Wis. Fed'n of Nurses & Health Professionals v. Milwaukee Cnty.

Decision Date01 October 2013
Docket NumberNo. 2012AP2490.,2012AP2490.
Citation351 Wis.2d 421,2013 WI App 134,839 N.W.2d 869
PartiesWISCONSIN FEDERATION OF NURSES AND HEALTH PROFESSIONALS, LOCAL 5001, AFT, AFL–CIO and Association of Milwaukee County Attorneys, Plaintiffs–Respondents, Susan Schwegel and Susan Jaskulski, Plaintiffs, v. MILWAUKEE COUNTY, Defendant–Appellant.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HERE

On behalf of the defendant-appellant, the cause was submitted on the briefs of Alan M. Levy of Lindner & Marsack, S.C., Milwaukee.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Jeffrey P. Sweetland of Hawks Quindel, S.C., Milwaukee.

Before CURLEY, P.J., FINE and KESSLER, JJ.

FINE, J.

¶ 1 Milwaukee County appeals the “Final Order and Judgment” (uppercasing omitted) granting summary judgment to the Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL–CIO, the Association of Milwaukee County Attorneys, Susan Schwegel and Susan Jaskulski, ruling that the unions' members and Schwegel and Jaskulski had “a vested benefit contract requiring the County to reimburse [their] Medicare Part B premiums” when they retire from Countyemployment even though they were not yet retired when the County eliminated that benefit. The parties' contentions are based on their interpretation of various Milwaukee County General Ordinances; the parties have not pointed to any collective-bargaining agreement that affects the merits of this appeal. The Dissent chastises us in a footnote for ignoring the parties' collective bargaining agreements. The Dissent, however, points to no provision in any collective bargaining agreement that trumps the ordinances we uphold. Thus, as the Dissent points out in its ¶ 19, the agreement covering the nurses says that it expired on December 31, 2012. As we show in ¶ 8, this is wholly consistent with the revised ordinance. There is no conflict, and the Dissent does not develop any argument that there is. Further, the Dissent also notes in ¶ 19 that the collective bargaining agreement with the Association of Milwaukee County Attorneys expired on December 31, 2011. As we also show in ¶ 8, this, too, is wholly consistent with the revised ordinance. There is no conflict, and the Dissent does not develop any argument that there is, other than its preference for the two court of appeals' decisions that, as we show below, the Wisconsin Supreme Court declined to follow. This is the most likely reason why the unions and their members in their forty-eight-page brief, submitted by a prominent and well-respected law firm, do not argue that any of the collective bargaining agreements “affects the merits of this appeal,” as we state and with which the Dissent disagrees. We reverse.

I.

¶ 2 This dispute was presented to the circuit court by a joint stipulation from which we draw the facts material to this appeal. We thus review de novo the legal issues presented by this appeal. See Loth v. City of Milwaukee, 2008 WI 129, ¶ 10, 315 Wis.2d 35, 39, 758 N.W.2d 766, 768;Pasko v. Milwaukee County, 2013 WI App 91, ¶ 2, 349 Wis.2d 444, 448, 836 N.W.2d 461, 463.

¶ 3 The Federation of Nurses and Health Professionals is “the certified collective bargaining representative of a bargaining unit consisting of certain non-supervisory registered nurses, occupational therapists, music therapists, forensic chemists and other health care professionals” working for the County. Schwegel is a member of the Federation, and has been a County employee since March of 1990. The Association of Milwaukee County Attorneys is “the certified collective bargaining representative of a bargaining unit consisting of certain non-supervisory attorneys” working for the County. Jaskulski is a member of the Association, and has been a County employee since June of 1989. The unions' members are members of the Milwaukee County Retirement System.

¶ 4 The specific issue presented by this appeal is governed by various subsections of General Ordinance § 17.14(7), which is the County's “Group Health Benefit Program” for its employees.

¶ 5 General Ordinance § 17.14(7)(c), as amended in 1989, provided:

Retired members of the County Retirement System who are eligible for continuing their health insurance benefits at County expense under the provision of (h) of this section shall be eligible for reimbursement of the cost of their Medicare Part B premiums, as well as the Medicare Part B premiums of their eligible spouse and dependents.

General Ordinance § 17.14(7)(h), as amended in 1989, declared, as material here, that the provisions of General Ordinance § 17.14(7)(a) “shall apply to retired members of the County Retirement System with 15 or more years of creditable pension service as a County employe[e].” Section 17.14(7)(a) provided: “The County shall pay the full monthly cost of providing such [Group hospital and medical benefits] coverage for employe[e]s who commenced their employment with Milwaukee County prior to July 31, 1989.” 1

¶ 6 Section 17.14(7)(h) was amended in 1996 to add the following: “The provisions of this subsection are considered a part of an employee's vested benefit contract as more fully set forth in [General Ordinance § ] 201.24 (5.91).” The Federation et al. tell us that the reference to (5.91) was a “drafting error” and should be (5.10).” The County does not dispute this, and there is no General Ordinance § 201.24 (5.91). General Ordinance § 201.24 (5.10) reads: “Members who retire with sufficient pension service credit as noted in chapter 17 of the Code, or the appropriate labor agreement, shall be provided with paid health insurance as noted in chapter 17 of the Code, however such benefit shall not be funded via the pension fund.” 2 (Emphasis added.) Thus, the “paid health insurance” promise in General Ordinance § 201.24 (5.10) is made subject to and does not supersede anything in chapter 17 of the General Ordinances.

