STATE OF WISCONSIN
CIRCUIT COURT BROWN COUNTY
RELATIONS COMMISSION and
LOCAL 1901, AFSCME, AFL-CIO,
Decision No. 30016-C
Case No. 01-CV-1893
September 12, 2002
[NOTE: This document was re-keyed by WERC. Original pagination has been
Petitioner Brown County (hereinafter "the County") has brought this case before the
pursuant to Wis. Stat. § 227.52, seeking review of a decision of the Wisconsin
Relations Commission (WERC). On November 27, 2001 the WERC affirmed the decision
one of its Hearing Examiners holding that the County had committed a prohibited practice
the Wisconsin Municipal Employment Relations Act (MERA)1 by refusing
to process an
employee grievance through final and binding arbitration. The County argues that the
is not arbitrable because it is not a dispute that involves the interpretation of, or a change in,
clause of the collective bargaining agreement. Respondents argue that the grievance
procedure provided for in the collective bargaining agreement is sufficiently broad to include
grievance in this case, and is therefore an arbitrable dispute. Because it cannot be said with
"positive assurance" that Christensen's
1 Wis. Stat. §§ 111.70-111.77.
grievance is of a type that is excluded from the arbitration procedure outlined in the
the decision of the WERC is affirmed.
Brown County has established a Basic Health Plan (the Plan) for the benefit of its
employees. Catherine Christensen (Christensen) is an employee of petitioner at its Mental
facility. Christensen receives access to the Plan and its benefits through Article 21 of the
collective bargaining agreement between Brown County and Brown County Mental Health
Center Employees (the agreement).2 Brown County Mental Health Center
represented by Local 1901, AFSCME, AFL-CIO (the union), who join the WERC as
in this action. Petitioner self-funds the Plan, but at all relevant times Employers Health
Company administered the Plan under contract.
Christensen suffers from a degenerative back condition and receives chiropractic
treatments in order to alleviate its symptoms. Christensen had received reimbursement for
treatments through the Plan in the past. In October of 1999, her claims for reimbursement
denied on the grounds that the chiropractic treatments were not "medically necessary." The
provides a process through which benefit denials may be appealed. Christensen exhausted
appeals, receiving no relief from the initial decision.
Christensen then filed a grievance through the union in relation to the denial of the
Article 26 of the agreement outlines its grievance procedure. It states that it is applicable to
grievance or misunderstanding which may arise between the employer and
2 The first sentence of the article states: "The Employer shall
provide a Hospital and Surgical
Insurance Group Plan, with major medical, during the term of this agreement."
an employee." The County refused to process the grievance through final and binding
citing its belief that the denial of Christensen's claim was not subject to the grievance
On October 13, 2000 the union filed a complaint with the WERC alleging that
committed a prohibited practice under MERA by refusing to process Christensen's
hearing was held in front of a WERC Hearing Examiner on January 22, 2001, and on May
2001 the Hearing Examiner issued a decision agreeing that the County committed a
practice by refusing to process the grievance, and ordered the dispute to arbitration. The
sought review of the Hearing Examiners' decision by filing a petition for review with the
on May 29, 2001. On November 27, 2001 the WERC affirmed the Hearing Examiner's
The County now seeks review of the WERC decision in this court. It continues to
the grievance is not subject to the procedure outlined in the agreement. Respondents WERC
the union argue that the procedure is broad enough to encompass Christensen's grievance,
that the County has failed to overcome the presumption in favor of arbitrability, therefore,
WERC's decision should be affirmed.
MERA guides relations between County employers, employees, and their unions. It provides
guidelines on negotiating and enforcing collective bargaining agreements.
Wis. Stat. § 111.70
provides in pertinent part:
(3)(a) It is a prohibited practice for a municipal employer individually or in concert
4. To refuse to bargain collectively with a representative of a majority of its
in an appropriate collective bargaining unit. Such refusal shall includethough not be
limited thereby, to the refusal to execute a collective bargaining agreement previously
A party may not be forced to arbitrate a dispute unless it has contracted to do so.
Kimberly Area School District v. Zdanovec, 222 Wis. 2d 27, 39, 586 N.W.2d
41, 46 (Ct.App.
1998). Because the parties did not submit the issue of arbitrability to the arbitrator for a
binding decision on the subject, I must interpret the contract to determine whether the dispute
arbitrable and whether the arbitrator has jurisdiction. Milwaukee District Council 48
Federation of State County & Municipal Employees, AFL-CIO v. Milwaukee
County, 131 Wis.
2d 557, 560, 388 MW.2d 630, 632 (Ct.App.1986); citing At& T
Techs v. Communications
Workers, 475 U.S. 643, 649 (1986)(unless the parties clearly and unmistakably
provide for the
decision to be made by the arbitrator, decisions on arbitrability are for the courts to decide).
making this inquiry, my functions are solely to determine: (1) whether there is a construction
the arbitration clause that would cover the grievance on its face; and (2) whether another
provision specifically excludes it. Kimberly School, 222 Wis. 2d at 37. I may
not examine the
merits of the underlying claim. Id. at 39.
Determining arbitrability is a question of law, and while I may give due consideration
the decision of the WERC, I am not bound by their ruling. Joint School District 10 v.
