Ohio Patrolmen's Benevolent Assn. v. Findlay (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ohio
Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion No. 2017-Ohio-2804.]
NOTICE
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-2804OHIO PATROLMEN’S BENEVOLENT ASSOCIATION ET AL., APPELLANTS, v. THE
CITY OF FINDLAY, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Ohio Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion
No. 2017-Ohio-2804.]
Arbitration—Any limitation on an arbitrator’s authority to modify a disciplinary
action pursuant to a collective bargaining agreement (“CBA”) provision
requiring that discipline be imposed only for just cause must be specifically
bargained for by the parties and incorporated into the CBA—CBA placed
no limitation on arbitrator’s authority to review disciplinary action
imposed and fashion a remedy—Arbitrator’s award draws its essence from
CBA, and arbitrator acted within his authority—Court of appeals’ judgment
reversed, award reinstated, and cause remanded.
(No. 2015-1581—Submitted February 7, 2017—Decided May 17, 2017.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 102282, 2015-Ohio-3234.
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SUPREME COURT OF OHIO
O’DONNELL, J.
{¶ 1} The Ohio Patrolmen’s Benevolent Association (“OPBA”) and
Sergeant David Hill of the Findlay Police Department appeal from a judgment of
the Eighth District Court of Appeals affirming a common pleas court decision that
vacated an arbitration award that changed the disciplinary sanction recommended
by the chief of police against Hill from termination to a lengthy suspension. The
issue presented on this appeal is whether the collective bargaining agreement
between the city of Findlay and the OPBA requiring that discipline be imposed only
for just cause authorized the arbitrator to change the sanction recommended by the
chief of police in accordance with the department’s matrix of discipline.
Facts and Procedural History
{¶ 2} The Findlay police department hired David Hill in 1992 as an
auxiliary police officer; in 1999 he became a patrolman, and in 2005 he was
promoted to sergeant. The department’s disciplinary procedures include a
“discipline matrix” setting forth progressive levels of discipline based on the
seriousness of the offense and the number of prior violations and providing that
“[i]f more than one discipline level is indicated, the Chief of Police has sole
discretion in determining which of the two levels is appropriate, based on the facts
of the case and history of the involved employee.”
{¶ 3} Hill is a member of the OPBA, and that organization is a party to a
collective bargaining agreement (“CBA”) with the city containing a provision that
discipline shall be imposed only for just cause and establishing a grievance
procedure which includes binding arbitration.
The July 2012 Incidents
{¶ 4} On July 6, 2012, Hill helped to create a video of him using a taser
against the son of a fellow officer which violated the department’s social media
policy, resulting in a written reprimand for his conduct. On July 27, 2012, Hill
made disparaging comments about another fellow officer’s mental health and
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placed the barrel of his service weapon into his own mouth. As a result of that
incident, Chief of Police Gregory Horne recommended that Hill be suspended for
30 days with 15 days stayed for conduct unbecoming an officer. Hill then filed a
grievance, but the city’s safety director agreed with the recommendation and denied
it, and as a result, the matter was scheduled for arbitration on November 28, 2012.
The November 2012 Incident
{¶ 5} On November 13, 2012, after the midnight shift roll call, Hill referred
to Officer Morgan Greeno as “Whoregan” in response to a question about the
committee coordinating an upcoming Fraternal Order of Police Christmas party.
Greeno filed a complaint because she thought the comment could have been related
to her scheduled testimony against Hill at the arbitration hearing. She also claimed
that Hill had made and condoned comments based on the running joke that she was
pregnant with the baby of a municipal building custodian.
The First Arbitration
{¶ 6} Jonathan Klein arbitrated the July 27 incident, found the city had just
cause to discipline Hill for that incident but that Chief Horne’s recommendation of
a 30 day suspension with 15 days stayed “exceeded the disciplinary matrix without
justification,” and therefore reduced the disciplinary action to a ten day suspension
in accordance with the matrix. Noting Chief Horne’s testimony that the city is not
required to and does not always follow the matrix, the arbitrator determined that
“under the principles of just cause, the City cannot simply pick and choose when it
will apply the Discipline Matrix to a particular infraction warranting discipline.”
The arbitrator declined to address the OPBA’s contention that it had never agreed
to the matrix because the record on that issue was not “sufficiently developed.”
