I respectfully dissent from the majority's affirmance. I would reverse the judgment of the trial court and reinstate the Cleveland Public Safety Director's discharge of Captain Lynch pursuant to R.C. 2711.10(D) and App.R. 12(B).
The majority neglects its statutory obligation to review the arbitration award reinstating Captain Lynch sub judice under the guise of declining to consider the "merits" of the award. However, Ohio law authorizes confirming an award only when it draws its essence from the parties' collective bargaining agreement and the arbitrator did not exceed the scope of his powers under the agreement or act in an arbitrary, capricious or unlawful manner. R.C. 2711.10(D).
The majority erroneously concludes the arbitrator possessed authority to modify the discipline imposed by the Public Safety Director, despite finding Captain Lynch committed the misconduct charged while "on duty" as Officer *Page 760 in Charge, by ignoring several important provisions in the collective bargaining agreement (the "agreement").
Article XXXI of the agreement expressly subordinates the provisions of the agreement to the terms of the city charter.Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. Mun.Emp., AFL-CIO (1991), 61 Ohio St.3d 658, 666, 576 N.E.2d 745,753. Section 119 of the charter grants exclusive authority to the Chief of Police and Public Safety Director to dismiss police officers, and provides a judgment of dismissal by the director isfinal except in the case of appeals to the Cleveland Civil Service Commission as mandated by Ohio law.1
The arbitration clause purportedly relied upon by the majority to grant the arbitrator authority to modify discipline, specifically denies an arbitrator such authority by expressly prohibiting the modification of any provision of the agreement or making awards in conflict with law. The union's attempt to circumvent these specific charter restrictions contrary to Section 9, Article XVIII of the Ohio Constitution is particularly misplaced since the union recognized, argued in favor of, and benefitted from, the binding effect of other charter provisions in prior litigation with the city.Gallagher v. Cleveland (1983), 10 Ohio App.3d 77, 10 OBR 98,460 N.E.2d 733.
The Ohio Supreme Court recently vacated an arbitration award modifying the discipline which had been imposed by an employer when the employer reserved sole discretion over the extent of discipline for the offense found by the arbitrator to have occurred as in the case sub judice. Ohio Office of CollectiveBargaining v. Ohio Civ. Serv. Emp. Assn., Local 11, AFSCME,AFL-CIO (1991), 59 Ohio St.3d 177, 572 N.E.2d 71. However, the majority misreads Ohio Office of Collective Bargaining to require the city comprehensively predetermine the applicable discipline for every conceivable infraction of workplace rules in addition to reserving discretion for the Public Safety Director over the extent of discipline to deprive an arbitrator authority to modify the discipline imposed.
Ohio Office of Collective Bargaining establishes no such requirement. In fact, the Ohio Supreme Court specifically relied on S.D. Warren Co. v. United Paperworkers' Internatl. Union,AFL-CIO, Local 1069 (C.A. 1, 1988), *Page 761 846 F.2d 827, certiorari denied (1988), 488 U.S. 992, 109 S.Ct. 555,102 L.Ed.2d 582, where the court construed an almost identical management rights clause in the collective bargaining agreement to sufficiently reserve sole discretion over the extent of discipline to the employer despite the fact the plant rule found to have been violated by the employee arguably did not predetermine the applicable discipline upon violation.Id.2 Accordingly, even without municipal charter provisions granting exclusive and final authority to the employer as in the case sub judice, the collective bargaining agreement in Warren was held to deprive the arbitrator authority to select a remedy after determining that a violation of the rule had occurred.Id.
In prior litigation, the Ohio Supreme Court has broadly construed the reservation of discretion to the Public Safety Director under the charter provisions and collective bargaining agreement in effect at the time between the parties. Jurcisin v.Cuyahoga Cty. Bd. of Elections (1988), 35 Ohio St.3d 137, at 143-145, 519 N.E.2d 347, at 352-354. The court rejected the union's similar contentions that a newly created police review board to initiate charges of police misconduct was preempted by the parties' grievance process. The majority's decision relegates Jurcisin to the status of a phyrric victory by granting unreviewable veto power to an arbitrator over the imposition of discipline by the Public Safety Director.
Requiring an employer to specifically reserve discretion over the extent of discipline under these circumstances and to codify the precise discipline for violating applicable workplace rules in advance is redundant, requires an unattainable degree of foresight and forecloses the exercise of informed judgment in particular cases. Such a requirement is particularly unwarranted when the applicable rules govern conduct both on and off duty as in the case sub judice.
