In re Petition for DISCIPLINARY ACTION AGAINST Donna Rae JOHNSON, an Attorney at Law of the State of Minnesota.
No. CX-89-1152.
Supreme Court of Minnesota.
July 19, 1989.
444 N.W.2d 519
The Director of Lawyers Professional Responsibility filed with this court a stipulation alleging that the respondent, Donna Rae Johnson, an attorney duly licensed to practice law in the State of Minnesota, had engaged in conduct meriting public discipline. In essence, the petition alleged that the respondent requested one of her marriage dissolution clients to sign several blank sheets of paper, and that thereafter respondent instructed her secretary to use three of these presigned sheets to prepare affidavits and verifications which were later filed with the court. Although the client had reviewed two of these documents in draft form before the final documents had been prepared, the respondent, however, did not ever obtain the client‘s prior authorization to use a presigned sheet for one of the affidavits, nor did the client review this affidavit in draft form or otherwise before it was served upon the opposing party and filed with the court. The petition also asserts that the respondent notarized all three documents which were prepared using the presigned sheets. After the petition had been filed with this court, the Director and the respondent entered into a stipulation. Pursuant to the terms of the stipulation, the respondent waived all of her procedural rights afforded to her by Rules 14 and 15 of the Rules on Lawyers Professional Responsibility. In the stipulation, the Director and the respondent join in recommending that the appropriate discipline in this case would be a public reprimand pursuant to Rule 15.
The court having considered the petition, the stipulation, and the memorandum of the Director‘s office justifying the conclusion of that office that a public reprimand would be appropriate NOW ORDERS:
- The respondent Donna Rae Johnson is hereby publicly reprimanded.
- The respondent within 30 days from the date hereof shall pay to the Office of the Director of Lawyers Professional Responsibility the sum of $750 in costs pursuant to Rule 24(a), Rules on Lawyers Professional Responsibility.
In the Matter of Arbitration Between METROPOLITAN AIRPORTS COMMISSION, Petitioner, Appellant, v. METROPOLITAN AIRPORTS POLICE FEDERATION, Respondent.
No. C9-88-1777.
Supreme Court of Minnesota.
July 28, 1989.
As Amended Sept. 18, 1989.
444 N.W.2d 519
Stephen Gordon, Stephen Befort, Gordon-Miller-O‘Brien, Minneapolis, for respondent.
Gregg Corwin, Linda Nelson, Gregg Corwin & Associates, St. Louis Park, for amicus.
POPOVICH, Chief Justice.
We granted Metropolitan Airport Commissions‘s (MAC) petition for discretionary review of a trial court judgment vacating an arbitration award after the court of appeals denied discretionary review and dismissed the appeal as nonappealable. We now reverse the trial court judgment and reinstate the arbitrator‘s award.
I.
The underlying dispute between the parties involves the interpretation of the collective bargaining agreement between MAC and the Metropolitan Airports Police Federation (Federation). The agreement includes a grievance procedure which provides for arbitration of grievances which cannot be resolved by mutual agreement between the parties. An arbitrator selected by the parties is to consider the grievance in light of the agreement and may not amend, modify, nullify, ignore, add to or subtract from the provisions of the agreement. The relevant provision to this dispute, Article 7.81, provides that employees in the bargaining unit will have the first opportunity for all “law enforcement work normally performed by the employees of the bargaining unit.”
Prior to 1981, dispatchers, clerical personnel and supervisors were in the same bargaining unit as police officers. In 1981 a unit clarification decision by the Minnesota Bureau of Mediation Services limited the bargaining unit to police officers. Thereafter, administrative control over dispatchers was gradually transferred to the MAC administrator. Because the communication center where the dispatchers worked was located in the police department office, the head of the police department still scheduled the dispatchers for work and police officers relieved dispatchers when they went on meal or bathroom breaks if no other dispatcher was available. Police officers were also used to perform dispatcher duties when dispatchers were on sick leave, emergency leave, vacation or holidays if
In February 1984 MAC announced its plan to physically relocate the communication center. The first step was to make the dispatcher‘s unit more self-sufficient. MAC adopted a new policy for the scheduling of substitute dispatchers under which other dispatchers were asked to substitute first on a voluntary basis. If no dispatcher was available, police supervisory personnel were to substitute and only if no supervisory officer was available was a police officer to be assigned relief dispatcher work. After the policy change, police officers were used for substitute dispatcher work less than 1% of all police officer work time.
