This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Arbitration between:
City of Brooklyn Park,
Brooklyn Park Police Federation,
Filed January 8, 2002
Hennepin County District Court
File No. CT-00-15998
John M. Lefevre, Jr., Robert A. Alsop, Kennedy & Graven, Chartered, 470 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Kathryn M. Engdahl, Metcalf, Kaspari, Howard, Engdahl & Lazarus, P.A., 1660 South Highway 100, Suite 333, Minneapolis, MN 55416-1531 (for appellant)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Foley, Judge.*
Appellant, a police collective bargaining unit, challenges the district court’s vacation of an arbitrator’s decision directing that respondent City re-open a position in its police department. Because we conclude that the parties’ dispute was not arbitrable and that the arbitrator exceeded the authority conferred on her by the collective bargaining agreement (CBA), we affirm.
The relationship between appellant Brooklyn Park Police Federation (BPPF) and respondent City of Brooklyn Park (City) is governed by a CBA that provides in relevant part:
5.1 The EMPLOYER [i.e. City] retains the full and unrestricted right to operate and manage all manpower, facilities, and equipment; to establish functions and programs; to set and amend budgets; to determine the utilization of technology; to establish and modify the organizational structure; to select, direct, and determine the number of personnel; to establish work schedules, and to perform any inherent managerial function not specifically limited by this AGREEMENT.
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7.1 Definition of a Grievance
A grievance is defined as a dispute or disagreement as to the interpretation or application of the specific terms and conditions of this AGREEMENT.
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7.5 Arbitrator’s Authority
A. The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or subtract from the terms and conditions of this AGREEMENT. The arbitrator shall consider and decide only the specific issue(s) submitted in writing by the EMPLOYER and BPPF, and shall have no authority to make a decision on any other issue not so submitted.
B. * * * The [arbitrator’s] decision shall * * * be based solely on the arbitrator’s interpretation or application of the express terms of this AGREEMENT * * * to the facts of the grievance presented.
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9.4 Senior employees will be given preference with regard to transfer, job classification assignments, and promotions when the job-relevant qualifications of employees are equal.
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23.2 The parties mutually acknowledge that during the negotiations which resulted in this AGREEMENT, each had the unlimited right and opportunity to make demands and proposals with respect to any term or condition of employment not removed by law from bargaining. All agreements and understandings arrived at by the parties are set forth in writing in this AGREEMENT for the stipulated duration of this AGREEMENT. The EMPLOYER and BPPF each voluntarily and unqualifiedly waives the right to meet and negotiate regarding any and all terms and conditions of employment referred to or covered in this AGREEMENT or with respect to any term or condition of employment not specifically referred to or covered by this AGREEMENT, even though such terms or conditions may not have been within the knowledge or contemplation of either or both of the parties at the time this contract was negotiated or executed.
The CBA says nothing about posting notices of open positions, and the parties agree that they never negotiated the posting of notices.
In February 2000, City posted a notice for an opening for a senior high school liaison officer. Two police officers applied, and the job was awarded to the more senior officer. Two days later, City awarded the other applicant a position as a liaison officer at a junior high school. Notice of the latter position had not been posted.
Although no member of BPPF claimed a violation of rights because of City’s failure to post the job, the president of BPPF filed a grievance. The grievance went to arbitration, where BFFP provided evidence that City had posted job openings in the past and that another BFFP member might have been interested in, and entitled to, the job. The arbitrator determined first that the issue of whether City had an obligation to post notices of every job opening was arbitrable, and then decided that City had an obligation to post the junior high school position. The arbitrator ordered the junior high position to be re-opened and notice to be posted.
City challenged the arbitrator’s award in district court. The district court vacated the award, finding that the arbitrator exceeded her powers by reading a notice requirement into the CBA. BPPF challenges the vacation of the award, arguing that the matter was arbitrable and that the arbitrator did not exceed her authority.
D E C I S I O N
Appellate courts review a determination of arbitrability de novo. Indep. Sch. Dist. No. 88 v. Sch. Serv. Employees Union Local 284, 503 N.W.2d 104, 106 (Minn. 1993). BPPF contends that the issue of whether City had an obligation to post notices of job openings was arbitrable. But the CBA provides that an arbitrator’s decision “shall be based solely on the arbitrator’s interpretation or application of the express terms of this AGREEMENT . . . to the facts of the grievance presented.” The CBA contains no express term about posting notices, and the issue addressed in the grievance was City’s failure to post a notice. Consequently, the arbitrator could not interpret or apply a term of the CBA to the grievance.
BPPF relies on Duluth Police Union v. City of Duluth, 360 N.W.2d 367, 370 (Minn. App. 1985) (an “arbitrator properly concluded that reassignments [of police officers] were * * * arbitrable because the seniority provision effectively limits the City’s right to assign”) to argue that this matter is arbitrable. But BPPF’s reliance is misplaced; Duluth Police Union is distinguishable on two grounds. First, City does not dispute that its right to assign officers is limited by a seniority provision. Second, the case concerned an officer who was dissatisfied with his reassignment. Here, no grievant officer was even a party to the arbitration. Moreover, Duluth Police Union does not address the issue here, i.e., whether the CBA’s seniority provision imposes on City a duty to post notices of every opening.
