Util. Workers Union of Am. Local 436-A v. E. Ohio Reg'l Wastewater Auth.

97 N.E.3d 960, 2017 Ohio 7794
CourtCourt of Appeals of Ohio, Seventh District, Belmont County
DecidedSeptember 19, 2017
DocketNO. 16 BE 0060
StatusPublished
Cited by3 cases

This text of 97 N.E.3d 960 (Util. Workers Union of Am. Local 436-A v. E. Ohio Reg'l Wastewater Auth.) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Seventh District, Belmont County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Util. Workers Union of Am. Local 436-A v. E. Ohio Reg'l Wastewater Auth., 97 N.E.3d 960, 2017 Ohio 7794 (Ohio Super. Ct. 2017).

Opinion

JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, J.

{¶ 1} Appellant Utility Workers Union of America, AFL-CIO, Local Union 436-A ("the Union") appeals the decision of the Belmont County Common Pleas Court confirming an arbitrator's award (with a modification of what the trial court found was scrivener's error) as requested by Appellee Eastern Ohio Regional Wastewater Authority ("the Employer"). The Union argues the arbitrator's award was subject to a more favorable modification under R.C. 2711.11(B) because the arbitrator "awarded upon a matter not submitted" to him. However, the remedy of back pay (including the setting of an end date for the remedy) qualifies as a matter submitted to the arbitrator. The Union also requested modification under R.C. 2711.11(A) due to an "evident material mistake." There was an evident material mistake in the year for the start date of back pay, but this court concludes the trial court modified the award to correct this typographical error.

{¶ 2} The Union alternatively contends the arbitrator's award must be vacated under R.C. 2711.10(C), which applies when the arbitrator "exceeded [his] powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." The Union focuses on a factual dispute as to whether retirement occurred and whether back pay should be discontinued on December 31, 2014. Due to the limited role of the judiciary in reviewing arbitration awards, this court affirms the trial court's judgment.

STATEMENT OF THE CASE

{¶ 3} This case involves an arbitrator's award upon a grievance filed against the Employer due to its termination of an employee ("the Grievant"). After a non-transcribed hearing, the arbitrator issued an eighteen-page opinion and award on August 14, 2015. According to this opinion, all employees were subjected to a drug and alcohol test on October 20, 2014, under the Employer's written drug and alcohol policy. The Grievant was notified by certified mail that he tested positive for marijuana and the policy provided him thirty days to produce a negative test. If he could not provide a negative test result, the policy stated he "may be disciplined up to and including discharge as warranted by the facts" and a termination shall be deemed "for cause." The Grievant requested and was granted leave beginning October 30, 2014; it was unpaid as he had no other leave available. The Grievant then entered counseling and produced two test results with positive results for marijuana (in amounts higher than the first one).

{¶ 4} On December 3, 2014, the Employer terminated the Grievant via certified mail. The termination was upheld after grievance hearings. Arbitration was requested *964under the parties' collective bargaining agreement ("CBA"). The parties agreed to a single arbitrator. The issue submitted to the arbitrator was: "Whether Grievant was terminated for just cause in compliance with Article 19, Section 1 of the Labor Agreement effective April 1, 2014, and if not, what is the appropriate remedy?" The cited section of the parties' CBA states, "no employee shall be reduced in pay, suspended or discharged except for just cause." CBA, Art. 19, Sec. 1.

{¶ 5} The arbitrator's decision set forth the position of each side. The Employer pointed out the Grievant signed an acknowledgement of drug and alcohol testing when he applied for employment in 1997 and signed an acknowledgement of receipt of the drug and alcohol policy on August 21, 2003. The Grievant and two other employees testified they did not actually receive the policy when signing the acknowledgement. The Grievant attended training sessions on drugs, including one on September 25, 2014, where it was announced the Employer applied to renew its application with the Drug Free Work Place Program of the Ohio Bureau of Workers' Compensation.

{¶ 6} The Union pointed to a provision in the CBA stating the parties will meet to adopt a drug and alcohol policy and any such policy shall include a provision stating an employee with one positive drug test will be placed on sick leave until released to return to work. The Union's president testified he was unaware of the Employer's drug and alcohol policy until the day of the test, noting any such policy had to be negotiated as part of the CBA before being implemented by the Employer. The Employer did not produce a copy of the drug and alcohol policy signed by authorized Union officials to evidence it was negotiated as part of the CBA. The Employer suspected drug use in the workplace due to a text message it received. The Union pointed out the policy provided for reasonable suspicion testing (if a trained supervisor detects indicators of drug or alcohol use, which did not occur here), random testing (which the Union urged would not involve the testing of every employee as occurred here), and post-accident testing (which was unrelated to this situation). The Union also pointed to favorable treatment of a former employee with alcohol problems and the lack of records maintained by the Employer. The Union asked the arbitrator to sustain the grievance and order the Grievant "returned to work and made whole."

{¶ 7} The arbitrator stated the Grievant was a long-time employee who smoked marijuana due to physical ailments, including one which required him to take a medication that resulted in nausea and a loss of appetite. Although he had two positive tests with higher results after the original test, the Grievant testified he smoked marijuana twice before the October 20 test and did not smoke thereafter. The arbitrator sustained the Union's objection to evidence the Grievant was denied unemployment compensation and stated the denial was due to the existence of the policy. The arbitrator found the Employer's drug and alcohol policy was a unilateral policy that was required to be negotiated under the CBA.1 The arbitrator also found no reasonable suspicion to test the Grievant or all employees under the terms of the policy. The arbitrator noted the Employer gave the employee permission to take leave without pay starting on October 30, 2014, which would have maintained his status as *965employee until his termination on December 3, 2014.

{¶ 8} The arbitrator then stated: "In December 2014, Grievant did put in for his retirement. Although this voluntary act may have been precipitated by the actions taken by the Company to terminate him, there was no evidence that he retired because of the discipline that he received and, therefore, back pay or benefits after the date of his voluntar[y] retirement are not available to him." The arbitrator sustained the grievance and ordered the Employer to pay to the Grievant "all back pay and benefits beginning on October 30, 2014 and ending with the date of his voluntary retirement." The arbitrator's decision retained jurisdiction to assist with the implementation of the award of back pay and benefits.

{¶ 9} On December 15, 2015, the arbitrator issued a supplement to his decision, noting he retained jurisdiction to assist with implementation of the August 14, 2015 award. The supplement, which contained a chronologically impossible date range, stated the arbitrator "now comes to re-affirm and refine the Award.

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Bluebook (online)
97 N.E.3d 960, 2017 Ohio 7794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/util-workers-union-of-am-local-436-a-v-e-ohio-regl-wastewater-auth-ohctapp7belmont-2017.