City of Menasha v. Wisconsin Employment Relations Commission
City of Menasha v. Wisconsin Employment Relations Commission
Opinion of the Court
¶ 1. The City of Menasha appeals from a circuit court order upholding a determination of the Wisconsin Employment Relations Commission (WERC). At issue on appeal is whether the circuit court erred in affirming WERC's determination that Wis. Stat. § 111.70(4)(c)2.b. and (4)(mc)l. (2009-10)
Relevant Law
¶ 2. The Municipal Employment Relations Act (MERA), Wis. Stat. §§ 111.70-111.77, governs the collective bargaining
¶ 3. Previously, this court held that there was an irreconcilable conflict between MERA and Wis. Stat. § 62.13(5), and that because § 62.13(5) provided the exclusive method for law enforcement officers to challenge discipline, the union's proposal for arbitration of grievances related to discipline was a prohibited subject of bargaining. See City of Janesville, 193 Wis. 2d at 500, 511. In 2007, the legislature enacted Wis. Stat. § 111.70(4)(c)2.b., overturning the holding in City of Janesville.
(4) Powers of the [Employment Relations] commission. The commission shall be governed by the following provisions relating to bargaining in municipal employment in addition to other powers and duties provided in this subchapter:
(c) Methods for peaceful settlement of disputes; law enforcement and fire fighting personnel....
*256 2. 'Arbitration.' ....
b. A collective bargaining agreement may, notwithstanding [§] 62.13(5), contain dispute resolution procedures, including arbitration, that address the suspension, reduction in rank, suspension and reduction in rank, or removal of such personnel. If the procedures include arbitration, the arbitration hearing shall be public and the decision of the arbitrator shall be issued within 180 days of the conclusion of the hearing.
Thus, while a police and fire commission's procedure for disciplinary actions against subordinate police officers and fire fighters under § 62.13(5) remained a viable contract option, the parties' agreement could contain alternative dispute resolution procedures.
¶ 4. However, also created in 2007 was Wis. Stat. § 111.70(4)(mc), which provides in relevant part:
(me) Prohibited subjects of bargaining. The municipal employer is prohibited from bargaining collectively with respect to:
1. The prohibition of access to arbitration as an alternative to the procedures in s. 62.13(5).
It is the interplay of §§ 111.70(4) (c)2.b. and 111.70(4)(mc)l. that is at issue on appeal.
Background
¶ 5. The City of Menasha is a municipal employer. It was engaged in bargaining with the Menasha Professional Police Union over a successor agreement to a 2007-08 collective bargaining agreement. The City proposed to maintain language from the 2007-08 agreement which required that the appeal procedures under Wis. Stat. § 62.13 be utilized by a union-represented
¶ 6. On May 11, 2009, the Menasha Professional Police Union filed a petition with WERC seeking a declaratory ruling under Wis. Stat. § 111.70(4)(b)
¶ 7. WERC issued a declaratory ruling that "[t]he Union does not have a duty to bargain within the meaning of [Wis. Stat. §] 111.70(l)(a) and (3)(a)4. with the City over the proposal" requiring that the appeal
¶ 8. In December 2009, the City petitioned the circuit court for review of WERC's decision under Wis. Stat. §§ 227.52-227.57. The City challenged WERC's interpretation and application of Wis. Stat. § 111.70(4)(c)2.b. and (4)(mc)l. The City asked the circuit court to reverse WERC's decision and affirmatively find that (1) the application of the statutes "do not require a municipal employer to propose language contrary to the status quo of an existing collective bargaining agreement setting forth the parties' historical intent and decision to utilize [Wis. Stat. §] 62.13 as the appeals procedure for discipline imposed under that statute" and (2) that the Menasha Professional Police Union "does have a duty to bargain ... in regard to the status quo language of the parties' existing collective bargaining agreement."
¶ 9. Following a hearing on June 1, 2010, the circuit court entered a written order affirming WERC's decision. The circuit court reasoned that (1) Wis. Stat. § 111.70(4)(c)2.b. provides that a collective bargaining agreement may contain dispute resolution procedures including arbitration, (2) Wis. Stat. § 62.13(5) provides an alternative means of discipline for police officers and fire fighters, and (3) the provision in § 111.70(4)(mc) prevents municipal employers from being able to "trump" the opportunity for arbitration — it prohibits the
Discussion
Standard of Review
¶ 10. On appeal, we review WERC's decision, not the decision of the circuit court. Racine Educ. Ass'n v. WERC, 214 Wis. 2d 353, 356, 571 N.W.2d 887 (Ct. App. 1997). The issue on appeal involves the interpretation and application of Wis. Stat. § 111.70(4)(c)2.b. and (4)(mc)l. to undisputed facts. Because the issue before WERC was clearly one of first impression, we pay no deference to its statutory interpretation and consider the issue de novo.