The Second Arbitration
{¶ 7} Following an investigation of the November 13 incident, Chief Horne
concluded Hill had violated several department rules and regulations, “the most
serious” being the department’s sexual harassment policy, and he applied the matrix
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to recommend Hill’s termination. Hill filed a grievance asserting no just cause for
his termination and that the chief’s application of the matrix violated the CBA. The
safety director agreed with the chief’s recommended termination and denied Hill’s
grievance.
{¶ 8} James Mancini arbitrated this matter and granted in part and denied
in part the grievance. Mancini found the evidence did not clearly demonstrate Hill
had violated the department’s sexual harassment policy and therefore set aside the
discharge penalty; however, he concluded that the city had “just cause to impose
severe discipline” because Hill had engaged in conduct unbecoming an officer and
had failed to properly carry out his supervisory duties. Mancini noted Klein’s
decision “concerning the department’s Discipline Matrix Guidelines” and
concluded that the matrix “should be applied in this case” and that it indicated two
levels of discipline, i.e., “the discipline could range from a 3-10 day suspension up
to termination.” He determined a “lengthy disciplinary suspension is warranted”
and ordered that Hill be reinstated with full seniority but no back pay.
{¶ 9} Hill and the OPBA filed an application in the common pleas court to
enforce the arbitration award, claiming that the city refused to reinstate him and
seeking lost wages, benefits, and seniority and interest, attorney fees, and court
costs. The city filed an application to vacate and/or modify the award. The
common pleas court consolidated the appeals and vacated the award pursuant to
R.C. 2711.10(D), concluding that after Mancini had determined that the matrix
should have been applied, he “exceeded and imperfectly executed his power” by
departing from the matrix’s plain language, which gives sole discretion to the chief
of police to choose between a three to ten day suspension or termination.
{¶ 10} In a split decision, the court of appeals affirmed the judgment of the
common pleas court, concluding the arbitration award did not draw its essence from
the CBA and was arbitrary, capricious, and unlawful. The majority explained the
arbitrator “interpreted the CBA (and its just cause standard for disciplinary action)
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as requiring the application of the discipline matrix to determine the
appropriateness of the discipline imposed.” 2015-Ohio-3234, 40 N.E.3d 610, ¶ 41.
The majority held that after determining the matrix applied and indicated two levels
of discipline, the arbitrator lacked “arbitral authority to modify the disciplinary
action imposed, which under the discipline matrix and the CBA was within the ‘sole
discretion’ of Chief Horne.” Id. at ¶ 43. The dissenting judge opined that the
disciplinary procedures and matrix were not part of the CBA, that the arbitrator had
full authority to fashion a remedy, and that even if the procedures and matrix were
part of the CBA, the choice of discipline was still subject to the just cause standard
in the CBA.
{¶ 11} The OPBA and Hill appealed, and we accepted the following
proposition of law for review: “Any limitation on an arbitrator’s ability to review
and modify disciplinary action under the ‘just cause’ standard must be specifically
bargained for by the parties and contained within the four corners of the collective
bargaining agreement.”
Positions of the Parties
{¶ 12} The OPBA and Hill contend that any limitation on an arbitrator’s
authority to modify discipline pursuant to a CBA that requires discipline to be
imposed for just cause must be specifically bargained for and incorporated into the
CBA and in this case, the disciplinary procedures and the matrix were unilaterally
adopted by the city and therefore do not meet this standard. They also claim that
Articles 4.01 and 10 of the CBA, which permit the department to develop work
rules and require OPBA members to comply with them, do not incorporate the
matrix into the CBA, and they analogize this case to Southwest Ohio Regional
Transit Auth. v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108, 742
N.E.2d 630 (2001) (“SORTA”). The OPBA and Hill thus maintain that Mancini
had authority to modify the discipline in this matter, properly used the matrix for
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guidance, and fashioned an appropriate remedy in light of the city’s failure to prove
its most serious allegation against Hill.
{¶ 13} The city contends that an arbitrator’s authority to modify a
disciplinary action if he finds that there is not just cause to impose it is limited by
the predetermined penalties in the matrix which the city had authority to establish
pursuant to Articles 4.01 and 10 of the CBA. The city asserts that it did not
unilaterally adopt the matrix because the OPBA agreed its members would abide
by department rules and participated in the creation of the matrix. Thus, the city
claims Mancini was required to apply the matrix in this matter, including its
language granting the chief sole discretion to choose between two levels of
discipline. And the city claims that Klein determined the city could not impose
discipline contrary to the matrix and that these parties are bound by that decision.
