Cuyahoga Cty. Court of Common Pleas, Juvenile Div. v. Laborers' Internatl. Union of N. Am., Local Union No. 860 , 2022 Ohio 2866 ( 2022 )

[Cite as Cuyahoga Cty. Court of Common Pleas, Juvenile Div. v. Laborers' Internatl. Union of N. Am., Local
Union No. 860, 2022-Ohio-2866.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CUYAHOGA COUNTY COURT OF :
COMMON PLEAS, JUVENILE
DIVISION, :
Plaintiff-Appellee, : No. 110962
v. :
LABORERS’ INTERNATIONAL :
UNION OF NORTH AMERICA,
LOCAL UNION NO. 860, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 18, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-916342
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Matthew D. Greenwell, Assistant
Prosecuting Attorney, for appellee.
Mangano Law Offices Co., L.P.A., Joseph J. Guarino, III,
Austin Tyler Opalich, for appellant.
ANITA LASTER MAYS, P.J.:
I. Introduction
Defendant-appellant Laborers’ International Union of North
America, Local Union No. 860 (“Union”) appeals the trial court’s judgments that
(1) granted the motion of plaintiff-appellee Cuyahoga County Court of Common
Pleas, Juvenile Division (“Juvenile Court”) to modify the arbitration award;
(2) denied the Union’s application to confirm the arbitration award; and (3) denied
the Union’s Civ.R. 52 motion for findings of fact and conclusions of law.
We affirm the trial court’s judgment.
II. Background
On July 5, 2017, detention officer Derrick Young (“Young”) reportedly
observed his supervisor and coworker throw urine on a 15-year-old resident in what
the Juvenile Court described as an orchestrated attack. The Juvenile Court initiated
an investigation when they were informed that the Cuyahoga County Department of
Job and Family Services (“CCDJFS”) had launched an abuse investigation and that
the victim’s mother had complained. The investigation of Young and others
allegedly involved was conducted by the Juvenile Court from July 18, 2017, through
December 2017. Pursuant to the general court employee administrative leave policy,
Young and the others were placed on paid leave without loss of benefits during the
investigation.
The investigation revealed that Young, a statutory mandatory child
abuse reporter, failed to report or intervene in the incident. The investigation also
revealed additional rule violations by Young that included falsifying time records,
failing to conduct required visual checks on residents at 15-minute intervals, and
sleeping on-the-job for a ten-hour period.
On December 21, 2017, Young and a representative of the Union
attended a predisciplinary hearing. The hearing officer determined that Young
violated 16 policies and procedures and recommended termination. Young was
terminated effective December 28, 2017.
The Union appealed the finding and requested a meeting to challenge
the termination pursuant to the parties’ Collective Bargaining Agreement (“CBA”).
At the January 29, 2018 meeting with the Juvenile Court administrator Tess Neff
(“Neff”), Young requested a ten-day suspension in lieu of termination. On
February 9, 2019, Neff upheld the hearing officer’s findings but granted Young’s
request for a ten-day unpaid suspension. Young returned to work on February 20,
2018. Young had already received full-pay and benefits during the investigation and
was paid for lost wages between the end of December and mid-February.
Although Young’s requested resolution was successful, the Union
demanded arbitration on February 10, 2018. Young filed an employee grievance
form on February 15, 2018, that stated only “I would like to appeal my suspension.”
Young was suspended for the ten-day period. The grievance did not state that Young
desired to grieve any element of the administrative leave period or the payment of
potential lost overtime during that period.
Arbitration ensued pursuant to the CBA. The parties stipulated that
the sole issue before the arbitrator was “whether there was just cause for taking
disciplinary action against the Grievant.” The Union argued that the Juvenile Court
lacked just cause for the discipline and the action should be overturned. The Union
also argued that Young was effectively penalized or was not made whole because he
did not receive payment for overtime that Young “historically worked during his
administrative suspension totaling between 30 and 100 hours.” Appellant’s brief,
p. 2, citing (Vol. 6, p. 49-52.)1
After eight days of hearings, in a May 21, 2019 Opinion and Award,
the arbitrator determined that the ten-day suspension was reasonable and
supported by just cause. In fact, the arbitrator said that the failure to perform
confinement checks and falsification of records “[i]n virtually any other setting * * *
would warrant termination, much less a relatively short suspension.” Arbitration
award at p. 32.
While the disciplinary action was upheld, the arbitrator also
determined that the Juvenile Court “improperly denied overtime compensation in
computing the Grievant’s pay during the period of his administrative leave, and the
backpay period from December 28, 2017, to February 20, 2018 (minus the 10 days
of his suspension).” Arbitration award, p. 41. “Court is directed to pay the Grievant
16 hours at time and one-half of his base hourly rate for each and every 80-hour pay
The transcript for the arbitration hearing is designated by volume and page
1
numbers.
period between July 18, 2017 and February 20, 2018 (minus 10 days).” Arbitration
award, p. 41.
