Racine County v. International Ass'n of MacHinists & Aerospace Workers District 10, AFL-CIO

Kampen, Kevin B. Van Racine County Family Commissioner Court Family Counseling, Director of Court Petitioners-Respondents-Petitioners,

v. Association of Machinists International 10, AFL-CIO, Aerospace Workers District Respondent-Appellant.

Supreme Court 15, argument January No. 2006AP964. Oral June Decided WI (Also 312.) reported 751 N.W.2d petitioners-respondents-petitioners For there were by Foy, Amy Palmer, B. Kristi briefs Charles S. Nelson Bruchs, LLP, Michael Milwau- O. and Best & Friedrich argument by kee, B. oral Charles Palmer. by respondent-appellant For there a brief Abdul-Haqq, Robbins, Previant, Matthew R. Asmaa Goldberg, Brueggeman, S.C., Uelmen, Gratz, Miller & argument by Milwaukee, and oral R. Robbins. Matthew An curiae filed Andrew T. amicus brief was Phillips, Stadler, Stadler, Ozelie, RonaldS. GinaM. Phillips, Mequon, S.C., & on behalf of Centofanti Wisconsin Counties Association. CROOKS, PATRICK J. This is a review N. unpublished appeals1

an decision of the court of reversed and remanded an order of the Circuit Court County, Judge for Racine Wilbur W Warren III.

¶ 2. Petitioners, Racine and Kevin B. Van (Van Kampen), who is the Racine Family Family Court Commissioner and Director of Counseling (collectively, Services, Court Racine County), unpublished seek review of an decision of the appeals. appeals' court of The court of decision reversed and remanded the order of the Circuit Court for Racine County, Judge Wilbur W.Warren III of the Circuit Court County, presiding.2 Respondent for Kenosha is the Aerospace International Association of Machinists and (IAM). Workers, 10, District AFL-CIO This case centers properly on whether circuit court vacated the allegedly statutory arbitration award here that violated separation powers principles, law and constitutional and also whether the arbitrator exceeded her (2005-06)3 § considering under Wis. Stat. 788.10 Wis. Stat. 767.405 and the relevant case law. Wiscon- 767.405(lm) sin Stat. states that the circuit court judges county appoint, subject approval aof shall to the judge, family of the chief a director of court services. v. Int'l Aerospace Ass'n Machinists & Workers, 10, (Wis. 2006AP964, Dist. unpublished slip op. No. Ct. 2007). App. May

2Judge assigned preside Warren was over the case after all of the Judges Circuit Court for recused themselves. It is reasonable to infer from this fact the record they did so because there could be a conflict of interest perceived they matters, if ruled appoint on these because the authority judges ment of those clearly circuit court was involved , here. 3 All further references to the Wisconsin Statutes are to the 2005-06 version unless noted. otherwise employ responsibility a director then has legal family perform services, mediation

staff to study physical placement study custody services, and 767.405(2). specifi- § The statute Stat. services. Wis. may cally a contract "with the director states entity" provide private public person or or 767.405(2)(b).4 § required services. Wis. Stat. ap- of the court of the decision We reverse properly peals. circuit court vacated hold that the We contrary to statu- here that was the arbitration award tory § specifically 767.405, and to consti- Stat. law, principles. powers separation We also hold of tutional properly in this case was award that the arbitration her the arbitrator exceeded because vacated 788.10(l)(d) by considering § Wis. Stat. under § law. and the relevant case 767.405

I—I family court social In the autumn (LaFave), managers, Ju- Donald LaFave workers/case (Vuvunas) (Berndt), Janet Vuvunas Berndt dith possi- and were advised met with Van bility early layoff. and Berndt or LaFave retirement eliminated and that their would be were told working possibility after their that there was county a con- for the on as social workers retirement position be that her would was told tract basis. Vuvunas 767.405(2)(b) director § states that Stat. Wisconsin (3)(c) "[cjontract or person public under sub. shall any legal perform and to entity perform mediation private , study authorized un placement services custody physical (14)." num previously Stat. 767.405 der sub. Wisconsin 767.11, statutory language remains Stat. but bered Wis. unchanged. part-time accept that, if did not she

reduced to bumping rights part-time her for status or exercise county employee position, she would another full-time layoff placed decided not to on status. Vuvunas be position, accept part-time to a and she also elected not County's bumping rights. Indeed, her exercise (Gal- Director, Galbraith Human Resources Karen braith), hearing that testified at the arbitration Vuvu- voluntary layoff requested specifically a rather nas had county bumping rights, and the than exercise her granted request. Galbraith further testified Vuvunas1 bumping rights, no that, if exercised her Vuvunas had employee there would have been laid off because result, As a Vuvunas was available. vacant placed layoff status.5 The collective

on agreement in effect between Racine that was specifically IAM stated that it covered social and the family managers in the court. who worked workers/case Kampen Berndt, in met with LaFave and 5. Van Engel (Engel), John who was retired addition to county supervisor. Van advised social worker county had the three executive individuals statutorily-mandated provide him ser- directed entering contracts with social into individual vices managers.6 retired on December LaFave workers/case result of the Racine These moves were the family to move the court social Executive's desire worker/case levy layoffs elsewhere manager spare off of the tax county. in the by the repeatedly refers to "actions taken The dissent County's on "focusing our not

County" and also refers to director of attribut[ing] those actions to the actions and instead Dissent, services, are Kampen." 39. We family out with the director's plans were carried satisfied that circuit consultation with the approval and with the director's 30, 2003, and Berndt was on as a stay regular allowed until she reached retirement on employee age February 6, 2004. After at least the minimum of waiting one month after retirement that under required was Wis- consin law for former pension county employees services under contract with provide county, LaFave and Berndt entered into court ser- family counseling vices and agreements county started for the working 3, independent February 2004, contractors on 8, 2004, March Van continued to respectively. Kampen supervise independent contractors, these two who re- tained same duties and also entered pay.7 Engel into a similar agreement. services 8, 2004, 6. On March the IAM filed grievance against on matter Racine and the case County, proceeded 26, to arbitration on October 2004. The issue at arbitration was framed Arbitrator Janice Frank- judges for whom he worked. again We note that all of the Racine Judges Circuit Court recused from themselves this case. It is a reasonable inference from the record before us they that were involved in occurring regard all what was in Family Counseling Court group. Services stating,

