[Cite as Chardon Local School Dist. Bd. of Edn. v. Chardon Edn. Assn., 2013-Ohio-4547.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


CHARDON LOCAL SCHOOL                                   :           OPINION
DISTRICT BOARD OF
EDUCATION,                                             :

                 Appellee,                             :
                                                                   CASE NO. 2012-G-3110
        - vs -                                         :

CHARDON EDUCATION                                      :
ASSOCIATION/OEA/NEA,
                                                       :
                 Appellant.


Administrative Appeal from the Geauga County Court of Common Pleas, Case No.
12A000345.

Judgment: Affirmed.


Eric J. Johnson and Susan Keating Anderson, Walter & Haverfield, LLP, The Tower at
Erieview, 1301 East Ninth Street, Suite 3500, Cleveland, OH 44114 (For Appellee).

Charles W. Oldfield and Ira J. Mirkin, Green, Haines & Sgambati Co., L.P.A., 100
Federal Plaza East, Suite 800, Youngstown, OH 44503 (For Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Chardon Education Association/OEA/NEA (“Association”),

 appeals the judgment of the Geauga County Court of Common Pleas, granting the

 application of the Chardon Local School District Board of Education (“District”) to

 vacate the arbitration award determining that teacher, Amanda Stechschulte

 (“Amanda”), should be compensated for “back pay,” and denying the Association’s
motion to confirm the arbitration award.       For the following reasons, we affirm the

judgment of the trial court.

      {¶2}   This case involves the termination of Amanda’s employment, a Chardon

High School teacher who was convicted of vehicular assault, a fourth degree felony,

after causing a serious motor vehicle accident and significant injuries to the driver of

the vehicle she hit by driving on the wrong side of a divided highway. Amanda and her

husband had been dining locally after school on the evening of March 4, 2010 to

celebrate her husband’s birthday. Amanda consumed two and one-half beers. She

and her husband left the restaurant in separate vehicles. Her husband witnessed the

accident because he was following her.

      {¶3}   Amanda and her husband initially lied to the investigating officer by telling

him that Mr. Stechschulte was driving the car involved in the collision. They did so to

prevent Amanda from losing her job. However, Amanda eventually admitted she was

the driver and that she had been drinking. She was charged with operating a vehicle

while under the influence of alcohol. She was eventually acquitted of that charge.

      {¶4}   Amanda was found guilty of vehicular assault on October 29, 2010, and

was sentenced to two years of community control that included 90 days of residential

community control in the Lake County jail.        Additionally, her driver’s license was

suspended and she was ordered to pay restitution and perform 200 hours of

community service.

      {¶5}   On April 30, 2010, Amanda returned to work for the District for the

remainder of the 2009-2010 school year, taught summer school, and her limited

teaching contract was renewed for the 2010-2011 school year. On October 4, 2010,




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after she was found guilty of vehicular assault, the District placed her on administrative

leave with full pay and benefits. After the sentencing hearing, however, the District

suspended her without pay. On November 15, 2010, the District terminated Amanda’s

teaching contract for good and just cause under R.C. 3319.16 (Termination of contract

by board of education; hearings; appeals).

      {¶6}      Amanda completed her sentence on January 18, 2011. On March 22,

2011, more than a year after the accident and four months after the District terminated

her employment, the Ohio Department of Education (“ODE”) notified both the District

and Amanda that it may take action against her teaching license. Subsequently, in

August 2011, Amanda entered into a Consent Agreement with the ODE that her

teaching license would be suspended until June 30, 2013, the date her five-year

teacher’s license would have expired. The Consent Agreement also provided that the

suspension of her license would not be considered with respect to her future license

applications.

      {¶7}      The Association and the District, previously entered into a collective

bargaining agreement (“CBA”) that included a grievance procedure which culminated in

binding arbitration. Pursuant to the CBA, the Association filed a grievance against the

District after the District first suspended Amanda without pay and then terminated her

as a member employed by the District and the Association. The grievance proceeded

to arbitration over the specific issue of whether the District properly and with “good and

just cause” suspended without pay and ultimately terminated Amanda’s employment.

The arbitrator concluded the District lacked good and just cause to suspend and




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terminate Amanda’s employment and that she should be compensated for the “back

pay” period beginning with her release from jail until August 15, 2011.

      {¶8}   The District moved to vacate the arbitrator’s award, and the Association

opposed the motion, filing an application to confirm the award.           After a briefing

schedule, the trial court entered judgment granting the District’s motion to vacate, and

denying the Association’s application to confirm the award. The trial court also ordered

the Association to pay the costs of the arbitration. The rationale of the trial court’s

decision was as follows:

      {¶9}   “The Arbitrator stated that the matter before him ‘should be evaluated in

accordance with the only factor enunciated in the [CBA] as warranting termination of a

teaching contract during its term: whether or not the grievant’s conduct, under all the

circumstances presented by the evidence, amounted to “egregious acts and/or

behavior.”’ In making such a statement, the Arbitrator based his decision to award Ms.

Stechschulte back pay solely on his conclusion that the School District could not

suspend or terminate her teaching contract unless her conduct was egregious.

