[Cite as Parma v. Parma Fire Fighters Assn. Local 639, 2012-Ohio-932.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97342




                                     CITY OF PARMA
                                                          PLAINTIFF-APPELLANT

                                                    vs.


        PARMA FIRE FIGHTERS ASSN. LOCAL 639
                                                          DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-749123

        BEFORE: Jones, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEYS FOR APPELLANT

William F. Schmitz
Gary C. Johnson
Johnson, Miller & Schmitz, LLP
635 W. Lakeside Avenue
Suite 600
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Ryan J. Lemmerbrock
Muskovitz & Lemmerbrock, LLC
820 W. Superior Avenue, 8th Floor
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Plaintiff-appellant, the city of Parma, appeals from the trial court’s judgment

confirming and enforcing the arbitration award.      We affirm.

                               I. Facts and Procedural History

       {¶2} Parma and defendant-appellee, Parma Fire Fighters Association Local 639

(“union”), are parties to a collective bargaining agreement (“CBA” or “agreement”).

Under the agreement, disputes between the city and union concerning the application or

interpretation of the CBA must be resolved through the agreement’s grievance-arbitration

procedure.

       {¶3} Anthony DeCarlo had been a Parma fire fighter for 15 years.        On December

8, 2009, he was terminated from his position because he had tested positive for cocaine

and the city found he was deceptive in regard to his use.         On December 10, the union

filed a grievance under the CBA’s procedure contesting that there was just cause for the

termination.    The city denied the grievance and the union requested that the matter be

arbitrated.    The parties mutually agreed on the arbitrator.

       {¶4} The arbitration hearing was held on August 20, 2010.        The parties agreed to

the issue for the arbitrator’s determination: “Was the City’s discharge of the grievant for

just cause as required by Article 16 of the [CBA]?     If not, what shall the remedy be?”

       {¶5} The arbitrator issued his award in December 2010.            He determined that

Parma did not have just cause to terminate DeCarlo and ordered that he be reinstated
immediately without back pay. In February 2011, the city filed an application to vacate,

modify, or correct the arbitration award in the common pleas court.     The city claimed in

the application that the arbitrator “exceeded his authority, or imperfectly executed the

same, or that the award was unlawful, arbitrary, capricious, and/or fails to draw its essence

from the collective bargaining agreement.”      The matter was submitted on briefs.       In

September 2011, the trial court issued its judgment confirming and enforcing the

arbitration award.   The city now presents two assignments of error for our review:

       I. The trial court erred when it applied the lax standard for review of an
       arbitrator’s award to the issue of vacating the award due to violation of
       public policy.

       II. The trial court erred in affirming the arbitrator’s award due to the
       arbitrator’s failure to consider essential tenets of arbitral law.

                                          II. Law

       {¶6} Under R.C. 2711.10, a common pleas court shall vacate an arbitration award

if:

       ***

       (D) The arbitrators exceeded their powers, or so imperfectly executed them
       that a mutual, final, and definite award upon the subject matter submitted
       was not made.

       {¶7} Public policy favors and encourages arbitration, and courts are indulged to

favor the regularity and integrity of proceedings before the arbitrator. Mahoning Cty. Bd.

of Mental Retardation v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 84, 488

N.E.2d 872 (1986). The Ohio Supreme Court has placed restrictions on a reviewing

court’s authority to vacate an arbitrator’s award so as not to undermine the integrity and
purposes of the arbitration system.   Findlay City School Dist. Bd. of Edn. v. Findlay Edn.

Assn., 49 Ohio St.3d 129, 131-132, 551 N.E.2d 186 (1990).

       {¶8} Appellate review of an arbitral proceeding is confined to an evaluation of the

order issued by the trial court. Orwell Natural Gas Co., Inc. v. PCC Airfoils, L.L.C., 189

Ohio App.3d 90, 2010-Ohio-3093, 937 N.E.2d 609 (8th Dist.), ¶ 8.       A de novo review of

the merits of the dispute is not within the contemplation of the statute. Id. citing Buyer’s

First Realty, Inc. v. Cleveland Area Bd. of Realtors, 139 Ohio App.3d 772, 784, 745

N.E.2d 1069 (8th Dist. 2000).     “[O]nce a reviewing court determines that the arbitrator’s

award draws its essence from the parties’ contract and is not unlawful, arbitrary or

capricious, the reviewing court has no authority to vacate the award pursuant to R.C.