Our goal in interpreting a statute is to discern and give effect to the intent of the legislature. Statutory interpretation begins with the language of the statute. Each word should be looked at so as not to render any portion of the statute superfluous. But "courts must not look at a single, isolated sentence or portion of a sentence" instead of the relevant language of the entire statute. Furthermore, a statutory provision must be read in the context of the whole statute to avoid an unreasonable or absurd interpretation. Statutes relating to the same subject matter should be read together*261 and harmonized when possible. A cardinal rule in interpreting statutes is to favor an interpretation that will fulfill the purpose of a statute over an interpretation that defeats the manifest objective of an act. Thus a court must ascertain the legislative intent from the language of the statute in relation to its context, history, scope, and objective intended to be accomplished, including the consequences of alternative interpretations.
Hubbard, v. Messer, 2003 WI 145, ¶ 9, 267 Wis. 2d 92, 673 N.W.2d 676 (footnotes omitted).
Wisconsin Stat. § 111.70(4)(c)2.b. and (4)(mc)l., Read Together, Permit the Negotiation of Alternative Dispute Resolution Procedures, but Require Arbitration as an Alternative if Wis. Stat. § 62.13(5) is a Designated Procedure.
¶ 11. The City correctly asserts that Wis. Stat. § 111.70(4)(c)2.b. and (4)(mc)l. must be read in pari materia as the statutes were adopted at the same time as part of a single statutory scheme.
¶ 12. All parties agree that Wis. Stat. § 111.70(4)(c)2.b. was intended to overturn our holding in City of Janesville that a union proposal providing the right to arbitrate a suspension rather than seek a hearing before the police and fire commission "is not a mandatory subject of bargaining [under § 111.70(l)(a)] because it is in irreconcilable conflict with [Wis. Stat.] § 62.13(5)." City of Janesville, 193 Wis. 2d at 511. Arbitration of disciplinary disputes is no longer a prohibited subject. Thus, the City's proposed interpretation of § 111.70(4)(c)2.b. appears reasonable: (1) parties are permitted to use either the procedures in § 62.13(5) or to bargain for alternative procedures and (2) arbitration is just one of the alternative procedures to which the parties to a labor agreement can agree; they are not required to choose arbitration as an alternative to the § 62.13(5) procedures. However, the reasonableness of the City's proposed interpretation diminishes when one reads § 111.70(4)(c)2.b. in conjunction with § 111.70(4)(mc)l. and it is here that the parties' interpretation of these two provisions part ways.
¶ 13. Wisconsin Stat. § 111.70(4)(mc) is entitled "[prohibited subjects of bargaining." It provides that "[t]he municipal employer is prohibited from bargaining collectively with respect to ... 1. The prohibition of access to arbitration as an alternative to the procedures in [Wis. Stat. §] 62.13(5)." Sec. 111.70(4)(mc)l. The City contends that § 111.70(4)(mc)l. simply prohibits an employer from refusing "to bargain the use of grievance arbitration in lieu of § 62.13." The City's interpretation fails to give full force and effect to the language of § 111.70(4)(mc)l., which addresses the access to arbi
¶ 14. The City additionally contends that requiring agreement on a subject of bargaining is "completely foreign to the concept of collective bargaining in Wisconsin." The City's argument is undermined by the other "prohibited subjects of bargaining" under Wis. Stat. § 111.70(4)(mc)2.-4., which require that certain prohibited subjects are effectively agreed upon as between the parties, including the standards for discipline under Wis. Stat. § 62.13(5)(em) and the payment of compensation under § 62.13(5)(h). As WERC succinctly stated, "[Wjhere, as here, the municipal employer proposes that [§] 62.13(5) be the exclusive mechanism by which discipline is challenged, it is thereby necessarily also proposing to prohibit access to grievance arbitration contrary to [§] 111.70(4)(mc)." The legislature expressly made this a prohibited subject of bargaining.
