[Cite as Belmont Cty. Sheriff v. Fraternal Order of Police, Ohio Labor Council, Inc., 104 Ohio
St.3d 568, 2004-Ohio-7106.]




  BELMONT COUNTY SHERIFF, APPELLEE, v. FRATERNAL ORDER OF POLICE,
                      OHIO LABOR COUNCIL, INC., APPELLANT.
[Cite as Belmont Cty. Sheriff v. Fraternal Order of Police, Ohio Labor Council,
                     Inc., 104 Ohio St.3d 568, 2004-Ohio-7106.]
Collective bargaining—Arbitration—Issue of arbitrability to be determined by
        arbitrator if agreement unmistakenly gives arbitrator that authority.
   (No. 2003-1947 — Submitted September 14, 2004 — Decided December 30,
                                           2004.)
APPEAL from the Court of Appeals for Belmont County, No. 03 BE 8, 2003-Ohio-
                                            5154.
                                  __________________
                               SYLLABUS OF THE COURT
Where the parties to a collective-bargaining agreement have clearly and
        unmistakably vested the arbitrator with the authority to decide the issue of
        arbitrability, the question of whether a matter is arbitrable is to be decided
        by the arbitrator.
                                  __________________
        O’DONNELL, J.
        {¶ 1} The issue presented for our review in this appeal concerns the
scope of the authority of an arbitrator to determine whether or not a grievance is
arbitrable. After careful review of the facts as contained in the record presented
to us and a review of applicable law, we have concluded that where the parties to
a collective-bargaining agreement have clearly and unmistakably vested the
arbitrator with the authority to decide the issue of arbitrability, the question of
whether a matter is arbitrable is to be decided by the arbitrator.
                              SUPREME COURT OF OHIO




          {¶ 2} The facts of this case are generally not disputed and arise from the
provisions of a collective-bargaining agreement that became effective November
11, 1999, between the Fraternal Order of Police and the Sheriff of Belmont
County. Pursuant to that agreement, members of the Fraternal Order of Police
filed a grievance alleging that the sheriff had failed to make required contributions
to the Public Employees Retirement System on behalf of employees hired before
April 1999 and asking that the sheriff make contributions for all service from their
original hire dates.
          {¶ 3} Following denial of that grievance, the Fraternal Order of Police
filed for arbitration, which the sheriff opposed with a motion to dismiss,
contending that the terms of the collective-bargaining agreement precluded the
arbitrator from entertaining the matter. According to the arbitrator’s opinion, the
sheriff relied on the following provision of the agreement:
          {¶ 4} “The arbitrator shall be without authority to recommend any right
or relief on an alleged grievance occurring at any time other than the contract
period in which such right originated or to make any award based on rights arising
under any previous Agreement.”
          {¶ 5} The Fraternal Order of Police argued that its claim involved a
continuing violation affecting long-term retirement benefits for those involved.
          {¶ 6} The merits of that conflict are not before us in this appeal because
the arbitrator held any ruling on the merits of that controversy in abeyance
pending her consideration of the issue of arbitrability as stipulated by the parties:
“Is the grievance arbitrable?”
          {¶ 7} The arbitrator made an “interim award,” deciding only that the
grievance could be arbitrated and that the sheriff’s motion to dismiss should be
denied.




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                                 January Term, 2004