2711.10(D).”   Marra Constructors, Inc. v. Cleveland Metroparks Sys., 82 Ohio App.3d

557, 563, 612 N.E.2d 806 (8th Dist. 1993), citing Findlay.




                           III.   Review of Trial Court’s Order

       {¶9} In its order, the trial court made the following factual findings. After being

notified on October 19, 2009 that he had tested positive for cocaine, on October 20,

DeCarlo and Lee Wester, the union vice president, met with John French, the Fire Chief,

and Captain Ralph Meno, DeCarlo’s immediate supervisor. At the meeting, DeCarlo

gave French and Meno doctors’ letters about medications prescribed to him and

information about false positives on drug tests. French concluded that DeCarlo was
denying that he had used cocaine, but never asked DeCarlo whether he had used it and

DeCarlo never said that he had not used it. At the conclusion of the meeting, Chief

French placed DeCarlo on leave and referred him to the city’s employee assistance

program (“EAP”).

       {¶10} A pre-disciplinary hearing was held on November 10, 2009.           At the hearing,

Chief French read DeCarlo his rights under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct.

616, 17 L.Ed.2d 562 (1967)1 and asked DeCarlo if he had used cocaine.                   DeCarlo

responded that he had used cocaine in high school, on one occasion in January 2009, and

on October 10, 2009, a few days before the drug test.

       {¶11} On November 13, 2009, French sent a report to the city’s human resources

director.   In the report, French concluded that DeCarlo had not been honest about his

cocaine use at the initial meeting on October 20.      French further concluded that DeCarlo

continued his deception on November 10 in describing the amount of cocaine he had used

on October 10.    French recommended that DeCarlo be discharged.

       {¶12} On December 2, 2009, a pre-deprivation hearing was held with the city’s

safety director, Gregory Baeppler.        Baeppler determined that the charges related to

DeCarlo’s drug use and dishonesty were substantiated. DeCarlo was terminated from


       1
          In Garrity, the United States Supreme Court determined that the state cannot use for
criminal purposes statements that were taken from employees during an internal investigation
after the employee was assured that if he refused to answer the questions, he would be terminated
from employment. Once employees received such assurances, the Supreme Court held “the
choice imposed on [employees is] one between self-incrimination or job forfeiture,” and such
statements are therefore coerced. Id. at 495.
his position.

       {¶13} After setting forth the parties’ arguments and the standard of review for

arbitration awards, the trial court addressed the CBA.       The court considered Appendix B

of the agreement, which governs the drug and alcohol testing policy and procedures.

Specifically, the court referenced the following sections:

       Section 1 Policy: The Parma Fire Department and the [union] recognize that
       drug use by employees would be a threat to the public welfare and the safety
       of department personnel. It is the goal of this policy to eliminate or absolve
       illegal drug usage through education and rehabilitation of the affected
       personnel.

       ***

       Section 10 Rehabilitation Program: Any employee who tests positive for
       illegal drugs shall be medically evaluated, counseled and treated for
       rehabilitation as recommended by [an] E.A.P. counselor. Employees who
       complete a rehabilitation program will be re-tested randomly once every
       quarter for the following 24 months. An employee may voluntarily enter
       rehabilitation without a requirement or prior testing. If an employee tests
       positive during the 24 month period they shall be subject to disciplinary
       action as per the Department Rules and Regulations, the employee will be
       re-evaluated by an E.A.P. counselor to determine if the employee requires
       additional counseling and/or treatment. If an employee tests positive during
       this subsequent 24 month period which in effect will be the employee’s third
       chance for rehabilitation, the employee will be subject to discipline as per
       the Department Rules and Regulations.

