802 N.W.2d 531
Wis. Ct. App.2011Background
- Municipal employer City of Menasha bargained with the Menasha Professional Police Union over a successor agreement to 2007-08.
- City proposed maintaining § 62.13 review procedures for discipline; Union proposed arbitration as review.
- WERC declared the City’s proposal a mandatory subject of bargaining but ultimately prohibited under § 111.70(4)(mc)l. and upheld union position.
- Statutes: § 111.70(4)(c)2.b. permits alternative dispute resolution procedures including arbitration; § 111.70(4)(mc)l. prohibits bargaining to access arbitration as the exclusive or prohibited subject.
- Legislative history shows 2007 amendments overturning City of Janesville and allowing bargaining over dispute resolution procedures, with arbitration as a possible option if designated.
- Circuit court affirmed WERC; City appealed to challenge interpretation of interplay between §§ 111.70(4)(c)2.b. and (mc)l.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 111.70(4)(c)2.b. permits bargaining for dispute resolution procedures | Menasha argues the provision allows ADRs including arbitration | Union argues arbitration remains exclusive via § 62.13(5) if designated | Read together, they permit ADRs including arbitration but arbitration required if § 62.13(5) is designated |
| Whether § 111.70(4)(mc)l. prohibits bargaining to block access to arbitration | City says it prohibits only prohibiting access to arbitration | Union/City argue it bars bargaining on prohibition of access to arbitration | § 111.70(4)(mc)l. prohibits bargaining on access to arbitration as an alternative; must be harmonized with (c)2.b. |
| What is the proper effect of the interplay between § 111.70(4)(c)2.b. and § 111.70(4)(mc)l. | Statewide scheme should let arbitration be optional | Keep arbitration as possibility and prohibit exclusive reliance on § 62.13(5) | Arbitration is permissible as an alternative; if § 62.13(5) is designated, arbitration must be available. |
Key Cases Cited
- City of Janesville v. WERC, 193 Wis. 2d 492 (Ct. App. 1995) (overruled by later amendments; conflict with § 62.13(5))
- City of Madison v. DWD, 262 Wis. 2d 652 (2003) (police/fire commissions long history; context for MERA)
- Messer v. Hubbard, 267 Wis. 2d 92 (Wis. 2003) (statutory interpretation principles; context for harmonizing provisions)
- Bank of Commerce v. Waukesha Cnty., 89 Wis.2d 715 (Wis. 1979) (statutory interpretation; limits on rewriting statutes)
- Racine Educ. Ass'n v. WERC, 214 Wis.2d 353 (Ct. App. 1997) (standard of review for agency determinations; de novo in first impression)
- Milwaukee Bd. of Sch. Dirs. v. WERC, 2008 WI App 125 (Wis. App. 2008) (interpretation of MERA provisions; deference to agency in statutory construction)