Arbitration Between Ramsey County v. American Federation of State, County & Municipal Employees, Council 91, Local 8
309 N.W.2d 785
Minn.
1981
Check Treatment

*1 denied, 844, credibility seriously undermined 145, was Ms. U.S. testimony regarding telephone her (1977); quoted Mains’ L.Ed.2d 109 in White v. State, Sergeant 480, with defendant conversations 309 Minn. 248 N.W.2d testimony that defendant stated he (1976). Adler’s Defendant’s criticisms of his pulse. to check her Mrs. Hreha attorney touched amount to no more than criticisms attorney’s strategy.5 trial The record Fourth, argues 4. defendant that does not demonstrate defendant’s at- prejudicial certain evidence was so as to torney performed any function in an incom- ground require reversal on the that he did petent persuaded manner. We are not receive a not fair trial. Defendant’s con defendant was denied effective assistance regard tentions are without merit. of counsel. photographs challenges defendant ac curately portray the scene events in Affirmed. requirements

question and thus meet DeZeler, 46-47, v. Minn. SCOTT, J., State part in the took no considera- testimony N.W.2d Of the tion or decision of this case. prejudicial, only defendant now claims was subject objec

one statement was the of an at trial. In the context record whole, challenged statements were sufficiently prejudicial require

not a new

trial. argues

5. Defendant next failing court trial erred in to instruct In the Matter of the Arbitration between jury regarding lesser included offenses. COUNTY, Respondent, RAMSEY the close evidence After defense v. counsel informed the trial court that de go fendant had decided “to for murder in STATE, AMERICAN FEDERATION OF nothing.” first or Defendant makes no COUNTY AND MUNICIPAL EMPLOY- claim defense counsel’s statement did EES, 8, Appel- COUNCIL LOCAL constitute waiver. a valid We have lant. consistently held that when a defendant 51227. No. right jury waives his to have instructed regarding offenses, lesser included he is Court Minnesota. precluded raising appeal. issue on Sept. 1981. Wiberg, (Minn. State 296 N.W.2d 388 Scheerle, State v. 285 N.W.2d 686 (Minn.1979). finally

6. Defendant contends he denied a attorney fair trial because his

represented inadequately. “[Tjrial him

counsel fails to render effective assistance

when he does the customary not exercise diligence a reasonably

skills and com

petent attorney perform under simi

lar circumstances.” United States v. East

er, (8th 1976), 539 F.2d Cir. cert. degree requiring The waiver of lesser included offenses in- murder under a statute neither defendant, premeditation volved substantial loss for but the intent nor If conviction. jury potential advantage to him was no less sub- in this returned a verdict case had of not murder, Only greatest guilty first-degree stantial. with the reluctance defendant could jury guilty guilty would a return a not have of another verdict first- been found offense.

pensation straight to a time basis and then specifically authorized. 1975, pursuant to Minn.Stat. 179.67 Employment subd. of the Public *3 Labor Relations the union Act representative certified as the exclusive County employees job in various classifica- The Ap- tions. classification of Real Estate praiser III bargain- was included within the ing unit.1 County The and the Union thereafter ne- gotiated a agreement bargaining collective effective for 1975. The vacation schedule agreement in contained the new differed from the Administrative Vacation Plan in provided that it fewer days for vacation but compensation allowed overtime aat rate of time and one-half all performed for work regular day, excess work in excess of Corwin, Gregg Park, M. Louis for St. week, 40 hours work or on sched- appellant. day preamble uled off. 1.2 of Section Foley, County Atty., Tom Stephen F. agreement person- states that “[a]ll Befort, Principal Gen., Paul, Atty. Asst. St. contract, policies provided by nel this unless respondent. stated, applied uniformly otherwise shall be bargaining across entire unit.” agreement After was renewed renegotiated at least twice for terms of years. either one or two AMDAHL, Justice. original bargaining agree- State, County dispute Federation of that American ment are relevant were Municipal Employees changed agree- Council No. and are contained in (hereinafter “Union”) Local appeals present from ment in effect at the time. vacating an order of district court an County In March of converted ground arbitration award on the that computerized personnel system. to a powers. exceeded his re-We claims it then County discovered verse and remand this matter to the district employees Ap- in the Real Estate the six court with instructions reinstate appoint- praiser III classification who were award. date the collec- ed to the effective (hereinafter Ramsey County agreement bargaining tive continued to ac- adopted “County”) provided as Administrative Vaca- crue vacation time under the applicable per- tion to certain county ap- Plan The six Administrative Vacation Plan. including employees alleged sonnel praisers the classifica- error were notified Appraiser they immediately of Real Estate III. This and informed that plan greater granted existing number of placed vacation under the rate for vaca- days employees covered the collec- than other tion accrual in accordance with county employees but limited com- overtime tive

