Racine County v. Iam Dist. 10

• Decision Date: 26 June 2008
• Docket Number: No. 2006AP964.,2006AP964.
• Citation: 2008 WI 70,751 N.W.2d 312
• Parties: RACINE COUNTY and Kevin B. Van Kampen, Racine County Family Court Commissioner and Director of Family Court Counseling, Petitioners-Respondents-Petitioners, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS DISTRICT 10, AFL-CIO, Respondent-Appellant.
• Court: Wisconsin Supreme Court

751 N.W.2d 312

2008 WI 70

RACINE COUNTY and Kevin B. Van Kampen, Racine County Family Court Commissioner and Director of Family Court Counseling, Petitioners-Respondents-Petitioners, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS DISTRICT 10, AFL-CIO, Respondent-Appellant.

No. 2006AP964.

Supreme Court of Wisconsin.

Argued January 15, 2008.

Decided June 26, 2008.

For petitioners-respondents-petitioners there were briefs by Charles B. Palmer, Kristi S. Nelson Foy, Amy O. Bruchs, and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Charles B. Palmer.

For the respondent-appellant there was a brief by Matthew R. Robbins, Asmaa Abdul-Haqq, and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, and oral argument by Matthew R. Robbins.

An amicus curiae brief was filed by Andrew T. Phillips, Ronald S. Stadler, Gina M. Ozelie, and Stadler, Centofanti & Phillips, S.C., Mequon, on behalf of the Wisconsin Counties Association.

¶ 1 N. PATRICK CROOKS, J

This is a review of an unpublished decision of the court of appeals¹ that reversed and remanded an order of the Circuit Court for Racine County, Judge Wilbur W. Warren III.

¶ 2 Petitioners, Racine County and Kevin B. Van Kampen (Van Kampen), who is the Racine County Family Court Commissioner and Director of Family Court Counseling Services, (collectively, Racine County), seek review of an unpublished decision of the court of appeals. The court of appeals' decision reversed and remanded the order of the Circuit Court for Racine County, Judge Wilbur W. Warren III of the Circuit Court for Kenosha County, presiding.² The Respondent is the International Association of Machinists and Aerospace Workers, District 10, AFL-CIO (IAM). This case centers on whether the circuit court properly vacated the arbitration award here that allegedly violated statutory law and constitutional separation of powers principles, and also whether the arbitrator exceeded her authority under Wis. Stat. § 788.10 (2005-06)³ by not considering Wis. Stat. § 767.405 and the relevant case law. Wisconsin Stat. § 767.405(1m) states that the circuit court judges of a county shall appoint, subject to the approval of the chief judge, a director of family court services. The director then has the responsibility to employ a staff to perform family court mediation services, legal custody study services, and physical placement study services. Wis. Stat. § 767.405(2). The statute specifically states that the director may contract "with a person or public or private entity" to provide the required services. Wis. Stat. § 767.405(2)(b).⁴

¶ 3 We reverse the decision of the court of appeals. We hold that the circuit court properly vacated the arbitration award here that was contrary to statutory law, specifically Wis. Stat. § 767.405, and to constitutional separation of powers principles. We also hold that the arbitration award in this case was properly vacated because the arbitrator exceeded her authority under Wis. Stat. § 788.10(1)(d) by not considering § 767.405 and the relevant case law.

I

¶ 4 In the autumn of 2003, family court social workers/case managers, Donald La-Fave (LaFave), Judith Berndt (Berndt), and Janet Vuvunas (Vuvunas) met with Van Kampen and were advised of the possibility of early retirement or layoff. La-Fave and Berndt were told that their positions would be eliminated and that there was the possibility of working after their retirement as social workers for the county on a contract basis. Vuvunas was told that her position would be reduced to part-time and that, if she did not accept part-time status or exercise her bumping rights for another full-time county employee position, she would be placed on layoff status. Vuvunas decided not to accept a part-time position, and she also elected not to exercise her bumping rights. Indeed, Racine County's Human Resources Director, Karen Galbraith (Galbraith), testified at the arbitration hearing that Vuvunas had specifically requested a voluntary layoff rather than exercise her bumping rights, and the county granted Vuvunas' request. Galbraith further testified that, if Vuvunas had exercised her bumping rights, no employee would have been laid off because there were vacant positions available. As a result, Vuvunas was placed on layoff status.⁵ The collective bargaining agreement that was in effect between Racine County and the IAM specifically stated that it covered social workers/case managers who worked in the family court.

