West Salem Police Association v. Village of West Salem

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 27, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP770 Cir. Ct. No. 2021CV454

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

WEST SALEM POLICE ASSOCIATION,

PLAINTIFF-RESPONDENT,

V.

VILLAGE OF WEST SALEM,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for La Crosse County:
TODD W. BJERKE, Judge. Reversed.

Before Kloppenburg, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP770

¶1 PER CURIAM. The Village of West Salem appeals a circuit court
order vacating an arbitration decision and remanding for a new arbitration
proceeding. The underlying dispute is whether the arbitrator exceeded his
authority by disregarding or modifying plain language in a collective bargaining
agreement. Because the arbitrator offered a reasonable interpretation of the
agreement, we conclude that he did not exceed his authority. Accordingly, we
reverse the circuit court order.

BACKGROUND

¶2 Jacob Donley is a police officer employed by the Village, and he is a
member of the local police union, the West Salem Police Association. The
Village and the Association are parties to a collective bargaining agreement.

¶3 In September 2020, Donley attended a work-related training event
and was exposed to an individual who tested positive for the COVID-19 virus. As
a result of this exposure, Donley’s police chief ordered him to quarantine for a
period of 14 days.

¶4 Donley had been scheduled to work 92 hours over that 14-day period
and, according to the parties, the Village initially paid him for 92 hours of work
for that 14-day pay period.1 Three months later, the Village’s administrator

1
The Village and the Association later stipulated that “Officer Donley was scheduled to
work 92 hours during that 14-day period, and Officer Donley was [initially] paid for 92 hours for
that period.” We observe that this stipulation does not appear to be entirely consistent with the
terms in the collective bargaining agreement addressing the payment of wages. Specifically,
section 17.01 provides that “[e]mployees’ regular wages shall be paid in twenty-six (26) equal
checks,” and that “[t]he Village has the right to adjust paychecks in the event the twenty-six (26)
equal paychecks are not earned.” Although arguably, portions of the circuit court’s reasoning,
summarized below, may have relied on this section, the parties did not raise this section before
the arbitrator or the circuit court and neither decision maker directly addressed it. Nor, on appeal,
(continued)

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No. 2022AP770

determined that the Village had made a mistake, and that Donley had been
overpaid for his period of quarantine. The administrator’s analysis was based on
the Families First Coronavirus Response Act, Public Law 116-127, § 5102 (2020)
(the “Families First Act”), a federal law which, generally speaking, provided that
certain employees are eligible for up to 80 hours of paid sick leave for a COVID-
19-related quarantine. The Families First Act also provided that it should not be
construed “to in any way diminish the rights or benefits that an employee is
entitled to under any … collective bargaining agreement.” Id., § 5107.

¶5 A supervisor informed Donley that he should have received 80 hours
of pay, rather than 92 hours of pay, for the period that he was in quarantine. The
supervisor advised him that there were several options to address the
overpayment—12 hours of pay could be deducted from a subsequent paycheck or
Donley could designate the 12 hours as holiday pay, sick pay, or vacation pay. Of
these options, Donley elected to designate the 12 hours as holiday pay. Had he not
elected to designate 12 hours as some kind of benefit pay, the Village would have
deducted 12 hours of pay from a subsequent paycheck.

¶6 The Association filed a grievance on Donley’s behalf. It argued that
Donley had been forced to use holiday pay contrary to section 12.01 of the
collective bargaining agreement. Specifically, the Association relied on the
following language from section 12.01, which governs holiday pay and provides
as follows:

Employees shall be entitled to seventy-two (72)
hours of Holiday Time per calendar year at the Employee’s

do the parties argue that section 17.01 has any bearing on this dispute. For these reasons, we
discuss it no further.

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No. 2022AP770

regular rate [of pay] …. At the Employee’s discretion,
holidays can be scheduled as personal time off with the
Chief’s approval or if the hours are not used as personal
time … by December 31, the Village shall pay out the
unused holiday time … at the regular rate of pay on the
December 31 paycheck.

¶7 The Village’s law enforcement committee denied the grievance.

¶8 The Association then sought arbitration, and the matter was assigned
to an arbitrator employed by the state employment relations commission. Prior to
the arbitration hearing, the parties entered into a stipulation about certain facts,
including the facts noted above. The arbitrator held an evidentiary hearing, and
the parties submitted briefs.

