Milwaukee Police Ass'n v. Hegerty

• Decision Date: 22 March 2005
• Docket Number: No. 03-3081.,03-3081.
• Citation: 2005 WI 28,693 N.W.2d 738,279 Wis.2d 150
• Parties: MILWAUKEE POLICE ASSOCIATION, LOCAL 21, IUPA, AFL-CIO, Matthew Grauberger, Milwaukee Police Supervisors' Organization, Plaintiffs-Respondents-Petitioners, v. Nannette H. HEGERTY, Chief of Police for the City of Milwaukee, and City of Milwaukee, Defendants-Appellants.
• Court: Wisconsin Supreme Court

279 Wis.2d 150

2005 WI 28

693 N.W.2d 738

MILWAUKEE POLICE ASSOCIATION, LOCAL 21, IUPA, AFL-CIO, Matthew Grauberger, Milwaukee Police Supervisors' Organization, Plaintiffs-Respondents-Petitioners, v. Nannette H. HEGERTY, Chief of Police for the City of Milwaukee, and City of Milwaukee, Defendants-Appellants.

No. 03-3081.

Supreme Court of Wisconsin.

Oral argument February 3, 2005.

Decided March 22, 2005.

For the plaintiffs-respondents-petitioners there were briefs by Jonathan Cermele, Rachel L. Pings and Eggert & Cermele, S.C., Milwaukee, and oral argument by Jonathan Cermele. For the defendants-appellants there was a brief by Grant F. Langley and Donald L. Schriefer, Milwaukee, and oral argument by Donald L. Schriefer.

¶ 1. ANN WALSH BRADLEY, J.

The petitioners, Milwaukee Police Association, Local 21, IUPA, AFL-CIO, Matthew Grauberger, and Milwaukee Police Supervisors' Organization, seek review of a published decision of the court of appeals reversing an order of the circuit court, which had ruled in favor of the petitioners.¹ In this case we must determine whether the parties' collective bargaining agreements establish a different frequency for payment of overtime compensation than the 31-day frequency set forth in Wis. Stat. § 109.03(1) (2001-02).² The petitioners assert that the court of appeals erred in concluding that the 31-day frequency for payment controlled. They maintain that their collective bargaining agreements establish a shorter frequency of payment, 12 days after the end of the pay period in which the overtime was earned.

¶ 2. We agree with the petitioners that the City of Milwaukee is required to pay overtime compensation within 12 days after the end of the pay period in which the overtime was earned. Here, the collective bargaining agreements in question defer to the Milwaukee City Charter Ordinances. We interpret Milwaukee City Charter Ordinance § 5-06 as requiring the bi-weekly payment of overtime compensation. Moreover, custom and past practice of the parties indicate that the City of Milwaukee has historically paid overtime on the payday immediately following the period in which it was earned. Accordingly, we reverse the decision of the court of appeals.

I

¶ 3. The Milwaukee Police Association (MPA) and Milwaukee Police Supervisors' Organization (MPSO) are labor organizations recognized by the City of Milwaukee (City) for the Milwaukee Police Department. The former is the exclusive bargaining representative for certain non-supervisory police officers, while the latter is the exclusive bargaining representative for certain officers from rank of Sergeant through Deputy-Inspector of Police.

¶ 4. This case arose after delays in processing a number of overtime cards in periods 16-21 of 2002 because of problems with the Police Department's mainframe computer.³ During that time, the City allegedly failed to pay members of the MPA and MPSO a total of $824,040.29 in overtime compensation. It was this amount of earned overtime, together with what the police organizations believed was its untimely eventual payment, which formed the basis for this cause of action. ¶ 5. Since 1972, City employees have been paid bi-weekly on every other Thursday. The payday falls 12 days after the end of a two-week pay period in which the compensation is earned.

¶ 6. On October 2, 2002, the MPA and MPSO commenced suit seeking a declaratory judgment that the defendants-appellants' actions in failing to make timely payments of earned overtime violated Wis. Stat. Ch. 109; temporary and permanent injunctions enjoining the defendants-appellants from failing to make overtime payments according to the parties' collectively bargained and long-standing practices; penalties of up to 50 percent of delayed overtime payments; attorney fees; and liquidated damages.⁴ The police organizations also filed a motion for a temporary restraining order.

¶ 7. A hearing on the police organizations' request for a temporary restraining order was held on October 16, 2002. The circuit court granted the motion, preserving the status quo. The police organizations then filed a summary judgment motion, and the City responded with a summary judgment motion of its own. After oral argument, the circuit court found there were no genuine issues of material fact and determined that the police organizations were entitled to judgment as a matter of law.

