This opinion will be unpublished and

may not be cited except as provided by

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




City of Duluth, petitioner,



AFSCME Council 96, Local 66,


Filed April 20, 1999


Willis, Judge

Dissenting, Schumacher, Judge

St. Louis County District Court

File No. CX98600679

William P. Dinan, City Attorney, Bryan F. Brown, Deputy City Attorney, 410 City Hall, Duluth, MN 55802 (for appellant)

Sarah Lewerenz, AFSCME Council 96, 211 West Second Street, #205, Duluth, MN 55802 (for respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.



The City of Duluth appeals from a district court order denying the city's application to vacate an arbitrator's award and confirming that award, arguing the arbitrator exceeded his authority in granting a mileage reimbursement to city employees. We reverse.


On a rotating basis, employees of the City of Duluth's Water and Gas Department have standby duty, which requires them to report to work if there is an emergency from a leak in a city water or gas line. Unlike department employees who reside within the city limits, department employees who reside outside the city limits may not drive a city-owned vehicle home while on standby duty. After receiving a call that there is a leak, an employee who lives outside the city limits must drive his or her own vehicle to the city garage to get an appropriate city-owned truck before proceeding to the location of the emergency.

The department employees are represented by respondent AFSCME Council 96, Local 66 (AFSCME). The city and AFSCME entered into a collective bargaining agreement that establishes a grievance procedure, which includes arbitration. The contract does not address in any way mileage reimbursements to department employees for travel from home to work while on standby duty.

Employees who were denied a mileage reimbursement submitted a grievance. The city protested that the dispute was not grieveable and therefore that the arbitrator did not have jurisdiction over the issue. The arbitrator rejected the city's argument and awarded a mileage reimbursement to department employees who were involved in the dispute.

The city applied to the district court to vacate the arbitrator's decision, arguing the arbitrator exceeded his authority in awarding the reimbursement. The district court denied the application and confirmed the arbitrator's award. The city appeals.


The city argues that the arbitrator exceeded his authority in deciding the mileage-reimbursement dispute, claiming it was not grievable because it does not involve a term of the contract and therefore is not arbitrable. In reviewing an arbitration decision, the arbitrator is the final judge of both law and fact, but this court's review of an arbitrability determination is de novo. Independent Sch. Dist. No. 88 v. School Serv. Employees Union Local 284, 503 N.W.2d 104, 106 (Minn. 1993). There is a presumption in favor of arbitrability. Id. at 107. The burden of proving that a matter is not arbitrable is on the objecting party. Morrison v. Northern States Power Co., 491 N.W.2d 675, 677 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993).

In determining whether this dispute is arbitrable, we must look at the specific language of the contract. See Independent Sch. Dist. No. 88, 503 N.W.2d at 106 (stating that in determining arbitrability, it is necessary to look at specific contract language). The contract's arbitration clause provides that the "Union may * * * submit [a] grievance to arbitration." The contract defines a grievance as a "dispute or disagreement as to the interpretation or application of the terms of this Agreement."

The Minnesota Supreme Court addressed a similar issue and similar contract language in an appeal from a district court order that concluded a police department regulation was outside the scope of a collective bargaining agreement and was therefore not arbitrable. City of Brooklyn Center v. Minnesota Teamsters Pub. & Law Enforcement Employees Union Local No. 320, 271 N.W.2d 315, 316-17 (Minn. 1978). The agreement defined a grievance as "a dispute or disagreement as to the interpretation or application of the specific terms and conditions of" the agreement. Id. at 317. The supreme court emphasized that the agreement was "completely silent on the subject" that the regulation addressed. Id. at 318. The court concluded that the regulation was not part of the collective bargaining agreement and therefore was not subject to arbitration. Id.; see also Law Enforcement Labor Servs., Inc. v. City of Moorhead, 348 N.W.2d 405, 406 (Minn. App. 1984) (relying on Minnesota Teamsters, 271 N.W.2d at 315, to conclude collective bargaining agreement did not extend to matter not mentioned in agreement and declining to compel arbitration on that matter).

Because the collective bargaining agreement is completely silent on the subject of mileage reimbursements, there is no term to be interpreted or applied. The issue is not part of the terms of the agreement, and a dispute about such reimbursements is not a grievance within the meaning of the agreement. The dispute is therefore not arbitrable because the agreement permits AFSCME to submit only grievances to arbitration.