        {¶ 8} The common pleas court granted the sheriff’s application to vacate
the arbitrator’s award, and upon review, the court of appeals affirmed that
determination.
        {¶ 9} We granted discretionary review and concern ourselves with the
authority of the arbitrator to decide the issue of arbitrability in accordance with
the terms contained in a collective-bargaining agreement. The Fraternal Order of
Police argues that the common pleas court improperly vacated the arbitrator’s
determination of arbitrability, since the collective-bargaining agreement granted
the arbitrator the right to decide that issue.
        {¶ 10} In First Options of Chicago, Inc., v. Kaplan (1995), 514 U.S. 938,
943,115 S.Ct. 1920, 131 L.Ed.2d 985, the court stated:
        {¶ 11} “Just as the arbitrability of the merits of a dispute depends upon
whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v.
Shearson Lehman Hutton, Inc., ante [(1995), 514 U.S. 52] at 57 [115 S.Ct. 1212,
131 L.Ed.2d 76] ; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 626 [105 S.Ct. 3346, 87 L.Ed.2d 444] (1985), so the question ‘who has
the primary power to decide arbitrability’ turns upon what the parties agreed
about that matter. Did the parties agree to submit the arbitrability question itself
to arbitration? If so, then the court’s standard for reviewing the arbitrator’s
decision about that matter should not differ from the standard courts apply when
they review any other matter that the parties have agreed to arbitrate. See AT & T
Technologies, Inc. v. Communications Workers [of Am.], 475 U.S. 643, 649 [106
S.Ct. 1415, 89 L.Ed.2d 648] (1986) (parties may agree to arbitrate arbitrability)*
* *.” (Emphasis sic.)
        {¶ 12} Further, in Council of Smaller Enterprises v. Gates, McDonald &
Co. (1998), 80 Ohio St.3d 661, 687 N.E.2d 1352, we cited AT & T Technologies,
Inc., v. Communications Workers of Am. (1986), 475 U.S. 643, 106 S.Ct. 1415, 89
L.Ed.2d 648, in which the United States Supreme Court summarized four




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principles delineating a court’s role in reviewing arbitration. Of particular interest
is principle two:
        {¶ 13} “The second principle is that ‘the question of arbitrability —
whether a[n] * * * agreement creates a duty for the parties to arbitrate the
particular grievance — is undeniably an issue for judicial determination. Unless
the parties clearly and unmistakably provide otherwise, the question of whether
the parties agreed to arbitrate is to be decided by the court, not the arbitrator.’
Id. [AT&T Technologies, Inc. v. Communications Workers of Am. (1986)], 475
U.S. [643] at 649, 106 S.Ct. [1415] at 1418, 89 L.Ed.2d [648] at 655. ” (Emphasis
added.) Council of Smaller Enterprises, 80 Ohio St.3d at 666, 687 N.E.2d 1352.
        {¶ 14} Accordingly, we next examine the provisions of the collective-
bargaining agreement to determine the extent of agreement or lack thereof on the
issue of arbitrability. Article 7, Section 3, states:
        {¶ 15} “The question of arbitrability of a grievance may be raised by
either party before the arbitration hearing of the grievance, on the grounds that the
matter is non-arbitrable or beyond the arbitrator’s jurisdiction. The first question
to be placed before the arbitrator will be whether or not the alleged grievance is
arbitrable. If the arbitrator determines the grievance is within the purview of
arbitrability, the alleged grievance will be heard on its merits before the same
arbitrator.” (Emphasis added.)
        {¶ 16} In this instance, then, the collective-bargaining agreement clearly
and unmistakably places the question of arbitrability before the arbitrator for
determination. Hence, there can be no dispute with regard to what authority the
parties have granted the arbitrator.
        {¶ 17} Finally, we note that in Fraternal Order of Police, Ohio Labor
Council, Inc. v. Umpleby (Feb. 12, 1996), 5th Dist. No. 1995 CA 00196, 1996
WL 74031, the court examined an identical collective-bargaining provision and
concluded that the trial court erred by vacating the arbitrator’s determination of




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                                January Term, 2004




arbitrability because the collective-bargaining agreement granted the arbitrator the
power to make that decision.
       {¶ 18} In this case, we have concluded that Article 7 of the collective-
bargaining agreement empowers the arbitrator to determine the issue of
arbitrability because the parties have clearly and unmistakably provided for the
arbitrator to hear that matter.     Where the parties to a collective-bargaining
agreement have clearly and unmistakably vested the arbitrator with the authority
to decide the issue of arbitrability, the question of whether a matter is arbitrable is
to be decided by the arbitrator. Therefore, the judgment of the court of appeals is
hereby reversed, and the matter is remanded for further proceedings in accordance
with this decision.
                                                                   Judgment reversed
                                                                and cause remanded.
       MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON and
O’CONNOR, JJ., concur.
                               __________________
       Paul L. Cox, Douglas J. Behringer and Gwen Callender, for appellant.
                               __________________




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