1. Section 2.1 of the quently negotiated provides exclusive 2.1 Employer representative recognizes for the that was pertinent following Union subse- part: as recognized bargaining classifications in the Real Estate [*] [*] Appraiser [*] Ramsey unit: III [*] County [*] General [*] Appraiser These 6 Real Estate thereafter filed a class action Ill’s are The Union appraisers, ‘grandfathered’ existing the six to be into the grievance2 on behalf of exclusively at the alleging the existence of an oral vacation ac- only appraisers earned, previously pro- between the cumulation rates January 1976 would be their appointed viding after that at the same time restric- subject set forth in to the vacation schedule All tions on overtime continue. other bargaining agreement and the collective Appraiser Ill’s will accumulate vacation * * question appraisers in could the six provided in the Master Contract. pursuant time continue to accrue vacation deciding, recognized In so Plan. The to the Administrative Vacation although appraisers, rely- union asserted that the six face, unequivocal issue was clear and on its agree- the oral ing to their detriment on regard with *4 ment, compensa- put did not in for overtime appraisers to vacation accrual of the six they tion to which would otherwise have mutuality, specifici- the satisfied criteria been entitled and claimed that the specific ty, duration and reliance was and parties regard practice of the with to vaca- thereby binding upon parties the as a condi- appraisers time of the six bound the tion employment notwithstanding the County policy. County to continue the The vacation schedule set forth in the collective grievance step the at each denied bargaining agreement.3 additionally It was grievance procedure, asserting that the col- noted that there was some indication that agreement lective was clear and parties understanding had an that the face, unambiguous denying any on its other agreement vacation under the new schedule parties concerning between the applied only appraisers would be to new appraisers alleging the six and that it acted appraisers, and that six because of their promptly as it error. as soon discovered its work, overtime could continue accumu- to dispute, Unable to settle the late vacation time under more liberal compulsory binding submitted to arbitra- response Administrative Vacation Plan. 179.70, by Minn.Stat. required tion as to the fact that the contract was silent on (1980) pursuant Step subd. 1 to 4 of the matter, the arbitrator referred to testi- grievance procedure agree- set forth in the mony indicating that the issue of a differ- stipulated dispute ment. It was policy appraisers ent vacation for the six properly before the arbitrator for deci- during negotiations was not discussed sion and that the issue to be resolved was county’s reliance assurances that county whether “the violated its prior policy would be continued. Final- with Council when it altered the AFSCME ly, the arbitrator stated that it did not (6) vacation accumulation rate of six Real appraisers stand to reason that the should Appraiser Estate Ill’s.” penalized in essence for the award over- sight county is- which the admitted “could arbitrator selected sustaining grievance. have sued an award been discovered Central Person- provided: The award nel.” griev- underlying

2. Section 15.1 of the defines a a consideration of the circum- “dispute disagreement as a ance or as to stances (5) specific application mutuality agreement.” terms and conditions of this Mittenthal, Past Practice and the Administra- Bargaining Agreements, tion of Collective defined as “a Past has been Policy (S. Arbitration and Public Pollard ed. consistently course made of conduct which is Gilman, Past Practice in the Administra- response recurring regard- to a situation and Bargaining Agreements tion of Collective required response ed as a correct and circumstances.” Certain under the Arbitration, 4 Suffolk L.Rev. 688 distinguish qualities Treece, Relationship Past Practice and its to binding past practice from a course of conduct Specific Language Contract in the Arbitration evidentiary particular significance: that has no Disputes, of Grievance 40 U.Colo.L.Rev. 358 (1) clarity consistency and (2) longevity repetition (3) acceptability County gaining agreement thereafter moved the district containing an arbitra- court to the arbitrator’s award on provided vacate tion clause unless otherwise ground that the arbitrator exceeded his Berthiaume, State v. 6, 1980, powers. By order dated March (Minn.1977); N.W.2d Minnesota award, stating: district court vacated the Independent Education Association very School District No. express terms of the contract N.W.2d (Minn.1980). Act, Under the

clearly evidence the mutual intention of courts are em- powered parties. to an It seems this court that vacate arbitrator’s award clearly only beyond grounds specified arbitrator was his on the in section powers 572.19, 1(3).4 ques- Among when he made the award in subd. grounds jus- agree- tion. The terms of the tifying vacation of award provide ment must the basis for powers. exceeds award and the arbitrator had au- consistently recognized We have that the thority interpret apply the con- Uniform be liberally interpreted Act is to tract change and not to terms. For applied, noting its basic intent “ jeopar- court hold otherwise would * * * discourage litigation and to fos integrity negotia- dize the of all future speedy, ter relatively inexpen informal and tions between the procedures sive the voluntary resolution Initially, emphasized it should be *5 created, disputes controlled, of in a forum case arbitrability does not involve the the of the by and administered written arbitration dispute. are not We asked decide wheth- agreement.” v. Dunshee State Farm Mutu power jurisdic- er the had the arbitrator or Co., 473, 481, Ins. 303 Minn. al Auto. 228 grievance question. tion to hear the in The 567, (1975) quoted N.W.2d 572 in State v. parties stipulated grievance the was Berthiaume, 904, (Minn. 259 N.W.2d properly the for before decision. 1980) and Minnesota Education Association Independent 495, v. District No. appeal The sole issue before this court on School (Minn.1980). is: powers did the arbitrator exceed his N.W.2d See also 572.19, Layne-Minnesota Regents v. the within the of Minn.Stat. Co. of Uni § 1(3) (1980) issuing Minnesota, subd. an versity in award of based 266 Minn. practice the where N.W.2d 371 the conflicts with the clear and the policy fostering Consistent with of unambiguous language parties’ the of writ- disputes, judicial arbitration of labor inter- agreement? ten carefully by vention has been circumscribed question negative We the in the answer reviewing court. arbitration accordingly reverse the district court. awards, we stated: scope powers The of Act, the arbitrators’ The Uniform Arbitration Minn.Stat. (1980) to be governs authority matter of contract determined from §§ 572.08-.30 the procedure judicial reading with arbitration for interference of process pri- agreement, the arbitration under either a and an arbitrators’ award will public vate or bar- only sector sector collective be set aside the courts when the (1980) provides part: controversy or Minn.Stat. 572.19 in otherwise conducted so hearing, contrary Upon application par- Subdivision 1. of a 572.12, substantially prejudice section as to ty, an the court shall vacate award where: rights party; of a or (1) procured by corruption, The award was (5)There was no arbitration means; fraud or other undue adversely not issue was determined (2) partiality arbi- There was evident proceedings under section 572.09 and corruption trator as a neutral or party participate did not arbitra- prejudicing or misconduct arbitrators objection. hearing raising any party; rights tion without (3) But the fact that the relief was such that it powers; The arbitrators exceeded their granted postpone could not or not be a court The arbitrators refused to vacating equity ground hearing upon being law or not cause is sufficient shown refusing to the award. therefor or refused to hear evidence material confirm proof objecting party guidance tice. He of course meets its burden look for sources, clearly yet legit- many the arbitrators have exceeded award is powers granted long in the arbi- to them imate so as it draws its essence agreement; will not over- bargaining agree- tration courts from the collective they may merely an award turn because When the arbitrator’s ment. words man- disagree with the arbitrators’ decision on infidelity obligation, ifest an to this merits. courts have no choice but to en- refuse forcement of the award. Hospital, Nurs Inc. v. Minnesota Children’s Association, (Minn. 265 N.W.2d es 80 S.Ct. at 1361. Berthiaume, 259 N.W.2d See v. State question before this court is there- (Minn.1977). 904, 910 quite fore narrow: does the instant arbitra-