In November 1984 the dispatchers and most of the communication center equipment were relocated to another space in the airport terminal. Certain alarm systems, an emergency phone, a console radio, a computer and some paging equipment remained in the police department office until mid-May 1985. Supervisory police personnel or clerical personnel were assigned the responsibility of monitoring the remaining equipment because their work station was located near the equipment.
This assignment of non-unit members to monitor the remaining dispatcher equipment became the subject of the grievance brought by the Federation. The Federation claimed MAC‘s decision not to assign bargaining unit members for that work violated the provision of the collective bargaining agreement which required the employer to “provide employees in the unit the first opportunity for all law enforcement work normally performed by the employees of the bargaining unit.” It sought damages in excess of $70,000 for wages which would have been paid had the work been assigned to members of the bargaining unit.
After a five-day hearing the arbitrator concluded the substitute dispatcher work which the Federation claimed should have been assigned to bargaining unit members was neither “law enforcement work” nor work “normally performed by members of the bargaining unit.” Rather, the arbitrator found, the work belonged to another job classification outside the bargaining unit and therefore MAC was not bound to meet and negotiate with the Federation before assigning it. Because the arbitrator determined the assignment of the work in question was not covered by the collective bargaining agreement, he necessarily determined the grievance was not arbitrable.
The Federation subsequently commenced this action alleging the arbitrator had exceeded his authority and also moved for summary judgment. The district court ordered summary judgment, vacated the arbitrator‘s award and remanded the matter for rehearing before another arbitrator. MAC filed a petition for discretionary review in the court of appeals after the trial court issued its order and, after judgment was entered, also filed a notice of appeal. The court of appeals first denied discretionary review and later dismissed the appeal on the basis the judgment was not appealable.
II.
The preliminary issue for us to resolve is whether a trial court judgment vacating an arbitrator‘s award and remanding for new arbitration can be appealed. The Minnesota Arbitration Act sets forth the rules and procedures for arbitration. Court involvement in arbitration is specifically limited to compelling or staying arbitration,
Subdivision 1. An appeal may be taken from:
(1) An order denying an application to compel arbitration made under section 572.09;
(2) An order granting an application to stay arbiration made under section 572.09(b);
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6) A judgment or decree entered pursuant to the provisions of this chapter.
The judgment MAC appealed from vacated the arbitrator‘s award but also ordered rehearing; therefore, it is not appealable pursuant to
MAC also argued the judgment was appealable under
The supreme court * * * shall have original jurisdiction in such remedial cases as are prescribed by law, and appellate jurisdiction in all cases, but there shall be no trial by jury in the supreme court.
(Emphasis supplied.) Similarly, the court of appeals has appellate jurisdiction “over all courts, except the supreme court, and other appellate jurisdiction as prescribed by law.”
While appellate review “as of right” is purely statutory, this court has the independent power to review any case. In re O‘Rourke, 300 Minn. 158, 169, 220 N.W.2d 811, 818 (1974). The legislature in providing judicial appeals cannot deny this court its constitutionally independent appellate authority to review whatever case it deems necessary in the interests of justice even if “statutory provisions, case law or the Rules of Civil Appellate Procedure might otherwise preclude appellate review.” State v. M.A.P., 281 N.W.2d 334, 337 (Minn.1979). Thus, regardless of whether the judgment entered by the trial court in this case was appealable under the arbitration act or the appellate rules, both this court and the court of appeals have the authority to accept jurisdiction if either court deems the interests of justice so warrant.
