Pasko v. City of Milwaukee, 99-2355.

• Decision Date: 24 April 2002
• Docket Number: No. 99-2355.,99-2355.
• Citation: 252 Wis.2d 1,643 N.W.2d 72,2002 WI 33
• Parties: Robert PASKO, Scott Warren, Michael Wolfgram, Elizabeth Pridmore-Dahlke, Patrick LaBelle, Gertie Gilliam, Terese Ulickey, Henry Zimmerman, Anna Merhalski, Alfonso Salinas, Richard Thompson, Jean Docter, Charlene Guiliani, Harold Davis, David Granica, Audrey Warren, Mary Sikora, Linda Scholler, Joseph Suttle, Vicki Kakonis, Jeanne Sirna, Timothy Ridgway, Pamela Holmes and the Milwaukee Police Association, Plaintiffs-Appellants, v. CITY OF MILWAUKEE, Board of Fire and Police Commissioners City of Milwaukee, Milwaukee Employes' Retirement System and Annuity and Pension Board and Milwaukee Police Chief Arthur Jones, in his official capacity, Defendants-Respondents-Petitioners.
• Court: Wisconsin Supreme Court

252 Wis.2d 1

2002 WI 33

643 N.W.2d 72

Robert PASKO, Scott Warren, Michael Wolfgram, Elizabeth Pridmore-Dahlke, Patrick LaBelle, Gertie Gilliam, Terese Ulickey, Henry Zimmerman, Anna Merhalski, Alfonso Salinas, Richard Thompson, Jean Docter, Charlene Guiliani, Harold Davis, David Granica, Audrey Warren, Mary Sikora, Linda Scholler, Joseph Suttle, Vicki Kakonis, Jeanne Sirna, Timothy Ridgway, Pamela Holmes and the Milwaukee Police Association, Plaintiffs-Appellants, v. CITY OF MILWAUKEE, Board of Fire and Police Commissioners City of Milwaukee, Milwaukee Employes' Retirement System and Annuity and Pension Board and Milwaukee Police Chief Arthur Jones, in his official capacity, Defendants-Respondents-Petitioners.

No. 99-2355.

Supreme Court of Wisconsin.

Oral argument December 10, 2001.

Decided April 24, 2002.

For the defendants-respondents-petitioners the cause was argued by Leonard A. Tokus, assistant city attorney, with whom on the briefs was Grant F. Langley, city attorney.

For the plaintiffs-appellants there was a brief by John F. Fuchs, Marcia A. Snow and Fuchs Snow DeStefanis, S.C., Milwaukee, and oral argument by John F. Fuchs.

An amicus curiae brief was filed by Jeffrey P. Sweetland and Shneidman Hawks & Ehlke, S.C., Milwaukee, on behalf of the Association of Law Enforcement Allied Services Personnel, Local 218, IUPA, AFL-CIO.

¶ 1. WILLIAM A. BABLITCH, J.

The City of Milwaukee, City of Milwaukee Board of Fire and Police Commissioners, Milwaukee Employes' Retirement System and Annuity and Pension Board, and City of Milwaukee Police Chief Arthur Jones appeal from a court of appeals' decision that held that the Milwaukee Police Association was not barred from bringing its writ of mandamus action based on claim preclusion despite a similar action previously brought by its union members. The court of appeals concluded that claim preclusion did not apply because there was no privity between the union members in the first action and the union in this case. We agree. However, we disagree with the court of appeals' conclusion that, based on the current record, the Milwaukee Police Association was entitled to a writ of mandamus compelling the promotions of police officers to vacancies within the police department. Instead, we conclude that remand is appropriate on this issue to determine whether the collective bargaining agreement requires such promotions to occur, whether vacancies exist for such promotions, and whether, as the statute requires, such vacancies constitute "newly created offices." Accordingly, we reverse the court of appeals' decision and remand for additional proceedings consistent with this opinion.

I. PASKO I

¶ 2. On November 8, 1993, Robert Pasko and 22 other City of Milwaukee police officers (officers) commenced an action in Milwaukee County Circuit Court against defendants City of Milwaukee, the City of Milwaukee Police Department, and Philip Arreola, the former City of Milwaukee Police Chief. The officers alleged that, from approximately 1984 to 1995, they worked regularly as police alarm operators under a process known as "underfilling," which entailed assigning lower ranking personnel to carry out duties of higher ranking personnel rather than filling vacancies at those higher positions. See Pasko v. City of Milwaukee, 222 Wis. 2d 274, 277, 588 N.W.2d 642 (Ct. App. 1998) (Pasko I)

. Despite working at the police alarm operator rank, the officers failed to receive pay commensurate with this rank. Id. Instead, they were paid at the lower rate applicable to police officers. Id. The officers therefore sought to recover the difference between their compensation as police officers and the higher compensation they would have received as police alarm operators. Id. at 277-78. They also sought promotion to the rank of police alarm operators so that they would not lose future compensation at the appropriate rank. Id. at 278.

