Arbitrator, Not Court, Should Hear Vacation Dispute

Milwaukee County, Wisconsin and the Milwaukee Deputy Sheriffs’ Association are parties to a collective bargaining agreement. The contract contains an “incorporation” clause, providing that “all existing ordinances of the Board of Supervisors affecting wages, hours and conditions of employment not inconsistent with this agreement are incorporated herein.”

The Association and a number of its members sued the County, contending that it was violating an ordinance dealing with the determination of “years of service” for purposes of vacation accrual. When a trial court refused to hear the lawsuit, the Association appealed to the Wisconsin Court of Appeals.

The Court ruled that an arbitrator, and not the courts, should hear disputes about the vacation ordinance. The Court reasoned: “As we have seen, the Agreement incorporates all Milwaukee County ordinances affecting wages, hours and conditions of employment. The issue is how the plaintiffs’ rights under the vacation ordinance may be enforced.

“The collective bargaining agreement answers that question by providing that ‘disputes arising between the parties out of the interpretation of the provisions of this Agreement may be referred to arbitration.’ Therefore, the plaintiffs could have used the Agreement’s grievance procedure to get the relief that they seek here. The critical question is, however, whether they had to use the grievance procedure in lieu of filing this action. As the Circuit Court recognized, the answer is ‘yes.’”

The Court found that grievance and arbitration procedures included in a collective bargaining agreement are presumed to be exclusive remedies unless the parties to the agreement expressly agree that they are not. Finding no such express agreement to exclude the “incorporation” clause from arbitration, the Court held that the Association should have brought its challenge under the grievance procedure.

Milwaukee Deputy Sheriffs’ Associaton v. County of Milwaukee, 2010 WL 2671295 (Wis. App. 2010).

This article appears in the October 2010 issue