City of Oshkosh v. Oshkosh Public Library Clerical and Maintenance Emp.: Union Local 796-A, Wccme, AFSCME AFL-CIO

• Decision Date: 25 November 1980
• Docket Number: AFL-CI,D,No. 79-241,79-241
• Citation: 299 N.W.2d 210,99 Wis.2d 95
• Parties: CITY OF OSHKOSH (Public Library), Plaintiff-Respondent-Petitioner, v. OSHKOSH PUBLIC LIBRARY CLERICAL AND MAINTENANCE EMPLOYEES: UNION LOCAL 796-A, WCCME, AFSCME,efendant-Appellant.
• Court: Wisconsin Supreme Court

Page 210

299 N.W.2d 210

99 Wis.2d 95

CITY OF OSHKOSH (Public Library), Plaintiff-Respondent-Petitioner, v. OSHKOSH PUBLIC LIBRARY CLERICAL AND MAINTENANCE EMPLOYEES UNION LOCAL 796-A, WCCME, AFSCME, AFL-CIO Defendant-Appellant.

No. 79-241.

Supreme Court of Wisconsin.

Argued Oct. 27, 1980.

Decided Nov. 25, 1980.

William P. Nagle, Asst. City Atty., on brief, by Tom W. Ahrens, Asst. City Atty., Oshkosh, argued, for plaintiff-respondent-petitioner.

Richard V. Graylow (argued) and Lawton & Cates, Madison, on brief, for defendant-appellant.

BEILFUSS, Chief Justice.

This is a review of a decision of the court of appeals which reversed an order entered by the circuit court for Winnebago county: WILLIAM E. CRANE, Circuit Judge.

The controversy in this case stems from a grievance filed by JoAnn Brewer against her employer, the City of Oshkosh (Public Library). The grievance alleged a violation of the collective bargaining agreement entered into by the employer and the Oshkosh Public Library Clerical and Maintenance Employees; Union Local 796-A, AFSCME, AFL-CIO. This matter was processed in accordance with the terms of the agreement and was ultimately heard by an arbitrator. An arbitration award was granted in favor of the union and the employee. Thereafter the employer applied to the circuit court for Winnebago county for an order vacating the arbitration award pursuant to sec. 298.10(1)(d), Stats. ¹ The circuit court entered an order vacating the award and the union appealed. The court of appeals reversed. We subsequently granted the employer's petition to review.

JoAnn Brewer has been employed by the City of Oshkosh (Public Library) (employer) since 1969. She is a member of the Oshkosh Public Library Clerical and Maintenance Employees; Union Local 796-A, AFSCME, AFL-CIO (union). On May 23, 1977, her employer posted notice of a job opportunity as a Library Assistant II. The qualifications were listed as follows:

"REQUIRED QUALIFICATIONS:

"

"Knowledge of books and authors; knowledge of the principles and practices of library science; ability to undertake public contact work involving familiarity with books; ability to establish and maintain harmonious and effective working relationships with patrons and other employees; ability to operate a typewriter when assigned to cataloging, ordering, or similar duties; two or more years of college (liberal arts) or its equivalent as determined by management." (Emphasis added.)

Both Ms. Brewer and another employee, Jill Gust, applied for this position. Ms. Gust, who was hired in 1974, had considerably less seniority than Ms. Brewer. The two employees had substantially equivalent work records, however Ms. Brewer had not attended two years of college. Jill Gust received the job appointment effective June 20, 1977. Ms. Brewer did not receive the job because she did not have the two years of college or "its equivalent as determined by management."

The union filed a grievance on behalf of JoAnn Brewer. The grievance form alleged that the selection of Jill Gust for the Library Assistant II position violated Article VIII, sec. 3 of the 1977-1978 collective bargaining agreement. That provision of the contract provided:

"ARTICLE VIII-Promotions-Job Posting-Transfer Policy

"

"Section 3. The employee shall be selected on the basis of seniority, work record, and qualifications. In the event an official training program has been conducted for a given position, successful completion of the program shall be the qualifying factor for promotion." (Emphasis added.)

The contract was silent as to who set the qualifications for a particular job description classification.

The matter was processed through the grievance procedure, and as outlined in the contract, the dispute was submitted for final and binding arbitration. The parties applied to the Wisconsin Employment Relations Commission for the appointment of an arbitrator, and Peter G. Davis was assigned to arbitrate the dispute.

