Milwaukee Police Ass'n v. City of Milwaukee
| Decision Date | 06 November 1979 |
| Docket Number | No. 77-117,77-117 |
| Parties | MILWAUKEE POLICE ASSOCIATION, formerly the Professional Policemen's Protective Association, and Bernhard R. Molter, Respondents, v. CITY OF MILWAUKEE, a municipal corporation, and Harold A. Breier, chief of police, Appellants. |
| Court | Wisconsin Supreme Court |
The City of Milwaukee and Chief of Police, Harold A. Breier, respondents below, appeal from a judgment entered pursuant to an order granting the motion of the Milwaukee Police Association and Bernhard R. Molter to confirm an arbitration award.
John F. Kitzke, Asst. City Atty., argued, for appellants; James B. Brennan, City Atty., on brief.
Kenneth J. Murray, Milwaukee, for respondents.
Bernhard R. Molter, a police officer in the Milwaukee police department, filed a grievance against the City of Milwaukee and the Chief of Police claiming that an inquiry and subsequent suspension from work violated the collective bargaining agreement, and requesting that charges be cleared from his personnel record and that he be compensated for the four days' pay which he lost while suspended. This grievance was denied and the matter proceeded to arbitration.
The record before us contains the following facts, none of which appear to be disputed, and which resulted in the disciplinary action against Molter.
On January 18, 1976, Officer Bernhard R. Molter was off duty and was with his children sled riding in Dretzka Park when a boy started kicking his daughter's sled and told her and her friend to get their "god dam" (sic) sled out of here. His daughter came to him and told him what had happened. Molter confronted the boy and asked him why he was kicking at the girls. The boy stated that he didn't kick the "god dam" (sic) kids. Molter grabbed the boy by the front of the jacket and slapped him on the side of the mouth with his hand which had a mitten on it. Molter initially had been under the impression that the two boys involved in the incident had kicked his daughter and another girl who was sledding with her. After the incident with the boy, Molter determined after questioning his daughter further that the boy had not kicked either of the two girls, but had kicked at their sled. He also learned that his daughter had initially responded to the two boys with profanity when the boys told the girls to get their sled out of the way. After learning this, Molter also slapped his daughter with his mitten.
On February 3, 1976, Molter was notified that the Milwaukee Police Department Board of Inquiry had found him guilty of a violation of Rule 29, Sec. 12. As a result, Molter was suspended without pay for four days.
Rule 29, Section 12 provided:
At the arbitration hearing, the City of Milwaukee moved that the grievance be dismissed on the basis that it did not concern a matter affecting wages, hours or conditions of employment, but it involved the application of a rule applicable to an employee while he was off duty. The city also moved for dismissal on the grounds that the grievance did not specify a provision of the agreement which the union contended was violated other than the section referring to hours of work, which the city contended was not violated.
The arbitrator dismissed the motions and held that the actions of the grievant were not of such nature, severity or potential public notice that they would fall within that area over which the employer had a right to exercise control. The arbitrator also held that the incident could not logically be expected to have an effect on the employer's affairs, but was more in the form of a family or private matter.
The arbitrator awarded that the grievance be sustained and that the grievant be made whole for all lost wages and that the incident be cleared from his personnel record.
The Chief of Police, in compliance with the award, ordered that the loss of four days' pay due to the suspension and loss of four days of service be restored pursuant to Order No. 7366. The grievant was paid the lost wages. The official Milwaukee police department personnel record had the charge against Molter cleared by entering the statement contained in the order of the Chief of Police setting forth that the above charge was appealed before a grievance arbitrator and it was ordered by the arbitrator that the grievance be sustained and grievant made whole for all his lost wages and the record be cleared.
The Milwaukee Police Association and Bernhard R. Molter later filed a motion in circuit court to confirm the award of the arbitrator. The appellants, the City of Milwaukee and the Chief of Police, responded by filing a motion to dismiss.
The circuit court ultimately ordered that the award be confirmed and judgment was entered providing that the grievance be sustained, that the grievant be made whole for lost wages and days of service, and that the incident be cleared from his personnel record.
The City of Milwaukee and the Chief of Police appeal, and in doing so argue (1) that the trial court did not have jurisdiction to enter judgment confirming the award because the award had been complied with, and (2) that the trial court erred in holding that it must confirm an arbitration award under sec. 298.09, Stats., when no motion to vacate, modify or correct was brought under sec. 298.10 or sec. 298.11.
Appellants contend that the circuit court exceeded its jurisdiction in confirming the award, since there was nothing to be reviewed by the court and the case was moot...
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