Issue
{¶ 14} The issue presented here is whether the just cause for discipline
provision of the CBA authorized Mancini to change the disciplinary action
recommended by the chief of police pursuant to the matrix.
Law and Analysis
{¶ 15} “The public policy favoring arbitration requires that courts have only
limited authority to vacate an arbitrator’s award.” Assn. of Cleveland Fire Fighters,
Local 93 of the Internatl. Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476,
2003-Ohio-4278, 793 N.E.2d 484, ¶ 13. R.C. 2711.10(D) provides that the court
of common pleas “shall make an order vacating the award upon the application of
any party to the arbitration if * * * [t]he arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and definite award upon the subject
matter submitted was not made,” and R.C. 2711.15 authorizes an appeal from such
an order.
{¶ 16} “An arbitrator derives his authority from the express terms of the
collective-bargaining agreement between the parties.” Fostoria v. Ohio
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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.’ ” (Brackets sic.) 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.
{¶ 17} “Where an arbitrator’s decision draws its essence from the collective
bargaining agreement, and in the absence of language in the agreement that would
restrict such review, the arbitrator, after determining that there was just cause to
discipline an employee, has the authority to review the appropriateness of the type
of discipline imposed.” Bd. of Trustees of Miami Twp. v. Fraternal Order of Police,
Ohio Labor Council, Inc., 81 Ohio St.3d 269, 690 N.E.2d 1262 (1998), syllabus.
“An arbitrator has broad authority to fashion a remedy, even if the remedy
contemplated is not explicitly mentioned in the labor agreement.” Queen City
Lodge No. 69, Fraternal Order of Police, Hamilton Cty., Ohio, Inc. v. Cincinnati,
63 Ohio St.3d 403, 407, 588 N.E.2d 802 (1992).
{¶ 18} Article 41.03 of the CBA1 provides: “The arbitrator shall have no
power or authority to add to, subtract from, or in any other manner alter the specific
1
The court of appeals recognized the parties’ apparent disagreement as to whether the version of
the CBA effective January 1, 2011, to December 31, 2012, or January 1, 2013, to December 31,
2015, governs this matter. The court noted that it was unclear from the record which version
Mancini had used and determined that it did not need to resolve the issue, because the relevant
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terms of this Agreement * * * nor to make any award that * * * violates any of the
terms and conditions of this Agreement.” Article 39.07 states: “Discipline shall be
imposed only for just cause.” And Article 4.01(5) similarly reserves the city’s right
to “suspend, discipline, demote, or discharge for just cause.”
{¶ 19} Here, Mancini stated the matrix “should be applied in this case,” but
he did not find that a specific provision in the CBA mandated application of the
matrix, nor could such a finding be rationally derived from the terms of the
agreement. The CBA does not mention the police department’s disciplinary
procedures or the matrix, and no language in the CBA restricts an arbitrator’s
authority to review the appropriateness of the type of discipline imposed after the
arbitrator has determined that there is just cause to discipline an employee for the
type of misconduct at issue in this matter.
{¶ 20} The city’s reliance on Articles 4.01 and 10 of the CBA is misplaced.
Article 4.01 states:
Unless expressly provided to the contrary by a specific provision of
this Agreement, the Employer reserves and retains, solely and
exclusively, all of its statutory and common law rights to manage
the operation of its Department of Police. Employer[’]s rights shall
include, but are not limited to, the following: the right to * * * (10)
develop, revise, or eliminate work practices, procedures and rules in
the operation of the Department of Police and to maintain discipline
* * *.
{¶ 21} Article 10.01 of the CBA states:
provisions in both versions were “substantively similar, if not identical.” 2015-Ohio-3234, 40
N.E.3d 610, at ¶ 11, fn. 1. Because the exhibits from the arbitration include only a copy of the
version of the CBA effective January 1, 2013, to December 31, 2015, we quote from that version in
this opinion.
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The Union agrees that its membership shall comply with Police
Department and City of Findlay Rules and Regulations, including
those relating to working conditions, conduct, and performance.
The Employer agrees that Police Department and City of Findlay
Rules and Regulations, which affect working conditions, conduct,
and performance shall be subject to the grievance procedure if they
violate this Agreement.
