Wisconsin Employment Relations Commission v. Teamsters Local No. 563 , 75 Wis. 2d 602 ( 1977 )

ABRAHAMSON, J.

(dissenting). The majority concludes that the arbitrator exceeded his powers when he determined that the discharge of Robbins was not for just cause. I respectfully dissent. I believe that the arbitrator acted pursuant to the authority granted him by the collective bargaining agreement and that the majority is improperly substituting its judgment on the merits of the matter for that of the arbitrator.¹

The collective bargaining agreement was entered into pursuant to the Municipal Employment Relations Act, secs. 111.70-111.77, Stats. Sec. 111.70(1) (d), Stats., defines collective bargaining to include reaching a written agreement relating to “wages, hours and conditions of employment.” This court has held that a dismissal falls within the embrace of the statutory phrase “wages, hours and conditions of employment.” Richards v. Board of Education, 58 Wis.2d 444, 460b, 206 N.W.2d 597 (1973).² Thus the city had the power to negotiate a collective bargaining agreement, including binding arbitration, on the issue of dismissals.

There is a strong legislative policy in Wisconsin favoring arbitration in the municipal collective bargaining context as a means of settling disputes and preventing individual problems from growing into major labor disputes. Secs. 111.70(3) (a)5,³ 111.70(6),⁴ Stats.; Local 1226 v. Rhinelander, 35 Wis.2d 209, 216, 151 N.W.2d 30 (1967); Teamsters Union Local 695 v. Waukesha County, 57 Wis.2d 62, 69, 203 N.W.2d 707 (1973). The similar federal policy favoring arbitration of disputes arising under collective bargaining was enunciated by the United States Supreme Court in the Steelworkers’ Trilogy. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed.2d 1424 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed.2d 1403 (1960). Our court has looked to the federal law of labor regulations as a useful guide to giving meaning to ch. 111.70, Stats. WERC v. City of Evansville, 69 Wis.2d 140, 151-154, 156, 159-161, 164, 165, 230 N.W.2d 688 (1975); Joint School District No. 8 v. WERB, 37 Wis.2d 483, 490, 491, 155 N.W.2d 78 (1967).

In United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 567-568, 80 S. Ct. 1343, 4 L. Ed.2d 1403 (1960), the Court said that while the question whether a dispute is arbitrable is for a court, the judicial inquiry “is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is then confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. . . . The courts, therefore, have no business weighing the merits of the grievance . . . .” (Emphasis supplied.)

The arbitrator obtains his authority from the collective bargaining agreement. The contract in this case provided that “[a]ny grievance relative to the interpretation or application” of the contract was arbitrable. It also provided that “[t]he decision of the arbitrator shall he final and binding. . . .” The contract further has an arbitration provision in the discharge section (see note 7 of this opinion). Robbins’ grievance raised a question of interpretation or application of the collective bargaining agreement because it related to whether his discharge was for just cause. Whether an ordinance violation is just cause goes to the interpretation of just cause. This court has held that a dismissal grievance is a question relating to the interpretation and application of the collective bargaining agreement. Local 1226 v. Rhinelander, 36 Wis.2d 209, 219, 151 N.W.2d 30 (1967).

I would hold that the dismissal grievance was subject to arbitration under the contract and that the arbitrator had subject matter jurisdiction over this dispute. He therefore did not “exceed his powers” within the statutes controlling judicial review of arbitration decisions. Sec. 298.10, Stats. Once we eliminate that ground for review, there is no other ground for review available in this case under sec. 298.10, Stats. Sec. 298.10 restricts review largely to attacks on the integrity of the arbitrator and the evidentiary basis for his decision. Even if we assume that the majority opinion is correct in its interpretation of the contract and ordinance and that the arbitrator erred in this respect, this is a case in which the arbitrator’s determination would be unchallengeable. On numerous occasions our court and other courts have held that the decision of an arbitrator cannot be interfered with for mere errors of judgment as to law or fact.⁵

