        [Cite as Mt. Healthy v. Fraternal Order of Police, Ohio Labor Council, Inc., 2017-Ohio-9117.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




CITY OF MT. HEALTHY,                             :          APPEAL NO. C-170072
                                                            TRIAL NO. A-1605180
       Plaintiff-Appellee,                       :
                                                                 O P I N I O N.
 vs.                                             :

                                                 :
FRATERNAL ORDER OF POLICE,
OHIO LABOR COUNCIL, INC.,                        :
    Defendant-Appellant.                         :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 20, 2017



Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, Scott A.
Sollmann and Jonathan T. Deters, for Plaintiff-Appellee,

Tonya M. Sapp and Gwen Callender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}    The Fraternal Order of Police, Ohio Labor Council, Inc., (“FOP”) has

appealed from the trial court’s entry vacating an arbitration award that had been

entered in its favor against the city of Mt. Healthy.

       {¶2}   On February 16, 2014, Mt. Healthy hired Antwan Sparks as a part-time

police officer. Pursuant to the collective bargaining agreement (“CBA”) entered into

between the FOP on behalf of part-time patrolmen and Mt. Healthy, all newly hired

part-time employees were subject to a one-year probationary period.

       {¶3}   On June 30, 2014, Sparks was injured in the line of duty and was

assigned to light duty.    He returned to duty on August 2, 2014, but was again

assigned to light duty on September 22, 2014, where he remained until April 22,

2015. Because of the amount of time that Sparks had spent on light duty, Mt.

Healthy Police Chief Vincent Demasi and City Manager Bill Kocher determined that

they could not adequately evaluate Sparks’s performance and that his probationary

period needed to be extended. On January 13, 2015, Kocher spoke with the FOP staff

representative regarding extension of Sparks’s probationary period.      The union

representative agreed to the extension. That same day, Demasi delivered a letter to

Sparks notifying him about the extension of the probationary period. Because he had

not returned to duty, Mt. Healthy did not give him an end date to his probationary

period.

       {¶4}   Approximately four months later, on May 14, 2015, Demasi gave

Sparks a second letter stating that his probationary period was extended until

December 4, 2015. After receiving this letter, Sparks filed a grievance against Mt.

Healthy, which proceeded to arbitration. On behalf of Sparks, the FOP argued that




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                         OHIO FIRST DISTRICT COURT OF APPEALS



the extension of Sparks’s probationary period violated the terms of the CBA. The

arbitrator did not reach the merits of this argument, but rather sustained Sparks’s

grievance after finding that the FOP and Mt. Healthy could not extend the

probationary period without obtaining consent from Sparks. After concluding that

Sparks had successfully completed his probationary period—one year without any

extension—the arbitrator ordered that Sparks be returned to duty as a part-time

officer.

           {¶5}   Mt. Healthy filed a motion to vacate the arbitrator’s award, arguing

that the arbitrator had exceeded his powers and had deviated from the essence of the

CBA. The FOP filed a memorandum in opposition and requested that the award be

confirmed. The trial court granted Mt. Healthy’s motion to vacate.1

           {¶6}   The FOP has appealed the trial court’s entry, arguing in four

assignments of error that the trial court erred by: (1) determining that the arbitrator

exceeded his powers; (2) determining that the arbitrator imperfectly performed his

duties; (3) misapplying the test for overturning an arbitrator’s award; and (4) failing

to confirm the arbitration award. Because these arguments are related, we address

them together.

