City of Madison v. Wisconsin Employment Relations Commission

2003 WI 52, 662 N.W.2d 318, 261 Wis. 2d 423, 2003 Wisc. LEXIS 419, 174 L.R.R.M. (BNA) 3165

• Court: Wisconsin Supreme Court
• Decided: May 30, 2003
• Docket: 99-0500
• Status: Published

Opinions

DIANE S. SYKES, J.

¶ 1. The issue in this case is whether a fire chiefs decision to return a firefighter promoted on a probationary basis to his previous rank for failure to successfully complete probation may be subjected to arbitration. We hold that it may not.

¶ 2. Given the statutory authority vested in the chief of the fire department under Wis. Stat. § 62.13 (1999-2000),¹ as specifically recognized in the parties' collective bargaining agreement, an arbitrator may not substitute his judgment for the chiefs determination that a firefighter under his command has not successfully completed probation and is therefore not qualified to advance from probationary promotion status to the permanent rank.²

I. FACTS AND PROCEDURAL HISTORY

¶ 3. On December 6,1994, the chief of the City of Madison Fire Department promoted firefighter Chris Gentilli to the position of fire apparatus engineer, subject to the approval of the Madison Police and Fire Commission ("PFC") and subject to a one-year probationary period. The PFC approved the promotion, effective January 1, 1995, subject to Rule 5.04 of the PFC Rules and Regulations, which states:

All promotional appointments shall be probationary for [12] months unless extended by the appointing authority for a longer probationary period. During said probationary period, the Chief may reduce the person appointed to that person's former rank. The appointee shall not be entitled to an appeal to the Board from the termination of a probationary appointment or any reduction in rank which results therefrom.

Madison Police and Fire Commission Rule 5.04.

¶ 4. Eleven months into the probationary promotion, on November 29, 1995, the fire chief informed Gentilli that his probationary appointment as an apparatus engineer was revoked. On December 22, 1995, Gentilli, through his union, filed a grievance seeking reinstatement to the rank of fire apparatus engineer and back pay and benefits associated with that higher rank.

¶ 5. The City of Madison ("City") declined to arbitrate the grievance, asserting that the Wisconsin Statutes and the collective bargaining agreement prohibited arbitration of this management decision. Specifically, the City pointed to section 9.Q.2 of the collective bargaining agreement, which states that "[a]rbitration shall not apply where section 62.13 of the Wisconsin Statutes is applicable and where Management has reserved rights relating to arbitration. ... "³

¶ 6. The union filed a prohibited practices complaint with the Wisconsin Employment Relations Commission ("WERC"). WERC held that the City was obligated to arbitrate the grievance and that its refusal to do so violated Wis. Stat. § 111.70(3)(a)5.⁴ WERC ordered the City to arbitrate the grievance.

¶ 7. The City sought review in Dane County Circuit Court. The Honorable C. William Foust affirmed WERC's order. On review, the court of appeals certified the case to this court pursuant to Wis. Stat. § 809.61, on two issues: 1) whether a firefighter who is promoted on a probationary basis but is returned to his or her former rank for failing to successfully complete probation for a non-disciplinary reason is entitled to the just cause protections of Wis. Stat. § 62.13(5)(em); and 2) whether the fire chiefs decision not to recommend successful completion of a probationary period for a promotion of a tenured firefighter to a higher position is subject to arbitration. We accepted the certification.

¶ 8. The court of appeals subsequently certified Kraus v. City of Waukesha Police and Fire Commission, No. 01-1106, which raised the threshold question of a chiefs authority to promote on a probationary basis, as well as the issue of the availability of the "just cause" hearing procedures of Wis. Stat. § 62.13(5)(em) in cases of non-disciplinary reduction in rank for failure to successfully complete probation associated with promotion. We concluded in Kraus, released with this opinion today, that a police or fire chief may promote on a probationary basis, and that the "just cause" provisions of Wis. Stat. § 62.13(5)(em) are not available when an officer promoted on a probationary basis is returned to his or her prior rank for failing to successfully complete probation. Kraus, 2003 WI 51, ¶ 3, 261 Wis. 2d 485, 662 N.W.2d 294. Thus, the sole remaining issue in this case is the arbitrability of a dispute over this particular type of management decision by a fire or police chief.