Thus, it Minne is well settled under meet the so-called test award “essence” arbitrability law sota that once estab or does it manifest no more than the arbi- lished, judiciary does justice? role of the personal trator’s notion of dif- encompass a the merits re-examination of ficulty inquiry elu- evident not, however, case. deline We have applicable sive nature of the A standard. the limits in de ated of arbitral review of the decisions in the area substan- ciding dispute point it can be nor at what Ap- tiates the observation the Court of with said assurance that an arbitrator peals for the Third Circuit that the cases clearly exceeded those limits. uniformity translating have not “exuded pronouncement the ‘essence’ test into a principles established judi- extent or appropriate limitation of States Court in famed United cial interpreta- review arbitrator’s Trilogy” instructive. are “Steelworkers Ludwig Manufacturing tion.” Honold Co. Manufac United Steelworkers v. American Fletcher, (3rd 405 F.2d Cir. turing 363 U.S. *6 1969). (1960); 1403 L.Ed.2d United Steelworkers Co., & Navigation v. Warrior Gulf 363 U.S. “essence of the collective bar 1347, 574, 80 S.Ct. 4 1409 L.Ed.2d gaining agreement” must be considered Wheel Enterprise United Steelworkers v. & light Supreme recognition of the Court’s 593, 1358, Corp., Car 363 U.S. 80 4 S.Ct. Warrior that an a plays & Gulf arbitrator (1960). 1424 of ar L.Ed.2d Judicial review unique role in administration of the collec similarly awards is bitration circumscribed bargaining agreement. tive That role nec Enterprise federal law. under As stated in essarily a aspects entails consideration of Wheel: parties’ relationship typi the which are not cally cognizable in a court of question law. interpretation of the

[T]he bargaining performs arbitrator The labor functions question for the arbitrator. It is the ar- courts; which not normal to the are bitrator’s construction which was bar- help which him considerations fashion for; gained and so far as the arbitrator’s judgments may foreign indeed be to of the con- decision concerns construction competence of courts: tract, the courts have no overrul- business proper conception “A of the arbitra- ing him because their tor’s function is basic. He a is not his. contract is different from public imposed upon par- tribunal 599, power at 80 at 1362. The Id. S.Ct. by superior authority ties which not, however, lim- without parties obliged accept. to are He it; the award must draw its “essence” from general justice no charter to administer the contract. community for a which transcends interpreta- part system He is rather of a arbitrator is confined to

[A]n self-government application and the collective bar- created con- tion and * * parties (citation not sit gaining agreement; he does to fined to the dispense jus- omitted.) his own brand of industrial press provisions

