Milwaukee Police Ass'n v. City of Milwaukee, 77-115

• Decision Date: 06 November 1979
• Docket Number: No. 77-115,77-115
• Citation: 285 N.W.2d 119,92 Wis.2d 145
• Parties: , 105 L.R.R.M. (BNA) 3284 MILWAUKEE POLICE ASSOCIATION, Respondent, v. CITY OF MILWAUKEE, Appellant.
• Court: Wisconsin Supreme Court

Page 119

285 N.W.2d 119

92 Wis.2d 145, 105 L.R.R.M. (BNA) 3284

MILWAUKEE POLICE ASSOCIATION, Respondent, v. CITY OF MILWAUKEE, Appellant.

No. 77-115.

Supreme Court of Wisconsin.

Argued Sept. 11, 1979.

Decided Nov. 6, 1979.

The City of Milwaukee, respondent in the trial court, appeals from a judgment entered pursuant to an order granting the motion of the Milwaukee Police Association to confirm an arbitration award.

John F. Kitzke, Asst. City Atty., argued, for appellant; James B. Brennan, City Atty., on brief.

Kenneth J. Murray, Milwaukee, for respondent.

HANSEN, Justice.

On February 6, 1976, the Professional Policemen's Protective Association (presently the Milwaukee Police Association) filed a grievance on behalf of Marvin O. Stabbe, a police officer of the Milwaukee police department, against the City of Milwaukee alleging that because of his seniority, his request for transfer within the department should have been favorably recognized. This grievance was denied and the matter went to arbitration.

An arbitration hearing was held on August 5, 1976, pursuant to the contractual arbitration procedure agreed to by the parties, and the following facts appeared in the arbitration award.

Marvin O. Stabbe was hired as a police officer by the City of Milwaukee on October 8, 1951. Initially he was assigned to District Number Two, the station house of which was approximately three miles from his home, and he served in that district for 11 years, working nights. In October, 1962, he was transferred to District Number Six, which was approximately four-and-one-half miles from his home. Stabbe worked at the district for about 12 years. In the spring of 1974, he was transferred to District Number Seven, which was 151/2 miles from his home.

Approximately three weeks after his transfer to District Number Seven, Stabbe wrote to the captain of the district requesting a transfer to District Number Two. Subsequent to that request, Stabbe stopped at the personnel bureau to inquire about his requested transfer. He was informed by a secretary that there were many requests for transfers to District Number Two, but that there were no such requests for District Number One. Stabbe then asked her to change his transfer request form to indicate District Number One.

Subsequently, Stabbe met with Captain Andrew Busalacchi, who was in charge of the personnel bureau of the administrative bureau, and attempted to demonstrate to him the inconvenience, distance, hazard and expense involved in traveling from his home to District Number Seven. The captain stated that he could see no reason why Stabbe's request could not be complied with at the next opening in District Number One. Later two other officers with less seniority than Stabbe were transferred to District Number One.

The Professional Policemen's Protective Association, the exclusive bargaining agent for employees in the Milwaukee Police Department, and the City of Milwaukee entered into a collective bargaining agreement which was effective November 3, 1974, through October 31, 1976. This agreement provided under Part II, C, MANAGEMENT RIGHTS:

"6. The City and Chief of Police shall have the right to transfer employes within the Police Department in a manner most advantageous to the City.

"7. Except as otherwise specifically provided in this Agreement, the City, the Chief of Police and the Fire and Police Commission shall retain all rights and authority to which by law they are entitled."

Section I. A. 1. of Part III, GRIEVANCE AND ARBITRATION PROCEDURE, provided:

"1. Differences involving the interpretation, application or enforcement of the provisions of this Agreement or the application of a rule or regulation of the Chief of Police affecting wages, hours, or conditions of employment and not inconsistent with the 1911 Special Laws of the State of Wisconsin, Chapter 586, and amendments thereto shall constitute a grievance under the provisions set forth below."

The arbitrator held that the question of transfers within the department was grievable and that the request of the grievant was not unreasonable. On October 20, 1976, the arbitrator awarded

" . . . that when and if an opening for a police officer develops in District Number One, that Officer Marvin O. Stabbe be given first consideration for transfer to that District; further, that in the event the City does not transfer Officer Stabbe, that he be afforded a Hearing, if he so seeks, to establish the reasons why the transfer is not advantageous to the City."