On June 4, 2019, the Juvenile Court filed a motion to vacate and/or
modify the arbitration award under R.C. 2711.10(D) and 2711.11(B) respectively,
pursuant to R.C. 2711.13, in the Cuyahoga County Court of Common Pleas. The
Juvenile Court argued that the arbitrator’s decision on the non-grieved overtime
issue exceeded the scope of the arbitrator’s authority and ruled upon an issue not
submitted for arbitration. On October 25, 2019, the Union responded and moved
for confirmation of the arbitration award pursuant to R.C. 2711.09.
Briefing was completed in the fall of 2019, but the matter remained
pending due to scheduling limitations because of the Covid pandemic. On
September 30, 2021, two days after a scheduled status conference was canceled, the
trial court issued an entry that rescheduled the conference to November 3, 2021.
“That same day, just eighty-nine (89) minutes later,” the trial court “purported to
read the 233 pages of briefings and entered judgment” against Young. Appellant’s
brief, p. 4.
The trial court granted the Juvenile Court’s R.C. 2711.11(B) motion to
modify the award on the ground that the arbitrator awarded upon a matter not
submitted:
Pursuant to R.C. 2711.11, this court has reviewed the briefs submitted
and hereby modifies the arbitration award.
This court finds that the arbitrator “awarded upon a matter not
submitted to [him]” when calculating and awarding Derrick Young
overtime while on paid administrative leave during the investigation of
the allegations against him.
The arbitrator’s authority did not extend to the resolution of whether
the court properly excluded overtime compensation in computing
Derrick Young’s pay on administrative leave and his back pay. The
arbitrator’s sole question for review, and therefore the extent of his
authority, was to resolve the issue of whether there was just cause for
taking disciplinary action against Derrick Young. Accordingly, because
the arbitrator awarded upon a matter not submitted to him, the
arbitration award is hereby modified to remove that finding.
Journal entry No. 118847746, p. 1 (Sept. 30, 2021).
The trial court held:
The modified arbitration award shall state:
1. The grievance is sustained.
2. There was just cause for taking disciplinary action against the
grievant, with the 10-day suspension supported by clear and
convincing evidence.
3. Pursuant to article 9 of the agreement the fees and expenses of the
arbitrator shall be divided equally between the parties.
Id. On October 5, 2021, the trial court issued a nunc pro tunc entry that corrected
several typographical errors and amended the language from “[t]he grievance is
sustained” to “[t]he grievance is denied.” Journal entry No. 118906764, p. 1 (Oct. 5,
2021).
On October 7, 2021, the Union moved for findings of fact and
conclusions of law pursuant to Civ.R. 52 “[b]ecause the Court’s judgment entry
would require a review of the underlying record and not just the briefs.” Appellant’s
brief, p. 4. The trial court issued a summary denial of the motion. The Union
appeals.
III. Assignments of Error
The Union assigns the following errors:
I. The trial court erred by modifying the arbitrator’s award under
R.C. 2711.11 because the parties submitted the issue of whether the
grievant was unjustly punished with improperly calculated pay
during administrative leave to the arbitrator.
II. The trial court erred by failing to confirm the arbitrator’s award
because the award is not subject to vacation or modification and
Local 860 complied with the statutory prerequisites in
R.C. 2711.09.
III. The trial court erred in denying defendant’s motion for findings of
fact and conclusions of law pursuant to Civ.R. 52 because it made
at least several factual determinations.
IV. Award Modification
The Union argues that the just cause issue included the question of
whether Young was unjustly punished with improperly calculated pay during
Young’s administrative leave. The Juvenile Court counters that the trial court’s
modification to remove the improper overtime award pursuant to R.C. 2711.11.(B) is
authorized by law and supported by the record because the matter was not
submitted to the arbitrator.
A. Standard of Review
The “voluntary termination of legal disputes by binding arbitration is
favored under the law.” Brown v. Nanteeka Gloves, L.L.C., 2021-Ohio-1659, 171
N.E.3d 1284, ¶ 14 (8th Dist.), citing Kelm v. Kelm, 68 Ohio St.3d 26, 27, 623 N.E.2d
39 (1993). “[A]n arbitrator’s award is presumed to be valid.” N. Olmsted v.
Internatl. Assn., Local 1267, 8th Dist. Cuyahoga No. 91300, 2009-Ohio-960, ¶ 11,
citing Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn., 49 Ohio St.3d 129,
551 N.E.2d 186 (1990).
An arbitrator also “‘has broad authority to fashion a remedy when a
CBA violation has occurred.’” Id. at ¶ 45, quoting Bd. of Trustees v. FOP, Ohio Labor
Council, 81 Ohio St.3d 269, 273, 690 N.E.2d 1262 (1998). Notwithstanding this fact,
that authority is limited by an express provision to the contrary in the CBA. Bd. of
Trustees at id.“[T]he arbitration procedure set forth in R.C. Chapter 2711 authorizes
a limited and narrow judicial review of an arbitration award.” Brown at ¶ 14, citing
Asset Acceptance L.L.C. v. Stancik, 8th Dist. Cuyahoga No. 84491, 2004-Ohio-6912.
