STATE OF WISCONSIN
CIRCUIT COURT BRANCH 14
CITY OF MADISON,
Case No. 98-CV-1397
[Decision No. 28920-C]
[NOTE: This document was re-keyed by WERC. Original pagination has been
NOTICE OF ENTRY OF DECISION AND ORDER
To: Larry W. O'Brien
Assistant City Attorney
City of Madison
Room 401, City-County Building
210 Martin Luther King, Jr., Blvd.
Madison, WI 53709
Lawton & Cates, S.C.
214 W. Mifflin St.
P.O. Box 2965
Madison, WI 53701-2965
PLEASE TAKE NOTICE that a Decision and Order affirming the decision of the
Wisconsin Employment Relations Commission, of which a true and correct copy is hereto
was signed by the court on the 25th day of January, 1999, and duly entered
in the Circuit Court for
Dane County, Wisconsin, on the 25th day of January, 1999.
Notice of entry of this Decision and Order is being given pursuant to secs. 806.06(5)
Dated this 27th day of January, 1999.
JAMES E. DOYLE
State of Wisconsin
David C. Rice /s/
DAVID C. RICE
Assistant Attorney General
State Bar No. 1014323
Attorneys for Wisconsin Employment
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
- 2 -
STATE OF WISCONSIN
CIRCUIT COURT BRANCH 14
CITY OF MADISON,
WISCONSIN EMPLOYMENT RELATIONS
98 CV 1397
Petitioner, City of Madison seeks review of a decision of Respondent, Wisconsin
Employment Relations Commission (WERC). The WERC affirmed the decision of its
that the City had committed prohibited practices within the meaning of Wis. Stats.
and 1 by refusing to arbitrate a grievance.
Chris Gentilli has worked for the Madison Fire Department for approximately
years. In late 1994 Gentilli was selected by then Chief Roberts for promotion to the position
Fire Apparatus Engineer, commencing January 1, 1995. On December 12, 1994 the Police
Fire Commission approved the Chief's recommendation for promotion, subject to standard
probation in rank. (Sec. 5.04 of the PFC Rules and Regulations requires that all promotional
appointments shall be probationary for 12 months, giving the Chief the right to reduce the
employe to his/her former rank without any right of appeal to the PFC during the
period.) November 29, 1995, Chief Roberts informed Gentilli that his Apparatus Engineer
probation WAS revoked. The Union filed a grievance and requested a hearing before the
Both were denied. The Union requested arbitration of the denied grievance. The City
the position that the matter was not arbitrable. The Union filed a prohibited practices
and prevailed before the WERC, which ordered the City to arbitrate the grievance. The City
The City asserts that arbitration of the grievance will transfer the exclusive and
statutory authority of the Chief and the PFC over promotion, probation, demotion or
the WERC and its arbitrators. The City cites Wis.Stat. 62 13(4):
SUBORDINATES: The chiefs shall appoint subordinates subject to approval
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.
The City also relies on Milwaukee Police Association v. City of Milwaukee,
113 Wis. 2d 192, 335 N.W.2d 417(Ct. App. 1983) (Milwaukee III) and
City of Janesville v.
WERC, 193 Wis. 2d, 492, 535 N.W.2d 34 (Ct. App. 1995) in support of its
the impropriety of the transfer of authority from the Chief or PFC to the WERC and its
The Union and the WERC both urge me to uphold the decision of the WERC. They
upon a number of cases voicing the favored policy of arbitration (in the Union's brief) and a
of cases upholding arbitration in somewhat similar setting, based on long standing principles
arbitrability. Milwaukee Police Association v. Milwaukee, 92 Wis. 2d 145, 285
(1979) (Milwaukee I) and Milwaukee v. Milwaukee Police Association, 97
Wis. 2d 15,
292 N.W.2d 941 (1980) (Milwaukee II).
The issue presented involves the harmonization of MERA with Wis. Stat. 62.13(4).
review is de novo. City of Janesville v. WERC, 193 Wis. 2d 492, 498-99, 535
The relationship between Gentilli, his Union and the City was covered by a collective
bargaining agreement. The management rights clause of the agreement read:
Union recognizes the prerogative of the City and the Chief of the Fire
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
abridged, delegated or modified by this Agreement and such powers or authority
are retained by the City.
These management rights include, but are not limited to the following:
A. To utilize personnel, methods, procedures, and means in the
and efficient manner possible.
B. To manage and direct the employees of the Fire Department.
C. To hire, schedule, promote, transfer, assign, train or retain
positions within the Fire Department.
D. To suspend, demote, discharge, or take other appropriate
against the employees for just cause.
K. Any dispute with respect to Management Rights shall
not in any way be subject
to arbitration but any grievance with respect to the reasonableness of the
application of said Management Rights may be subject to the grievance procedure
The grievance procedure contained in the collective bargaining agreement provides
arbitration as the third step in the process if the grievance is not settled by the Personnel
Step 1) or the Department Chief (at Step 2). Article 9, Section I of the agreement provides:
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.
Article 9, Section Q of the agreement sets forth certain limitations on arbitration under
1.Arbitration shall be limited to grievances over matters involving
interpretation, application or enforcement of the terms of this Agreement.
2.Arbitration shall not apply where Section 62.13 of the Wisconsin Statutes is
where Management has reserved rights relating to arbitration in Article 5 of this Agreement.