The court of appeals chose not to exercise its discretionary authority. The court of appeals’ decision not to grant discretionary review, however, does not affect this court‘s independent constitutional authority to review any matter. To avoid any further delay and because we find this case to be one which warrants exercise of our discretionary authority, we undertake review on that basis.
III.
The real question presented is whether the trial court abused its discretion in vacating the arbitrator‘s award on the ground the arbitrator exceeded his authority. Because the court of appeals dismissed the appeal, it did not rule on the question. We hold the trial court erred in vacating the award because it applied the wrong test for reviewing the arbitrator‘s decision, and we reinstate it.
A district court is authorized to vacate an arbitration award if the arbitrator exceeded his powers.
MAC claimed the trial court should have used the “essence test” in its consideration of the matter because the arbitrator had to consider the merits of the dispute in order to resolve the arbitrability question presented by this case. We agree. Because the issue of arbitrability is inextricably intertwined with the merits of the dispute, the arbitrator‘s decision was a decision on the merits and must be confirmed because it draws its essence from the collective bargaining agreement.
The Federation claimed MAC violated the collective bargaining agreement by assigning the relief dispatcher duties to non-unit members. Therefore, the arbitrator had to decide whether the dispatcher functions were covered by the agreement or if they belonged to another bargaining unit. If he found the dispatcher functions were unit work, the subject of the grievance would be covered by the collective bargaining agreement, the dispute would be arbitrable and the Commission would lose on the merits for not having negotiated about work assignment. If he found the work was not unit work and not covered by the agreement, reassignment of it would be within the inherent management rights of the employer, the grievance would not be arbitrable and the Federation would lose on the merits. In other words, the arbitrability decision could not be made without first deciding the merits of the dispute.
To determine whether an issue is arbitrable, the agreement language must be examined to ascertain what issues the parties intended to make bargainable. Arrowhead Public Service Union, 336 N.W.2d at 70. If an issue is bargainable, it is grievable and therefore arbitrable. See Cloquet Education Assoc. v. Independent School District No. 94, 344 N.W.2d 416 (Minn.1984). When construing a collective bargaining agreement an arbitrator may look to sources other than those which a court would consider, such as the parties’ relationship, practices of the industry, history of the agreement and other factors. Ramsey County, 309 N.W.2d at 791. By doing so, the arbitrator can determine the “essence” of the agreement.
Here, the arbitrator considered such factors in examining the facts relevant to the issue of arbitrability. The arbitrator decided the subject work was not law enforcement work normally performed by unit members for the following reasons: unit members spent a comparatively small amount of time performing relief or substitute dispatch functions; the work was not law enforcement work “per se“; the unit members only performed a few of the duties of a dispatcher; and the original intent of the agreement was to protect unit members from contracting out police work. The arbitrator concluded the relatively small amounts of time which unit members spent working out of classification did not give them a vested right in having the non-unit work be continually assigned to them. The decision draws its “essence” from the agreement.
The Federation also argued MAC was obligated to bargain before assigning the substitute dispatcher work under the Public Employment Labor Relations Act (PELRA),
IV.
The final issue was the district court‘s order remanding the matter for rehearing before another arbitrator. Because we have reinstated the arbitrator‘s award in this case, we need not determine whether the trial court abused its discretion by not remanding the dispute to the same arbitrator. We note, however, that
We reverse the judgment and reinstate the arbitrator‘s award.
SIMONETT, Justice (concurring in part, dissenting in part).
I agree with Parts II and IV of the court‘s opinion. I agree with the result reached in Part III but not with the reasoning. In my opinion, arbitrability is a nonissue.
The Federation consists of police officers employed at the airport who are classified as essential employees. Clerks and dispatchers in the communications center are in a separate bargaining unit. So are police supervisors. Over the years, police officers have performed intermittent dispatching work when a dispatcher would be temporarily unavailable. During the period from November 1984 to mid-May 1985, the employer greatly reduced the amount of substitute dispatching work that the police officers had been doing, apparently assigning it to others. The Federation grieved this work reassignment.