“Thus, a trial court may not evaluate the merits of an award. Id. at ¶ 32, citing
Brookdale Senior Living v. Johnson-Wylie, 8th Dist. Cuyahoga No. 95129, 2011-
Ohio-1243, at ¶ 6. “Instead, the review determines whether the appealing party has
established that the award is defective within the confines of R.C. Chapter 2711.” Id.,
citing id.
“It is only when the arbitrator has overstepped the bounds of his or
her authority that a reviewing court will vacate or modify an award.” Queen City
Lodge No. 69, FOP, Hamilton Cty., Ohio, Inc. v. Cincinnati, 63 Ohio St.3d 403, 406-
407, 588 N.E.2d 802 (1992).
An arbitration departs from the essence of the agreement and exceeds
the arbitrator’s authority when it ““‘conflicts with the express terms of the collective
bargaining agreement’” or “‘is without rational support or cannot be rationally
derived from the terms of the agreement.’”” Brook Park v. FOP, 8th Dist. Cuyahoga
No. 108879, 2020-Ohio-3035, ¶ 13, quoting Cedar Fair, L.P. v. Falfas, 140 Ohio
St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 7, quoting Ohio Office of Collective
Bargaining v. Ohio Civ. Serv. Emps. Assn., Local 11, AFSCME, AFLCIO, 59 Ohio
St.3d 177, 572 N.E.2d 71 (1991), syllabus.
While an arbitrator receives great deference, “his powers are not
unlimited in the resolution of labor disputes.” Id. at 180. “‘The arbitrator is confined
to the interpretation and application of the collective bargaining agreement” and
while “he may construe ambiguous contract language, he is without authority to
disregard or modify plain and unambiguous provisions.’” Id., quoting Detroit Coil
Co. v. Internatl. Assn. of Machinists & Aerospace Workers, 594 F.2d 575 (6th
Cir.1979). It is the duty of the appellate court “to determine whether the arbitrator’s
award was reached in a rational manner from the collective bargaining agreement.”
Id.It is also the duty of an appellate court to accept findings of fact that
are not clearly erroneous but decide questions of law de novo when reviewing a
decision of a common pleas court “confirming, modifying, vacating, or correcting an
arbitration award.” Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators’
Assn. for Dev. Disabilities, 153 Ohio St.3d 219, 2018-Ohio-1590, 103 N.E.3d 804,
syllabus.
“‘Whether an arbitrator has exceeded his authority is a question of
law.’” Id. at ¶ 25, quoting Green v. Ameritech Corp., 200 F.3d 967, 974 (6th
Cir.2000). In the instant case, the issue of whether the arbitrator has ruled upon
matters not submitted is also question of law. See CNH Indus. N.V. v. Reese,
___U.S.___, 138 S.Ct. 761, 763, 200 L.Ed.2d 1 (2018). “This Court has long held
that collective-bargaining agreements must be interpreted ‘according to ordinary
principles of contract law.’” Id., quoting M&G Polymers USA, LLC v. Tackett,
___U.S.___, 135 S.Ct. 926, 190 L.Ed.2d 809 (2015).2
This court’s de novo review is not of the merits of the dispute as
presented to the arbitrator but is limited to whether the R.C. Chapter 2711 statutory
grounds exist to support the trial court’s judgment. Zeck v. Smith Custom Homes &
Design, LLC, 8th Dist. Cuyahoga No. 110574, 2022-Ohio-622, ¶ 12, citing Adams
Cty./Ohio Valley Local School v. OAPSE/AFSCME, Local 572, 2017-Ohio-6929, 94
N.E.3d 937, ¶ 18 (4th Dist.), citing Jackson Cty., Ohio Sheriff v. FOP Ohio Labor
Council, Inc., 4th Dist. Jackson No. 02CA15, 2004-Ohio-3535, ¶ 19-20.
B. Discussion
R.C. 2711.11(B) provides in part:
[T]he court of common pleas in the county wherein an award was made
in an arbitration proceeding shall make an order modifying or
correcting the award upon the application of any party to the
arbitration if: * * *
2 The cases cited in appellant’s opening brief and that of appellee related to the
standard of review regarding motions to stay or compel arbitration under R.C. 2711.02
and 2711.03 and not motions to amend for a matter not submitted under R.C. 2711.11(b).
In appellant’s reply brief, it claimed that appellee misstated the proffered standard of
review and argued that the arbitrator’s determination is factual. We are guided by the
Portage case and proceed accordingly.
(B) The arbitrators have awarded upon a matter not submitted to them,
unless it is a matter not affecting the merits of the decision upon the
matters submitted.
The Union argues that the record supports that the issue of overtime
pay was properly before the arbitrator. During the arbitration, Neff was questioned
by the Union about funds budgeted for detention officers’ overtime. Neff explained
that overtime was approved as needed and “is never guaranteed.” Id. (Vol. 4, p.
152.) Neff was aware that Young’s administrative leave pay did not include overtime
and explained that any decision regarding Young’s administrative leave payment
“would have come through our HR department because you only got overtime if you
worked it.” (Vol. 4, p. 153.)
