[Cite as Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators' Assn. for Dev. Disabilities, 2017-Ohio- 888.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
PORTAGE COUNTY BOARD OF : OPINION DEVELOPMENTAL DISABILITIES, : Plaintiff-Appellee, : CASE NO. 2016-P-0032 - vs - : PORTAGE COUNTY EDUCATORS’ ASSOCIATION FOR DEVELOPMENTAL : DISABILITIES, : Defendant-Appellant.
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV 00432.
Judgment: Reversed.
Ronald J. Habowski, 1931 Basswood Drive, Kent, OH 44240 (For Plaintiff-Appellee).
Ira J. Mirkin, and Charles W. Oldfield, Green, Haines & Sgambati Co., L.P.A., 100 Federal Plaza East, Suite 800, Youngstown, OH 44503 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, the Portage County Educators’ Association for Developmental
Disabilities (“Association”), appeals the decision vacating the arbitrator’s award in its
favor. We reverse the trial court’s decision and reinstate the arbitration award.
{¶2} The Association entered a collective bargaining agreement (“Agreement”)
with appellee, the Portage County Board of Mental Disabilities (“Board”), for the terms and conditions governing the Association’s members’ employment. In the fall of 2008,
the Board posted a job opening for an Account Clerk 1 in its transportation department.
Patricia Byttner applied and was hired. The job description indicates that the job duties
for the position were clerical only. However, the parties disagree as to whether Byttner
was informed before she was hired that the Board expected her to occasionally fill in as
a substitute bus driver and bus aid.
{¶3} Notwithstanding, after she was hired, Byttner was occasionally asked to fill
in as a substitute bus driver, which she agreed to do. However, she suffered from knee
and back problems, and as such, did not wish to continue acting as a substitute bus
driver and did not believe that her job required her to act in that capacity.
{¶4} In 2012, the Board changed Byttner’s job description by adding language
stating that an Account Clerk 1 in the transportation department is required to serve as
a vehicle operator and vehicle attendant on an as-needed basis. In light of this change,
the Association filed a grievance on Byttner’s behalf. The Board denied the grievance
and the matter proceeded to arbitration.
{¶5} Following the arbitration hearing, the arbitrator agreed with the Association
in part and concluded:
{¶6} “The grievance is sustained in part regarding that the Board violated
Article 7.C.1 of the Agreement when it arbitrarily added a designated duty wholly
unrelated to her Account Clerk 1 classification, instead of increasing job duties as
permitted by the Agreement. The Board is directed to remove said designated duty
from job description of Account Clerk 1.
2 {¶7} “However, in this particular situation the grievance is also denied in part
based on Byttner’s volunteering to serve as a bus driver or aide for the Employer on a
temporary or emergency basis during her application/hiring process as well as her
periodic willingness to fill in on limited occasions since being hired in 2008. The
Grievant cannot arbitrarily renege on a commitment made when hired and upon which
the Board reasonably relied upon her on an emergency/last resort basis. However, if
the Grievant provides the Employer with current medical documentation sufficiently
demonstrating that she is medically unfit and precluded from periodically serving as a
bus driver or aide, her obligation to ‘fill-in’ on a temporary and emergency basis needs
to be evaluated by the Board.”
{¶8} The arbitrator explained that by adding bus driving duties to the Account
Clerk 1 position, the Board acted arbitrarily and capriciously by unilaterally increasing
the job duties beyond the reasonable scope of the job duties normally associated with a
clerical position.
{¶9} The Board filed an application with the trial court to vacate the arbitrator’s
award arguing that the arbitrator exceeded his authority, and the Association sought
confirmation of the decision. The court agreed with the Board and vacated the
arbitration decision. The Association appeals and asserts one assigned error:
{¶10} “The trial court erred when it found the arbitrator exceeded his authority
and vacated the arbitration award.”
{¶11} A court of common pleas can only review binding arbitration awards for a
limited number of reasons, and it must base its decision solely on the arbitration record.
Arrow Uniform Rental, LP v. K&D Group, Inc., 11th Dist. Lake No. 2010-L-152, 2011-
3 Ohio-6203, ¶32, 35. Moreover, “[t]he arbitrator is the final judge of both the law and the
facts, and a court may not substitute its judgment for that of the arbitrator. * * * Judicial
deference in arbitration cases is based on a recognition that the parties have agreed to
have their dispute settled by an arbitrator rather than the courts and ‘to accept the
arbitrator’s view of the facts and the meaning of the contract regardless of the outcome
of the arbitration.’” (Citations omitted.) Id., at ¶35-36.
