[Cite as Colerain Twp. v. AFSCME Ohio Council 8, AFL-CIO, Local 3553, 2024-Ohio-1352.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
COLERAIN TOWNSHIP, : APPEAL NO. C-230377
TRIAL NO. A-2204168
Plaintiff-Appellee, :
vs. : O P I N I O N.
AFSCME OHIO COUNCIL 8, AFL-CIO :
LOCAL 3553,
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 10, 2024
Schroeder, Maundrell, Barbiere & Powers and Scott A. Sollmann, for Plaintiff-
Appellee,
Ohio Council 8, AFSCME, AFL-CIO, Kimm A. Massengill-Bernardin and Michelle R.
Evans, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} This appeal derives from the trial court’s review of an arbitration award
that was entered as a part of the grievance procedure under a collective-bargaining
agreement (the “CBA”). The underlying dispute concerns a township employee’s
termination while the employee was on leave pursuant to the Family Medical Leave
Act (“FMLA”). The employee—asserting that his termination was a disciplinary
action—filed a grievance after his termination asserting that he was improperly
terminated without a predisciplinary hearing. The township argued that a pre-
disciplinary hearing was not necessary as his termination was a result of the employee
abandoning his position, and not a disciplinary action. The grievance process
ultimately culminated in the instant appeal.
{¶2} The question now presented in this appeal is whether the trial court
correctly vacated the arbitration award under R.C. 2711.10 after finding that the
arbitrator exceeded her authority by ordering that the employee be reinstated and
made whole. The arbitrator made such an award after finding that the underlying
grievance was deemed settled under Article 7, section 6 of the CBA based on the
township’s failure to follow the grievance procedure. Defendant-appellant ASFMCE
Ohio Council 8, AFL-CIO, Local 3553 (“the union”) appeals from the judgment of the
trial court, arguing in a single assignment of error that the trial court erred when it
granted the township’s motion to vacate the arbitration award—and denied its motion
to confirm the arbitration award and dismiss the township’s motion to vacate the
arbitration award—as the award draws its essence from the CBA and was not arbitrary,
capricious, or unlawful. For the reasons that follow, we agree and hold that the
arbitrator did not exceed her powers under the CBA where nothing in the CBA
prevents the arbitrator from awarding any remedy inherent within the relief requested
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OHIO FIRST DISTRICT COURT OF APPEALS
in order to provide the employee with a full and adequate remedy under Article 7,
section 6 of the CBA. Accordingly, we sustain the assignment of error, reverse the
judgment of the trial court, and remand the cause for the trial court to reinstate and
rule upon the union’s motion to confirm the arbitrator’s award under R.C. 2711.09 in
a manner consistent with this opinion and the law.
I. Relevant Provisions of the CBA
A. Article 13 - Discipline
{¶3} Article 13, section 4, provides, “Whenever the Employer determines that
an employee will be subject to discipline of suspension, reduction or termination, a
disciplinary hearing will be scheduled to give the employee an opportunity to offer an
explanation of the alleged misconduct.”
{¶4} Article 13, section 8, provides, “Disciplinary action may be appealed
through the Grievance Procedure.”
B. Article 49 – Family Medical Leave Act
{¶5} Article 49, section 1, of the CBA provides that the employer “agrees to
apply the provisions of the Family Medical Leave Act (FMLA) to all employees in the
bargaining unit.”
{¶6} Article 49, section 3, provides, “The Employer may grant additional
leave time, at their discretion, when requested by the Employee. The Employee,
should he continue leave time, may continue health benefits through COBRA only.”
{¶7} Article 49, section 4, provides, “Employees returning from FMLA leave
shall be returned to the same or similar position within their former classification.”
C. Article 7 - The Grievance Procedure
{¶8} Under Article 7, section 1, of the CBA, a grievance is defined as, “a
dispute or complaint arising between the Union or employee and employer who are
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OHIO FIRST DISTRICT COURT OF APPEALS
parties to this contract concerning the interpretation, application, or any breach of the
terms of the Agreement, including any disciplinary action.”
