Wisconsin Employment Relations Commission v. Teamsters Local No. 563

• Decision Date: 25 April 1977
• Docket Number: No. 75--43,75--43
• Citation: 75 Wis.2d 602,250 N.W.2d 696
• Parties: , 94 L.R.R.M. (BNA) 2840, 80 Lab.Cas. P 54,034 WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Petitioner-Appellant, v. TEAMSTERS LOCAL NO. 563, Intervenor-Appellant, City of Neenah, Respondent.
• Court: Wisconsin Supreme Court

Page 696

250 N.W.2d 696

75 Wis.2d 602, 94 L.R.R.M. (BNA) 2840,

80 Lab.Cas. P 54,034

WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Petitioner-Appellant, v. TEAMSTERS LOCAL NO. 563, Intervenor-Appellant City of Neenah, Respondent.

No. 75--43.

Supreme Court of Wisconsin.

Argued Nov. 29, 1976.

Decided Feb. 15, 1977.

Rehearing Denied April 25, 1977.

Charles D. Hoornstra, Asst. Atty. Gen., for Wisconsin Employment Relations Comm., Bronson C. La Follette, Atty. Gen., on the brief.

David Loeffler, Goldberg, Previant & Uelmen, S. C., Milwaukee, on brief for Teamsters Local No. 563.

Daniel P. Murphy, City Atty., Neenah, on brief, for respondent.

The judgment appealed from set aside an order of the appellant Wisconsin Employment Relations Commission. The order directed the respondent City of Neenah to comply with an arbitration award arising out of a collective bargaining municipal employee dispute. The intervenor-appellant, Teamsters Local No. 563, intervened on behalf of the employee, Robert Robbins; it also appeals from the circuit court order. The employee, Robert Robbins, was not a party to the circuit court action and has not individually appeared in this appeal.

BEILFUSS, Chief Justice.

The basic issue raised by both appellants, the WERC and the Teamsters Local, is whether the arbitrator had the power to determine that the discharge of the employee by the city was not for just cause in spite of a city ordinance that required all employees be residents of the city.

A second issue, raised only by the WERC, is whether the circuit court had jurisdiction to review the WERC order.

Robert Robbins was hired by the City of Neenah on April 15, 1967, as an employee in the city's street and sanitation department. On November 2, 1966, prior to the time Robbins was hired, the city enacted an ordinance which required all employees to live within the city. Robbins was a resident of Neenah when he was hired.

The pertinent part of the residency ordinance is as follows:

'(12) RESIDENCE OF EMPLOYEES. As a resident of Neenah will normally have more interest in his job and City than will a non-resident, it is expected that all employees of the City of Neenah live in the City. Any exceptions to the following controls require the authorization of the Finance Committee. The following controls shall be practiced:

'(a) The City Clerk-Comptroller shall be kept informed of the address of all City employees. Changes in address should be reported promptly.

'(b) Employees living outside of the City of Neenah at the time of hire who do not reside in the City limits one year from their date of hire shall be removed from the payroll.

'(c) Employees moving out of the City limits shall be removed from the payroll.'

Robbins became a member of Teamsters Local No. 563. It was the bargaining agent for many of the city employees, including Robbins. The city and the union (Teamsters Local No. 563) entered into a collective bargaining agreement effective for the period of January 1, 1969 through December 31, 1970. The city council approved this collective bargaining agreement by resolution.

No specific reference was made to the residency ordinance nor was there any reference to employee residence in the collective bargaining agreement. The agreement did, however, contain the following general provisions as to discharge and arbitration.

'ARTICLE 11--DISCHARGE OR SUSPENSION

'The Employer shall not discharge or suspend any employee without just cause. . . .'

'ARTICLE 15--ARBITRATION

'Section A.

'Any grievance relative to the interpretation or application of this Agreement which cannot be adjusted by conciliation between the parties, may be referred by either party hereto, within five (5) days to the Wisconsin Employment Relations Commission for the appointment of an arbitrator from its staff.

'Section B.

'The arbitrator shall, in so far as possible, within five (5) days of his appointment conduct hearings and receive testimony relating to the grievance and shall submit his findings and decisions. The decision of the arbitrator shall be final and binding on both parties to this Agreement.

'. . .

'Section D.

'It is understood that the arbitrator shall not have the authority to change, alter or modify any of the terms or provisions of this Agreement.'