¶ 7 In 2005, General Ordinance § 17.14(7)(c) (the Medicare Part B premiums provision) was renumbered as § 17.14(7)(ee) and read, as did former § 17.14(7)(c):

Retired members of the County Retirement System who are eligible for continuing their health insurance benefits at County expense under the provision of [ (h) ] of this section shall be eligible for reimbursement of the cost of their Medicare Part B premiums, as well the Medicare Part B premiums of their eligible spouse and dependents.

This changed in 2010, when § 17.14(7)(ee) was amended to remove the County's liability for Medicare Part B premiums for some Milwaukee County employees:

The provisions of section (ee) shall not apply to members not represented by a collective bargaining unit who retired and began receiving benefits from the Milwaukee County Employees Retirement System after April 1, 2011. For members represented by a collective bargaining unit, the provisions of this section shall be applicable in accordance with their respective labor contracts.

This, of course, did not apply to the union members here who were, obviously, “represented by a collective bargaining unit.”

¶ 8 That changed a year later, though, when the following language, as material, was added in 2011, after the phrase “began receiving benefits from the Milwaukee County Employees Retirement System after April 1, 2011: “nor to members represented by ... the Association of Milwaukee County Attorneys, ... who retired and began receiving benefits from the Milwaukee County Employees Retirement System after December 31, 2011, nor to members represented by the Federation of Nurses and Health Professionals who retired and began receiving benefits from the Milwaukee County Employees Retirement System after December 31, 2012.” The revision changed General Ordinance § 17.14(7)(ee) to read, as material:

The provisions of section (ee) shall not apply to members not represented by a collective bargaining unit who retired and began receiving benefits from the Milwaukee County Employees Retirement System after April 1, 2011, nor to members represented by ... the Association of Milwaukee County Attorneys, ... who retired and began receiving benefits from the Milwaukee County Employees Retirement System after December 31, 2011, nor to members represented by the Federation of Nurses and Health Professionals who retired and began receiving benefits from the Milwaukee County Employees Retirement System after December 31, 2012.

Accordingly, after the 2011 change, the County's liability for Medicare Part B premiums ended with respect to:

(1) members of the retirement system who were not represented by a union and “who retired and began receiving benefits from the Milwaukee County Employees Retirement System after April 1, 2011;

(2) members of the retirement system who were represented by the Association of Milwaukee County Attorneys and “who retired and began receiving benefits from the Milwaukee County Employees Retirement System after December 31, 2011; and

(3) members of the retirement system who were represented by the Federation of Nurses and Health Professionals and “who retired and began receiving benefits from the Milwaukee County Employees Retirement System after December 31, 2012.”

Thus, according to the County, members of the Association had to retire no later than December 31, 2011, and members of the Federation had to retire no later than December 31, 2012, in order for the County to pay their Medicare Part B premiums.

¶ 9 In a brief oral decision, the circuit court determined that “benefits that exist at the time [the employee] joined the system are guaranteed to [the employee] unless [the employee] personally agree[s] to a reduction.” The circuit court noted that the decisions upon which it relied, Welter v. City of Milwaukee, 214 Wis.2d 485, 571 N.W.2d 459 (Ct.App.1997), and Rehrauer v. City of Milwaukee, 2001 WI App 151, 246 Wis.2d 863, 631 N.W.2d 644, may have conflicted with Loth, opining “I have a difficult time reconciling Loth with ...

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2 cases
  • Schwegel v. Milwaukee Cnty.
    • United States
    • Wisconsin Supreme Court
    • 12 d4 Fevereiro d4 2015
    ...758 N.W.2d 766.¶ 14 The court of appeals reversed and granted summary judgment to Milwaukee County. Wis. Fed'n of Nurses & Health Prof'ls, Local 5001 v. Milwaukee Cnty., 2013 WI App 134, ¶ 16, 351 Wis.2d 421, 839 N.W.2d 869. The court of appeals reasoned that it was bound by Loth. Id., ¶ 11......
  • Suzanne Stoker & Wis. Fed'n of Nurses & Health Professionals v. Milwaukee Cnty., 2012AP2466.
    • United States
    • Wisconsin Court of Appeals
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    ...and citations in the brief are accurate. 18.See ¶ 4 above. 19. Our recent case in Wisconsin Fed'n of Nurses & Health Prof'l v. Milwaukee Cnty., 2013 WI App 134, 351 Wis.2d 421, 839 N.W.2d 869, which also involves a health insurance benefit (entitlement to county paid Medicare Part B premium......

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