The Union advises that the Juvenile Court did not object to the
questions at that time and that the Union “eliminated any question concerning its
intention to fight for overtime hours to be included in back pay, regardless of the
just cause determination, during its opening statement.” Appellant’s brief, p. 9.
However, the Union concedes that this information was not shared until “late in the
eight-day hearing because, as is standard practice, the Union reserved its opening
statement for the beginning of the Union’s case in-chief.” Id. (Vol. 5, p. 79-91.) At
that point, the Union announced that Young was not made whole for the six-month
administrative leave period “regardless of the outcome of the Arbitrator’s
determination as to the ten-day suspension.” Id., citing id.The Juvenile Court maintains that the overtime issue was not
addressed because the sole issue before the arbitrator was the existence of just cause
for the suspension. The parties placed two stipulations on the record at the
inception of the arbitration proceeding. First, that the matter was properly in
arbitration. Secondly, the parties expressly agreed to the issue before the arbitrator.
Arbitrator: Regarding the issue in this arbitration: The issue will be
whether there was just cause for taking disciplinary action
against the grievant. Will the Court so stipulate?
Court: Yes.
Arbitrator: And the union?
Union: Yes.
(Vol. 1, p. 3-4.)
A review of the record demonstrates that the Juvenile Court posed
its objection when the Union pressed the overtime issue during the case-in-chief:
Court: I’m going to object to this. We are here on whether or not he
violated the rules and deserved to be on leave and then
terminated and then suspended.
We are not here about what the effects are on him. It’s
presumed that having reduced income would have a bad affect,
but we are here to determine whether he brought it on himself
or not.
Union: Well we are here on a couple of issues and this one is relevant
to whether or not he is owed additional monies as a result of
being placed on administrative leave.
Court: That’s a separate issue. That should be bifurcated.
Union: We’re not bifurcating.
(Vol. 6, p. 52-53.)
The discussion continued:
Arbitrator: The grievance is seeking compensation for the losses
incurred by Mr. Young during the period of — whether it
says that in the actual grievance statement or not, it is
presumed that the union is seeking a remedy in addition
to a finding of no just cause.
It is correct that the alleged sympathy aspect that is being
testified to is not really germane, but what is germane is
the economic losses that were suffered and I hope you will
trust that I can separate one from the other.
So I am going to overrule the objection. I believe the
testimony on this is pretty much complete, is that correct?
Union: Other than the overtime.
Court: I do agree with you and I understand where you are going,
but the grievance has two words, appealing termination
[sic]. Nothing else. We were not put on notice of any of
this. And now they’ve gone off the grievance and gone
onto something [else].
Arbitrator: I have only — I am trying to think how many cases I have
had here before, but I am assuming there have been other
arbitration awards involving the Court in which there has
been a finding of no just cause and that it was necessary to
compute back pay.
So whether that’s done after the award or whether there is
evidence of an economic loss during the arbitration
proceedings, I do not think it is inappropriate to address
it.
But as I just said to [Union counsel], I think we have had
sufficient [discussion] on that point at this juncture. So I
suggest you move on to another topic, if there is another
topic.
(Vol. 6, p. 54-55.)
The Union next advised the arbitrator that the Juvenile Court
misrepresented that it was never formally told that overtime was an issue. The
Juvenile Court disagreed:
Court: Never [addressed] before. It was in settlement talks and those
are not admissible and it should not be on the record and I
would move to strike them.
Union: I think that it can be there because you said you never got
notice. Not that you weren’t told about it in an official way.
(Vol. 6, p. 55-56.)
The arbitrator interjected,
[e]xcuse me. There was never any formal notice and if there is a
finding of no just cause, I’m going to leave it to the parties to work out
whatever financial remedy is appropriate because as I said * * * I think
it’s time to move on to another subject and it’s not helpful to be having
this kind of acrimony between counsel.
(Emphasis added.) (Vol. 6, p. 56.) The Juvenile Court urges that in addition to the
express stipulations on the record, the briefs in the arbitration would have been
substantially different if the overtime issue was a subject of arbitration.
The just cause determination is not in dispute. We reiterate that this
court’s narrow focus is on the trial court’s decision that the award was made on a
matter not submitted. “An arbitrator’s powers are set by the agreement from which
he draws his authority. The arbitrator has no authority to decide issues which, under
the agreement, the parties did not submit to review.” State Farm Mut. Ins. Co. v.
Blevins, 49 Ohio St.3d 165, 551 N.E.2d 955 (1990), at paragraph one of the syllabus.
Conversely, “‘if the arbitrator has not exceeded his or her powers, the award should
not be vacated or modified, absent any of the other circumstances in R.C. 2711.10
and 2711.11.’” Bd. of Trustees, 81 Ohio St.3d at 273, 690 N.E.2d 1262, quoting Queen
City Lodge No. 69, FOP, Hamilton Cty., Ohio, Inc., 63 Ohio St.3d at 407, 588 N.E.2d
802.