       Section 11 Duty assignment after treatment: Once an employee
       successfully completes rehabilitation, they shall be returned to their regular
       duty assignment. Once treatment and any follow-up care is completed, and
       2 years have passed since the employee entered the program, the employees
       personnel file shall be purged of any reference to his/her drug or alcohol
       problem.
       {¶14} The trial court noted that the arbitrator’s interpretation of the drug and

alcohol policy did not contemplate automatic discharge of an employee after testing

positive for the first time.   The trial court further noted the arbitrator’s observation that

during recent negotiations between the fire department and the union, the parties agreed to

not include a sentence prohibiting disciplinary action against an employee for a first

offense unless the employee refused rehabilitation or failed to complete it.         But the

arbitrator explained that “‘dropping the prohibition against any discipline is not the same

thing as establishing termination as the appropriate penalty for a first offense.’” Trial

court’s order quoting arbitrator’s decision.

       {¶15} The trial court then reviewed the arbitrator’s decision in light of the CBA and

determined that the arbitrator had not exceeded his authority in applying the terms of the

agreement. The trial court noted that it could not substitute its judgment for that of the

arbitrator where the award appeared to be neither arbitrary nor capricious.

       {¶16} In its first assignment of error, the city contends that the trial court used the

wrong standard because the termination was based on public policy grounds, and

“[w]hether public policy is violated is not a topic for an arbitrator to decide because public

policy is [a] question of law for the courts.”   According to the city, “it is well recognized

that use of cocaine is a violation of well established public policy.”

       {¶17} But the Ohio Supreme Court has held that “Ohio has no dominant and

well-defined public policy that renders unlawful an arbitration award reinstating a

safety-sensitive employee who was terminated for testing positive for a controlled
substance, assuming that the award is otherwise reasonable in its terms for reinstatement.”

 S.W. Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627, 91 Ohio

St.3d 108, 114, 2001-Ohio-294, 742 N.E.2d 630.           In S.W. Ohio Regional Transit Auth.,

a bus repairperson, whose position was classified as “safety-sensitive,” was terminated

after he tested positive for marijuana.       The matter was arbitrated under a collective

bargaining agreement.        The arbitration panel found that the employee’s termination

violated the “sufficient cause” requirement of the agreement and reinstated him.           On

appeal, the common pleas court confirmed the award, holding that it drew its essence from

the collective bargaining agreement and was not unlawful, arbitrary, or capricious.      Upon

further appeal, however, the First Appellate District reversed the trial court, finding that

reinstating a safety-sensitive employee who tested positive for drugs would violate public

policy.

          {¶18} In finding that there is no public policy on the issue, the Court reasoned that

public policy does not “preclude a person who tests positive for a controlled substance

from having a second chance.”       Id. at 112. Further, in considering the arbitration award,

the Court determined that it was not unlawful, arbitrary, or capricious and that it drew its

essence from the essence of the collective bargaining agreement — the same standard used

by the trial court here.

          {¶19} In light of the above, the trial court did not use the incorrect standard of

review in considering the arbitration award.         We are also not persuaded by Parma’s

reliance on Akron Met. Hous. Auth. v. Local 2517, Am. Fedn. of State, Cty., & Mun. Emp.,
AFL-CIO, 161 Ohio App.3d 594, 2005-Ohio-2965, 831 N.E.2d 493 (9th Dist.). In Akron

Met. Hous. Auth., a maintenance worker with the Akron Metropolitan Housing Authority

(“AMHA”) was terminated and his union filed a grievance contesting the termination.

The matter proceeded to arbitration and the arbitrator determined that AMHA had

wrongfully discharged the employee and reinstated him with back pay, benefits, and

allowances.   AMHA filed a motion to vacate or modify the arbitration award, which was

denied.

      {¶20} On appeal, the Ninth Appellate District held that the reinstatement of the

employee violated explicit public policy in favor of workplace safety and vacated the trial

court’s judgment. The following facts led up to the employee’s termination. In August

2001, the employee and his supervisor had a confrontation when the employee, who was

outside on the balcony of a unit he was supposed to be working on, refused to come in the

unit to discuss a project with the supervisor. Eventually the employee went into the unit,

where he threatened the supervisor.   The supervisor, concerned for his safety, called his

supervisor, who told the employee to go home for the day.

      {¶21} Following the altercation, the employee’s immediate supervisor was

approached by other employees who told the supervisor to be careful because the

employee was dangerous.     The supervisor told AMHA officials that the employee had

previously told him that he had gone to a previous supervisor’s house with a gun because

he was angry at the supervisor for disciplining him.        When questioned by AMHA

officials, the employee admitted that he had had a disagreement with the supervisor, and
when asked about going to a prior supervisor’s house with a gun, the employee neither

denied telling the story to his supervisor, nor that it had happened.

