[Cite as Ashtabula v. Fraternal Order of Police, Ohio Labor Council, 2020-Ohio-6677.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
CITY OF ASHTABULA, : OPINION
Plaintiff-Appellee, : CASE NO. 2020-A-0027 - vs - :
FRATERNAL ORDER OF POLICE, : OHIO LABOR COUNCIL, INC., : Defendant-Appellant. :
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CV 0505.
Judgment: Reversed and remanded.
Frank H. Scialdone and David M. Smith, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Plaintiff-Appellee).
Michael W. Piotrowski, FOP, Ohio Labor Council, Inc., 2721 Manchester Road, Akron, OH 44319 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Fraternal Order of Police, Ohio Labor Council, Inc. (the “Union”),
appeals the April 20, 2020 judgment of the Ashtabula County Court of Common Pleas
granting appellee’s, City of Ashtabula (the “City”), motion to vacate the arbitration award
issued June 29, 2018 and denying the Union’s motion to confirm. For the reasons set
forth herein, the judgment is reversed and remanded. {¶2} Robert Wolford was a police officer with the City of Ashtabula Police
Department, though he had not been working as a police officer for several years when
his employment was terminated on February 23, 2017. Mr. Wolford filed a grievance on
March 2, 2017, stating he was grieving his “unpaid leave.” There is no dispute that this
grievance was timely filed pursuant to the terms of the collective bargaining agreement
(“CBA”) and despite stating “unpaid leave,” the parties clearly understood that he grieved
his termination; the grievance did not, however, contain the specific section number of
the provision allegedly violated, as required by the CBA’s grievance procedures.
{¶3} The grievance was denied the same day, and a hearing was set for March
20, 2017. On March 17, 2017, realizing it failed to cite the specific section number of the
provision violated, the Union attempted to amend the grievance to correct the deficiency.
The amended grievance did not change the subject matter of the initial grievance. The
amendment was submitted, however, after the deadline to file a grievance under the CBA.
At the hearing, the City Manager denied the grievance as untimely filed, and found it did
not comply with the requirements of a grievance under the contract.
{¶4} The Union then initiated the arbitration process, which was initially limited,
upon agreement of the parties, to the issue of arbitrability. The arbitrator found the
grievance amendment did not alter the date of the initial filing, and that the grievance was
not defective, did not modify the subject matter being grieved, and should be heard on its
merits; i.e. the grievance was arbitrable.
{¶5} The City applied to the Ashtabula County Court of Common Pleas
requesting the award be vacated, and the Union moved for a confirmation of the award.
The trial court vacated the arbitrator’s award, finding an amended grievance must still
2 comply with the time requirements for filing a grievance as stated in the CBA, and finding
the arbitrator exceeded the scope of his authority by holding otherwise.
{¶6} The Union now appeals, assigning one error for our review, which states:
{¶7} The trial court erred in vacating the award of Arbitrator Nowell pursuant to Ohio Revised Code §2711.10(D).
{¶8} R.C. 2711.09 permits any party to an arbitration to apply to the court of
common pleas for an order confirming the award at any time within one year after an
award in an arbitration proceeding is made. Pursuant to R.C. 2711.10, “the court of
common pleas shall make an order vacating the award upon the application of any party
to the arbitration if * * * (D) [t]he arbitrators exceeded their powers * * *.” Id.
{¶9} Our review in this matter “is confined to the order issued by the common
pleas court confirming, modifying, vacating or enforcing the award, and we review the trial
court’s order confirming or vacating the arbitration decision for errors occurring as a
matter of law.” Portage Cty. Bd. of Developmental Disabilities v. Portage Cty. Educators’
Assn. for Developmental Disabilities, 11th Dist. Portage No. 2016-P-0032, 2017-Ohio-
888, ¶13. “Our review is not, however, a de novo review of the merits of the dispute as
presented to the arbitrator. Instead, we review the trial court’s decision de novo to
determine whether any of the limited grounds contained in R.C. 2711.10 regarding a
motion to vacate exist.” Developmental Disabilities, supra (overruling this district’s prior
decisions holding the standard of review in arbitration appeals is for abuse of discretion).
{¶10} “The arbitrator is the final judge of both law and facts and we may not
substitute our judgment for that of the arbitrator.” Madison Local School Dist. Bd. of Edn.
v. OAPSE/AFSCME Local 4, AFL-CIO, 11th Dist. Lake No. 2008-L-086, 2009-Ohio-1315,
¶9, citing The Goodyear Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork,
3 Linoleum, and Plastic Workers of America, 42 Ohio St.2d 516, 522 (1975). “An arbitrator’s
decision is presumed valid and thus enjoys great deference.” Madison, supra, citing
Mahoning Cty. Bd. of Mental Retardation & Developmental Disabilities v. Mahoning Cty.