The arbitrator listed in the Award section entitled “relevant
provisions of the agreement, statute, policies and post orders”: CBA Article 8,
Section 3 that governs progressive discipline, R.C. 2151.421 that governs reporting
child abuse or neglect, and excerpts of the Juvenile Court’s policy and procedure
manual that Young was disciplined for violating. Arbitration award, p. 18.
The Union argues that the award is appropriate because the
arbitrator’s power to award a remedy is presumed unless the parties agree otherwise
and that an arbitrator has inherent authority to formulate a remedy when
determining just cause unless the CBA expressly provides otherwise. Queen City
Lodge at 406.
The Juvenile Court counters that the CBA expressly provides
otherwise in this case. According to Article 9, Section 3(B) of the CBA, “[t]he
arbitrator’s authority shall be limited to interpretation and application of the
Agreement.” The arbitrator “shall have no authority to (1) add to or subtract from,
or modify in any manner, the provisions of this Agreement, (2) pass upon issues
governed by law, or (3) make an award in conflict with law.” Id.The term “grievance” is defined as “a dispute between the Court and
Union, or between the Court and an employee, as to the interpretation or application
of, or compliance with, an express provision of this Agreement.” Article 9, Section
1. An employee is required to “reduce the grievance to writing on a grievance form,
sign it, and present it to the Superintendent or designee.” If the matter has not been
resolved by the second step of the process, the Union must provide written notice to
arbitrate.
Article 5 provides that “except as expressly limited” by the CBA
“Court shall have the right to take any action it considers necessary and proper to
effectuate any management policy, expressed or implied, except as expressly limited
under this Agreement.” Article 5, Section 1. Management has the unilateral right
“to determine overtime, the scheduling and/or assignment of overtime and the
amount of mandated overtime,” “to determine the Court’s budget and uses thereof,”
and “to do all things appropriate and incidental to any of its rights, powers
prerogatives, responsibilities, and authority.” Article 5, Section 2.
Overtime is at the Juvenile Court’s sole discretion. “The Court shall
determine the need for overtime, whether scheduled or unscheduled.” Article 11,
Section 1. Overtime is paid “for each overtime hour worked” and defines for
purposes of overtime computation, “compensatory time, exchange time, vacation,
military time, and holidays shall be counted as hours worked.” Article 11,
Section 1(B).
Article 8, Section 1, of the CBA specifies that
whenever it becomes necessary to discipline its employees, the Court
shall retain all of those rights which are traditionally reserved thereto,
subject only to those other procedures, limitations, and options which
are set forth in this Article and Article 9.
Id.During the predisciplinary process, Young’s request that his
termination be replaced by a ten-day suspension was granted. It was after that event
that Young submitted a written grievance that stated, “I would like to appeal my
suspension.” The suspension was for a ten-day period. The grievance did not
address overtime pay that Young could have earned at the court if he had not been
placed on administrative leave. The Juvenile Court and the Union stipulated, and
the arbitrator stated on the record, that the only issue before the arbitrator was
whether just cause existed for the disciplinary action, i.e., the ten-day suspension.
On the facts underlying the discipline, the arbitrator found “clear and
convincing evidence” that Young committed the charged acts, the evidence of
multiple infractions was overwhelming, and that “any one of the infractions” was
sufficient to support “just cause for termination.” Arbitration award, p. 38, 41.
However, the arbitrator determined that the administrative leave policy “is in reality
a suspension” albeit with full pay and benefits. Arbitration award, p. 39.3 “The
question is whether limiting Y[oung’s] pay to straight time hours effectively
penalized him contrary to the principle recognized by Neff, that employees should
not be detrimented [sic] while on administrative leave.” Id.The Juvenile Court explains that administrative leave is governed by
the Juvenile Court’s Policies and Procedures Manual (“Policies”). The Policies are
3 The administrative leave policy applies to all court employees.
applicable to all court employees including bargaining unit employees except that
“where the policies conflict with any Article in” the CBA, the CBA” shall supersede.”
Article 23, Section 1.
Policy 7.05 entitled “Administrative Leave Pending Investigation”
provides for paid and unpaid administrative leave without a predisciplinary
conference pending an investigation and specifies that “[a]n Administrative Leave
is not an episode of discipline.” (Emphasis added.) An employee may be placed on
administrative leave for various reasons including
When the employee’s performance of required job duties could
interfere with an investigation; impair the orderly and efficient
administration of justice or the operation of the department; and/or
impair the morale and/or delivery of services. An employee shall also
be placed on Administrative Leave if determined necessary for the
safety and/or security of clients and/or employees.
Policy 4.13. Summarized, these sections provide in part, that (1) administrative
leave is not a disciplinary action, (2) administrative leave is appropriate where the
safety and security of clients are concerned; and (3) the CBA provisions on discipline
superseded any conflicts with the Policies.
As to the finding that the failure to pay potential overtime penalized
or “detrimented” Young, the CBA provides that “[n]o bargaining unit member shall
be terminated, reduced in pay, suspended, or reprimanded except for just cause.”
(Emphasis added.) Article 8, Section 1. Thus, though the overtime issue was not
submitted, the plain language supports that the Juvenile Court had the authority to
effectively reduce Young’s pay.