       {¶22} The employee was suspended, ordered to get anger-management treatment,

and informed that he needed authorization to return to work. In suspending him, AMHA

considered the August 2001 incident, two past suspensions for verbal altercations, and

several performance evaluations in which the employee had received poor scores.

       {¶23} After two doctors tested and counseled the employee, they informed AMHA

that they were of the opinion that there “‘continues to be a risk that [the employee’s] anger

will lead to further, potentially explosive incidents,’” and that the employee could not

“‘safely return to work at this time.’” Akron Met. Hous. Auth. at ¶ 20, quoting the

treating doctors’ letters.   The employee then sought treatment from another agency, but

the agency would not provide a recommendation that he return to work.

       {¶24} AMHA continued its investigation of the employee while he was on

suspension and learned that:    (1) he had gone to a supervisor’s house with a gun because

he was mad about his suspension; (2) he had threatened another employee; (3) several

employees asked to be provided with bullet proof vests if he was allowed to return to

work; and (4) two employees stated they would quit if they had to work with him.

       {¶25} The appellate court found that the trial court’s judgment in favor of the

employee, “despite the psychologists’ recommendations and his known propensity toward

violent statements, is clearly a violation of explicit public policy in favor of workplace

safety.” Id. at ¶ 25.
       {¶26} Akron Met. Hous. Auth. is distinguishable from this case.              It involved

workplace safety as the public policy consideration, not illegal drug use, as here.         As

already discussed, there is no established public policy regarding terminating an employee

for testing positive for a controlled substance.         Further, the facts surrounding the

discharge in Akron Met. Hous. Auth. are entirely different from the facts surrounding

DeCarlo’s discharge.

       {¶27} In light of the above, the first assignment of error is overruled.

       {¶28} For its second assigned error, the city contends that the trial court erred in

affirming the arbitration award because the arbitrator failed to “consider essential tenets of

arbitral law” in its analysis of “just cause” for termination.

       {¶29} Because the arbitrator’s “interpretation of the contract is what the parties

bargained for in agreeing to submit their disputes to final and binding arbitration,” as

already stated, we review to determine whether the arbitrator’s award draws its essence

from the parties’ contract and is not unlawful, arbitrary, or capricious.               Marra

Constructors, Inc. v. Cleveland Metroparks Sys., 82 Ohio App.3d at 563, citing Hillsboro

v. Fraternal Order of Police, OLC, Inc., 52 Ohio St.3d 174, 177, 6 N.E.2d 1186 (1990).

Our review is not de novo; it is limited to the trial court’s order. Orwell Natural Gas Co.,

Inc. v. PCC Airfoils, L.L.C., 189 Ohio App.3d 90 at ¶ 8.

       {¶30} Upon review, we find that the award draws its essence from the parties’

agreement and is not unlawful, arbitrary, or capricious.         In so finding, we focus on the

sections of the CBA referenced by the trial court. Section 1, which sets forth the purpose
of the drug and alcohol policy, states that, “[i]t is the goal of this policy to eliminate or

absolve illegal drug usage through education and rehabilitation of the affected personnel.”

Section 10 sets forth rehabilitation procedures for “[a]ny employee who tests positive for

illegal drugs” and states that such an employee “shall be medically evaluated, counseled

and treated for rehabilitation as recommended by [an] E.A.P. counselor.”         Section 11,

which governs assignment after rehabilitation, provides that, “[o]nce an employee

successfully completes rehabilitation, they shall be returned to their regular duty

assignment.”

       {¶31} Considering these provisions, as the trial court did, we find that the

arbitrator’s decision to reinstate DeCarlo comported with the goal of the parties’

agreement, especially in light of the fact that DeCarlo had successfully completed a

substance abuse program in April 2010.         Moreover, the decision was not unlawful,

arbitrary, or capricious.    We decline to examine the particulars of the arbitrator’s

decision, as urged by the city — our review is not de novo.      We have reviewed the trial

court’s order, as required, and find that the court properly found that the arbitrator’s award

drew its essence from the parties’ contract and was not unlawful, arbitrary, or capricious.

The second assignment of error is, therefore, overruled.

       {¶32} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
