City of Madison v. WERC

261 Wis.2d 423

2003 WI 52

662 N.W.2d 318

CITY OF MADISON, a municipal corporation of Dane County, Wisconsin, Petitioner-Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, and IAFF Local 311, Respondents-Respondents.

No. 99-0500.

Supreme Court of Wisconsin.

Oral argument September 17, 2002.

Decided May 30, 2003.

For the petitioner-appellant there were briefs and oral argument by Larry W. O'Brien, acting city attorney.

For the respondent-respondent, Wisconsin Employment Relations Commission, there was a brief (in the court of appeals) by David C. Rice, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

For the respondent-respondent, IAFF Local 311, there were briefs by John C. Tallis, Bruce F. Ehlke, and Shneidman, Hawks & Ehlke, S.C., Madison, and oral argument by Bruce F. Ehlke.

Amicus curiae briefs were filed by Scott Herrick and Herrick, Kasdorf, Dymzarov & Twietmeyer, Madison, on behalf of the Board of Police and Fire Commissioners of the City of Madison.

An amicus curiae brief was filed (in the court of appeals) by Curtis Witynski, Madison, on behalf of the League of Wisconsin Municipalities.

¶ 1. DIANE S. SYKES, J.

The issue in this case is whether a fire chief's decision to return a firefighter promoted on a probationary basis to his previous rank for failure to successfully complete probation may be subjected to arbitration. We hold that it may not.

¶ 2. Given the statutory authority vested in the chief of the fire department under Wis. Stat. § 62.13 (1999-2000),¹ as specifically recognized in the parties' collective bargaining agreement, an arbitrator may not substitute his judgment for the chief's determination that a firefighter under his command has not successfully completed probation and is therefore not qualified to advance from probationary promotion status to the permanent rank.²

I. FACTS AND PROCEDURAL HISTORY

¶ 3. On December 6, 1994, the chief of the City of Madison Fire Department promoted firefighter Chris Gentilli to the position of fire apparatus engineer, subject to the approval of the Madison Police and Fire Commission ("PFC") and subject to a one-year probationary period. The PFC approved the promotion, effective January 1, 1995, subject to Rule 5.04 of the PFC Rules and Regulations, which states:

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.

Madison Police and Fire Commission Rule 5.04.

¶ 4. Eleven months into the probationary promotion, on November 29, 1995, the fire chief informed Gentilli that his probationary appointment as an apparatus engineer was revoked. On December 22, 1995, Gentilli, through his union, filed a grievance seeking reinstatement to the rank of fire apparatus engineer and back pay and benefits associated with that higher rank.

¶ 5. The City of Madison ("City") declined to arbitrate the grievance, asserting that the Wisconsin Statutes and the collective bargaining agreement prohibited arbitration of this management decision. Specifically, the City pointed to section 9.Q.2 of the collective bargaining agreement, which states that "[a]rbitration shall not apply where section 62.13 of the Wisconsin Statutes is applicable and where Management has reserved rights relating to arbitration. . . ."³

¶ 6. The union filed a prohibited practices complaint with the Wisconsin Employment Relations Commission ("WERC"). WERC held that the City was obligated to arbitrate the grievance and that its refusal to do so violated Wis. Stat. § 111.70(3)(a)5.⁴ WERC ordered the City to arbitrate the grievance.

¶ 7. The City sought review in Dane County Circuit Court. The Honorable C. William Foust affirmed WERC's order. On review, the court of appeals certified the case to this court pursuant to Wis. Stat. § 809.61, on two issues: 1) whether a firefighter who is promoted on a probationary basis but is returned to his or her former rank for failing to successfully complete probation for a non-disciplinary reason is entitled to the just cause protections of Wis. Stat. § 62.13(5)(em); and 2) whether the fire chief's decision not to recommend successful completion of a probationary period for a promotion of a tenured firefighter to a higher position is subject to arbitration. We accepted the certification.

¶ 8. The court of appeals subsequently certified Kraus v. City of Waukesha Police and Fire Commission, No. 01-1106, which raised the threshold question of a chief's authority to promote on a probationary basis, as well as the issue of the availability of the "just cause" hearing procedures of Wis. Stat. § 62.13(5)(em) in cases of non-disciplinary reduction in rank for failure to successfully complete probation associated with promotion. We concluded in Kraus, released with this opinion today, that a police or fire chief may promote on a probationary basis, and that the "just cause" provisions of Wis. Stat. § 62.13(5)(em) are not available when an officer promoted on a probationary basis is returned to his or her prior rank for failing to successfully complete probation. Kraus, 2003 WI 51, ¶ 3, 261 Wis. 2d 485, 662 N.W.2d 294. Thus, the sole remaining issue in this case is the arbitrability of a dispute over this particular type of management decision by a fire or police chief.

