[Cite as Toledo Area Regional Transit Auth. v. Kynard, 2016-Ohio-850.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Toledo Area Regional Transit Authority                    Court of Appeals No. L-15-1140

        Appellee                                          Trial Court No. CI0201501336

v.

Yvette Kynard, et al.                                     DECISION AND JUDGMENT

        Appellants                                        Decided: March 4, 2016

                                                 *****

        Ronald G. Linville and Samuel E. Endicott, for appellee.

        Brian J. Smith, for appellants.

                                                 *****

        OSOWIK, J.

        {¶ 1} This is an appeal from an April 27, 2015 judgment of the Lucas County

Court of Common Pleas, which granted appellee’s motion to partially vacate an

arbitration award. The disputed arbitration ruling was issued following a mandatory

arbitration proceeding conducted pursuant to the governing collective bargaining
agreement (“CBA”) executed between the Toledo Area Regional Transit Authority

(“TARTA”) and the Amalgamated Transit Union, ALF-CIO, Local 697 (“union”). The

trial court subsequently determined that the disputed portion of the arbitrator’s ruling was

in violation of R.C. 2711.10(D). For the reasons set forth below, this court affirms the

judgment of the trial court.

       {¶ 2} Appellants set forth the following two assignments of error:

              The Lucas County Court of Common Pleas erred in its Opinion and

       Order dated April 27, 2015, granting the Motion to Partially Vacate

       Arbitration Award filed by the Plaintiff/Appellee Toledo Area Regional

       Transit Authority.

              The Lucas County Court of Common Pleas erred in its Opinion and

       Order dated April 27, 2015, concluding that an arbitrator exceeds his

       authority when reviewing discipline imposed for violation of a policy

       adopted by an employer if the policy provides a non-arbitrary definitive

       sanction.

       {¶ 3} The following undisputed facts are relevant to this appeal. TARTA is

metropolitan Toledo’s taxpayer funded mass transit system, responsible for transporting

thousands of residents daily around the region. The union represents TARTA’s bus

operators, including appellant Kynard. The applicable collective bargaining agreement

governing this matter was effective from August 8, 2011 until August 7, 2014. The CBA

required that any disputes between the two parties concerning employee discipline be




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submitted to arbitration. Significantly, the CBA expressly provided that “the Arbitrator

shall be limited in his/her discretion to the application and interpretation of the provisions

of the [the CBA] and the Arbitrator shall have no authority to alter, amend, modify, add

to, subtract from or change the terms of [the CBA].” (Emphasis added.)

       {¶ 4} Appellant Kynard has been employed by TARTA for many years as a bus

operator. The record reflects that during her term of employment, she has been

disciplined multiple times for violating certain policies set forth in the CBA, including

TARTA’s cell phone policy. The cell phone policy prohibits TARTA bus operators, such

as appellant Kynard, from utilizing their personal cell phones while they are on or

operating a TARTA bus.

       {¶ 5} The sole time TARTA bus operators are permitted to use their personal cell

phones is during an official designated layover. At that time, bus operators must exit the

bus if they wish to use their personal cell phone. According to the mutually agreed upon

terms of the policy, as set forth in the CBA, a first violation of the policy results in a two-

day suspension for the violator. Subsequently, a second violation occurring within the

same 542-day period, results in termination. At the conclusion of the contractually

defined time period, previous violations within that period no longer count relative to

future violations committed by an operator in the subsequent time period. In addition,

pursuant to the explicit terms of the policy established in the CBA, TARTA has the right

to terminate employment on a first offense if warranted by the seriousness of a violation.

Appellant has been found to have been in violation of the policy on three occasions.




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       {¶ 6} On the day of the underlying incident, appellant Kynard was assigned to

work TARTA’s Call-A-Ride Service. This service enables TARTA customers to call

TARTA for a ride beyond the limits of the normally defined bus routes. Riders utilizing

the service are picked up and transported to a stated destination. Accordingly, the Call-

A-Ride drivers are furnished TARTA cell phones to receive calls from TARTA

customers. In addition, the TARTA drivers performing this service are granted extra

time to pick up the customers utilizing the Call-A-Ride service so as to allot the drivers

adequate time to perform all of their job duties.

       {¶ 7} On November 11, 2013, appellant Kynard was operating a Call-A-Ride bus

in Maumee, Ohio. Appellant Kynard received a phone call on her TARTA mobile phone

from a TARTA customer who requested to be picked up at a location just one and

one-half miles from her location. Appellant Kynard advised the customer that she would

not be picking him up. Appellant Kynard did so even though the customer was in close

proximity to her and despite having ample time available before her next obligation.