The Juvenile Court also states that the arbitrator’s overtime decision
drew on inapplicable cases involving “make whole” awards in wrongful termination
discipline cases and cites In State ex rel. Crumbley v. Cleveland, 185 Ohio App.3d
82, 2009-Ohio-6100, 923 N.E.2d 200, ¶ 12 (8th Dist.). The arbitrator held that
correction officer Crumbley was wrongly terminated. Crumbley requested re-
employment, “longevity pay; uniform allowance pay; uniform maintenance pay;
holiday pay; sick time; and dormitory unit premium pay.” Id. at ¶ 11.
In finding that Crumbley was, in fact, entitled to his request, this court
explained, “[t]he purpose of a back-pay award is to make the wrongfully terminated
employee whole and to place the employee in the same position he would have been
absent such termination.” (Emphasis added.) Id. at ¶ 12, citing State ex rel. Stacy v.
Batavia Local School Dist. Bd. of Ed., 105 Ohio St.3d 476, 2005-Ohio-2974, 829
N.E.2d 298. The decision was based on the collective bargaining agreement that
established Crumbley’s entitlement “with certainty based upon the parties’
agreement.” Id.In this case, Young was not wrongly suspended. It is clear from the
record that the parties did not mutually agree to submit the question of whether,
with a finding of just cause for his discipline, Young was entitled to be paid at a
premium. The Juvenile Court expressly objected. The arbitrator stated that he
“assum[ed] there have been other arbitration awards involving the Juvenile Court
in which there has been a finding of no just cause and that it was necessary to
compute back pay.” (Vol. 6, p. 54.) The arbitrator also acknowledged that “[t]here
was never any formal notice and if there is a finding of no just cause, I am going to
leave it to the parties to work out whatever financial remedy is appropriate.”
(Emphasis added.) (Vol. 6, p. 55.) As stated previously, there was a finding of just
cause and therefore no additional determinations were warranted.
As the Juvenile Court urges, “R.C. Chapter 2711, as well as pertinent
case law, confines the parameters of what the arbitrator may consider to those issues
actually submitted by the parties.” Huber Hts. v. Fraternal Order of Police, 73 Ohio
App.3d 68, 78, 596 N.E.2d 571 (2d Dist.1991). “The statute does not permit an
arbitrator to decide all issues which he considers to be before him even if he notifies
the parties that he intends to consider such matters.” Id. at 78-79.
“If an arbitrator were allowed to rule on issues on this basis an unjust
result could be reached. Parties to a collective bargaining agreement bargain for the
specific manner of dispute resolution.” Id. at 79. “As part of the bargain, the parties
decide which issues they will submit to arbitration. If the arbitrator were allowed to
adopt a notice approach to jurisdiction, the parties would have no control over what
matters the arbitrator could decide and their bargain would thus be frustrated.” Id.
While an arbitrator is sometimes required to determine proof of the
misconduct and the reasonableness of the disciplinary action, that authority is
limited where there is language in the CBA that prohibits the exercise of that power.
Bd. of Trustees, 81 Ohio St.3d 272, 690 N.E.2d 1262, citing Schoonhoven,
Fairweather’s Practice and Procedure in Labor Arbitration (3 Ed.1991).
It is also true that an arbitrator is “without authority to disregard or
modify plain and unambiguous language.” Hamilton v. Internatl. Union of
Operating Engineers, Local 20, 2016-Ohio-5565, 69 N.E.3d 1253, ¶ 22 (12th Dist.),
citing Chardon Local School Dist. Bd. of Edn. v. Chardon Edn. Assn., 2013-Ohio-
4547, 3 N.E.3d 1224, ¶ 22 (11th Dist.).
In this case, the powers of the arbitrator are expressly limited by the
CBA and the payment of overtime is governed by the CBA. The arbitrator’s award
of overtime and finding that the administrative leave is a suspension is actually
covered by the CBA disciplinary process and conflicts with the terms. An arbitrator’s
powers are set by the agreement from which he draws his authority, and “[t]he
arbitrator has no authority to decide issues which, under the agreement, the parties
did not submit to review.” Blevins, 49 Ohio St.3d 165, 551 N.E.2d 955, at paragraph
one of the syllabus.
In this case, the CBA limits the scope of the arbitrator’s authority, the
award “‘conflicts with the express terms of the agreement,’” and therefore it “‘is
without rational support and/or cannot be rationally derived from the terms of the
agreement.’” Cedar Fair, L.P., 140 Ohio St.3d, 447, 2014-Ohio-3943, 19 N.E.3d 893,
at ¶ 7, quoting Ohio Civ. Serv. Emp. Assn. v. Ohio Civ. Serv. Emp. Assn., Local 11,
59 Ohio St.3d 177, 572 N.E.2d 71 (1991).
Based on our de novo review, the trial court did not err as a matter of
law. The first assigned error lacks merit.
V. Failure to Confirm Award R.C. 2711.09
“‘The purpose of [R.C. 2711.09] is to enable parties to an arbitration
to obtain satisfaction of the award.’” Cleveland v. Laborers Internatl. Union Local
1099, 2018-Ohio-161, 104 N.E.3d 890, ¶ 14 (8th Dist.), quoting Warren Edn.