II. STANDARD OF REVIEW

¶ 9. This case involves consideration of the powers vested in police and fire chiefs and police and fire commissions by Wis. Stat. § 62.13, in light of the Municipal Employment Relations Act, Wis. Stat. §§ 111.70-77 ("MERA"), and the applicable collective bargaining agreement. We have previously held that de novo review is appropriate when the court must interpret a collective bargaining agreement in light of Wis. Stat. §§ 62.13 and 111.70:

In the typical case, the application of 111.70-77 to a particular labor dispute requires the expertise of the Commission [WERC], the agency primarily charged with administering it. Here the question does not concern the application of a labor statute but the Commission's power to enforce it in the first instance in the light of another state statute [Wis. Stat. 62.13], This issue, the relationship between two state statutes, is within the special competence of the courts rather than the Commission.

Glendale Prof'l Policemen's Ass'n v. Glendale, 83 Wis. 2d 90, 100-01, 264 N.W.2d 594 (1978). See also City of Brookfield v. WERC, 87 Wis. 2d 819, 827, 275 N.W.2d 723 (1979) ("We are persuaded by the Glendale reasoning that the WERC should not be accorded the authority to interpret the appropriate statutory construction to ch. 62.").

¶ 10. Thus, we "undertake an independent judicial inquiry into the proper construction of [§ 111.70] and its impact on the exercise of municipal powers enumerated in ch. 62." Brookfield, 87 Wis. 2d at 826; see also County of La Crosse v. WERC, 180 Wis. 2d 100, 107, 508 N.W.2d 9 (1993) (holding that de novo review is proper when considering the relationship between Wis. Stat. § 111.70 and another state statute).

¶ 11. Where a party has "challenged the arbitra-bility of [a] question and reserved the right to challenge in court an adverse ruling on arbitrability, the court [will] decide the issue of arbitrability de novo." City of Milwaukee v. Milwaukee Police Ass'n ("Milwaukee II"), 97 Wis. 2d 15, 21, 292 N.W.2d 841 (1980) (quoting Joint Sch. Dist. No. 10 v. Jefferson Educ. Ass'n, 78 Wis. 2d 94, 106, 253 N.W.2d 536 (1977)). See also Milwaukee Police Ass'n v. City of Milwaukee ("Milwaukee I"), 92 Wis. 2d 145, 150, 285 N.W.2d 119 (1979) (the question of an arbitrator's jurisdiction is for the court); Milwaukee Police Ass'n v. City of Milwaukee ("Milwaukee III"), 113 , 335 N.W.2d 417 (Ct. App. 1983), rev. denied, 114 Wis. 2d 602, 340 N.W.2d 201, (arbitrability is a question of law for the courts).

¶ 12. Because this case requires us to interpret the arbitration language in the parties' collective bargaining agreement in light of the provisions of Wis. Stat. § 62.13, we review WERC's conclusion de novo.⁵

III. THE APPLICABLE STATUTES AND RULES

¶ 13. Section 62.13 of the Wisconsin Statutes establishes a comprehensive system for the appointment of municipal firefighters and police officers. See Wis. Stat. § 62.13. It requires cities with populations of 4,000 or more to maintain a police and fire commission with jurisdiction over the hiring, promotion, and discipline of members of police and fire departments. This statutory grant of authority is shared by the chief and the board .of commissioners in the manner directed by the legislature. It is a legislatively designed system of accountability in the appointment of sworn officers, and it subjects the appointing authorities to mutual report, recommendation, and approval responsibilities. The statute provides:

The chiefs shall appoint subordinates subject to approval by the board. Such appointments shall be made by promotion when this can be done with advantage, otherwise from an eligible list provided by examination and approval by the board and kept on file with the clerk.

Wis. Stat. § 62.13(4)(a).

For the choosing of such list the board shall adopt, and may repeal or modify, rules calculated to secure the best service in the departments. These rules shall provide for examination of physical and educational qualifications and experience, and may provide such competitive examinations as the board shall determine, and for the classification of positions with special examination for each class. The board shall print and distribute the rules and all changes in them, at city expense.

Wis. Stat. § 62.13(4)(c).

¶ 14. The provisions of Wis. Stat. § 62.13 "shall be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of police and fire departments." Wis. Stat. § 62.13(12); see also Racine Fire and Police Comm'n v. Stanfield, 70 Wis. 2d 395, 398-99, 234 N.W.2d 307 (1975) (holding that the PFC may "assert its authority even when it may appear to be antagonistic to the policies of the city upon the overriding consideration that uniformity of management of fire and police affairs is a matter of statewide concern").

