                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-2211
                       ___________________________

                         Minnesota Nurses Association

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

         North Memorial Health Care; North Memorial Medical Center

                    lllllllllllllllllllll Defendants - Appellants
                                     ____________

                   Appeal from United States District Court
                  for the District of Minnesota - Minneapolis
                                 ____________

                          Submitted: February 9, 2016
                             Filed: May 13, 2016
                               ____________

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
                           ____________


BEAM, Circuit Judge.

      Appellant North Memorial Health Care owns and operates Appellant North
Memorial Medical Center (North Memorial or Medical Center), a hospital. North
Memorial employs nurses represented by Appellee, Minnesota Nurses Association
(MNA or the Union), which employment is governed by a collective bargaining
agreement (CBA). Pursuant to the CBA, North Memorial and MNA referred a
grievance to arbitration. Unhappy with the arbitrator's decision, MNA moved the
district court1 to vacate the arbitral award and the district court granted the motion in
part. We affirm.

I.    BACKGROUND

       Article 23 part I of the CBA, in effect at all times relevant to this dispute,
provides: "A nurse with thirty (30) calendar years of service at age fifty-five (55) or
above will not have a weekend obligation. . . . The above language will apply except
where this would deprive patients of needed nursing service." Nurse Lynette Drake,
knowing she would soon meet these criteria, submitted a written request to North
Memorial that she be afforded the privilege of work-free weekends once she became
eligible on May 17, 2013. Drake's scheduling manager denied her request, invoking
Article 23(I)'s exception for needed nursing service. Under a procedure set out in the
CBA, Drake grieved the denial, North Memorial denied the grievance, and MNA, on
behalf of Drake, referred the matter to arbitration. As the issue before us centers on
the arbitrator's decision, we describe it here in some detail.

       The CBA defines a grievance as "any controversy arising over the interpretation
of or the adherence to the terms and provisions of this Agreement." In a letter to
North Memorial included in the exhibits received in evidence by the arbitrator, MNA
described the grievance as follows: "The Union alleges that the employer is in
violation of Section 23 – Weekends, and all other applicable areas of the contract.
The employer has been and continues to deny Ms. Drake the 30 year-no weekend
option as defined in the [CBA]." North Memorial characterized the issue before the
arbitrator in a post-hearing brief as follows: "Did the Medical Center violate Section
23(I) when it refused to regularly schedule the Grievant with no weekends?" On the


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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basis of these characterizations, the arbitrator set out the issue before him in the form
of two questions: "1. Did the Medical Center violate Article 23(I) of the Contract
when it refused to regularly schedule the Grievant with no weekend work?"; and "2.
If so, what is the appropriate remedy?"

       After discussing the facts and the positions of each party, the decision set out
the controlling rule of law that "absent contract language to the contrary, on matters
involving the right of the hospital to schedule work, the hospital should be given
broad latitude and the hospital's decision should not be set aside unless found to be
arbitrary, capricious or discriminatory." The decision next observed that under Article
23(I) qualified nurses are "not required to work weekends," subject to the exception
for needed nursing service. The decision then noted that a witness for MNA described
several scheduling methods as proposed alternatives to North Memorial's current
method to show "that the 'exception' proviso is not applicable since there were
numerous ways that North Memorial could use to provide the Grievant with the no
scheduled weekend work benefit and simultaneously ensure that patients are not
'deprived of needed nursing service.'" After analyzing and rejecting as unworkable
each of those proposed alternatives, the decision stated,

            Based upon the foregoing, none of the "suggestions" proffered by
      the Union and Grievant allowing the Medical Center to guarantee the
      Grievant no scheduled weekend work and still meet its core staffing
      needs when a work schedule was posted from May 17, 2013, to the
      present date were persuasion [sic]. Thus, during this time period the
      Employer had the expressed right to invoke the "exception" proviso in
      Section 23(I) and not grant the Grievant the no scheduled weekend work
      benefit.

The decision continued,

            Safe patient care should be goal [sic] of the Parties and the
      Grievant going forward from this date. To accomplish this goal, the

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      Arbitrator agrees with the Medical Center that the Parties need a
      prospective standard for evaluating patient care in accordance with
      Section 23(I).

             The most sensible, reasonable and fairest solution for future
      weekend scheduling in accordance with Section 23(I), without the
      Medical Center being arbitrary, capricious or discriminatory, is to have
      all qualifying nurses (55 years or older and 30 calendar years of service)
      equally share (divide) weekend work if the Employer invokes the
      "exception" proviso to protect patient care.

             ....