¶ 5 Van Kampen met with LaFave and Berndt, in addition to John Engel (Engel), who was a retired county social worker supervisor. Van Kampen advised the three individuals that the county executive had directed him to provide the statutorily-mandated services by entering into individual contracts with social workers/case managers.⁶ LaFave retired on December 30, 2003, and Berndt was allowed to stay on as a regular employee until she reached retirement age on February 6, 2004. After waiting at least the minimum of one month after retirement that was required under Wisconsin pension law for former county employees to provide services under contract with the county, LaFave and Berndt entered into family court counseling services agreements and started working for the county as independent contractors on February 3, 2004, and March 8, 2004, respectively. Van Kampen continued to supervise these two independent contractors, who retained the same duties and pay.⁷ Engel also entered into a similar services agreement.

¶ 6 On March 8, 2004, the IAM filed a grievance on the matter against Racine County, and the case proceeded to arbitration on October 26, 2004. The issue at arbitration was framed by Arbitrator Janice Frankman as whether Racine County had violated the collective bargaining agreement's provisions when it entered into service agreements with the retired employees. The collective bargaining agreement stated that the IAM was "the sole and exclusive bargaining representative for all regular full time and regular part time ... Social Workers/Case Managers who work in Family Court. ..."

¶ 7 On January 19, 2005, the arbitrator ruled in favor of the IAM, sustaining the grievance.⁸ The arbitrator specifically stated in her award that she made "no attempt ... to either interpret or apply statutory law." The arbitrator concluded that Racine County had improperly displaced three positions from the bargaining unit in violation of the collective bargaining agreement. The arbitrator found that Racine County replaced three bargaining unit positions with independent contractors who provided identical services to take the positions off of the tax levy. The arbitrator ordered Racine County to cease and desist from continuing the service contracts, and she also prohibited Racine County from entering into new service contracts that would displace any court services social worker/case manager bargaining unit positions. Because the arbitrator found that LaFave and Berndt had retired, she specifically stated that the award would not reinstate them, which left both individuals, along with Engel, without an ability to work for Racine County. This was so because the arbitrator ordered Racine County to "cease and desist from continuing existing Service Agreements or [from] entering into new Agreements which displace[d] ... bargaining unit positions. ..." The arbitrator also required Racine County to make the IAM whole for the damages that it had sustained (including lost dues), its expenses in pursuing the matter, and lost benefits and wages without a loss of seniority.

¶ 8 Racine County filed a petition in the circuit court to vacate the arbitration award. On February 5, 2006, the circuit court granted Racine County's petition and vacated the award. The circuit court held that Van Kampen was paid by the county, but he was hired by and reported to the Circuit Court Judges in Racine County, subject to the approval of the Chief Judge of the District. The circuit court also held that Wis. Stat. § 767.405(2) gave the director discretion on how to provide the services in question, and the director was free to fill the positions with county employees, independent contractors, or a mix of both options. The circuit court determined that the three positions were not bargained for positions and that the positions were vacant by virtue of retirements and a voluntary layoff. As a result, the director had discretion in filling these statutorily mandated positions. Accordingly, the union had no vested right in the three positions, and the union could not tell the director how to fill the positions. The circuit court determined that the case was a separation of powers case, and the arbitrator's award ignored the ramifications of Wis. Stat. § 767.405 by eviscerating the director's statutory authority and discretion to fill the social worker/case manager positions. The circuit court held that the award, which stated that the director could not enter into any new service contracts to fill the positions, rendered the statute meaningless. The circuit court also determined that: (1) the collective bargaining agreement could not supersede statutory and judicial authority; and (2) the arbitrator's award, which attempted to do so, was invalid because the arbitrator exceeded her powers under Wis. Stat. § 788.10(1)(d). The circuit court relied on the decisions in Barland v. Eau Claire County, 216 Wis.2d 560, 575 N.W.2d 691 (1998), Iowa County v. Iowa County Courthouse/Social Services Employees, Local 413, 166 Wis.2d 614, 480 N.W.2d 499 (1992), and Crawford County v. WERC, 177 Wis.2d 66, 501 N.W.2d 836 (Ct.App.1993).

¶ 9 The IAM appealed the circuit court's decision. A divided court of appeals reversed the circuit court's order and remanded the case to the circuit court to reinstate the arbitrator's award. The majority in the court of appeals held that the circuit court had erred as a matter of law in vacating the...