{¶9} Under Article 7, section 2, all grievances must be in writing and must
contain the following information to be considered: (1) the grievant’s name and
signature, (2) the grievant's classification and department, (3) the date the grievance
was filed, (4) the grievant’s supervisor, (5) as much information as possible concerning
the grievance, (6) the specific provision(s) of the contact alleged to have been violated,
and (7) the remedy sought to resolve the grievance.
{¶10} Under Article 7, section 4, the grievance procedure consists of five steps.
Under step one, the employee must submit the grievance in writing to his supervisor
within ten days of the date the grievance arose. The supervisor must then render a
written decision within seven days of the date the grievance was submitted. Under
step two, if the grievance is not resolved in step one, the employee must submit the
grievance in writing on a union grievance form to the department head within seven
days of the supervisor’s decision. The department head must then render a written
decision within seven days of the date of receipt of the grievance.
{¶11} Under step three, if the grievance is not resolved in step two, the
employee—within seven days of receiving the decision of the department head—may
appeal the decision by filing written notice of the fact with the township administrator
or his designee, requesting a hearing. The administrator or his designee must then
conduct a hearing within 14 days of receipt of the written notice of appeal and must
render a written decision within seven days after the hearing. Under step four, if the
grievance is not resolved under step three, the employee—within seven days from
receipt of the decision of the administrator—may appeal the decision to mediation.
Finally, under step five, if the grievance is not resolved under step four, the union may
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OHIO FIRST DISTRICT COURT OF APPEALS
submit the grievance for arbitration by written notice to the administrator or his
designee.
{¶12} Article 7, section 6, of the CBA provides, “If the Employer fails to answer
a grievance in a timely manner, it shall be deemed a settlement on the relief
requested.”
II. Factual and Procedural History
A. Events Prior to Arbitration
{¶13} In February 2021, an employee of the township was placed on FMLA
leave after submitting a doctor’s note to the township that provided that the employee
could not lift, push, or pull anything over ten pounds, and must be allowed to take
certain breaks due to an issue with his lumbar spine. The employee and the township
stayed in communication over the next couple of months concerning the employee’s
treatment and pending return-to-work date. The township informed the employee
that the restrictions in place were "severely limiting to the requirements” of his
position and emphasized the importance of a date certain that the employee could
return to work with no restrictions. The employee submitted additional physician
certifications to the township—one in March and one in April—and continued
communication with the township regarding the status of his treatment. The
employee’s restrictions remained in place, but he was cleared by his physician for light
duty as of April 7, 2021.
{¶14} On April 28, 2021, the township sent a letter to the employee informing
him that his FMLA leave was set to end on May 5, 2021, and, because the restrictions
in place did not allow him to perform the essential functions of his position, he would
need to provide a physician certification releasing him for full duty as of May 13, 2021.
The letter stated, “Failure to be medically cleared and appear for full-duty work on
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OHIO FIRST DISTRICT COURT OF APPEALS
May 13, 2021, will be considered an absence without approved leave for which you may
be subjected to discipline up to and including termination.” The letter further
provided the following options to the employee: (1) contact human resources (“HR”)
immediately about returning to work, (2) request extended leave without pay pursuant
to the township’s discretion under the CBA and provide an updated physician
certification statement within seven days, and then be notified of whether the unpaid
leave was approved, or (3) resign due to the inability to return to work. The letter
finally said, “If I do not hear from you by May 5, 2021, the Township will assume you
have abandoned your position and accordingly, your employment with Colerain
Township will be terminated.”
{¶15} Thereafter, the employee submitted additional documentation from his
physician and continued communication with the township about his restrictions and
treatment. However, the employee did not ultimately submit a physician certification
clearing him for full duty prior to May 13, 2021.
