[Cite as Allen Cty. Sheriff's Office v. Fraternal Order of Police, Ohio Labor Council, Inc., 2012-Ohio- 3122.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
ALLEN COUNTY SHERIFF,
PLAINTIFF-APPELLEE, CASE NO. 1-11-55
v.
FRATERNAL ORDER OF POLICE, OPINION OHIO LABOR COUNCIL, INC.,
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CV 2011 0495
Judgment Affirmed
Date of Decision: July 9, 2012
APPEARANCES:
Gwen Callender for Appellant
Benjamin S. Albrecht and Matthew D. Whitman for Appellee Case No. 1-11-55
PRESTON, J.
{¶1} Defendant-appellant, the Fraternal Order of Police, Ohio Labor
Council Inc., (hereinafter “the Union”), appeals the Allen County Court of
Common Pleas’ judgment entry granting the motion and application to vacate the
conciliation award made by the Plaintiff-Appellant, the Allen County Sheriff’s
Office, (hereinafter “the Sheriff”), and denying the Union’s motion to confirm the
conciliation award. For the reasons that follow, we affirm.
{¶2} The Union and the Sheriff were parties to a collective bargaining
agreement effective from January 1, 2008 through December 31, 2010.
(Agreement, Ex. 2). The agreement provided that the Union would receive health
insurance “on the same basis as provided to all non-bargaining unit employees in
the Sheriff’s Office, including those covered by other bargaining agreements, and
other employees paid under the County General Fund and who are eligible for the
County Insurance Plan.” (Id.). The agreement permitted the Union to elect
supplemental health insurance benefits covering family members. (Id.).
{¶3} On October 20, 2010, the Board of County Commissioners
(hereinafter “the Board”) adopted Resolution #629-10. (Resolution #629-10, Ex.
5). The new resolution stated:
[A]s a means to reduce costs to Allen County taxpayers effective
January 1, 2011, if an employee’s spouse is eligible to participate in
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a group insurance plan sponsored by his/her employer, enterprise or
any public or private retirement plan, the employee’s spouse will not
be eligible to be enrolled in the CEBCO health insurance and the
VSP vision insurance plans. (Id.).
Consequently, a spouse of a county employee, including a spouse of a Union
member, would no longer be covered by the county’s health insurance plan if the
spouse was eligible to participate in another group insurance plan. (Conciliation
Award, Ex. 1).
{¶4} Subsequently, the Sheriff and the Union began negotiations for a new
collective bargaining agreement. (Id.). The Union proposed language to the
section of the agreement regarding health insurance that stated, “[T]he term family
shall include spouses.” (Id.). The Sheriff and the Union were unable to reach an
agreement on health care and submitted the issue to fact finding. (Id.).
{¶5} The fact finder held a hearing on February 11, 2011 on the health care
provision and several other unresolved issues. (Id.). The fact finder recommended
that the parties include the Union’s language in the collective bargaining
agreement. (Id.). The fact finder’s recommendation was rejected. (Id.).
{¶6} The conciliator held a hearing on April 18, 2011. (Ex. 1). On April
27, 2011, the conciliator awarded the Union’s proposed language, changing the
supplemental benefits provision to state, “[T]he term family shall include
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spouses.” (Id.). Throughout the proceeding, the Sheriff maintained that the
conciliator lacked jurisdiction to mandate that the county must provide health
insurance to spouses who have other health insurance coverage available. (Id.).
{¶7} On July 1, 2011, the Sheriff filed a motion and application to vacate
the conciliation award with a memorandum in support in the Allen County Court
of Common Pleas. (Doc. No. 1). On July 25, 2011, the Union filed its
memorandum in response and a counterclaim motion to confirm the conciliation
award. (Doc. No. 4). On September 1, 2011, the Allen County Court of Common
Pleas granted the Sheriff’s motion and application to vacate the conciliation award
and denied the Union’s motion to confirm the conciliation award. (Doc. No. 6).
{¶8} On September 28, 2011, the Union filed a notice of appeal and now
raises two assignments of error.
