This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




In Re the Matter of Grievance

Arbitration Between AFSCME

Council 96 and Lake County

Nursing Home Board (Sunrise).

Filed February 24, 1998


Forsberg, Judge


Lake County District Court

File No. C0-97-122

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

Steven C. Fecker, 504 N.W. First Avenue, Suite 205, P.O. Box 206, Grand Rapids, MN 55744 (for respondent Lake County Nursing Home Board)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.



Appellant union contends the district court erred when it denied the motion to compel arbitration of a grievance over termination of an employee. We affirm.


The Lake County Nursing Home board (Sunrise) suspended Tammy Brasel on October 22, 1996, pending the investigation of an incident that had occurred that day. On October 25, 1996, the nursing home board terminated her employment. Brasel was a member of the AFSCME Council 96 labor union (the union); her employment was governed by a collective bargaining agreement that allowed the employer to discipline employees only for just cause and to discharge employees only after a five-day suspension. After Brasel's termination, the union filed a grievance with the nursing home board, alleging that her dismissal violated these provisions of the collective bargaining agreement.

Following the grievance procedure, union representative Anthony Orman met with Brasel, the nursing home board, and the Lake County attorney, Bruce Anderson, on November 15, 1996. In support of the grievance, Orman argued that Brasel's blood pressure problem may have contributed to the incident giving rise to her termination. He argued that the administrator, who had taken Brasel's blood pressure reading on the day of the incident, should have sent her home. Orman told Anderson that Brasel may have a claim under the Americans with Disabilities Act (ADA) due to her high blood pressure condition. Orman argued that the county could face liability for failing to accommodate Brasel reasonably because the nursing home administrators knew of her blood pressure problem, but had not done anything to accommodate her on the day in question. Orman told Anderson that if the nursing home did not settle, it may have to face Brasel's claims in court. The parties negotiated an oral settlement at the November 15 meeting.

On November 20, 1996, Anderson sent Orman a letter outlining the proposed settlement: If the county lifted the termination, Brasel would resign effective March 2. Lake County would maintain her full pay status "and have the option to utilize her services in any fashion consistent with the duties of a registered nurse at the Sunrise Nursing Home" or not call her or utilize her services in any respect. This letter made no mention of any waiver of claims against the county or the nursing home board and matched Orman's notes that he had taken during the November 15 meeting.

After conferring with the nursing home board, Anderson informed Orman that the board found the settlement offer acceptable. On November 26, 1996, Anderson obtained the nursing home board's acceptance of the offer at a board meeting that Orman also attended.

When Orman requested the agreement in writing, Anderson sent a letter on November 27, 1996, in which he listed all of the settlement terms, including a new provision:

Upon this grievance being settled in this fashion, Ms. Brasel will also sign a release to Lake County of any and all claims and causes of action arising out of her term of employment within Lake County, but such release of any and all claims would not affect her on-going rights under the Unemployment Compensation Laws of the State of Minnesota as they may or may not be applicable to her case where there is a resignation. Of course, she will withdraw her current application for unemployment and it will be renewed, if appropriate, after her resignation takes effect on March 2, 1997.

This paragraph was new to Orman and Brasel, since it had neither been negotiated during the earlier meeting nor included in the first summary of the November 20 agreement. Anderson followed up with a December 11 letter that included the proposed release for Brasel to sign.

After consulting her attorney, Brasel rejected the settlement and release and demanded a lump sum settlement of $30,000, plus other conditions. The county attorney responded that the nursing home board believed that it had reached a settlement agreement with Brasel, the terms of which she had agreed to and under which she had already received continued health insurance benefits. When the nursing home board refused to take further steps in the grievance procedure, the union brought this action in district court to compel arbitration over the validity of the proposed settlement and the alleged waiver of claims.

After a hearing, the court denied the motion to compel, reasoning that the parties had already reached a settlement regarding the termination and any issues regarding the employee's waiver of other civil claims against the employer were not properly before the court because the union was without authority to resolve such claims.


The union contends the parties never settled the grievable claims under the collective bargaining agreement. The collective bargaining agreement defines grievance as "an allegation by an employee resulting in a dispute or disagreement as to the interpretation or application of this Agreement." Brasel's official grievance asserted violations of article 16, sections 1, 5, and 6 of the collective bargaining agreement based on the employer's decision to discipline Brasel allegedly without just cause and its failure to follow proper procedures in the disciplinary process.

When parties dispute the existence of a settlement, the district court must determine the facts and decide whether the parties reached settlement. Jallen v. Agre, 264 Minn. 369, 373, 119 N.W.2d 739, 743 (1963); Rosenberg v. Townsend Rosenberg & Young, 376 N.W.2d 434, 438 (Minn. App. 1985). In contending the district court erred when it determined the parties had settled the grievable claims, the union challenges the validity of the settlement on the basis that it was never reduced to a signed writing. A settlement need not be reduced to a signed writing, however, so long as the parties have orally agreed to the settlement. Johnson v. Sitzman, 413 N.W.2d 541, 544 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987); see also Shell v. Amalgamated Cotton Garment, 871 F. Supp. 1173, 1181 n.16 (D. Minn. 1994) (upholding settlement, noting assent to settlement is not contingent on writing, and summarizing Minnesota law on issue), aff'd 43 F.3d 364 (8th Cir. 1994).

The undisputed record shows the parties orally agreed to the terms of the settlement on the grievable claims during the November 15 meeting. Union representative Orman also attended without objection the meeting of the nursing home board at which the county attorney presented the terms of the settlement. So long as the parties entered an oral contract to settle the grievable claims, the fact that the settlement was never reduced to a formal document for the parties to sign does not render it invalid.

The union also challenges the validity of the settlement by arguing that the parties never achieved mutuality of assent with regard to the waiver of the civil claims issue. See Jallen, 264 Minn. at 373, 119 N.W.2d at 743 (because compromise settlement is contractual in nature, valid settlement requires offer and acceptance that reflect parties' meeting of minds on essential settlement terms); see also Restatement (Second) of Contracts § 18 (requiring "manifestation of mutual assent").

The settlement of the grievable claims is a separate and distinct issue from the waiver of Brasel's civil claims. The record contains no evidence that Brasel ever accepted the waiver as a term of the agreement. Indeed, the record suggests the county never made a proper offer of that term during negotiations. But that lack of mutual assent to the waiver of civil claims does not jeopardize the parties' settlement of the grievable claims. Before the county ever presented the waiver issue, the parties had reached an agreement on all grievable claims under the collective bargaining agreement.

Furthermore, the union's argument regarding Brasel's waiver of civil claims is premature in this case. Brasel's potential civil claims are based on alleged violations of the ADA and the MHRA and are not based on the collective bargaining agreement. Brasel has not yet attempted to bring those civil claims in district court. Only then will the county be able to use the release as part of its waiver defense against the claims. See Minn. R. Civ. P. 8.03 (providing release and waiver as affirmative defenses to civil claims). An appeal from a motion to compel arbitration is not the forum to decide that issue. Brasel's civil claims and the existence or validity of the waiver must be resolved in another hearing in district court. We do not rule on those issues here.

The parties' oral contract to settle the grievable claims obviated further arbitration. The district court properly denied the motion to compel.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art VI, § 10.