Columbus v. Internatl. Assn. of Firefighters, Local 67 , 2020 Ohio 356 ( 2020 )

[Cite as Columbus v. Internatl. Assn. of Firefighters, Local 67, 2020-Ohio-356.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Columbus, :
Plaintiff-Appellant, :
No. 18AP-486
v. : (C.P.C. No. 17CV-5569)
International Association of Firefighters, : (REGULAR CALENDAR)
Local 67,
Defendant-Appellee. :
D E C I S I O N
Rendered on February 4, 2020
On brief: Zach M. Klein, City Attorney, and Jennifer L. Shea,
for appellant. Argued: Jennifer L. Shea.
On brief: Thompson Hine LLP, Thomas Wyatt Palmer, and
William C. Moul, for appellee. Argued: Thomas Wyatt
Palmer.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Plaintiff-appellant, City of Columbus (the "City"), appeals from a decision of
the Franklin County Court of Common Pleas declining to vacate an arbitrator's decision in
favor of defendant-appellee, International Association of Firefighters, Local 67 ("Local 67"
or "union local"). Because the arbitrator's decision is reasonably derived from and does not
conflict with the collective bargaining agreement between the parties, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On October 19, 2015, a battalion chief representing the Office of the Fire Chief
for the City of Columbus Division of Fire ("Division"), sent an e-mail to the President of
Local 67. (Ex. JT2 at 4, exhibit to July 27, 2017 Local 67 Application to Confirm.) The e-
mail indicated that the "directors office decided" to civilianize certain special assignments
No. 18AP-486 2
then filled by uniformed firefighters. Id. Attached to the e-mail was a document listing 17
positions that the City intended to civilianize: "RMS," "Fitness Coordinator," "Special
Events Coord," "EMS Supply Tech," "ES-1 Liaison," "Training Video," "FAO Radio
Specialist," "Public CPR Trainer," "R&D Specialist," "R&D Specialist," "R&D Specification,"
"I.T. Coordinator," "Apprenticeship Asst.," "FAO Trainer," "Community Relations," "In
Service Training," and "ES-1 Office Aid." Id. at 8. Of these, eight were described in greater
detail:
RMS Special Assignment Firefighter: * * * helps out with
the Records Management of Fire Incident Reporting. * * *
Fitness Coordinator Firefighter: Currently a vacant
position being held from bid on the transfer list. * * * The
Division would like to civilianize this position into an industrial
hygienist * * * [who] would coordinate both the physicals being
completed through Mt Carmel Health and work on issues
regarding mold, bed bugs, and Ebola procedures, etc.
***
Special Events Coordinator: The current position prepares
special duty medics for special events. The position stocks,
cleans, and provides station level maintenance on the vehicles.
***
EMS Supply Technician: The current position handles all
EMS supplies for the Division of Fire. The position orders,
receives stocks and maintains secure storage of narcotic
medications. * * *
ES-1 Liaison position: This position coordinates annual and
monthly vacations for the emergency services personnel. * * *
Training Video Firefighter: This position helps out
shooting videos for training and other fire department
functions. * * *
Public CPR Trainer: This position currently coordinates and
teaches public citizens CPR and the Red Cross Life Saver
classes through the Columbus Division of Fire. * * *
800 MHz Radio Coordinator: [Currently coordinates t]he
800 MHz [radio] * * * [but will] eventually include the
coordination of radios for both Police and Fire.
(Emphasis sic.) Id. at 6-7.
No. 18AP-486 3
{¶ 3} The following day, Local 67 grieved the proposed action as a potential
violation of Section 7.2 of the collective bargaining agreement ("CBA") between the City and
the union local. Id. at 1-3.