{¶12} Further, the Ohio Supreme Court has repeatedly emphasized that ‘“‘[i]t is
the policy of the law to favor and encourage arbitration and every reasonable
intendment will be indulged to give effect to such proceedings and to favor the regularity
and integrity of the arbitrator’s acts.’”’ Findlay City School Dist. Bd. of Edn. v. Findlay
Edn. Assn., 49 Ohio St.3d 129, 131, 551 N.E.2d 186 (1990), citing Mahoning Cty. Bd. of
Mental Retardation v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 84, 488
N.E.2d 872 (1986).
{¶13} R.C. 2711.10 dictates the limited standard of review for a court of common
pleas to employ upon addressing an application to vacate an arbitration award. And our
review 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. Arrow Uniform
Rental, L.P. v. K&D Group, Inc., 11th Dist. Lake No. 2010-L-152, 2011-Ohio-6203, ¶43;
Akron Metro. Hous. Auth. v. Local 2517, Am. Fedn. of State, Cty., & Mun. Emp., AFL-
CIO, 161 Ohio App. 3d 594, 2005-Ohio-2965, 831 N.E.2d 493 (9th Dist.), cause
dismissed, 106 Ohio St. 3d 1515, 2005-Ohio-4803, 834 N.E.2d 356; Creatore v. Robert
W. Baird & Co., 154 Ohio App. 3d 316, 2003-Ohio-5009, 797 N.E.2d 127 (7th Dist.).
4 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. Arrow Uniform Rental, L.P. at ¶44. Thus, we overrule this district’s prior
decisions holding that our standard of review in arbitration appeals is for an abuse of
discretion. Marshall v. Colonial Ins. Co. of California, 11th Dist. Trumbull No. 2007-T-
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[Cite as Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators' Assn. for Dev. Disabilities, 2017-Ohio- 888.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
PORTAGE COUNTY BOARD OF : OPINION DEVELOPMENTAL DISABILITIES, : Plaintiff-Appellee, : CASE NO. 2016-P-0032 - vs - : PORTAGE COUNTY EDUCATORS’ ASSOCIATION FOR DEVELOPMENTAL : DISABILITIES, : Defendant-Appellant.
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV 00432.
Judgment: Reversed.
Ronald J. Habowski, 1931 Basswood Drive, Kent, OH 44240 (For Plaintiff-Appellee).
Ira J. Mirkin, and Charles W. Oldfield, Green, Haines & Sgambati Co., L.P.A., 100 Federal Plaza East, Suite 800, Youngstown, OH 44503 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, the Portage County Educators’ Association for Developmental
Disabilities (“Association”), appeals the decision vacating the arbitrator’s award in its
favor. We reverse the trial court’s decision and reinstate the arbitration award.
{¶2} The Association entered a collective bargaining agreement (“Agreement”)
with appellee, the Portage County Board of Mental Disabilities (“Board”), for the terms and conditions governing the Association’s members’ employment. In the fall of 2008,
the Board posted a job opening for an Account Clerk 1 in its transportation department.
Patricia Byttner applied and was hired. The job description indicates that the job duties
for the position were clerical only. However, the parties disagree as to whether Byttner
was informed before she was hired that the Board expected her to occasionally fill in as
a substitute bus driver and bus aid.
{¶3} Notwithstanding, after she was hired, Byttner was occasionally asked to fill
in as a substitute bus driver, which she agreed to do. However, she suffered from knee
and back problems, and as such, did not wish to continue acting as a substitute bus
driver and did not believe that her job required her to act in that capacity.
{¶4} In 2012, the Board changed Byttner’s job description by adding language
stating that an Account Clerk 1 in the transportation department is required to serve as
a vehicle operator and vehicle attendant on an as-needed basis. In light of this change,
the Association filed a grievance on Byttner’s behalf. The Board denied the grievance
and the matter proceeded to arbitration.
{¶5} Following the arbitration hearing, the arbitrator agreed with the Association
in part and concluded:
{¶6} “The grievance is sustained in part regarding that the Board violated
Article 7.C.1 of the Agreement when it arbitrarily added a designated duty wholly
unrelated to her Account Clerk 1 classification, instead of increasing job duties as
permitted by the Agreement. The Board is directed to remove said designated duty
from job description of Account Clerk 1.