Nevertheless, she told the customer that he would have to wait for over one hour for the

next available driver.

       {¶ 8} The record reflects that after refusing to perform her assigned job duty,

appellant Kynard drove her TARTA bus to a nearby shopping center, parked the bus, and

then utilized her personal cell phone for nearly 20 minutes without exiting the bus. The

record shows that appellant Kynard made multiple personal calls and texts during the

time that the customer could have been picked up and transported.




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       {¶ 9} Following this incident, the customer called TARTA and reported the event.

Accordingly, an investigation was launched by TARTA’s Superintendent of

Transportation to ascertain what had occurred, particularly in connection to appellant

Kynard’s CBA obligations.

       {¶ 10} The investigation revealed that appellant Kynard, who has a history of cell

phone violations, had again violated TARTA’s cell phone policy. Appellant Kynard

refused to perform her job duties and instead parked her TARTA bus and commenced

personal cell phone use in violation of the CBA.

       {¶ 11} A disciplinary hearing was held. Appellant Kynard was found to have

violated the policy. A two-day suspension for violating the policy was imposed, as

mandated by the CBA. In response, the union filed a grievance on her behalf,

challenging the suspension. Pursuant to the CBA, the dispute was then submitted to

arbitration.

       {¶ 12} On November 10, 2014, the arbitrator found that although appellant

Kynard had violated the cell phone policy, “[I]n a literal sense,” she should receive an

award of a discipline modification to a written warning, along with a one-day suspension.

This outcome runs contrary to the fixed sanction of a two-day suspension set forth in the

mutually agreed upon terms of the CBA. The award further opined that appellant Kynard

should have been subjected to a progressive discipline policy, but the CBA cell phone

policy provisions do not establish a progressive discipline policy such as that suggested

by the arbitrator. As such, TARTA filed a motion to vacate this portion of the award.




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The trial court found that the arbitrator had violated R.C. 2711.10(D). TARTA’s motion

was granted. This appeal ensued.

       {¶ 13} We note that both assignments of error are rooted in the same underlying

premise that the trial court’s modification of the arbitrator’s discipline was improper. In

the first assignment of error, appellants contend that the trial court erred when it granted

TARTA’s motion to partially vacate the arbitration award. Similarly, in the second

assignment of error, appellants argue that the trial court erred when it ruled that the

arbitrator had exceeded his authority. We do not concur.

       {¶ 14} Under Ohio law, the appellate court reviews the trial court’s decision to

vacate an arbitration award on a de novo basis. Piqua v. Fraternal Order of Police, 185

Ohio App.3d 496, 2009-Ohio-6591, 924 N.E.2d 876, ¶ 15 (2d Dist.). The appellate court

reviews the judgment “independently and without deference to the trial court’s

determination.” Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d

1153 (4th Dist.1993).

       {¶ 15} R.C. 2711.10(D) sets forth the relevant considerations the trial court must

take into account when vacating an arbitration award:

              In any of the following cases, the court of common pleas shall make

       an order vacating the award upon the application of any party to the

       arbitration 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.




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       {¶ 16} In determining the proper boundaries of an arbitration award, “The

arbitrator is confined to the interpretation and application of the collective bargaining

agreement * * * he is without authority to disregard or modify plain and unambiguous

provisions.” AFSCME, Ohio Council 8, Local 3536 v. Clermont County Dept. of Human

Servs., 112 Ohio App.3d 401, 404, 678 N.E.2d 998 (12th Dist.1996). In addition, the

arbitrator must, “[C]onstrue the terms used in the agreement according to their plain and

ordinary meaning.” Int’l Ass’n of Firefighters, Local 67 v. Columbus, 95 Ohio St.3d 101,

103, 766 N.E.2d 139 (2002).

       {¶ 17} The record reflects that the arbitrator improperly went outside the bounds

of the terms and conditions of the mutually agreed upon CBA. The trial court correctly

found this to be improper. Wherefore, based upon the forgoing, we find appellants’ first

and second assignments of error to be not well-taken.

       {¶ 18} Accordingly, the judgment of the Lucas County Court of Common Pleas is

hereby affirmed. Appellants are ordered to pay the costs of this appeal pursuant to

App.R. 24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                       Toledo Area Regional Transit
                                                       Auth. v. Kynard
                                                       C.A. No. L-15-1140




Thomas J. Osowik, J.                          _______________________________
                                                          JUDGE
Stephen A. Yarbrough, J.
                                              _______________________________
James D. Jensen, P.J.                                     JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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