Fortney v. School Dist. of West Salem

• Decision Date: 02 July 1982
• Docket Number: No. 80-1447,80-1447
• Citation: 108 Wis.2d 167,321 N.W.2d 225
• Parties: , 115 L.R.R.M. (BNA) 3286, 4 Ed. Law Rep. 1281 In the Matter of the Arbitration Between the West Salem Education Association and Robert M. Fortney and the School District of West Salem. Robert M. FORTNEY and the West Salem Education Association, Appellants, v. SCHOOL DISTRICT OF WEST SALEM, Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 225

321 N.W.2d 225

108 Wis.2d 167, 115 L.R.R.M. (BNA) 3286,

4 Ed. Law Rep. 1281

In the Matter of the Arbitration Between the West Salem Education Association and Robert M. Fortney and the School District of West Salem Robert M. FORTNEY and the West Salem Education Association, Appellants, v. SCHOOL DISTRICT OF WEST SALEM, Respondent-Petitioner.

No. 80-1447.

Supreme Court of Wisconsin.

Argued April 26, 1982.

Decided July 2, 1982.

Darrel A. Talcott, West Salem, and John Bosshard (argued), Janet A. Jenkins, John H. Schwab, Jr., and Bosshard, Sundet & Associates, La Crosse, on brief, for respondent-petitioner.

James G. Birnbaum (argued), Ellen M. Frantz, Daniel T. Flaherty, Gregory S. Bonney, James P. Gokey and Johns, Flaherty & Gillette, S. C., La Crosse, on brief, for appellants.

Bruce F. Ehlke and Lawton & Cates, Madison, for Council 40, AFSCME, AFL-CIO, Professional Firefighters, of Wis., AFL-CIO and Wis. Professional Police Ass'n., on brief, amicus curiae.

James F. Clark, Michael J. Julka and Isaksen, Lathrop, Esch, Hart & Clark, Madison, for Wis. Ass'n of School Boards, Inc., on brief, amicus curiae.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals, 104 Wis.2d 737, 313 N.W.2d 278, reversing an order of the circuit court for La Crosse county, Honorable William L. Reinecke, Judge, which had vacated an arbitration award in favor of Robert M. Fortney and reinstated the decision of the West Salem School Board (hereinafter Board) to discharge Mr. Fortney. The court of appeals remanded the case to the trial court with directions to issue an order confirming the arbitration award. We affirm the court of appeals.

The issue in this case is whether arbitrators appointed pursuant to a grievance procedure contained in a collective bargaining agreement could hold a de novo factual hearing to determine whether just cause existed for a school board to terminate a teacher, where the discharge decision was based on the findings and recommendation of a factfinder appointed by the Board. The Board argues that the arbitrator could only undertake a certiorari review of the record established at the hearing initiated by the Board and had no power to hold a de novo hearing. We hold that the arbitrators' interpretation of the collective bargaining agreement as permitting a de novo hearing is reasonable and does not unlawfully infringe upon the powers of the school board. We therefore affirm the decision of the court of appeals which reinstated the arbitrators' award.

Robert M. Fortney was employed as a teacher for the School District of West Salem from September, 1971, through August 20, 1979. In 1979, the Board received complaints by some students and parents that Mr. Fortney was making inappropriate statements in class. The Board investigated those complaints and, on March 5, 1979, informed Mr. Fortney that it proposed to discharge him. The Board appointed Attorney John Langer to conduct a fact finding hearing to determine whether the allegations against Mr. Fortney were true and, if so, warranted discharge. Mr. Fortney agreed to participate in the hearing, but informed the Board that he was specifically retaining his rights under a collective bargaining agreement (hereafter "agreement") which was then in effect between the School District of West Salem and the West Salem Education Association (hereinafter the "Union").

Mr. Langer conducted fact finding hearings on May 30 and June 18, 1979, concerning eleven allegations of improper conduct by Mr. Fortney. On August 17, 1979, Mr. Langer issued findings of fact sustaining nine charges against Mr. Fortney and recommended that he be discharged. The school board adopted those findings and recommendations and discharged Mr. Fortney on August 20, 1979. That same day Mr. Fortney invoked his rights under the agreement and filed a grievance against the Board's action.

The parties agreed to waive the preliminary steps of the grievance procedure and selected arbitrators as provided in the agreement. This arbitration panel conducted hearings on October 22, 23 and 24, and November 27 and 28, 1979.