Article 10.02 requires the parties to add any proposed changes to the rules and
regulations “to the discussion agenda of the next Labor-Management Committee
meeting,” and Article 10.03 generally requires the city to notify the OPBA of
changes in writing at least 14 days prior to their proposed effective date.
{¶ 22} In SORTA, 91 Ohio St.3d 108, 742 N.E.2d 630, the employer
terminated a union employee for violating a drug policy which called for automatic
termination of an employee who tested positive for marijuana. An arbitration panel
found the policy facially valid but determined that the automatic discharge sanction
conflicted with, and thus violated, a provision of the CBA requiring sufficient cause
for discharge. The arbitration panel reinstated the employee, finding no sufficient
cause for discharge under the circumstances. A common pleas court affirmed the
arbitration award, but the court of appeals reversed it and remanded with
instructions to vacate the award.
{¶ 23} We reversed the court of appeals and ordered reinstatement of the
arbitration award, explaining that the employer had adopted the drug policy
pursuant to a section of the CBA but that “any sanction for a violation of a rule
adopted” pursuant to that section “was subject to the ‘sufficient cause’ standard”
contained in a separate section of the CBA. Id. at 110. We noted that the Tenth
Circuit Court of Appeals has held that although a CBA gave an employer
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“the right * * * to make necessary reasonable rules and regulations
for the conduct of business, providing that said rules and regulations
are not in conflict with the terms of [the CBA] in any way,” * * *,
the right to make such rules is not the right to equate the violation
of such rules with “good and sufficient cause” for termination. To
hold otherwise would be to allow [the employer] to unilaterally
define the meaning of “good and sufficient cause,” a right which
was not contemplated by the CBA and for which [the employer]
must negotiate with the Union.
(Ellipses and first brackets sic and emphasis deleted.) Id. at 111, quoting Local No.
7 United Food & Commercial Workers Internatl. Union v. King Soopers, Inc., 222
F.3d 1223, 1227 (10th Cir.2000).
{¶ 24} We agreed with and applied this reasoning to conclude:
SORTA did not have the right to unilaterally adopt automatic
termination * * * as a sanction for testing positive, because such a
sanction conflicts with the “sufficient cause” requirement for
dismissal found in * * * the CBA. Just as the court noted in King
Soopers, allowing SORTA to enforce automatic termination would
allow an employer to unilaterally adopt a sanction that conflicts with
the sufficient-cause requirement for dismissal that was negotiated
into the CBA, thereby undermining the integrity of the entire
collective bargaining process. The proper avenue for SORTA to
adopt such a sanction would be through the collective bargaining
process, not through a unilateral decision.
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(Emphasis sic.) Id.{¶ 25} Similarly, in this case, although the CBA reserves the city’s right to
develop work rules and obligates OPBA members to comply with those rules, the
city’s right to develop rules is not a right to determine what particular form of
discipline it has just cause to impose for a violation of those rules. Stated
differently, the city’s right to develop rules is not the right to unilaterally define the
meaning of the phrase “just cause” for purposes of the CBA—a right that is not
contemplated by the agreement. Moreover, the discipline matrix is not subject to
the grievance procedure pursuant to Article 10.01, because it is not a rule affecting
“working conditions, conduct, and performance,” but even if it were and the OPBA
had the rights to notice and an opportunity to be heard pursuant to Articles 10.02
and 10.03 with respect to adoption of the matrix, such rights would not operate to
incorporate the matrix into the CBA. Pursuant to Article 46.01 of the CBA, to
qualify as an appendix or amendment to the CBA, the matrix had to be signed by
both the city and the OPBA. It was not.
{¶ 26} Finally, the city’s reliance on Klein’s decision is misplaced because
he did not reach the issue whether the OPBA had agreed to the matrix but instead
took issue with the city’s arbitrary application of the matrix and the city’s decision
to depart from it without justification.
{¶ 27} Although nothing in the CBA precludes the city from using the
matrix as a guide in imposing discipline, treating the matrix as binding on the
arbitrator would conflict with the just cause requirement for discipline that the city
and the OPBA negotiated into the CBA and as in SORTA, would undermine the
integrity of the entire collective bargaining process.