ASSIGNMENT OF ERROR NO. I
THE COMMON PLEAS COURT ERRED IN CONCLUDING THAT THE CONCILIATOR EXCEEDED HIS AUTHORITY.
{¶9} In its first assignment of error, the Union argues the Allen County
Court of Common Pleas erred in holding the conciliator exceeded his authority
because R.C. 305.171 did not prohibit the conciliator’s decision. The Union
further contends that although the Board was not a party to the conciliation, it was
still part of the conciliation process. Consequently, the Union argues it could
negotiate its health benefits during the conciliation process, and the Sheriff must
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pay for the additional coverage out of his own budget if the Board does not
provide the funding.
{¶10} Courts of common pleas have jurisdiction to review a conciliator’s
settlement awards. Licking Cty. Sheriff’s Office v. Teamsters Local Union No. 637,
5th Dist. No. 2008CA00152, 2009-Ohio-4765, ¶ 11, citing R.C. 4117.14(H).
“When reviewing an arbitration award, the reviewing court may not substitute its
judgment for that of the arbitrator.” Internatl. Assn. of Fire Fighters, Local 379 v.
City of Marion, 3d Dist. No. 9-03-05, 2003-Ohio-2567, ¶ 6. A court of common
pleas’ review is limited to R.C. 2711.20(D). City of Hillsboro v. Fraternal Order
of Police, Ohio Labor Council, Inc., 52 Ohio St.3d 174, 175-176 (1990). “Courts
may vacate or modify an arbitration award only if the statutory requirements are
met.” Internatl. Assn. of Firefighters at ¶ 6. According to R.C. 2711.10(D), a
court of common pleas shall vacate an award 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.”
{¶11} We review the trial court’s judgment for an abuse of discretion.
Licking Cty. at ¶ 37. An abuse of discretion suggests the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
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{¶12} The trial court found that the conciliator exceeded his power.1 (Doc.
No. 6). The trial court reasoned that since R.C. 305.171 grants the Board the
power to provide group insurance policies for county employees, “the Sheriff did
not deny coverage and the Sheriff cannot provide coverage.” (Id.). The trial court
noted that the Sheriff is governed by R.C. 311.01, which does not provide him
with the ability to contract for health coverage, a power that resides solely with the
Board. (Id.). The trial court determined that the conciliator’s award required the
Sheriff to provide health insurance to an additional group of people that were not
eligible for health insurance under the Allen County plan, the Union’s spouses
who had other coverage available. (Id.). The trial court stated that this
requirement “exceeded [the Sheriff’s] power” and “abrogated the authority of the
county commissioners.” (Id.).
{¶13} We cannot find that the trial court abused its discretion by
determining that the conciliator exceeded his power. R.C. 305.171(A) states, “The
board of county commissioners of any county may contract for, purchase, or
otherwise procure and pay all or any part of the cost of group insurance policies *
* * for county officers and employees and their immediate dependents.” R.C.
311.01, which addresses a sheriff’s qualifications and duties, does not contain any 1 The trial court noted that the parties did not submit a written record for the court’s review because they had waived the requirement of a court reporter. (Doc. No. 6). The trial court distinguished the present case from a Ninth District case where the court determined a lack of a written record precluded effective judicial review. Wayne Cty. Sheriff v. Ohio Petrolmen’s Benevolent Assn., 9th Dist. No. 10CA0036, 2011-Ohio- 2707. The trial court considered this case despite the lack of a written record because unlike in Wayne, the parties in the present case waived the requirement of the written record. (Doc. No. 6).
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provisions regarding health insurance. See R.C. 311.01. According to these
provisions of the Revised Code, the Board and not the Sheriff has the power to
contract for Allen County employees’ health insurance plans. Thus, the
conciliator’s award requiring the Sheriff to purchase additional health insurance
contradicts with the Revised Code.