¶9 The Association argued that the Village’s actions violated
section 12.01 of the collective bargaining agreement (which governs holiday pay
and is quoted above) as well as section 9.01(A) (which governs work periods).
Section 9.01(A) provides, in relevant part:

The work period [for officers] shall be three (3)
consecutive work days followed by three (3) consecutive
days off, with no minimum hours per year. The workdays
will consist of two (2) twelve (12) hour shifts and one (1)
eight (8) hour shift. To be fair and consistent with all the
officers, the placement of the eight (8) hour shift (on an
officer’s first day back or Friday) shall reverse every six (6)
months.

¶10 The Association argued that, because Donley had been scheduled for
92 hours during his period of quarantine, he should have been paid for those 92
hours, and that the Village had no authority to alter Donley’s schedule after the
fact. It argued that Donley’s choice to designate 12 hours as holiday pay was no
real choice at all, and was inconsistent with section 12.01, which provides that,
“[a]t the Employee’s discretion, holidays can be scheduled as personal time off.”

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No. 2022AP770

According to the Association, the question before the arbitrator was not whether
Donley “was given options as to how these 12 hours would be paid, but whether
the Village was justified in presenting those options to him at all.”

¶11 The Village argued that the options it presented to Donley were
consistent with the Collective Bargaining Agreement. It relied on (among other
things) section 2.01 of the collective bargaining agreement, which governs the
Village’s management functions. Section 2.01 provides, in relevant part:

Except as otherwise provided in the agreement, the
Village retains the normal rights and functions of
management and those that it has by law. Without limiting
the generality of the foregoing, this includes the right … to
schedule when work shall be performed … and to adopt
and enforce reasonable rules and classifications … which
are not contrary to the provisions of this Contract.

¶12 The Village also argued that there was no provision in the collective
bargaining agreement requiring the Village to pay Donley for the 92 hours he had
been scheduled to work—but did not actually work—due to his COVID-19
exposure. According to the Village, Donley would not have been paid for any of
the 92 hours but for the Families First Act, which, as discussed above, required
certain employers to pay employees up to 80 hours for time spent quarantining.

¶13 The arbitrator issued a written decision siding with the Village. He
rejected the Association’s argument that the Village had violated section 12.01 of
the collective bargaining agreement by forcing Donley to designate 12 hours as
holiday leave. The arbitrator explained his reasoning as follows:

Boiled to its essence, the Association is actually
arguing that [Donley] should not have been obligated to use
any type of leave. Essentially, the Association contends
that once [Donley] was scheduled to work 92 hours, the
Village was contractually obligated to pay him for 92 hours
even if COVID exposure led to a reasonable order that he

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No. 2022AP770

stay home for two weeks. I do not find there to be any
contract provision that creates that obligation. Clearly, the
Article 12 holiday leave “discretion” provision relied on by
the Association falls far short of any such pay guarantee.

The arbitrator determined that, in the absence of any such guarantee in the
collective bargaining agreement, it was appropriate for the Village to pay Donley
for 80 hours of work pursuant to the Families First Act.

¶14 The Association filed a summons and complaint challenging the
arbitrator’s decision in the circuit court, and the circuit court vacated the
arbitrator’s decision. The court determined that the arbitrator manifestly
disregarded the law when he relied on the Families First Act in determining how
much pay Donley was entitled to for his period of quarantine, without specifically
addressing the collective bargaining agreement’s section 2.01 (governing the
Village’s management authority) or section 9.01(A) (governing work periods),
which made up a substantial portion of each party’s arguments. The court further
determined that the collective bargaining agreement guaranteed that Donley
should be paid for every hour that he had been scheduled to work during his
period of quarantine, explaining its reasoning as follows: “Officers in West Salem
expect to work and be paid for time in accordance with the [collective bargaining
agreement] and its [sections 9.01(A)] and [2.01].” And that “[i]f a quarantine
happens to fall in a two-week period when an officer expects to work, he or she
would be denied of the benefits of the [collective bargaining agreement] if
deprived of those work hours.”2

2
In its decision, the circuit court also expressed puzzlement about why Donley had been
scheduled for 92 hours of work during a 14-day period, when, by the court’s calculation, the
schedule set forth in section 9.01(A) of the collective bargaining agreement would result in no
more than 88 hours worked during any 14-day period. The parties agree that this issue is beyond
the scope of their current dispute, and we address it no further.

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No. 2022AP770

¶15 Based on its determination that the arbitrator failed to apply the
pertinent provisions in the collective bargaining agreement, the circuit court
vacated the arbitrator’s decision and remanded the matter to the state employment
relations commission for a new arbitration. The Village appeals.