¶ 15. The statute gives the chiefs of fire and police departments the exclusive power to appoint subordinates. Wis. Stat. § 62.13(4) ("the chiefs shall appoint subordinates"). Such appointments "shall be made by promotion when this can be done with advantage" and are subject to approval by the board of police and fire commissioners, which has the power to adopt and modify "rules calculated to secure the best service in the departments." Id.

¶ 16. The Madison PFC has formalized the department's long-standing practice of requiring probationary periods as part of the appointment process by adopting various written rules, including Rule 5.04, which pertains to probation in the context of promotion:

All promotional appointments shall he probationary for [12] months unless extended by the appointing authority for a longer probationary period. During said probationary period, the Chief may reduce the person appointed to that person's former rank. The appointee shall not be entitled to an appeal to the Board from the termination of a probationary appointment or any reduction in rank which results therefrom.

¶ 17. Probationary periods are a valuable part of the appointment process, as they allow fire and police chiefs an opportunity to assess a candidate's performance in the position, and thus better measure a candidate's qualifications prior to making a final decision on appointment. Kaiser v. Bd. of Police and Fire Comm'rs, 104 Wis. 2d 498, 504, 311 N.W.2d 646 (1981); see also Ratliff v. City of Milwaukee, 795 F.2d 612, 624—25 (7th Cir. 1986); Hussey v. Outagamie County, 201 Wis. 2d 14, 19-21, 548 N.W.2d 848 (Ct. App. 1996); Milwaukee III, 113 Wis. 2d at 196. In the context of new hires, this court has stated that "[tjhere is no doubt that the use of a probationary period is an excellent means of examining candidates and is well-suited to securing the best service available." Kaiser, 104 Wis. 2d at 504.

¶ 18. Promotion decisions implicate these same managerial considerations and public safety policies. Accordingly, in Kraus, 2003 WI 51, ¶ 3, we have concluded that fire and police chiefs are authorized to impose probation when making promotions from within under Wis. Stat. § 62.13. Therefore, the Madison PFC's rule subjecting all promotions to a 12-month probationary period is valid, and Madison's fire chief had the authority to promote Gentilli to fire apparatus engineer on a probationary basis.

. ¶ 19. We have also concluded in Kraus that the "just cause" hearing provisions of Wis. Stat. § 62.13(5)(em) are not available to an officer who is returned to his or her prior rank for failure to successfully complete a probationary period associated with a promotion. Kraus, 2003 WI 51, ¶ 3. Here, in any event, neither Gentilli nor the City has asked that this matter be returned to the PFC for a "just cause" hearing under Wis. Stat. § 62.13(5)(em); they have instead focused their arguments on the arbitration issue.

IV ARBITRABILITY

¶ 20. The determination of whether an employment dispute is subject to arbitration centers on the arbitration language in the parties' collective bargaining agreement. " 'An order to arbitrate [a] particular grievance should not be denied unless it may be said with positive -assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.'" Milwaukee I, 92 Wis. 2d at 152 (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)). There is "a broad presumption of arbitrability," and courts are limited to determining whether the arbitration language in the contract encompasses the grievance in question and whether any other provision of the contract excludes arbitration. Milwaukee II, 97 Wis. 2d at 22. "When the court determines arbitrability, it is limited to considering whether the arbitration clause can be construed to cover the grievance on its face and whether any other provision of the contract specifically excludes it." Id. (emphasis added) (citing Joint Sch. Dist. No. 10, 78 Wis. 2d at 111).

¶ 21. Thus, there are two relevant contractual inquiries in the analysis of arbitrability: 1) does the arbitration clause cover the grievance on its face; and 2) is there another provision of the collective bargaining agreement that specifically excludes arbitration? Milwaukee II, 97 Wis. 2d at 22; Milwaukee I, 92 Wis. 2d at 151; Joint Sch. Dist. No. 10, 78 Wis. 2d at 111. The fact that the arbitration clause covers the grievance on its face does not end the inquiry; if another provision of the contract specifically excludes arbitration of the relevant dispute, then arbitration is unavailable. Milwaukee II, 97 Wis. 2d at 22; Milwaukee I, 92 Wis. 2d at 151; Joint Sch. Dist. No. 10, 78 Wis. 2d at 111.