The labor arbitrator’s source of law is of the contract evidence express not, this intent. The however, not confined to the parties’ will; sole evidence of the contract, as the industrial law—the conduct of is likewise indicative practices industry shop and the —is of their mutual intent. See United Steel- equally part collective bargaining Enterprise workers of America v. Wheel & agreement although expressed not in it. 593, 597, Corp., Car 1358, U.S. S.Ct. United of America v. Steelworkers Warrior 1361, 4 (1960). Therefore, L.Ed.2d 1424 574, Navigation & Gulf 363 U.S. 581— question before an arbitrator faced with 1347, 1352, 80 S.Ct. 4 L.Ed.2d 1409 conflicting prac- and Furthermore, (1960). insofar as the con tice is basically evidentiary one, focusing permits, tract an arbitrator is entitled to on “which persuasive most evidence is and upon consider “such factors as the effect therefore controlling, and not on whether productivity particular result, of a should be considered at all.” consequences shop, to the morale of the his Treece, Past Practice Its Relationship judgment will height whether tensions Specific Language Contract in the Arbi- ened or Id. at diminished.” S.Ct. at Disputes, tration of Grievance 40 U.Colo.L. Rev. (1968). To hold otherwise is to completely ignore what Trilogy” “Steelworkers is based integral Court part considers an par- underlying recognition that a collective ties’ bargaining agreement ordinary is not an contract; generalized govern “it ais code to erroneously district court uti myriad of cases which the draftsmen can- lized principles conventional contract wholly anticipate.” Id. at finding S.Ct. the best evidence of par ties’ at governing 1351. The source of rules intentions was manifested words which the themselves em “community plant” of the industrial cannot ployed their intent. As the vaca be restricted to the words of the contract ambiguity schedule was free from light but must be considered of the “com- purportedly applied all employees shop implements mon law of the which unit, the district court essential agreement.” furnishes the context ly concluded that there was no need to Cox, quoting resort interpretive such as pract aids Arbitration, Upon Reflections Labor Accordingly, ice.5 it was held that Harv.L.Rev. The estab- impermissibly changed the con *7 lishment system of a of “industrial self- tract, express contrary limitations of government” object is the of a collective his authority.6 bargaining agreement grievance and the past practice may That the use of not add machinery very sys- is at the heart of that to or modify express otherwise written tem. at 1352. S.Ct. of the is followed at plays key The arbitrator role in Torrington least one court. In Co. v. Metal the continuing interaction between and Products Local Workers Union among the citizens of the industrial commu (2d 1966), F.2d 677 Cir. found nity. strife, resolving industrial his that a longstanding policy regarding paid parties’ function is to ascertain intended voting purposes leave for could terminat- Certainly only by standard of behavior. ed ex- mutual The con- past practice (a) right 5. The traditional view The arbitrator have no shall amend, modify, nullify, ignore, to, not be considered when the contractual lan- add or guage unambiguous is clear and has been subtract from and conditions the terms of the * * soundly by the criticized commentators. See contract. (b) *. * * Treece, Gilman, generally Mittenthal; solely *. shall The decision be based n.3. interpretation applica- on the arbitrator’s express Agreement tion of the of this terms XV, 6. Article section 15 states grievance presented. and to the facts of the pertinent part: disputed inappropriate. tract on the matter and con- award is ap was silent tained a similar no “additions or modifica- proach Torrington utilized Court to the one at bar. A divided tions” clause effectively negates power an arbitrator’s Appeals refused to enforce the Court shop practices consider the as autho ground award on the the arbitrator rized Warrior & We believe the Gulf.8 power by expanding the exceeded his ex- interpreted “essence” test as in Amoco Oil press terms of the contract on the basis of Oil, Workers, Co. v. Chemical and Atomic parties’ prior practice. Id. at 682. The denied, (7th 1977), 548 F.2d 1288 Cir. cert. however, Torrington, result has been 431 U.S. 52 L.Ed.2d 389 widely criticized the commentators7 and (1977), underly is more consistent with the part rejected by for the most other courts. ing Trilogy rationale of the cases: See, g., Sergeant e. Bluff-Luton Education- Sergeant al Association v. Bluff-Luton “draw its An award does arbitrator’s District, Community School 282 N.W.2d the collective essence from (Iowa R.I., 149-50 Egan, Jacinto v. agreement” long as the so 391 A.2d and cases cited manner be derived can in some rational therein. light agreement, from the “viewed Although contrary to the literal words context, any language, its its other agreement, contained in the written in Gen- intention; only indicia of the eral Teamsters Local 249 v. Potter-McCune (D.Pa.1976) F.Supp. the court disregard manifest where there is a upheld an arbitrator’s award based totally unsupported by agreement, The union principles construction and of contract ground there attacked the award on the reviewing shop, may a the law of the the arbitrator refused to enforce the award.” Neither court disturb admittedly plain unambiguous lan- conclusion correctness of the arbitrator’s guage rejected of the contract. The Court reasoning propriety nor the of his is rele- the union’s contention that the award failed court, long reviewing so as his vant to a contract, to draw its “essence” from the complies with the aforementioned award noting that: reviewing applied by the standards to be involving a standard no more than a exercising limited function. court comparison strict the award and the [of

literal contract would not re- terms] Accord, Ludwig Id. at 1294. Honold Manu- duce cipher, ap- to a mere Fletcher, facturing Co. v. 405 F.2d proaching task blinded to all save the (3d 1969). Cir. terms stripped opportunity to utilize his

special knowledge shop Applying and indus- this test to the instant try, it would also obviate need for case, unpersuaded we the award are * * anything like the “essence test” *. essence from the collec failed to draw its Id. 11-12. bargaining agreement or otherwise tive *8 disregard agreem of that evinced a manifest agrees simple compari- This Court that a son of the dispensing contractual with the his own ent.9 Rather than Kaden, g. Judges (3) modify seemingly 7. See e. and Arbitrators: Ob- or amend what is Review, Scope unambiguous servations on the of Judicial Aaron, (1980); (4) separate, Colum.L.Rev. 272-273 Ju- to establish a enforceable con- Arbitration, employment dicial Intervention dition of Labor which cannot be de- (1967). express language agree- rived from Stan.L.Rev. ment. Id. at 30. Mittenthal, n. indicates practice may by be used the arbitrator as an specifical- 9.The fact that the arbitrator did not interpretive aid in at least four situations: ly parties orally agreed find that the to a differ- (1) clarify ambiguous appraisers what is ent vacation schedule for the six is (2) give general succinctly substance to what is not crucial to the union’s case. As See, justice clearly g., Sergeant e. brand the arbitrator drew Bluff-Luton Education- upon permissible parties’ evidence of the al Sergeant Association v. Bluff-Luton mutually Community District, intended standard of behavior in School 282 N.W.2d 144 (Iowa resolving dispute. In addition to Cape Cod Gas Co. v. United language, America, Steelworkers of Local past practice Mass.App. 258, entitled to consider 327 N.E.2d 748 parties,10 therein; place conversations which took cases cited City Rochester School prior negotiation of the collective District v. Association, Rochester Teachers bargaining agreement and the effect 41 N.Y.2d 394 N.Y.S.2d 362 N.E.2d employee judgment, morale. Egan, R.I., In those Jacinto v. 391 A.2d outweighed considerations the evidence of parties’ intent as manifested their We therefore hold the arbitrator did written words. not powers exceed his within 572.19, 1(3) (1980) subd. of Minn.Stat. as Having concluded that the award at rationally the award is derived from the test,

