Joint School Dist. No. 10, City of Jefferson v. Jefferson Ed. Ass'n

• Decision Date: 17 May 1977
• Docket Number: No. 76-129,76-129
• Citation: 253 N.W.2d 536,78 Wis.2d 94
• Parties: , 95 L.R.R.M. (BNA) 3117 JOINT SCHOOL DISTRICT NO. 10, CITY OF JEFFERSON, et al., Appellants, v. JEFFERSON EDUCATION ASSOCIATION and Charles Kasprzak, Respondents.
• Court: Wisconsin Supreme Court

Page 536

253 N.W.2d 536

78 Wis.2d 94, 95 L.R.R.M. (BNA) 3117

JOINT SCHOOL DISTRICT NO. 10, CITY OF JEFFERSON, et al., Appellants, v. JEFFERSON EDUCATION ASSOCIATION and Charles Kasprzak, Respondents.

No. 76-129.

Supreme Court of Wisconsin.

Argued Feb. 28, 1977.

Decided May 17, 1977.

For the appellants there were briefs by James K. Ruhly, G. Michael Scheurich and Melli, Shiels, Walker & Pease, S. C., Madison, and oral argument by James K. Ruhly, Madison, for appellants.

For the respondents there was a brief by John S. Williamson, Jr., and Goldberg, Previant & Uelmen, S. C., Milwaukee, and oral argument by John S. Williamson, Milwaukee, for respondents.

ABRAHAMSON, Justice.

The issue before the court on this appeal is whether to vacate the arbitrators' award, the principal contentions being that (1) the grievance was not arbitrable and therefore the arbitrators had no power to render the award and (2) the award is contrary to law and public policy. The circuit court confirmed the award. We affirm the order of the circuit court.

FACTS

The facts are not in substantial dispute, although the parties draw different inferences therefrom.

For several years prior to March 15, 1975, Charles Kasprzak was employed as a teacher by Joint School District No. 10, City of Jefferson, et al. (hereinafter referred to as the School Board). As of March 15, 1975, he was represented by a teachers' union, the Jefferson Education Association (hereinafter referred to as the Association), with which the School Board had a collective bargaining agreement for 1973-1975.

On February 11, 1975, Charles Kasprzak received a letter from the principal at the school where Kasprzak was a teacher, which informed Kasprzak that the principal was planning to recommend to the Board of Education that Kasprzak's contract be renewed under probationary status for the 1975-1976 school year. On March 10, 1975, Kasprzak received a letter telling him of the Board's intention to send him a "probationary contract". On March 15, 1975, Kasprzak received his contract in the mail, which was apparently satisfactory to him in all respects, save for the words "Probationary Contract" typed on it in the upper right-hand corner. ¹ Kasprzak had not had a probationary contract in prior years. After consultation with counsel, Kasprzak signed the contract and returned it on April 13, 1975, with the words "Probationary Contract" crossed out and with a letter stating his intent to teach the following year, his returning the signed contract under protest, and his intent to pursue the matter. The Board met on April 14, 1975, and it decided to treat Kasprzak's actions as a rejection of the contract and a counteroffer, which it declined to accept; the Board determined not to offer Kasprzak another contract, and Kasprzak was so notified.

The Association filed a complaint with the Wisconsin Employment Relations Commission (WERC). On June 26, 1975, a WERC examiner commenced a hearing on the matter, but the hearing was adjourned when the parties stipulated to adjourn the WERC hearing and to process the complaint as a grievance under the collective bargaining agreement, beginning with the Board of Education ² and, if necessary, taking the case to arbitration pursuant to the collective bargaining agreement. ³ The WERC was to be advised, after the arbitrators' decision, what if any further proceedings in the prohibited practice matter were requested. After the adjournment, the grievance was filed with the Board of Education on June 27, 1975 and was rejected by the Board on July 15, 1975. The parties then proceeded to arbitration. An arbitration selection process was used which did not employ the services of the WERC. The representatives of the School District and the Association agreed upon the arbitrators who heard the case on September 16, 1975. The two issues agreed upon for submission were (1) is the grievance subject to arbitration under the terms of the collective bargaining agreement, and (2) if the issue is arbitrable, did the Board of Education violate that collective bargaining agreement. The arbitrators found that the issue is arbitrable and that the Board had violated the agreement.

