Opinion
No. 75-67.
Argued March 28, 1977. —
Decided May 17, 1977.
APPEAL from orders of the circuit court for Milwaukee county: LOUIS J. CECI, Circuit Judge. Dismissed in part; affirmed in part; reversed in part.
For the appellants there were briefs by James B. Brennan, city attorney, and Thomas E. Hayes, assistant city attorney, and oral argument by Mr. Hayes.
For the respondent there was a brief by John S. Williamson, Jr. and Goldberg, Previant Uelmen, S.C. of Milwaukee, and oral argument by Mr. Williamson.
This is a labor relations case involving a dispute between the Milwaukee Professional Firefighters, Local 215, IAFF, AFL-CIO (hereinafter "Association") and the city of Milwaukee (hereinafter "City"). The source of the controversy is certain orders issued on December 6, 1974, by Fire Chief William Stamm which called for the implementation of new rules regarding the scheduling of special duty overtime work, vacation days and off days for the firefighters for the years 1975 and 1976. The Association challenged the orders claiming they were issued in violation of a collective bargaining agreement between the parties, which was effective for the period of November 4, 1973 to February 28, 1975. Pursuant to the terms of the agreement, the parties submitted the dispute to final and binding arbitration. The arbitrator concluded the orders did violate the agreement and ordered that the scheduling of duty in the fire department for 1975 be conducted in the same manner as it had been for the year 1974. The arbitrator's award was confirmed by the circuit court, and thereafter the circuit court found the City and Chief Stamm in contempt for failing to observe the court's judgment confirming the award.
In order to consider the issues raised in this case it is necessary to understand the complicated system of work scheduling within the Milwaukee Fire Department and to review the factual and legal circumstances which led to this appeal by the City and Chief Stamm.
The fire department operates on a three platoon system, in which the platoons rotate duty every 24 hours at 8:00 a.m. Thus each firefighter is assigned to a platoon which works 24 hours and then is off for 48 hours. Each platoon is composed of approximately 345 persons and the minimum number of persons which must be on duty at all times for the department to properly function is 296.
The basic schedule, therefore, for a firefighter is a 24 hour day of work every three days. Out of this basic schedule, each person is entitled to a certain number of days, on which they normally would be on duty, off duty with pay. These days are denoted work reduction days, holiday offs, and vacation days. A description of each follows. Regular municipal employees are entitled to six work days off for holidays during a year, but because firefighters are not able to take holidays as other employees and because of their unusual work schedule, they are given two full 24 hour days off. This amounts to 48 hours for holidays, equal to six eight-hour days off for a regular employee. These two days off for holidays are termed holiday offs. Work reduction days were created to decrease the average hours worked per week by firefighters to an amount agreed upon in collective bargaining. Each firefighter is entitled to eight work reduction days off the regular schedule. Finally, each firefighter is entitled to vacation days, the number of which varies with the number of years a person has been on the force. For example, a person with one to seven years of service is eligible for five work days off for vacation, while one with over 25 years of service is eligible for twelve work days off.
The fact each person in the department is entitled to the above days off is the reason why each platoon is composed of about 345 persons, while only 296 are necessary to meet minimum staffing requirements. On each work day, of the particular platoon on duty, approximately 50 persons are off duty. On occasion, the number of persons scheduled for duty falls below the minimum staffing requirements and when this occurs the deficiency is compensated for by firefighters from the other platoons working special duty or overtime.
The work schedules of all the firefighters for an entire year are prepared in advance. For the year 1974 the work schedules were established during the last two months of 1973 through the following procedure. The coming year was broken down into ten cycles of 36 days each. Thus, each cycle included twelve work days for each platoon. Work reduction days, holiday offs, and vacation days were designated for each platoon member through selection processes. Limits were placed upon the number of persons who could pick any particular day off, and selections were made according to seniority. The eight work reduction days and two holiday offs, amounting to ten off days, were allocated by placing one in each of the ten cycles for each employee. To do this, each platoon member selected a number, from one to twelve, which designated the particular numbered work day in each cycle which that member would have off, either as a work reduction day or holiday off. For example, if a person selected number two, that person would then have off the second work day in each of the ten cycles. Days off designated by this selection, termed paid off-days, were, therefore, twelve work days apart.