{¶16} On May 14, 2021, the township sent another letter to the employee
explaining that his leave expired on May 5, 2021, he failed to provide the
documentation requested in the April 28, 2021 letter or provide a reasonable date of
return, and failed to appear for work on May 13, 2021. The letter concludes by stating:
You have failed to provide any certification from your physician
that you can move forward with completing the essential functions of
your position and you failed to appear for work on your return. Thus,
the township has deemed that you have abandoned your position of
Township Maintenance Worker and will be moving forward
accordingly.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} On May 19, 2021, the union filed a grievance on the employee’s behalf,
stating a disagreement with the township’s conclusion that the employee was not
entitled to due process under Article 13, section 4, of the CBA. The grievance asserted
that the township was in violation of Article 13, section 4, of the CBA and requested
the following relief: “That a disciplinary hearing will be scheduled to give the employee
an opportunity to offer an explanation of the alleged misconduct.”
{¶18} On May 21, 2021, the director of the Colerain Township Public Services
sent a letter to the union acknowledging receipt of the grievance. However, the letter
asserted that the employee was not “terminated or disciplined in any regard” under
Article 13, section 4, and was thus not entitled to a hearing under that section. The
letter said, “Rather, [the employee] abandoned his position as the Township
Maintenance Worker in the Public Services Department when he failed to appear for
work on May 13, 2021.”
{¶19} The parties agreed to skip step two of the grievance procedure and the
union requested a hearing under step three of the grievance procedure. However, after
the hearing was scheduled, counsel for the township informed the union that the
township would not be moving forward with the grievance hearing because the
employee abandoned his position, and was not terminated or disciplined, and
therefore was not entitled to a hearing under Article 13, section 4 of the CBA.
{¶20} In response, the union requested to move forward to step four of the
grievance procedure, which was mediation. However, counsel for the township
responded that the township would not be participating in any mediation as the
employee was never disciplined and there was “no interpretation, application, or any
breach of the CBA at issue in this matter.” The communication then informed the
union that the township considered the matter closed.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. The Arbitration Proceedings
{¶21} The matter proceeded to arbitration. At the arbitration hearing, the
township presented the testimony of the township’s administrator, assistant
administrator, public services director, and HR specialist. The union presented the
testimony of the employee. The township argued that the employee failed to return to
work from a leave of absence, which resulted in termination under the township policy
1.20 and abandonment of his position. On the other hand, the union argued that the
township could not point to any definition of abandonment in the CBA or any
township policy, and asserted that the township refused to give the employee the
contractually-obligated predisciplinary hearing prior to termination, violated the
employee’s due-process rights as a classified employee, refused to hold contractually-
obligated grievance hearings past step 1 which resulted in untimely responses
thereafter, and terminated the employee without just and proper cause. More
specifically, the union argued that the township’s violation of the grievance procedure
alone was an “insurmountable procedural violation,” which results in a settlement of
the relief requested under Article 7, section 6 of the CBA.
{¶22} The arbitrator ultimately found that the township stopped the grievance
procedure midprocess without the union’s agreement and therefore, based on the
unequivocal language of the CBA, the township’s failure to follow the grievance
procedure was deemed a “settlement of the relief requested.” Accordingly, the
arbitrator sustained the grievance and ordered that the township reinstate the
employee and “make him whole.”
C. Proceedings under R.C. 2711.09 and 2711.10
{¶23} On November 13, 2022, the township initiated the underlying action in
the trial court by filing a “Motion to Vacate Arbitration Award.” The motion requested
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OHIO FIRST DISTRICT COURT OF APPEALS
that the trial court enter an order vacating the arbitration award, asserting that the
arbitrator exceeded her powers in violation of R.C. 2711.10, and “deviated from the
essence of the [CBA] between the parties.”