However, courts will overturn an arbitrator’s award if there is a perverse misconstruction, or if there is positive misconduct plainly established, or if there is a manifest disregard of the law, or if the award itself is illegal or violates strong public policy. Scherrer Construction Co. v. Burlington Mem. Hospital, 64 Wis.2d 720, 729, 211 N.W.2d 855 (1974).⁶ I find none of these grounds here. Indeed a good argument is made that the causes of discharge listed in the city ordinance were intended to be subject to the “just cause” and arbitration provisions of the collective bargaining agreement. Discharges under the ordinance are not distinct and independent from the just cause section of the agreement as the majority contends. The general rule in interpreting collective bargaining agreements is that items not specifically excluded from arbitration in the agreement are deemed included. The United States Supreme Court has said that “[a]part from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed.2d 1409 (1960). Note that article 11 of the agreement refers to discharge for dishonesty and drunkenness and excepts these causes of discharge from the warning notice required under the collective bargaining agreement.⁷ Yet intoxication on the job, drinking intoxicating beverages while on the job, and stealing are grounds for discharge in sec. 2.05 (7) (b) of the ordinances — which also lists moving out of the city as a ground for discharge.⁸ Also, note that sec. 2.05(12) of the ordinances relating to discharging employees moving out of the city is not a mandatory, automatic provision; an element of discretion is built in. The Finance Committee is authorized to make exceptions.⁹ Here the arbitrator said non-residency would be “just cause” if the non-residency had a reasonable relation to the job performance. The relationship of the collective bargaining agreement and the prior ordinances is not a clear-cut issue. Both the ordinances and the agreement were adopted by the city council pursuant to authorization of state statute. One could find that a later, more specific council pronouncement supersedes a prior general rule. One could interpret both the ordinances and agreement to give meaning to both.

For these reasons, I would reverse the trial court’s judgment.

1 The record is unclear, but if both parties voluntarily submitted the dismissal grievance to arbitration and no objection was made to the arbitrator that he had no jurisdiction, participation in an arbitration hearing on the merits of a dispute results in waiver of the right to raise the issue of arbitrability after the arbitrator has made his decision. Manitowoc v. Manitowoc Police Dept., 70 Wis.2d 1006, 1020-1021, 236 N.W.2d 231 (1976); In re Lower Baraboo River Drainage District v. Schirmer, 199 Wis. 230, 225 N.W. 331 (1929); Annot. Participation in Arbitration Proceedings as Waiver of Objections to Arbitrability, 33 ALR3d 1242 (1970).

2 “[T]Ms 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.” Richards v. Board of Education, 58 Wis.2d 444, 460b, 206 N.W.2d 597 (1973).

3 Under sec. 111.70(3) (a) 5, Stats., it is declared a prohibited practice to “violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employes, 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.”

4 “DECLARATION OF POLICY. The public policy of the state as to labor disputes arising in municipal employment is to encourage voluntary settlement through the. procedures of collective bargaining. Accordingly, it is in the public interest that municipal employes so desiring be given an opportunity to bargain collectively with the municipal employer through a labor organization or other representative of the employes’ own choice. If such procedures fail, the parties should have available to them a fair, speedy, effective and, above all, peaceful procedure for settlement as provided in this subchapter.” Sec. 111.70(6), Stats.