{¶14} The Fifth District addressed a similar situation in Licking County
Sheriff’s Office v. Teamster’s Local Union No. 637, 5th Dist. No. 2008CA00152,
2009-Ohio-4765. The Fifth District stated:
The county sheriff is a county elected official and is governed by the
statutory dictates imposed upon him by R.C. 311.01, et seq. No
where (sic) in the statutes is the sheriff given the power to contract
for health care coverage. The right to contract for county employees
resides exclusively with the board of county commissioners. Id. at ¶
23.
The Fifth District determined the conciliator’s decision was contrary to law and
usurped the power of the county commissioners when it required the addition of a
health insurance carrier. Id. at ¶ 35. In the present case, the addition of the term
“spouse” to the definition of “family,” would require the Sheriff to provide health
insurance to spouses who have other coverage available, contrary to the Board’s
Resolution #629-10. We cannot find that the trial court abused its discretion by
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determining the conciliator’s award usurps the Board’s power because it requires
the Sheriff to provide health insurance to an additional group of people from those
the Board included in the Allen County Plan.
{¶15} The Union relies on a case from the Seventh District, Jefferson
County Sheriff v. Ohio Patrolmen’s Benevolent Association, 7th Dist. No. 05 JE
36, 2006-Ohio-1055. The Seventh District confirmed a conciliator’s award
requiring the employer to pay the same share of the union’s healthcare premiums
as in the previous collective bargaining agreement. Id. The court reasoned that the
sheriff represents the interests of the board of commissioners, should enter the
conciliation proceedings with his budget in mind, and will have to pay any
difference between what the board of commissioners provides and the results of
the conciliation proceedings. Id. at ¶¶ 29-30. Consequently, the Union argues that
in the present case, the Sheriff must use his own budget to provide health
insurance to the spouses that have coverage available but are not provided health
insurance under the county’s plan.
{¶16} However, Jefferson County can be distinguished from the case before
this Court. The Seventh District confirmed the conciliator’s award largely because
it determined the sheriff had consented to the conciliation proceedings, stating,
“When the Union demanded that coverage remain constant, the employer should
have objected or refused to bargain on that issue if it believed it was not a matter
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subject to conciliation.” Id. at ¶ 31. The Seventh District determined that the
failure of the sheriff to object to the scope of the conciliation resulted in the waiver
of the issue on appeal. Id. at ¶ 33. In the present case, the Sheriff objected to the
conciliator’s jurisdiction throughout the proceedings. (Ex. 1). Since the Sheriff
here maintained his right to contest the issue of health insurance on appeal, the
Seventh District’s decision in Jefferson County does not apply.
{¶17} The Union’s first assignment of error, is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE COMMON PLEAS COURT ERRED IN FINDING THAT THE CONCILIATOR DID NOT MAKE A MUTUAL, FINAL, AND DEFINITE AWARD UPON THE SUBJECT MATTER SUBMITTED.
{¶18} In its second assignment of error, the Union argues the trial court
erred by finding the conciliator did not make a mutual, final, and definite award
upon the subject matter submitted. The Union contends that the conciliator’s
selection of the Union’s language conclusively resolved the issue and that if the
conciliator’s decision was not final, the Sheriff would not have filed the present
appeal. The Union further argues that nothing in the Revised Code prohibited the
conciliator’s award.
{¶19} The trial court found that the conciliator “imperfectly executed his
power because he did not make a mutual, final, and definite award upon the
subject matter submitted.” (Doc. No. 6). The trial court reasoned that “[a]dding
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‘spouse’ to the definition of ‘family’ did not make a mutual, final, and definite
award.” (Id.). The collective bargaining agreement provides health insurance to
the Union on the same basis as all other non-bargaining employees, stating:
The Employer shall make available to bargaining unit employees
general insurance and hospitalization plans, including supplemental
benefits, on the same basis as provided to all non-bargaining unit
employees in the Sheriff’s Office, including those covered by other
bargaining agreements, and other employees paid under the County
General Fund and who are eligible for the County Insurance Plan.
(Id.).
