County of La Crosse v. Wisconsin Employment Relations Com'n, AFL-CI

• Decision Date: 06 January 1994
• Docket Number: R,AFL-CI,No. 91-1375,91-1375
• Citation: 182 Wis.2d 15,513 N.W.2d 579
• Parties: , 145 L.R.R.M. (BNA) 2948 COUNTY OF LA CROSSE, Petitioner-Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Co-Appellant-Petitioner, Local 1403 and AFSCME,espondent-Appellant. . Oral Argument
• Court: Wisconsin Supreme Court

Page 579

513 N.W.2d 579

182 Wis.2d 15, 145 L.R.R.M. (BNA) 2948

COUNTY OF LA CROSSE, Petitioner-Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION Respondent-Co-Appellant-Petitioner Local 1403 and AFSCME, AFL-CIO, Respondent-Appellant.

No. 91-1375.

Supreme Court of Wisconsin.

Oral Argument Jan. 6, 1994.

Decided March 15, 1994.

For the petitioner-respondent there was a brief and oral argument by William A. Shepherd, Asst. Corp. counsel, LaCrosse.

Amicus curiae was filed by Bruce Meredith, staff counsel, Madison, for Wisconsin Educ. Ass'n Council.

Amicus curiae was filed by Richard V. Graylow, Diana L. Stone, and Lawton & Cates, S.C., Madison for Professional Fire Fighters of Wisconsin, Inc.

Amicus curiae was filed by Marianne Goldstein Robbins, Rassandra L. Cody and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee for Wisconsin State AFL-CIO.

Amicus curiae was filed by John J. Prentice and Godfrey & Kahn, S.C., Sheboygan for Wisconsin Counties Association.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, County of La Crosse v. Wisconsin Employment Relations Comm'n, 174 Wis.2d 444, 497 N.W.2d 455 (1993), affirming an order of the circuit court for La Crosse county, Michael J. Mulroy, Circuit Judge. We reverse the decision of the court of appeals and remand the cause for further proceedings.

The circuit court determined that the employe's exclusive remedy for the county's termination of her employment following a work-related injury was provided by the Worker's Compensation Act. Thus the circuit court concluded that La Crosse county, a municipal employer, did not commit a prohibited practice when it refused to arbitrate the employe's grievance for termination under the collective bargaining agreement. The circuit court reversed a decision of the Wisconsin Employment Relations Commission (WERC). WERC had held that La Crosse county had committed a prohibited labor practice within the meaning of sec. 111.70(3)(a)5, Stats.1991-92, by refusing to arbitrate questions about the meaning or application of the terms of a collective bargaining agreement, specifically with respect to a grievance over the termination or layoff of an employe with a work-related injury.

The court of appeals decided that sec. 102.03(2), Stats.1991-92, the exclusive-remedy provision of the Worker's Compensation Act, does not preclude a municipal employer from agreeing in a collective bargaining agreement to submit to arbitration whether an employe with a work-related injury was terminated for "proper cause." The court of appeals further ruled that an employer could waive the exclusive remedy provision by a collective bargaining agreement. Because the agreement in issue did not "explicitly address the refusal of the county to rehire an employee who is injured in the course of his or her employment," County of La Crosse v. WERC, 174 Wis.2d 444, 452, 497 N.W.2d 455 (Ct.App.1993), the court of appeals concluded, as had the circuit court, that La Crosse county had not committed a prohibited labor practice.

Three issues are before this court: (1) Does sec. 102.03(2) Stats.1991-92, the exclusive remedy provision of the Worker's Compensation Act, in conjunction with sec. 102.35(3), Stats.1991-92, the remedy for refusal to rehire, bar an employe who has suffered a work-related injury from seeking arbitration under a collective bargaining agreement to determine whether her termination or layoff for a work-related injury violated the agreement? ¹ (2) Did the legislature intend sec. 102-35(3), the remedy for refusal to rehire, to bar an employe who has suffered a work-related injury from seeking arbitration under a collective bargaining agreement to determine whether her termination or layoff for a work-related injury violated the agreement? (3) If secs. 102.03(2), and 102.35(3), do not bar an employe's relief under a collective bargaining agreement for termination of employment or layoff, is an arbitrator permitted to decide whether the employer had proper cause to terminate or lay off an employe suffering from a work-related injury when the collective bargaining agreement contains a grievance arbitration provision and a management rights provision recognizing a municipal employer's right to "suspend or otherwise discharge" an employe "for proper cause?"