II. STANDARD OF REVIEW

[1]

¶ 9. This case involves consideration of the powers vested in police and fire chiefs and police and fire commissions by Wis. Stat. § 62.13, in light of the Municipal Employment Relations Act, Wis. Stat. §§ 111.70-77 ("MERA"), and the applicable collective bargaining agreement. We have previously held that de novo review is appropriate when the court must interpret a collective bargaining agreement in light of Wis. Stat. §§ 62.13 and 111.70:

In the typical case, the application of 111.70-77 to a particular labor dispute requires the expertise of the Commission [WERC], the agency primarily charged with administering it. Here the question does not concern the application of a labor statute but the Commission's power to enforce it in the first instance in the light of another state statute [Wis. Stat. 62.13]. This issue, the relationship between two state statutes, is within the special competence of the courts rather than the Commission.

Glendale Prof'l Policemen's Ass'n v. Glendale, 83 Wis. 2d 90, 100-01, 264 N.W.2d 594 (1978). See also City of Brookfield v. WERC, 87 Wis. 2d 819, 827, 275 N.W.2d 723 (1979) ("We are persuaded by the Glendale reasoning that the WERC should not be accorded the authority to interpret the appropriate statutory construction to ch. 62.").

¶ 10. Thus, we "undertake an independent judicial inquiry into the proper construction of [§ 111.70] and its impact on the exercise of municipal powers enumerated in ch. 62." Brookfield, 87 Wis. 2d at 826; see also County of La Crosse v. WERC, 180 Wis. 2d 100, 107, 508 N.W.2d 9 (1993) (holding that de novo review is proper when considering the relationship between Wis. Stat. § 111.70 and another state statute).

[2]

¶ 11. Where a party has "challenged the arbitrability of [a] question and reserved the right to challenge in court an adverse ruling on arbitrability, the court [will] decide the issue of arbitrability de novo." City of Milwaukee v. Milwaukee Police Ass'n ("Milwaukee II"), 97 Wis. 2d 15, 21, 292 N.W.2d 841 (1980) (quoting Joint Sch. Dist. No. 10 v. Jefferson Educ. Ass'n, 78 Wis. 2d 94, 106, 253 N.W.2d 536 (1977)). See also Milwaukee Police Ass'n v. City of Milwaukee ("Milwaukee I"), 92 Wis. 2d 145, 150, 285 N.W.2d 119 (1979) (the question of an arbitrator's jurisdiction is for the court); Milwaukee Police Ass'n v. City of Milwaukee ("Milwaukee III"), 113 Wis. 2d 192, 198, 335 N.W.2d 417 (Ct. App. 1983),rev. denied, 114 Wis. 2d 602, 340 N.W.2d 201, (arbitrability is a question of law for the courts).

[3]

¶ 12. Because this case requires us to interpret the arbitration language in the parties' collective bargaining agreement in light of the provisions of Wis. Stat. § 62.13, we review WERC's conclusion de novo.⁵

III. THE APPLICABLE STATUTES AND RULES

¶ 13. Section 62.13 of the Wisconsin Statutes establishes a comprehensive system for the appointment of municipal firefighters and police officers. See Wis. Stat. § 62.13. It requires cities with populations of 4,000 or more to maintain a police and fire commission with jurisdiction over the hiring, promotion, and discipline of members of police and fire departments. This statutory grant of authority is shared by the chief and the board of commissioners in the manner directed by the legislature. It is a legislatively designed system of accountability in the appointment of sworn officers, and it subjects the appointing authorities to mutual report, recommendation, and approval responsibilities. The statute provides:

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.

Wis. Stat. § 62.13(4)(a).

For the choosing of such list the board shall adopt, and may repeal or modify, rules calculated to secure the best service in the departments. These rules shall provide for examination of physical and educational qualifications and experience, and may provide such competitive examinations as the board shall determine, and for the classification of positions with special examination for each class. The board shall print and distribute the rules and all changes in them, at city expense.

Wis. Stat. § 62.13(4)(c).

¶ 14. The provisions of ...