¶ 22. In Milwaukee I, the collective bargaining agreement at issue expressly commanded that "the arbitrator shall take into account the special statutory responsibilities granted to the Chief of Police." Milwaukee I, 92 Wis. 2d at 156 (emphasis added). Far from prohibiting arbitration, the collective bargaining agreement in Milwaukee I expressly required the arbitrator to evaluate the chiefs statutory powers.

¶ 23. In Milwaukee II, the collective bargaining agreement directed that "[i]n reviewing any difference over application of a departmental rule or regulation under this grievance and arbitration procedure the arbitrator shall take into account the special statutory responsibilities granted to the Chief of Police under the 1911 Special Laws of the State of Wisconsin, Chapter 586, and amendments thereto." Milwaukee II, 97 Wis. 2d at 28 (emphasis added). That provision specifically authorized the arbitrator to consider and review the statutory powers of the chief.

¶ 24. Similarly, in Glendale, the collective bargaining agreement explicitly provided that the "arbitrator shall have initial authority to determine whether or not the dispute is arbitrable." Glendale, 83 Wis. 2d at 95. The agreement also expressly required the chief to appoint the most senior qualified candidate. Id. at 101. It did not contain any other provision specifically excluding arbitration.⁶

¶ 25. Here, the parties' collective bargaining agreement broadly recognizes and protects the management rights of the City and the chief of the fire department, including the right "[t]o hire, schedule, promote, transfer, assign, train or retrain employees in positions within the Fire Department." CBA, Article 5.C. The following additional provisions of the collective bargaining agreement are important here:

Any dispute with respect to Management Rights shall not in any way be subject to arbitration but any grievance with respect to the reasonableness of the application of said Management Rights may be subject to the grievance procedure contained herein.

CBA, Article 5.K.

Arbitration shall be limited to grievances over matters involving interpretation, application or enforcement of the terms of this Agreement.

CBA, Article 9.Q.I.

Arbitration shall not apply where Section 62.13 of the Wisconsin Statutes is applicable and where Management has reserved rights relating to arbitration in Article 5 of this Agreement.

CBA, Article 9.Q.2.

¶ 26. The first two sections quoted above might be read to generally permit arbitration of disputes regarding the reasonableness of individual applications of reserved management rights, as well as disputes regarding the interpretation, application, or enforcement of the terms of the agreement. The third quoted section, however, specifically and unequivocally excludes arbitration of matters falling within the chiefs or PFC's statutory authority under Wis. Stat. § 62.13: arbitration "shall not apply" when Wis. Stat. § 62.13 is applicable and management has reserved its rights in this regard. CBA, Article 9.Q.2.

¶ 27. Therefore, unlike the collective bargaining agreements at issue in Glendale, Milwaukee I, and Milwaukee II, which specifically granted arbitrators the authority to consider the chiefs statutory powers, the collective bargaining agreement at issue in this case specifically precludes arbitration of matters falling within the statutory authority of the chief and the PFC under Wis. Stat. § 62.13. Furthermore, neither Glendale, nor Milwaukee I, nor Milwaukee II permit the "transfer[ ] from the Chief or the Board the authority to determine who is qualified" or the "transfer [ ] away [of] the appointing authority." Glendale, 83 Wis. 2d at 107. And that is what WERC's interpretation of the collective bargaining agreement and the statutes effectively does here.

¶ 28. The Madison fire chief has determined that Gentilli failed to qualify for permanent promotion to fire apparatus engineer because he did not successfully complete his probationary promotion to that position. Gentilli's grievance seeks an arbitrator's reversal of the chiefs decision, restoration of the promotion, and back wages and benefits. The authority to determine who is qualified for appointment and promotion (and therefore who is entitled to wages and benefits associated with appointment or promotion) is statutorily vested solely with the chief and the PFC and may not be transferred to an arbitrator. See Glendale, 83 Wis. 2d at 106-07.