{¶ 4} Ultimately, the matter was presented to an arbitrator, who issued a decision
on March 23, 2017 finding in favor of Local 67. (Mar. 23, 2017 Arbitrator Decision, Ex. 3
to June 22, 2017 Compl.) According to the arbitrator's decision,1 there was essentially no
dispute among the parties about the facts underlying the grievance. Id. at 6. Several years
before the dispute arose, Local 67 and the City had cooperated in identifying some
departmental positions that could be filled by civilians in order to return uniformed
firefighters then occupying those positions to street and firehouse positions. Id. at 5-6. In
2015, the City had "civilianized" outside of the terms of the CBA 6 of the 17 targeted special
assignment positions. Id. at 6. These were identified in the hearing, but it is not apparent
from the appellate record which 6 of the 17 listed positions were civilianized—that is—were
being staffed with civilians in lieu of then current bargaining unit uniformed personnel. Id.
{¶ 5} The arbitrator reasoned that, notwithstanding previous indications that there
was some consensus between City and union local that it might be appropriate to civilianize
some positions, the relevant event triggering this grievance was the notice from the City on
October 19, 2015 to the effect that it intended to unilaterally civilianize certain positions.
Id. at 11-13. As the grievance was filed the following day, the arbitrator determined that it
was timely. Id. at 13. The arbitrator then considered the merits of Local 67's grievance.
{¶ 6} The arbitrator found that language in Section 7.2 of the CBA, wherein the City
"agree[d] to not civilianize any fire prevention, emergency medical services, or fire
suppression services," read in context of the entire CBA, was broader than its exact terms
might suggest. Id. at 14. (CBA at 10, Ex. 1 to June 22, 2017 Compl.) The arbitrator noted
that the CBA otherwise deals exclusively with uniformed positions and that no right to
civilianize is conferred on the City or Division, nor are civilian employees even mentioned
in the agreement. (Mar. 23, 2017 Arbitrator Decision at 14.) In that context, the arbitrator
concluded that the agreement in Section 7.2 was effectively intended as a promise not to
civilianize any Division of Fire positions and that the terms "fire prevention, emergency
1No transcripts of the hearing held by the arbitrator were filed in the trial court or with this Court. Thus, we
relate the facts as recounted by the arbitrator.
No. 18AP-486 4
medical services, or fire suppression services" were, in essence, to be read as broad,
"comprehensive" descriptors rather than limitations. Id.
{¶ 7} The arbitrator also relied on the long history of uniformed firefighters filling
the targeted positions and the fact that the positions had always been part of the overall
mission of the Division of Fire. Id. at 15. However, the historical detail that the arbitrator
found to be "the most persuasive confirmation of the Union's position [wa]s that the [City]
sought the approval of the Union" local when it previously sought to civilianize. Id.
According to the arbitrator, the City previously sought the consent of Local 67 to study
whether jobs could be civilianized and firefighters returned to the street in order to better
protect inadequately served neighborhoods. Id. at 15. Though the City was arguing in this
grievance process that it need not have sought Union permission to civilianize, in prior
years (2006-07) it apparently held a different view and recognized that it could not
unilaterally civilianize Division of Fire positions. Id. at 16.
{¶ 8} Based on this reasoning, the arbitrator in his decision concluded that the City
must seek the consent and participation of the union local before civilianizing any of the
other positions in the civilianization list. Id.
{¶ 9} Through a series of complaints filed on June 22, 2017, an application to
vacate the arbitrator's decision four days later and at least one amendment, the City sought
to vacate the arbitrator's decision. (June 22, 2017 Compl.; June 26, 2017 Application to
Vacate; July 13, 2017 Am. Application to Vacate.) Local 67 responded in opposition and
moved to confirm the arbitrator's decision on July 27, 2017. (July 27, 2017 Application to
Confirm.) The parties fully briefed the issues, and on May 1, 2018, the trial court issued a
decision in which it acknowledged the filings of the parties, reviewed the history of the case,
and quoted the relevant standard of review. (May 1, 2018 Decision at 1-5.) Noting what it
referred to as the "highly deferential" standard accorded to review of arbitration, it stated
that the issue presented was "whether the arbitrator's award was rationally derived from
the applicable terms of the collective bargaining agreement." Id. at 4-5. On this question
it concluded:
After reviewing the arguments and evidence submitted by the
parties, the court finds that a rational nexus exists between the
Agreement and the arbitrator's Award, and that there is not
sufficient evidence from which this court can conclude that the
arbitrator's interpretation of the agreement is not consistent
No. 18AP-486 5
with the Agreement. Nor does the court find that the Award is
unlawful, arbitrary or capricious. Therefore, the court's inquiry
pursuant to R.C. § 2711.10 is at an end, and the court finds the
City's position not well taken.
