Supreme Court stated:
The function of the court is very limited when the parties have
agreed to submit all questions of contract interpretation to the
arbitrator. It is confined to ascertaining whether the party seeking
arbitration is making a claim which on its fact is governed by the
contract. . . . In these circumstances the moving party should not be
deprived of the arbitrator's judgment, when it was his judgment and
all that it connotes that was bargained for." United Steelworkers
Of America v. American Mfg. Co., 363 U.S. 564, 567 (1960).
When the court determines arbitrability, it is limited to considering whether the
arbitration clause can be construed to cover the grievance on its face and whether any
other provision of the contract specifically excludes it. Jt. School District No. 10
v. Jefferson Ed. Asso., 78 Wis.2d at 111.
Neither of the lower courts had the benefit of this court's recent decision in
Milwaukee Police Asso. v. Milwaukee, 92 Wis.2d 145, 285 N.W.2d 199 (1979)
when making their rulings in this case.
In Milwaukee Police Asso. v. Milwaukee, supra, this court had before it the
same collective bargaining agreement, and hence, the same arbitration clause at issue
in this case. The arbitration clause provides:
5/ Since that case was decided, the legislature redefined the
employer's duty to bargain and provided remedies for the employer's violation of that
duty. Ch. 246, 1971 Wis. Laws.
"1. Differences involving the interpretation, application or
enforcement of the provisions of this Agreement or the application of
a rule or regulation of the Chief of Police affecting wages, hours, or
conditions of employment and not inconsistent with the 1911 Special
Laws of the State of Wisconsin, Chapter 586, and amendments
thereto shall constitute a grievance under the provisions set forth
This is an expansive arbitration clause covering a broad class of disputes arising out
of the "interpretation, application or enforcement" of the agreement. In reviewing de
novo the arbitrability of the Chief of Police's power to transfer employees under this
collective bargaining agreement, the court held in Milwaukee Police Asso. v.
Milwaukee, that because the parties disagreed as to the interpretation of the Chief
of Police's authority to transfer, and the authority of the Chief of Police to transfer
employees was provided for in the contract, there existed a "'difference involving the
interpretation' of the Agreement." 92 Wis.2d at 153. As a result it was held that the
grievance was covered by the arbitration clause and was subject to arbitration. 92
Wis.2d at 152-153.
In that case it was nowhere disputed that a transfer was involved. In this case,
however, there is a dispute as to whether Mr. Lund was in fact transferred or merely
"reassigned." We believe that whatever the term used, the underlying question is
whether the Chief of Police was limited by the collective bargaining agreement in
laterally moving Mr. Lund from acting detective to patrolman. The City also argues
that the "reassignment" of the grievant was not for disciplinary reasons and that the
Chief of Police had the unrestricted power to make the reassignment. Under the
rationale of Milwaukee Police Asso. v. Milwaukee, supra, even upon a de novo
review of the arbitrator's decision as to the arbitrability of the grievance, the grievance
in this case was arbitrable because a difference involving the interpretation of the
agreement has arisen. Milwaukee Police Asso. v. Milwaukee, 92 Wis.2d at 153.
Having found the grievance to be substantively arbitrable, the Court went on to
award itself and stated:
The authority of the arbitrator to hear a grievance is not the same as the
authority of the arbitrator
to make a particular award and the distinction between the two concepts must remain clear.
agreement may permit or require the arbitrator to hear a dispute, but it
may also restrict him from
reaching a particular result by limiting his powers of review or relief.
. . .
The collective bargaining agreement in the present case provides that certain
rights are to be considered "management rights." In Part II C., it is provided:
". . . C. MANAGEMENT RIGHTS. 1. The Association
recognizes the right of the City and the Chief of police to operate and
manage their affairs in all respects in accordance with the laws of
Wisconsin, ordinances of the City, Constitution of the United States
and Section 111.70 of the Wisconsin Statutes. The Association
recognizes the exclusive right of the Chief of Police to establish and
maintain departmental rules and procedures for the administration of
Police Department during the term of this Agreement provided that
such rules and procedures do not violate any of the provisions of this
Agreement. . . .