TMR Edn. Assn., 22 Ohio St.3d 80, 83-84 (1986). “Judicial deference in arbitration cases
is fundamentally based on the recognition that the parties have contracted to have their
dispute settled by an arbitrator they have chosen in lieu of committing the matter to the
courts.” Madison, supra, at ¶10. “It follows that the request for judicial intervention should
be resisted even where the arbitrator has ostensibly made ‘“serious,” “improvident” or
“silly” errors in resolving the merits of the dispute.’” Madison, supra, at ¶12, quoting
Michigan Family Resources, Inc. v. Service Employees Internatl. Union Local 517M
(C.A.6, 2007), 475 F.3d 746, 753, citing United Paperworkers Internatl. Union v. Misco,
Inc., 484 U.S. 29, 36-38, 108 S.Ct. 364 (1987). “‘[A]s long as the arbitrator is even
arguably construing or applying the contract and acting within the scope of his authority,*
* * ”’ a court may not vacate the arbitrator’s determination.” Madison, supra, quoting
Misco, supra, at ¶38.
{¶11} An arbitrator’s award must be crafted from the essence of the collective
bargaining agreement and must not be unlawful, arbitrary, or capricious. Madison, supra,
at ¶13. “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, 59 Ohio St.3d 177 (1991), syllabus.
4 {¶12} In the absence of language to the contrary, the arbitrator here determined
that an amended grievance, which did not change the subject matter being grieved, was
arbitrable. In doing so, he read the CBA and compared it to other agreements, noting
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[Cite as Ashtabula v. Fraternal Order of Police, Ohio Labor Council, 2020-Ohio-6677.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
CITY OF ASHTABULA, : OPINION
Plaintiff-Appellee, : CASE NO. 2020-A-0027 - vs - :
FRATERNAL ORDER OF POLICE, : OHIO LABOR COUNCIL, INC., : Defendant-Appellant. :
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CV 0505.
Judgment: Reversed and remanded.
Frank H. Scialdone and David M. Smith, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Plaintiff-Appellee).
Michael W. Piotrowski, FOP, Ohio Labor Council, Inc., 2721 Manchester Road, Akron, OH 44319 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Fraternal Order of Police, Ohio Labor Council, Inc. (the “Union”),
appeals the April 20, 2020 judgment of the Ashtabula County Court of Common Pleas
granting appellee’s, City of Ashtabula (the “City”), motion to vacate the arbitration award
issued June 29, 2018 and denying the Union’s motion to confirm. For the reasons set
forth herein, the judgment is reversed and remanded. {¶2} Robert Wolford was a police officer with the City of Ashtabula Police
Department, though he had not been working as a police officer for several years when
his employment was terminated on February 23, 2017. Mr. Wolford filed a grievance on
March 2, 2017, stating he was grieving his “unpaid leave.” There is no dispute that this
grievance was timely filed pursuant to the terms of the collective bargaining agreement
(“CBA”) and despite stating “unpaid leave,” the parties clearly understood that he grieved
his termination; the grievance did not, however, contain the specific section number of
the provision allegedly violated, as required by the CBA’s grievance procedures.
{¶3} The grievance was denied the same day, and a hearing was set for March
20, 2017. On March 17, 2017, realizing it failed to cite the specific section number of the
provision violated, the Union attempted to amend the grievance to correct the deficiency.
The amended grievance did not change the subject matter of the initial grievance. The
amendment was submitted, however, after the deadline to file a grievance under the CBA.
At the hearing, the City Manager denied the grievance as untimely filed, and found it did
not comply with the requirements of a grievance under the contract.
{¶4} The Union then initiated the arbitration process, which was initially limited,
upon agreement of the parties, to the issue of arbitrability. The arbitrator found the
grievance amendment did not alter the date of the initial filing, and that the grievance was
not defective, did not modify the subject matter being grieved, and should be heard on its
merits; i.e. the grievance was arbitrable.
{¶5} The City applied to the Ashtabula County Court of Common Pleas
requesting the award be vacated, and the Union moved for a confirmation of the award.
The trial court vacated the arbitrator’s award, finding an amended grievance must still
2 comply with the time requirements for filing a grievance as stated in the CBA, and finding
the arbitrator exceeded the scope of his authority by holding otherwise.
{¶6} The Union now appeals, assigning one error for our review, which states:
{¶7} The trial court erred in vacating the award of Arbitrator Nowell pursuant to Ohio Revised Code §2711.10(D).
{¶8} R.C. 2711.09 permits any party to an arbitration to apply to the court of
common pleas for an order confirming the award at any time within one year after an
award in an arbitration proceeding is made. Pursuant to R.C. 2711.10, “the court of
common pleas shall make an order vacating the award upon the application of any party
to the arbitration if * * * (D) [t]he arbitrators exceeded their powers * * *.” Id.
{¶9} Our review in this matter “is confined to the order issued by the common
pleas court confirming, modifying, vacating or enforcing the award, and we review the trial
court’s order confirming or vacating the arbitration decision for errors occurring as a
matter of law.” Portage Cty. Bd. of Developmental Disabilities v. Portage Cty. Educators’
Assn. for Developmental Disabilities, 11th Dist. Portage No. 2016-P-0032, 2017-Ohio-
888, ¶13. “Our review is not, however, a de novo review of the merits of the dispute as
presented to the arbitrator. Instead, we review the trial court’s decision de novo to
determine whether any of the limited grounds contained in R.C. 2711.10 regarding a
motion to vacate exist.” Developmental Disabilities, supra (overruling this district’s prior
decisions holding the standard of review in arbitration appeals is for abuse of discretion).