The dissent also errs in "The arbitration decision Kampen's testimony and Van make it clear that it was the County, Kampen, required not Van the social worker Id., to be filled subcontractors." contrast to assertion, clearly dissent's the record before us shows that Racine did not Kampen dictate to Van how the County's filled. postarbitration to be Racine to the brief great length options arbitrator discusses at the various that Van Kampen statutorily- considered in order provide mandated services. This contradicts the dissent's assertion that exercising statutory authority. was not his retirees, LaFave, Berndt, Engel As were entitled to insurance, county health but the did pay employ not have to provide any ment taxes or other benefits. County had violated the collec-

man as whether agreement's provisions it entered when tive employees. agreements the retired into service bargaining agreement stated The collective bargaining represen- IAM "the sole and exclusive regular part regular full time time ... for all tative Family Managers who work Social Workers/Case Court January 19, ruled in arbitrator 7. On sustaining grievance.8 IAM, The arbi-

favor of the specifically that she made "no stated her award trator statutory interpret apply attempt... law." to either County had im- arbitrator concluded that Racine positions bargaining properly displaced from the three agreement. bargaining the collective unit violation of County replaced three found that Racine The arbitrator positions independent bargaining with contractors unit positions provided off services to take the who identical County levy. Racine the tax The arbitrator ordered continuing contracts, desist from the service cease and County entering prohibited from she also Racine any displace that would into new service contracts manager bargaining unit services social worker/case majority opinion spending for "a criticizes the The dissent determina explaining the arbitrator's paragraphs scant four state, Dissent, goes "The 42. The dissent then on to tions." ¶ to the actual given treatment abbreviated Id., The leaves a void." dissent decision of the arbitrator legal factual "ignor[ing] criticizes us for arbitrator's also asser Id., disagree with the dissent's determinations." 57. We proper because of the arbitrator's award tions. Our treatment Furthermore, in contrast to the the entire award was invalid. review is assertion, of the standard of application our dissent's powers exceeded her in the the arbitrator appropriate because Id., present case.

positions. Because the arbitrator found that LaFave specifically retired, and Berndt had she stated that the them, award not would reinstate which left both indi- along Engel, ability viduals, with without an to work for County. Racine This was so because the arbitrator ordered Racine to "cease and desist from con- tinuing existing Agreements [from] entering Service Agreements displace[d] into new which . . . positions required unit . . . ." The arbitrator also Racine damages to make the IAM whole for the that it dues), (including expenses had sustained lost its pursuing wages matter, and lost benefits and with- seniority. out a loss of petition

¶ 8. Racine filed a in the circuit February court to vacate the arbitration On award. granted County's petition 2006, the circuit court and vacated the award. The circuit court held that Van paid by county, but he was hired reported Judges and County, subject to the Circuit Court in Racine approval Judge

to the of the Chief District. The circuit court also held that Wis. Stat. 767.405(2) gave the director discretion on how to provide question, the services in and the director was positions county employees, free to fill the inde- pendent options. contractors, or a mix of both positions circuit court determined that the three were bargained for and that the by voluntary layoff. vacant virtue of retirements and a filling result, As a the director had discretion in these statutorily positions. Accordingly, mandated the union right positions, had no vested in the three and the posi- union could not tell the director how to fill the tions. The circuit court determined that the case was a separation powers case, and the arbitrator's award ignored by the ramifications of Wis. Stat. 767.405

516 statutory authority eviscerating director's and dis manager positions. cretion to fill the social worker/case that award, held that the which stated The circuit court any into service con the director could enter new meaning positions, fill rendered the statute tracts to (1) determined that: less. The circuit also supersede bargaining agreement could not collective statutory (2) authority; judicial the arbitrator's attempted award, so, to do was invalid because the which powers Wis. exceeded her under Stat. arbitrator § 788.10(l)(d). The circuit court relied on the decisions County, 2d 560, in Borland Eau Claire 216 Wis. 575 v. (1998), 691 v. Iowa N.W.2d Iowa Employees, 413, 166 Services Local Courthouse/Social (1992), 614, 2d 480 N.W.2d 499 Wis. Crawford (Ct. County WERC, v. 2d 501 N.W.2d 1993). App. appealed IAM the circuit court's decision. 9. The appeals circuit

A court of reversed the court's divided to and remanded the case the circuit court order award. The in reinstate the arbitrator's appeals held the circuit court had erred court of that vacating in matter of law arbitrator's award. a Judges S. Brown Daniel E Anderson and Richard Judge majority, and Neal dis- in the E Nettesheim agreed Judge circuit sented. Nettesheim her arbitrator had exceeded conclusion court's statutory by failing powers law. the relevant consider one was controlled the Iowa He saw this case as County position register probate decision, where the bargaining agreement. a collective was covered Judge dissent, Nettesheim stated: his by Wis. statutory authority Like the conferred Stat. appoint judge circuit 851.71 on the Iowa Kampen, acting register here director Van probate, agent judiciary, statutory as an has the 767.405(2)(a) employ under Stat. staff to provide statutory finally, the mandated services. And County judge, like the Iowa Van Kampen, director hiring authority, although employer. is not the Thus posed the question here is the same that in Iowa vacant, County became was Van —when Kampen bargaining agreement, bound collective statutory authority he free to his was exercise employ agreement? outside Iowa answers in favor of the latter. Aerospace v. Int'l Ass'n Machinists & of unpublished slip op., Workers, 10, 2006AP964, Dist. No. (Wis. 2007) May App. (Nettesheim, 9, 20 Ct. J., (footnote omitted).

dissenting) Judge Nettesheim was implicated separation powers satisfied that this case of given Kampen agent concerns, an judicial branch. petitioned

¶ 10. Racine and Van appeals' for case, review of court of decision this granted petition. and we

I—I reviewing 11. The standard an review when generally very arbitrator's award is limited. v. Lukowski (1994); Dankert, 149, 184 Wis. 2d 515 N.W.2d883 City see also 'l Madison v.Madison Police Prof Officers (1988). Ass'n, 576, 586, 144 2dWis. N.W.2d When reviewing award, court is an arbitrator's its function essentially supervisory in nature, ensure that the bargaining agreement to the collective received parties process they bargained. the arbitration for which Lukowski, However, 184 Wis. 2d at a court must overturn an arbitrator's award when the arbitrator 788.10(l)(d). § powers. Wis. Stat. or her his exceeded powers the when or her exceeds his An arbitrator "perverse misconstruc- either demonstrates arbitrator "positive the arbitrator misconduct," when or tion" illegal, manifestly disregards law, the award the when strong public policy. a the award violates or when omitted). (citations Lukowski, 2d at 184 Wis. is a this standard award meets the arbitrator's Whether de novo. Iowa question court reviews law, a which County, at 618. 2dWis.