The arbitration panel interpreted the agreement as permitting a full factual hearing on the nine charges against Mr. Fortney that were found to have occurred by Mr. Langer and adopted by the Board as the basis for discharging Mr. Fortney. The arbitration panel further held that the Board was bound by the findings and recommendations upon which it based its discharge of Mr. Fortney and so limited proof to those matters. Forty-nine witnesses testified at the hearings conducted by the arbitration panel.

On April 2, 1980, the arbitration panel, by a vote of two to one, held that of the nine charges of misconduct against Mr. Fortney, three never occurred, three constituted proper teaching methods, and three, while reflecting poor judgment by Mr. Fortney, did not justify discharge. The arbitrators ruled that no just cause existed for Mr. Fortney's discharge and ordered him reinstated with back pay.

On May 9, 1980, the Board moved the circuit court for La Crosse county to vacate the award. On May 29, 1980, Mr. Fortney petitioned the circuit court for La Crosse county to confirm the award. A hearing was held before Honorable William L. Reinecke. On July 11, 1980, Judge Reinecke overturned the arbitration decision and vacated the award on the ground that the arbitrators had exceeded their authority in conducting a de novo rather than a certiorari hearing as to whether just cause existed for the discharge. The court then reviewed the record and concluded that the Board's decision to discharge Mr. Fortney was supported by credible evidence and was not arbitrary and capricious. The court affirmed the Board's decision to discharge Mr. Fortney.

Mr. Fortney appealed to the court of appeals which reversed, holding that the arbitrators had acted within the scope of their authority, and remanded the case to the trial court with directions to confirm the arbitration award. The Board petitioned this court for review of the court of appeals decision. The petition was granted.

At issue in this case is whether the arbitrators exceeded their authority by interpreting the collective bargaining agreement to permit a de novo hearing on whether just cause existed to discharge Mr. Fortney, where a fact finding hearing had already been held concerning the propriety of the discharge. The arbitrators' decision should be vacated if that decision does not follow from the language of the collective bargaining agreement, is inconsistent with or violative of a statutory provision, or is incompatible with the United States or Wisconsin Constitutions. We hold that the decision and award is consistent with the collective bargaining agreement and applicable statutory and constitutional provisions and therefore affirm the court of appeals decision.

An arbitration award is presumptively valid and the court exercises only a supervisory role in reviewing an arbitration award. Professional Police Ass'n. v. Dane County, 106 Wis.2d 303, 306-07, 316 N.W.2d 656 (1982). As this court stated in Oshkosh v. Union Local 796-A, 99 Wis.2d 95, 102-03, 299 N.W.2d 210 (1980):

"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....

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

Despite this policy of deference to arbitration decisions, a court may vacate the decision and award in cases of misconduct by arbitrators, where it evinces a perverse misconstruction of the collective bargaining agreement, or if it is illegal or violates strong public policy. Professional Police Ass'n v. Dane County, 106 Wis.2d at 308, 316 N.W.2d 656.

The Board argued before the trial court that the award should be vacated due to the misconduct of two of the arbitrators. The trial court found that no such misconduct occurred, and the Board neither appealed that ruling nor argued before this court that the award should be overruled due to any arbitrator's misconduct.

Because the arbitrator's power derives from the collective bargaining agreement, the decision and award must draw its authority from that agreement. Milwaukee Police Asso. v. Milwaukee, 92 Wis.2d 145, 158, 285 N.W.2d 119 (1979). The applicable provisions of the collective bargaining agreement are as follows:

"ARTICLE ONE: NEGOTIATION AGREEMENT....c. BOARD SECURITY. It is recognized that the board has and will continue to retain the rights and responsibilities to operate and manage the school system and its programs, facilities, properties and activities of its employees; authorized by the State Statutes including but not exclusive of the following: ...

"21. The application of the above statutes, will not be used in any attempt to diminish employee rights under 111.70 (MERA).

"ARTICLE III [THREE]: GRIEVANCE PROCEDURE....C. PROCEDURE....4. Level Four. If the decision of the Board is not satisfactory to the teacher or Welfare Committee, the grievance may be submitted to arbitration before an impartial arbitrator selected by the parties. The arbitrator to be selected in the following manner: The employer and the employee shall each appoint a member of the panel and shall notify the other of the name of his appointee to the Board within five (5) days of receipt of the written appeal. These two representatives shall meet in an attempt to select an impartial arbitrator. Failing to do so, they shall, within fifteen (15) days of the appeal request The Wisconsin Employment Relations Commission to submit a list of five names for their consideration. The employer and the employee representative shall determine by lot the order of elimination and thereafter each shall, in that order, alternately...