             . . . [I]t is arbitrary, capricious and discriminatory to have the
      Grievant work all of the future scheduled weekends when similarly-
      situated qualifying nurses are exempt from this work.

After explaining the arbitrator's reasoning for this prospective remedy, the decision
concluded:

             Based upon the foregoing and the entire record, the Employer is
      found to have not violated Section 23(I) from the date of the Grievant's
      eligibility for the no scheduled weekend work benefit (May 17, 2013) to
      the present. However, from the date of this award, if the Employer
      invokes the "exception" proviso to compel qualifying nurses to work on
      weekends the number of required weekends shall be equally shared
      (divided) among those qualifying nurses as noted above.

       MNA then filed a motion to vacate or, in the alternative, modify or correct the
arbitration award in Minnesota state district court under the Minnesota Uniform
Arbitration Act. Minn. Stat. §§ 572B.23, .24. North Memorial removed the case to
federal district court, noting the arbitration was conducted pursuant to the CBA,
thereby conferring federal jurisdiction under the Labor Management Relations Act
(LMRA). 29 U.S.C. § 185. The district court granted in part the motion to vacate on
two alternate grounds. First, it agreed with MNA that by imposing a prospective

                                         -4-
remedy on the parties the arbitrator moved beyond the scope of the issue presented to
him. The district court observed that the arbitrator "found no violation [of the CBA]
but nonetheless imposed additional obligations on the parties. There is no indication
that the parties intended [the arbitrator] to issue a remedy without first finding a
violation on the part of North Memorial." Minn. Nurses Ass'n v. Amended N. Mem'l
Health Care, No. 14-4529, 2015 WL 2373446, at *3 (D. Minn. May 18, 2015)
(citation omitted). Second, it agreed with MNA that even if the arbitrator was
authorized to issue a remedy despite finding no violation of the CBA, the remedy he
prescribed was beyond his authority because it "effectively nullified other provisions
of the CBA."2 Id. The district court, therefore, vacated the portion of the arbitrator's
award requiring that weekend shifts filled by qualifying nurses be divided equally
among them. North Memorial appeals.

II.   DISCUSSION

       We review de novo a district court's conclusions of law made when reviewing
an arbitrator's decision. Keebler Co. v. Milk Drivers & Dairy Emps. Union, Local No.
471, 80 F.3d 284, 287 n.2 (8th Cir. 1996). Our review of the arbitrator's decision
under the LMRA, however, is extremely deferential, limited only "to determining
whether: (1) the parties agreed to arbitrate; and (2) the arbitrator had the power to
make the award that he made." Id. at 287. We are concerned in this case only with
the second inquiry. It is a settled rule that an arbitrator's authority is limited by the
issues the parties present to him for decision; he must "stay[] within the areas marked
out for his consideration," and may not go "beyond the submission." United
Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 598 (1960). "When


      2
       Two Articles of the CBA identified by MNA, Articles 6 and 24, limit the right
of North Memorial to unilaterally alter nurses' "work agreements." The district court
concluded, and MNA now argues, that the arbitrator's remedy of dividing weekends
among qualified nurses, some of whom receive the no-weekends benefit, conflicts
with these provisions. As we explain, we do not reach this issue.

                                          -5-
two parties submit an issue to arbitration, it confers authority upon the arbitrator to
decide that issue." Local 238 Int’l Bhd. Of Teamsters v. Cargill, Inc., 66 F.3d 988,
990-91 (8th Cir. 1995). Thus, "[a] court may vacate a labor arbitration award if the
arbitrator exceeds the scope of the submission by ruling on issues not presented to him
by the parties." Lackawanna Leather Co. v. United Food & Commercial Workers Int'l
Union, AFL-CIO & CLC, 706 F.2d 228, 234 (8th Cir. 1983) (en banc). All the same,
"an arbitrator's interpretation of the scope of the issue submitted to him is entitled to
the same deference accorded his interpretation of the [CBA]." John Morrell & Co. v.
Local Union 304A of the United Food & Commercial Workers, 913 F.2d 544, 560
(8th Cir. 1990) (quoting Pack Concrete, Inc. v. Cunningham, 866 F.2d 283, 285 (9th
Cir. 1989)).