Educ. Assn., 78 Wis. 2d 94, 106-7, 253 NW.2d 536, 542 (1977). Because the
agreement in this
case contains an arbitration clause, there is a presumption of arbitrability. Kimberly
Wis. 2d at 39. In deciding whether to affirm the decision to order the grievance to
must consider the following general principle: "An order to arbitrate the particular grievance
should not be denied unless it may be said with positive assurance that the arbitration clause
not susceptible of an interpretation that covers the asserted
dispute. Doubts should be resolved in favor of coverage." Milwaukee Police
Association v. City
of Milwaukee, 250 Wis.2d 676, 685, 641 N.W.2d 709, 713 (Ct.App.2002);
Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574,
There is a construction of the arbitration clause that would govern the grievance on
face. The part of the clause defining what subject matters are proper for arbitration contains
broad language. It states that the grievance/arbitration procedure is applicable to "any
or misunderstanding that may arise between the Employer and an employee." This language
easily be interpreted to include a dispute over the denial of medical benefits through a health
created and funded by the employer. Because there is a construction that indicates
the next step is to examine the agreement to determine if are any other provisions that
specifically exclude the subject matter from the arbitration procedure.
There is no other provision in the agreement that specifically excludes the subject
from arbitration. The only provision of the agreement that specifically excludes any subject
matter from the arbitration procedure is Article 3, which provides that a probationary
may be terminated without recourse to the grievance procedure. Petitioner points to the
in Article 26 stating that the arbitrator's ruling shall be limited to an interpretation of the
the agreement. While this language may be limiting as to what the arbitrator may rule, it
not specifically limit the subject matter that he or she may rule upon. It is perfectly logical
read the clause as allowing the arbitrator to hear the grievance
4 This case is one of what's known as the Steelworker's
Trilogy, a series of cases decided by the
United States Supreme Court that set forth the basic principles on the subject of arbitrability
outlined here. See Kimberly, 222 Wis. 2d at
38-39. The teachings of these cases were adopted
by the Wisconsin Supreme Court in Denhart v. Waukesha Brewing Co.Inc., 17 Wis. 2d 44, 115N.W.2d 490 (1962).
in this case, and then make a ruling as to whether or not there has been a violation of
the terms of
the agreement. The clause does not specifically exclude the denial of medical benefits from
arbitration procedure. Therefore, the presumption in favor of arbitrability has not been
See Racine Educational Association v. Racine Unified School
District, 176 Wis. 2d 273, 284-85,
500 N.W.2d 379, 383-84 (Ct.App.1993).
The County cites International Association of Machinists and Aerospace
Waukesha Engine Division, Dresser Industries, 17 F. 3d 196 (7th Cir.1994) to bolster
argument that medical benefits disputes are not subject to arbitration under collective
agreements. Although the facts of Waukesha Engine are quite similar to the
of this case, I decline to follow the ruling of the 7th Circuit. As an
initial matter, it is not
"controlling precedent" as the County argues. Waukesha Engine made the
determination under Federal Law precedent. It did not attempt to interpret or apply
Law.5 Although the Wisconsin Supreme Court has adopted the basic
principles set out by the
U.S. Supreme Court on the subject, Wisconsin Courts have developed their own common
arbitrability, and have not taken the position that Federal case law on the subject is
for Wisconsin courts.6 Furthermore, even though the facts of
Waukesha Engine are similar, they
differ in some important respects.
In Waukesha Engine the 7th Circuit held that the terms
of another, separate contract
referred to by the collective bargaining agreement limited the scope of arbitrability in that
5 Even if it did, it is a basic principle of stare
decisis that Federal Court interpretations of State
law are not controlling precedent on State Courts. 5 Am. Jur.2d Appellate
Review § 604.
6 An example of such a position would be the interpretation of
Wisconsin's anti-trust statute,
Wis.Stat. § 133.03. In part because Wis Stat. § 133.03
is nearly identical to the Federal anti-trust statute, 15 U.S.C.A. § 1, Federal case law
on 15 U.S.C.A. § 1 controls Wisconsin Courts'
interpretation of Wis. Stat. § 133.03. See Independent Milk
Producers Co-Op v. Stoffel, 102
Wis.2d 1, 6 (Ct.App.1980).
case. Id. at 198. Such a reference does not exist here. This case is also
Waukesha Engine in that the arbitration clause here is very broad, with the only
language referring to the scope of what the arbitrator may rule. In Waukesha
"authority" of the arbitrator was limited to construction of the terms of the agreement,
that the arbitrator could only hear disputes over the terms of the agreement. Id.
at 198. The
language of the agreement here does not imply such a limitation. It lends itself to a
that the arbitrator may hear "any grievance or dispute," but can only rule based upon the
The County makes many arguments that go to the validity of the grievance.
Whether or not
there has been any violation of the terms of the agreement is not for me to decide. My
limited to determining whether the arbitration clause of the agreement, taking into account
limiting provisions, lends itself to a construction that favors arbitrability of the dispute.
the clause lends itself to such a construction, and it cannot be said with "positive assurance"
the terms of the agreement specifically exclude the subject matter of the grievance in this
from arbitrability, I affirm the ruling of the WERC.
For the aforementioned reasons, the Findings of Fact, Conclusion of Law and Order
the WERC are affirmed in all respects.
Dated at Green Bay, Wisconsin, this 12 day of
BY THE COURT:
Honorable Sue E. Bischel
Circuit Court, Branch III