Assn. v. Warren City Bd. of Edn., 18 Ohio St.3d 170, 172, 480 N.E.2d 456 (1985).
“Therefore, when a timely motion is made under R.C. 2711.09 to confirm an
arbitration award, the court must grant the motion, “unless a timely motion for
modification or vacation has been made and cause to modify or vacate is shown.’”
(Emphasis added). Id., quoting id. at 174.
This court’s finding that the trial court’s judgment that granted
modification and affirmed the just cause determination was not in error resolves the
issue of confirmation.
The trial court’s judgment was not in error and the argument is
overruled.
VI. Civ.R. 52 Findings of Fact and Conclusions of Law
The Union argues here that the trial court’s failure to issue findings
of fact and conclusions of law pursuant to Civ.R. 52 constitutes error. We disagree.
Proceedings involving the confirmation or vacation of an arbitration
award are special statutory proceedings. Civil Rule 1(C)(7) provides the
civil rules are by definition not to apply to procedural matters in special
statutory proceedings “to the extent that they would by their nature be
clearly inapplicable.”
Pursuant to R.C. 2711.09, when a motion is made to confirm an
arbitration award * * * [t]he applicable civil rule provisions are those
pertaining to motions.”
Licking Hts. Local School Dist. Bd. of Edn. v. Reynoldsburg City School Dist. Bd. of
Edn., 2013-Ohio-3211, 996 N.E.2d 1025, ¶ 19 (10th Dist.), quoting MBNA Am. Bank,
N.A. v. Anthony, 5th Dist. Tuscarawas No. 05AP09-0059, 2006-Ohio-2032.
Civ.R. 52 provides, in pertinent part:
When questions of fact are tried by the court without a jury, judgment
may be general for the prevailing party unless one of the parties in
writing requests otherwise before the entry of judgment pursuant to
Civ. R. 58, * * *, in which case, the court shall state in writing the
conclusions of fact found separately from the conclusions of law.
Findings of fact and conclusions of law required by this rule and by
Civ.R. 41(B)(2) and Civ.R. 23(G)(3) are unnecessary upon all other
motions including those pursuant to Civ.R. 12, Civ.R. 55 and Civ.R. 56.
This court has upheld a trial court’s refusal to issue findings of fact
and conclusions of law in a motion to vacate an arbitration award on the ground that
Findings of fact and conclusions of law under Civ.R. 52 are necessarily
beyond the very limited scope of the court’s review of an arbitration
award — if the court cannot review any legal or factual conclusions
made by the arbitrator, it would have no duty to issue findings of fact
and conclusions of law. And even had there been some requirement to
issue findings of fact and conclusions of law, the very detailed decision
submitted by the arbitrator would have more than fulfilled any
obligation under Civ.R. 52.
Cleveland v. IBEW Local 38, 8th Dist. Cuyahoga No. 92982, 2009-Ohio-6223, ¶ 34.
The third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, PRESIDING JUDGE
EMANUELLA D. GROVES, J., CONCURS;
CORNELIUS J. O’SULLIVAN, JR., J., DISSENTS (WITH SEPARATE OPINION)
CORNELIUS J. O’SULLIVAN, JR., J., DISSENTING:
Respectfully, I dissent. This case is about two parties who have
contracted with each other to be bound by arbitration. Although the underlying
facts of the case are disturbing, contract law controls the outcome here.
It is well-established that “[a]fter finding a violation of a collective
bargaining agreement, an arbitrator is presumed to possess implicit remedial
power, unless the agreement contains restrictive language withdrawing a particular
remedy from the jurisdiction of the arbitrator.” Queen City Lodge No. 69, FOP,
Hamilton Cty., Ohio, Inc. v. Cincinnati, 63 Ohio St.3d 403, 588 N.E.2d 802 (1992),
syllabus; Cleveland v. Cleveland Police Patrolmen’s Assn., 2016-Ohio-702, 47
N.E.3d 904, ¶ 40 (8th Dist.). No such restrictive language appears herein.
“An arbitrator derives his [or her] authority from the express terms of
the collective-bargaining agreement between the parties.” Fostoria v. Ohio
Patrolmen’s Benevolent Assn., 106 Ohio St.3d 194, 2005-Ohio-4558, 833 N.E.2d
720, ¶ 11. “Arbitrators act within their authority to craft an award so long as the
award ‘draws its essence’ from the contract — that is, ‘when there is a rational nexus
between the agreement and the award, and where the award is not arbitrary,
capricious or unlawful.’” Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-
3943, 19 N.E.3d 893, ¶ 7, quoting Mahoning Cty. Bd. of Mental Retardation & Dev.
Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 488 N.E.2d 872(1986), paragraph one of the syllabus. “[A]n award ‘departs from the essence of a
[contract] when: (1) the award conflicts with the express terms of the agreement,
and/or (2) the award is without rational support or cannot be rationally derived
from the terms of the agreement.’” Cedar Fair, L.P. at id., quoting Ohio Office of
Collective Bargaining v. Ohio Civ. Serv. Emps. Assn., Local 11, AFSCME, AFL-CIO,
59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus.