Vacation days were also determined through selection on the basis of seniority. Up to the number to which a firefighter was entitled, a series of consecutive work days could be selected for vacation, or a firefighter could intersperse his or her vacation days throughout the year. Because of the high demand for summer vacation days, no person was permitted to select more than six days during a specified summer period, comprised basically of the months of June, July and August.
Although these procedures established a basic work schedule for the firefighters, the schedule was not absolutely unalterable. A procedure was also available during the year by which firefighters could, with some restrictions, trade off-days with other members in their platoon. In addition, firefighters could volunteer special duty overtime. All special duty was voluntary and paid for at the straight rate of pay. Assignments for special duty were made in the evening before the day extra personnel would be needed, and assignments were made from volunteers in the platoon on duty at the time they were made.
On December 6, 1974, Chief Stamm issued four special orders (numbered 4-74, 5-74, 6-74 and 7-74) and a special notice which set forth the procedures by which work schedules for 1975 and 1976 would be established. The announced procedures contained several differences from those used for the year 1974.
The changes were ordered for the purpose of minimizing the number of overtime hours worked by firefighters. This effort to minimize overtime was in response to certain amendments, passed by Congress in April, 1974, to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. These amendments were designed to extend the coverage of the act to firefighters, effective January 1, 1975. Under the amendments, municipal employers, during the year 1975, were required to pay firefighters overtime compensation at a rate of one and one-half times the straight time rate for all hours worked in excess of that amount of hours which bears the same ratio to the number of days in the period as 240 hours does to 28 days. See 29 U.S.C. § 207(k) (1975). Prior to these amendments the Fair Labor Standards Act did not apply to employees in fire protection activities for public agencies, and thus, all hours regardless of the amount worked in any period could be paid for at the straight pay rate. The City estimated that had the amendments applied during 1974, it would have been obliged to pay an additional $197,000, due to time and a half overtime pay, above that which it did pay.
It is worthy of note that the United States Supreme Court recently declared unconstitutional these amendments to the Fair Labor Standards Act which prompted the City to change its scheduling procedure for firefighting personnel. National League of Cities v. Usery, 426 U.S. 833 (1976).
Although the amendments were enacted in May of 1974, the City was unable to develop revised schedules and policies which would avoid overtime payments until November of 1974 when the Department of Labor issued proposed regulations, 29 CFR Part 553, for determining hours worked and work periods under the amendments in respect to employees of public agencies engaged in fire protection activities.
After the proposed regulations were issued in November, the City completed revised policies to be effectuated through the issuance of the orders and special notice referred to above. A discussion of the revisions to be accomplished by the orders and notice follows.
Order 6-74 related to the scheduling of off-days for 1975 and 1976. Under this order, the 36-day work cycle was discarded for a 27-day cycle. Thus, there would be thirteen 27-day cycles from January 1, 1975 to December 17, 1975, and fourteen 27-day cycles from December 18, 1975 to December 29, 1976. Order 6-74 further provided that each firefighter, as in 1974, would be assigned one off-day, e.g., work reduction day or holiday off, during each work cycle, which included nine scheduled work days for each platoon. However, because there would be thirteen work cycles in 1975 and fourteen in 1976, while there had been only ten in 1974 due to the longer cycle, it was therefore necessary to obtain more off-days than the ten work reduction days and holiday offs, so that one off-day could be placed in each cycle. These extra days were to be taken from each firefighter's allotment of vacation days. Therefore, three vacation days from a firefighter's 1975 vacation days and four days from the 1976 allotment were included in those days which would be distributed one per cycle. These off-days would be designated for each person, as they had been in the past, by selecting the number of the work day, from one to nine, which the person wanted off in the cycle. This procedure would therefore establish a basic work schedule for 1975 and 1976 of twenty-seven 27-day work cycles, in each of which each firefighter was on duty eight days with one day off with pay.
