### COURT OF APPEALS DECISION DATED AND FILED October 27, 2022

Sheila T. Reiff Clerk of Court of Appeals NOTICE
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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP770 Cir. Ct. No. 2021CV454 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

W EST S ALEM P OLICE A SSOCIATION ,
P LAINTIFF - R ESPONDENT ,

V .
V ILLAGE OF W EST S ALEM ,
D EFENDANT - A PPELLANT .

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 W IS . S TAT . R ULE 809.23(3).No. 2022AP770

2 ¶ 1 PER CURIAM. The Village of West Salem appeals a circuit court
order v acating a n 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 arbitrat or offered a reasonabl e interpretat ion of the agreement , we conclude that he did not exceed his authority . Accordingly, w e reverse the circuit court order

.
BACKGROUND

¶ 2 Jacob Donl ey is a police officer employed by the Vil lage , and he is a member of the local police union, the West Salem Poli ce Association . The Village and the Association are part ies to a collective bargaining agreemen t

. ¶ 3 In September 2020 , Don ley attended a work

- related training event and was exposed t o an individual who tested positive for the COVID

- 19 virus. As
a result of this expos ure, Donley’s police chief ordered him to quarantine for a period of 14 days.

¶ 4 Donley had been s cheduled to work 9 2 hours over that 14

- day period and, a ccording to the parties, the Village initially paid him for 92 hour s of work
for that 14

- day pay period

. 1 Three months later , t he 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, secti on 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 t he 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 address ed it. Nor, on appeal, (continued)No. 2022AP770

3 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 whi ch, generally speaking, provided that certain employees are eligible for up t o 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 ... c ollective bargaining agreemen t. ” Id. , § 5107.

¶ 5 A supervisor informed Donley th at he should have received 80 hours of pay , rather than 92 hours of pay, for the period that he was in quarantine. The

su pervisor advised him that there were several options to address t he overpayment

— 12 hours of pay could be deducted from a subsequent pay check 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 subseq u ent paycheck.

¶ 6 The Association filed a grievance on Donley’s behalf. It argued that Donley had been forced t o use holiday pay contrary to s ection 12. 0 1 of the collective bargaining agreement

. Specifically, the Association relied on the following language from section 12. 0 1 , which governs holiday pay and provides
as follows : Employees shall be entitled to seventy

- two (72)

hour s of Holiday Time per calendar year at the Employee’s

do t he parties argue that section 17.01 has any bearing on this dispute . For these reasons , we discuss it no further.No. 2022AP770

4 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 Villa ge shall pay out the unused holiday time ... at the regular rate of pay on the December 31 paycheck.
¶ 7 The Village ’s law enforcement c ommittee denied the grievance

. ¶ 8 The Association then sought arbitration, and the matter was assigned

to an ar bitrator employed by the state employment relations c ommission . Prior to the arbitration hearing, t he parties entered into a stipulat ion about certain facts , including the facts noted above. The arbitrator held an evidentiary hearing , and the parties submitted briefs.

¶ 9 T he Association argued that the Village ’s actions violated
section 12.01 of the collective bargain ing agreement ( which governs holiday pay and is quoted above) as well as s ection 9.01 (A) (which gov erns work period s)

. 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 y ear. The workdays will consist of t w o (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 tha t the Village had no authority to alter Donley’s schedule after the fact. It argued that Donle y’s choice to designate 12 hours as holiday pay was no real choice at all, and was in consistent with s ection 12.01, which provides that, “[a]t the Employee’s discretion, holidays can be scheduled as personal time off

. ”No. 2022AP770

5 According to the Association, the qu estion before the arbitrator was not whether Donley “ was given options as to how the se 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 pres ented 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 perfo rmed ... and to adopt and enforce reasonable rules and classification s ... which are not contrary to the provisions of this Contract

. ¶ 12 The Village also argued that there was no provision in the coll ective bargaining agreement requiring the V illage to pay Donley for t he 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 Familie s 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 decis ion siding with the Village. He rejected the Association’s argument that the Village had viol ated section 12 .01 of the collective bargaining agreeme nt 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 ha ve 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 heNo. 2022AP770

6 s tay 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 det ermined 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 pursu ant to the Families First Act.