issue meets the essence the fact that collective bargaining viewed in may may we agree or not with the arbitra light language, of its its context and other consequence. tor’s decision is of no It was intent, indicia parties’ including past parties’ the arbitrator’s construction practice. If arbitration is to remain a via- for; bargained which was ble problem alternative to resolution in the of this court. strife, area of industrial the concept judi- decision, light appar our is cial deference to arbitral must ent the broad “no additions or modifi encompass recognition that the arbitra- cations” clause contained in the written tor is the “reader” of the contract. As the prevent does not enforcement of parties’ “reader,” chosen he is authorized to the award. The arbitrator the case at consider matters agree- outside written change bar did not the contractual lan disputes ment in resolving arising out of guage solely person on the basis his own the continuing employment relationship. al, judgment. extracontraetual Rather he long So as an arbitrator’s decision meets the looked to parties the mutual intent of the herein, standards enunciated courts will bargaining history evidenced their not interfere with that decision. Accord- Therefore, past practice. instant ingly, the district order is court reversed award, although upon the based arbitrator’s and this cause is remanded with instruc- subjective supported analysis, the ac tions to arbitration reinstate the award. intent tual rather than on what the personally conceived as PETERSON, (dissenting). Justice just substantially result. Faced with sim provisions, upheld respectfully majority opin- ilar courts have I awards dissent. upon past practices seemingly concepts based which ion relies on “common law of with, shop” practice” modify, express provi “past which are conflict written completely inapplicable sions to the case at bar. of, commentator, party noted agreement one conduct form unless the knew of its exist- “[T]he important. However, acceptability may takes is not Whether it ence. be inferred writing, understanding, be a formal an oral knowledge or a from less than actual under circum- longstanding practice, long sup- as each so party stances which indicate the should have ported by mutuality, have indeed been aware of the course of conduct. Mittenthal, change chosen to contract.” their clear, Rarely detailed and n.3, supra at 43. undisputed. the evidence is Whether sufficient *9 particular to show course that a of conduct is County alleged mistakenly 10. The that it had mutually accepted proper response the un- appraisers allowed the six to continue to ac- question der the circumstances for the crue vacation time under the Administrative arbitrator, not the courts. evidentiary Vacation that no Plan. It is true significance prior should be accorded course By misconstruing parties.” princi- fully agree the role of these tween the I with the trial court and would affirm. ples interpretation, majority in contract gives opinion the arbitrator the absolute majority opinion, as did the arbitra- unambiguous pro- to rewrite the tor, acknowledges that “the contractual lan- visions of the contract in order to achieve a guage at issue unequivocal clear and on [is] contrary expressly bargained result to its face” but holds that district court “[t]he parties bargain- erroneously for to the collective utilized conventional contract principles in finding that ing agreement. the best evidence parties’ of the intentions was manifested is, indeed, The issue in this case narrow parties the words which the themselves em- arbitrator, award, one: Whether the his ployed express major- their intent.” The clearly powers upon exceeded the conferred ity indulges in a dubious search for the plain language him parties’ contract, and, “essence” of the recogniz- bargaining agreement. collective ing inappropriate practice use of case, majority opinion, setting stage discards the “traditional view that past practice may result, not be considered when for a different frames the issue in language is clear and unam- these terms: biguous.” This rationalization of an extra- ap- The sole issue before this court on ordinary result is destructive of the collec- peal is: did the arbitrator exceed his bargaining process tive and contributes to powers within the of Minn.Stat. process distrust of the arbitration as an 572.10, 1(3) (1980) issuing subd. judicial process. alternative to the While past practice award based today this result inures to the benefit of a where the conflicts with segment employees small large unambiguous language clear and unit, bargaining precedent collective it is a agreement?1 written may operate tomorrow to the detri- court, The trial vacating the award of employees ment of rely upon unable to ex- arbitrator, expressed plicit provisions noted that bargaining agree- of their “[t]he terms ment.2 very clearly of the contract evidence