The School Board then filed a complaint in the circuit court for Jefferson county, on December 15, 1975, seeking declaratory relief determining that the award was void and of no effect in that the award is contrary to the agreement and beyond the authority and jurisdiction of the arbitrators. The Association demurred. On December 26, 1975, the Association moved to amend its complaint before the WERC trial examiner to enforce the award. The examiner refused to proceed, deferring to the jurisdiction of the court in the pending action stating that presumably the standards of review in the court and the WERC would be similar. Following the examiner's reasoning, the WERC, on February 6, 1976, affirmed his decision. On April 7, 1976, the Association withdrew its demurrer in the court action and filed an answer and a motion to confirm the award under sec. 298.09, Stats. The circuit court's order from which the appeal is taken denied the School Board's requested relief and granted the Association's motion for confirmation of the award.

I.

On appeal the School Board contends that the arbitrators' award is void because the grievance was not arbitrable. The School Board says that it agreed only to arbitrate "discharge and nonrenewal" and that Kasprzak's situation does not fall into these categories and therefore is a non-arbitrable grievance. The School Board reminds us that the basic undisputed rule is that unless the parties agree by contract to arbitrate a matter, the matter is not arbitrable.

"For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960).

The arbitrators obtain their authority from the contract, and the task of interpreting the contract to determine whether the dispute is arbitrable and whether the arbitrator has jurisdiction is for a court.

". . . Arbitration is a matter of contract and a party cannot be required to submit to arbitration a dispute which it has not agreed so to submit, and it is in the province of the court to determine on the basis of the contract whether or not the employer is bound to arbitrate. Atkinson v. Sinclair Refining Co. (1962), 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462." Int'l Union, UAW, Local 577 v. Hamilton Beach Mfg. Co., 40 Wis.2d 270, 282, 162 N.W.2d 16, 22 (1968).

Thus the question of substantive arbitrability whether the parties agreed to submit an issue to arbitration is a question of law for the courts to decide. ⁴ The arbitrator cannot, except by agreement of the parties, be the judge of the scope of his authority under the contract. ⁵ If a party asserts that the arbitrator is to decide the question of arbitrability "the claimant must bear the burden of a clear demonstration of that purpose." ⁶

In the case at bar the parties appear to have entered into two agreements: (1) the collective bargaining agreement; and (2) the agreement to submit this particular grievance to arbitration.

The collective bargaining agreement is an agreement to submit certain future grievances to arbitration, namely, those relating to discharge and non-renewal. ⁷ This agreement has a narrow rather than a broad arbitration clause. It does not contain the "standard" provision subjecting to arbitration any dispute as to the meaning, interpretation and application of the agreement. The collective bargaining agreement does not expressly or impliedly give the arbitrators authority to determine the scope of their jurisdiction and make a final and binding ruling on the question of arbitrability. Thus, if only the collective bargaining agreement were before us, the court would determine the issue of substantive arbitrability, that is whether the Kasprzak grievance was arbitrable within the terms of the agreement.

However in the case at bar the parties reached an agreement to submit to arbitration the existing controversy involving Kasprzak. At the hearing before a WERC examiner on the Association's complaint against the Board, the School Board's counsel set forth the following agreement between the parties: The Kasprzak grievance will be processed first at the Board level "without prejudice to the (Association) to argue that the matter has already been brought to the Board of Education . . . . If the grievance is not satisfactorily resolved at the Board level, the Association may invoke the Arbitration procedures in the agreement without prejudice to the Board's position that the subject matter of the grievance is not arbitrable." ⁸

The matter was not satisfactorily resolved at the Board level and was submitted to arbitration. The School Board's brief to the arbitration panel describes the submission to arbitration as follows:

"The Board of Education denies the matter is arbitrable under the 1973-75 collective bargaining agreement . . . . In the event the matter is deemed arbitrable, the Board denies that it violated any provision of that agreement.

". . .

"The parties stipulated to submission of the following statement of issues:

"1. Is the grievance subject to arbitration under the terms of the 1973-75 collective bargaining agreement?

"2. If issue # 1 is answered in the affirmative, did the Board of Education violate that collective bargaining agreement?"

The circuit court's opinion states:

". . . The parties agreed to adjourn the matter and submit the issues, including the question of arbitrability, to arbitration pursuant to the collective bargaining agreement."

There appears to be disagreement between the parties as to the meaning of the submission agreement. The Association contends the parties conferred authority on the arbitration panel to...