i—Il—l 1—i court the circuit is whether 12. The first issue in this case. properly arbitration award vacated statutory allegedly law both violated award arbitration principles. powers separation of and constitutional County argues that Racine review, 13. On statutory improperly with conflicted award arbitrator's separa- implicating constitution, thus and with the law County that powers principles. contends Racine tion of powers separation here undermines the award by voiding contracts Stat. 767.405 set forth Wis. judicial representative director, a that by prohibiting statute, into under branch, entered any contracting social other director from statutorily-required services, provide workers county ordering, union and instead, that the employment negotiate of social for the workers/case managers. County argues that the arbitra- also 14. Racine County erroneously stripped Circuit Racine

tor designated through ability, Judges their their Court provide the workers with social director, to contract argues statutorily-mandated Racine services. improper action this a because collective agreement, an arbitrator's award that interprets bargaining agreement, may the collective trump statutory authority, such as Wis. Stat. 767.405. argues also that the arbitrator's award substantially impacts families in Racine be- voiding cause award has the effect of hundreds of appointed family court orders that the three court managers specific social cases. As workers/case County family system result, the Racine will be disrupted change operations, this wholesale in its custody placement and child decisions will be indefinitely delayed appeals' if the court of decision is County argues not reversed. Racine the circuit properly court vacated the arbitrator's award. argues On review, 15. the IAM the findings arbitrator's factual do not conflict with the statutory authority judiciary's director's or the consti- authority. tutional The union also asserts that the present separation powers award does not of concerns simply prevents because it from relabel- ing employees independent contractors to evade its obligations bargaining agreement. under the collective result, As a the IAM claims that the arbitration award here be cannot overturned court, the and the union appeals also contends that the in the of court upholding was correct the award. For the reasons below, discussed in detail we properly

are satisfied that the circuit court vacated the contrary arbitration award here because it was statutory specifically § law, 767.405, Stat. and to separation powers principles. constitutional of Statutory authority responsibilities are provided Kampen, in Wis. Stat. 767.405. Van circuit and the director, judges, an court agent is are statutory authority responsibilities director's of the circuit court supervision carried out under be result, improp- a the arbitrator's award here judges. As erly judicial statutory authority invaded the branch's agreement 767.405. A collective bargaining under branch statutory, judicial authority cannot such trump doing powers so would violate separation because may A not bargaining agreement collective principles. branch. abrogate statutory judicial a function bargaining agree- Any provisions such collective ment are invalid and unenforceable.9 County, Eau 216 Wis. 2d We note that Borland v. Claire (1998), distinguishable 560, present from the 575 N.W.2d 691 premised powers on Borland was the inherent case because statutory judicial branch, governing not on a conflict Borland, judges had In this court held that circuit law. "exclusive, prevent inherent constitutional way of a judicial removal of their assistants unilateral county govern agreement [a] collective between contrast, present Id. in the employees." ment its at 565. case, implicate award did the inherent the arbitration Instead, award in judicial branch. the arbitration powers of § 767.405. present case conflicted with Wis. Stat. recent Kocken decision also is We further note that our present v. Council distinguishable case. Kocken Wis. from 72, 266, AFSCME, 2d 828. In 2007 WI 301 Wis. N.W.2d Kocken, authority, have county held sheriff did not the we that a to bargaining agreement, hire and fire contrary to a collective Id., county jail's food service. personnel provided the who the immemorial, a right held that was "not time We so because duty and distin important and that characterizes principal, sheriff," and, result, ability as a that guishes [the] the office of powers." Id. The constitutional was "not within the Sheriffs authority regard in to given hiring firing sheriff was not therefore, and, by either, subject personnel he was such statute agree- bargaining collective to the of the relevant restrictions emphasized Judge ¶ 18. As in the dissent of appeals' by in the decision, Nettesheim court of and also Judge in decision, Warren the circuit court's we are very satisfied that this case is to similar our decision in County. County decision, Iowa In our Iowa we held that bargaining agreement supersede a collective could not a judge's statutory authority appoint circuit court to a register probate. County, in Iowa 166 Wis. 2d at 618. position register probate in in was included the union-represented bargaining unit. Id. at 617. When position authority vacant, became the under con- by judge 851.71, ferred Wis. Stat. appointed the circuit court register probate, posting

a in new without vacancy by required bargaining the agreement. the collective County, agreed

Id. Iowa we the bargaining circuit court and a held that "collective agreement supersede statutory authority cannot the given judge." to the circuit at Id. 618. This court pointed judge, out a circuit court while he she is authority, hiring county employee the a neither nor agent county. an result, the Id. at 619-20. aAs a judge municipal circuit court in does not act employer's Consequently, role. Id. we stated that a judge party circuit court "is and cannot be by provisions bound of a collective agreement [the union] entered into Iowa purport[s] regulate appointment which of a (footnote omitted). register probate." in Id. at Id. distinguishable because, ment. This case is from Kocken in case, present power question statutorily given judicial branch Wis. allegedly Stat. 767.405 was not Kocken, power. result, a constitutional As a unlike in the present case, legislature, 767.405, § gave judicial positions by branch to fill the using relevant independent contractors. analogous at In a manner to the statute issue § gives County, the director

in Iowa Wis. Stat. 767.405 employ provide the to staff to services the though by even the social statute, the mandated question manager positions in were covered worker/case bargaining agreement.10 by Similar to the a collective judge County, in Iowa Van was circuit court acting exercising judiciary's agent the and was employ statutorily-given authority hire staff to statutorily-mandated provide Ka- the services. Van County judiciary, mpen, agent of Racine as the the bargained statutorily-granted away rights cannot have agreement. through bargaining Also similar a collective County, Kampen, judge to the circuit court in Iowa authority, municipal hiring employer anot while the is 111.70(l)(j). § result, director, As under Stat judicial representative branch, is not who is a bargaining agreement by when the collective bound statutory authority exercising fill vacated positions. decision We are satisfied our by present is our earlier Iowa case controlled decision. present that the case 20. We also are satisfied

analogous appeals' decision Crawford County, County, 2d at 66. 177 Wis. Crawford reasoning appeals of our Iowa court of extended being enacted 1987 Wis. Prior to Wis. Stat. 767.405 managers employed by here Act the social workers/case agreement, pro under the collective by the statute. As viding services similar to those now covered County at attorney representing Racine oral discussed was enacted, court, these argument this when 767.405 before services, did provide such but then so employees continued to family of the director of court services. supervision under the challenge historical attorney union did this representing the recitation.

