This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




St. Paul Police Federation, et al.,



City of St. Paul,


Filed January 19, 1998


Harten, Judge

Ramsey County District Court

File No. CX-97-9406

Mark W. Gehan, Jr., Sarah J. Batzli, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1379 (for appellants)

Clayton M. Robinson, St. Paul City Attorney, John B. McCormick, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Peterson, Judge.



Appellants, a police officer and his bargaining representative, challenge respondent city's decision to terminate without an arbitration hearing the officer's promotional probation. Because promotional probation is outside the scope of the arbitration clause in appellants' collective bargaining agreement, we affirm.


Appellant Harmon Modder, a patrol officer in respondent City of St. Paul's (City) police department, was promoted to sergeant contingent on his successful completion of one year's probation. Nine months later, the police chief notified Modder that he was demoted from sergeant and would resume his duties as patrol officer.

Modder and appellant St. Paul Police Federation, the police officers' bargaining representative, filed a grievance of the demotion under the grievance provision of the collective bargaining agreement and requested a hearing before the St. Paul Civil Service Commission. City denied the request on the ground that demotion from a probationary rank was not grievable. Appellants then argued that because the demotion was actually discipline without just cause it was grievable. City again claimed the demotion was not grievable and refused to arbitrate.

After appellants sued City to compel arbitration, the parties cross moved for summary judgment. In support of City's motion, the police chief filed an affidavit enumerating incidents during Modder's probationary period that led to the termination of his probation. City was awarded summary judgment. Appellants ask this court to reverse and remand for arbitration.


The issue of arbitrability is to be determined by ascertaining the intention of the parties through examination of the language of the arbitration agreement. * * * A reviewing court is not bound by the [district court's] interpretation of the arbitration agreement and independently determines whether the [district court] correctly interpreted the clause.

In re Arbitration Between Law Enforcement Labor Servs., Inc., and City of Crosby, 497 N.W.2d 308, 310 (Minn. App. 1993) (citations omitted), review denied (Minn. Apr. 29, 1993).

Appellants argue that Modder is entitled to arbitrate the decision to terminate his promotional probation. Their argument was rejected in Crosby. Id. at 309 (affirming a district court order staying arbitration proceedings on a grievance of the termination of probationary employment).

If * * * the controversy sought to be arbitrated is not within the scope of the arbitration clause of the contract, the court may interfere and protect a party from being compelled to arbitrate.

Id. at 310. The issue, then, becomes whether a controversy over the termination of promotional probation is within the scope of the arbitration clause of the collective bargaining agreement.

The arbitration clause is Step 4 of Article 6 - Grievance Procedure. It provides:

A grievance unresolved in Step 3 and appealed to Step 4 shall be submitted to arbitration subject to the provisions of the Public Employment Labor Relations Act of 1971.

There is no other provision for arbitration. Therefore, appellant is entitled to arbitration only if he has a grievance. Grievance is defined at section 6.1 of the agreement as

a dispute or disagreement as to the interpretation or application of the specific terms and conditions of the AGREEMENT.

It is specifically understood that any matters governed by Civil Service Rules or statutory provisions shall not be considered grievances and subject to the grievance procedure hereinafter set forth. Disciplinary actions may be appealed to the Civil Service Commission or to an arbitrator.

Civil Service Rule 10 governs probation, providing a probationary period of one year for all "promotion appointees" and stating that:

If any probationer on fair test shall be found incompetent or unqualified to perform the duties of the position to which they have been certified or transferred, the appointing officer * * * may * * *discharge, reduce, or in the case of the transferee, return to their former position said probationer at any time during the probationary period * * *.[1]

Probation is clearly governed by the civil service rules, and the arbitration provision specifically excludes matters governed by the civil service rules. Therefore, "the controversy sought to be arbitrated is not within the scope of the arbitration clause of the contract" and the court correctly "protect[ed respondent] from being compelled to arbitrate." Crosby, 497 N.W.2d at 310. Crosby noted "language in the collective bargaining agreement showing an intention not to give a probationary employee the right to arbitrate discharge from employment." Id. Analogously, the bargaining agreement here excludes from arbitration matters governed by the civil service rules, and probation is a matter governed by those rules.

Appellant relies on Local No. 1119, AFSCME v. Mesabi Reg'l Med. Ctr., 463 N.W.2d 290 (Minn. App. 1990) and on Duluth Police Local v. City of Duluth, 466 N.W.2d 36 (Minn. App. 1991) (both reversing denials of motions to compel arbitration). Both cases are distinguishable because neither involved an agreement that explicitly excluded from arbitration matters covered by the civil service rules.

Mesabi Reg'l Med. Ctr. involved two agreements. One provided that the union could bargain for hours of work, that management could determine hours to be worked, and that grievances could be referred to arbitration; the other provided that the union could negotiate terms and conditions of employment, that management could hire, and that grievances could be submitted to arbitration. Id. at 292-94. Controversies over management decisions to turn full-time positions into part-time positions and to hire temporary employees were held to be covered by the arbitration clauses and arbitration was compelled. Id.

In Duluth Police Local, the collective bargaining agreement provided both that grievances were to be arbitrated and that an employee objecting to discipline could request a civil service hearing. 466 N.W.2d at 37. Because it was not clear whether discipline grievances were to be resolved by arbitration or by the civil service board, the scope of the arbitration provision was debatable and therefore to be determined by an arbitrator. Id. at 39.

Appellants rely on Minnesota Ed. Ass'n v. Independent Sch. Dist. No. 495, 290 N.W.2d 627 (Minn. 1980) to argue that the clause subjecting the collective bargaining agreement to the requirements of the St. Paul City Charter and the civil service rules compels arbitration. Minnesota Ed. Ass'n involved a contract that did not mention teachers' preparation time but said that teachers were not to be deprived of rights they had under Minnesota school regulations, which gave them preparation time. Id. at 628. Arbitration was compelled because "arbitrability of * * * preparation time grievance [was] reasonably in doubt." Id. at 627.

Crosby distinguished Minnesota Educ. Ass'n:

The supreme court [in Minnesota Educ. Ass'n] found that the right [to preparation time] asserted was recognized both in the board of education rules and in the contract itself. In contrast, the union here is unable to show any legal requirement for arbitration of a probationary employee's discharge from employment.

Crosby, 497 N.W.2d at 311. We distinguish Minnesota Ed. Ass'n here on the same grounds--there is no legal requirement for arbitration of a termination of promotional probation.

Appellants rely on Minnesota Ed. Ass'n to argue that a legal requirement for arbitration is derived both from the St. Paul City Charter, because Modder allegedly was terminated without regard for his competence and the charter provides for advancement based on competence, and from the civil service rules, because Modder allegedly was terminated without a fair test and the rules provide for termination of probation upon a fair test. But the record reflects that Modder was terminated with due regard for his competence and qualification for the position and after a fair test. Modder held the probationary position for eight months during which several events furnished a basis for terminating his probation.[2] We conclude that appellants' argument that the charter and the rules mandate arbitration is without merit.


[1] The rule also provides hearings for those entitled to veterans' preference. Modder is not a veteran. We note that appellants' argument would expand the veterans' preference act to include everyone.

[2] These included instances of uniform violations, complaints about Modder's treatment of female officers, failure to comply with a supervisor's directive, an unwarranted request for overtime, inappropriate remarks about paperwork generated by an officer's injury, and deterioration in performance evaluation.