City cannot prohibit arbitration as an alternative in police
disciplinary actions
In a case of first impression, appeals court rules that the city cannot
bargain away employees' right to arbitration as an alternative
procedure in discipline cases.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
June 13,
2011 – In a collective bargaining dispute between the City of
Menasha and Menasha Professional Police Union Local 603, a Wisconsin
appeals court concluded that the Municipal Employment Relations Act
(MERA) permits bargaining as to dispute resolution procedures on
disciplinary matters.
However, the court in City
of Menasha v. WERC, 2010AP1799 (June 8), also clarified that if
parties bargain to use procedures under Wis. Stat section 62.13(5)
– disciplinary actions against subordinates – then MERA
requires arbitration as an alternative form of dispute resolution.
In negotiations for a 2009 bargaining agreement between Menasha and its
police department, Menasha wanted language to specify that section
62.13(5) procedures be used when a union represented employee appeals a
disciplinary action.
The police department’s union filed a petition with the Wisconsin
Employment Relations Commission (WERC), asking for a declaratory ruling
to clarify whether MERA prohibits bargaining on that subject. WERC
concluded that MERA does prohibit it.
WERC found that Menasha’s proposal would prohibit access to
arbitration as an alternative to dispute resolution, and Wis. Stat.
section 111.70(4)(mc)1 prohibits a municipal employer from bargaining
collectively with respect to “[t]he prohibition of access to
arbitration as an alternative to the procedures in s.
62.13 (5).” On appeal, the circuit court affirmed.
Appeals court judge Lisa Neubauer identified the issue as one of first
impression, and concluded that the “legislature’s plain
language makes the ‘prohibition of access to arbitration’ a
‘prohibited subject of bargaining.’”
The court agreed that MERA permits bargaining agreements that specify a
dispute resolution procedure, but requires arbitration as an alternative
if section 62.13(5) procedures are used. Under that section, a board of
police and fire commissioners decides disciplinary matters.
“[W]e recognize Wisconsin’s long history with police and
fire commissions,” Judge Neubauer wrote. “We also
acknowledge the City’s concern regarding the impact of §
111.70(4)(mc)1 on bargaining and local control, including the
possibility that it could reduce the role of the police and fire
commissions in this state, or, at the very least, create a procedure
involving two potential decision makers.
“However, we may not substitute our judgment for that of the
legislature; we may not rewrite the statute,” Judge Neubauer
explained.