{¶10} “The arbitrator is the final judge of both law and facts and we may not
substitute our judgment for that of the arbitrator.” Madison Local School Dist. Bd. of Edn.
v. OAPSE/AFSCME Local 4, AFL-CIO, 11th Dist. Lake No. 2008-L-086, 2009-Ohio-1315,
¶9, citing The Goodyear Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork,
3 Linoleum, and Plastic Workers of America, 42 Ohio St.2d 516, 522 (1975). “An arbitrator’s
decision is presumed valid and thus enjoys great deference.” Madison, supra, citing
Mahoning Cty. Bd. of Mental Retardation & Developmental Disabilities v. Mahoning Cty.
TMR Edn. Assn., 22 Ohio St.3d 80, 83-84 (1986). “Judicial deference in arbitration cases
is fundamentally based on the recognition that the parties have contracted to have their
dispute settled by an arbitrator they have chosen in lieu of committing the matter to the
courts.” Madison, supra, at ¶10. “It follows that the request for judicial intervention should
be resisted even where the arbitrator has ostensibly made ‘“serious,” “improvident” or
“silly” errors in resolving the merits of the dispute.’” Madison, supra, at ¶12, quoting
Michigan Family Resources, Inc. v. Service Employees Internatl. Union Local 517M
(C.A.6, 2007), 475 F.3d 746, 753, citing United Paperworkers Internatl. Union v. Misco,
Inc., 484 U.S. 29, 36-38, 108 S.Ct. 364 (1987). “‘[A]s long as the arbitrator is even
arguably construing or applying the contract and acting within the scope of his authority,*
* * ”’ a court may not vacate the arbitrator’s determination.” Madison, supra, quoting
Misco, supra, at ¶38.
{¶11} An arbitrator’s award must be crafted from the essence of the collective
bargaining agreement and must not be unlawful, arbitrary, or capricious. Madison, supra,
at ¶13. “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, 59 Ohio St.3d 177 (1991), syllabus.
4 {¶12} In the absence of language to the contrary, the arbitrator here determined
that an amended grievance, which did not change the subject matter being grieved, was
arbitrable. In doing so, he read the CBA and compared it to other agreements, noting
that the CBA at issue could have used stricter language if the intention was to prohibit or
limit amendments. He also reasoned:
{¶13} Amending a grievance does not mean starting over, submitting a new grievance. Unless the collective bargaining agreement prohibits the amending of a grievance following the initial step(s) of the Grievance Procedure, bringing forward an amendment is generally an acceptable practice as long as the subject matter itself is not modified. Nevertheless, arbitrators may not recognize an amendment made at the arbitration step which has been brought forward following completion of the various steps of the grievance procedure. This is not the case here.
{¶14} The trial court’s review was limited to whether the arbitrator’s award
deviated from the essence of the CBA by either expressly conflicting with a term of the
CBA or was without rational support from the terms of the agreement. The trial court,
however, focused its analysis on the merits of the arbitrability of the grievance, instead of
whether the arbitrator’s award was crafted from the essence of the CBA, stating:
{¶15} The Court finds and concludes that an amended grievance must still comply with the time requirements for filing a grievance as stated in the collective bargaining agreement. * * * The collective bargaining agreement is clear and unambiguous as to when a grievance can be filed. The arbitrator’s award overlooks the clear, unambiguous language in the collective bargaining agreement setting a fourteen day time period in which to file a grievance. Amending a grievance after the time period prescribed can be used as a way to circumvent the clear intention of the collective bargaining agreement as written. * * * The grievance filed by Mr. Wolford was not arbitrable, as it was untimely filed and did not conform to the grievance procedure. The Court finds and concludes there is merit in the City’s argument that the arbitrator exceeded his authority as designated in R.C. 2711.10.
{¶16} However, the CBA contains no terms regarding the amendment of
grievances; thus, it cannot be said that the award contradicts “clear, unambiguous
5 language” in the CBA. There is no dispute that the initial grievance was timely filed, the
question was whether the amendment related back to the time of the filing of the initial
grievance, a matter which the CBA does not address. Thus, this was a matter of
interpretation of the grievance filing procedures set forth in the CBA and within the purview
of the arbitrator.
{¶17} Moreover, while it is possible to imagine a scenario in which amending a
grievance after the prescribed time period could be used to circumvent the clear intention
of the CBA, there was no indication that was the intention here. Indeed, the Chief of
Police, who reviewed and denied the initial grievance, testified that he knew what was
being grieved when the initial grievance was filed, and that there was no other imposed
discipline to be grieved at that time. Additionally, the Union has not changed their
argument as to what event was being grieved. Thus, the amended grievance was not
attempting to create a new grievance circumventing the deadline but clarifying and
correcting the same subject matter of the initial grievance.
{¶18} Accordingly, we conclude the trial court erred by substituting its judgment
for the judgment of the arbitrator and finding he exceeded the scope of his authority.
{¶19} The judgment of the Ashtabula County Court of Common Pleas is reversed
and remanded.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.