the mutual parties” intention of the Both majority opinion and this dis- that “the clearly beyond arbitrator was senting opinion must start at the same power ques- when he made the award in point: of the collective bar- observed, moreover, tion.” The trial court gaining agreement which the statement of that “to jeopardize hold otherwise would grievance First, claims was violated. integrity negotiations of all future provides be- Article X for the vacation sched- employer’s 1. The distinctly issue is even more narrow than those own error is differ- above, really stated for there is treating permanent no issue as to exception ent from it as a employees whether the six should be entitled to bargaining agreement, to the collective if period prior the claimed vacation time for the were a determinative of the intent (at county to March 1979 which time the dis- bargaining of the collective itself. error), covered its administrative clerical for concede, county appears the hold, and I would 2. The arbitrator noted but did not decide a county that an arbitrator could find the bargaining representative claim of the that at estopped depriving employees from making the time of up point. claimed vacation time to that These agreed “grandfather” employ- had these six had, employees county’s error, because of the fact, Had ees. course, found that as a precluded putting been in for overtime as issue, there would be no authorized under itself constitute an term of the collec- prior in lieu of the accrual of vaca- bargaining agreement. tive The arbitrator un- tion time without overtime. The arbitrator derstandably finding did not make a of fact on further, however, “grandfathered” went point, however, quite probably because the permanently them under the administra- county employer agree- denied such oral plan, notwithstanding tion’s vacation ment and because it would bargaining agreement, by be unusual not to new collective terms, writing. plainly applied employees. reduce such an to all Pro- tecting employees from the adverse result *10 ule, meaning dispute.3 Act, the which is not of in Uniform Arbitration Minn.Stat. 1.2, 572.19, Second, provides (1980), subd. 1 provides Article Section that “the * * * personnel provided policies by “all this con- court shall vacate an where award tract, stated, unless otherwise should be powers.”4 arbitrators exceeded their [t]he uniformly bargain- the applied across entire scope powers of the arbitrator’s Third, ing (emphasis supplied). unit” the of matter to be determined from authority, dispute in a arbitrator’s concern- reading parties’ arbitration entitlement, ing vacation is limited Hospital, agreement, Children’s Inc. v. Min terms section 15.4: Association, Nurses nesota 265 N.W.2d (a) right shall The arbitrator have no to (Minn.1978), and whether arbitral au to, amend, modify, nullify, ignore, add thority, circumscribed collective bar or subtract from the terms and condi- gaining agreement, clearly has exceeded tions of the contract. The arbitrator judicial those bounds is a matter for resolut spe- shall and only consider decide City ion.5 of Bloomington v. Local No. issue(s) writing by cific submitted in 2828, AFSCME, (Minn. 290 N.W.2d County employee and and the 1980). not, The arbitrator’s decision should Union, authority have no and shall to thus, totally be considered as insulated from make a decision on issue other judicial review. not so submitted. Although an considerable (b) The arbitrator’s decision shall be sub- in construing latitude collective bargaining writing thirty (30) in mitted within agreements, powers his not be should con- days following hearing close of the or unlimited. authority sidered He derives his briefs, par- submission from and bound terms of the ties, later, whichever be unless the contract. arbitrator’s role is restricted parties agree to an extension. The reader; to that of contract give does not solely decision be based on shall him free hand to rewrite the applica- arbitrator’s or Antoine, St. Judicial Review terms Agreement and to the A facts Labor Arbitration Awards: Second Look grievance presented. Enterprise its Progeny, Wheel and (1977); Kagel, Mich.L.Rev. (Emphasis added.) opinion The majority Recent Court Decisions and the there, however, stop does but holds that Arbitration Process in Arbitration and Pub- properly authoritatively (S. 1961). Policy lic Pollard ed. An arbitra- determined that the “essence” of con- tor exceeds the bounds gave explicit language contrary tract attempts modify when he county’s and that administra- interpretative prac- to contradict what the have contem- tive error was an plated in exception tice which these and consented to carves out six, only, process. Appraisers of the Real Estate III. pre-contract municipal employees. Weisberger It

3. differed vacation As Justice agreement by providing days fewer of vacation Egan, in in commented R.I.,391 his dissent Jacinto v. formerly compensa- granting than but overtime (1978): A.2d tion at a rate performed and one-half work of time for all If this court should choose abdicate from workday excess normal any meaningful function the review of (the plan having workweek former limited determinations, practical such enforce- straight overtime to a time basis and large public body of a ment left to the law would be authorized). untrammeled unreviewable I think discretion of arbitrators. that the Berthiaume, We 4. held in State 259 N.W.2d people of this state in interest (Minn.1977), public applies that the Act application of laws enforcement and far ... bargaining agreements sector collective con- compelling too nature warrant such taining an arbitration clause. part. on our abstention especially disputes This is true in labor state, public county, sector which involve *11 796 Court, Further, courts like should not enforce an