"5. The City and the Chief of Police shall determine work
schedules and establish methods and processes by which such work is
"6. The City and Chief of Police shall have the right to transfer
employes within the Police Department in a manner most
advantageous to the City.
"7. Except as otherwise specifically provided in this
Agreement, the City, the Chief of Police and the Fire and Police
Commission shall retain all rights and authority to which by law they
are entitled. . . .
"11. The association pledges cooperation to the increasing of
departmental efficiency and effectiveness. Any and all rights
concerning the management and direction of the Police Department
and the police force shall be exclusively the right of the City and the
Chief of Police unless otherwise provided by the terms of this
Agreement as permitted by law."
To the extent provided for in the agreement these rights are vested exclusively in the
City and Chief of Police, and the arbitrator has no power to substitute his judgment
or make an award where the power of decision-making is vested in the management.
The agreement also limits the arbitrator's authority. The grievance and
arbitration provisions of the contract detail the restrictions placed on the arbitrator.
"Part III. GRIEVANCE AND ARBITRATION PROCEDURE
. . . II. GRIEVANCE ARBITRATION. . . . D. The
neither add to, detract from, nor modify the language of the
Agreement or of the rules and regulations in arriving at a
determination of any issue presented that is proper for final and
binding arbitration within the limitations expressed herein. The
arbitrator shall have no authority to grant wage increases or wage
"E. The arbitrator shall expressly confine himself to the precise
issues submitted for arbitration and shall have no authority to
determine any other issue not so submitted to him or to submit
observations or declarations of opinion which are not directly essential
in reaching the determination.
"F. In reviewing any difference over application of a
departmental rule or regulation under this grievance and arbitration
procedure the arbitrator shall take into account the
special statutory responsibilities granted to the Chief of Police under
the 1911 Special Laws of the State of Wisconsin, Chapter 586, and
amendments thereto. The arbitrator shall not impair the ability of the
Chief of Police to operate the department in accordance with the
statutory responsibilities under the Special Laws of the State of
Wisconsin, Chapter 586, and amendments thereto . . ."
Chapter 586, Laws of 1911, as amended, is found in sec. 62.50(23), Stats., 1977,
"62.50. Police and fire departments in first class cities
. . .
(23) DUTIES OF THE CHIEF. The chief engineer of the fire
department and the chief of police of said cities, shall be the head of
their respective departments. The chief of police shall cause the public
peace to be preserved and see that all laws and ordinances of the city
are enforced. The chief shall be responsible for the efficiency and
general good conduct of the department under his control. The chief
of each department shall have the power to regulate his or her
respective department and shall prescribe rules for the government of
its members. Any rule or regulation prescribed by a chief shall be
subject to review and suspension by the board. Each of the chief's
shall have the custody and control of all public property pertaining to
their respective departments and everything connected therewith and
belonging thereto. . . ." See, Milwaukee Police Asso. v.
Milwaukee, 92 Wis.2d at 154.
This court in interpreting the forerunner of this provision has stressed the breadth of
the management discretion vested in the Chief of Police. The Chief "has broad
powers in order to . . . supervise the members of the department." State ex rel.
Kuszewski v. Board Of F. & P. Comm., 22 Wis.2d 19, 25, 125 N.W.2d 334 (1963).
Although other provisions of this statute limit the power of the Chief to discipline, this
limitation is to be strictly construed.
"The members of the force no longer take their offices subject
to being summarily dismissed, demoted, or suspended by the chief.
The act is designed to abolish those measures. In that regard, the
powers of the chief are limited, but he does retain all of the powers
not circumscribed. . . . The retained powers of the chief are those
which do not defeat the purpose or object of the act."