2 {¶7} “However, in this particular situation the grievance is also denied in part
based on Byttner’s volunteering to serve as a bus driver or aide for the Employer on a
temporary or emergency basis during her application/hiring process as well as her
periodic willingness to fill in on limited occasions since being hired in 2008. The
Grievant cannot arbitrarily renege on a commitment made when hired and upon which
the Board reasonably relied upon her on an emergency/last resort basis. However, if
the Grievant provides the Employer with current medical documentation sufficiently
demonstrating that she is medically unfit and precluded from periodically serving as a
bus driver or aide, her obligation to ‘fill-in’ on a temporary and emergency basis needs
to be evaluated by the Board.”
{¶8} The arbitrator explained that by adding bus driving duties to the Account
Clerk 1 position, the Board acted arbitrarily and capriciously by unilaterally increasing
the job duties beyond the reasonable scope of the job duties normally associated with a
clerical position.
{¶9} The Board filed an application with the trial court to vacate the arbitrator’s
award arguing that the arbitrator exceeded his authority, and the Association sought
confirmation of the decision. The court agreed with the Board and vacated the
arbitration decision. The Association appeals and asserts one assigned error:
{¶10} “The trial court erred when it found the arbitrator exceeded his authority
and vacated the arbitration award.”
{¶11} A court of common pleas can only review binding arbitration awards for a
limited number of reasons, and it must base its decision solely on the arbitration record.
Arrow Uniform Rental, LP v. K&D Group, Inc., 11th Dist. Lake No. 2010-L-152, 2011-
3 Ohio-6203, ¶32, 35. Moreover, “[t]he arbitrator is the final judge of both the law and the
facts, and a court may not substitute its judgment for that of the arbitrator. * * * Judicial
deference in arbitration cases is based on a recognition that the parties have agreed to
have their dispute settled by an arbitrator rather than the courts and ‘to accept the
arbitrator’s view of the facts and the meaning of the contract regardless of the outcome
of the arbitration.’” (Citations omitted.) Id., at ¶35-36.
{¶12} Further, the Ohio Supreme Court has repeatedly emphasized that ‘“‘[i]t is
the policy of the law to favor and encourage arbitration and every reasonable
intendment will be indulged to give effect to such proceedings and to favor the regularity
and integrity of the arbitrator’s acts.’”’ Findlay City School Dist. Bd. of Edn. v. Findlay
Edn. Assn., 49 Ohio St.3d 129, 131, 551 N.E.2d 186 (1990), citing Mahoning Cty. Bd. of
Mental Retardation v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 84, 488
N.E.2d 872 (1986).
{¶13} R.C. 2711.10 dictates the limited standard of review for a court of common
pleas to employ upon addressing an application to vacate an arbitration award. And our
review 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. Arrow Uniform
Rental, L.P. v. K&D Group, Inc., 11th Dist. Lake No. 2010-L-152, 2011-Ohio-6203, ¶43;
Akron Metro. Hous. Auth. v. Local 2517, Am. Fedn. of State, Cty., & Mun. Emp., AFL-
CIO, 161 Ohio App. 3d 594, 2005-Ohio-2965, 831 N.E.2d 493 (9th Dist.), cause
dismissed, 106 Ohio St. 3d 1515, 2005-Ohio-4803, 834 N.E.2d 356; Creatore v. Robert
W. Baird & Co., 154 Ohio App. 3d 316, 2003-Ohio-5009, 797 N.E.2d 127 (7th Dist.).
4 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. Arrow Uniform Rental, L.P. at ¶44. Thus, we overrule this district’s prior
decisions holding that our standard of review in arbitration appeals is for an abuse of
discretion. Marshall v. Colonial Ins. Co. of California, 11th Dist. Trumbull No. 2007-T-
0013, 2007-Ohio-6248, ¶14; Citigroup Global Markets, Inc. v. Masek, 11th Dist.
Trumbull No. 2006-T-0052, 2007-Ohio-2301, ¶18.
{¶14} R.C. 2711.10, Court may vacate award, states:
{¶15} “In any of the following cases, the court of common pleas shall make an
order vacating the award upon the application of any party to the arbitration if:
{¶16} “* * *
{¶17} “(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.” (Emphasis added.)
{¶18} Upon considering an application under R.C. 2711.10(D), courts are limited
to determining whether an arbitration award “draws its essence from the CBA. * * * An
award draws its essence from the CBA when there is a rational nexus between the CBA
and the award.” (Citations omitted.) Southwest Ohio Regional Transit Auth. v.
Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108, 110, 2001-Ohio-294, 742
N.E.2d 630 (2001). A reviewing court’s inquiry must end upon finding a rational nexus.
Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 132–
133, 551 N.E.2d 186 (1990).
5 {¶19} An arbitrator is confined to interpreting and applying the governing
collective bargaining agreement, and he or she may secure guidance from many
sources. Ohio Office of Collective Bargaining v. Ohio Civil Service Employees Assn.,
Local 11, AFSCME, 59 Ohio St.3d 177, 180, 572 N.E.2d 71 (1990) citing United
Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358
(1960). The arbitrator’s award must be confirmed if his or her “award was reached in a
rational manner from the collective bargaining agreement[,]” and must be vacated if the
decision “conflicts with” the express provisions of the agreement. Id. at 181; R.C.
2711.10. Thus, an arbitrator exceeds his or her authority when an award clearly
departs from the express language employed in the parties’ agreement. Id. And the
trial court is precluded from reversing an arbitrator's decision based on its disagreement
with the arbitrator’s contract interpretation. Southwest Ohio Reg. Transit Auth. at 110.
{¶20} The applicable Agreement in this case includes the following provisions
governing the Board and the Association’s interactions:
{¶21} Article 1. section A. “Recognition,” states in part:
{¶22} “1. The Bargaining Unit shall include all Food Service and Clerical
employees * * *.
{¶23} “2. The Bargaining Unit does not include: Transportation * * * .”
{¶24} Article 3. section B. “Board Rights,” states in part:
{¶25} “1. The Portage County Board of Developmental Disabilities, on its own
behalf and on behalf of the electors of the County, hereby retains and reserves unto
itself, without limitation, all powers, rights, authority, duties and responsibilities conferred
6 upon and vested in by the laws and Constitution of the State of Ohio and the United
States, including, but without limiting, the generality of the foregoing rights:
{¶26} “* * *
{¶27} “b. To hire all employees and, subject to the provisions of law, to
determine their qualifications and conditions for their continued employment or their
dismissal or demotion; and to assign, promote, and transfer all such employees;
{¶28} “c. To decide upon the means of instruction and the duties,
responsibilities, and assignments of instructors and all other employees with respect
thereto, and respecting each individual employee’s right of academic freedom.
{¶29} “* * *
{¶30} “The exercise of the foregoing powers, rights, authority, duties and
responsibilities by the Board, the adoption of policies, rules, regulations and practices in
furtherance thereof, and the use of judgment and discretion in connection therewith
shall be limited only to the specific and express terms of this complete Contract.”
{¶31} Article 4. “Grievance Procedure” provides in part under subsection D. 4:
{¶32} “The decision of the arbitrator shall be binding on all parties. The
arbitrator shall not have the authority to add to, subtract from, modify, change, or alter
any of the provisions of the Collective Bargaining Agreement, nor add to, detract from,
or modify the language therein in arriving at a determination of any issue presented that
is proper within the limitations expressed herein.
{¶33} “The arbitrator shall expressly confine himself/herself to the precise
issue(s) submitted for arbitration and shall have no authority to determine any other
7 issue(s) not so submitted to him/her, or to submit observations or declarations of
opinion which are not directly essential in reaching the determination.
{¶34} “The arbitrator shall not fashion any remedy which directly changes the
intent and purpose of the Contract provision(s) being grieved.”
{¶35} Under Article 7. A., “PROMOTIONS AND VACANCIES,” the Agreement
states in part:
{¶36} “1. A ‘vacancy’ shall be defined as the resignation, retirement, death,
promotion, transfer, termination, or discharge of an employee, or the creation of a new
bargaining unit position. Bargaining unit vacancies and promotions shall be posted
internally for five (5) days on a conspicuous bulletin board in each building and a copy
delivered to the PCEAMR President. Such posting shall include the job description and
qualifications for the vacant position.”
{¶37} It also provides under subsection 7. C. “JOB DESCRIPTIONS,”
{¶38} “1. Job descriptions for all positions will be completed and compiled by
the Superintendent and/or Designee. Job descriptions will be given to each employee
prior to employment, or when changed; and will be available for inspection to the
PCEAMR. These job descriptions shall include minimum qualifications, Essential
Functions, duties, responsibilities, and the job title. The job duties of an employee
may only be increased once in any twelve (12) month period, unless the employee
in that position agrees to more than one (1) increase. Within fifteen (15) days of any
increase in duties said increase shall be incorporated into the job description and a copy
given to the employee.” (Emphasis added.)
{¶39} “Essential Functions” is not defined in the Agreement.
8 {¶40} There are no other terms or provisions in the Agreement delineating how,
when, or to what extent an employee’s job duties can be increased.
