COURT OF APPEALS DECISION DATED AND FILED October 21, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM.
BACKGROUND
¶2 According to the arbitrator’s findings, Johnson has been a
full-time teacher at the District’s
¶3 Shortly thereafter, the Association and District entered into a new collective bargaining agreement, and Johnson signed a new contract in October 2002. Her salary was reduced to $28,148 because she was placed in the BA, rather than BA +8, compensation lane. However, Johnson did not realize she had been placed in a different compensation lane.
¶4 Through successive teaching contracts for the 2003-04 and 2004-05 school years, Johnson continued to be compensated in the BA lane, earning $29,749 and $31,279 respectively for those years. Had she been in the BA +8 lane, her salary would have been $30,146 and $31,983. At no time in 2003 or 2004 did Johnson inquire about, or challenge, her placement in the BA lane.
¶5 In August 2005, Johnson became aware she was not being compensated in the BA +8 lane. On August 30, she submitted a form entitled “Request to Change Lanes for the 2005-06 School Year.” After verifying Johnson’s graduate credits, the District placed Johnson in the BA +8 lane for the 2005-06 school year.
¶6 Later in the school year, in May 2006, Johnson “realized … that the District was not making her whole for the salary she would have earned” had she been placed in the BA +8 lane since October 2002. She and the local Association president met with the school superintendant, who brought the matter to the school board. In “late June,” the school board rejected Johnson’s request for back pay.
¶7 On June 26, the Association filed a grievance with the superintendant on Johnson’s behalf, alleging violations of the collective bargaining agreement. The grievance was denied in a letter from the District’s counsel, which stated in part that the grievance was untimely. A subsequent grievance was addressed to the school board and was also denied.
¶8 The dispute went to binding arbitration before a Wisconsin Employment Relations Commission arbitrator. The arbitrator first decided whether the grievance was timely under the collective bargaining agreement. Under the agreement, Step 1 of the grievance procedure requires:
a.
An earnest effort shall first be made to settle the matter informally
between the teacher and his immediate supervisor.
b. If the matter is not
resolved, the grievance shall be presented in writing by the teacher or
employee representative to the immediate supervisor within fifteen (15) days after the facts upon which the grievance is
based first occur or first become known…. (Emphasis added.)
The District argued the grievance was untimely because it was not filed within fifteen days of when Johnson became aware that she was not being paid in the BA +8 lane, which was in August 2005. The arbitrator rejected this argument because “the grievant is challenging … the District’s denial of back pay, not the District’s initial placement of Johnson in the BA lane.” The arbitrator reasoned that the June 26, 2006 grievance was therefore timely because it was within fifteen days of when District denied her request for back pay in “late June.” After addressing the merits of the grievance, the arbitrator awarded Johnson the difference between the BA and BA +8 compensation lanes for the time Johnson was paid in the BA lane.
¶9 The District moved to vacate the arbitrator’s award in the circuit court, contending the award “exceeded [the arbitrator’s] powers and authority and manifestly disregarded the law in violation of Wis. Stat. § 788.10(1)(d).” In a memorandum decision and order filed January 17, 2008, the circuit court denied the District’s motion, concluding the arbitrator’s decision was rational and supported by the evidence. A final order was entered on January 28, 2008.
DISCUSSION
¶10 We review an arbitrator’s award in the same manner as the
circuit court, without deference to the circuit court’s decision. Madison Teachers Inc. v. Madison Metro. Sch.
Dist., 2004 WI App 54, ¶9, 271
¶11 Courts will not overturn an arbitrator’s decision for “mere
errors of fact or law, but only when perverse misconstruction or positive
misconduct [is] plainly established, or if there is a manifest disregard of the
law, or if the award itself is illegal or violates strong public policy.”
¶12 We conclude the arbitrator’s construction of the fifteen-day
time limit for filing grievances was a perverse misconstruction because it was
contrary to the collective bargaining agreement’s plain and unambiguous
terms. Under those terms, the grievance
was untimely, and the arbitration award must therefore be vacated.
¶13 The arbitrator concluded that the fact upon which the grievance was based was the school board’s denial
of Johnson’s request for back pay in late June 2006. However, this conclusion is contrary to the
procedures set forth in the collective bargaining agreement. As noted above, Step 1 of the grievance
procedure requires an employee to first attempt to informally resolve a dispute
with his or her immediate supervisor. If
a dispute is not resolved informally, the employee must file a grievance within
fifteen days “after the facts upon which the grievance is based first occur or
first become known.” Subsequent “Steps”
are also provided in the grievance procedure, including appeals to the
superintendant and school board.
¶14 The issue before the arbitrator was whether the Association complied with Step 1 of the grievance procedure. Specifically, the question was whether the grievance was filed within fifteen days after the facts on which the grievance was based first occurred or became known. The grievance claimed Johnson was entitled to back pay. The fact underlying the grievance was that she was paid in the wrong compensation lane for most of the 2002-03 through 2004-05 school years. Therefore, for the grievance to be timely, it was required to be filed within fifteen days of when this fact occurred or became known.
¶15 Based on the arbitrator’s findings, the latest possible point at which this fact became known was when Johnson “realized in May, 2006 that the District was not making her whole for the salary she would have earned….” Because the June 26, 2006 grievance was more than fifteen days later, it was untimely.
¶16 Therefore, the arbitrator’s conclusion was contrary to the
collective bargaining agreement’s plain and unambiguous terms because it
ignored the facts underlying the Johnson’s complaint. Instead, the arbitrator engaged in a perverse
misconstruction by using the school board’s denial of Johnson’s complaint to
trigger the fifteen-day time limit. The
collective bargaining agreement clearly makes the occurrence or knowledge of
the facts underlying a complaint—not a subsequent response to a complaint—the
triggering event for the fifteen-day time limit for filing a grievance.
¶17 The Association attempts to find support for the arbitrator’s
reasoning by relying on a decision in another arbitration, City of Phillips (Police Department)
v. Phillips Professional Police Association Local 231, Labor Association of
Wisconsin, Inc., WERC Dec. No. MA-12198 (2004) (Bielarczyk, Arb.).[2] There, the arbitrator concluded that a
part-time police officer filed a timely grievance following the city’s denial
of his request for full-time back pay.
¶18 However, the arbitrator’s decision in City of
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] The Association cites no authority indicating what, if any, deference we owe to an arbitrator’s construction of a different contract in a different arbitration. Because that arbitration is distinguishable on its facts, it is unnecessary for us to address this issue.