County encompass authority decision to "the register appoint of deeds and the clerk of court to and discharge deputies County, their . . 177 Crawford appeals 2d result, Wis. at 69. As a the court of over Employment turned a Wisconsin Relations Commission (WERC) upheld, mandatory decision that had as a subject bargaining, proposal of the union's "to include appointed deputies County Regis of the Crawford ter of Deeds and Clerk of Circuit Court. . . under all bargain terms and conditions of the union's collective ,"11 ing agreement. appeals . . Id. at 68. The court of reached that decision because the clerks of the circuit empowered appoint deputies courts were to their under 59.38(1) § county registers Wis. Stat. and because the of authority § deeds had similar under Stat. Wis. 59.50. Id. gave power at 71. Both those statutes officials the to appoint deputies pleasure. who would serve at their Id. overturning appeals decision, the WERC the court of proposal effectively held that the union's would abro gate statutory authority. the officials' Id. at 73. As a result, the WERC decision valid because it did merely statutory appointive "not restrict officials' powers, transfer[red] it to them others." Id. at 75. We present are satisfied the arbitrator's in award similarly abrogate statutory case would the director's agent judges of the circuit court and must, that the therefore, arbitrator's award be vacated. held, however, that whether Crawford position the administrative clerk attorney's law the district office should be included under all of the terms and conditions of bargaining agreement mandatory the collective subject was a WERC, v. bargaining. 2dWis. Crawford (Ct. 1993). 68-69, 501 App. N.W.2d 836 The court so held because, positions, unlike other two specific there was no gave attorney statute a ability appoint district an Id. at 71-72. deputies who would at pleasure. serve his or her § Stat. 21. We are satisfied that Wis. 767.405 agreement bargaining cannot be harmo- the collective the IAM contends. The collective nized, as agreement, that resulted from the arbitration award away specific statutorily-granted attempt it, take agent rights as the of the Racine director Judges. noted, Stat. As we have Circuit 767.405(lm) family court ser- creates director judges position directs the circuit court each vices subject county, approval judge, to of the chief 767.405(2)(b) appoint the director. Wisconsin Stat. person permits director to "with then contract private entity perform public to mediation and to any custody placement study legal physical perform and statute services ..." that the authorizes. statutory authority pursuant

¶ 22. It to this Kampen Berndt, LaFave, and that Van contracted with original Engel after eliminated three Racine judicial statutory right positions. hire, It is this to a agent, bargaining agree- branch collective which erroneously attempted ment and the award arbitration away Any provisions Kampen. take of from agreement attempt that to take collective away statutory authority invalid and unen- such are by ordering essence, the director to cease forceable. independent using desist from the current contrac- any independent contractors, the arbitra- tors or future authority separation of exceeded her and violated tor powers principles by putting jeopardy effective

into including functioning judicial apparently branch, of County family pending more than 450 Racine matters.12 oral figures presented at This issue and these

argument court. before this

¶ 23. Because of the directives Wis. Stat. § merely dispute 767.405, this case is a contract between IAM, and the and this case separation powers raises substantial concerns. Van Kampen agent judicial is an branch, of the and Wis. Stat. 767.405 vests discretion in him on how to deliver statutorily-mandated Kampen services. If Van had initially question clearly filled the here, he independent could have used contractors. The bargained-for positions, they were not were created Accordingly, statute. the circuit court was correct in holding that Van "had the under the employees statute to either hire work, do the con- tract out to do the work or to combine the two methods providing subject only services in discretion, his oversight Judiciary appointed him." requirement There is no in 767.405 that the services provided by county employees, be subcontracting clearly allowable under the statute.13

13The argues dissent "layoff, therefore, Vuvunas' [was] a 'direct result of subcontracting.'" Dissent, such The record before us on review shows that the dissent's contention is erroneous. As we noted previously, Racine County's postarbitration brief, which is in the record before us review, on indicates that County's Racine Human Resources Director, Galbraith, Karen testified at the arbitration hearing that requested "Ms. layoff Vuvunas a voluntary rather than exercise her bumping rights. request granted. That If Ms. Vuvunas had bumping exercised her rights, no employee would have been laid off because there were positions vacant available." The record before us on review also shows that Galbraith further testified at the arbitration hearing "that there were positions vacant available [all into which three] employees could bumped, have which would have resulted in layoffs no occurring as a result eliminating positions." these

526 the empty positions of whether 24. Regardless circuit court or layoff, of retirement because occurred director, statutory had the agent, their and judges had the services, they the relevant duty provide manner any fill the positions statutory Stat. 767.405 the statute. Wisconsin under allowable fill the is authorized to that the director say does not vacant, and to they are only when relevant contrary a manner be in such would the statute interpret into the statute and would read meaning plain to its Kalal v. State ex rel. is not there. See that language 46, 58, Dane 2004 WI County, Court Circuit for also is con analysis 110. This 633, 2d 681 N.W.2d Wis. v. Winnebago County See additional case law. sistent with Ass'n, 196 Employees Courthouse Winnebago 1995). (Ct. 733, App. 2d 540 N.W.2d of appeals the court County, In Winnebago have contrac- might employees represented held the record facts from Accordingly, the aforementioned indicate, does not situation of Vuvunas us on review before situations distinguishable from the legally appear to be rights bumping individuals had Berndt. All three LaFave they could agreement collective under have used those exercised, apparently could and Vuvunas have county position but chose another full-time rights to obtain County noted at oral attorney for Racine to do so. As the not discharged. or been fired would not have argument, Vuvunas any make grieve or Indeed, apparently did Vuvunas July voluntary layoff. In its her objections whatsoever stated, "As a court, the circuit 2005 brief to (Butch) husband, record, Emmanuel her public matter of the same retired at around Vuvunas, County judge, a Racine objec- make grievance in the participate did not time. She her it fit layoff, presumably because voluntary to her tions deter- court decision The circuit goals the time." personal at virtue were vacant three mined that layoff. voluntary retirement rights employment, rights

tual related their but such guarantee specific position do not include a of a over judicial appointment which the branch maintained power. removal Thus, Id. at 741. while a circuit court employment person clerk could not terminate the of a in judicial position following of a assistant without bargaining agree- conditions and terms of the collective judicial ment, the assistant could be removed from that position position subject because the itself was to the appointment power judicial and removal branch. appeals right Id. at 736. The court of stated, "Acourt's appoint entirely remove and a staff member anis differ- subsequent ent issue than the termination of that staff employment." member's Id. at 741. The court then held right that a "court's to remove members from his or her subject bargaining." staff is not to collective 741, Id. at n.4. appeals' 26. We are satisfied that the court of County

decision in v. Claire AFSCME 2223, Local of Eau (Ct. 1994), App. 190 Wis. 2d 526 N.W.2d802 does holding County not conflict with our here. The Eau Claire decision involved the Eau Claire Clerk of County Register Court and the Eau Claire of Deeds deputizing "virtually every employee respective in their alleged attempt exempt employees offices" an those coverage bargaining agree from under the collective present employees ment. Id. at 300. Unlike the case, the in the employees continuing Eau Claire decision were being deputized, who, other than did not see any change employment in their status. Id. The voluntary layoffs, Claire decision did not involve ofEau any questions retirements, or on how were to be filled. County's 27. We are satisfied that Racine rea- terminating question

sons for are not here. Racine issues Whether legal relevant in for fiscal the question eliminated the fact that otherwise, change it does not reasons Racine was on behalf of the acting Van who Kampen, author- statutory Court had the Judges, Circuit staff to replacement perform to hire needed ity any of the family duties and functions statutorily-mandated court services agency. in noted his aptly 28. As Nettesheim Judge in the court of appeals:

dissent 767.405, § the trial court Based on Wis. Stat. saw merely dispute as a contract between the this case not county, as a case that raised union and the but also correctly separation powers concerns. The court agent serves as an observed that director Van government and that judicial of the branch of director as to how the statute vests discretion by the statute should be delivered. services mandated correctly initially filling The court noted that when also issue, Kampen could have used at employees and that the actu- independent contractors this, From ally "bargained positions." hired were not for the Director had the author- the court concluded "that employees hire to do the ity under the statute to either work, or to combine the two contract out to do work discretion, subject providing services his methods Judiciary appointed only oversight him." 2006AP964, slip op., unpublished No. County,