State ex rel. Kuszewski v. Board Of F. & P. Comm., 22 Wis.2d
The foregoing contract provisions providing for the reservation of the right
to transfer in the Chief of Police; the express acknowledgment in the contract of the
Chief's statutory responsibilities under Chapter 586 and the prohibition against the
impairment of these responsibilities, when examined cumulatively, give the Chief of
Police unrestricted discretion over transfers within the department.
In Milwaukee Police Asso. v. Milwaukee, supra, this court was asked to
determine whether the arbitrator exceeded his authority when devising an award
which required that "when and if an opening for a police officer develops": the
grievant be granted a transfer. The court held that the arbitrator exceeded his power
and contract authority because the arbitrator ". . . ignored numerous provisions in the
agreement giving deference to the authority and responsibilities placed upon the chief
of police . . .""by statute and the collective bargaining agreement. In addition, the
court found that the arbitrator by requiring that when an opening arose, a transfer be
granted, in effect added to the labor agreement a provision compelling employee
transfers. Milwaukee Police Asso. v. Milwaukee, 92 Wis.2d at 158-159.
That case, however, was not dealing with the further question presented here.
The collective bargaining agreement vests authority in the arbitrator to decide
grievances arising over discipline which are not subject to review by the Police and
Fire Commission. Unless questions concerning the propriety of transfers are in the
exclusive control of the Chief of Police, it would appear that the Chief of Police's
power over transfers is limited by the arbitrator's power to resolve disciplinary
grievances concerning transfers. This is not a case in which the Chief of Police has
acted to limit his statutory discretion over the supervision of the department by
contract; the contract at issue here expressly recognizes the reservation of power in
the Chief. See, Glendale Prof. Policemen's Asso. v. Glendale, 83 Wis.2d
107, 265 N.W.2d 594 (1978).
The arbitrator in this case incorporated in his decision a portion of an earlier
arbitration decision under the same collective bargaining agreement which ruled that
transfers are subject to the arbitration process. The test adopted by the arbitrator to
determine whether a transfer was "improper" was whether the transfer was made
unfairly or showed favoritism. The problem with this ruling is that nowhere in the
contract can be found a provision allowing the arbitrator to determine whether a
transfer was "unfair" or showed "favoritism." The contract states that the City and
the Chief "shall have the right to transfer employes . . . in a manner most
advantageous to the City." There is nothing in the agreement to limit this right to only
those transfers which the arbitrator deems fair and impartial. (emphasis added). The
arbitrator ignored the numerous contract provisions detailed above. The arbitrator,
in essence, added a provision to the agreement which did not otherwise exist and
thereby exceeded the powers vested in him by the contract. (emphasis added)
The arbitrator only considered whether the transfer was unfair because he felt
a higher burden was imposed upon the grievant to show unfairness in a transfer than
need be demonstrated to show the transfer was a disciplinary measure for which no
cause had been shown. The arbitrator in assessing his power under the contract stated
that "since the contract provides that discipline shall be for cause, it would follow that
the arbitrator has the authority to determine whether there was cause for the
discipline, absent any other limitations in the Agreement." What the arbitrator failed
to consider was that the contract had granted the City and Chief of Police the
management right to transfer employes and the agreement also recognized the rights
retained in the Chief of Police by statute. The contract provision governing discipline
is subject to the management rights retained. The arbitrator therefore, in effect,
removed the right to transfer from that group of management rights vested in the City
and the Chief of Police and placed the right to transfer under the disciplinary
provisions of the contract. This is a modification of the contract clearly in excess of
the arbitrator's authority under the agreement.
From our review of City of Milwaukee I and II, we conclude that when confronted
combination of a broad arbitration clause and express contractual language which can
interpreted in a manner which limits but does not eliminate
statutory personnel authority, the Court
concludes the grievance is substantively arbitrable but strictly reviews the
resultant arbitration award
to ensure that appropriate deference is given to the contractually acknowledged statutory
the contract is interpreted.