It should be noted that for a 27-day work period, under the amendments to the Fair Labor Standards Act, a firefighter in 1975 could work 232 hours before overtime compensation would be earned. Eight days of duty amount to 192 hours and nine days amount to 216 hours. Thus, a firefighter could not have more than nine days of duty during one 27-day cycle without the City having to pay overtime compensation.
Order 5-74 related to vacation selection for 1975. Selections were to be made as they had been in the past, with two exceptions. First, no vacation time could be selected between December 24, 1975 and December 31, 1975. The record does not disclose the reason for this change. Second, due to the scheduling of three 1975 vacation days among the new work cycles under order 6-74, the number of vacation days to be selected by each firefighter was necessarily reduced by three. It is also clear that for 1976 this number would be reduced by the four days scheduled among the work cycles for that year. Thus, a firefighter with one to seven years of service, who was entitled to five vacation days per year, could only select two vacation days in 1975 and one vacation day in 1976.
Order 4-74 related to special duty. Because the Chief intended to avoid unnecessary overtime payments, it was important to prevent any firefighter from working more than nine days during a 27-day work cycle. With each firefighter scheduled to work eight days in a work cycle, the Chief sought to limit the number of special duty days worked in a work cycle to one. Therefore, the completely voluntary special duty system used in 1974 was to be replaced with a combination voluntary and compulsory special duty system. Under the new system, among volunteers, those who had worked no special duty would be preferred, and in the event all volunteers had already worked a special duty day in the work cycle, the department would compel a non-volunteer who had not worked special duty during that cycle to work.
Order 7-24 revised the regulations governing the trading of off-days by firefighters. Because under the proposed federal regulations hours worked as the result of a trade with another firefighter were not to be included in the calculation of hours worked in a work period, order 7-74, in an effort to offset some of the restrictive effect of the other new scheduling procedures, greatly expanded the ability of firefighters to make trades of off-days and thus set up a more desirable schedule.
Finally, the special notice issued by Chief Stamm on December 6, 1974 related primarily to the administrative matter of a new form which was to be used to maintain work records under the new scheduling procedures. This notice, however, contained the statement: "Company Officers, under the strict supervision of their respective Battalion Chiefs, shall make sure that no man has more than 9 work days in the designated 27-day Work Cycles." The days which were to be counted in calculating the number of days worked in a work cycle which go toward the nine-day maximum were regular scheduled work days, special duty days, and regular scheduled work days which had been traded away.
The Association's objection to the new rules was directed primarily to the imposition of mandatory special duty and the allocation of vacation days among the other paid off-days distributed one per cycle. The Association also objected to the restriction that no vacation time could be selected during the last week of 1975.
On December 11, 1974, the Association received from County Judge TERRENCE T. EVANS a temporary restraining order against the City and Chief Stamm prohibiting the implementation of the orders or in any way changing the method for selection of vacation, holiday off and work reduction days from the method followed in 1974 and prohibiting interference with the voluntary nature of special duty assignments. The Association's complaint asked that the temporary restraining order be issued pending final and binding arbitration under the collective bargaining agreement and also prayed for a permanent injunction to the same effect.
The next day, December 12, 1974, the circuit court, Judge LOUIS J. CECI presiding, set December 16, 1974 as the date to conduct a hearing as to the request for an injunction pending arbitration. The temporary restraining order remained in effect.
On December 13, 1974, the City and the Association selected John F. Sembower as arbitrator and, with the desire to expedite arbitration, waived all preliminary procedural requirements for arbitration under the collective bargaining agreement. December 16, 1974 was set as the date for a hearing before the arbitrator and the hearing scheduled for that same day before Judge CECI was postponed to December 19th.
Hearing was held before the arbitrator, and the parties then went before Judge CECI. The Judge was informed that the arbitrator would make an award before the first of the year, and the Association requested that a temporary injunction pending the arbitration award be granted prohibiting selection of vacations under the new procedures unless vacation selection was also conducted under the old procedure. The Association argued that if selections were made under both methods, the parties would be prepared to proceed in the next year's operations regardless of whose position the arbitrator upheld.