The United States court, our appellate courts and other federal binds the award which to the arbi- recognized pre- that arbitration concept of industrial law trator’s common disputes of method for the resolution ferred consent. The without their it- agreements, involving bargaining collective product be considered as the self must the arbitrator has no carte blanche but that industry much of the common law of the disregard the contractual limits on his Kagel, Allowing plant. supra, authority. Douglas noted in As Justice speculate as to rules of arbitrator what Enterprise Wheel & United Steelworkers v. shop possibly could have 1358, 593, Corp., 4 363 U.S. 80 S.Ct. Car agreed destroy policy indus- (1960): 1424 L.Ed.2d stability underlying bargaining trial When an arbitrator is commissioned to accordingly process. lim- interpret apply bar- and the collective administering ited to the rule estab- of law agreement, bring gaining he is to his agree- bargaining lished collective judgment order to bear in informed Shulman, Reason, Contract, ment. problem. a fair This reach solution of a Relations, Law in Labor 68 Harv.L.Rev. especially true to formu- when it comes 999, (1955). 1016 lating need is for remedies. There the flexibility meeting variety wide of arbi- expansive Even under the view may never situations. draftsmen Douglas tration Justice advocated thought specific remedy have of what trilogy, common law cannot Steelworker’s particular should be awarded to meet a contrary be introduced when it is Nevertheless, contingency. an arbitrator plain agreement.7 words of the United applica- is confined to Navigation Steelworkers Warrior & Gulf bargaining agree- collective 574, 579-80, 1347, 363 U.S. 80 S.Ct. ment; dispense he does not sit to own 1351, 4 1409 other- L.Ed.2d To hold justice. of industrial He brand vague wise would elevate the arbitrator’s guidance many course look for shop notion of unwritten law of the sources, yet his legitimate award is only so above the definite set of rules which results long as it draws from the its essence negoti- efforts in from the the labor bargaining agreement. collective When ations. the arbitrator’s words manifest an infi- nearly A federal court decision most delity obligation, to this have no courts point, factually, with the case at bar is but to choice refuse enforcement of the Torrington Co. v. Metal Products Workers award. 1645, (2d Union Local 362 F.2d 677 Cir. 597, 80 (emphasis S.Ct. at 1361 add 1966), affirmed a trial decision which court ed). Consequently, an arbitrator’s award based, setting aside an arbitrator’s award upheld it will not contravenes here, practice pre-existing the express language of the labor contract. negotiation Express Express Mistletoe Service v. Motor Union, (10th 692, private had a employer man’s 566 F.2d 695 Cir. 1977).6 20-year policy permitting employees time Fabricut, Drivers, 1645, (2d 6. See also Inc. v. Tulsa Gen. Workers Union Local 362 677 F.2d 523, Helpers, 1966). Warehousemen Local Cir. (10th 1979); F.2d 227 Cir. Coil Co. v. Detroit Lodge Int’l Ass’n of Machinists F.2d 7. Dean Theodore St. Antoine has commented Cir.), denied, that; (6th cert. 444 U.S. S.Ct. L.Ed.2d 52 Amanda Bent Labor arbitration as we not the know is Bolt (6th v. U. A. W. F.2d 1277 Co. Local product intellectualizing Nation- Auto., Cir. Local United Aero Academy, mythologizing al nor even of space Agricultural Implement & Workers v. T. Douglas. product Justice It is the of con- W., Inc., 1968), (6th R. 402 F.2d 727 cert. Cir. or, precisely, product more tract — denied, 395 U.S. 23 L.Ed.2d particular particular parties. contracts of (1969); Torrington v. Metal Products Co. Antoine, (footnote omitted). St. at 1139 days, policy election of its generally, off to vote on words —not but as unilaterally had been instituted the com- employees. responses to six I submit two *12 pany. employer, negotiations, had First, not, to “practice” this rationale. a is declared that cy, trator shall be bound therefore with shall have no contract was silent on the paid time of this lished bard, writing practice such a policy by negotiating with the union since said: gaining agreement ing implications The arbitrator expand agreement authorizes the arbitrator within the confines of the collective bar- [Wjhile viewing modify, to which the union all the terms of this sfc parties’ prior practice. the arbitrator’s practice mandate that agreement.” provision provided, had courts should be off to vote was a court to [*] for the it would discontinue the power of the parties. way, ruled that burden of n : pass upon to add parties’ prior practice, here, majority terms on the basis of company implied by * * * any Chief objected, n ; and must of the that 678 to, wary the benefit of requires a re- subject. changing firmly of the whether the Judge delete n. [*] and that “[t]he 2. but comply and he reject- of the estab- court, from, Lum- n ¡ arbi- poli- stay this it gaining Agreements, conduct; sponse parties 365; Mittenthal, supra, Practice and its consistent tive ly this elements ambiguous. a as and the Administration of Collective Bar- sidered agreement covered. accepted by proof since ment of Public Contract Grievance period For a utilized here, contract, mistake itmust 365 Policy, indicates to the circumstances. that such conduct is the ambiguous; “past mere conduct was known and (1968); Mittenthal, are Language Second, “past practice” mutuality conduct has been only Disputes, time, that be demonstrated that clear and required: promptly in which the inadvertence, practice” to construe (S. but it must also be shown may Relationship should it Pollard ed. in the Arbitration of is a crucial standard 40 U.Colo.L.Rev. understanding by cannot be in Arbitration and corrected when dis- at 32. This (1) there was mutual to prevail only Treeee, a provisions exist, language rationally developed prior an administra- Past Practice Treeee, 1961). proper applied two basic course of mutually require- Specific proper- is un- if the of an Past over con- Not re- to at Treeee, 365; agreement. supra, at Mitten- having Far disruptive effect 32; thal, supra, Hogan, Discussion in finality of labor arbitration (S. Policy, Arbitration and Public Pollard which results when courts review the 1961). ed. particular remedy “merits” of a devised arbitrator, by an we think that the limit- practice only Past exists in a situation in ed review here exercised will stimulate which both can be deemed to have voluntary resort to labor arbitration and practice. Bakery, assented to the Nickles thereby strengthen important aspect Inc., 33 Lab.Arb. If the labor-management by guar- relations mistake, initially conduct was a there can anteeing to the to a collective Treeee, mutually be no established rule. bargaining agreement they will find Further, supra, at 365. the failure to en- “philosopher in the arbitrator king” provision destroys force a contractual nei- but one who will disputes resolve their right right ther the contract nor the within the framework of the Hogan, supra, enforce it. at 65-68. The they negotiated. which right despite still controls the fact that the 362 F.2d at company rigidly has not chosen to enforce gist majority opinion’s provisions. ration- contractual Id. Conse- “past practice” unilaterally modify ale is that meaning quently, party affords cannot contract, notwithstanding plain bargaining agreement the collective nor can Co., advantage Mfg. (1955); failure enforce take Brass 25 Lab.Arb. obligation. Co., Bethlehem Steel Lab.Arb. Treece, 369-79, 372; supra, at Ho- No evidence was introduced in this case gan, supra, If the at 64. county actual indicating had clear, precise, subject and not knowledge of the six em- ployees possible interpretations, past other than the claim to various conduct is knowledge such should be inferred from the determining not relevant in continuing agreement. Al- violation of Inc., Mfg. Schmutz though originally there have been mu- *13 701, (1958). Lab.Arb. 704 employees’ acceptance tual of the vacation past practice party When the of a con- practice, agreement there was no mutual language contract, flicts with of the informally past policy continue vacation prevail. Mittenthal, latter should Id. See county under new contract. The did supra, Harry at 40. As Dean ob- Shulman acquiesce not in the continuance of the he umpire: served a decision made as practice “ignore” nor did it the conduct. county contrary holding Once the had of A practice, place past notice would responded promptly. it practice par agreement on a with written anomaly that, and create the while the majority opinion As the notes: “[i]t parties expend great energy and time in evidentiary significance true that no should negotiating Agreement, the details of the prior be a accorded course of conduct unless they unknowingly and unintentionally knew of its existence.” There surely commit shop per- is no common law of the when themselves to unstated and recognized by it is as such haps important more matters which in majority opinion holding inis effect may be the future found to have been impossible that it is correct a manifest past practice. mistake.8 Co., Ford Motor (1952). 19 Lab.Arb. 242 Even if the conduct the six employees Thus, arbitrator, whose is re- past practice, could be considered a evi stricted to interpretation application practice dence of such could not intro be contract, the terms of a exceeds those limits duced to contradict the terms he issues a decision based bargaining agreement. gen It is recognition of a at variance with erally acknowledged past practice may specific agreement. construing provisions be utilized in Co., Steel Foundry Ohio 36 Lab.Arb. 1088 may rationally be con (1961). Co., Reynolds See Metals Lab. ambiguous, sidered Boise Cascade v. United Arb. Steelworkers, Local Union No. majority opinion notes that this well- (5th Cir.), denied, F.2d 127 cert. 444 U.S. rule been by established criticized some (1979), 62 L.Ed.2d 38 or in prac- commentators who believe past filling “gaps” contract, in the United Steel by tice should be utilized Co., Navigation workers v. Warrior & Gulf even when the supra, However, at at S.Ct. 1351. critics, however, are clear.