Here, if we have the same combination of contractual components that confronted the
in City of Milwaukee I and II, we must follow the same analytical approach used by the
conclude the same components are present. We have a broad grievance arbitration clause
acknowledges the existence of Sec. 62.13, Stats. 2/ We have express contract language
the "Management Right" to "promote" and contract language which can be interpreted as
the exercise of the right to "promote" to a "reasonableness" standard. 3/
Union recognizes the prerogative of the City and the Chief
of the Fire Department to operate and
manage its affairs in all respects, in accordance with its responsibilities and the powers or
authority which the City has not officially abridge, delegated or modified by this Agreement
such powers or authority are retained by the City. (emphasis
These management rights include, but are not limited to the
To utilize personnel, methods, procedures, and
means in the most appropriate and efficient
A. To manage and direct the employees of the
To hire, schedule, promote, transfer,
assign, train or retrain employees in positions within the
Fire Department. (emphasis added)
To suspend, demote, discharge, or take other
appropriate disciplinary action against the
employees for just cause.
To determine the size and composition of the
work force and to lay off employees.
To determine the mission of the City and the
methods and means necessary to efficiently fulfill
the mission including: the transfer, alteration, curtailment, or discontinuance of any goods
or services; the establishment of acceptable standards of job performance; the purchase and
utilization of equipment for the production of goods or the performance of services; and the
utilization of students, and/or temporary, limited-term, art-time, emergency, provisional or
The City has the right to schedule overtime as
required in the manner most advantageous to the
City and consistent with the requirements of municipal employment in the public
It is understood by the parties that every
incidental duty connected with operations enumerated
in job descriptions is not always specifically described. Nevertheless, it is intended that all
such duties shall be performed by the employee.
Contracting and Subcontracting - The Union
recognized that the City has statutory rights and
obligations in contracting for matters relating to municipal operations. The right of
contracting or subcontracting is vested in the City including the exercise of said contracting
and subcontracting rights in the event of emergency, or essential public need or where it is
uneconomical for City employees to perform said work.
The City retains the right to establish reasonable
work rules and rules of conduct. Any dispute
with respect to these work rules shall not be subject to arbitration of any kind, but any
with respect to the reasonableness of the application of said rules may be subject to the
grievance and arbitration procedures as set forth in this Agreement.
Any dispute with respect to Management Rights
shall not in any way be subject to arbitration by
any grievance with respect to the reasonableness of the application of said Management
Rights may be subject to the grievance procedure contained herein. (emphasis
GRIEVANCE AND ARBITRATION
Only matter involving interpretation,
application, or enforcement of the terms of this
Agreement shall constitute a grievance under the provisions set forth
The City agrees to allow an executive
Board Member and members of the grievance
committee sufficient time off for the proper processing of grievances at the appropriate
steps as outlined in this Article. The aggrieved party, if any, shall also be given sufficient
time off for the processing of his grievance.
GENERAL GRIEVANCES: Union
grievances involving the general interpretation,
application, or enforcement of this Agreement may be initiated at Step Two of this
procedure. Grievances initiated at Step Two must meet the time limits set forth in Step
Grievances related to the education
incentive program shall be initiated at Step Two of the
Time limits set forth in the grievance
procedure, with the exception of the initial time limit
on the filing of grievances, shall be exclusive of Saturdays, Sundays and holidays. The
time limits for processing grievances from one step to the procedure to another may be
extended upon mutual written agreement on the parties. In no event shall the time limit
at the initial step be extended without the prior written approval of the Labor Relations
STEP ONE: All grievances must be filed
within thirty (30) calendar days of the date that the
grievant should have been aware of the act by the exercise of reasonable diligence but,
in no event more than ninety (90) calendar days from the date of the occurrence with a
copy to the Labor Relations Manager, otherwise the right to file a grievance is forfeited
and no grievance is deemed to exist. The Personnel Chief or his/her designee shall be
required to give a written answer within five (5) days.
STEP TWO: The grievance shall be
considered settled in Step One unless within five (5) days
after the Personnel Chief's answer is due, the grievance is reduced to writing and
presented to the Chief of the Department with a copy to the Labor Relations Manager.