On December 19, 1974, Judge CECI made the following order:
"IT IS ORDERED that neither the Plaintiff nor Defendants takes any action to change the methods and procedures and operations of the Plaintiff's members seeking off-days and vacation days until such time as the arbitrator's decision has been promulgated.
"IT IS FURTHER ORDERED that to alleviate any financial burden upon the Defendants, that all members of the Plaintiff Organization are required to select off-days and vacation days in accordance with the Orders of the Chief . . . . It is the clear intent of the Court by these Orders that all members of the [Association] shall make their vacation plans under both alternative methods, to-wit: the method in use heretofore for the past two years and the new methods as promulgated by the Chief. . . ."
On December 30, 1974, arbitrator Sembower issued an opinion and award sustaining the Association's grievance and holding that the Chief's orders and special notice violated the collective bargaining agreement. The award also required that scheduling be conducted in the same manner as it had been prior to the issuance of the orders.
On January 13, 1975, Chief Stamm issued a special notice virtually identical to the special notice of December 6, 1974. Significantly, as had the earlier notice, this notice stated that company officers were to make sure that no firefighter worked more than nine work days in a 27-day cycle.
On January 31, 1975, Judge CECI issued a memorandum decision confirming the arbitrator's award and permanently enjoining the enforcement by the City and Chief of the orders 4-74, 5-74, 6-74 and 7-74 and the special notice dated December 6, 1974. This permanent injunction also encompassed any subsequent orders which might violate the collective bargaining agreement and the arbitrator's award. The court also awarded the Association $500 in attorneys' fees, together with costs and disbursements. On February 4, 1975, an order for judgment was issued in conformity with the memorandum decision.
After the court's decision another dispute arose between the parties in relation to a memorandum distributed by the Chief at a staff meeting on January 29, 1975. This memorandum outlined a system for hiring volunteers for special duty. Under this system, battalion chiefs would chart the off-days each firefighter had scheduled in a 27-day period, and select volunteers in an order giving preference to those persons with the most off-days in the period. The purpose of this system was to prevent any firefighter from working more than nine days in a 27-day period. Implementation of this system began on or about February 1, 1975.
On February 24, 1975 the Association filed an order to show cause requiring the City and the Chief to show cause why they should not be held in contempt of the February 4 order. The petition for contempt attached to the order to show cause alleged that the City had not reimbursed those firefighters who had been deprived wages under the special notice of January 13, 1975, and also that the Chief had enforced the memorandum of January 29, 1975 in violation of the arbitrator's award and the order of February 4. The Association also served numerous written interrogatories upon the City and the Chief asking questions about the enforcement of the special notice of January 13, 1975. Thereafter, the City and the Chief filed an order to show cause in which they moved the circuit court to vacate the contempt proceedings.
On March 17, 1975 Judge CECI denied the motion to vacate the contempt proceedings. Testimony was taken on the petition for contempt. On March 19, 1975 the court issued a memorandum decision and an order for judgment in conformity with that decision was entered on March 24, 1975. The order for judgment adjudged the City and Chief in contempt of the court's order of February 4, 1975, assessing for the period of February 1, 1975, through March 19, 1975, a $200 per day fine against the City and a $100 per day fine against the Chief. The City and Chief were also permanently enjoined from unilaterally changing the scheduling of vacation days, holiday offs and work reduction days and the method of choosing firefighters for special duty from the procedures used in 1974. The court also ordered a referee be appointed to determine the amount of money to be paid to firefighters who were deprived of special duty under the Chief's procedures between December 31, 1974 and January 31, 1975.
The City and the Chief appeal from the December 19, 1974 order for preliminary injunction pending the arbitration award, the February 4, 1975 order confirming the award, permanently enjoining the Chief and City and awarding attorneys' fees, and the March 24, 1975 order adjudging the City and Chief in contempt.
The following issues are presented on appeal:
1. Did the circuit court abuse its discretion by issuing the December 19, 1974 order for a preliminary injunction pending the award of the arbitrator?
2. Did the arbitrator award upon a matter not submitted to him?
3. Did the arbitrator exceed his powers by making an award contradicting the collective bargaining agreement?
4. Was it proper for the circuit court to grant permanent injunctive relief in the orders of February 4 and March 24, 1975, when procedural requirements were not met?