       North Memorial first argues that the arbitrator's remedy is consistent with the
CBA. While this may or may not be true, it is beside the point. "An arbitrator's
authority derives from and is limited by the CBA." Midwest Div.-LSH, LLC v.
Nurses United for Improved Patient Care, CNA/NNOC, 720 F.3d 648, 650 (8th Cir.
2013). Under the CBA, the parties delegated to the arbitrator the authority to resolve
"any controversy arising over the interpretation of or the adherence to the terms and
provisions of [that] Agreement." Within the scope of such a controversy, our
deference to the arbitrator's interpretation of the CBA permits us only to inquire
whether "the arbitrator properly considered the contractual arrangement between the
parties when making his decision." Fairview Southdale Hosp. v. Minn. Nurses Ass'n,
943 F.2d 809, 811 (8th Cir. 1991) (per curiam). But the CBA has not delegated the
arbitrator authority to resolve disputes not presented to him by the parties, and the
extent of the dispute the parties have referred to arbitration is determined by the
submission, not the CBA.

      North Memorial next argues that the district court was incorrect in
characterizing the arbitrator's decision as imposing a remedy after finding that North
Memorial had not violated the CBA. The arbitrator, according to North Memorial,

                                          -6-
found there was no violation only on the condition that his prospective remedy be
implemented to prevent arbitrary application of Article 23(I)'s exception in the future.
That is not how we read the arbitrator's decision. The decision's "Analysis of the
Evidence" portion is unambiguously arranged, first, into an analysis of and conclusion
as to whether North Memorial violated the act when it denied Drake the no-weekends
benefit and, second, the fashioning of a means to achieve the goal of "[s]afe patient
care . . . going forward from this date." No language in the decision conditions the
finding of no violation to the imposition of the prospective remedy, which the decision
makes clear is meant to preemptively address the possibility of a future violation. The
arbitrator's conclusion, quoted above, confirms this reading by separately and
independently addressing the periods before and after the award.

      North Memorial also contends that MNA's proposed, alternative scheduling
methods "encouraged" the arbitrator to find a fair and proactive solution to the
dispute. But this contention is undermined by the arbitrator’s own description of that
evidence:

              Union witness Trent D. Burns, Registered Nurse, Union Co-Chair,
      testified that the "exception" proviso is not applicable since there were
      numerous ways that North Memorial could use to provide the Grievant
      with the no scheduled weekend work benefit and simultaneously ensure
      that patients are not "deprived of needed nursing service."

As the arbitrator recognized, MNA presented scheduling methods as evidence that
North Memorial was not entitled to invoke the needed-nursing-service exception. The
decision does not indicate that the arbitrator took this evidence for a list of available
"remedies" intended by MNA to address the risk of arbitrariness in future
circumstances. The decision reinforces this conclusion when it transitions to its
discussion of the prospective remedy, noting that "the Arbitrator agrees with the
Medical Center that the Parties need a prospective standard for evaluating patient care



                                          -7-
in accordance with Section 23(I)." The decision, conspicuously, does not credit MNA
and its suggested scheduling methods with urging such a standard.

       We think the district court correctly concluded the arbitrator was without
authority to issue the prospective remedy because his decision exceeded the scope of
the submission presented to him by the parties. We readily acknowledge that we are
obligated to afford the arbitrator's interpretation of the scope of the issues presented
the same deference as his interpretation of the CBA. But our decision does not rest
on the parties' submissions; it rests on the arbitrator's own unchallenged framing of
those submissions. See John Morrell, 913 F.2d at 560 (agreeing with district court
that "the arbitrator's own characterization of the issue did not suggest that the
issue . . . was submitted for arbitration"). The arbitrator himself interpreted the
dispute as whether North Memorial was permitted under the CBA to deny Drake's
scheduling request, and if so the manner in which that violation should be remedied.
After framing the issue as such, the arbitrator found there was no violation to be
remedied at the time North Memorial denied Drake's request, but he then continued
on to issue a prospective cure for future, hypothetical disputes not before him. The
arbitrator identified the general rule that arbitrary, capricious, and discriminatory
exercise of a hospital's right to schedule its employees serves as a basis on which to
set aside a scheduling decision. He applied this rule by treating a discrete, past
decision to deny a benefit as an ongoing dispute arising each time Drake was
scheduled to work a weekend shift and determining that future scheduling decisions
would violate the CBA, requiring a prospective remedy. But the issue as framed by
the arbitrator expressly sought only resolution of a single, past act of North
Memorial's–denying Drake's request to be permanently granted a benefit she sought.
Reading the plain language of the issue as set out in the decision, we do not believe
the arbitrator was "even arguably . . . acting within the scope of his authority," United
Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987), under the
parties' submission when it rewrote the CBA to remedy future, as-yet-ungrieved acts.



                                          -8-
We therefore affirm the district court on this ground and so do not address its alternate
basis for vacatur.3

III.   CONCLUSION

       For the reasons stated herein, we affirm the district court.
                        ______________________________




       3
       Additionally, we deny North Memorial's pending motion to strike portions of
the record as moot, as our decision today is not based on any of the disputed material.

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