           {¶7}   Arbitrators have great latitude in issuing a decision, as long as they act

within the scope of the contract. Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447,

2014-Ohio-3943, 19 N.E.3d 893, ¶ 6. Pursuant to R.C. 2711.10, a trial court may



1 Mt. Healthy had argued to the arbitrator that Sparks’s grievance was not timely filed. Relying on
a continuing-violation theory, the arbitrator concluded that the grievance had been timely filed,
and he then proceeded to address the issue concerning the extension of Sparks’s probation. In its
motion to vacate the arbitrator’s award, Mt. Healthy challenged both the arbitrator’s findings that
the grievance had been timely filed and that Sparks’s consent was needed before the probationary
period could be extended. While the trial court granted the motion to vacate, it did not specify on
which ground its decision was based. In this appeal, we find that the FOP’s assignments of error
solely challenge the extension of Sparks’s probationary period, and not the timeliness of the
grievance.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



vacate an arbitrator’s award only under very limited circumstances, including when

the arbitrator has exceeded her or his power. R.C. 2711.10(D). Arbitrators exceed

their power when they go beyond their contractual authority to craft a remedy under

the law. Falfas at ¶ 7. When an award “draws its essence” from the parties’ contract,

an arbitrator has acted within her or his authority to craft an award. Id. But an

arbitrator’s award departs from the essence of the contract when “(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, AFSCME, AFL-CIO, 59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus.

       {¶8}   Following our review of the record, we hold that the arbitrator’s award,

based on his finding that the FOP representative and Mt. Healthy could not extend

Sparks’s probationary period without his personal consent, did not draw its essence

from the terms of the CBA. Section 13.7 of the CBA provides that the arbitrator could

not make any decision “[c]ontrary to, or inconsistent with, or modifying or varying in

any way the terms of this Agreement or applicable laws.” Section 1.1 of the CBA

provides that the purpose of the agreement is for Mt. Healthy and the FOP, on behalf

of the part-time patrolmen, to set forth “the full and complete understandings and

agreements between the parties governing wages, hours, terms and conditions of

employment for those employees included in the bargaining unit.” And section 3.1 of

the CBA provides that “[t]he Employer recognizes the Fraternal Order of Police, Ohio

Labor Council, Inc. as the sole and exclusive representative for all part-time

employees in the bargaining unit.”




                                             4
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    The arbitrator’s conclusion that the probationary period could not be

extended without Sparks’s personal consent conflicted with both applicable law and

sections 1.1 and 3.1 of the CBA. Under the terms of the CBA, the FOP had sole and

exclusive authority to represent all part-time patrolmen in matters concerning the

terms and conditions of employment. This included the authority to agree to an

extension of the probationary period. The FOP was granted the authority to act on

behalf of its members.

       {¶10} Moreover, the arbitrator’s decision was contrary to law. Under agency

principles, the union representative, as the “exclusive representative for all part-time

employees,” acted as Sparks’s agent and had the authority to agree to an extension of

the probationary period without Sparks’s personal consent. See Damon’s Missouri,

Inc. v. Davis, 63 Ohio St.3d 605, 608, 590 N.E.2d 254 (1992) (“an agent, acting

within the scope of his actual authority, expressly or impliedly conferred, can bind

the principal”).

       {¶11} Because the arbitrator exceeded his power by fashioning an award that

did not draw its essence from the CBA, the trial court did not err in granting Mt.

Healthy’s motion to vacate the arbitrator’s award or in failing to grant the FOP’s

motion to confirm. The FOP’s assignments of error are overruled, and the judgment

of the trial court is affirmed.

                                                                   Judgment affirmed.
MILLER, J., concurs separately.
ZAYAS, P.J., concurs in judgment only.

MILLER, J., concurring separately.

       {¶12} I fully join the well-reasoned majority opinion. I write to state that

when a union is the exclusive bargaining agent for a group of employees, it is




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                     OHIO FIRST DISTRICT COURT OF APPEALS



empowered to make decisions that adversely impact individual employees. “The

policy therefore extinguishes the individual employee’s power to order his own

relations with his employer and creates a power vested in the chosen representative

to act in the interests of all employees. * * * The employee may disagree with many of

the union decisions but is bound by them.” N.L.R.B. v. Allis-Chalmers Mfg. Co., 388