Racine Judge (Nettesheim, J., agree We dissenting). 17¶ Warren, of Judge as that analysis, Nettesheim's well on this issue. the circuit court we hold summary, it here, because the arbitration award vacated

properly to constitutional law and contrary statutory principles. separation powers

IV ¶ 30. The second issue is whether the arbitration properly vacated, award was because the arbitrator § exceeded her considering under Stat. Wis. 788.10 Stat. 767.405 and the relevant case law. County argues review, 31. On that the authority by improperly

arbitrator exceeded her garding disre- specifically law, Wis. Stat. 767.405. Racine also contends that the in the court of appeals by misinterpreting scope erred the of its review § County argues under Wis. Stat. 788.10. Racine majority improperly limited its review to whether reasonably interpreted the arbitrator contract, and County implications Racine contends that of § by 767.405 should have been addressed the arbitrator. County argues majority's Racine that the refusal in the appeals statutory court of to consider the issues in- effectively § volved this case voided 788.10 because meaningless that statute would be if the courts were considering statutory provisions restricted from such determining when an whether arbitrator exceeded his powers. County or her Racine contends that the arbi- manifestly trator exceeded her disre- garded impact the law when she failed to consider the § County argues result, 767.405. As a Racine that the properly circuit court vacated arbitrator's award. argues appellate ¶ 32. On review, the IAM that an findings, is bound an arbitrator's factual which, in this case, the IAM claims "that engaged Racine executive in a scheme to mis- classify employees 'independent contractors' to evade [collective bargaining] agreement." result, As a argues majority appeals union that the in the court of limiting scope review, correct in of its and the argues the arbitrator's failure to IAM also consider exceeding § did in her Stat. 767.405 not result her Wis. authority. The IAM contends that the in the appeals upholding court of was correct the arbitra- tion award.

¶ 33. are satisfied that the arbitration award in We present vacated because the arbitrator case must be 788.10(l)(d) § powers exceeded her under Wis. Stat. she failed to consider Stat. and the when 767.405 primarily law, relevant case the decisions in Iowa County. Specifically, the award here must Crawford be vacated because the arbitrator exhibited manifest disregard by making attempt apply for the law no statutory interpret law, the relevant 767.405. there indication" that the dissent's assertion that was "no statutory "separation powers argu- raised is not ments until the case reached the circuit court" County's postarbitra- Dissent, accurate. 48. Racine County stated, "Mr. arbitrator, tion brief to the testimony Kampen's further indicated that stat- through types fees, three ute the services are funded ability in the and that there's a substantial difference by whom] [depending on the services are use these funds added.) being (Emphasis provided It must be em- ...." candidly phasized in that the arbitrator admitted her attempt... interpret "no to either award she made apply statutory law." 788.10(1)(d) § above, As noted Wis. Stat. we requires a court to vacate an arbitrator's award when powers. An arbitrator the arbitrator exceeds his or her powers demon- exceeds his or her when the arbitrator " 'positive 'perverse or" either misconstruction'" strates manifestly misconduct,'" the arbitrator disre- when gards illegal, law, when award is or when strong public policy. Lukowski, award violates a (citation omitted). satisfied, 2d at 149-50 Weare as law, a matter of that the arbitrator's award failed required meet the standard. awards, Arbitration such they here, as the one must be vacated when conflict governing law, as set in constitution, forth interpreting statute, or the case law the constitution or at a statute. Id. 152-54. The arbitration award here § governing conflicts with law Wis. Stat. 767.405. majority appeals 35. The the court of erred failing fully, allegedly falling to consider outside of scope statutory review, its issue that Racine County properly majority raised. The in the court of appeals erroneously limited its review to the collective bargaining agreement's grounds terms on the that the arbitrator had limited her review to the terms of the bargaining agreement. collective in the appeals approved court of also erred when it of the fact statutory the arbitrator had not considered County presented. and constitutional issues Racine summary, we hold that the arbitration present award in the case must be vacated because the arbitrator exceeded her under Wis. Stat. 788.10(l)(d) § considering Wis. Stat. 767.405 and the relevant case law.

V ¶ 37. We reverse the decision of the court of appeals. properly hold that the circuit We vacated contrary the arbitration award here that was to statu- tory specifically law, 767.405, Wis. Stat. and to consti- separation powers principles. tutional We also hold properly in this case that the arbitration award was because the arbitrator exceeded her vacated 788.10(l)(d) by considering under Wis. Stat. § 767.405 and the relevant case law.

By the Court —Reversed remanded to the cir- necessary for all actions that are consistent cuit court opinion. with this {dissenting). BRADLEY, 38. ANN WALSH J. The majority

error of the lies in what it avoids. This case process The of elimi- involves two actions. first is nating positions. three social The second is worker entering statutory responsi- into to fulfill the contracts bility providing though social work. Even the first eliminating positions, process action, the is the award, of the arbitrator's neverthe- basis only less addresses the second.

¶ 39. This case stems from actions taken County. majority, focusing however, The avoids on the County's those actions and instead attributes actions family Kampen. As a services, the director of result, it subordinates the actions of directors to the County. demands of the Finally,

¶ 40. this case involves an arbitrator's County employee, Vuvunas, determination that a laid in direct of a collective off violation why agreement. majority, explain however, fails to despite vacating error, the arbi- determination tration award. By failing process

¶ 41. to address the which attributing- positions, eliminated the three County's Kampen, failing actions to Van layoff, majority ignores the stan- address Vuvunas's dard of review and the determinations of arbitrator Despite its claim of that this court should not disturb. rights family protecting of court ser- the of directors majority's agents courts, the vices, who are of the circuit ultimately rights subordinates those to the decision County. respectfully

I therefore dissent.