The key provision in the Federation‘s contract applicable to this grievance is Section 7.81:
It is the intent of the EMPLOYER to provide employees in the bargaining unit the first opportunity for all law enforcement work normally performed by employees in the bargaining unit * * *.
The arbitrator had to decide, therefore, if the substitute dispatching work was “law enforcement work normally performed” by Federation police officers. After 5 days of testimony, the arbitrator made detailed findings, carefully set out his reasons, and denied the grievance. He expressly determined that the substitute dispatching work “is not law enforcement work normally performed by members of the unit within the meaning of Section 7.81 of the Agreement.”
This should have ended the matter. This was the issue submitted by the parties for arbitration and the decision for which they had bargained. It was obviously within the
The case was unnecessarily complicated, however, when the Airports Commission also argued at the arbitration hearing that the matter “is simply not arbitrable.” Apparently the Commission contended that the job classification of dispatcher had been placed in another bargaining unit and that police clerks and police supervisors, who were in different units, were being assigned substitute dispatching. These were facts, of course, for the arbitrator to consider in applying Section 7.81 of the Federation‘s contract, but these facts did not oust the arbitrator of jurisdiction to hear the Federation‘s grievance.
Nevertheless, in view of the arguments raised, the arbitrator, after finding that Section 7.81 did not entitle the police officers to dispatching work, went on to say as an alternative basis for his decision that “the issue is not arbitrable.”1 The arbitrator reasoned that the scheduling of employees in a unit to work “out of classification” in another unit for small, sporadic amounts of time was an exercise of the employer‘s inherent managerial rights. Seizing on this language, the Federation argues that the arbitrator ruled Section 7.81 unenforceable and, therefore, never decided the grievance on the merits.
The issue of whether or not the Airports Commission has an inherent managerial right not to assign police officers to substitute dispatching is not at issue here. This is grievance arbitration, not contract negotiation. The arbitrator is deciding what the language in an existing contract means, not what language should go into a contract which is in the process of being negotiated.2 Here the parties had an agreement covering extra outside work, which provided that police officers would have first opportunity “for all law enforcement work normally performed by employees in the bargaining unit.” Whatever the employer‘s inherent managerial rights might be, this is what the employer agreed to as its contractual obligation, and if this constituted yielding up some managerial prerogatives, it made the contract clause no less arbitrable. If the arbitrator had decided that Section 7.81 gave Federation members preference for substitute dispatching work, the Airports Commission would have been liable for breach of its agreement. The arbitrator, however, ruled otherwise. This was the matter at issue and the arbitrator decided it.
In other words, even if the arbitrator‘s alternative reasoning was faulty, his decision applying Section 7.81 to the facts of the case was within his authority and must be sustained. Arbitrability is a jurisdictional concept. See State v. Berthiaume, 259 N.W.2d 904, 910 (Minn.1977). A grievance is arbitrable if the arbitrator has the power to decide the grievance. The arbitrator‘s power to decide is conferred by the contracting parties and is defined in the agreement to arbitrate. In this case, for example, the agreement provided “[t]he decision shall be based solely upon the arbitrator‘s interpretation of the meaning of application of the Agreement and the facts of the grievance presented.”
Part of the confusion in this case apparently arises from the discussion of arbitrability in Cloquet Education Ass‘n v. Independent School Dist. No. 94, 344 N.W.2d 416 (Minn.1984). There the union objected to the school district unilaterally assigning teachers to chaperone dances. The school
What is “bargainable” is a matter for contract negotiations. Some managerial rights are prohibited by statute from being bargained away. See, e.g.,
KEITH, Justice (concurring in part, dissenting in part).
I join in Justice Simonett‘s opinion concurring in part and dissenting in part.
STATE of Minnesota, Respondent, v. Jerald BOITNOTT, Appellant.
No. C6-88-1445.
Supreme Court of Minnesota.
Aug. 4, 1989.
Rehearing Denied Sept. 20, 1989.