U.S. 175, 180, 887 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

        {¶13} Here, the FOP was faced with a choice of agreeing to extend Sparks’s

probation period or seeing him terminated. It chose the former, keeping him

employed. This decision bound Sparks, and is well within “ ‘the wide latitude that

negotiators need for the effective performance of their bargaining responsibilities.’ ”

Linton v. United Parcel Serv., 15 F.3d 1365, 1369-1370 (6th Cir.1994), quoting Air

Line Pilots Assn. v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). See

Vaca v. Sipes, 386 U.S. 171, 186-187, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (“The court

is free to determine whether the employee is barred by the actions of his union

representative * * * .”). Accordingly, Sparks’s grievance is barred.


Zayas, P.J., concurring in judgment only.

        {¶14} I agree that the trial court’s judgment should be affirmed, but I reach

this result for a different reason. I note that our standard of review is de novo. H.C.

Nutting Co. v. Midland Atlantic Dev. Co., L.L.C., 2013-Ohio-5511, 5 N.E.3d 125, ¶ 10

(1st Dist.).

        {¶15} Sparks was appointed as a voluntary auxiliary part-time police officer

on January 13, 2014. On February 16, 2014, he was hired as a part-time police officer

with the City of Mt. Healthy. Every part-time officer that joins the Mt. Healthy Police

Department is subject to a probationary period of one year. While under the one-



                                               6
                     OHIO FIRST DISTRICT COURT OF APPEALS



year probationary period, a police officer can be terminated at any time and has no

right to appeal the termination under the CBA.        Accordingly, the extension of

Sparks’s probationary period, in effect also extended the period of time that he could

be terminated without any right to appeal the termination under the CBA.

       {¶16} Before turning to the issues at hand, it must first be recognized “that

collective bargaining agreements are not like other agreements.” N.L.R.B. v. Bildisco

and Bildisco, 465 U.S. 513, 553, 104 S.Ct. 1188, 79 L.E.2d 482 (1984) (Brennan, J.,

concurring in part and dissenting in part).

       The collective bargaining agreement * * * is more than a contract; it is

       a generalized code to govern a myriad of cases which the draftsmen

       cannot    wholly   anticipate. * * * When   most    parties   enter into

       contractual relationship they do so voluntarily, in the sense that there

       is no real compulsion to deal with one another, as opposed to dealing

       with other parties. This is not true of the labor agreement. The choice

       is generally not between entering or refusing to enter into a

       relationship, for that in all probability pre-exists the negotiations.

       Rather it is between having that relationship governed by an agreed-

       upon rule of law or leaving each and every matter subject to a

       temporary resolution dependent solely upon the relative strength, at

       any given moment, of the contending forces.

(Emphasis added.) United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 578-580, 80 S.Ct. 1347, 4 L.E.2d 1409 (1960).            Therefore, the

representing union and the employer come to the table to bargain and the resulting

agreement encompasses all of the terms the parties are to be governed by.




                                              7
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17} These principles are embodied in section 1.2 of the CBA in this case:

       The parties acknowledge that during the negotiations which resulted

       in this Agreement, each had the unlimited right and opportunity to

       make demands and proposals with respect to any matter or subject not

       removed by law or regulation from the area of collective bargaining,

       and that the understandings and agreements arrived at by the parties

       after the exercise of those rights and opportunities are set forth in the

       Agreement. The provisions of this Agreement constitute the entire

       Agreement between the parties, and all prior agreements, either oral

       or written, individual or collective, are hereby cancelled.

       {¶18} The parties submitted two issues to the arbitrator.          The first was

whether “the grievance was filed on time to meet the requirements of the contract.”

The second was whether “the extension of the probationary period for [Sparks was] a

violation of the contract.” As to the first issue, the arbitrator found that even though

Sparks first filed his grievance more than 45 days from his receipt 0f the January

letter, his receipt of the May letter established a “continuing violation” of the CBA,

making his May filing of the grievance timely. As to the second issue, the arbitrator

found that the FOP and Mt. Healthy could extend the probationary period, but could

not do so without Sparks’s consent, and therefore ordered that Sparks be reinstated.