Under the CBA here the parties set forth their rights and
responsibilities regarding numerous issues including, discipline (Article 9);
grievance procedure and arbitration (Article 10); overtime (Article 11); and
alternative dispute resolution (Article 37). Thus, the arbitrator’s decision in this
case was contained within the four corners of the CBA.
Moreover, Article 9, Section 3(B) provides that
The decision of the Arbitrator shall be final and binding upon the Court,
the Union and the employee(s) * * *. The arbitrator’s authority shall be
limited to interpretation and application of the Agreement, and he [or
she] shall have no authority to (1) add to or subtract from, or modify in
any manner, the provisions of this Agreement, (2) pass upon issues
governed by law, or (3) make an award in conflict with law.
I believe the arbitrator’s decision here was proper under Article 9,
Section 3(B) of the parties’ CBA.
I disagree with the majority’s finding that, in awarding Young
overtime, the arbitrator decided a nonsubmitted issue.
The parties to a collective bargaining agreement can not anticipate
every possible breach of the agreement that may occur during its life
and then write an appropriate remedy for each such situation into the
agreement. This fact does not, however, preclude an arbitrator from
awarding a remedy. Even though the agreement may not spell out an
applicable remedy for a matter that is before an arbitrator, the parties
usually expect that the arbitrator, if he or she finds a violation occurred,
will proceed to award a remedy of some type.
(Citation omitted.) Queen City Lodge No. 69, FOP, Hamilton Cty., Ohio, Inc., 63
Ohio St.3d at 405, 588 N.E.2d 802.
I further note that in regard to the appellee’s objection at the
arbitration hearing to the arbitrator considering overtime for Young, the objection
was not that the issue was outside of the arbitrator’s scope of authority. Rather, the
objection was that counsel was eliciting testimony about Young’s lost income in an
attempt to garner “sympathy” from the arbitrator. The arbitrator overruled the
objection, stating,
The grievance is seeking compensation for the losses incurred by Mr.
Young during the period of — whether it says that in the actual
grievance statement or not, it’s presumed that the union is seeking a
remedy in addition to a finding of no just cause.
It’s correct that the alleged sympathy aspect that’s being testified to [by
Young] isn’t really germane, but what is germane is the economic losses
that were suffered and I hope you’ll trust that I separate one from the
other.
Oct. 4, 2018 Arb. Tr. p. 54.
Appellee’s counsel also informed the court that they were not put on
notice that overtime pay would be part of the arbitration process, to which appellant
responded that the issue of Young’s overtime pay had been discussed in the parties’
settlement negotiations and, therefore, the issue was not “new.” The arbitrator
stated his belief that consideration of economic damages is inherent in a “just cause”
arbitration proceeding. I agree.4
“‘Both the Ohio General Assembly and Ohio courts have expressed a
strong public policy favoring arbitration.’” Stoner v. Salon Lofts, LLC, 10th Dist.
Franklin No. 13AP-437, 2014-Ohio-796, ¶ 13, quoting Hayes v. Oakridge Home, 122
Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 15, citing R.C. Chapter 2711,
Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884
N.E.2d 12, ¶ 27, and Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 700 N.E.2d
859 (1998). ““Arbitration is favored because it provides the parties thereto with a
relatively expeditious and economical means of resolving a dispute.”” Stoner at id.,quoting Kelm v. Kelm, 68 Ohio St.3d 26, 29, 623 N.E.2d 39 (1993), quoting Schaefer
v. Allstate Ins. Co., 63 Ohio St.3d 708, 712, 590 N.E.2d 1242 (1992). “‘Arbitration
also has the additional benefit of unburdening crowded court dockets.’” Stoner at
id., quoting Hayes at ¶ 15, citing Mahoning Cty. Bd. of Mental Retardation & Dev.
4 The arbitrator also stated that “if there is a finding of no just cause, I’m going to
leave it to the parties to work out whatever financial remedy is appropriate.” (Emphasis
added.) Oct. 4, 2018 Arb. Tr. p.56. The arbitrator found just cause for the appellee’s ten-
day suspension of Young and then went on to consider his economic damages while he
was on administrative leave and the period of time between his termination and
reinstatement (less ten days for the suspension).
Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 83, 488 N.E.2d
872 (1986). “‘In light of the strong presumption favoring arbitration, all doubts
should be resolved in its favor.’” Stoner at id., quoting Hayes at ¶ 15, citing Ignazio
v. Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-Ohio-1947, 865
N.E.2d 18, ¶ 18.
I believe the arbitrator’s decision to award Young overtime was
derived from the four corners of the parties’ CBA and, therefore, given the strong
presumption favoring arbitration, and the great latitude afforded an arbitrator in
issuing a decision, I would reverse the trial court’s judgment modifying the
arbitrator’s award and remand the case for reinstatement of the arbitrator’s award.
For the reasons stated above, I respectfully dissent.