5. Was the permanent injunction in the February 4, 1975 order sufficiently definite and certain to provide a basis for a finding of contempt for violation thereof?
6. Are the findings of contempt invalid because of a failure of the Association to meet the statutory procedural requirements?
7. Did the circuit court fail to make findings requisite the adjudications of contempt?
8. Was the evidence sufficient to sustain the circuit court's adjudications of contempt?
9. Was it proper for the circuit court to award the Association $500 in attorneys' fees by the order of February 4, 1975?
Preliminary Injunction
The appellants request that this court reverse the order of December 19, 1974 claiming the court abused its discretion.Under the circumstances of this case, the issue regarding the preliminary injunction is moot. The order of December 19, 1974 was issued pending the arbitrator's award, which was subsequently made on December 30, 1974. The award having been made, the relief given by the circuit court pending that award has been terminated. Regardless of this court's conclusion as to the propriety of the circuit court's action in requiring selection of work schedules under both methods pending the award, the result would have no practical effect upon the controversy. Under such circumstances, the issue is moot. City of Racine v. J-T Enterprises of America, Inc., 64 Wis.2d 691, 700, 221 N.W.2d 869 (1974). We recognize that exceptions to the general rule exist, such as where the issues are of great public importance, State v. Seymour, 24 Wis.2d 258, 261, 128 N.W.2d 680 (1964), where the constitutionality of a statute is involved, Doering v. Swoboda, 214 Wis. 481, 253 N.W. 657 (1934), or where the precise situation under consideration arises so frequently that a definitive decision is essential to guide trial courts, Carlyle v. Karns, 9 Wis.2d 394, 101 N.W.2d 92 (1960).
We conclude that the issue of the December 19, 1974 order is moot and not within any exception which would warrant deviation from the general rule that moot issues will not be determined. The appeal in respect to that order is therefore dismissed.
Award Beyond the Scope of Submission
Upon concluding that the orders issued by Chief Stamm on December 6, 1974 violated the terms of the collective bargaining agreement, the arbitrator directed that scheduling for the year 1975 be conducted as it had been in 1974. One of the appellants' contentions in challenging the circuit court's order of February 4, 1975, confirming the award, is that the arbitrator, in so requiring the maintenance of past practice, awarded on a matter not submitted to him. The parties here have agreed that secs. 298.08 through 298.15, Stats., shall apply to awards granted as the result of arbitration between them. Sec. 298.11(1)(b), Stats., requires the circuit court to modify or correct an award upon the application of a party where the arbitrator has awarded upon a matter not submitted. In this case, appellants did apply for such a modification and therefore, if the issue of maintenance of past practice was not submitted to the arbitrator, the circuit court should not have confirmed that aspect of the award.Under paragraph E of the portion of the collective bargaining agreement dealing with grievance arbitration, the City and Association provided: "The arbitrator shall expressly confine himself to the precise issues submitted for arbitration and shall have no authority to determine any other issue not submitted to him. . . ."
The issue therefore is whether the submission included the issue of whether the maintenance of past practice should be required. Where the question is whether a particular issue was submitted to the arbitrator this court has said:
"[I]t is not necessary that the subject be submitted by bill of particulars or with the same particularity required in pleadings. It is enough if a common intent as to what was submitted appears with reasonable certainty. If what was submitted appears by manifest implication it is as certain as if positively expressed." (citations omitted). Putterman v. Schmidt, 209 Wis. 442, 447, 245 N.W. 78 (1932). See also Manitowoc v. Manitowoc Police Dept., 70 Wis.2d 1006, 1012, 236 N.W.2d 231 (1975).
The intent of the parties as to what they submitted to the arbitrator is evidenced by the grievance form filed by the Association and by the opening remarks of counsel before the arbitrator. Upon the grievance form under "Statement of Grievance" the Association asserted that the orders and special notice of December 6, 1974 violated the collective bargaining agreement. Under "Action Requested" the Association asked: "That the Orders and Special Notice be rescinded and that the practices in effect in 1974 be placed into effect." Thus, maintenance of the past practice was the relief requested by the Association from the outset.