¶ 29. "[T]he chief is under no compulsion to promote an unqualified person," because a labor agreement may "not transfer[ ] from the Chief or the Board the authority to determine who is qualified" and must "preserve [ ] the statutory requirement that only qualified persons be appointed." Id.; see also Milwaukee I, 92 Wis. 2d at 158 (holding that an arbitrator has no authority to direct that a particular officer be given an assignment "since both the statutes and the collective bargaining agreement vest authority in the chief1 to make such decisions); Milwaukee II, 97 Wis. 2d at 26, 32 (holding that an arbitrator may not "substitute his own discretion for that vested in one or another of the parties" and vacating the arbitration award in light of the statutory obligations and prerogatives of a municipal officer). The relief Gentilli seeks cannot be granted by an arbitrator, because the power to evaluate qualifications, to appoint, and to promote belongs exclusively to the chief and the PFC under Wis. Stat. § 62.13. This dispute regarding the chiefs decision to return Gentilli to his previous rank for failure to successfully complete the probation promotion is not arbitrable.⁷

¶ 30. The court of appeals has reached a similar conclusion in the context of probationary new hires. Milwaukee III, 113 Wis. 2d at 198. In Milwaukee III, the court of appeals considered whether a police chiefs decision to terminate a probationary police officer was arbitrable:

We believe that to make a probationary termination arbitrable is to wholly vitiate the significance of a probationary term. As our supreme court noted in Kaiser, In examining candidates the board may limit persons on the basis of 'residence, health, habits and character.' To allow an arbitrator to reinstate a terminated probationary officer destroys the board's power to limit the selection of police officers on statutorily founded bases. Were we to so read the collective bargaining agreement to allow such a termination to be arbitrable, we would be allowing a general contractual term to govern over an express power to select as vested in police chiefs and boards granted in sec. 62.13(4), Stats., and a clear manifestation of legislative intent that the standards for the training and education of police officers are matters of statewide concern, as evinced in sec. 165.85(1), Stats. That we cannot do. Where a contractual provision is in direct conflict with a statute, the statute governs.

Milwaukee III, 113 Wis. 2d at 196 (citations omitted).

¶ 31. The court of appeals further noted that "[i]f an arbitrator may reverse the board's or chiefs exercise of discretion in terminating a probationary employe and reinstate him, the board's or chiefs decision becomes meaningless; it may then always be overridden by an arbitrator." Id. at 197. The court concluded that "[b]ecause the strong public policy behind secs. 62.13 and 165.85, Stats., would be thwarted if the broad, general, and not express language of the collective bargaining agreement were read to make probationary terminations arbitrable, we reject so broad a reading and hold that the question is not arbitrable."⁸ Id. at 198.

¶ 32. WERC's arbitration order, affirmed by the circuit court, would transfer to WERC and an arbitrator the statutory authority of the chief and the PFC to determine whether an employee is qualified to hold a particular position. Nothing in MERA authorizes WERC or an arbitrator to displace the authority of the chief or the PFC to make the difficult judgments regarding hiring and promotion that they are statutorily entitled and uniquely qualified to make.

¶ 33. Fire chiefs, police chiefs, and police and fire commissions are exclusively empowered to make, and are responsible for, appointment and promotion decisions under Wis. Stat. § 62.13, in order to "secure the best service" in their respective departments. Wis. Stat. § 62.13(4)(c). This statutory scheme does not contemplate that an arbitrator may overrule decisions that are specifically entrusted to the chief and the PFC; nothing in Wis. Stat. § 111.70 requires such an interpretation of § 62.13. Moreover, the collective bargaining agreement in this case specifically excludes disputes regarding management rights under § 62.13 from arbitration, and any interpretation of the agreement that would effectively transfer to an arbitrator the statutory authority of the chief and the PFC to make appointment and promotion decisions would clearly conflict with § 62.13. Accordingly, the decision of the circuit court affirming WERC's order to arbitrate Gentilli's grievance must be reversed.

By the Court. — The order of the Dane County Circuit Court is reversed.

1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version.

2 This case also presents a threshold question regarding the chiefs authority to promote on a probationary basis in the first instance. In Kraus v. City of Waukesha Police and Fire Commission, 2003 WI 51, ¶ 3, 261 Wis. 2d 485, 662 N.W.2d 294, also released today, we concluded that police and fire chiefs may promote officers on a probationary basis, and also held that the "just cause" hearing procedures of Wis. Stat. § 62.13(5)(em) are not available in cases of non-disciplinary reductions in rank for failure to successfully complete a probationary period associated with a promotion.