{¶ 28} Because the parties did not specifically bargain for the matrix and
incorporate it into the CBA, Mancini had authority to review the appropriateness
of the disciplinary action imposed in this matter and broad authority to fashion a
remedy. His choice of remedy does not conflict with the express terms of the CBA,
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is rationally derived from the terms of the agreement, and is not arbitrary,
capricious, or unlawful. Therefore, the arbitration award draws its essence from
the CBA.
Conclusion
{¶ 29} Any limitation on an arbitrator’s authority to modify a disciplinary
action pursuant to a CBA provision requiring that discipline be imposed only for
just cause must be specifically bargained for by the parties and incorporated into
the CBA. Here, the CBA placed no limitation on the arbitrator’s authority to review
the disciplinary action imposed and fashion a remedy. Because Mancini’s award
draws its essence from the CBA and because he acted within his authority, we
reverse the judgment of the court of appeals, reinstate the award, and remand this
matter to the common pleas court for further proceedings consistent with this
opinion.
Judgment reversed,
arbitration award reinstated,
and cause remanded.
KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE, JJ., concur.
O’CONNOR, C.J., dissents, with an opinion.
_________________
O’CONNOR, C.J., dissenting.
{¶ 30} I dissent. I would hold that this court improvidently accepted the
discretionary appeal and would dismiss the cause.
{¶ 31} We accepted the following proposition of law: “Any limitation on
an arbitrator’s ability to review and modify disciplinary action under the ‘just
cause’ standard must be specifically bargained for by the parties and contained
within the four corners of the collective bargaining agreement.” See 144 Ohio St.3d
1475, 2016-Ohio-467, 45 N.E.3d 243. I dissented from the decision to accept
jurisdiction. And after consideration of the parties’ briefs and oral argument, it is
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even more clear that we accepted the appeal in error. Appellants, David Hill and
the Ohio Patrolmen’s Benevolent Association (“OPBA”), ask us only to interpret a
contract based on well-settled contract law. Moreover, appellants ask us to do so
on a record that contains very little evidence.
{¶ 32} In their merit brief, appellants admit that “the Eighth District
correctly recited the applicable law and properly framed the issue in dispute
between the parties,” before asking us to correct an error they perceive in the court
of appeals’ application of that law: the finding that the arbitrator exceeded his
authority under the collective-bargaining agreement (“CBA”) between the OPBA
and the city by fashioning a remedy outside of the city’s discipline matrix. The
crux of appellants’ argument is that the discipline matrix had not been incorporated
into the CBA and thus did not limit the arbitrator’s authority to fashion a remedy.
{¶ 33} Appellants are correct that the law is already clear on the issues
inherently raised in their proposition. The Ohio Constitution charges us to exercise
our discretionary jurisdiction in “cases of public or great general interest,” Article
IV, Section 2(B)(2)(e), and this case presents neither. As a court of last resort, it is
not our role to consider allegations that a lower court has erred in applying
established law but, rather, to set forth legal interpretations to guide the lower
courts. See State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d
1095, ¶ 63 (O’Donnell, J., dissenting) (“[W]e are not an error-correcting court;
rather, our role as the court of last resort is to clarify confusing constitutional
questions, resolve uncertainties in the law, and address issues of public or great
general interest * * *. Significantly, appellate courts consider assignments of error,
while this court considers propositions of law. The two are materially and
substantively different”).
{¶ 34} We have previously interpreted the law at issue in this case and have
held that “ ‘[t]he arbitrator is confined to the interpretation and application of the
collective bargaining agreement, and although he may construe ambiguous contract
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language, he is without authority to disregard or modify plain and unambiguous
provisions.’ ” Office of Collective Bargaining v. Ohio Civil Serv. Emps. Assn.,
Local 11, AFSCME, AFL-CIO, 59 Ohio St.3d 177, 180, 572 N.E.2d 71 (1991),
quoting Detroit Coil Co. v. Internatl. Assn. of Machinists & Aerospace Workers,
Lodge No. 82, 594 F.2d 575, 579 (6th Cir.1979). It is also well settled that “[w]here
an arbitrator’s decision draws its essence from the collective bargaining agreement,
and in the absence of language in the agreement that would restrict such review, the
arbitrator, after determining that there was just cause to discipline an employee, has
the authority to review the appropriateness of the type of discipline imposed.” Bd.
of Trustees of Miami Twp. v. Fraternal Order of Police, Ohio Labor Council, Inc.,
81 Ohio St.3d 269, 690 N.E.2d 1262 (1998), syllabus. Any further legal
pronouncements are unnecessary, and we should not entertain the invitation to
consider whether a lower court incorrectly applied settled law.
