City of Janesville v. Wisconsin Employment Relations Com'n

• Decision Date: 13 April 1995
• Docket Number: No. 94-1606,94-1606
• Citation: 193 Wis.2d 492,535 N.W.2d 34
• Parties: CITY OF JANESVILLE, Petitioner-Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Appellant, d Janesville Professional Police Association, Intervenor-Co-Appellant.d>
• Court: Wisconsin Court of Appeals

Page 34

535 N.W.2d 34

193 Wis.2d 492

CITY OF JANESVILLE, Petitioner-Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION,

Respondent-Appellant, ^d

Janesville Professional Police Association,

Intervenor-Co-Appellant.d>

No. 94-1606.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 3, 1995.

Opinion Released April 13, 1995.

Opinion Filed April 13, 1995.

For the respondent-appellant the cause was submitted on the brief of James E. Doyle, Atty. Gen., and David C. Rice, Asst. Atty. Gen.

For the intervenor-co-appellant the cause was submitted on the brief of Gordon E. McQuillen and Richard Thal of Cullen, Weston, Pines & Bach, Madison.

For the petitioner-respondent the cause was submitted on the brief of Dennis M. White of Brennan, Steil, Basting & MacDougall, S.C., Madison.

Amicus Curiae brief was filed by James R. Korom and Brent P. Benrud of von Briesen & Purtell, S.C., Milwaukee, for Wisconsin Chiefs of Police Ass'n.

Amicus Curiae brief was filed by Howard N. Myers and Jeffrey P. Sweetland of Shneidman, Myers, Dowling & Blumenfield, Milwaukee, for Professional Fire Fighters of Wisconsin, Inc.

Before GARTZKE, P.J., and DYKMAN and VERGERONT, JJ.

VERGERONT, Judge.

The Wisconsin Employment Relations Commission (WERC) and the Janesville Professional Police Association (Association) appeal from an order reversing a decision of WERC. In its decision, WERC declared that a proposal by the Association, which would allow police officers in the City of Janesville Police Department to obtain arbitration of suspensions imposed by the City of Janesville Police Chief (police chief) and the City of Janesville Police and Fire Commission (PFC), is a mandatory subject of bargaining under § 111.70(1)(a), Stats. We conclude that the Association's proposal is not a mandatory subject of bargaining and affirm the order of the trial court.

BACKGROUND

The relevant facts are undisputed. The Association is a labor organization that represents certain law enforcement employees of the City of Janesville. The City and the Association were parties to a 1991 collective bargaining agreement. The agreement contains a three-step grievance and arbitration procedure under which an employee may process a grievance. ¹ First, the grievance is submitted to the chief of police and the chief must respond in writing. Second, if the grievance is not resolved at step one, the grievance is submitted to the city manager for a written response. Third, if the grievance is not resolved at step two, the grievant can request binding arbitration.

The agreement also provides that the first step of the grievance and arbitration procedure can be invoked without prejudicing any right to request a hearing by the PFC. After step one, the grievant can either pursue a hearing before the PFC or can pursue arbitration, but not both. ² Finally, the agreement provides that the grievance and arbitration provision "shall not be construed as limiting or abrogating any rights or remedies provided by Wisconsin Statutes."

On January 24, 1992, the Association filed a complaint with WERC alleging that the City had committed a prohibited practice by refusing to arbitrate the unpaid suspension of a police officer by the police chief. On On May 7, 1993, WERC issued its decision, concluding that the Association's proposal was a mandatory subject of bargaining. WERC stated:

August 11, 1992, the City filed a petition with WERC for a declaratory ruling, pursuant to § 111.70(4)(b), STATS., on the following issues: (1) Whether a provision that would allow an officer disciplined by the PFC to obtain binding arbitration of his or her discipline rather than seek judicial review of the PFC's decision under § 62.13(5)(i), STATS., is a mandatory subject of bargaining; and (2) Whether a provision that would allow an officer disciplined by the police chief to seek binding arbitration rather than a hearing before the PFC is a mandatory subject of bargaining.

The 1991 collective bargaining agreement noted above, when interpreted in a manner necessary to avoid an otherwise irreconcilable conflict with Sec. 62.13, Stats., makes the grievance and arbitration procedure therein applicable to disciplinary actions imposed by the Janesville Board of Police and Fire Commissions only if such disciplinary actions have not been appealed to the Circuit Court pursuant to Sec. 62.13, Stats., and then only to the extent that such grievances are subject to processing at no other step than the grievance arbitration step of those procedures.

The 1991 collective bargaining agreement noted above, when interpreted in a manner necessary to avoid an otherwise irreconcilable conflict with Sec. 62.13, Stats., makes the grievance and arbitration procedure therein applicable to disciplinary actions imposed by the Chief of Police where the Janesville Board of Police and Fire Commissioner's jurisdiction over such discipline has not been invoked.