¶ 8. In its decision, the circuit court concluded that (1) Milwaukee City Charter Ordinance (MCCO) § 5-06 required all wages, including overtime, to be paid 12 days after the end of the two-week pay period in which the wages were earned; (2) the parties collectively bargained an exception to the 31-day frequency of payment contained in Wis. Stat. Ch. 109 by subordinating their agreements to the MCCO in cases of conflict between the two; and (3) the City historically paid overtime in the pay period immediately following the period in which it was earned.

¶ 9. On June 2, 2004, a divided court of appeals reversed the order of the circuit court. In doing so, the majority acknowledged that the parties subordinated their collective bargaining agreements to the MCCO in cases of conflict between the two. However, it held that no such conflict existed in the present case because neither agreement specified how soon overtime compensation must be paid. Milwaukee Police Assoc. v. Hegerty, 2004 WI App 148, ¶ 6, 275 Wis. 2d 300, 685 N.W.2d 864. Accordingly, the majority observed that, "[s]imply put, there is nothing in their collective bargaining agreements that, in the words of § 109.03(1)(a), can be read as `establishing a different frequency for wage payments' than the thirty-one day period mandated by § 109.03(1)." Id., ¶ 9.

¶ 10. Judge Wedemeyer dissented from the majority opinion. Although he agreed with the majority that the analysis was simple, he concluded that this case presented a conflict in the application of the collective bargaining agreements. Id., ¶ 14 (Wedemeyer, J., dissenting). The conflict stemmed from the City's contention that the agreements did not have to comply with MCCO § 5-06. Id. Therefore, the City was applying the agreements to permit overtime compensation to be paid within 31 days or monthly rather than the bi-weekly payment as set forth in the MCCO. Id. Because of this conflict in application, the MCCO requirement of paying its employees bi-weekly trumped the terms of the agreements. Id. Judge Wedemeyer further noted that "[w]ith the exception of occasional mistake, error, or computer glitches, the City's past practice has been to pay overtime to the union employees in the pay period immediately following the period in which it was earned." Id., ¶ 16 (Wedemeyer, J., dissenting).

II

[1-3]

¶ 11. This case presents a single issue for our review. We must determine whether the parties' collective bargaining agreements establish a different frequency for payment of overtime compensation than the one set forth by Wis. Stat. § 109.03(1). Resolution of this inquiry involves interpretation of statute, collective bargaining agreement, and ordinance. Each of these present a question of law subject to independent appellate review. See Roth v. City of Glendale, 2000 WI 100, ¶ 15, 237 Wis. 2d 173, 614 N.W.2d 467; State v. Ozaukee County Bd. of Adjustment, 152 Wis. 2d 552, 559, 449 N.W.2d 47 (Ct. App. 1989).

III

¶ 12. We begin our discussion with the relevant statute. Wisconsin Stat. § 109.03(1) addresses the general time period that employees must be paid wages. It provides that, "[e]very employer shall as often as monthly pay to every employee engaged in the employer's business ... all wages earned by the employee to a day not more than 31 days prior to the date of payment." Wis. Stat. § 109.03(1).

¶ 13. That statute further provides, however, that this "default" period of 31 days does not apply when employees are "covered under a valid collective bargaining agreement establishing a different frequency for wage payments...." Wis. Stat. § 109.03(1)(a). In this case, it is undisputed that the police organizations are covered under valid collective bargaining agreements. The question therefore becomes whether their agreements with the City establish a different frequency of payment than the one set forth in Wis. Stat. § 109.03(1).

¶ 14. The pertinent provision of the agreement between the MPA and the City is Article 4. It states that the MCCO applies if any of its provisions or its application conflicts with the collective bargaining agreement. Article 4 provides as follows:

In the event that the provisions of this Agreement or its application conflicts with the legislative authority which devolves upon the Common Council of the City of Milwaukee as more fully set forth in the provisions of the Milwaukee City Charter, Section 62.50, Wisconsin Statutes, 1977, and amendments thereto, pertaining to the powers, duties and responsibilities of the Chief of Police and the Board of Fire and Police Commissioners or the Municipal Budget Law, Chapter 65, Wisconsin Statutes, 1971, or other applicable laws or statutes, this Agreement shall be subject to such provisions.

(Emphasis added.)

¶ 15. Article 4 of the collective bargaining agreement between the MPSO and the City similarly provides that the MCCO controls in the event that it conflicts, either expressly or in application, with the collective bargaining agreement. It states:

In the event that the provisions of this Agreement or its application conflicts with the legislative authority delegated to the City Common Council, the Chief of Police and Fire and Police Commission (which authority being set forth more fully by: The Milwaukee City Charter; the statutory duties, responsibilities and obligations of the Chief of Police and the Fire and Police Commission as they are provided for in Section 62.50 of the Wisconsin Statutes; the Municipal Budget Law, which is set forth in Chapter 65 of the Wisconsin Statutes; or other applicable

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