(Dissenting).
In my view, the plain meaning of secs. 111.91(3) and 230.45(1) (f), Stats., authorizes the personnel commission to hear appeals of discharged probationary employees when the employer and the union have agreed in their labor agreement to permit such appeals. The legislature specifically approved the labor agreement involved in these cases which set up such an appeal procedure. I believe that sec. 230.28(5), permitting a civil service employer to discharge a probationary employee without the right of appeal, is applicable only in the absence of a contrary provision in the legislatively approved labor agreement.
I disagree with the majority’s conclusion that the legislature’s approval of the labor agreement between the union and the state, without the introduction of additional amending legislation (see sec. 111.92(1), Stats.), is fatal to the provision providing a right of appeal for probationary employees, although admittedly, such legislation would have avoided the problem we face here. I think the majority relies on a technicality and reaches the unjust result of voiding a contract provision in effect for four years, agreed to by both the employer and the union, and twice approved by the legislature.
Section 111.91(3), Stats., provides that certain subjects may be bargained at the employer’s discretion. It authorizes, without compelling, the employer to reach an agreement with the union “to provide for an impartial hearing officer to hear appeals on differences arising under actions taken by an employer under sub. (2) (b)l. and 2.” [Emphasis added.] A hearing officer’s decisions are reviewable by the personnel commission under sec. 230.45(1) (f). Section 111.91(2) (b)l. includes policies, practices and procedures relating to probationary periods. These sections explicitly authorize an employer and union to set up an appeal procedure regarding em*563ployer’s actions taken under its probation policy. Discharge surely falls in the realm of actions taken under the employer’s probation policy. This is not the same a,s saying that the employer and union may bargain on, and set up appeal procedures to deal with differences on the establishment of the employer’s policy on probationary employees. Determinations of policy are reserved exclusively to the employer.
Section 111.91(3), Stats., merely authorizes agreement on a procedure, which includes personnel commission review, for determining only if the action taken was arbitrary and capricious. I do not believe that this intrudes upon an employer’s autonomy in dealing with probationary employees, first, because the section does not compel the right to appeal, but only authorizes the employer to agree to it; and second, because it limits its authorization to the test of arbitrary and capricious actions.
Accordingly, I would hold that the statutes grant the personnel commission jurisdiction to hear probation discharge appeals where there is a labor agreement which so provides and that the legislature’s failure to amend the civil service statutes was not fatal to the provision in the legislatively approved labor agreement which set up the appeal procedure.
I would therefore reverse the trial court and remand for the trial court’s consideration of the merits of both the Miller and Dropik cases.