I—I Despite ¶ decision, the fact that the arbitration coupled bargaining agreement, pro- with the collective majority spends case, the a vides the factual basis of this paragraphs explaining the arbitrator's deter- scant four majority op., ¶¶ minations. See 4-7. It nevertheless argues that the arbitration award should be vacated authority "the exceeded her and because arbitrator vio- separation powers principles." ¶ Id., lated 22.1 majority The explains its limited treatment of the facts ignore legal its the and decision to arbitrator's factual following determinations as from its determination that "the Majority op., invalid." we entire award is n.8. reason ¶ carefully legal review all of the arbitrator's factual and deter minations is to determine whether the award is valid. The majority's explanation simply very assumes the to the answer question before the court. taking by Rather than the facts as determined below (the arbitrator), majority

fact finder has decided to instead recusal, judges' find its own "facts." From the circuit majority Kampen makes a factual determination that Van judges. Major- consulted with each of the Racine circuit ity op., Kampen's 5 n.6. From consideration "various ¶ options" subcontractors, majority in how to fund concludes Kampen did not dictate to Van that be eliminated and filled must subcontractor From employee. Kampen rather than an Id. the fact that Van hearing, majority mentioned at the a statute arbitration actually presented concludes that the arbitrator was with the statutory complex questions and constitutional at issue here. Id., majority Kampen

¶ 43. The maintains that Van 767.405(2)(b)2 acted under the when he Engel, Berndt, LaFave, "contracted with after Ra- original positions." three cine eliminated the Majority op., according director, 22. The to the ma- jority, bargaining agree- "is not bound the collective exercising statutory authority ment when to fill the positions." Id., vacated 20. Because Van pursuant statutory authority, acted to this bargaining agreement contends the "collective attempted away the arbitration award . . . to take from Kampen" "statutory right Van to hire" the social ¶ Id., workers. 21. consequences

¶ award, 44. The of the arbitration according majority, to the It are dire. asserts that the Engel] [LaFave, Berndt, award "left ability an without County." doing ¶ Id., to work for Racine 7. In so "put[] jeopardy the arbitrator tioning into the effective func- judicial ¶ Id., of the branch." best, majority equivocal. At the evidence cited importantly, More the facts found are in dispute. constitutionally permitted This court is not make to dispute, except factual determinations where the evidence inis jurisdiction appropriate original proceedings. in Wurtz v. Fleis chman, 100, 3, (1980); 97 Wis. 2d 107 n. 293 N.W.2d 155 Wisconsin, WI 109, 30, 283 Hatleberg v. Northwest Bank ¶ appropriate 2d The 700 N.W.2d 15. course would be to findings making remand for further factual rather than those findings here. 767.405(2) (2005-06) provides Wisconsin Stat. that the family director of shall: services (a) Employ perform perform any legal staff to mediation and to custody physical placement study services .... (b) (3)(c) person public private Contract under sub. with a or entity perform perform any legal custody mediation and to physical study placement services .... given by ma- treatment 45. The abbreviated jority actual decision of the arbitrator leaves to the background of this case I therefore describe the void. more detail. According decision, the to the arbitration order to decided eliminate levy director, the tax and informed

take them off major- Kampen, in mid-2003. As the of its decision Van ity notes, in the of 2003 LaFave and Berndt were fall being eliminated and that their informed being position her reduced was told that Vuvunas part-time and that she could choose to exercise status bumping rights laid Neither LaFave nor or be off. they they planned did until Berndt had to retire when plan positions. to eliminate their learned county advised them that 47. Van statutorily provide directed him to executive had by entering contracts. services into individual mandated County negotiated agreements LaFave service provide social work after their retirement. and Berndt to County corporate counsel, Ka- At the direction of setting liability corporations mpen up limited discussed them. After LaFave and Berndt retired and came work, off, after Vuvunas was laid the Union back to and right grievance pursuant its under the collec- filed a bargaining agreement. parties tive submitted to the as a contract issue. Because the arbitration of case parties issue, limited submitted a contract the arbitrator parties' contract, and did her award to the terms of the stray positions argued by parties the the into not from statutory the of law. There is no indication that the area County separation its Stat. and of raised Wis. 767.405 powers arguments until the case reached the circuit court.3 argued County 49. The Union that the violated bargaining agreement

the terms of the collective and "engaged subterfuge resulting performance in a performance pursuant unit work to indi- improper lay-off. vidual contracts and ..." It also as- County's serted that the discussions with LaFave and 3 The majority inexplicably asserts that "the arbitrator had not considered statutory and constitutional issues Racine County presented." Majority op., text, 35. As noted in statutory and arguments constitutional presented the arbitrator. The "evidence" majority adduces as support is a reference Kampen's to Van testimony in County's postarbitration brief to the contesting arbitrator the award. However, that brief only concerns dispute the contract makes no mention of the statutory separation powers arguments here, at issue indicating that the did not raise those issues to the Additionally, arbitrator. the brief discusses (in Kampen's statute) testimony which merely he mentions a part argument of its that the did not violate the terms bargaining agreement. collective Rather than demonstrat ing County presented that the statutory separation powers arguments arbitrator, to the the evidence adduced indicates that presented only contract issues.

Moreover, the majority takes the arbitrator to task for her statement that she attempt... made "no interpret to either or apply statutory Majority op., law." incorrectly 33. This ¶¶ describes the arbitrator's statement. She explicit parties presented had question, her with a contract and that the parties argued had not statutory on the basis of law. It is in that context that the arbitrator "Accordingly, wrote: the Award made here entirely takes its essence parties' from the Contract. There attempt is no interpret here to either apply statutory law."The majority's implication that the simply ignored arbitrator statu- tory parties law that the presented had is therefore unfounded. subcontracting regarding individual constituted

Berndt agreement bargaining in- bargaining. collective The "County providing recognition the that clause cludes a bargain- recognizes and exclusive as the sole the Union Manag- ing representive .. Social for all. Workers/Case County ...According Union, the orches- the ers by negotiating LaFave the retirements trated individually. Berndt County not vio- that it did maintained bargaining agreement and that

late the collective lay-off of and the and Berndt of LaFave retirements argued voluntary. its It further Vuvunas did not constitute and Berndt with LaFave discussions promises contracts. for future County that the determined The arbitrator positions displaced improperly and violated three agree- bargaining provisions of the collective several subcontracting recognition including ment, positions provisions. further determined She instead that eliminated, but had not been [the] simply "replaced unit had provided under individual identical service with the "narrowly Despite fact that contracts." sub-contracting," topic upon the arbitra- focused agreements entered service that the tor determined Engel "are not sub-contracts" LaFave, and Berndt, temporary provide they new or "do not insofar as being provided supplemental to that service or service by bargaining part members." unit according positions, arbitrator, to the ¶ 52. The truly Instead, the arbitrator eliminated." "have not been agreed orchestrated Union that the with the they were retirements and that Berndt's LaFave's and County's to enter service offer to retire motivated agreements their Their work and with them. change. They responsibilities, had did not the same had supervisors, provided space the same were office in the supplies, area, to same continued receive office main- relationship employ- tained the same work other with compensation, pro- ees, received the same did not anyone County. their vide services to other than the Colleagues and did co-workers not know that LaFave's employment changed. and Berndt's status had respect Vuvunas, 53. With the arbitrator de- termined that if even LaFave's and Berndt's retire- independent County's ments were actions, "Vu- plainly deprived opportunity fully vunas was of an to be employed position" in her Court Services Social Worker by agreements. the service This action was direct bargaining violation of 27.07 of Article the collective agreement, provides part: which in relevant County