{¶ 35} But even if the law were unsettled, this case is not a proper vehicle
to address the proposition. The record lacks sufficient evidence to enable this court
to determine whether the discipline matrix was incorporated into the CBA.
Although counsel for appellants argued in her opening statement at the arbitration
hearing that “this so-called matrix * * * is not a part of any collective bargaining
agreement,” appellants offered no testimony to support that assertion. However,
one of the city’s witnesses testified that the union had used the matrix to negotiate
a reduction in the disciplinary action imposed in another officer’s case and that Hill
actually had helped negotiate the matrix, a fact that he did not dispute.
{¶ 36} Moreover, Hill previously used the discipline matrix to his
advantage. In an earlier arbitration involving Hill, the arbitrator reduced Hill’s
discipline from a 30-day suspension to a 10-day suspension, finding that the matrix
permitted only a 10-day suspension. The arbitrator in the prior case noted that
“[a]lthough the Union asserted at the hearing that it never agreed to the City’s
Discipline Matrix, * * * the record in this case is not sufficiently developed as it
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concerns a challenge to the reasonableness of the matrix itself, as opposed to its
application in this case.” The arbitrator of the present grievance assumed that the
matrix was applicable but reduced the recommended disciplinary action because he
found that the city failed to prove all its allegations against Hill and had failed to
establish that it was justified in terminating him.
{¶ 37} Although the record lacks any testimony that the discipline matrix
had been incorporated into the CBA, it is also devoid of testimony that it had not
been. The majority nevertheless bases its decision on this issue that was not
litigated below.
{¶ 38} Finally, the majority’s conclusion that “[a]ny limitation on an
arbitrator’s authority to modify a disciplinary action pursuant to a CBA provision
requiring that discipline be imposed only for just cause must be specifically
bargained for by the parties and incorporated into the CBA,” majority opinion at
¶ 29, is overbroad and may have unintended consequences. This conclusion
violates at least one longstanding tenet of labor law—that “[t]he labor arbitrator’s
source of law is not confined to the express provisions of the contract, as the
industrial common law—the practices of the industry and the shop—is equally a
part of the collective bargaining agreement although not expressed in it,” United
Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-582, 80
S.Ct 1347, 4 L.Ed.2d 1409 (1960); see also Assn. of Cleveland Fire Fighters, Local
93 of the Intl. Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-
4278, 793 N.E.2d 484, ¶ 16, 19 (recognizing that past practice may be binding on
parties to a CBA in certain circumstances, even when the practice is not set forth in
the CBA). By acceding to appellants’ proposition that “[a]ny limitation on an
arbitrator’s ability to review and modify disciplinary action under the ‘just cause’
standard must be specifically bargained for by the parties and contained within the
four corners of the collective bargaining agreement,” the majority opinion may
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prevent an employer from relying on past practice as the basis for a disciplinary
action.
{¶ 39} Past practice may be binding, even if it is not set forth in a CBA, and
could limit an arbitrator’s ability to modify a disciplinary action. For instance, an
employer may claim that it disciplined an employee according to its uncontested
practice of imposing the same disciplinary action for a similar violation over a
period of years. Under the majority opinion, even if the employer establishes a past
practice, the arbitrator could modify the discipline if the employee shows that the
practice had not been specifically bargained for and incorporated into the CBA,
upending labor law that has been settled for decades. Without the development of
facts regarding the full extent of the terms of the CBA here, the majority creates an
unnecessary rule to reach a particular result.
{¶ 40} For these reasons, I respectfully dissent and would hold that the
discretionary appeal was improvidently accepted.
_________________
Joseph M. Hegedus and Daniel J. Leffler, for appellants.
Allain Legal, Ltd., William F. Schmitz, and Eric M. Allain, for appellee.
Paul L. Cox, urging reversal for amicus curiae Fraternal Order of Police of
Ohio, Inc.
R. Brian Moriarty and Marisa L. Serrat, urging reversal for amici curiae
Cleveland Police Patrolmen’s Association, Toledo Police Patrolman’s Association,
and Dayton Fraternal Order of Police Lodge 44.
Greg Gordillo, urging reversal for amicus curiae Ohio Employment
Lawyers Association.
_________________
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