¶ 3. The complaint alleged several causes of action, including breach of contract and a violation of Wis. Stat. § 62.50(9) (1991-92). Under the breach of contract claim, the officers alleged that the defendants breached the 1991-1992 collective bargaining agreement between the City of Milwaukee and the Milwaukee Police Association by requiring the officers to work as police alarm operators without promoting them to that rank or paying them for their employment in that capacity. The officers primarily relied on a section of the agreement that provided for different rates of base salary for police officers and police alarm operators.¹ Under the statutory claim, the officers alleged that Wis. Stat. § 62.50(9) (1991-92) required the defendants to fill all vacancies at the police alarm operator rank as they occurred and that the failure to fill these positions constituted a violation of the statute. This statute provides:

All vacancies in either [the police or fire] department shall be filled and all new appointments shall be made by the respective chiefs with the approval of the board. Where vacancies in old offices or newly created offices can, with safety to the department, be filled by the promotion of officers or persons already in the service and who have proved their fitness for the promotion, the vacancies in newly created offices shall be so filled by promotion by the respective chiefs with the approval of the board.

Wis. Stat. § 62.50(9) (1991-92).

¶ 4. The officers moved for summary judgment. The circuit court, the Honorable Patrick J. Madden presiding, granted summary judgment in favor of the defendants on all claims except on the breach of contract claim. On the breach of contract claim, the court concluded that there were disputed issues of fact as to whether the defendants had breached the collective bargaining agreement, and therefore, summary judgment was not appropriate at that time. The court dismissed the officers' claim under Wis. Stat. § 62.50(9) (1991-92), concluding that the statute did not specifically require the defendants to make any promotions, and as a result, no violation of the statute occurred. The officers did not appeal the court's dismissal of this statutory claim. Instead, they proceeded with the breach of contract claim.

¶ 5. The parties again moved for summary judgment on the breach of contract claim. This time, the circuit court, the Honorable Frank T. Crivello presiding, granted summary judgment to the officers, concluding that the defendants' failure to pay the officers according to the rank of police alarm operator constituted a breach of the terms of the collective bargaining agreement. The court concluded:

There is no applicable legal definition of the term underfilling in statutes or case law and the contract is silent on the issue. The contract requires that Police Officers and Police Alarm Operators receive different rates of pay. It does not address the issues of a timeline for promotion or the filling of vacancies. The contract also does not specifically address when or how an employee is assigned to a particular classification. However by looking at the plain language of the contract and the intent of the parties represented by that language, it appears that employees performing the duties and responsibilities of another classification on a regular basis should be paid the amount agreed to in the contract for that classification.

. . . .

Underfilling in and of itself is a permissible practice when done on an occasional and temporary basis, however, when coupled with an undisputed, yet unofficial, policy of not promoting anyone to those positions on a permanent basis, its [sic] stops being temporary underfilling, and turns into a permanent practice that violates the terms of the contract. . . . The apparent policy of the city and department to not promote anyone into these positions for the past ten years goes beyond the practice of underfilling, and is a breach of the term of the contract setting the applicable pay scale for the performance of such duties.

Based on this analysis, the court granted summary judgment to the officers. The court noted that the officers requested damages in the amount of the difference between the rate of pay as a police officer and the rate of pay as a police alarm operator, and it concluded that such relief was appropriate.

¶ 6. The court of appeals affirmed in an October 8, 1998, published decision, concluding that the circuit court correctly granted summary judgment on the officers' breach of contract claim. Pasko I, 222 Wis. 2d at 276. Specifically, the court held:

The collective bargaining agreement is clear. It specifies different ranks and different pay scales. It is undisputed that the plaintiff officers have been assigned to work as police alarm operators on a permanent basis, but have been denied the rank and additional compensation of police alarm operators. Requiring police officers to work permanently as police alarm operators without promoting them or paying them to do so violates the agreement.

Id. at 281. The court affirmed the circuit court's order awarding back pay to the officers. It did not specify any other relief, namely promotions, to which the officers were entitled, even though the opinion indicated that the failure to promote the officers constituted a violation of the collective bargaining agreement. Id. at 276, 281.

II. PASKO II

¶ 7. On December 8, 1998, the same officers from Pasko I and the Milwaukee Police Association filed an action in Milwaukee County Circuit Court in part against the City of Milwaukee, City of Milwaukee Board of Fire and Police Commissioners, and the Milwaukee Police Chief Arthur Jones (collectively "City"). The Milwaukee Police Association (MPA) is the certified collective bargaining unit for all City of Milwaukee police officers in non-supervisory ranks. In their complaint, the officers and the MPA alleged that vacancies remained at the rank of police alarm operator and that the City was required to fill these vacancies pursuant...