{¶24} On December 14, 2022, the union filed a “Motion to Dismiss and Motion
to Confirm.” The motion first asserted that the township’s motion to vacate should be
dismissed for failure to state a claim as the township “failed to state any facts under
which [the] court would have the authority to vacate the instant arbitration award
because the arbitration award in this case drew its essence from the CBA, and,
therefore, the Arbitrator did not exceed her authority.” The motion additionally
requested that the trial court confirm the arbitration award, pursuant to R.C. 2711.09,
as the arbitrator did not exceed her authority under the CBA and the township “has
not proved any cause to vacate the arbitration award.”
{¶25} On June 1, 2023, the trial court entered a decision finding that the
arbitration award did not draw its essence from the CBA where the awards of
reinstatement and being made whole “clearly conflict with the express terms of the
CBA negotiated by the parties,” as the relief requested in the grievance was only a pre-
disciplinary hearing. Further, the trial court found that the employee was not entitled
to reinstatement under the FMLA and the CBA as he was unable to perform an
essential work function of his position and was not medically cleared to return to work.
{¶26} On June 15, 2023, the trial court entered an “Entry Vacating Arbitrator’s
Award,” which incorporated its prior decision and expressly vacated the arbitrator’s
decision in its entirety. The union timely appealed from this judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Law and Analysis
A. Governing Law and Standard of Review
{¶27} Under R.C. 2711.10(D), the court of common pleas must vacate an
arbitration award if the arbitrator exceeded her powers, or “so imperfectly executed
them that a mutual, final, and definite award upon the subject matter submitted was
not made.”
{¶28} “An arbitrator’s authority is limited to that granted to the arbitrator
under the terms of the parties’ agreement, and an arbitrator exceeds that authority
where her award does not draw its essence from the agreement.” Bd. of Trustees of
Anderson Twp. v. Anderson Twp. Professional Firefighters Assn., IAAF Local 3111,
1st Dist. Hamilton No. C-180371, 2019-Ohio-2302, ¶ 10, citing H.C. Nutting Co. v.
Midland Atlantic Dev. Co., LLC, 2013-Ohio-5511, 5 N.E.3d 125, ¶ 13 (1st Dist.).
{¶29} “An award draws its essence from the parties’ agreement where ‘there is
a rational nexus between the agreement and the award, and where the award is not
arbitrary, capricious, or unlawful.’ ” Id. at ¶ 11, quoting Princeton City School Dist.
Bd. of Edn. v. Princeton Assn. of Classroom Educators, 1st Dist. Hamilton No. C-
120469, 2013-Ohio-667, ¶ 12. “But an arbitrator’s award departs from the essence of
the agreement where ‘(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.’ ” Id., quoting Ohio Office of Collective Bargaining v.
Ohio Civ. Serv. Emps. Assn., Local 11, AFSME, AFL-CIO, 59 Ohio St.3d 177, 572
N.E.2d 71 (1991), syllabus.
{¶30} “Deference must be given to the arbitrator’s decision.” Id. at ¶ 12.
“ ‘[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.’ ” Id., quoting Portage Cty. Bd. of
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OHIO FIRST DISTRICT COURT OF APPEALS
Dev. Disabilities v. Portage Cty. Educators’ Assn. for Dev. Disabilities, 2017-Ohio-
888, 86 N.E.3d 580, ¶ 11 (11th Dist.) (“Portage Cty. I”). “ ‘ 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.” ’ ” Id., quoting Portage Cty. I at ¶ 11.
{¶31} In other words, “the statutory authority of courts to vacate an
arbitrator’s award is extremely limited.” Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d
447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 5, citing Assn. of Cleveland Fire Fighters,
Local 93 of the Internatl. Assn. of Fire Fighters v. City of Cleveland, 99 Ohio St.3d
476, 2003-Ohio-4278, 793 N.E.2d484, ¶ 13. “ ‘Were the arbitrator’s decision to be
subject to reversal because a reviewing court disagreed with findings of fact or with an
interpretation of the contract, arbitration would become only an added proceeding
and expense prior to final judicial determination. This would defeat the bargain made
by the parties * * *.’ ” Id., citing Goodyear Tire & Rubber Co. v. Local Union No. 200,