¶ 17. The City additionally cites to a Legislative Fiscal Bureau Summary of Budget Provisions of the Committee of Conference dated October 2007. This summary addresses the changes to collective bargaining law, which included the adoption of Wis. Stat. § 111.70(4)(mc)l., stating:
*266 The amendment would permit collective bargaining agreements for fire fighters to establish different dispute resolution procedures, including arbitration, than those provided under current law (PFC or other tribunal review and an option to appeal to the Circuit Court). Further, a municipal employer would be prohibited from bargaining collectively with respect to any prohibition of access to arbitration as an alternative to the disciplinary procedures under current law. As a result, each fire fighter collective bargaining agreement would be allowed to specify dispute resolution procedures applicable to the employees covered by each agreement.
The City argues, and we agree, that this "makes clear that a bargaining agreement is allowed to specify a specific dispute resolution procedure." However, we do not agree with the City that this language "explicitly rejects any statutory interpretation requiring arbitration in lieu of the Wis. Stat. § 62.13 procedures."
¶ 18. Finally, we recognize Wisconsin's long history with police and fire commissions. City of Madison v. DWD, 2003 WI 76, ¶ 13, 262 Wis. 2d 652, 664 N.W.2d 584 (police and fire commissions were created and endowed with statutory responsibilities and prerogatives over 100 years ago in 1897). We also acknowledge the City's concern regarding the impact of Wis. Stat. § 111.70(4)(mc)l. on bargaining and local control, including the possibility that it could reduce the role of the police and fire commissions in this state or, at the very least, create a procedure involving two potential decision makers.
Conclusion
¶ 19. We conclude that Wis. Stat. § 111.70(4)(c)2.b. and (4)(mc)l., read together, permit the negotiation of alternative dispute resolution procedures, but require arbitration as an alternative if Wis. Stat. § 62.13(5) is a designated procedure. We therefore uphold WERC's determination in favor of the Menasha Professional Police Union. We affirm the circuit court's order.
By the Court. — Order affirmed.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
"Collective bargaining" is defined in part by Wis. Stat. § 111.70(l)(a) as follows:
[T]he performance of the mutual obligation of a municipal employer, through its officers and agents, and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement.... The duty to bargain, however, does not compel either party to agree to a proposal or require the making of a concession. Collective bargaining includes the reduction of any agreement reached to a written and signed document.
Wisconsin Stat. § 111.70(4)(c)2.b. and (4)(mc) were passed as part of the budget bill, 2007 Wis. Act 20. These provisions were offered in June 2007 as part of an amendment to 2007 SB 40. Although the assembly removed the provisions from 2007 SB 40, the provisions were added back into the bill by the Committee of Conference on 2007 Senate Bill 40, and eventually passed into law in October 2007.
In addressing these provisions, the Legislative Fiscal Bureau noted: "Under the SB 40 provision, the subordinate would be provided with one of two appeal options from a PFC order: (a) the Circuit Court (as provided under current law); or (b) an alternative procedure negotiated under a collectively bargained alternative (as would be provided under SB 40)." See Legislative Fiscal Bureau, Budget Change Items under the Senate and Assembly, dated July 24, 2007, at 14.
The proposed 2009 contract contained language from the 2007-08 collective bargaining agreement, which provided in relevant part:
ARTICLE III - MANAGEMENT RIGHTS
The City possesses the sole right to operate the Menasha Police Department and all management rights repose in it, subject only to the provisions of this agreement and applicable law. These rights, which are normally exercised by the Chief of Police, include but are not limited to ... the discipline of employees pursuant to [Wis. Stat. §] 62.13 ....
ARTICLE VII - GRIEVANCE PROCEDURE
D. Steps in Procedure
Step 3
If the grievance is not settled in the second step, any grievance which is not covered by [Wis. Stat. § 62.13] (i.e., discipline or discharge grievances) and does not involve the authority of the Chief of the Police Department but rather relates only to the interpretation of this contract, shall be submitted to the Personnel Director....
ARTICLE VIII - ARBITRATION
G. Right to Counsel and Review
An employee who was notified of pending disciplinary action shall be advised of his/her right of counsel, availability of assistance from the Union and right to review of the disciplinary action by the Menasha Fire and Police Commission under the provisions of [Wis. Stat. § 62.13]. All disciplinary action and all appeals from such action by the affected employees shall be taken pursuant to the provisions of [§ 62.13],
We note that neither the 2009 proposed agreement nor the 2007-08 agreement are in the appellate record. However, portions of the proposal/agreement are cited in the parties' briefs and a complete copy of the 2007-08 agreement is included in the City's appendix.