       {¶19} The city moved the trial court to vacate the arbitrator’s award, arguing

that the arbitrator’s rulings on both issues were in error. The trial court granted the

city’s motion and vacated the arbitration award in a February 13, 2017 entry.

However, that entry did not specify which of the arbitrator’s rulings was in error, or if

both were in error.    In its appellate brief, the FOP argues that the arbitrator’s




                                               8
                     OHIO FIRST DISTRICT COURT OF APPEALS



decisions that the two probationary-extension letters constituted a continuing

violation and that section 10.1 of the CBA could not be modified absent the consent

of the affected employee, were both proper. Appellant’s brief at 6, 9-10. Because

both issues are addressed in the appellant’s brief, I address each in turn.

       {¶20} As the majority stated, an arbitrator’s award can be vacated where

“[t]he arbitrators exceeded their powers, or so imperfectly executed them that a

mutual, final, and definite award upon the subject matter submitted was not made.”

R.C. 2711.10(D). The city’s argument is that the arbitrator exceeded his powers and

imperfectly executed them by “fail[ing] to limit his decision to the clear language of

the agreement.” I agree, and would hold that the arbitrator’s decisions on both

issues presented improperly modified the terms of the CBA.

       {¶21} Section 13.7 of the CBA provides that “[t]he arbitrator shall limit his

decisions strictly to the interpretation, application, or enforcement to the specific

Articles and Sections of this Agreement,” and that the arbitrator “shall be without

power or authority to make any decision: 1) contrary to, or inconsistent with, or

modifying or varying in any way the terms of this Agreement or applicable laws[.]”

(Emphasis added.) Ohio Office of Collective Bargaining, 59 Ohio St.3d at 180, 572

N.E.2d 71 (“[An arbitrator] is confined to the interpretation and application of the

collective bargaining agreement and * * * is without authority to disregard or modify

plain and unambiguous provisions.”).

       {¶22} Regarding whether Sparks’s grievance was timely filed, section 13.6 of

the CBA provides that “[w]ithin seven (7) calendar days of the incident or knowledge

of the incident, but in no case later than forty-five (45) from the actual fact, which

gave rise to the grievance, the aggrieved employee shall notify in writing his




                                               9
                     OHIO FIRST DISTRICT COURT OF APPEALS



grievance with his Sergeant [sic] * * *.”    The city contends that the arbitrator

exceeded his authority under the CBA by relying on a “continuing violation” theory to

find that the grievance was timely filed.      I agree.   The CBA sets a clear and

unambiguous period for filing a grievance, and does not allow for a “continuing

violation.” See Fairfield v. Am. Fedn. of State, Cty., and Mun. Emps., Ohio Council

8, 12th Dist. Butler No. CA2007-11-267, 2008-Ohio-3891, ¶ 15 (“The arbitrator's

‘continuing violation’ determination did not comport with, and in fact defeated, the

plain and unambiguous three-day time limitation upon grievances.”).

       {¶23} However, I would find that Sparks filed his grievance within the period

provided in the CBA, because the “actual fact, which gave rise to the grievance” did

not occur until the city’s May letter. While the January letter informed Sparks that

his probationary period would be extended, it did not provide an end date for the

extension. Sparks was not informed of any final decision regarding the extension

until the May letter, and he filed his grievance within seven days of receiving this

letter and the onset of the extension of the probationary period. I would hold that

the violation did not occur until this final decision was issued, and therefore that the

grievance was timely filed.