{¶41} The job description provided to Byttner upon her hiring describes a clerical
position requiring bookkeeping and computer experience. The Account Clerk 1 position
description states that it requires the employee to coordinate dispatch activities, but it
does not indicate that the position encompasses driving a school bus or acting as a bus
aide. As for the working conditions, the job description states that an Account Clerk 1
will be in an office and subject to long periods of sitting and viewing a computer monitor.
The qualifications also state that the position holder must also be able to stoop, lift, and
bend to perform routine clerical duties.
{¶42} This appeal and the arbitrator’s decision center on the application and
interpretation of Section 7.C.1 of the Agreement. If the arbitrator’s decision is not
contrary to the express provisions of the agreement and is rationally based on the
words the parties chose to govern their conduct, then the trial court was required to
confirm his decision even if the trial court disagreed with the arbitrator’s construction of
the terms.
{¶43} It is unquestioned that the Board is permitted to increase an Account Clerk
1’s job duties once per year under Section 7.C.1. What is disputed and is unclear under
the Agreement is the extent to which the Board can increase an Account Clerk 1’s job
duties.
{¶44} The Agreement does not employ language limiting the Board’s scope of
authority to increase an employee’s job duties. However, the Agreement likewise does
not include language stating the board has unfettered authority to increase an
9 employee’s job duties. It merely states: “The job duties of an employee may only be
increased once in any twelve (12) month period, unless the employee in that position
agrees to more than one (1) increase.”
{¶45} Thus, in light of the absence of express contractual language dictating the
actual extent of the Board’s authority to increase one’s job duties, the arbitrator
construed the parties’ Agreement and found a reasonableness limitation requiring that
any unilateral increase in the Account Clerk 1’s job duties imposed by the Board must
be clerical in nature or in the realm of job duties typically characteristic of a designated
job. The arbitrator noted that the Board employees who regularly drive the buses are
subject to a separate collective bargaining agreement with the Board. And although he
acknowledged that the Board can increase its employees’ duties once annually, the
increase in those duties must be related to the type of duties that the employee already
performs. Moreover, the arbitrator explained that just because a person employed as
an Account Clerk 1 knows how to change the oil on a school bus, this is not the type of
increase in job duties that naturally flows from the Account Clerk 1 position.
{¶46} Accordingly, because the Agreement does not actually address the extent
of the Board’s scope of authority to increase an Account Clerk 1’s job duties, the trial
court erred in finding that the arbitrator exceeded his authority in imposing reasonable
limits that he drew from the essence of the parties’ Agreement.
{¶47} In Hillsboro v. Fraternal Order of Police, Ohio Labor Council, Inc., 52 Ohio
St.3d 174, 556 N.E.2d 1186 (1990), the Supreme Court reversed the appellate court
and trial court decisions vacating the arbitrator’s decision explaining,
10 {¶48} “When a provision in a collective bargaining agreement is subject to more
than one reasonable interpretation and the parties to the contract have agreed to submit
their contract interpretation disputes to final and binding arbitration, the arbitrator's
interpretation of the contract, and not the interpretation of a reviewing court, governs the
rights of the parties thereto. This is so because the arbitrator's interpretation of the
contract is what the parties bargained for in agreeing to submit their disputes to final
and binding arbitration. The arbitrator's interpretation must prevail regardless of whether
his or her interpretation is the most reasonable under the circumstances.
{¶49} “The continued vitality of the arbitration system of dispute resolution can
only be ensured through judicial restraint. Not only must a reviewing court limit its
inquiry for purposes of vacating an arbitrator's award in accordance with the
requirements in Findlay, [supra,] but a reviewing court also must be sensitive to
upholding an arbitrator's award whenever it is possible to do so.” (Emphasis added.)
Id. at 177-178.
{¶50} Accordingly, the trial court should have confirmed the arbitrator’s award as
it was rationally derived from his interpretation of the collective bargaining agreement.
Further, the arbitrator’s decision finding that the Board’s imposition of additional job
duties must be rationally related to the Account Clerk 1 job description does not conflict
with the express terms of the Agreement. Thus, the trial court erred by vacating the
arbitrator’s decision and in imposing its interpretation of the Agreement in place of the
arbitrator’s.
11 {¶51} The Association’s sole assigned error has merit, and the trial court’s
decision vacating the arbitrator’s decision is reversed, and the arbitration award is
reinstated.
CYNTHIA WESTCOTT RICE, P.J.,
DIANE V. GRENDELL, J.,
concur.