On July 22, 1977, a hearing was held at Oshkosh, Wisconsin. At the hearing there was no dispute that JoAnn Brewer had greater seniority than Jill Gust and it was stipulated that the work records of the two employees were equivalent. Therefore the focus of the hearing was upon the qualifications of each employee, especially the qualifications relating to "two or more years of college (liberal arts) or its equivalent as determined by management." The union took the position that based upon her seniority, work record and eight years of experience, it was arbitrary and capricious for the employer to conclude that JoAnn Brewer did not possess the equivalent of two years of liberal arts training. It was therefore claimed that the employer violated its agreement to promote employees based on their qualifications. The employer, the Public Library, argued that Ms. Brewer's rejection was based upon her lack of college experience and that the determination of the equivalency of a college background was a matter left to the discretion of management under the labor contract.

The arbitrator did not adopt the employer's position. In his written opinion, Arbitrator Davis recognized that the employer had the right to determine job qualifications for a particular job description classification, but noted that the determination of the qualifications of a particular employee may not be done in an arbitrary, capricious or discriminatory manner. He found that the employer Public Library acted in an arbitrary and capricious fashion when it determined that Ms. Brewer lacked the equivalent of two years of a college education. JoAnn Brewer was awarded the position of Library Assistant II and the Public Library was ordered to make her whole for wages lost since June 20, 1977.

As noted above, the employer successfully sought a court order vacating the award and, on appeal, the order was reversed.

This review requires us to decide whether the arbitrator exceeded the authority granted to him under the collective bargaining agreement when he determined that the agreement required the employer to assess the qualifications of an employee seeking promotion in a manner which was not arbitrary or capricious. If this authority was exceeded, then Arbitrator Davis' award must be vacated as provided in sec. 298.10(1)(d), Stats. ²

Although presented in several alternative forms, the employer sets forth essentially one argument. Its position is that the collective bargaining agreement reserved solely to management the determination of the qualifications of a particular employee who seeks a promotion. This claim is based upon Art. VI, section 1 of the labor agreement, which reads in part:

"Article VI-Classifications-Employment Status

"Section 1. The Library reserves the right to determine the job description classifications needed to operate the facilities "

The apparent thrust of the employer's claim is that the above-quoted provision vested in the employer the right to determine the objective qualifications for a given job. ³ The employer's position is that this provision also allowed the employer to assess the qualifications of a given employee in any manner, whether or not such manner could be deemed irrational, arbitrary or capricious. The employer argues that the arbitrator, by holding management's assessment of individual employee qualifications to a standard of rational, non-arbitrary discretion, modified or altered the employer's contractual rights. It is claimed that this was in excess of the authority granted to the arbitrator in Art. V, section 4 of the contract. That section denies the arbitrator the power "to add to, subtract from, modify or extend terms of (the) agreement." The employer therefore argues that the award must be vacated pursuant to sec. 298.10(1)(d), Stats., because the arbitrator exceeded the powers granted to him.

In reviewing the validity of this arbitration award, several basic principles guide our discussion. The law of Wisconsin favors agreements to resolve municipal labor disputes by final and binding arbitration. An arbitrator's award is presumptively valid, and it will be disturbed only where invalidity is shown by clear and convincing evidence. Milwaukee Bd. of School Directors v. Milwaukee Teachers' Ed. Asso., 93 Wis.2d 415, 422, 287 N.W.2d 131 (1979).

This court's acceptance of the Steelworker's Trilogy ⁴ in the case of Dehnart v. Waukesha Brewing Co., 17 Wis.2d 44, 115 N.W.2d 490 (1962), is indicative of a policy of limited judicial review in cases involving arbitration awards in labor contract disputes. A final and binding arbitration clause signifies that the parties to a labor contract desire to have certain contractual disputes determined on the merits by an impartial decision-maker whose determination the parties agree to accept as final and binding. ⁵ Great deference is paid to the arbitrator's award as the product of the initial bargain of the parties. Therefore, the court's function in reviewing the arbitration award is supervisory in nature. The goal of this review is to insure that the parties receive what they bargained for. Milwaukee Pro. Firefighters Local 215 v. Milwaukee, 78 Wis.2d 1, 22, 253 N.W.2d 481 (1977).

The parties bargain for the judgment of the arbitrator-correct or incorrect-whether that judgment is one of fact or law.

"(T)he arbitrator is the parties' officially designated 'reader' of the contract. He (or she) is their joint alter ego for the purpose of striking whatever supplementary bargain is necessary to handle the anticipated unanticipated omissions of the initial agreement. Thus, a 'misinterpretation' or 'gross mistake' by the arbitrator becomes a contradiction in terms. In the absence of fraud or an overreaching of authority on the part of the arbitrator, he is speaking for the parties, and his award is their contract. That is what the 'final and binding' language of the arbitration clause says. In sum, the arbitrator's award should be treated as...