Before the arbitrator, counsel for the City and Chief spoke first and framed the issue to be determined as follows:
"[W]hether certain orders issued by the chief engineer of the Fire Department relative to the scheduling of vacations and relative to what is known as special duty work days are in violation of the substantive provisions of the agreement. . . ."
Counsel for the Association agreed that this was the issue before the arbitrator but added the request for the remedy of maintenance of past practice. In respect to this request for relief, counsel for the City then stated:
"Mr. Williamson's [counsel for Association] intent to propose to the arbitrator, that is the past or what he claims to be the past practice be the result that obtains out of these proceedings, we will submit that under the contract arbitration that could in fact only occur if the contract by its terms required that particular result. That is inasmuch — if it is determined that the contract does not require that particular state of affairs we would assume that we would have other alternatives in the event the arbitrator determined that these particular orders were in violation of the contract."
We think that the above exchange of views on the question of the issues submitted indicates a common intent to determine whether it should be required that the scheduling practices used in the past be maintained. Although the statement for the City shows disagreement with counsel for the Association, the disagreement is clearly as to the merits of the question, that is the propriety of the maintenance of past practice, in view of the collective bargaining agreement, and not as to whether the issue itself was before the arbitrator. Therefore, we conclude, it may not be said the arbitrator awarded upon a matter not submitted to him.
Award in Excess of Power
The appellants' second challenge to the award is founded on the claim that the arbitrator exceeded his powers. Under sec. 298.10(1)(d), Stats., where the arbitrator exceeds his powers, the circuit court must make an order vacating the award.Before the arbitrator, the City placed great reliance upon those provisions of the labor agreement which recognize the power of the Chief to manage and direct the operation of the fire department. These provisions are:
"PART II
". . .
MANAGEMENT RIGHTS
"B. "1. The Association recognizes the right of the City and the Chief Engineer, Fire, to operate and manage its affairs in all respects. The Association recognizes the exclusive right of the Chief Engineer, Fire, to establish and maintain departmental rules and procedures for the administration of the Fire Department during the term of this Agreement provided that such rules and procedures do not violate any of the provisions of this Agreement."2. The City and the Chief Engineer, Fire, have the exclusive right and authority to schedule overtime work as required in the manner most advantageous to the City.
". . .
"9. The Association pledges cooperation to the increasing of departmental efficiency and effectiveness. Any and all rights concerning the management and direction of the Fire Department and the fire force shall be exclusively the right of the City and the Chief Engineer, Fire, unless otherwise provided by the terms of this Agreement as permitted by law.
". . .
"SCHEDULE A
". . .
SPECIAL DUTY PAY
" "Effective upon the execution of this Agreement:"1. When the Chief Engineer, Fire, assigns men on off days for special duty, they shall be compensated in cash at a straight time rate computed on the basis of the employe's hourly rate of pay for the average work week in effect as established under the Hours of Work provision of this Agreement.
". . .
"3. Administration and control of the provisions of this paragraph shall be under the Chief Engineer, Fire, on an equitable basis.
". . .
VACATIONS
" ". . ."2. The scheduling of vacations shall be controlled by the Chief Engineer, Fire.
". . .
HOLIDAYS
" ". . ."2. The scheduling of such hours off shall be controlled by the Chief Engineer, Fire."
On the basis of the above quoted provisions, the City and Chief contended that the changes in scheduling effectuated by the orders and special notice of December 6, 1974, were within the "unfettered management function," and therefore the Chief could make such changes unilaterally.
The arbitrator, on the other hand, took particular note of the statements in the labor agreement that negotiation between the City and Union was favored in regard to changes in wages, hours and working conditions. The agreement contained the following provisions:
"PART II
". . .
WAIVER OF ACTIVITY
"C. "Both parties to this Agreement acknowledge that it is in their best individual and mutual interest to secure changes in wages, hours and working conditions through negotiations which culminate in a contract and pledge to observe this in good faith.". . .