Within five (5) days, the Chief of the Department, or his/her designee, shall furnish the
employee with a written answer to the grievance, a copy of which shall be forwarded to
the designated Union Representative and to the Labor Relations
STEP THREE: If the grievance is not
settled at Step Two, the City and/or Union may submit
the grievance to an arbitrator as hereinafter provided.
ARBITRATION may be resorted to only
when issues arise between the parties hereto with
reference to the interpretation, application, or enforcement of the provisions of this
No item or issue may be subject to
arbitration, unless such arbitration is formally requested
within thirty (30) days following the filing of the written response required by Step Two
of the grievance procedure or the due date therefor. This provision is one of limitation,
and no award of any arbitrator may be retroactive for a period greater than thirty (30)
days prior to presentation of the grievance in Step One as herein provided or the date of
occurrence whichever is later, but in no event shall it be retroactive for any period prior
to the execution of this Agreement.
Final and binding arbitration may be
initiated by either party serving upon the other party
a notice in writing of the intent to proceed to arbitration. Said notice shall identify the
Agreement provision, the grievance or grievances, the department, and the employees
If the parties, within five (5) working days
following the receipt of such written notice,
do not agree to the selection of an arbitrator, either party may, in writing, request
the Wisconsin Employment Relations Commission to submit a list of five (5)
arbitrators to the parties. Either party may, within five (5) working days of receipt
of said list, notify the other party and the Wisconsin Employment Relations
Commission of its intent to reject the entire list submitted by the Wisconsin
Employment Relations Commission. Upon receipt of such notice, the Wisconsin
Employment Relations Commission shall
submit a new list which shall not duplicate in
any way the original list. The option to reject the entire list may only be exercised
by each party once per grievance.
Alternate elimination shall be used to
select the arbitrator. The last remaining person
shall then be appointed. A toss of a coin shall determine who shall eliminate
If the parties mutually agree, a staff
member of the Wisconsin Employment Relations
Commission shall serve as arbitrator. In that event, no other provisions contained
herein related to arbitrator selection shall apply.
The arbitrator shall neither add to nor
detract from nor modify the language of this
Agreement in arriving at a determination of any issue presented that is proper for
arbitration within the limitations expressed herein. The arbitrator shall have no
authority to change wage rates or salaries. The arbitrator shall expressly confine
himself/herself to the precise issue(s) submitted for arbitration and shall have no
authority to determine any other issue(s) not so submitted to him/her or to render
observations or declarations of opinion, which are not directly essential in reaching the
All expenses of arbitration proceedings
shall be borne equally by the parties. However,
expenses relating to the calling of witnesses or any other similar expenses associated with
such proceeding, shall be borne by the party at whose request such witnesses are
required. If either or both parties request that an independent stenographic record of the
proceedings be made and transcripts provided, the parties shall equally share the entire
cost of such service, including the provision of a transcript to each party and the
A. The arbitrator shall hold a hearing
at Madison, Wisconsin, at a time and place
convenient to the parties at the earliest possible date following notification of a selection.
The arbitrator shall take such evidence as in his judgment is appropriate for the
disposition of the dispute. Statements of position may be made by the parties and
witnesses may be called. The arbitrator shall have initial authority to determine whether
or not the dispute is arbitrable under the express terms of this Agreement. Once it is
determined that the dispute is arbitrable, the arbitrator shall proceed in accordance with
this Article to determine the merits of the dispute submitted to
B. Proceedings shall be as provided in
Arbitration Chapter 788, Wisconsin Statutes.
LIMITATIONS ON GRIEVANCE
Arbitration shall be limited to grievances over
matters involving interpretation,
application or enforcement of the terms of this Agreement.