5 See, e.g., Scherrer Construction Co. v. Burlington Mem. Hospital, 64 Wis.2d 720, 726-729, 221 N.W.2d 855 (1974); Dehnart v. Waukesha Brewing Co., 17 Wis.2d 44, 51, 115 N.W.2d 490 (1962) (“While this court may disagree with the interpretation of the contract reached by the arbitrator, we will not substitute our judgment for that of the arbitrator. The parties contracted for the arbitrator’s settlement of the grievance and that is what they received.”); Putterman v. Schmidt, 209 Wis. 442, 451, 245 N.W. 78 (1932) (“Mistakes of judgment, mistakes of either fact or law, are not ground for review of or setting aside an award.”) ; Standard Construction Co. v. Hoeschler, 245 Wis. 316, 320-321, 14 N.W.2d 12 (1944) (“‘[A] submission to arbitration . . . confers . . . jurisdiction to decide erroneously, if honestly, and to bind the parties to such determination by force of their agreement to be so bound.’ ” quoting Travelers Ins. Co. v. Pierce Engine Co., 141 Wis. 103, 108, 123 N.W. 643) ; Reith v. Wynhoff, 28 Wis.2d 336, 343, 137 N.W.2d 33 (1965) (“It was an ancient rule at common law that mere errors of judgment were not enough to upset an award whether upon questions of fact or of law if within the submission.”); Decker v. Ladish-Stoppenback Co., 203 Wis. 285, 291-292, 234 N.W. 355 (1931); Donaldson v. Buhlman, 134 Wis. 117, 119, 113 N.W. 638, 114 N.W. 431 (1908); McCord v. Flynn, 111 Wis. 78, 88, 86 N.W. 668 (1901). See also Mogge v. District 8, I.A.M., 454 F.2d 510, 513 (7th Cir. 1971); Papenfuss v. Abe W. Mathews Engineering Co., 397 P. Supp. 165, 166 (W.D. Wis. 1975); Associated Teachers of Huntington, Inc. v. Board of Educ., 351 N.Y.S.2d 670, 306 N.E.2d 791 (1973); Elkouri & Elkouri, How Arbitration Works, p. 322, n. 7 (3d ed. 1973).

6 See Associated Teachers of Huntington v. Board of Educ., 351 N.Y.S.2d 670, 306 N.E.2d 791 (1973); Garrity v. Lyle Stuart, Inc., 386 N.Y.S.2d 831, 353 N.E.2d 793 (1976); Note, Judicial Review of Arbitration: The Role of Public Policy, 58 Nw. U.L. Rev. 545 (1964).

7 Article 11 of the Collective Bargaining Agreement provides as follows:

“ARTICLE 11 — DISCHARGE OR SUSPENSION

“The Employer shall not discharge or suspend any employee without just cause and shall give at least one warning notice of the complaint against such employee to the employee in writing and a copy of same to the Union except that no warning notice need be given to an employee before his discharge if the cause of such discharge is dishonesty, drunkenness or drinking while on duty, recklessness, endangering others while on duty, or the carrying of unauthorized passengers in city-owned vehicles while on duty. The warning notice as herein provided shall not remain in effect for more than one-hundred and eighty (180) days from date of issuance.

“Discharge or suspension of an employee must be by proper written notice, registered mail, return receipt, sent to the last known address of the employee with a copy to the Union. Any employee may request an investigation as to his discharge. Should such investigation prove that an injustice has been done, the employee shall be reinstated and compensated at his usual rate of pay while he has been out of work.

“Appeal from discharge must be taken within five (5) days by written notice to the Superintendent of the Department and a meeting held between the Employer and the Union within fifteen (15) days after the appeal is filed. A decision must be reached within five (5) days from the date of this meeting.

“The employee may be reinstated under other conditions agreed upon by the Employer and the Union or pursuant to the terms of an arbitration award. Failure to agree shall be cause for the matter to be submitted to arbitration as provided in Article 15 of this Agreement.”

8 The city ordinance provides as follows:

“2.05(7) (b) Discharges. An employee shall be subject to immediate discharge from employment with the City if he:

“1. Becomes intoxicated on the job, or comes to the job intoxicated.

“2. Drinks intoxicating beverages or frequents taverns while on the job.

“3. Refuses to obey any reasonable order of his supervisor.

“4. Is the aggressor in a fight wherever blows are attempted.

“5. Is caught stealing.

“6. Is arbitrarily and without cause, rude, insolent or profane in dealing with the public.

“7. After warning for previous offenses, is careless and damages property.

“8. Moves outside the City.”

9 The city ordinance provides as follows:

“2.05(12) RESIDENCE OF EMPLOYEES. As a resident of Neenah will normally have more interest in his job and City than will a non-resident, it is expected that all employees of the City of Neenah live in the City. Any exceptions to the following controls require the authorization of the Finance Committee. The following controls shall be practiced:

“(a) The City Clerk-Comptroller shall be kept informed of the address of all City employees. Changes in address should be reported promptly.

“(b) Employees living outside of the City of Neenah at the time of hire who do not reside in the City limits one year from their date of hire shall be removed from the payroll.

“(c) Employees moving out of the City limits shall be removed from the payroll.”