Colerain Twp. v. AFSCME Ohio Council 8, AFL-CIO, Local 3553

[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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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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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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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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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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{¶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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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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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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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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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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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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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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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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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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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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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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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,

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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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Judgment reversed and cause remanded.

CROUSE and WINKLER, JJ., concur.

Please note:

The court has recorded its own entry this date.

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