In September, 1970, Robbins moved to the neighboring City of Menasha to a home owned by his family. On October 27, 1970, Neenah's Director of Administration notified Robbins, in writing, he was violating the city ordinance by maintaining his residence outside the City of Neenah. Robbins was further informed that if he wanted to remain on the city payroll he would have to re-establish his residence in Neenah by December 31, 1970. On December 23d, both Robbins and the union were notified in writing that Robbins would be discharged December 31st. He did not move back to Neenah and his employment was terminated as of December 31, 1970. The city does not contend that Robbins was not a good employee in all other respects. The sole reason for his discharge was because he was not a resident of the city.

Subsequent to the discharge of Robbins the union requested WERC to arbitrate the issue of whether Robbins was discharged for just cause. The city concurred in this request. A hearing was held in February, 1971. The arbitrator, John T. Coughlin, made an award on December 9, 1971. The award ordered Robbins reinstated and held that the city violated Robbins' right to procedural due process. The city did not reinstate Robbins. The union then filed a complaint with the WERC alleging the city committed a prohibited practice within the meaning of sec. 111.70, Stats. A hearing examiner was appointed--a hearing was held in March, 1972, and the examiner held that the arbitrator had exceeded his powers. The union petitioned the WERC for review of the hearing examiner's decision. On October 13, 1972, the WERC held that the arbitrator's award was not a final and binding award with respect to whether the discharge was for just cause. The arbitration proceeding was remanded to Arbitrator Coughlin for further hearing and a definite award. Further hearing was waived by the parties. Coughlin entered his second award on January 18, 1973. He held that because the ordinance in question was not contained in the contract, it was a work rule which was not reasonably related to the job performed. Therefore, the discharge was not for just cause. The arbitrator ordered the city to offer Robbins reinstatement, and to pay him an amount of money equal to that which he would have earned less any amount he earned while discharged that he otherwise would not have earned.

Again the city ignored the order and the union filed an amended complaint charging the city's conduct was prohibited practice. The WERC held the city was committing a prohibited practice by refusing to accept the arbitration award. On October 25, 1973, the WERC ordered the city to comply with the award. The city ignored this order and the WERC commenced this action seeking enforcement of its order. The union intervened.

The circuit court ruled that it had jurisdiction, under sec. 111.07, Stats., to review the WERC's order and that the just cause for discharge provision of the agreement did not confer authority upon the arbitrator to rule on the reasonable application of discharge under the pre-existing residency ordinance. Based on this holding, on February 10, 1975 the court set aside the arbitration award and dismissed the complaint of the union. Both the WERC and the union appealed this judgment.

The WERC contends that the circuit court did not have jurisdiction to review the arbitration award. It argues that ch. 227, Stats., Administrative Procedure and Review, provides the only method for review of administrative decisions and that sec. 111.07(7) merely sets the standards for review under a ch. 227 proceeding. It is our opinion this argument must be rejected. The language of sec. 111.07(7) ¹ is clear and unambiguous. It provides that if a person fails or neglects to obey an order of the commission, the commission may petition the circuit court for enforcement of the order. A hearing is then to be held. 'Upon such hearing the court may confirm, modify, or set aside the order of the commission and enter an appropriate decree.' When the WERC petitioned for enforcement of its order under sec. 111.07(7), the court had the power to review the decision and 'confirm, modify, or set aside the order.' Sec. 111.07(8) ² supports the position that sec. 11.07(7) gives the circuit court the power to review the commission's order. Sec. 111.07(8) states, '(t) he order of the commission shall also be subject to review in the manner provided in ch. 227 . . .' This sentence means that in addition to the review provided in sec. 111.07(7), a review under ch. 227 procedures is available; it is not exclusive as the WERC brief contends.

In Wisconsin Employment Relations Board v. Allis-Chalmers Workers' Union, 252 Wis. 436, 31 N.W.2d 772, 32 N.W.2d 190 (1948), the employment relations board petitioned the circuit court for enforcement of its order, and the court dismissed the order as being moot. On appeal this court held that the dismissal was improper because the question was not moot. The implication of this holding was that under sec. 111.07(7), Stats., it is proper for a circuit court to set aside an order of the WERC. This court did not reverse because the circuit court had exceeded its powers in setting aside the order, but because it had otherwise erred in setting the order aside. On remand, under sec. 111.07(7), the trial court had the duty to determine upon the record made before the board whether the order 'should be confirmed, modified, or set aside.'

In State v. Lamping, 36 Wis.2d 328, 339--40, 153 N.W.2d 23, 29--30 (1967), this court traced the history of ch. 227 as it related to sec. 111.07(7), Stats., and noted that although this section provided an exception to...