"PART IV
AID TO CONSTRUCTION OF PROVISIONS OF AGREEMENT
"A. ". . ."5. During the term of this Agreement prior to the establishment of new rules or regulations or changes in existing rules or regulations, the Association shall be afforded the opportunity to negotiate with the Chief Engineer, Fire, in accordance with procedures agreed upon between the Association and the Chief Engineer, Fire, which will be prescribed and set forth in the rules of the Fire Department and become effective on the execution date of this Agreement, provided such new rules or regulations or changes in existing rules or regulations do not fall within the Chief Engineer, Fire's unfettered management function."
In reaching his decision, the arbitrator interpreted the various provisions of the agreement concerning the "unfettered management function" to apply "to the ministerial functions of rule and regulation making rather than the really substantive effect of such actions." He concluded that the matters covered by the orders and special notice of December 6, 1974 involved the substantive rights of the firefighters, and therefore those matters fell outside the unfettered management function. Consequently, the arbitrator determined that under the Agreement, specifically PART IV, A., 5, quoted above, the matters covered by the orders and special notice should have been the subject of meaningful negotiation. Such negotiation not having taken place, the arbitrator declared that the orders and special notice were in violation of the agreement and therefore void. Finally, the arbitrator directed that the scheduling for 1975 be conducted as it had been in the previous year.
The appellants contend the arbitrator exceeded his power by "manifesting an infidelity" to the collective bargaining agreement. Such infidelity was manifested by (1) the adoption of the ministerial — substantive distinction in regard to matters which fall within the unfettered management function, and (2) the requirement that past practice be maintained.
An arbitrator obtains his authority from the contract of the parties. Wisconsin Employment Relations Board v. Teamsters Local No. 563, 75 Wis.2d 602, 611, 250 N.W.2d 696 (1977). The function of the arbitrator in disputes under a collective bargaining agreement is to interpret and apply the agreement. Elkouri Elkouri, How Arbitration Works 296 (1976).
"[A]n arbitrator is confined to the interpretation of the collective bargaining agreement; he does not sit to dispense his own brand of justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to his obligation, courts have no choice but to refuse enforcement of the award." United Steelworkers of America v. Enterprise Wheel Car Corp., 363 U.S. 593, 597 (1960).
"Thus the arbitrator has authority to resolve only questions of contractual rights." Alexander v. Gardner-Denver Co., 415 U.S. 36, 53-54 (1974).
Judicial review of arbitration awards is very limited. The strong policy favoring arbitration as a method for settling disputes under collective bargaining agreements requires a reluctance on the part of the courts to interfere with an arbitrator's award upon issues properly submitted. United Steelworkers of America v. Enterprise Wheel Car Corp., supra at 596; Wisconsin Employment Relations Commission v. Teamsters Local 563, supra at 610. In Denhart v. Waukesha Brewing Co., 17 Wis.2d 44, 51, 115 N.W.2d 490 (1962), the court stated:
"While this court may disagree with the interpretation of the contract reached by the arbitrator, the parties contracted for the arbitrator's settlement of the grievance and that is what they received."
Thus, the function of the court upon review of an arbitration award is a supervisory one, the goal being merely to ensure that the parties receive the arbitration that they bargained for. Los Angeles Newspaper Guild, Local 69 v. Hearst Corp., 504 F.2d 636, 642 (9th Cir. 1974), cert. denied, 421 U.S. 930 (1975).
The appellants' first contention, that the arbitrator exceeded his powers by adopting the ministerial — substantive distinction in relation to the scope of the unfettered management function, is precisely that sort of contention which the court should find has no merit under the principles above. The arbitrator simply determined that the matters covered by the orders and special notice of December 6, 1974 did not fall within the unfettered management function, and therefore were subject to negotiation. This determination is a matter solely of the interpretation and application of the collective bargaining agreement, clearly within the arbitrator's authority. Therefore, the portion of the award concluding that the orders and special notice violated the agreement draws its essence from the agreement and should not be disturbed.
The appellants challenge to the second part of the award, which required the maintenance of past practice, however, has merit. We believe the direction that the past practice be maintained does not draw its essence from the collective bargaining agreement.