DISCUSSION

¶16 The parties agree that the scope of our review of the arbitrator’s
decision is the same as the scope of the circuit court’s review. City of Madison v.
Local 311, Int’l Ass’n of Firefighters, AFL-CIO, 133 Wis. 2d 186, 190, 394
N.W.2d 766 (Ct. App. 1986). Like the circuit court, we review the decision made
by the arbitrator, and we give no deference to the circuit court’s analysis. Id.

¶17 When parties have agreed to submit an issue to arbitration, they have
agreed to be bound by the arbitrator’s judgment, whether it is correct or incorrect
as a matter of law or fact. Madison Teachers Inc. v. Madison Metro. Sch. Dist.,
2004 WI App 54, ¶9, 271 Wis. 2d 697, 678 N.W.2d 311. A court’s role in
reviewing an arbitration award “is essentially supervisory, ensuring that the parties
received the arbitration for which they bargained.” Lukowski v. Dankert, 184
Wis. 2d 142, 149, 515 N.W.2d 883 (1994). Arbitration awards are presumptively
valid, and a court’s limited scope of review begins with that presumption. Nicolet
High Sch. Dist. v Nicolet Educ. Ass’n, 118 Wis. 2d 707, 712, 348 N.W.2d 175
(1984).

¶18 The pertinent standards are set forth in WIS. STAT. § 788.10 (2019-
20),3 which provides limited circumstances under which a court can vacate an

3
All references to the Wisconsin Statutes are to the 2019-20 version.

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No. 2022AP770

arbitration award.4 Here, the question is whether the arbitrator “exceeded [his]
powers, or so imperfectly executed them that a mutual, final and definite award
upon the subject matter submitted was not made.” See § 788.10(1)(d). Under this
standard, we will not vacate the arbitrator’s decision merely because he made
some error of law or fact. Madison Teachers Inc., 271 Wis. 2d 697, ¶9. The
arbitrator has exceeded his powers only if his decision demonstrates “‘perverse
misconstruction’” or “positive misconduct,” if he manifestly disregarded the law,
if his decision is illegal, or if it violates strong public policy. Baldwin-Woodville
Area Sch. Dist. v. West Cent. Educ. Ass’n, 2009 WI 51, ¶21, 317 Wis. 2d 691,
766 N.W.2d 591 (quoted source omitted). To overcome the presumption of
validity, a party opposing the award must present clear and convincing evidence
that the award is invalid. Nicolet High Sch. Dist., 18 Wis. 2d at 712.

¶19 In this case, the facts were largely undisputed, and the legal question
before the arbitrator related to the interaction between the Families First Act and
the collective bargaining agreement. As discussed above, the Families First Act,

4
Specifically, WIS. STAT. § 788.10(1) provides that a circuit court must vacate an
arbitration award:

(a) where the award was procured by corruption, fraud
or undue means;

(b) where there was evident partiality or corruption on
the part of arbitrators, or either of them;

(c) where the arbitrators were guilty of misconduct in
refusing to postpone the hearing, upon sufficient cause shown, or
in refusing to hear evidence pertinent and material to the
controversy; or of any other misbehavior by which the rights of
any party have been prejudiced;

(d) where the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final and definite award
upon the subject matter submitted was not made.

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No. 2022AP770

which was effective in September 2020 during Donley’s quarantine period,
provided that employees are entitled to up to 80 hours of pay for periods spent
quarantining based on a COVID-19 exposure. However, the Families First Act
also provided that it should not be construed “to in any way diminish the rights or
benefits that an employee is entitled to under any … collective bargaining
agreement.” Families First Act, supra, § 5107.

¶20 Although not expressly stated in these terms in his decision, we
understand the arbitrator to have framed the dispositive question as follows: Does
any provision in the collective bargaining agreement guarantee that an employee
who is scheduled to work a certain number of hours, but does not actually work
those hours, will be paid for those hours? In other words, the arbitrator addressed
whether the collective bargaining agreement required the Village to pay Donley
for the 92 hours he was scheduled to work during his period of quarantine but that
he did not work. The arbitrator stated: “I do not find there to be any contract
provision that creates that obligation.” From this conclusion, we understand the
arbitrator to have determined that the sections of the collective bargaining
agreement addressed in the parties’ arguments did not guarantee that Donley
would be paid for the 92 hours he did not work.5

5
The Association argues that, because the arbitrator’s decision does not specifically
address sections 2.01 (governing the Village’s management functions) and 9.01(A) (governing
work periods), the arbitrator must not have considered those provisions. We do not agree that this
is a reasonable interpretation of the arbitrator’s written decision. By stating that he did “not find
there to be any contract provision that creates [the] obligation [argued by the Association],” the
arbitrator signaled that he had considered the provisions in the agreement that were addressed in
the parties’ arguments, and that he rejected the Association’s proposed interpretation of those
provisions.