The City filed a petition for judicial review of WERC's decision in Rock County Circuit Court under ch. 227, STATS. On May 6, 1994, the trial court entered an order reversing the decision of WERC.

STANDARD OF REVIEW

We review the decision of WERC, not the decision of the trial court. Crawford County v. WERC, 177 Wis.2d 66, 69, 501 N.W.2d 836, 838 (Ct.App.1993). In County of La Crosse v. WERC, 180 Wis.2d 100, 508 N.W.2d 9 (1993), our supreme court explained the appropriate standard of review as follows:

[N]ormally, WERC's rulings with respect to the bargaining nature of proposals are entitled to "great weight." That deference is predicated on the commission's perceived expertise in collective bargaining matters. Yet, courts of this state have held that such deference is unwarranted when the proposal in question requires harmonization of the Municipal Employment Relations Act (MERA) (secs. 111.70-111.77, Stats.) with other state statutes. See, City of Brookfield v. WERC, 87 Wis.2d 819, 826-27, 275 N.W.2d 723 (1979) ("Brookfield I"); Glendale Professional Policemen's Assn. v. City of Glendale, 83 Wis.2d 90, 100-01, 264 N.W.2d 594 (1978). Such legal questions fall within the special competence of courts. Glendale, 83 Wis.2d at 100-01, 264 N.W.2d 594.

Id. at 107, 508 N.W.2d at 11 (citations omitted). See also Iowa County v. Iowa County Courthouse, 166 Wis.2d 614, 618, 480 N.W.2d 499, 501 (1992); Crawford County, 177 Wis.2d at 70, 501 N.W.2d at 838-39. We therefore review WERC's decision de novo, without according it any deference.

DISCUSSION

The Municipal Employment Relations Act (MERA) establishes the duties of a municipal employer to bargain collectively with its employees and to abide by any collective bargaining agreement agreed upon. Drivers, etc., Local No. 695 v. WERC, 121 Wis.2d 291, 296, 359 N.W.2d 174, 177 (Ct.App.1984). It sets out three categories of subjects of collective bargaining. A mandatory subject of bargaining is one primarily related to wages, hours and conditions of employment. Beloit Educ. Ass'n v. WERC, 73 Wis.2d 43, 50-51, 242 N.W.2d 231, 234 (1976). A permissive subject of bargaining is one primarily related to the management and direction of the governmental unit. Id. A municipal employer may, but need not, bargain over this subject. Id. A prohibited subject of bargaining is one that would violate a law. WERC v. Teamsters Local No. 563, 75 Wis.2d 602, 612, 250 N.W.2d 696, 701 (1977), overruled on other grounds, City of Madison v. Madison Professional Police Officers Ass'n, 144 Wis.2d 576, 425 N.W.2d 8 (1988).

The City concedes that the Association's proposal regarding arbitration of disciplinary actions is primarily related to wages, hours and conditions of employment and, therefore, would normally be a mandatory subject of bargaining. However, the City contends that there is an irreconcilable conflict between the proposal and a specific statutory provision, § 62.13(5), STATS., ³ that makes the Association's proposal a prohibited subject of bargaining.

The general rule is that collective bargaining agreements arrived at under § 111.70, STATS., and statutes relating to such agreements should be harmonized whenever possible. Iowa County, 166 Wis.2d at 619, 480 N.W.2d at 501; Glendale Professional Policemen's Ass'n v. City of Glendale, 83 Wis.2d 90, 103-04, 264 N.W.2d 594, 601 (1978). However, if there is an irreconcilable conflict between a proposal made under § 111.70, STATS., and a specific statutory provision, the proposal is a prohibited subject of bargaining. A contract provision that runs counter to an expressstatutory command is void and unenforceable. See, e.g., Drivers, etc., Local No. 695, 121 Wis.2d at 297-98, 359 N.W.2d at 177-78.

Section 62.13, STATS., regulates municipal police and fire departments and is "an enactment of state-wide concern for the purpose of providing a uniform regulation of police and fire departments." Section 62.13(12). Section 62.13(1) requires cities with populations of 4,000 or more to create a PFC with jurisdiction over the hiring, promotion and discipline of members of police and fire departments.

Section 62.13(5), STATS., governs discipline of subordinates within police and fire departments. Under § 62.13(5)(c), a subordinate to the chief of police may be suspended by the chief or the PFC for cause as a penalty. The police chief must file a report of the suspension and the subordinate is entitled to a hearing before the PFC if he or she so chooses. Id. If the subordinate requests a hearing before the PFC, the chief must file charges with the PFC upon which the suspension was based. Id.

Under § 62.13(5)(b), STATS., charges may be filed against a subordinate by the chief, a member of the PFC, the PFC as a body, or by any aggrieved person. After the filing of charges, the PFC must hold a public hearing on the charges to determine whether the charges should be sustained. Section 62.13(5)(d). After the hearing, if the charges are sustained, the PFC has authority to suspend, reduce in rank,...