As concluded in the resolution of the preceding issue, the question of whether the past practice should be maintained was properly submitted to the arbitrator. Thus, the question before the arbitrator, who is authorized to resolve only questions of contractual rights, was whether the contract required that the past practice be maintained. Although the arbitrator did direct that such practice be maintained, it is clear from his decision that he did not do so because, under his interpretation and application of the agreement, maintenance of the past practice was required. Rather, this direction by the arbitrator, his decision shows, was based upon his understanding of the wishes of the parties.
It is clear from the record the appellants did not agree that if the orders and special notice were found to be violative of the collective bargaining agreement, then, solely upon that conclusion, the past practice could be required as the arbitrator saw fit. Counsel for appellants advised the arbitrator that, as far as they were concerned, that result could obtain only if under the agreement maintenance of the past practice was required.
The Association argues that the arbitrator did conclude that the labor agreement required the maintenance of the past practice "to the extent that the Chief could not unilaterally change substantial conditions of employment referred to in the Agreement." The arbitrator's direction of the maintenance of the former procedures is not, however, limited to that extent, for it precludes any change, even if it is not unilateral or related to substantive matters. The fact that the orders and special notice before the arbitrator were determined violative of the agreement does not compel the conclusion that any change was likewise violative.
The conclusion as to the orders and special notice related solely to those particular actions of the Chief, and did not extend to any and all future action. The direction of the maintenance of the past practice could only follow from a conclusion that any future action would be violative of the labor agreement; that is, that the agreement required the past practice be maintained.
The arbitrator stated there was no alternative but to direct that the past practice be maintained. This statement also follows the erroneous logic that because the particular orders and special notice before him were contrary to the agreement and void, the past practice was required. He also asserted, as a reason for his directive the fact that no sufficient basis had been established for supplanting the past practice. The arbitrator's statements indicate he believed he was obligated to direct something, whether that the past practices be maintained or that they be replaced. We think this evidences a complete misunderstanding of his authority in respect to this issue.
The arbitrator was to determine the question of whether past practice was required under the contract. He had already concluded that the orders and special notice were void and unenforceable. If he decided that the contract did not require the maintenance of the past practice, then his answer should have been simply that past practice was not necessarily required. If he concluded past practices were required by the agreement, the proper course would be to direct their maintenance. The arbitrator did not, however, find that the agreement required the maintenance of the past practice, yet he directed that they be maintained. By doing so, the arbitrator has added to the labor agreement a provision compelling the implementation of the scheduling practices utilized for the year 1974. This action is contrary to the admonition in the labor agreement that "[t]he arbitrator shall neither add to, detract from, nor modify the language of the Agreement." Although arbitrators are to be afforded flexibility and latitude in formulating remedies, the arbitrator here has not confined himself to the agreement, as he is required, and thus has denied the appellants the arbitration they bargained for. Since this aspect of the award has not drawn its essence from the collective bargaining agreement, the arbitrator exceeded his power in respect thereto. The circuit court, therefore, erred in confirming the part of the award which directed the maintenance of past practice.
It appears from the record that the permanent injunction imposed by the circuit court's order of February 4, 1975 and the subsequent adjudications of contempt are based to a large extent upon the arbitrator's direction of the maintenance of past practice. Therefore, it is impossible to determine if the circuit court would have proceeded as it did if the maintenance of past practice had not been directed. It is difficult to consider the remaining questions upon this appeal in the absence of this direction of the arbitrator. Thus, it is determined that, on the basis of the conclusion that the circuit court erred by confirming the arbitrator's direction that past practice be maintained, (1) the part of the order of February 4, 1975 confirming the arbitrator's decision that the orders and special notice were void be affirmed, (2) the remaining parts of the order of February 4, 1975 be reversed, and (3) the order of March 24, 1975 be reversed. The entire matter is remanded to the circuit court for further proceedings in light of the alteration of the arbitration award.
By the Court. — Appeal as to the order of December 19, 1974 is dismissed; remaining orders affirmed in part, reversed in part; cause is remanded for further proceedings consistent with this opinion.