The opinion
HODGES, Justice,
dissenting.
Today’s pronouncement reverses the judgment of the trial court and remands the cause with directions to submit the dispute over interpretation of the merit rules to an arbitrator. I must dissent because, by its own terms, the collective bargaining agreement between the police union and the city does not apply to the merit system.
The collective bargaining agreement between the city and its police officers specifically excludes certain grievances from arbitration. Article 17, section 14 of the agreement provides:
It is understood and agreed that this article does not apply to grievances concerning promotion, demotion, suspension, dismissal, or other disciplinary action, all of which are subject to Merit Board review and which must be governed by the Merit Board Rules,
(emphasis added). Thus, the parties agreed that the merit board would be the entity responsible for reviewing demotions.
Because demotion was excluded from arbitration, clearly the merit rules governing demotion were also excluded from arbitration. Nevertheless, the majority goes on to hold that the merit rules were somehow incorporated by reference into the collective bargaining agreement and that an arbitrator must construe the merit rules to determine the scope of merit board review.
The authority cited for this conclusion' is article 17, section 14, of the collective bargaining agreement which excludes demotions from the agreement’s grievance procedure and makes them subject to the merit rules. Under article 17, section 2, of the agreement, the grievance procedure applies to “terms or conditions of employment contained in this Agreement.” (emphasis added). The merit rules were not contained in the agreement. It does not seem reasonable that a contract provision excluding certain subjects from the grievance procedure can serve as authority for the notion that the excluded procedure (the merit system) was incorporated into the collective bargaining agreement.
The merit board should decide whether the officer was entitled to a merit board review or a full evidentiary hearing under the merit rules. A party aggrieved by the merit board’s interpretation of its rules could then pursue the matter in district court. But the interpretation of the rules *346 should initially rest with the merit board rather than an arbitrator.
The majority’s resolution of the case does not give effect to the intent of the parties as reflected by both the collective bargaining agreement and the city’s past practice of affording a merit board hearing to any demoted officer who requested one. The parties clearly intended to exclude demotions from the bargaining agreement’s grievance process. The merit rules are not “terms or conditions of employment contained in [the] Agreement” and are not subject to arbitration.
Additionally, the majority approach does not provide the speediest mechanism for addressing the merits of an officer’s demotion. The board should determine the scope of its review under the merit rules and address the merits of an officer’s demotion. The scope of review decision could then be challenged in district court. The merits of the demotion should not have to await an arbitrator’s construction of the rules.
The merit board was created by city charter to deal with this type of employee dispute. Pursuant to its charter, the city delegated the enforcement and interpretation of the merit rules to the merit board. Nothing in the collective bargaining agreement evidences an intent to remove these duties from the board and reassign them to an arbitrator. The merit board should be allowed to interpret its own rules.
I am authorized to state that Justice ALMA WILSON joins in the views herein expressed.