United Rubber, Cork, Linoleum & Plastic Workers of Am., 42 Ohio St.2d 516, 520,
330 N.E.2d 703 (1975).
{¶32} “So long as arbitrators act within the scope of the contract, they have
great latitude in issuing a decision.” Id. at ¶ 6. “An arbitrator’s improper
determination of the facts or misinterpretation of the contract does not provide a basis
for reversal of an award by a reviewing court, because ‘[i]t is not enough * * * to show
that the [arbitrator] committed an error—or even a serious error.’ ” Id., quoting Stolt-
Nielsen, S.A. v. AnimalFeeds Internatl. Corp., 559 U.S. 662, 671, 130 S.Ct. 1758, 176
L.Ed.2d 605 (2010). “Moreover, [the Ohio Supreme Court] has held that arbitrators
have ‘broad authority to fashion a remedy, even if the remedy contemplated is not
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OHIO FIRST DISTRICT COURT OF APPEALS
explicitly mentioned’ in the applicable contract.” Id., citing Queen City Lodge No. 69,
Fraternal Order of Police, Hamilton Cty., Ohio, Inc. v. Cincinnati, 63 Ohio St.3d 403,
407, 588 N.E.2d 802 (1992); accord Ohio Patrolman’s Benevolent Assn. v. Cty. of
Findlay, 149 Ohio St.3d 718, 2017-Ohio-2804, 77 N.E.3d 969, ¶ 17. “Notwithstanding
these principles, under R.C. 2711.10(D) arbitrators can exceed their powers by going
beyond the authority provided by the bargained-for agreement or by going beyond
their contractual authority to craft a remedy under the law.” Cedar Fair at ¶ 7, citing
Oxford Health Plans, L.L.C. v. Sutter, 569 U.S. 564, 133 S.Ct. 2064, 186 L.Ed.2d 113
(2013).
{¶33} This court conducts a de novo review of the trial court’s decision to
determine whether R.C. 2711.10(D) is applicable to support vacating the arbitrator’s
award. Bd. of Trustees of Anderson Twp., 1st Dist. Hamilton No. C-180371, 2019-
Ohio-2302, at ¶ 13, citing Portage Cty. Bd. of Dev. Disabilities v. Portage Cty.
Educators’ Assn. for Dev. Disabilities, 153 Ohio St.3d 219, 2018-Ohio-1590, 103
N.E.3d 804 (“Portage Cty. II”), syllabus. However, in doing so, this court must accept
any findings of fact by the trial court that are not clearly erroneous. Id., citing Portage
Cty. II at syllabus.
B. The Arbitrator Did Not Exceed Her Authority under the CBA
{¶34} The union argues that the trial court erred in vacating the arbitrator’s
award under R.C. 2711.10(D) as the arbitrator followed the language of the CBA in
granting the grievance at issue and determining a remedy.
{¶35} We first note that, based on the arbitrator’s finding that the grievance
was deemed settled under the express terms of the CBA, a merits determination of
whether the employee was actually disciplined and therefore entitled to a pre-
disciplinary hearing is not at issue. See generally Amalgamated Transit Union, Local
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OHIO FIRST DISTRICT COURT OF APPEALS
627 v. Southwest Ohio Reg. Transit Auth., 190 Ohio App.3d 679, 2010-Ohio-5494,
943 N.E.2d 1075 (1st Dist.). No party challenges the arbitrator’s finding that the
township failed to timely follow the grievance procedure, nor challenges the
arbitrator’s ability to make this determination under the CBA. Further, nothing in the
CBA expressly prevents the arbitrator from making this determination, nor does the
CBA provide that the settlement contemplated under the grievance process is
nevertheless dependent upon the merits of the grievance.