Id. at 5.
{¶ 10} The City now appeals.
II. ASSIGNMENT OF ERROR
{¶ 11} The City presents a single assignment of error for review:
The Trial Court erred in denying Appellant's Application and
Motion to Vacate the Arbitration Award and not addressing the
grounds upon which Appellant sought to vacate the Award.
III. DISCUSSION
{¶ 12} This Court has previously stated:
Public policy in Ohio favors the resolution of labor disputes
through arbitration. Findlay Bd. of Edn. v. Findlay Edn. Assn.,
49 Ohio St.3d 129, 131, 551 N.E.2d 186 (1990); Reynoldsburg
City Sch. Dist. Bd. of Edn. v. Licking Hts. Local Sch. Dist. Bd.
of Edn., 10th Dist. No. 11AP-173, 2011-Ohio-5063, ¶ 19;
Cincinnati v. Queen City Lodge No. 69, 164 Ohio App.3d 408,
2005-Ohio-6225, ¶ 14, 842 N.E.2d 588 (1st Dist.). Judicial
review of arbitration awards is limited in order to encourage
the resolution of disputes in arbitration. Wright State Univ. v.
FOP, 2d Dist. No. 2016-CA-35, 2017-Ohio-854, ¶ 12.
Franklin Cty. Sheriff v. Teamsters Local No. 413, 10th Dist. No. 17AP-717, 2018-Ohio-
3684, ¶ 17. Notwithstanding such policies, a court of common pleas "shall" vacate an
arbitrator's award upon the application of any party to the arbitration if:
(A) The award was procured by corruption, fraud, or undue
means.
(B) There was evident partiality or corruption on the part of the
arbitrators, or any of them.
(C) The arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in
refusing to hear evidence pertinent and material to the
controversy; or of any other misbehavior by which the rights of
any party have been prejudiced.
No. 18AP-486 6
(D) The arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the
subject matter submitted was not made.
R.C. 2711.10.
{¶ 13} In this case, no corruption, fraud, partiality, or other misconduct or
misbehavior were alleged. Thus, the question before the trial court was whether the
arbitrator exceeded his authority as contemplated in division (D) of R.C. 2711.10. This
Court has also thoroughly examined this question:
An arbitrator does not exceed her authority so long as the
award "draws its essence" from the underlying contract.
Thermal Ventures II, L.P. v. Thermal Ventures, Inc., Cuyahoga
App. No. 85816, 2005 Ohio 3389, at P13, citing Findlay City
School Dist. Bd. of Edn. v. Findlay Edn. Assoc., 49 Ohio St.3d
129, 132, 551 N.E.2d 186. "An arbitrator's award draws its
essence from a collective bargaining agreement when there is a
rational nexus between the agreement and the award, and
where the award is not arbitrary, capricious or unlawful."
Mahoning Cty. Bd. of Mental Retardation and Developmental
Disabilities v. Mahoning Cty. TMR Educ. Assn., [22 Ohio St.
3d 80 (1986),] paragraph one of syllabus. Stated differently,
"an arbitrator's award departs from the essence of a collective
bargaining agreement 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." Ohio Office of Collective
Bargaining v. Ohio Civ. Serv. Employees Assn., Local 11,
AFSCME, AFL-CIO (1991), 59 Ohio St. 3d 177, 572 N.E.2d 71,
syllabus.
Fraternal Order of Police Capital City Lodge No. 9 v. Columbus, 10th Dist. No. 04AP-1023,
2006-Ohio-1520, ¶ 9 ("FOP"); see also, e.g., Teamsters Local No. 413 at ¶ 20.