BPPF also relies on Ind. Sch. Dist. No. 88 v. Sch. Serv. Employees Union, 503 N.W.2d 104 (Minn. 1993), to argue that the consequence of City’s decision not to post notices is subject to arbitration, even if the decision itself is not. Ind. Sch. Dist. No 88 is also distinguishable. It involved a school district’s decision to contract out the work done by the bargaining unit’s members, thus eliminating the unit.
Although the decision to contract out may be an inherent managerial right, the effects of that decision may still be subject to negotiation and arbitration.
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Because the school district’s actions effectively eliminated the entire bargaining unit while the contract remained in effect, the district’s actions amounted to a “subversion of the labor agreement” in violation of the “recognition” and “contract in effect” clauses.
Id. at 107, 110. Here, no provision of the CBA was violated by the absence of a notice, and, far from eliminating the bargaining unit, City’s act allegedly affected at most one member of that unit who did not pursue a grievance.
We conclude that absent any language in the CBA pertaining to posting notices, City’s failure to post a notice did not generate an arbitrable controversy.
2. Exceeding Authority
Assuming, arguendo, that the parties’ dispute was arbitrable, the arbitrator exceeded her authority in resolving it by reading into the CBA an obligation to post notices. In cases where an arbitrator has clearly exceeded his or her powers, this court must vacate the award. National Indem. Co. v. Farm Bureau Mut. Ins. Co., 348 N.W.2d 748, 750 (Minn. 1984) (citations omitted). On appeal, we do not review the decision of the district court from which the appeal is taken but rather, we review the arbitrator’s decision. See, e.g., Duluth, 360 N.W.2d at 370.
The CBA provides that an arbitrator “shall have no right to * * * add to * * * the terms and conditions” of the CBA. Here, the arbitrator in effect amended the CBA to include a requirement that City post notices of every open position. BPPF relies on Ramsey County v. AFSCME, 309 N.W.2d 785, 791 (Minn. 1981) (arbitrator considered the parties’ conduct because it, like their contract, is “indicative of their mutual intent”), to argue that City’s practice of posting notices imposed an extra-contractual obligation to continue posting notices. Ramsey County, however, is distinguishable. It concerned six appraisers who had been employed and had accrued vacation prior to the effective date of a collective bargaining provision that altered vacation accrual. Id. at 787. The bargaining unit contended that the new provision was superceded by an oral agreement providing that the change would affect only those employed subsequent to its adoption.
The procedural posture of Ramsey County is the antithesis of the situation here. There, the parties agreed “that the dispute was properly before the arbitrator for decision,” that the issue the arbitrator was to resolve was whether one party had violated the parties’ agreement, and that the parties had bargained for the arbitrator’s interpretation of the contract. Id. at 788. The reviewing court was limited to determining whether the arbitrator’s award “[drew] its essence from the collective bargaining agreement.” Id. at 790 (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 1361 (1960)). Here, the reviewing court must first determine whether the issue is arbitrable.
The award in Ramsey County was held to meet the “essence test,” because,
[in] addition to the express contractual language, the arbitrator was entitled to consider the past practice of the parties, conversations which took place prior to the negotiation of the collective bargaining agreement and the effect upon employee morale [if the complaining parties were denied their previous vacation plan]. In his judgment, those considerations outweighed the evidence of the parties’ intent as manifested by their written words.
Id. at 793. There was no comparable evidence to outweigh the CBA here. The parties’ intent as manifested by the CBA was that:
All agreements and understandings arrived at by the parties are set forth in writing in this AGREEMENT for the stipulated duration of this AGREEMENT. The EMPLOYER and BPPF each voluntarily and unqualifiedly waives the right to meet and negotiate regarding any and all terms and conditions of employment referred to or covered in this AGREEMENT or with respect to any term or condition of employment not specifically referred to or covered by this AGREEMENT, even though such terms or conditions may not have been within the knowledge or contemplation of either or both of the parties at the time this contract was negotiated and executed.
The single fact that City previously posted notices does not outweigh this clear manifestation of the parties’ contrary intent. The arbitrator’s award here did not derive its essence from the CBA; it contradicted the CBA.
BPPF also argues that posting notices is necessary to effectuate the seniority provision of the CBA. Again, this reads new language into the CBA. The seniority provision states only that, when all other job-relevant qualifications are equal, the more senior officer will receive the job; it does not say that every officer must receive notice of every job. Any aggrieved police officer would have the right to file a grievance, regardless of whether a notice had been posted. None did so.
We conclude that the parties’ dispute was not arbitrable and that, in any event, the arbitrator exceeded her authority in resolving that dispute.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 It could also be argued that, under the CBA, no grievance was presented. A grievance is defined in the CBA as “a dispute or disagreement as to the interpretation or application of the specific terms and conditions of this Agreement.” The parties had no dispute over a specific term of the CBA because no term pertained to the posting of notices.
 Analogously, when the supreme court reviews this court’s review of a district court’s review of an arbitrator’s award, the supreme court addresses the arbitrator’s original award. See, e.g., Ind. Sch. Dist. No. 8, 503 N.W.2d at 106.