The majority likewise fails to consider whether R.C.2711.10(D) mandates vacating or modifying the award because the arbitrator exceeded his powers by acting arbitrarily, capriciously and in an unlawful manner when substituting his judgment for that of the Public Safety Director. Mahoning Cty.Bd. of Mental Retardation v. Mahoning Cty. TMR. Edn. Assn. (1986), 22 Ohio St.3d 80, 22 OBR 95, 488 N.E.2d 872, states the requirements necessary to confirm an arbitration award in this context as follows:
"An arbitrator's award draws its essence from a collective bargaining agreement when there is a rational nexus between the agreement and the *Page 762 award, and where the award is not arbitrary, capricious or unlawful." Id. at paragraph one of the syllabus.
The arbitrator in the case sub judice specifically found "the decision of the Safety Director to invoke appropriate discipline was warranted," since the evidence abundantly established five separate instances of misconduct, apart from the kidnapping and rape charges, in violation of numerous departmental rules. Arbitration Award at 29-30. Moreover, the arbitrator categorically rejected the union's claims of discrimination and disparate treatment by the director in imposing the discharge.3
Rather than concluding the matter, since the Public Safety Director properly exercised his discretion over the extent of discipline granted by law, the arbitrator, however, nakedly usurped this power since the arbitrator categorically objected to discharge as "industrial capital punishment." Arbitration Award at 30. The arbitrator improperly substituted his own "notions of industrial justice" to reinstate Captain Lynch despite acknowledging the misconduct "clearly warranted a substantial form of discipline." Arbitration Award at 35.
The purported reasons offered by the arbitrator for reinstating Captain Lynch and cited by the majority do not address why any single one of the five instances of misconduct found to have occurred but not included in the indictment did not deserve the original discipline imposed and are based on matters completely unrelated to the substance of any of the misconduct charged or the evidence supporting these five charges. Such "reasons" promulgated by the arbitrator would prevent the discharge of any high ranking law enforcement officer under any and all circumstances and are also contrary to well-settled law authorizing suspension while such charges are pending. See Beyer v. Donaldson (1978), 57 Ohio App.2d 24, 11 O.O.3d 16, 384 N.E.2d 712.
Although an arbitrator has great latitude in assessing evidence, finding facts and interpreting an agreement concerning matters properly submitted to the arbitrator under an agreement, once having found substantial evidence supporting the misconduct charged in violation of explicit rules without discriminatory enforcement, there must be some rational basis for arriving at the final determination. Categorically rejecting disciplinary action of a law *Page 763 enforcement officer by the appointing authority without considering the severity of the offenses and ordering reinstatement during the period when charges were still pending and ultimately sustained is arbitrary, capricious and unlawful.
Final reinstatement of a law enforcement officer under these circumstances may expose the city to the risk of liability for failing to take appropriate disciplinary action and is contrary to public policy. E.g., Brandon v. Holt (1985), 469 U.S. 464,105 S.Ct. 873, 83 L.Ed.2d 878.
Accordingly, since the arbitrator exceeded or so imperfectly executed his powers under the agreement, the award is arbitrary, capricious and unlawful and should be vacated. Since the majority fails to do so, I respectfully dissent.
1 Even in this context public civil service commissions do not possess the unlimited discretion to substitute their judgment for that of the director. Ohio law recognizes the director's traditional authority over such matters by granting the director a trial de novo in the common pleas court when a commission decision reduces the disciplinary termination of a police officer. Chupka v. Sanders (1986), 28 Ohio St.3d 325, 28 OBR 393, 504 N.E.2d 9; Beyer v. Donaldson (1978), 57 Ohio App.2d 24, 11 O.O.3d 16, 384 N.E.2d 712. The majority, however, imbues a private arbitrator with powers beyond even those granted by the charter to the public civil service commission.
2 See, also, Dobbs, Inc. v. Internatl. Bhd. of Teamsters (C.A. 6, 1987), 813 F.2d 85, where the court found an employer possessed sole discretion to discharge an employee when the applicable workplace rule stated that anyone violating the rule was "subject to discharge" and vacated a reinstatement award to the contrary.
3 The arbitrator concluded the union's claims were "not supported by the evidence," stating in part as follows:
"There is no substantial proof in the record to indicate thatthe grievant was discharged for any ulterior purpose, or motive,or that he was discriminated against as an individual for any ofthe reasons prohibited by the Agreement, or for any otherreasons that commonly indicates discrimination." (Emphasis added.) Arbitration Award at 23-24.