27.07 Racine right reserves the to subcontract any normally bargaining employees, work done unit but no unit bargaining employees will be laid off or have their hours normal reduced as a direct result of such subcontracting. . .. determining County

¶ 54. In that the violated the agreement, testimony the arbitrator relied on Kampen, "unequivocally Van who testified that he had County directed been to enter Executive into provide statutorily Contracts with individuals to required levy.'" Kampen service 'off the Van further County's light testified that in decision "he was regard very concerned service how the would be provided." being addition worried about how to provide when the him services informed plan, its testified that he not know di$ going provided how services were to be after the expired 2004, contracts on December less than one changed year from after the positions. positions to contract unit award for violations 55. The arbitration longer or enter could no continue displace bargaining positions: agreements unit continuing from shall cease and desist Agreements entering into new existing Service Agreements displace Court Social which Services Manager bargaining unit consis- Worker/Case Opinion. The Union and its members tent with this been damages made whole for which have shall be including dues, expenses pursue loss of to sustained matter, of benefits loss wages this and loss and without seniority. of specific remedy was forth because the arbitrator

No set the extent the Union's had insufficient evidence of of damages. cautious as not The arbitrator was so remedy impossible [] im- or "fashion a which is either practical implement." noted The arbitrator instead perhaps require "will discussion award negotiation parties." between the some

II. majority Although cites the standard ignores application review, of it that standard. of reviewing is role cases The courts arbitration arbitrator's limited, and courts "will not overturn the v. mere errors or Madison decision for of law fact." Ass'n, 576, 2d Madison 'l Police Officers Prof (1988). only do when 586, 435 N.W.2d 8 It will so "perverse positive misconstruction or misconduct disregard plainly if established, or there is manifest strong illegal law, the public policy." or if the award itself is violates (citing Bd. Dirs. v. Id. Milwaukee Sch. Ass'n, Milwaukee 415, 422, Teachers' Educ. 93 Wis. 2d (1980)) (internal omitted). punctuation 287 N.W.2d131 Despite ¶ 57. this standard of substantial defer- majority ignores ence, the nevertheless the arbitrator's legal factual and determinations. It instead bases its arguments on claims that belied are the arbitrator's findings.

A begin, ¶ 58. To fails to address the process basis of the arbitrator's decision—the of elimi- nating positions. It that Van asserts acted original "after Racine eliminated the three positions" positions" filled "vacated with contrac- Majority op., ¶¶ tors. basis of the arbitra- really award, however, tion is that the did not eliminate the and then subcontract for the Instead, services. the arbitrator determined that intact, LaFave, Berndt, remained Engel doing the same work under the same conditions performed as before. eliminating process Thus, 59. it is the of the Engel LaFave, the fact Berndt, that

were not true that is the of subcontractors basis the respondents' arguments. arbitration award and the The prospect arbitrator's decision does not address the that legitimately eliminated or vacated could be Indeed, filled with the to subcontractors. Union admitted "[ujnder bargaining the agreement, during layoffs the circuit court that collective subcontracting."

there can be question prior is Further, there no to the events County here, LaFave, Berndt, and em- Vuvunas were ployees subject bargaining agreement. to the collective point argument. at oral conceded majority, simply however, has assumed 60. The of the heart the arbitration

that the determination at (i.e., properly did not eliminate that the award providing expla- positions) an incorrect the is without question issue, not at It then answers a that is nation. namely, respondents contest, do not and which legitimately can fill the director subcontract whether positions. eliminated fact, the conclusion that the In arbitrator's

County's attempt improper are an to circumvent actions bargaining agreement supported is the collective appeals decision in Eau Claire court of v. of (Ct. App. AFSCME, 2d 526 N.W.2d 80 190 Wis. 1994). register county clerk of court and that case deputized employees, argued their that the deeds exempt employees therefore from a bar collective § agreement negotiated gaining under Wis. Stat. 111.704 ground employees deputized had that the been on §§ pursuant The court Stat. 59.38 and 59.50.5 exempt appeals that such an action could determined bargaining agreement employees from collective attempt subterfuge. only when the action not an at at 306. Id. Similarly, arbitrator here determined County's

that the orchestration of the retirements and agreements merely attempt an to circum- service bargaining agreement. if Even vent collective 767.405(2), § arbitration award would conflict with §111.70 forth the framework for Wisconsin Stat. sets municipal employment context. collective provides for the clerks of circuit Wisconsin Stat. 59.38 deputies, provides Stat. for appoint courts and Wis. 59.50 registers appoint deputies. deeds to statutory exemption Claire, under Eau applies only subterfuge. where there is no ¶ distinguish 63. The tries to this case ground from Eau Claire on the employees continuing employees in that case "were being deputized, any change who, other than did not see employment Majority op., in their status." It difficult to discern the basis for that distinction, specifically arbitrator determined that, other than be- ing change contractors, LaFave and Berndt saw no employment performed their status, but instead had work, the same offices, the same for the same supervisors, compensation. and for the same

B By failing ¶ 64. on focus the actions of the attributing and instead those actions to Van Kampen, majority opinion again ignores par- arbitrator's factual determinations. This error is ticularly pernicious, ultimately as it subordinates the Kampen, agents actions of directors like Van who are judiciary, to the demands of counties. Kampen's 65. The arbitration decision and Van testimony County, make it clear that it was the not Van Kampen, required the social worker to be prior filled subcontractors. A decision had been made provide statutorily required social services with bargaining employees.6 unit There is no indication that personnel provid- wished to have different majority notes, As the prior 767.405, to the passage §of the services provided by the County with bargaining unit positions. After the passed, statute was the director decided to providing continue employees services with the in the positions. Majority unit op., 19 n.10. by provided ing the services or to have the services County employees. than rather subcontractors County that decided the fact, it the was only positions eliminated, and after so decid- be would Kampen. ing decision The arbitrator's Van informed Kampen the did not welcome that Van indicates changes by required con- the new directive. He was provide the the under new to services cerned about how majority's suggestion Contrary regime. that he to the statutory authority," "exercising. Van .. was (i.e., by by the "directed the forced was Executive") longtime rather than his contractors to use provide employees to the services. directing the that 67. Given majority puzzling that case, it is

actions in this rights protect purports and the of the director to major- vacating judiciary by award. See the arbitration majority agree, ity op., parties ¶¶ The 21-22. 767.405(2) § acknowledges, the director that under County employees, positions inde- fill the with free to pendent mix A director chose contractors, or a of both. 767.405(2)(a) pursuant initially employ persons to to County employees, positions by filling by requiring County superceded Van Ka- that choice pursuant only by provide mpen contract the services to 767.405(2)(b). § appear in note 10 majority