The City claims that the dispute here is not arbitrable under the holding in
Milwaukee III. In that
case two Milwaukee Police new hires were terminated from employment after serving one
seven and one-half months, respectively, of their probationary terms. The Court of Appeals
that the termination of a probationary police officer is not an arbitrable grievance, citing
165.85 and Kaiser v. Board of Police & Fire Commissioners, 104 Wis. 2d 498,
311 N.W.2d 646
(1981). The court wrote,
Because the strong public policy behind secs. 62.13 and 165.85, Stats., would be
thwarted if the
broad, general, and not express language of the collective bargaining agreement were read to
make probationary terminations arbitrable, we reject so broad a reading and hold that the
is not arbitrable. Milwaukee III, 113 Wis. 2d at 198.
As the WERC points out in its brief, The Court of Appeals in Milwaukee
III did not engage in the
arbitrability analysis employed by the Supreme Court in Milwaukee I and
Milwaukee II. That
analysis has endured for nearly 40 years. See United Steelworkers of America v.
Warrior & Gulf
Navigation Co., 363 U.S. 574 (1960), Dehnart v.
Waukesha Brewing Co., Inc., 17 Wis. 2d 44, 115 N.W.2d 490 (1962), Jt.
School District No. 10
v. Jefferson Ed. Asso., 78 Wis. 2d 94, 253 N.W.2d 536 (1977). As quoted in
The court's function is limited to a determination whether there is a
of the arbitration clause that would 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., supra, at 111. Milwaukee I, 92 Wis. 2d at 151.
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
363 U.S. 574, 582, 583 (1960). Id. at 152.
The grievance and arbitration procedure of the agreement between the parties is
A. Only matters involving interpretation, application, or
enforcement of the terms
of this Agreement shall constitute a grievance under the provisions set forth
It permits the grievance and arbitration of matters involving the application of the
agreement. In the area of Management Rights, its scope is limited somewhat by the
Article 5, Section K. That section limits the arbitration step of the grievance procedure to
"reasonableness of the application of said Management Rights".
There is further limiting language in the agreement. As stated above, Article 9,
of the agreement provides, "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 Agreement." It is questionable whether Wis. Stat.
to the facts of this case. Nor is it clear that the City has reserved any rights.
Wis. Stat. 62.13 is an "enactment of statewide concern for the purpose of providing a
uniform regulation of police and fire departments." Wis. Stat. 62.13(12). The subsection of
s. 62.13 that best applies to the facts of this case is (4) - "The chief shall appoint
subject to approval by the board." In this case the board has taken itself out of the picture,
though. The PFC informed the Union that it had no role to play in this situation until the
the probationary period. Thus, the Chief's action in this case is not "subject to approval by
board." In fact, it is the City's position that the Chief's decision is not subject to approval
anyone, that the Chief's decision is subject to no review at all. This position can not be
with the City's agreement that the reasonableness of the application of its Management Rights
could be tested by the grievance process, including arbitration.
Nor is it clear that management has reserved rights relating to arbitration in Article 5
the agreement in this context. Article 5 provides, in part, "any grievance with respect to the
reasonableness of the application of said Management Rights may be subject to the grievance
procedure contained herein." While the article prohibits the arbitration of any "dispute" over
management rights, it expressly authorizes use of the grievance procedure in a situation
the reasonableness of the application of such rights. "Dispute", as used in Article 5, may
refer to "interpretation" and "enforcement" as used in Article 9, Section A, prohibiting
with respect to those issues.
I can not say "with positive assurance that the arbitration clause is not susceptible of
interpretation that covers the asserted dispute. Doubts should be resolved in favor of
United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582, 583
(1960). Id. at 152. I conclude that the dispute at hand is
Milwaukee III held that arbitrator review of the termination of
would work a transfer of the Chief's authority to the arbitrator, creating a direct conflict with
Chief's statutory authority under Wis. Stat. 62.13(4). The Milwaukee III
court felt that it was not
in a situation where the Chief's power was simply limited or restricted, a situation that had
approved in Glendale Professional Policemen's Association v. City of Glendale, 83
Wis. 2d 90,
264, N.W.2d 594 (1978). In Glendale the Supreme Court approved
contract language that
required a Chief to promote the most senior of a number of qualified candidates, noting that
amounted to a mere restriction of the Chief's discretion.
Arbitration of the dispute at hand does not transfer the Chief's authority to an
It simply limits the Chief's authority in a manner agreed to in a collective bargaining
That is, the Chief's application of management right must be reasonable i.e. not
capricious. This does not transfer the Chief's authority. It simply limits it, just as seniority
the discretion of the Chief in Glendale.
The City and the WERC engage in some discussion of the authority of the arbitrator
make a particular award in this case. The WERC appropriately points out that there is a
difference between the arbitrator's ability to hear the grievance and the authority to make an
The authority of the arbitrator to hear a grievance is not the same as the
of the arbitrator to make a particular award and the distinction between the two
concepts must remain clear. City of Milwaukee v. Milwaukee Police Ass'n,
97 Wis.2d 15, 23, 292 N.W.2d 841 (1980).
The WERC asserts that the narrow issue before me is arbitrability of the dispute.
urges me to look ahead to the prospect of the City's further litigation if the arbitrator awards
Gentilli a promotion, urging me to put an end to this and prevent the needless expenditure of
and resources in a futile gesture. For the reasons set forth above, it is clear that I am not
convinced the gesture is futile. However, even if I am wrong in the issue of transfer vs.
of authority, the WERC is correct when it states that the sole issue at hand is arbitrability.
task is to determine "whether there is a construction of the arbitration clause that would
grievance on its face and whether any other provision of the contract specifically excludes it.
School District No. 10 v. Jefferson Ed. Asso., supra, at 111. Milwaukee I, 92 Wis. 2d at
conclude that the arbitration clause here covers the grievance and that no provision
The decision of the Respondent is affirmed.
Dated this 25 day of January, 1999.
C. William Foust /s/
C. William Foust, Judge
Dane County Circuit Court