{¶36} Article 7, section 6, of the CBA provides, “If the Employer fails to answer
a grievance in a timely manner, it shall be deemed a settlement on the relief
requested.” The arbitrator found that the township’s refusal to correctly follow the
steps of the grievance procedure resulted in the grievance being deemed settled under
this provision. The CBA expressly gives the arbitrator jurisdiction over disputes
“arising out of grievances as to the interpretation, violations and the applications of
the provisions of the CBA.” There is no language beyond this that then limits the
arbitrator’s authority when ruling on such disputes. Therefore, whether the employee
was actually disciplined and thus entitled to a predisciplinary hearing is not at issue
here as nothing shows that the arbitrator went beyond her authority when making the
determination that the matter was settled as to the relief requested in the grievance
upon the township’s failure to timely comply with the requirements of the grievance
procedure.
{¶37} Instead, the issue here is whether the arbitrator went beyond her
authority to award “the relief requested” by ordering that the employee be reinstated
and made whole. The union argues that the CBA does not identify a source of the
“relief requested,” and therefore does not limit the request to that which is requested
in the grievance form itself, so the arbitrator was within her authority to grant the relief
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OHIO FIRST DISTRICT COURT OF APPEALS
requested at the arbitration hearing. The township argues that the relief requested at
the time of the township’s failure to hold the step three hearing was the relief requested
in the written grievance, and the express language of the CBA under Article 7, section
6 entitles the grievant to only the relief requested at the time of the employer’s failure
to timely answer a grievance.
{¶38} A review of Article 7 of the CBA in its entirety reveals that the grant of
relief under Article 7, section 6 is clearly limited to the relief requested in a written
grievance. However, such a resolution is not determinative of the issue before us. We
must still determine the scope of the arbitrator’s award to determine whether the
arbitrator acted within her authority under the CBA when making such an award.
{¶39} In Ohio Council 8, Am. Fedn. of State, Cty., & Mun. Emps., AFL-CIO v.
Cent. State Univ., 16 Ohio App.3d 84, 474 N.E.2d 647 (2d Dist.1984), a grievance was
filed against a university asserting that firefighters were required to work for a
continuous 24-hour period but be paid for only 16 continuous hours of work. Id. at
87. The issue ultimately presented at the arbitration hearing was whether the
grievance was timely processed under the labor agreement and, if not, what was the
appropriate remedy for a default. Id. at 88. The arbitrator ultimately found that the
grievance must be resolved in favor of the union under the labor agreement based on
the university’s failure to properly answer the grievance under the grievance
procedure. Id. at 85, 88. The arbitrator’s award was a general award that said the
grievance was sustained and “decided in favor of the union on a procedural basis.” Id.
at 88.
{¶40} The union filed an action in the trial court to confirm the arbitrator’s
award. Id. at 85. The trial court found that the award was too vague and uncertain
and remanded the matter to the arbitrator. Id. at 85, 87. The union appealed, and the
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OHIO FIRST DISTRICT COURT OF APPEALS
question presented was whether, under R.C. 2711.10(D), the decision of the arbitrator
was so imperfect that it did not make a final and definite award upon the issue
submitted. Id. The court of appeals said, “it is vital under R.C. 2711.10(D) to precisely
ascertain the issue submitted to the arbitrator to determine if he exceeded his power,
or, in the alternative, if he decided the issue.” Id. The court looked at the language
used by the union in the original grievance and the record to ascertain the issue
submitted to the arbitrator. Id. at 87-88. The court concluded that liability on the
subject matter, and not the extent of liability, was the only issue submitted to the
arbitrator and said, “Since the extent of liability was not submitted for determination,
the extent of liability was beyond the power delegated to the arbitrator.” Id. at 88.
{¶41} Accordingly, the court rejected the argument that the general award by
the arbitrator included any award of overtime pay for certain hours and said, “We find
that the grievance citation did not incorporate an issue of overtime and that resolution
of such an issue would have been beyond the power conferred upon the arbitrator by
the method and language of submission used in this case under the labor agreement.”