AFSCME argues the arbitrator correctly decided that this dispute is part of the terms of the collective bargaining agreement, and therefore is a grievance, because the city's policy "is made pursuant to" the city charter and because the savings clause states the agreement "is subject to the Laws of the United States and the State of Minnesota, and the Charter of the City of Duluth." But simply stating that the agreement is "subject to" outside sources of law does not incorporate those laws into the agreement. See, e.g., Minnesota Teamsters, 271 N.W.2d at 317-18 (concluding that dispute regarding city regulation having force and effect of ordinance was outside scope of collective bargaining agreement even though agreement was "subject to the laws of the United States, the State of Minnesota and the City of Brooklyn Center"); In re Arbitration Between Law Enforcement Labor Servs., Inc. & City of Crosby, 497 N.W.2d 308, 310-11 (Minn. App. 1993) (concluding savings clause in collective bargaining agreement that made it "subject to" laws of country, state, county, and city did not subject to arbitration dispute about matter not addressed by agreement but did preserve right of union member to pursue legal rights in district court), review denied (Minn. Apr. 29, 1993).

Adoption of the interpretation urged by AFSCME would mean not only that all subjects addressed by city policies made pursuant to the city charter would be issues subject to arbitration but also that all subjects addressed by federal and state laws would be issues subject to arbitration. Such an interpretation would render the limitations in the agreement's arbitration clause meaningless, which we are constrained not to do. See Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (Minn. 1990) ("Because of the presumption that the parties intended the language used to have effect, we will attempt to avoid an interpretation of the contract that would render a provision meaningless.") (citation omitted).

For the foregoing reasons, we conclude that the mileage-reimbursement dispute is not arbitrable and that the arbitrator exceeded his authority in deciding the dispute.

The city argues alternatively that even if the dispute is arbitrable, the arbitrator exceeded his authority in awarding the mileage reimbursement to employees, claiming that he thereby added a term to the collective bargaining agreement. Because we have decided the dispute is not arbitrable, we do not address this argument.


SCHUMACHER, Judge (dissenting)

I respectfully dissent. The district court confirmed the arbitration award, which found that the "language of the contract and the testimony of the parties showed convincingly that the parties intended" for mileage reimbursement to be part of the contract. The arbitrator stated:

While there is no provision in the Labor Agreement specifically pertaining to mileage reimbursement the contract provides at Article 6 that the " ... Agreement is subject to the Laws of the United States and the State of Minnesota and the Charter of the City of Duluth."

Indeed, the employer went to great lengths to describe in detail how a City policy is promulgated. This is done pursuant to the Charter of the City which provides for power to be delegated from the electorate to the Mayor and down the chain of command. The mileage reimbursement policy is one such citywide policy which provides clearly that mileage is to be paid when employees are required to drive their personal vehicles for business purposes. The language of the contract and the testimony of the parties showed convincingly that the parties intended for both of these policies to be a part of the relationship between the Union and the City.

(Emphasis added.)

The case we have before us is clearly a case of interpretation of a collective bargaining agreement. In Ramsey County v. AFSCME Council 91, Local 8, 309 N.W.2d 785 (Minn. 1981), the Minnesota Supreme Court quoted from the United States Supreme Court's Steelworkers Trilogy:

"[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his."

Id. at 790 (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S. Ct. 1358, 1362 (1960)) (citations omitted) (emphasis added).

Our judicial review is limited:

The proper role of judicial review in arbitration cases is solely to determine whether specific language in the agreement or submission precludes the arbitrator from deciding the case as he did.

City of Bloomington v. Local 2828 of AFSCME, 290 N.W.2d 598, 602 (Minn. 1980). We must be careful not to substitute our judgment for that of the arbitrator:

"[O]nly when it is established that arbitrators have clearly exceeded their powers must a court vacate an arbitration award. Every reasonable presumption must be exercised in favor of the finality and validity of the arbitration award, and courts will not overturn an award merely because they disagree with the arbitrator's decision on the merits."

Independent Sch. Dist. No. 279 v. Winkelman Bldg. Corp., 530 N.W.2d 583, 586 (Minn. App. 1995) (quoting State Auditor v. Minnesota Ass'n of Prof'l Employees, 504 N.W.2d 751, 754-55 (Minn. 1993)), review denied (Minn. July 20, 1995) (citations omitted). I would affirm.