¶ 14 The Association filed a summons and com plaint challenging the arbitrator’s decision in t he circuit court, and the circuit court vacated the arbitrator’s decision. The court determined t hat the arbitrator manifestly disregarded the law when he relied on the Fam ilies First Act in determining how much pay Donley was entitled to for his period of q uara ntine, without specifically addressing the collective bargaining agreement’s sect ion 2.01 (governing the Village’s management authority) or section 9.01 (A) (governing work periods) , which mad e up a substantial portion of each party’s arguments. The court further
determined that the collective bargaining agreement guarantee d that Donl ey should be paid for every hour that he had been scheduled to work during his period of q uarantine, 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 [section s 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.No. 2022AP770

7 ¶ 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 tha t 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 t o arbitration, they have
agree d 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. , 200 4 WI Ap p 54, ¶9, 271 Wis. 2d 697, 678 N.W.2d 311. A court’s ro le 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 70 7, 712, 348 N.W.2d 175 (1984).

¶ 18 The pertinent standards are set forth in W IS

. S TAT

. § 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.No. 2022AP770

8 arbitration award

. 4 Here, t he question is whether the arbitrator “exceeded [his] powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matte r submitted was not made. ” See § 788.10(1)(d ). Under this standard, w e 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. T he
arbitrator has exceed ed his powers only i f his decision demonstrate s “ ‘ perverse misconstruction ’ ” or “positive misconduct,” if he manifest ly disregard ed the law,
if his decision is illegal , or if it violates strong public policy. Baldwin

- Woodville
Area S ch. 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 7 12

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

4 Specifically, W IS

. S TAT

. § 788.10(1) provides that a circuit court mu st 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 ev idence 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 a ward up on the subject matter submitted was not made.No. 2022AP770

9 which was effective in September 2020 during Donley’s quarantine period, provided that employees are entitled to up to 80 hours of pay for pe riods spent quarantining based on a COVID

- 19 exposure . However, the Famili es First Act also provided that it shou ld not be construed “to in any way diminish the rights or benefits that an employee is entitled to under any ... c ollective bargaining agreement. ” Families First Act, supra , § 5107.

¶ 20 Although not expressly stated in these terms in his dec ision, we
und erstand the arbitrator to have framed the dispositive question as follows: Does
any provision in the collective bargaining agreement guarantee that an employee
who i s scheduled to work a certain number of hours, but do es not actually work
tho se hours, will be pa id for those hours ? In other words, the arbitrator addressed
whether the collective bargaining agreement require d 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 ho urs 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 Ass ociation],” the
ar bitrator 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 interp retation of those provisions.No. 2022AP770

10 ¶ 21 T he question for this court on appeal is whether the arbitrator “exceeded [his] authority” with t his interpretation of the collective bar gaining agreement , which is a contract between the Village and the Association . In a case like this, in which the arbitrator derives his aut hority from that contract, he is free to give his own constructi on to its provisions , but he is “‘without authority to disregard or modify ’” its plain language. Baldwin

- Woodville Area S ch. Dist. , 317
Wis. 2d 691, ¶25 (quoted sour ce 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 modifyin g’” the contract.
Baldwin

- Woodville Area S ch. Dist. , 317 Wis. 2d 691, ¶27 (quoted source omitted). According ly , “when an arbitrator’s interpretation of [the contract] has a foundation in reason, ‘it would be contrary to a policy which favors the final

re solution 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 As sociation does not demonstrate that the arbitrator exceeded his authority by disregard ing or modif ying 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 hou rs, whether or not the officer actually
work s them

.No. 2022AP770

11 ¶ 24 The Association relies on section 9.01 (A) , but that section does not contain any such gua rantee. Sect ion 9.01 (A) sets a specific work schedule for
of ficers, but does not specifically address pay ment 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) sha ll 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 i s 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.No. 2022AP770

12 review of or set ting 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, t he arbitrator offered a reasonabl e interpretation of the provisions
of the collective bargaining agreem ent 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 reinst ate the arbitrator’s decision.

By the Court.

— Order reversed

. This opinion will not be published. See W IS

. S TAT

. R ULE 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 w as 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 revie w of an arbitrator’s decision, and w e discuss the m no further.