Cent. State Univ., 16 Ohio App.3d at 88-89, 474 N.E.2d 647. The court concluded that
the “brief but general finding for the union under the circumstances is as definite and
as broad as the language of the grievance citation.” Id. at 89. The court said, “The fire
fighters [sic] sought pay for twenty-four hours rather than sixteen of their duty day.
The arbitrator generally made such an award.” Id.
{¶42} Here, the written grievance submitted to the arbitrator asserted that the
township violated Article 13, section 4 of the CBA and requested that a disciplinary
hearing be scheduled to provide the employee “an opportunity to offer an explanation
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OHIO FIRST DISTRICT COURT OF APPEALS
of the alleged misconduct.”1 Article 13, section 4 of the CBA states, “Whenever the
Employer determines that an employee will be subject to discipline of * * *
termination, a disciplinary hearing will be scheduled to give an employee the
opportunity to offer an explanation of the alleged misconduct.” (Emphasis added.)
Thus, a hearing under this section is a predisciplinary hearing, i.e., a hearing prior to
termination. Because the relief requested undoubtedly comprises such a hearing, we
easily conclude that reinstatement is necessary to offer the employee such a hearing.
{¶43} The question therefore becomes whether the arbitrator’s further award
of “make him whole” goes beyond the relief requested. As this award is in the realm
of a broad or general award in favor of the employee, we find Cent. State Univ. to be
persuasive in that we must precisely ascertain the issue submitted to the arbitrator to
determine the scope of the award.
{¶44} The issue submitted in the grievance was whether the employee was
entitled to a hearing under Article 13, section 4 of the CBA. An employee is entitled to
a hearing under this section if the employee is going to be disciplined. At the start of
the proceedings, the township argued that the employee was not entitled to a
disciplinary hearing because the employee’s termination was a result of the employee
abandoning his position by failing to return to work after a leave of absence and not
discipline. The union argued that the employee’s termination was discipline. The
union further argued that the matter was deemed settled under the CBA because the
township failed to timely follow the grievance procedure. The testimony and evidence
presented was limited to information about the employee’s position and status with
1 We note that the record before the trial court indicates that the union attempted to amend its
grievance via an email to counsel for the township prior to the arbitration hearing. However, there
is no indication in the record that such amended grievance was ever actually submitted to the
arbitrator. Therefore, this decision utilizes only the grievance that was utilized at the arbitration
proceeding.
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OHIO FIRST DISTRICT COURT OF APPEALS
the township, what occurred from the time the employee was placed on leave until he
was terminated, and what occurred during the grievance process. Accordingly, the
arbitrator found in her decision that the issue before her was, “Did [employee]
abandon his job or was his employment terminated by the employer as discipline?”
Thus, the issue before the arbitrator was limited to whether the employee was
disciplined for the purposes of Article 13, section 4 of the CBA and therefore entitled
to a disciplinary hearing prior to termination.
{¶45} Because, on the record before us, the issue submitted to the arbitrator
was limited to the question of whether the employee was disciplined and therefore
entitled to a disciplinary hearing under Article 13, section 4 of the CBA, the arbitrator’s
award of “make him whole” cannot be read as going any further than placing the
employee in the same position he was in at the time of termination in order to offer
the employee a disciplinary hearing prior to termination as contemplated by the CBA.
See generally City of Ashtabula v. FOP, 11th Dist. Ashtabula No. 2020-A-0027, 2020-
Ohio-6677, ¶ 10, citing Madison Local School Dist. Bd. of Edn. v. OAPSE/AFSCME
Local 4, AFL-CIO, 11th Dist. Lake No. 2008-L-086, 2009-Ohio-1315, ¶ 12 (“ ‘ “[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.’ ”).
{¶46} The CBA expressly gives the arbitrator broad jurisdiction over disputes
“arising out of grievances as to the interpretation, violations and the applications of
the provisions of the CBA.” We see nothing in the CBA that prevents the arbitrator
from awarding any remedy inherent within the relief requested in order to provide the
employee with a full and adequate remedy under Article 7, section 6 of the CBA.