       {¶24} Regarding whether a part-time officer’s probationary period could be

extended, section 10.1 of the CBA provides that “the probationary period shall begin

the first day for which the employee receives compensation from the Employer

following their Field Training Program and shall continue for a period of one

calendar year.” (Emphasis added.) This language is plain and unambiguous, and

makes the one-year term of a probationary period mandatory. Independence Fire

Fighters Assn. v. City of Independence, 121 Ohio App.3d 716, 722, 700 N.E.2d 909




                                              10
                     OHIO FIRST DISTRICT COURT OF APPEALS



(8th Dist.1997), quoting Detroit Coal v. Internatl. Assn. of Machinists & Aerospace

Workers, Lodge No. 82, 594 F.2d 575, 580 (6th Cir.1979) (“Terms in a collective

bargaining agreement shall be given ‘their ordinary meaning in the absence of

evidence indicating that the parties to the contract intended to expand or otherwise

deviate from that meaning.’ ”); Tonkens v. Tonkens, 1st Dist. Hamilton No. C-76645,

1977 WL 199789, *2 (Sept. 14, 1977) (referring to “shall” as meaning “mandatory” in

the context of contract interpretation); Coseriu v. Coseriu, 8th Dist. Cuyahoga No.

74308, 1999 WL 754503, *1 (Sept. 23, 1999) (same). The parties and the arbitrator

agreed that there is no provision in the collective bargaining agreement allowing for

an extension of a probationary period.

       {¶25} Furthermore, under section 23.1 of the CBA, if either party seeks to

modify the agreement, they must provide notice of their intent “no earlier [than] one

hundred and twenty (120) and no later than sixty (60) days prior to the expiration

date.” See R.C. 4117.14(B). Therefore, any changes to the agreement may only take

effect following the agreement’s expiration, as section 23.2 provides: “All sections of

this Agreement shall remain in full force and effect until a new Agreement is

reached.” This language is plain and unambiguous, and mandates that modifications

must be negotiated no sooner than 120 days prior to the expiration date. This is

reinforced by section 23.3 of the CBA, which provides that the CBA may be reopened

“for the sole purpose of negotiating a physical fitness program during the term of the

agreement.”

       {¶26} In the arbitrator’s words, the question was whether the union and the

city can “ma[ke] an exception to clear and unambiguous language in the CBA for one

individual.” The arbitrator himself in addressing this pivotal question stated that he




                                              11
                     OHIO FIRST DISTRICT COURT OF APPEALS



“searched through numerous classics in labor arbitration to help shed light on th[e]

question” of whether “the Employer and the Union [are] able to alter the terms of

their Contract for an individual member without the consent of that member.” He

ultimately turned to a law review article “entitled ‘Individual Rights in Collective

Agreements and Arbitration’ by Clyde W. Summers of Yale Law School.” 37 N.Y.U.L.

Rev. 362 (1962). This article was the sole basis for the arbitrator’s determination

that the union and employer may make exceptions to a “clear and unambiguous”

provision of a collective bargaining agreement for one employee where they have the

consent of the affected employee.

       {¶27} However, this article merely argues that individuals should have

standing to “enforce substantive provisions in a collective agreement without being

subject to the union’s veto.” Id. at 380. It does not stand for the proposition that an

individual can consent to a one-time exception to a provision in a collective

bargaining agreement.     I am aware of no authority that would allow such an

exception, and the article even recognizes that such exceptions are prohibited: “the

individual employee * * * cannot bargain individually to vary the contract or set it

aside; he can only demand compliance with its terms.” Id. at 396. Moreover, if such

an individual accommodation were allowed, this would defeat collective bargaining’s

purpose of having the employer-employee relationship “governed by an agreed-

upon rule of law,” and instead “leav[e] each and every matter subject to a temporary

resolution dependent solely upon the relative strength, at any given moment, of the

contending forces.” United Steelworkers of Am., 363 U.S. at 580, 80 S.Ct. 1347, 4

L.E.2d 1409.




                                             12
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶28} The majority interprets section 3.1 of the CBA, which recognizes the

FOP as the “sole and exclusive representative for all part-time employees,” as

establishing that the union was Sparks’s “agent” in the traditional legal sense of that

term, and therefore that the union representative had authority to make decisions

that would bind Sparks as the “principal” on any employment matters.