Under Allen County’s new plan, spouses who do not have other insurance
available are still covered. (Id.). Only those spouses who can obtain group
insurance elsewhere are ineligible for the plan. (Id.). The trial court determined
that the question of whether the Board could still exclude spouses who had other
insurance available remained unresolved based on the language of the collective
bargaining agreement. (Id.). Consequently, the trial court found the conciliator
imperfectly executed his power by failing to make a mutual, final, and definite
award. (Id.).
{¶20} We cannot find that the trial court abused its discretion by finding the
conciliator imperfectly executed his power. The collective bargaining agreement
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provides the Union with the same health insurance as other Allen County
employees. (Ex. 2). Under the Resolution #629-10, the spouses of Allen County
employees are eligible for health insurance if they do not have other insurance
available. (Ex. 5). Consequently, some spouses are still covered under the Allen
County Plan. The conciliator’s award added the language, “the term family shall
include spouses” to the collective bargaining agreement. (Ex. 1). This award
could be read, consistent with the provisions granting the Union the same health
insurance as other Allen County employees, to include only those spouses who do
not have other insurance available. As a result, the issue of whether the Union’s
spouses who have other insurance available must be covered under the Allen
County plan has not been finally, definitely, and mutually resolved.
{¶21} The Union’s second assignment of error is, therefore, overruled.
{¶22} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, J., concurs in Judgment Only.
/jlr
SHAW, P.J., Concurs in Part and Dissents in Part.
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{¶23} The trial court determined that “by deciding an issue (to wit:
Whether Section 19.6 of the collective bargaining agreement was violated, [an]
issue was not even submitted to the conciliator by either party in their respective
submissions of unresolved issues; the conciliator exceeded his power under R.C.
4117.14(G).” (JE, Sept. 1, 2011 at 5). I concur with this conclusion and with our
judgment affirming that ruling.
{¶24} Unfortunately, in my view, after reaching this conclusion, the trial
court and this court then proceed to analyze and rule upon all of the extraneous
matters improperly addressed by the conciliator in the first place. Consequently
this court now reaches a sweeping decision with significant and potentially
prejudicial consequences for all the parties on the merits of numerous important
underlying issues of health care coverage for county employees, none of which are
issues to be decided in this case.
{¶25} Some of these proposed rulings include: 1) that R.C. 305.171 gives
exclusive authority to the county commissioners to contract for and provide health
insurance to all county employees; 2) that the Allen County Sheriff has no
authority to contract for or bargain for any matters involving such health
insurance; 3) that because the county commissioners do not provide coverage for
spouses of employees who have access to other health insurance and because the
CBA provides that union employees shall have the same rights for health care
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coverage as non-union employees, that the Union has no authority to bargain for
and the Sheriff has no authority to grant or negotiate coverage for union spouses
who have access to other coverage.
{¶26} According to the conciliator's report, the Sheriff argued at the outset
of the proceedings that none of these issues were properly before the conciliator
because they were all subject to various grievances pending in other forums. I
concur with the Sheriff's position. None of these issues should have been ruled on
by the conciliator or trial court and none of these issues should be ruled upon by
this court at this time.
{¶27} In the introduction to his decision, the conciliator characterized the
case before him in the following manner.
The practical issue between the parties in this case is whether or not the Sheriff should be permitted to deny health insurance coverage to spouses of employees where such spouses have other available health insurance coverage. The legal issue before the Conciliator, however, is merely to choose either the contract language proposed by the F.O.P. or the contract language proposed by the Sheriff.
(Conciliator’s Award at 7) (emphasis added). The conciliator acknowledged that
only the F.O.P. (the “Union”) proposed contract language to be added to the
Agreement. As mentioned in the majority opinion, the Union sought to include
the language “the term family shall include spouses” to Section 19.2 of the
Agreement which states, “Selection of Coverage Employees electing supplemental
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benefits (e.g., prescription drug, etc.) may only elect the category which
corresponds to their health care category (i.e., single, two party or family).”
(Agreement at 23). The conciliator noted that the Sheriff did not propose any
contract language to be included in the Agreement because the Sheriff maintained
that the current language of the Agreement already contemplates spouses are
included in the term family. (Id. at 10).