The facts set forth later. paragraphs a few that it makes conflict with the assertion initially positions filled the Kampen had "[i]f that It states independent here, clearly could have used question he positions, and bargained-for The contractors. The fact Majority op., created statute." they were use his discretion to director chose to exercise remains provide the services. unit majority ¶ 68. The has in effect let counties con- statutory rights of under 767.405, strain the directors apparently believing protected while that it has them. been misled. It is not has the collective bargaining agreement and the arbitration award "abrogate statutory authority would the director's agent judges." Majority op., of the circuit court County. ¶ 20. It is the

C majority disregards ¶ 69. The also the arbitrator's concerning layoff decision of Vuvunas. The arbitra- tor determined that Vuvunas was laid off direct bargaining agreement. a violation of majority collective The respect Vuvunas, vacates the award with explain why but fails to the arbitrator's determination inwas error. County's

¶ 70. The that the arbitrator determined plainly deprived opportunity actions Vuvunas of the fully employed subcontracting, be due to the and that this "in direct violation of Article 27.07 of the Bargaining Agreement." Collective This determination straightforward interpretation the arbitrator is a bargaining agreement. Thus, the collective it is a deter squarely mination that au within the arbitrator's thority generally make, and courts will not overturn Ass'n, such a decision. SeeMadison 'l Police Prof Officers (cid:127) (the goal reviewing 2d at 585-86 an arbitra- "assuring parties getting that are tion decision is for.") they the arbitration that contracted respect ¶ 71. The arbitrator's determination with express language collec- to Vuvunas follows Although bargaining agreement. pro- tive section 27.07 normally County may vides that the subcontract work expressly by bargaining employees, performed it unit employees bargaining laid unit will be that "no states a result hours reduced as direct off or have their normal dispute subcontracting." parties do that The not of such they employee unit do was a Vuvunas dispute Moreover, the was laid off. that she laid was to sub- the reason Vuvunas was off concedes get levy." it "off the Her her work in order to contract layoff, therefore, result of such subcontract- is a "direct ing."7 majority did not above, majority engaged appellate the is in fact-

13. As noted Moreover, voluntary layoff finding. explain it has failed to how a comports language the contract that is at the heart of this bargaining agreement requires The collective "no case. off or have their normal bargaining employees unit will be laid subcontracting...." direct result of such hours reduced as a Here, addressing question of majority the is the whether layoff reciting, the terms of a contract without Vuvunas's violates language the examining, much less the contract. timing the of Vuvunas's husband's It is unclear what County's

retirement has to do with whether the actions subcontracting laying Vuvunas off as a result of violated the bargaining agreement. implication of the collective The terms off, opinion really majority from the is that she wanted be laid County's the legitimizes and that this somehow actions. majority's regarding ¶ However, 73. decision legal appears status LaFave and Berndt to be that they legitimate are subcontractors based on the statutory authority director's to contract for services 767.405(2) under and that the arbitrator's award Majority op., ¶¶ Vuvunas, violated that statute. 22-23. though, is anot subcontractor. She was laid off and the layoff arbitrator determined that the violated the col- bargaining agreement. majority opinion lective only replacement. addresses the status of her majority appears Moreover, 74. to conclude determining layoff that the arbitrator erred that the bargaining agree- of Vuvunas violated the collective indepen- ment. In essence it has reviewed the decision dently of the arbitrator's However, determination. it examining language agree- does so without of the explaining why ment or determination, arbitrator's express language agreement, which follows the incorrect. doing majority many ques- so, leaves bargaining agree-

tions unanswered. Does the collective require wrongly employees grieve ment laid-off on their own behalf? What does the collective agreement say bumping rights? about exercise of Does majority's analysis it matter? The effect of the on our review of arbitration decisions is unclear.

I—II—II—I Finally, majority's unsup- ¶ 76. I address the ported regarding consequences claim of the arbitra- tion award. The asserts that the award "left Engel] ability [LaFave, Berndt, without an to work County," majority op., "putting ¶ 7, for Racine into jeopardy functioning judicial effective Id,., branch." support The arbitration decision does not 77. prevent LaFave, The did not

this assertion. award County Engel working per Berndt, for the se. from doing pursuant prevented Rather, them from so it displace bargaining positions. The unit contracts parties emphasized that the would have to award agreement negotiate in order to come to an discuss regarding remedy, explicitly from fash- and it refrained imple- ioning remedy impractical to that would be a negotiate parties The were therefore free ment. remedy provisions that included for reinstatement subcontracting, long positions so unit eliminated. were not jeopardizes the The claim that the award judicial equally functioning

effective of the branch is contrary, County's the actions unfounded. To the it is Here, function. the that undermine its effective collectively bargained positions for to be off wanted levy. County, judges, the circuit court the tax not County, orchestrating the maneuver. The was limiting statutory power arbitrator, of the was family Contrary director of services. 767.405(2)(a), the director not free to fill the County employees. Instead only by required that be filled subcon- tracting positions. majority's Thus, concern judiciary functioning is more about effective County's appropriately directed at the actions. IV forth, I For the reasons set conclude that failing process by to address the which the County's positions, attributing the three eliminated Kampen, failing to address actions to Van layoff, majority ignores the standard of Vuvunas's Ulti- arbitrator. the determinations review rights mately, to counties the it also subordinates agents family services, Eire who directors provide services whether to courts, to choose circuit employee pursuant 767.405(2)(a) contract 767.405(2)(b). pursuant respectfully Accordingly, I dissent. Chief Justice to state that I am authorized B. and Justice LOUIS ABRAHAMSON

SHIRLEY S. join dissent. BUTLER, JR. this 72. The notes Vuvunas bumping rights, that the Union filed the exercise her grievance Vuvunas, than and that Vuvunas's rather roughly time laid retired at the same she was husband it concludes that Vuvunas's situ- off.8From these facts legally distinguishable from that of LaFave is not ation and Berndt. testimony brief to cites a reference voluntary layoff exercising her requested rather than Vuvunas bumping rights, her bumping rights, and that had she exercised Majority op., 23 n. employee no would have been laid off.

Case Details

Case Name: Racine County v. International Ass'n of MacHinists & Aerospace Workers District 10, AFL-CIO

Court Name: Wisconsin Supreme Court

Date Published: Jun 26, 2008

Citation: 751 N.W.2d 312

Docket Number: 2006AP964

Court Abbreviation: Wis.