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No. 2022AP770

¶21 The question for this court on appeal is whether the arbitrator
“exceeded [his] authority” with this interpretation of the collective bargaining
agreement, which is a contract between the Village and the Association. In a case
like this, in which the arbitrator derives his authority from that contract, he is free
to give his own construction to its provisions, but he is “‘without authority to
disregard or modify’” its plain language. Baldwin-Woodville Area Sch. Dist., 317
Wis. 2d 691, ¶25 (quoted source omitted). In other words, the arbitrator
“exceed[s] his authority by, in effect, undertaking to amend the contract[.]”
Nicolet High Sch. Dist., 118 Wis. 2d at 713.

¶22 However, our supreme court has cautioned that it will be the “‘rare’”
case in which “‘a party aggrieved by an award will not view the arbitrator’s
opinion as adding to, subtracting from, or otherwise modifying’” the contract.
Baldwin-Woodville Area Sch. Dist., 317 Wis. 2d 691, ¶27 (quoted source
omitted). Accordingly, “when an arbitrator’s interpretation of [the contract] has a
foundation in reason, ‘it would be contrary to a policy which favors the final
resolution of … disputes through arbitration to afford a litigant a review of the
merits of an arbitral decision.’” Id., ¶27 (quoted source omitted).

¶23 In this case, the Association does not demonstrate that the arbitrator
exceeded his authority by disregarding or modifying any plain language in the
collective bargaining agreement. That is, the Association does not point to any
provision guaranteeing in plain language that an officer who is scheduled to work
certain hours will be paid for those hours, whether or not the officer actually
works them.

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No. 2022AP770

¶24 The Association relies on section 9.01(A), but that section does not
contain any such guarantee. Section 9.01(A) sets a specific work schedule for
officers, but does not specifically address payment for scheduled hours:

The work period [for officers] shall be three (3)
consecutive work days followed by three (3) consecutive
days off, with no minimum hours per year. The workdays
will consist of two (2) twelve (12) hour shifts and one (1)
eight (8) hour shift. To be fair and consistent with all the
officers, the placement of the eight (8) hour shift (on an
officer’s first day back or Friday) shall reverse every six (6)
months.

In the absence of any express language regarding payment, the arbitrator could
have reasonably interpreted section 9.01(A) as not requiring the Village to pay
officers for hours that they are scheduled to work but do not actually work.6

¶25 The Association also relies on section 12.01, but it does not argue
that that section contains any guarantee related to payment for scheduled hours.
As discussed above, section 12.01 provides that “holidays can be scheduled as
personal time off” at an officer’s “discretion.” But there is no assertion that the
Village required Donley to schedule any holiday as personal time off. Under the
circumstances, the arbitrator did not disregard or modify any language in
section 12.01 when he determined that it had no bearing in this dispute.

¶26 Even if we were to assume that another construction of the
provisions of the collective bargaining agreement was possible, we would not
vacate the arbitration award on that basis. As our supreme court has explained,
even “‘[m]istakes of judgment, mistakes of either fact or law, are not ground for
6
In reaching this conclusion, we do not rely on the Village’s interpretation about the
meaning of the phrase “no minimum hours per year” in section 9.01(A) or its interpretation of
section 2.01, which addresses management functions of the Village.

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No. 2022AP770

review of or setting aside an award.’” Scherrer Const. Co., Inc. v. Burlington
Mem’l Hosp., 64 Wis. 2d 720, 728, 221 N.W.2d 855 (1974) (quoted source
omitted). Here, the arbitrator offered a reasonable interpretation of the provisions
of the collective bargaining agreement argued by the parties, Lukowski, 184 Wis.
2d at 153, and the Association has not shown by clear and convincing evidence
that the arbitrator’s decision should be vacated.7

¶27 Accordingly, for all these reasons, we reverse the circuit court’s
order vacating the arbitration decision. The effect of our decision is to reinstate
the arbitrator’s decision.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

7
The Association makes a number of additional arguments, each of which asks us to
give our own interpretation of provisions in the collective bargaining agreement and the
respective rights of the parties under those provisions. For example, the Association argues that,
because Donley was following his chief’s orders when he stayed home during his quarantine
period, he should not be considered “out of pay status.” These additional arguments are not
consistent with the limited scope of judicial review of an arbitrator’s decision, and we discuss
them no further.

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