{¶28} Thus, as it turns out, the parties essentially agreed that the term
family includes spouses, regardless of whether the union language was added to
the contract or not. Thus, even if the conciliator improperly added the union
language to the contract, the union language was unnecessary and irrelevant to the
conciliator's decision to include spouse in the definition of family. In any event,
this was the extent of the “legal issue” before the conciliator—i.e., whether the
term family, as used by the parties in the Agreement, includes spouses.
{¶29} Of course, it is apparent that the conciliators decision, even if it were
based on language the Union sought to include in the Agreement, still fell short of
resolving the underlying “practical issue” between the parties that everyone
seems to have the urge to address. In other words, the fact that the term "family"
includes "spouses" does not answer whether the Agreement permitted the Sheriff
or anyone else to exclude coverage for spouses of employees who have other
health insurance coverage available to them. Nevertheless, the inclusion of
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"spouse" in the definition of "family" was the only issue submitted to the
conciliator to decide and this should have been the end of the matter.
{¶30} Unfortunately, the conciliator chose to also resolve the underlying
“practical issue” before him. In particular, the conciliator construed Section 19.6
of the Agreement, which states the following.
Modification to Coverage The determination of carriers and/or method of providing insurance rests with the Employer.2 Any change in carriers, coverage, or methods of providing insurance which would affect the bargaining unit in any way shall be discussed with the Union prior to implementation. The Employer may periodically change the plan coverage, including deductibles, co-payments, etc., but will do so only after discussion with the Union. Reasonable adjustment of deductibles, co-pays, etc., shall not be considered as a reduction of benefits.
(Agreement at 24). Based on this provision, the conciliator went to great lengths
in his analysis to determine that the Sheriff violated the terms of the Agreement
because the Union was not given proper notice of what conciliator determined to a
“change” to the Agreement as a result of the Allen County Commissioners’
implementation of Resolution #629-10.3 The conciliator then construed
additional provisions of the Agreement to determine that the passage of Resolution
#629-10 resulted in a reduction in benefits to “bargaining unit” employees.
2 Employer is defined as the Allen County Sheriff in Section 1.1 of the Agreement. 3 It should be noted that the Sheriff, for its part, argued before the conciliator that the Union did have proper notice of matter.
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{¶31} As noted earlier, I fully concur with the judgment of the trial court
that by virtue of the foregoing, the conciliator exceeded his authority and I fully
concur with the judgment of this court affirming that ruling.
{¶32} However, the trial court also found that the conciliator did not make
a mutual, final, and definite award because the choice of whether to include of the
language proposed by the Union alone, which was the sole task given to
conciliator, did not resolve the issue of whether the Sheriff violated the Agreement
by excluding the spouses of employees who had other health insurance available
to them.
{¶33} Once again, the issue of coverage for spouses who had other health
insurance available was not properly before the conciliator. The only issue before
the conciliator was whether the term family includes spouses. The conciliator
found that it did. That may not answer the further questions involving coverage for
certain spouses, but it does answer the specific question that was before the
conciliator, that the word "family" includes spouses. As a result, I do not concur
with the trial court's finding that the conciliator did not make a final and definite
award and accordingly, I cannot concur with the decision of this court upholding
that ruling.
{¶34} Moreover, as noted earlier, I do not concur with the decision of this
court to follow the trial court's lead and issue a number of rulings as to the
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underlying health care questions presently being negotiated between the union and
the Sheriff. For one thing, there are significant and potentially prejudicial
consequences to our extraneous and unnecessary rulings. For example, the
majority and the trial court summarily construe R.C. 305.171 to exclusively
delegate the right to the board of county commissioners to contract all matters
relating to health insurance coverage for county employees.4 There is no clear
declaration of exclusive authority in the statute itself.
{¶35} Nevertheless, determining that the Sheriff has no authority to
contract with county employees in all matters relating health insurance coverage
effectively renders Section 19 of the Agreement null and void. This section sets
forth several points negotiated by the Sheriff and the Union relating to health
insurance coverage, which include the scope of coverage, payments of premiums
and opt-out provisions. If R.C. 305.171 is to be read as the majority and the trial
court insist, then the Sheriff had no authority to negotiate any of these provisions
as they all relate to health insurance coverage.