{¶ 14} When reviewing a decision of a common pleas court confirming, modifying,
vacating, or correcting an arbitration award, an appellate court should accept findings of
fact that are not clearly erroneous but decide questions of law de novo. Portage Cty. Bd. of
Dev. Disabilities v. Portage Cty. Educators' Assn. for Dev. Disabilities, 153 Ohio St.3d 219,
2018-Ohio-1590, syllabus (following First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938(1995)).
{¶ 15} The City argues that the arbitrator's decision conflicts with the CBA in that it
ordered no further civilianization without the consent of the union local. (City Brief at 13-
No. 18AP-486 7
14.) The City also urges us to find that the arbitrator's decision was without rational support
from the CBA because the arbitrator found that Local 67's consent was required for the
civilianization of any bargaining unit employee position, not strictly limited by the
descriptors, "fire prevention, emergency medical services, or fire suppression services."
(City Brief at 11-13.) Local 67 argues the fact that its consent is required for civilianization
is simply the logical consequence of the CBA's broad prohibition on civilianization. (Local
67 Brief at 20-24.)
{¶ 16} Leaving aside for a moment the question of how broad the prohibition on
civilianization is, we agree with Local 67 that its consent is required to civilianize protected
positions. The CBA, at Section 7.2, expressly prohibits "civilianiz[ation] [of] any fire
prevention, emergency medical services, or fire suppression services." (CBA at 10.) That
the City must reach a new agreement with Local 67 if it wants to civilianize protected
positions is a completely "rational[] deriv[ation] from the terms of the agreement." FOP,
2006-Ohio-1520, ¶ 9.
{¶ 17} Whether the scope of the CBA's prohibition on civilianization extends beyond
positions specifically named in the CBA, "fire prevention, emergency medical services, or
fire suppression" and reaches positions that support those functions is not before us on
appellate review. (CBA at 10.) We review the trial court's decision de novo and like the trial
court must determine whether the arbitrator's resolution of that question "drew its essence"
from the CBA. In other words, we like the trial court must decide whether the arbitrator's
decision was "without rational support or c[ould not] be rationally derived from the terms
of the agreement." FOP at ¶ 9.
{¶ 18} The CBA nowhere asserts, affirms, or implies a broad right of the City to
civilianize bargaining unit positions. The CBA provides no general right to civilianize the
City. Nor do the terms of the CBA, taken as a whole, suggest that Section 7.2 should be read
as a narrow exception to a general right to civilianize. Rather the CBA contains, and the
arbitrator found, a broad prohibition on civilianizing positions within the Division. It also
bears note that "emergency dispatching duties performed by the bargaining unit" are listed
within those services that the City may not contract-out but are not listed within those
service positions that cannot be civilianized. (CBA at 10.) One reasonable interpretation of
this difference is that dispatching services are contemplated as a limited exception to an
No. 18AP-486 8
otherwise broad civilianization ban. That is, the CBA's language could be read (as the
arbitrator read it) as a broad prohibition of civilianization with respect to positions related
to all the major tasks accomplished by the bargaining unit employees (fire
prevention/suppression and EMS) and excepting from it only dispatching.
{¶ 19} We cannot say that the arbitrator's interpretation in this case is "without
rational support" in the CBA. FOP at ¶ 9. Nor can we fault the arbitrator's consideration of
the parties' prior conduct. The fact that the City previously sought Local 67's cooperation
in civilianizing positions could have been interpreted simply as a wise action to foster good
relations. But it could also reasonably have been interpreted (as the arbitrator interpreted
it) to mean that the City understood that it was prohibited from civilianizing division
positions held by bargaining unit members and that Local 67's cooperation or support was
therefore necessary.
{¶ 20} The City's assignment of error is overruled.
IV. CONCLUSION
{¶ 21} The arbitrator's decision is drawn from the CBA and there is rational support
for it. While it is not the only possible view of the CBA, it is not an unreasonable or irrational
one, and it does not conflict with any part of the CBA. We therefore affirm the Franklin
County Court of Common Pleas' decision to confirm the arbitrator's judgment.
Judgment affirmed.
KLATT and McGRATH, JJ., concur.
McGRATH, J., retired, formerly of the Tenth Appellate
District, assigned to active duty under authority of Ohio
Constitution, Article IV, Section 6(C).