3 Wisconsin Statutes § 62.13(4)(a) provides that "[t]he [police and fire] chiefs shall appoint subordinates subject to approval by the board. Such appointments shall be made by promotion when this can be done with advantage, otherwise from an eligible list provided by examination and approval by the board and kept on file with the clerk." The statute further provides:

For the choosing of such list the board shall adopt, and may repeal or modify, rules calculated to secure the best service in the departments. These rules shall provide for examination of physical and educational qualifications and experience, and may provide such competitive examinations as the board shall determine, and for the classification of positions with special examination for each class. The board shall print and distribute the rules and all changes in them, at city expense.

Wis. Stat. § 62.13(4) (c).

4 The Municipal Employment Relations Act, Wis. Stat. § 111.70(3)(a)5, provides:

It is a prohibited practice ....

[t]o violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employees, including an agreement to arbitrate questions hrising as to the meaning or application of the terms of a collective bargaining agreement or to accept the terms of such arbitration award ....

5 See also Crawford County v. WERC, 177 Wis. 2d 66, 70, 501 N.W.2d 836 (Ct. App. 1993).

[Wlhether the proposal is bargainable turns on whether it abrogates or impermissibly interferes with the legal right of the three officials to appoint the designated subordinates. That is a question involving the interpretation of statutes outside the area of labor relations and the relationship of these sections to the applicable provisions of the Municipal Employment Relations Act. The issue is thus one of law 'within the special competence of the courts rather than the Commission.¹... As a result, we do not defer to the commission's decision.

Id. (quoting City of Brookfield v. WERC, 87 Wis. 2d 819, 826-28, 275 N.W.2d 723 (1979), and Glendale Prof'l Policemen's Ass'n v. Glendale, 83 Wis. 2d 90, 100-01, 264 N.W.2d 594 (1978)).

6 By requiring the chief to "appoint the most senior qualified candidate," the agreement in Glendale only permitted appointment of those candidates found to be qualified by the chief, and did not transfer to an arbitrator the chiefs statutory power to decide which candidates were qualified in the first instance. That is, it did not allow an arbitrator to decide, contrary to the decision of the chief, that a candidate was qualified to hold a particular position. Glendale, 83 Wis. 2d at 106-07.

7 Milwaukee I and Milwaukee II came before this court after arbitration had already taken place, and in each case this court vacated the relief granted by the arbitrator, holding that it violated the chiefs statutory powers. See City of Milwaukee v. Milwaukee Police Ass'n ("Milwaukee II"), 97 Wis. 2d 15, 292 N.W.2d 841 (1980), and Milwaukee Police Ass'n v. City of Milwaukee ("Milwaukee I"), 92 Wis. 2d 145, 285 N.W.2d 119 (1979). The court did not vacate the award and then proceed to order the arbitrator to craft a new measure of relief. Had those cases come before the court in the posture of this case, it is doubtful that the court would have remanded for an arbitration which the court had already declared could not be given effect.

8 WERC argues, and the circuit court held, that the court of appeals in Milwaukee III failed to engage in the arbitrability analysis employed in Milwaukee I and Milwaukee II. In Milwaukee III, the court of appeals discussed this court's decision in Glendale and noted that that case involved a collective bargaining agreement which "by express terms" had required the chief "to appoint the most senior qualified candidate." Milwaukee Police Ass'n v. City of Milwaukee ("Milwaukee III"), 113 Wis. 2d 192, 197, 335 N.W.2d 417 (Ct. App. 1983), rev. denied, 114 Wis. 2d 602, 340 N.W.2d 201. In contrast, the agreement at issue before the court of appeals in Milwaukee III was "without any such express term." Id. at 197 (emphasis in original). Therefore, as we have noted, the court concluded that "the strong public policy behind secs. 62.13 and 165.85, Stats., would be thwarted if the broad, general, and not express language of the collective bargaining agreement were read to make probationary terminations arbitrable." Id. at 198 (emphasis added). There is no conflict between the holding oí Milwaukee III that a dispute is not arbitrable if the collective bargaining agreement does not expressly make it arbitrable, and the holdings of Milwaukee I and Milwaukee II that require the arbitration clause to "cover the grievance on its face." See, e.g., Black's Law Dictionary 609 (7th ed. 1999) (equating "on the 'face'" with the "explicit part of a writing").

1 Glendale Prof'l Policemen's Ass'n v. City of Glendale, 83 Wis. 2d 90, 105, 264 Wis. 2d 594 (1978).