{¶36} This ruling would effectively void past collectively bargained
agreements reached between the Sheriff and the Union, all of which include
4 Both the trial court and the majority rely solely on a Fifth District case Licking County Sheriff’s Office v. Teamsters Local Union, 5th Dist. No. 2008CA00152, 2009-Ohio-4765 to arrive at this conclusion. However, that case contains different circumstances and little analysis to support its holding.
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similar negotiated provisions pertaining to health insurance coverage.5 Notably,
the majority and trial court both highlight Section 19.1 in support of their
conclusion that the conciliator so imperfectly executed his power that a mutual,
final, and definite award was not made. However, this provision would also be
void under the majority’s and trial court’s interpretation of R.C. 305.171.
{¶37} Additionally, the rationale advanced by the majority and trial court
that the Sheriff has no authority to contract with county employees for health
insurance coverage also has far reaching implications on the ancillary proceedings
involving these parties, which have been suspended awaiting the outcome of this
case.
{¶38} The record demonstrates that nine “bargaining unit employees” of
the Blue Unit have filed grievances alleging the Sheriff’s exclusion of their
spouses from health care coverage violated three specific provisions of Section 19
in the Agreement. In addition, the Union has also filed an unfair labor practice
charge which is pending before the State Employees Relations Board. All of these
adversarial proceedings involve individual and fact-specific cases in controversy
that will now be conclusively and pre-emptively determined as a result of the far
reaching opinion and ruling of the majority in resolving the first assignment of
error in this case.
5 Although we do not have a written record of the proceedings before the conciliator, we do have several past collective bargaining agreements in the record, spanning back fifteen years, which were submitted to the conciliator to review in making his award.
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{¶39} Finally, construing R.C. 305.171 in the manner supported by the
majority creates additional, if perhaps unintended, problems for the Sheriff. The
record demonstrates that early in the proceedings of this case, one of the
unresolved issues submitted to the fact-finder was the matter of the opt-out
provision in the Agreement. County employees evidently receive $3000 to opt out
of the county insurance coverage. Because the union employees had apparently
received some sort of pay raise more recently than other employees, the Sheriff
had negotiated a lesser opt-out amount of $1000 for its employees. The parties
were able to resolve this issue prior to proceeding to conciliation. However, under
the majority’s and the trial court’s interpretation of R.C. 305.171, the Sheriff was
unauthorized to unilaterally negotiate and resolve this matter and this agreement is
now effectively rendered void.
{¶40} Thus, according to our decision and ruling that under the CBA, the
non-union and union employees must be treated exactly alike for health insurance
purposes under the exclusive control of the county commissioners, the Sheriff
must now also pay his employees $3000 per employee for opt-out benefits, instead
of $1000 based on pay raise differentials between union and non-union employees,
because that is what the non-union county employees receive.
{¶41} In sum, all of these matters are the subject of numerous other
pending grievances and negotiations being conducted in other forums. While those
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cases and the foregoing health coverage issues may eventually come before this
court, they deserve to be decided on their individual merits as they are presented to
this court on a proper record pertaining to each case and not in the broad and
advisory fashion utilized in this case.
{¶42} For all of the foregoing reasons, I do not concur with the majority’s
resolution of the second assignment of error upholding the trial court's decision
that the conciliator did not make a mutual, final, and definite award and
respectfully dissent from the majority decision on that assignment. With regard to
the first assignment, I do concur that the trial court did not abuse its discretion
insofar as the trial court determined that the conciliator exceeded his powers by
construing the extraneous provisions of the Agreement and attempting to resolve
matters that were outside the purview of the legal issue presented to him by the
parties. If the trial court does not have the power to sever and vacate those
extraneous portions of the conciliator award, then I concur that the judgment of the
trial court vacating the entire award should be affirmed on this basis alone.
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