Arbitration shall not apply where Section
62.13 of the Wisconsin Statutes is applicable
and where Management has reserved rights relating to arbitration in Article 5 of this
No issue whatsoever shall be arbitrated or
subject to arbitration unless such issue results
from an action or occurrence which takes place following the execution of this
Agreement, and no arbitration, determination, or award shall be made by an
arbitrator, which grants any right or relief for any period of time whatsoever prior
to the execution date of this Agreement or following the termination of this
In the event that this Agreement is
terminated for any reason, rights to arbitration
thereupon cease. This provision, however, shall not affect any arbitration proceedings
which were properly commenced prior to arbitration or termination of this
It is contemplated by the provisions of
this Agreement that any arbitration award shall be
issued by the Arbitrator at their earliest date after completion of the
We are also satisfied that this contractual combination can be interpreted in a manner
limits but does not eliminate the authority of the Chief and PFC, under Sec. 62.13, Stats.
of Milwaukee II is instructive. When discussing the validity of the arbitrator's award in
Milwaukee II, the Court went to great lengths (in language we have underlined for emphasis
prior quote from the opinion) to note the absence of contract language restricting the transfer
authority of the City and the Chief. Had such language been present, the award would
not have been overturned. Most importantly from our perspective is the fact that there
been no need for the Court to discuss the absence of such language if its presence would
inappropriately transferred authority to the arbitrator. In effect, the Court was indirectly
that the restriction the Chief's statutory power imposed by an "unfair" or "favoritism"
a permissible limitation under the Glendale case it had decided two years earlier. From the
Milwaukee II opinion, we comfortably conclude that should an arbitrator determine it is
to apply the contractual standard of "reasonableness" to the Gentilli promotion, such an
would constitute a permissible limitation on the statutory authority to promote, particularly in
context of PFC Rules and confirming conduct which reflect the City's view that the PFC has
to play in this matter. Thus, we are persuaded that subjecting the Chief's statutory and
promotional power to a reasonableness standard is a limitation on and not a transfer of
authority and, as such, that the City's defense should be rejected.
The City has gone to great lengths to argue the impact of Milwaukee Police Assn. v.
Milwaukee, 133 Wis.2d 192 (Ct. App 1993), herein Milwaukee III, on this case. We find
efforts unpersuasive. In Milwaukee III, when finding the discharges of probationary
not arbitrable, the Court emphasized the lack of express contractual language which limited
statutory authority in question. We have express language (i.e. "reasonableness") in the case
us. The Court also noted the strong public policy interests involved in the hiring of
dispute before us involves the promotion of employe with 19 years of seniority. Given the
and contrary to the City, we do not find the common presence of a probationary period in
MILWAUKEE III and this dispute to be a persuasive basis for concluding that Milwaukee III
governs the outcome of this dispute.
The City also places great emphasis on City of Janesville v. WERC, 193 Wis.2d 492
App 1995). We again find that emphasis misplaced. In Janesville, the Court concluded that
arbitrator could not review the propriety of disciplinary action which was subject to the
action of the
PFC, particularly where the statute specified that the PFC's order is "final and conclusive"
reversed by the circuit court. The Court reasoned that the PFC order becomes "meaningless"
if it is
subject to arbitral review. Here, the PFC has concluded that it has no role. It has concluded
has no jurisdiction over the matter. Thus, the conflict presented in Janesville is not present
In summary, we are satisfied that the Gentilli grievance is substantively arbitrable
Jefferson analysis and that under a Glendale/City of Milwaukee I and II analysis, the
bargaining agreement limits but does not transfer the statutory authority of the PFC and the
regarding promotions. Thus, the City is obligated to arbitrate the Gentilli grievance.
Dated at the City of Madison, Wisconsin this 30th day of April, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
CONCURRING OPINION OF CHAIRPERSON
JAMES R. MEIER
I concur that the Gentilli grievance is arbitrable as I see it as a demotion. The PFC's
conclusion that they have no jurisdiction over the termination of his probationary promotion
distinguishes the matter from City of Janesville and I am otherwise satisfied that the
arbitrable under Jefferson.
James R. Meier, Chairperson