COURT OF APPEALS DECISION DATED AND RELEASED November
22, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0133
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
OSHKOSH
PARAPROFESSIONAL
EDUCATION
ASSOCIATION,
Plaintiff-Appellant,
v.
OSHKOSH
AREA SCHOOL
DISTRICT,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Winnebago County: ROBERT HAWLEY, Judge. Reversed and cause remanded with
directions.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. The Oshkosh
Paraprofessional Education Association (Association) appeals from the trial
court's order vacating an arbitration award in its favor. Because we conclude that the trial court did
not give due deference to the arbitrator's award, we reverse and remand for the
entry of an order confirming the arbitrator's award.
This
dispute arose after Pamela Henkel, a long-term employee and volunteer for the
Oshkosh Area School District (District) and a collective bargaining unit
member, was not selected for a full-time instructional aide position at
Jefferson Elementary. The position went
to Laura White, who was not a member of the bargaining unit. The bargaining unit operated under a
collective bargaining agreement with the District.
Henkel's
grievance protesting the District's failure to select her for the position was
denied at each level of the grievance procedure. Thereafter, the Association and the District entered into
arbitration of the dispute. The parties
stipulated to the following issue before arbitrator Sherwood Malamud, who was
mutually agreed to by the parties:
Did the District violate Article V Posting Provision of
the Collective Bargaining Agreement when it did not select the Grievant
[Henkel] for the position of Instructional Aide at Jefferson Elementary
School? If so, what is the appropriate
remedy?
Article
V, Assignments and Promotions, of the parties' collective bargaining agreement
states:
In
filling vacancies, transfers and promotions, all employees shall be eligible
for such vacancies, transfers and promotions, where practical, based on
seniority, merit, work record, qualifications, and personal fitness. Where merit, work record, qualifications,
and personal fitness are relatively equal, seniority shall prevail.
Central to the arbitration was the interpretation of
"all employees shall be eligible for such vacancies." The Association argued that "all
employees" meant bargaining unit members only; the District argued that
"all employees" meant all employees, regardless of bargaining unit
affiliation.
The
Association argued that the arbitrator need not determine which candidate was
more qualified for the open position because if a qualified bargaining unit
candidate applied for the posted position, the position had to be offered to
that individual first. The Association
further argued that even if the arbitrator determined that bargaining unit and
nonbargaining unit individuals were eligible for the position, Henkel was more
qualified than White by virtue of her experience in the District.
The
District argued that White was qualified for the position and that bargaining
unit members never received preference over nonbargaining unit employees in
filling vacancies. The District
asserted that the Association unsuccessfully sought such a preference in its
bargaining with the District and urged the arbitrator not to construe "all
employees" to give the Association something it had not obtained in
bargaining.
Because
both parties' interpretations were supported by the language of the collective
bargaining agreement, the arbitrator found the language ambiguous and turned to
the District's evidence of past practice and bargaining history to clarify the
meaning of the language and the parties' intent.[1]
The
arbitrator reviewed language used in the Assignment and Promotions clauses of
previous collective bargaining agreements and concluded that the bargaining
history offered by the District did not support the District's interpretation of
the language at issue. Under the
1982-85 agreement, qualified bargaining unit members were to receive first
consideration for vacant positions. The
1985-87 agreement retained that provision.
The
"all employees" language at issue in this case first appeared in the
1987-89 agreement. On its face, the
language at issue departs from the "first consideration" language of
the preceding contract (1985-87). The
arbitrator examined the negotiations that preceded the 1987-89 contract and was
unable to conclude from the exchange of proposals relating to posting
provisions that the parties intended the final language to apply to bargaining
unit and nonbargaining unit members alike.
The record did not offer any reasons for the selection of the language
at issue.
The
arbitrator then turned to evidence of past practice. The District argued that on two occasions it had filled vacant
positions with nonbargaining unit employees.
The arbitrator discounted the import of this conduct for the parties'
intent because the Association was unaware that nonbargaining unit employees
had been selected and, therefore, mutuality of intent was lacking.[2]
Having
received no assistance from the District's past practice and bargaining history
evidence, the arbitrator returned to the plain language in the contract. The arbitrator found that the language does
not refer to nonbargaining unit employees of the District and assigned the
following meaning to it:
In the
absence of any evidence to the contrary, the term employee refers to
individuals working in positions covered by the terms and conditions of the
collective bargaining agreement. If the
parties intend to refer to individuals who ordinarily do not receive the wages,
benefits, or whose terms of employment are not governed by the collective
bargaining agreement, they would clearly indicate that intention through the
use of such terms as, District employee or all employees of the Employer. No such language appears in Article V.
Because
the only eligible employees for the Jefferson instructional aide position were
bargaining unit members, the arbitrator found that White was not eligible for
the position and did not compare White's and Henkel's credentials. The arbitrator further found that in
rejecting Henkel in favor of a nonbargaining unit employee, the District
violated the collective bargaining agreement.
He directed the District to place Henkel in the position for which she
had applied or another position if both parties agreed.