On March 29, 1977, the grievant Milwaukee Police Association filed a motion in circuit court to confirm the award of the arbitrator. On April 7, 1977, the respondent City of Milwaukee filed a motion to dismiss the action. On June 6, 1977, the circuit court ordered that the award be confirmed and that judgment be entered in favor of grievant.

Judgment was entered on July 21, 1977, providing that when and if an opening for a police officer develops in District One, that Officer Marvin O. Stabbe be given first consideration for transfer to that district; further that in the event the city does not transfer Officer Stabbe, that he be afforded a hearing, if he so seeks, to establish the reasons why the transfer is not advantageous to the city.

The date of the arbitration award, October 20, 1976, the date of the motion of the Milwaukee Police Association for confirmation of the award, March 29, 1977, and the date the city filed a motion to dismiss the action, April 7, 1977, become important in considering the issues presented by this case, which are:

1. Did the arbitrator exceed his authority under the labor agreement by arbitrating the dispute?

2. Did the arbitrator exceed his authority in making the award?

3. Must the circuit court confirm an arbitration award upon the motion of a party if no motion to vacate or modify is brought under sec. 298.10 or sec. 298.11, Stats., within ninety days?

AUTHORITY TO ARBITRATE.

Appellant contends that there is no provision in the collective bargaining agreement that makes a denial of a request for transfer arbitrable, and therefore the arbitrator was without jurisdiction to arbitrate the dispute.

". . . 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." Jt. School District No. 10 v. Jefferson Ed. Asso., 78 Wis.2d 94, 101, 253 N.W.2d 536, 540 (1977).

". . . The arbitrator cannot, except by agreement of the parties, be the judge of the scope of his authority under the contract. . . ." Id. at 101, 102, 253 N.W.2d at 540.

In this case, the collective bargaining agreement is an agreement to submit certain future grievances to arbitration. Part III, Section I. A. 1. of the Agreement states:

"1. Differences involving the interpretation, application or enforcement of the provisions of this Agreement or the application of a rule or regulation of the Chief of Police affecting wages, hours, or conditions of employment and not inconsistent with the 1911 Special Laws of the State of Wisconsin, Chapter 586, and amendments thereto shall constitute a grievance under the provisions set forth below."

The agreement does not expressly or impliedly give the arbitrator the authority to determine the scope of his jurisdiction and make a final and binding decision on the question of arbitrability. Moreover, the parties did not submit the issue of arbitrability for a final and binding decision; the parties submitted the merits of the dispute to the arbitrator, and at the same time the appellant challenged the arbitrability of the transfer question. Therefore, this court may determine the issue of substantive arbitrability that is, whether Stabbe's grievance was arbitrable within the terms of the collective bargaining agreement.

"When the court determines arbitrability it must exercise great caution. The court has no business weighing the merits of the grievance. It is the arbitrators' decision for which the parties bargained. In Dehnart v. Waukesha Brewing Co., Inc., 17 Wis.2d 44, 115 N.W.2d 490 (1962), this court adopted the Steelworkers Trilogy teachings of the court's limited function. The court's function is limited to a determination whether there is a construction of the arbitration clause that would cover the grievance on its face and whether any other provision of the contract specifically excludes it. . . ." Jt. School District No. 10 v. Jefferson Ed. Asso., supra, at 111, 253 N.W.2d at 545.

In Jt. School District No. 10 v. Jefferson Ed. Asso., supra, this court held that, although the Steelworkers Cases involved broad arbitration clauses submitting questions of contract interpretation to the arbitrator and the contract in the case before the court contained a narrow arbitration clause, the fundamental pronouncements on the issue of arbitrability as set forth in the Steelworkers Trilogy were applicable to that case.

The present case involves a broad arbitration clause, providing for arbitration of any differences arising between the parties as to the interpretation, application or enforcement of the provisions of the agreement. Therefore the grievance alleged in this case is subject to arbitration because, as stated in the Steelworkers Cases :

"An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960).

The provisions in the collective bargaining agreement to which appellant refers in order to support its contention that the matter of transfers is not arbitrable appear in Part II of the Agreement under Section C, MANAGEMENT...