       {¶29} However, this interpretation is inconsistent with the role of an

“exclusive representative” in the context of labor relations, which is narrower than

the role of an agent acting on behalf of a principal. Section 3.1 of the CBA provides

that the FOP is “the sole and exclusive representative for all part-time

employees * * * as set forth in the certification issued by the Ohio State Employment

Relations Board.”    (Emphasis added.)     R.C. 4117.05 explains this “certification”

process, and a review of R.C. Chapter 4117 as a whole clarifies that the employees’

“exclusive representative” is their representative for the purposes of collective

bargaining.    See, e.g., R.C. 4117.01(E); R.C. 4117.04; R.C. 4117.05.       Collective

bargaining is the “process by which an employer bargains with its employees

collectively through the accredited representative of the employees regarding wages,

hours, and working conditions.”      51 Corpus Juris Secundum, Labor Relations,

Section 192 (2017). See R.C. 4117.01(G).

       {¶30} Thus, to the extent that an “exclusive representative” in a collective

bargaining agreement is an “agent” in the traditional legal sense, it is only as an

agent for the entire employee unit in negotiations with the employer, not an agent for

each individual employee in every matter related to his or her employment. The

authority cited by Judge Miller in his separate concurrence, Allis-Chalmers, 388 U.S.

175, 887 S.Ct. 2001, 18 L.Ed.2d 1123, supports this proposition. While Allis-




                                             13
                      OHIO FIRST DISTRICT COURT OF APPEALS



Chalmers does state that “[t]he employee may disagree with many of the union

decisions but is bound by them,” the Court was in actuality discussing this principle

in the context of collective bargaining:

       National labor policy has been built on the premise that by pooling

       their economic strength and acting through a labor organization freely

       chosen by the majority, the employees of an appropriate unit have the

       most effective means of bargaining for improvements in wages, hours,

       and working conditions. * * * Thus only the union may contract the

       employee’s terms and conditions of employment, and provisions for

       processing his grievances; the union may even bargain away his right

       to strike during the contract term, and his right to refuse to cross a

       lawful picket line. The employee may disagree with many of the union

       decisions but is bound by them. The majority-rule concept is today

       unquestionably at the center of our federal labor policy. The complete

       satisfaction of all who are represented is hardly to be expected.

Id. at 180.

       {¶31} Accordingly, the arbitrator was correct in finding that section 10.1 of

the CBA was clear and unambiguous, and was also correct in finding that the CBA

has no provision allowing for a probationary extension.           Once the arbitrator

determined that there was no ambiguity, he should have enforced the plain language

of the agreement. “If the wording of [an] agreement is plain and unambiguous, then

no other steps of contract construction can be taken, and the document must be

applied as written.” Schraff & King Co., L.P.A. v. Casey, 2012-Ohio-5829, 983

N.E.2d 882, ¶ 23 (11th Dist.). The arbitrator “may construe ambiguous language,”




                                              14
                      OHIO FIRST DISTRICT COURT OF APPEALS



but “he is without authority to disregard or modify plain and unambiguous

provisions.” Ohio Office of Collective Bargaining, 59 Ohio St.3d at 180, 572 N.E.2d

71. The arbitrator therefore erred in seeking authority outside of the CBA itself to

allow for a probationary period extension, and in finding that the express terms of

the CBA could be modified with the consent of the employee.

       {¶32} The issue before this court is whether the arbitrator exceeded his

authority or imperfectly performed his duties. We must find that he did. The

arbitrator went beyond the terms of sections 10.1, 13.6, and 13.7, and article 23 of the

CBA in applying a “continuing violation” theory, and in finding that an exception

could be made for one employee with that employee’s consent. His award therefore

“conflict[ed] with the express terms” of the CBA, and the trial court’s judgment

vacating the arbitrator’s award was correct.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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