Reinstating the employee and returning him to the position that he was in at the time
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OHIO FIRST DISTRICT COURT OF APPEALS
of termination are remedies inherent within the requested relief of being provided a
disciplinary hearing prior to termination. Therefore, we hold that there is a rational
nexus between the arbitrator’s award and the CBA, and the award therefore draws its
essence from the CBA. Accordingly, we hold that the trial court erred in vacating the
arbitration award under R.C. 2711.10(D) as the arbitrator did not exceed her powers
under the CBA.
C. The Trial Court Exceeded its Authority under R.C. 2711.10
{¶47} The union further argues that the trial court erred when it determined
that the arbitration award should also be vacated because the employee did not have
the right to restoration under the FMLA or the CBA when he could not perform the
essential work functions for his position.
{¶48} “When considering a collective bargaining agreement, a court reviewing
an arbitration award under R.C. 2711.10(D) is limited to determining whether the
award draws its essence from the agreement and whether the award is unlawful,
arbitrary, or capricious.” City of Cleveland v. Communication Workers of Am., Local
4340, 8th Dist. Cuyahoga No. 111050, 2022-Ohio-2498, ¶ 23, citing Assn. of Cleveland
Fire Fighters, IAFF Local 93 v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278, 793
N.E.2d 484. “An error of fact or law by an arbitrator does not provide a basis for
vacating an arbitration award under R.C. 2711.10.” Id. at ¶ 24, citing N. Ohio Sewer
Contrs., Inc. v. Bradley Dev. Co., 159 Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d
650, ¶ 14 (8th Dist.).
{¶49} As mentioned above, the arbitrator never made any merits
determination as to whether the employee was entitled to reinstatement under the
FMLA or the CBA as she deemed the matter settled under the Article 7, section 6 of
the CBA based on the township’s failure to follow the grievance procedure. Therefore,
18
OHIO FIRST DISTRICT COURT OF APPEALS
the merit of the grievance was not at issue as the matter was decided on procedural
grounds. See Amalgamated, 190 Ohio App.3d 679, 2010-Ohio-5494, 943 N.E.2d
1075.
{¶50} When reviewing an arbitrator’s award, “ ‘the court must distinguish
between an arbitrator’s act in excess of his [or her] powers and an error merely in the
way the arbitrator executed his [or her] powers.’ ” Orange Twp. v. IAFF Local 3816,
5th Dist. Delaware No. 21 CAE 070033, 2022-Ohio-2757, ¶ 14, quoting City of Piqua
v. FOP, Ohio Labor Council, 185 Ohio App.3d 496, 2009-Ohio-6591, 924 N.E.2d 876,
¶ 18 (2d Dist.). “ ‘The former is grounds to vacate; the latter is not.’ ” Id., quoting City
of Piqua at ¶ 18.
{¶51} As already established, there is nothing in the CBA which prevented the
arbitrator from deciding the grievance on procedural grounds. Accordingly, any
disagreement with the arbitrator’s resolution of the grievance would merely go
towards the arbitrator’s exercise of her power and would not be grounds for vacating
the arbitrator’s award under R.C. 2711.10(D).
{¶52} Therefore, we agree with the union that it was error for the trial court to
further determine that the arbitrator’s award should be vacated because the employee
was not entitled to reinstatement under the FMLA or the CBA. Such a determination
went beyond the scope of the trial court’s authority to vacate the arbitrator’s award
under R.C. 2711.10(D).
IV. Conclusion
{¶53} For all the foregoing reasons, we sustain the assignment of error,
reverse the judgment of the trial court, and remand the cause for the trial court to
reinstate and rule upon the union’s motion to confirm the arbitrator’s award under
R.C. 2711.09 in a manner consistent with this opinion and the law.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment reversed and cause remanded.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
20
Colerain Twp. v. AFSCME Ohio Council 8, AFL-CIO, Local 3553
Combined Opinion