Wisconsin Stat. § 111.70(4)(b) provides in relevant part: "Whenever a dispute arises between a municipal employer and a union of its employees concerning the duty to bargain on any subject, the dispute shall be resolved by the [c]ommission on petition for a declaratory ruling."
Indeed, the Commission's attorney represented to the circuit court that the Commission's decision was "wrong in two respects" and proposed that the circuit court "decide it either the way the Union or the way the City proposed it and not the highbred [sic] approach that the Commission adopted."
Both Wis. Stat. § 111.70(4)(c)2.b. and (4)(mc) were created by 2007 Wis. Act 20, §§ 2666f and 2679i, respectively.
In WERC's initial determination, it construed Wis. Stat. § 111.70(4)(mc) as prohibiting only the municipality from bargaining as to prohibited subjects. However, WERC abandoned that approach both before the circuit court and on appeal. WERC asserts on appeal that "if an employer is prohibited from bargaining collectively with respect to [a] proposal, it indeed is a 'prohibited' subject of bargaining.. . regardless of whether it is proposed by a municipal employer or by a union representing municipal employees." We agree that it would be unreasonable to read § 111.70(4)(mc) as permitting only the union to propose a prohibited subject of bargaining, especially in light of the
The Union summarized this proposed interpretation of Wis. Stat. § 111.70(4)(c)2.b. and 111.70(4)(mc) as follows:
Under [§ ] 111.70(4)(c)2.b. and 111.70(4)(mc)l. ... an employer may propose and the parties may bargain regarding mediation, a mini-trial or any other dispute resolution procedure, including arbitration, as an alternative to the procedure set forth at [Wis. Stat. § 62.13(5)] .... However, the one thing that a municipal employer may not propose, and that parties cannot bargain about, the one thing that is a prohibited subject of collective bargaining, is any proposal that, by its terms, would require an employee who seeks to challenge a disciplinary action to follow the procedure set forth at [§ 62.13(5),] at the same time that it prohibits access to arbitration as an alternative ....
"The Wisconsin Legislative Fiscal Bureau is a nonpartisan service agency of the Wisconsin Legislature. The Bureau provides fiscal and program information and analyses to the Wisconsin Legislature, its committees, and individual legislators." See Wisconsin State Legislature, Legislative Fiscal Bureau, http://legis.wisconsin.gov/lfb/ (last visited May 3, 2011).
The City also cites to a legislative council staff memorandum entitled Disciplinary Procedures for Law Enforcement Officers and Fire Fighters Under 2007 Wisconsin Act 20, dated January 3,2008, after the passage of Wis. Stat. § 111.70(4)(e)2.b. and (4)(me). The memo cited by the City is not part of the public record nor is it included in the appellate record; however, it is in the City's appendix, was referenced by WERC in its decision and no issue is raised as to its authenticity. While both parties identify portions of the memo which they assert support their position, even the author of the legislative council memo cautioned against reliance on her analysis, stating:
The new statutory language ... is general in nature, without substantial detail. The legislative history of the provisions does not provide much assistance in discerning the intent underlying the language or in predicting how the language will be interpreted by the courts .... Consequently, many of the questions raised may not be definitively answered until the Act's language is clarified by legislation or interpreted by the courts.
These arguments echo in part those of the amici curiae, The Wisconsin Chiefs of Police Association and the Wisconsin Fire Chiefs Association. While we acknowledge these broader concerns regarding the status of Wis. Stat. § 62.13(5) disciplin
Concurring Opinion
¶ 20. (concurring). I concur but for slightly different reasons. I believe Wis. Stat. § 111.70(4)(c)2.b. & (4)(mc) are not ambiguous when read together. I read the statutes as a clear legislative determination that bargaining — as it relates to arbitration dispute resolution procedures for police and fire members — is not collective, it is dictatorial. The union may, under § 111.70(4)(c)2.b., include arbitration within a collective bargaining agreement. The union may likewise choose not to include arbitration as a dispute resolution procedure within the collective bargaining agreement. The City, per § 111.70(4)(mc), must
¶ 21. I also differ with the majority in the premise that the arbitration procedure exists as an alternative even if the collective bargaining agreement sets forth only Wis. Stat. § 62.13(5) as the dispute resolution procedure. If the union does not include arbitration within the collective bargaining agreement, then they have waived the right to require arbitration within the terms of that agreement.
Reference
- Full Case Name
- City of Menasha v. Wisconsin Employment Relations Commission and Menasha Professional Police Union Local 603, Respondents-Respondents
- Cited By
- 6 cases
- Status
- Published