We conclude that the exclusive remedy provision of the Worker's Compensation Act, viewed in conjunction with the provision on refusal to rehire, does not bar an employe who has suffered a work-related injury from seeking arbitration under a collective bargaining agreement to determine whether termination or layoff following a work-related injury violated the agreement. We also conclude that the legislature did not intend sec. 102.35(3), establishing a remedy for an employer's refusal to rehire, to bar an employe who has suffered a work-related injury from seeking arbitration under a collective bargaining agreement to determine whether termination or layoff following a work-related injury violated the agreement. We further conclude, as did WERC, that the collective bargaining agreement in the case at bar covers the employe's grievance on its face and that no other provision of the agreement explicitly excludes the grievance from arbitration.

I.

This case arose out of a dispute between a member of AFSCME Local 1403 and her employer, La Crosse county. The relevant facts are not in dispute.

Helen Lewis was employed as a resident aide at the Lakeview Health Center (Health Center) operated by La Crosse county. As a condition of employment she was required to be capable of lifting 50 pounds or more. On August 12, 1987, Lewis was injured on the job, but later returned to light duty. She was determined to have a permanent partial disability of 5 per cent of the whole person with a lifting capability permanently restricted to 25 pounds, and received compensation under the Act. On February 8, 1989 La Crosse county removed Lewis from her position.

AFSCME Local 1403, a labor organization as defined in sec. 111.70(1)(h), and La Crosse county, a municipal employer as defined in sec. 111.70(1)(j), were parties to a collective bargaining agreement which governed the wages, hours and certain conditions of employment of employes at the Health Center, including Lewis. On February 14, 1989, Lewis filed a grievance alleging that she had been terminated in violation of the proper cause provision of the agreement. ² La Crosse county advised Lewis that she had not been terminated but had been placed on disability layoff. On March 24, 1989, the grievance was amended to challenge the disability layoff.

La Crosse county refused to proceed to arbitration of the grievance. On February 2, 1990, AFSCME filed a complaint with WERC alleging that La Crosse county had committed a prohibited practice within the meaning of sec. 111.70(3)(a)5 by refusing to arbitrate the grievance. ³ La Crosse county defended on the ground that the Worker's Compensation Act provided the employe's exclusive remedy. The county treats this case as a refusal to rehire an employe after suffering a work-related injury. A hearing was held and the hearing examiner's decision favorable to AFSCME became WERC's decision by operation of sec. 111.07(5), Stats.1991-92. La Crosse county was ordered to proceed to final and binding arbitration of the grievance over Lewis's termination or layoff. La Crosse county commenced this proceeding in circuit court under sec. 111.07(8) and ch. 227, Stats.1991-92, seeking judicial review of WERC's decision.

II.

The first issue is whether sec. 102.03(2), the exclusive remedy provision of the Worker's Compensation Act, in conjunction with sec. 102.35(3), the remedy for refusal to rehire, bars an employe who has suffered a work-related injury from seeking arbitration under a collective bargaining agreement to determine whether her termination or layoff for a work-related injury violated the agreement. The interpretation of sec. 102.03(2), in conjunction with sec. 102.35, is a question of law of first impression. Because WERC lacks special expertise and experience in deciding the question presented, this court interprets the statute independently of WERC and the other courts. Schachtner v. DILHR, 144 Wis.2d 1, 4, 422 N.W.2d 906 (Ct.App.1988); Kelley Co., Inc. v. Marquardt, 172 Wis.2d 234, 244-245, 493 N.W.2d 68 (1992).

Two statutes are at issue in this case. Section 102.03(2) states that the right to recover compensation under the Worker's Compensation Act shall be the exclusive remedy against an employer. Section 102.03(2), Stats.1991-92, reads as follows:

[Where the conditions for liability under the Act exists] the right to the recovery of compensation under this chapter [the Worker's Compensation Act] shall be the exclusive remedy against the employer, any other employe of the same employer and the worker's compensation insurance carrier....

The second statute is sec. 102.35(3), one of the penalty provisions in the Worker's Compensation Act. It imposes liability on an employer (and grants some relief for an employe with a work-related injury) when the employer, without reasonable cause, refuses to rehire the employe. Under circumstances specified in sec. 102.35(3) the employer must pay "the employe the wages lost during the period of such refusal, not exceeding one year's wages." The statute limits the amount of wages an employe may receive and does not provide for job reinstatement. Section 102.35(3), Stats.1991-92, states:

(3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages. In...