STATE OF WISCONSIN IN COURT
[NOTE: This document was re-keyed
by WERC. Original pagination has
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
LOCAL 1901, AFSCME, AFL-CIO,
August 26, 2003
APPEAL from an order of the circuit court for Brown County:
SUE E. BISCHEL, Judge. Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1 PER CURIAM. Brown County appeals an order affirming the Wisconsin
Employment Relations Commission's determination that the County violated its collective
bargaining agreement with Brown County Mental Health Center Employees, Local 1901,
when it refused to arbitrate
Catherine Christensen's medical claim grievance. The County argues that Christensen's
grievance is not subject to arbitration under the terms of the collective bargaining agreement.
We reject this argument and affirm the order.
¶2 Christensen, a Brown County Mental Health Center employee, filed a
certain chiropractic services she received under the County's basic health insurance plan.
Although Christensen had received payment for chiropractic services in the past, the
third-party administrator denied Christensen's claim, concluding that the treatments were no
longer "medically necessary." After exhausting all her remedies with the insurance plan
supervisor, Christensen filed a grievance under the collective bargaining agreement, alleging
that the denial of her claims for chiropractic services violated that agreement. The County
ultimately denied the grievance and refused to arbitrate. In turn, the union filed a complaint
with the commission, alleging that the County's refusal to arbitrate the grievance constituted
a violation of the collective bargaining agreement, contrary to WIS. STAT. §
1 The statute provides that it is a prohibited practice for a
"interfere with, restrain or coerce municipal employees in the exercise of their rights." WIS.
STAT. § 111.70(3)(a)1. The statute further provides that it is a prohibited practice for
[t]o violate any collective bargaining agreement previously agreed
upon by the parties
with respect to wages, hours and conditions of employment affecting municipal employees,
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
¶3 Following a hearing on the complaint, the hearing examiner issued a
concluding that because the grievance was arbitrable under the collective bargaining
agreement, the County had committed a prohibited practice by refusing to arbitrate. The
County petitioned the commission for review of the examiner's decision and the commission
ultimately affirmed the examiner's decision with minor modifications. The County then filed
suit in circuit court seeking certiorari review of the commission's decision. The circuit court
affirmed the commission's decision and this appeal follows.
¶4 Whether Christensen's grievance is subject to arbitration under the terms of
collective bargaining agreement is a question of law that this court reviews independently.
City of Madison v. WERC, 2003 WI 52, ¶12,
261 Wis. 2d 423, 662 N.W.2d 318. There is
a "broad presumption of arbitrability" and courts are limited to determining "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."
Id., ¶20. An order to arbitrate a specific
grievance will not be denied unless it "may be said with positive assurance that the
clause is not susceptible to an interpretation that covers the asserted dispute."
Steelworkers of America v. Warrior & Gulf, 363 U.S. 574, 582-83
(1960). Without an
express provision excluding a particular grievance from arbitration, only the most forceful
evidence of a reason to exclude the grievance will prevail. Id.
WIS. STAT. § 111.70(3)(a)5. All references to the Wisconsin Statutes are to the
version unless otherwise noted.
¶5 Here, the County argues that the grievance, on its face, does not present an
arbitrable dispute under the terms of the collective bargaining agreement. Article 21 of the
agreement governs insurance and states, in relevant part, that "[t]he Employer shall provide
a Hospital and Surgical Insurance Group Plan, with major medical, during the term of this
Agreement." Article 21 also requires that "any changes in policy must be negotiated by the
parties." In turn, Article 26 of the agreement sets out a four-step grievance procedure and
provides, in relevant part:
Any grievance or misunderstanding which may arise between the
Employer and an
employee (or employees) or the Employer and the Union, shall be handled as follows:
Step 4. If a satisfactory settlement is not
reached as outlined in Step 3, either party
desiring arbitration must submit a request to the Wisconsin Employment Relations
Commission requesting a staff arbitrator be appointed.
The parties agree that the decision of the
arbitrator shall be final and binding on both
parties to the Agreement. The arbitrator shall not have the authority to add to, subtract
change, alter, modify or delete any of the specific terms or provisions of this Agreement,
his/her ruling will be restricted to an interpretation of the contractual part of this
only. (Emphasis added.)
Only grievances relating to the termination of probationary employees are expressly
from the grievance/arbitration process.
¶6 The County contends that Christensen's grievance on its face concerns a
necessity" claim that arises out of a collateral agreement-- namely, the health insurance
policy--that is not subject to the grievance and arbitration provisions of the collective
bargaining agreement. The County further
argues that because the merits of Christensen's grievance will require interpretation of
insurance policy rather than "the contractual part of this Agreement only," the arbitrator has
no authority to consider the grievance. The County urges this court to "adopt the reasoning"
of International Ass'n of Machinists & Aerospace Workers v.
Waukesha Engine Div.,
Dresser Indus. Inc., 17 F.3d 196, 199 (7th Cir. 1994), in which the
court concluded that the
language of both the collective bargaining agreement and the insurance plan did not intend
to subject determinations of medical necessity to arbitration. Id.
¶7 There, the only language in the collective bargaining agreement relating to
claims provided: "The Company will continue to provide the present employee insurance
coverage as amended, for the term of this Agreement, as specified in the Summary
Booklet." (Emphasis added.) In turn, the plan booklet indicated that no medical
benefits were provided under the plan for "[c]harges for services and supplies that are not
medically necessary, as determined by Aetna, for the diagnosis, care or treatment of the
physical or mental condition involved, even if they are prescribed, recommended or approved
by the attending physician or dentist." The Waukesha Engine
court ultimately determined
that whether a group health plan participant's hospitalization was medically necessary and,
therefore, covered under the employer's health plan, was not arbitrable under the collective
bargaining agreement. Id.
¶8 The language of the collective bargaining agreement in
however, is distinguishable from the present case. Here, the collective bargaining agreement
requires the County to provide "a Hospital and Surgical Insurance Group Plan," but does not
incorporate a specific insurance plan nor refer the reader to a collateral document such as the
"Summary Plan Booklet" in Waukesha Engine. The
agreement here also expressly provides
that "any changes
in policy must be negotiated by the parties." Thus, arbitrability of the grievance in this
is less controlled by the provisions of the separate insurance plan than by the collective
bargaining agreement's specific language.
¶9 Ultimately, doubts about arbitrability in a labor agreement should be
favor of arbitration. AT&T Technologies, Inc. v. Communications
Workers, 475 U.S. 643,
650 (1986). Applying the presumption favoring arbitration, it cannot be said "with positive
assurance that the grievance/arbitration provision is not susceptible of an interpretation that
covers the asserted dispute." United Steelworkers,
363 U.S. at 582-83. The commission and
the union argue that Christensen's grievance relates to alleged "changes in policy" within the
meaning of Article 21 of the collective bargaining agreement--i.e. changes to benefit levels
for chiropractic services and to the determination of what is "medically necessary." Given
broad language of the arbitration clause, Christensen's grievance on its face can reasonably
be read to implicitly allege that there had been a "change" in the health insurance policy in
violation of the collective bargaining agreement. Because the arbitration clause can be
construed to cover the grievance on its face and no other provision of the contract
excludes it, we conclude that the grievance was subject to arbitration under the terms of the
collective bargaining agreement.2
2 Although the County argues there is forceful evidence that "the
parties did not
intend to have arbitrators determine medical necessity claims," the proper inquiry here is
whether there is forceful evidence to exclude a grievance alleging a change in the health
By the Court.--Order affirmed.
This opinion will not be published. See WIS. STAT. RULE