This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Independent School District No. 1,

Aitkin, Minnesota,





Education Minnesota-Aitkin,



Filed March 14, 2006

Minge, Judge


Aitkin County District Court

File No. C7-04-0741


Maggie R. Wallner, Kennedy & Graven, Chartered, 470 U.S. Bank Plaza, 200 South Sixth Street, Minneapolis, MN  55402 (for respondent)


Rebecca H. Hamblin, Education Minnesota, 41 Sherburne Avenue, St. Paul, MN  55103 (for appellant)


            Considered and decided by Minge, Presiding Judge, Randall, Judge, and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

MINGE, Judge

            In this appeal from an order vacating an arbitrator’s award, appellant argues that the district court erred by not deferring to the arbitrator’s decision on the arbitrability of a grievance.  Because we conclude that the arbitrator did not have jurisdiction, we affirm.


In May 2003, appellant Education Minnesota-Aitkin filed the first of three grievances on behalf of a teacher employed by respondent Independent School District No. 1, Aitkin, Minnesota.  On June 24, 2003, after the third grievance was denied, Education Minnesota requested arbitration of the grievances, pursuant to the parties’ collective bargaining agreement (CBA).   

            The CBA provides for arbitration as follows:

Section 7Arbitration Procedures: . . .  If the teacher and the Board of Education are unable to resolve a grievance, the grievance may be submitted to arbitration as defined herein:


            . . . .


            Subd. 2Selection of Arbitrator:  The representative of the Board of Education and the teacher or the teacher’s representative shall, within five days after the request to arbitrate, attempt to mutually select an arbitrator.  If the parties cannot agree as to the arbitrator, they will obtain a list of arbitrators and each will strike until one is left.  This process shall not take longer than ten additional days.


            . . . .


            Subd. 6Jurisdiction:  The arbitrator shall have jurisdiction over disputes or disagreements relating to grievances properly before the arbitrator pursuant to the terms of this procedure.  The jurisdiction of the arbitrator shall not extend to proposed changes in terms and conditions of employment as defined herein and contained in this written Agreement; nor shall an arbitrator have jurisdiction over any grievance which has not been submitted to arbitration in compliance with the terms of the grievance and arbitration procedure as outlined herein.


(Emphasis added.)

            Education Minnesota did not cooperate with the school district in selecting an arbitrator until November 10, 2003, well beyond the time provided in the CBA, when Education Minnesota obtained a list of arbitrators from the Bureau of Mediation Services.  On December 18, 2003, the district and Education Minnesota selected an arbitrator.  The district moved to dismiss the grievance three times before and during the arbitration hearing, arguing that Education Minnesota’s failure to cooperate in selecting an arbitrator within the time provided for in the CBA removed the grievance from the arbitrator’s jurisdiction.  The arbitrator denied the district’s motions and proceeded with the arbitration hearing.  The arbitrator resolved the grievance in favor of the teacher. 

            The district filed a motion in the district court to vacate the arbitrator’s award.  Because Education Minnesota failed to select an arbitrator within the time provided for in the CBA, the district court held that the arbitrator did not have jurisdiction to arbitrate the grievance and vacated the arbitrator’s award.  Education Minnesota’s appeal follows.


            The issue on appeal is whether the district court erred in determining that the arbitrator lacked jurisdiction.  “Minnesota policy strongly favors the finality of arbitration awards.”  Klinefelter v. Crum & Forster Ins. Co., 675 N.W.2d 330, 333 (Minn. App. 2004).  Appellate review of an arbitrator’s award is extremely narrow.  State, Office of State Auditor v. Minn. Ass’n of Prof’l Employees, 504 N.W.2d 751, 755 (Minn. 1993).  In the absence of an agreement limiting its authority, an arbitrator “is the final judge of both law and fact,” and the “award will not be reviewed or set aside for mistake of either law or fact.”  Id. at 754  (quotation omitted).  But a district court “is not bound by the arbitrator’s decision that its actions were within its authority.”  MedCenters Health Care, Inc. v. Park Nicollet Med. Ctr., 430 N.W.2d 668, 672 (Minn. App. 1988), review denied (Minn. Apr. 26, 1989).  And under Minnesota’s Uniform Arbitration Act, a district court shall vacate an arbitrator’s award if the arbitrator exceeded his power.  Minn. Stat. § 572.19, subd. 1(3) (2004). 

            When a party moves to vacate an arbitration award under section 572.19, subdivision 1(3), the only reviewable question is whether the arbitrator addressed an arbitrable issue.  Liberty Mut. Ins. Co. v. Sankey, 605 N.W.2d 411, 414 (Minn. App. 2000), review denied (Minn. Apr. 18, 2000).  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).

            The arbitrability of a grievance can be either substantive or procedural.  Millwrights Local 548, United Bhd. of Carpenters v. Robt. J. Pugleasa Co., 419 N.W.2d 105, 107 (Minn. App. 1988) (Pugleasa).  “Substantive issues examine whether the subject matter is arbitrable,” while “procedural arbitrability issues examine whether preliminary steps of the grievance procedure have been exhausted or excused.”  Id.  Because procedural arbitrability issues “and the merits of a grievance can be inextricably intertwined,” procedural issues are generally decided by the arbitrator and not the district court. 108.  Reviewing courts generally defer to the arbitrator’s decision on procedural arbitrability.  City of Morris v. Duininck Bros., 531 N.W.2d 208, 210 (Minn. App. 1995).  But a court can decide a procedural issue if the claim is strictly procedural and the decision bars arbitration rather than merely limits or qualifies an arbitrator’s award.  Id. at 211 (citing Pugleasa, 419 N.W.2d at 108, and John Wiley & Sons v. Livingston, 376 U.S. 543, 557-58, 84 S. Ct. 909, 918 (1964)).

            Education Minnesota asserts that the jurisdiction issue decided by the district court is procedural, that it was addressed by the arbitrator, and that it is not proper for the judiciary to decide or review the question.  Section 7, Article XIV of the CBA, set forth above, establishes the grievance procedure.  Pursuant to the CBA, the parties agreed that selection of an arbitrator would take place within 15 days after a request for arbitration.  There is no dispute that Education Minnesota delayed the selection of the arbitrator for almost six months, far beyond the 15 days provided for in the CBA. 

            The only explanation given for the delay was uncertainty over whether an Education Minnesota attorney or the teacher’s private attorney would handle the arbitration.  However, no continuance was sought and no explanation was given why an arbitrator could not be selected or why this uncertainty continued for several months.  The arbitrator refused to dismiss because he believed the CBA did not provide a remedy for delay and because the CBA provided that “the principles of . . . basic due process will be followed.”  This delay violates the clear terms of the arbitration procedure in the CBA, which state that the procedural requirements are jurisdictional.  There is no claim of waiver, estoppel, past practices, unfairness, extenuating circumstances or other considerations that would raise a factual question for the arbitrator to consider, that would result in the procedural issue being intertwined with the substantial dispute, or that would require inquiry about what steps were necessary to demand arbitration.  See Duininck Bros., 531 N.W.2d at 210-11. 

            Because of the jurisdictional language of the CBA and because there is no dispute, ambiguity, or defense for the arbitrator to consider or that would preclude or complicate a straightforward application of the CBA, we conclude the district court did not err in vacating the arbitrator’s award.