past Those also practice may re- vary not be used to ject unambiguous provisions use contradict if the contract See, g., totally contract. e. unambiguous Sun Rubber and complete and if Lab.Arb. Price-Pfister there no mutual par- opinion, majority 8. The County arbitrator’s unlike the which admitted ‘could have been ” opinion, rely theory shop personnel.’ did not deprive on a com- discovered central To law, resting exclusively mon previously arbitrator on them of benefits accrued the six theory past practice. 1, may con- employees, as in footnote be a noted “Finally, penalty cluded with these apply words: it does not contract in future —but now, obviously stand to reason that the Grievants should is not. essence, penalized ‘oversight’ be for the Treece, practice. provide ties See at did not apply 377.9 to these employees six and that their vaca- tion entitlement be on terms differ- Mittenthal, Arbitrator Richard who advo- employees ent from all other in the unit. past practice, cates a broad use of concedes Granting special vacation entitlement ex- uncertainty there must be some as to clusionary employees, superior for these six or intention before conduct provided to that employees for all other interpret a contract.10 utilized to including employees other Mittenthal, supra, Hogan, supra, See unit — same Appraiser classification of Real Estate Wyandotte at 64. He decided in Chemical III —will to the “morale hardly (1962), contribute Corp., that a 39 Lab.Arb. shop.” management concerning assign- work policy “past practice” ments was not a which I respectfully my colleagues dissent of unsupported could be it was enforced since and would affirm the decision of the trial mutual It was his conclu- court. sion that: practices binding To treat all condi- OTIS, (dissenting). Justice *14 * * * place past prac- tions be to would join I in the of Mr. dissent Justice Peter- footing equal tice on an with the written son. * * Agreement *. The arbitrator cer- tainly “past has no to write a

practice” Agreement clause into the un- guise interpretation.

der the

Id. at 67.

Further, Corp., Dana Lab.Arb. 100 (1963), recognized that par- Mittenthal once BANKERS STANDARD INSURANCE general subject ties have on the commented COMPANY, Appellant, past practice agreement, implication practice can longer no al., Applying reasoning OLWELL, be drawn. Respondents, to the Wanda et bar, past practice case at clear that Jenny Leajcher, Respondent, reaching should not have used in been decision since specifically Larry Walters, al., E. et defendants subject dealt with the matter prac- party plaintiffs, Respondents, third tice, payments. vacation time and overtime Associates, Inc., party Holmbeck & third Notwithstanding explicit terms of the Respondent. defendant, vacation agreement, labor No. 51213. notwithstanding explicit provision personnel provided by “all policies this con- of Minnesota. Court tract, stated, ap- unless otherwise shall be Sept. plied uniformly bargaining the entire across unit,” notwithstanding the detailed it, provisions proscribing the ar-

bitrator modified the collective 9. Arbitrator W. Treece Lawrence has com- sidered since it reflect a did not mutu- ally agreed mented that no critic decided to what de- gree past practice be relied on should 10. Mittenthal admits that even those who are Treece; ambiguous. supra, contract terms are willing in all are use decisions opinion, at 378. In Treece’s evidence that apprehensive implication. of the breadth given weight should be relative Mittenthal, more He also acknowl- at 52. which reflects edges mutual intention. seem correct from a what approach, point always 374. Even under this the con- make theoretical of view does not employees practical duct of the point six not be con- sense from a of view. Id.