The
Association petitioned the trial court to affirm the arbitrator's award. The District counter-petitioned to vacate
the award on the ground that the arbitrator exceeded his powers and authority
when he construed "all employees" to mean only bargaining unit
members. The trial court agreed with
the District and vacated the arbitration award. The Association appeals.
We
review the arbitrator's award without deference to the trial court's decision
vacating that award. See City
of Madison v. Local 311, Int'l Ass'n of Firefighters, 133 Wis.2d 186,
190, 394 N.W.2d 766, 768 (Ct. App. 1986).
An arbitration award may be vacated or modified only upon the statutory
grounds set forth in § 788.10(1), Stats. Milwaukee Police Ass'n v. City of
Milwaukee, 92 Wis.2d 175, 182, 285 N.W.2d 133, 136-37 (1979) (§§ 298.10
and 298.11, Stats., renumbered to
§§ 788.10 and 788.11, Stats.). An arbitration award within the scope of
authority delegated to the arbitrator is "due great deference." Teachers' Ass'n v. Milwaukee Bd. of
Sch. Directors, 147 Wis.2d 791, 795, 433 N.W.2d 669, 671 (Ct. App.
1988) (quoted source omitted). A court
may not substitute its judgment for that of the arbitrator because the parties
contracted to have an arbitrator settle their grievance. Id. (quoted source
omitted). Therefore, "because
arbitration is what the parties have contracted for, the parties get the
arbitrator's award, whether that award is correct or incorrect as a matter of
fact or law." Id.
(quoted source omitted). Consequently,
our review of an arbitrator's award is limited, and we will not interfere with
the arbitrator's decision merely because of errors of law or fact or because we
disagree with the result. See Nicolet
High Sch. Dist. v. Nicolet Educ. Ass'n, 118 Wis.2d 707, 712-13, 348
N.W.2d 175, 178 (1984).
The
parties defined the issue for the arbitrator as whether the District violated
Article V posting provisions when it did not select Henkel for the position of
instructional aide at Jefferson Elementary.
Resolution of this issue required construing ambiguous language used in
the collective bargaining agreement regarding Assignments and Promotions.
We
agree with the arbitrator's conclusion that the "all employees"
contract language was ambiguous. If a
term may be rationally viewed as ambiguous, the arbitrator may consider
extrinsic evidence to construe it. See
City of Madison v. AFSCME, AFL-CIO, Local 60, 124 Wis.2d 298, 303,
369 N.W.2d 759, 762 (Ct. App. 1985).
Here, the arbitrator properly considered the bargaining history and
found it wanting. Additionally, the
arbitrator's view that past practice evidence is most persuasive when there is
evidence of mutual agreement is echoed in an arbitration treatise.
If it is not proven that the [alleged past] practice is
unequivocal, clearly enunciated and acted upon, and readily ascertainable over
a reasonable period of time as a fixed practice accepted by both parties,
a binding past practice will usually not be found.
Frank Elkouri and Edna Asper
Elkouri, How Arbitration Works 121 (4th ed. 1985
& Supp. 1989) (emphasis added). The
authors also write that "the degree of mutuality [when deciding the weight
to be accorded past practice] is an important factor. Unilateral interpretations might not bind the other
party." Id. at 452
(4th ed. 1985).
The
arbitrator properly considered extrinsic evidence in construing the "all
employees" language, but he found the extrinsic evidence lacking. By virtue of the ambiguity and the parties'
agreement that this matter should be determined by an arbitrator, the
arbitrator had authority to construe this language and the parties, by virtue
of their agreement to arbitrate, were bound by the arbitrator's decision
provided the arbitrator did not exceed his authority. See § 788.10(1)(d), Stats. The arbitrator's interpretation is rational
and not a perverse misconstruction of the contract. See City of Madison, 133 Wis.2d at 190-91, 394
N.W.2d at 769 (arbitration award can be vacated for manifest disregard for the
law).
The
trial court disagreed with the arbitrator's construction of the contract
language. In so doing, the trial court
substituted its judgment for that of the arbitrator. This was error. See
Fortney v. School Dist. of West Salem, 108 Wis.2d 167, 178, 321
N.W.2d 225, 232 (1982). The
arbitrator's decision must be upheld as long as it is within the bounds of the
contract language, regardless of whether a court might have reached a different
result. Id. at 179, 321
N.W.2d at 233.
Because
"the arbitrator's alleged modification or alteration [of the contract] was
in fact a mere construction and interpretation of the labor contract ... the
award must be sustained." City
of Oshkosh v. Union Local 796-A, 99 Wis.2d 95, 104, 299 N.W.2d 210, 215
(1980).
By
the Court.—Order reversed and
cause remanded with directions to reinstate the arbitrator's award.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Because the
Association did not deviate from its contention that the language was clear and
unambiguous, it offered no bargaining history or past practice evidence. Therefore, the arbitrator resorted to the
bargaining history and past practice evidence presented by the District.
[2] The arbitrator
found that there was no mechanism for alerting the Association which employees
had applied for a vacant unit position and who was selected to fill that
position. The arbitrator found that
while the District had demonstrated its interpretation and conduct under the
language, it had failed to establish that the Association knew or acquiesced in
the conduct. Because mutuality was
lacking, the arbitrator found that the District failed to prove the existence
of the past practice.