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 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

2

¶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)
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 which, generally speaking, provided that 

certain employees are eligible for up to 80 hours of paid sick leave for a COVID19-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.
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 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.” 
No. 2022AP770

5

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 
No. 2022AP770

6

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.
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 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.
No. 2022AP770

8

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.
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 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.
No. 2022AP770

10

¶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.
No. 2022AP770

11

¶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.
No. 2022AP770

12

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.