      {¶10} “An Arbitrator may not add terms or provisions to a collective bargaining

agreement, nor may an Arbitrator ignore or delete terms or provisions within that

agreement. By concluding that the only factor enunciated in the [CBA] as warranting

termination of a teaching contract during its term was whether or not Ms.

Stechschulte’s conduct, under all the circumstances presented by the evidence,

amounted to ‘egregious acts and/or behavior,’ the Arbitrator went beyond

misinterpreting the [CBA], he added terms or provisions to the [CBA].”




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      {¶11} The Association filed a timely notice of appeal and raises the following two

assignments of error for our review:

      {¶12} “[1.] The trial court erred when it granted the Appellee’s motion to vacate

the arbitration award and denied Appellant’s application to confirm the award.

      {¶13} “[2.] The trial court erred when it modified the award to order Appellant to

pay the costs of arbitration.”

      {¶14} The standard of appellate review of an arbitrator’s award has been

recently set forth by this court in Eastlake v. Fraternal Order of Police/Ohio Labor

Council, 11th Dist. Lake No. 2010-L-057, 2011-Ohio-2201:

      {¶15} “We are mindful that ‘Ohio public policy encourages the resolution of

disputes through arbitration.’ Dayton v. Internatl. Assn. of Firefighters, Local No. 136,

2d Dist. No. 21681, 2007 Ohio 1337, at ¶9.            Generally, ‘arbitration awards are

presumed valid, and a reviewing court may not merely substitute its judgment for that

of the arbitrator.’ Id. at ¶10 (Citations omitted.)

      {¶16} In reviewing an arbitrator’s award, courts are bound by R.C. 2711.10. As

noted by the trial court, the relevant statutory provision at issue is R.C. 2711.10(D),

which provides in part:

      {¶17} “‘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:’

      {¶18} “* * *’

      {¶19} “(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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      {¶20} “‘[G]iven the presumed validity of an arbitrator’s award, a reviewing court’s

inquiry into whether the arbitrator exceeded his authority, within the meaning of R.C.

2711.10(D), is limited.   Once it is determined that the arbitrator’s award draws its

essence from the collective bargaining agreement and is not unlawful, arbitrary, or

capricious, a reviewing court’s inquiry for purposes of vacating an arbitrator’s award

pursuant to R.C. 2711.10(D) is at an end.’ (Emphasis sic.) Dayton v. Internatl. Assoc.

of Firefighters, Local No. 136, supra, at ¶16.

      {¶21} “* * *’

      {¶22} “The arbitrator is confined to the interpretation and application of the

collective bargaining agreement, and although he may construe ambiguous contract

language, he is without authority to disregard or modify plain and unambiguous

language.” Eastlake, at ¶24-32. “‘Accordingly, it is our duty to determine whether the

arbitrator’s award was reached in a rational manner from the collective bargaining

agreement.’” Id.

      {¶23} “An Arbitrator’s award departs from the essence of a collective bargaining

agreement 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.” Ohio Office of Collective Bargaining v. Ohio Civil Serv. Emp.

Assn., Local 11, AFSCME, AFL-CIO, 59 Ohio St.3d 177, syllabus (1991).

      {¶24} Based on the foregoing, the question before us is whether the trial court

had the authority to interpret the CBA between the parties in a way that differed from

that of the arbitrator. Specifically, we must determine if the trial court properly found

that the arbitrator exceeded his authority in interpreting the relevant portions of the




                                            6
CBA.    For the reasons that follow, we agree with the trial court that the arbitrator

misinterpreted the CBA when such interpretation was not justified or necessary, and

that the trial court properly vacated the award.

       {¶25} Article 5.05.1 of the CBA provides, in part:

       {¶26} “Termination of a teacher’s contract shall be according to Section 3319.16

and related provisions of the Ohio Revised Code.” R.C. 3319.16 provides that the

contract of any teacher may not be terminated except for good and just cause.

Nowhere in R.C. 3319.16 or any related provision does it state that a teacher may not

be terminated except for egregious conduct. The direct, clear and unambiguous

language of the CBA requires that R.C. 3319.16 requires a “just cause” analysis.

       {¶27} Second, the first paragraph of Section 5.05.5 of the CBA states:

       {¶28} “Except for egregious acts and/or behavior, the [District] shall not abrogate

a teacher’s contractual rights provided by the [CBA] between the [District] and the

Association; nor shall a teacher be summarily suspended and terminated by the

[District] without reason and a just cause substantive and procedural due process

hearing.” (Emphasis added.)

       {¶29} In making the previously noted statement that Amanda’s conduct did not

amount to “egregious acts and/or behavior,” the Arbitrator was basing his decision to

award her back pay solely on his conclusion that the District should not have

terminated or suspended Amanda’s teaching contract unless her conduct was

egregious.    However, the “egregious acts and/or behavior language” referenced in

Section 5.05.5 does not apply to the termination or suspension of teacher contracts.

Rather, it applies to the contractual rights provided by the CBA between the parties.




                                            7
There is a difference between abrogating a teacher’s contractual rights provided by the

CBA between the parties, and terminating or suspending a teacher’s employment

contract for good and just cause. For example, as the trial court stated, if the District

believed that a teacher’s conduct was egregious, the District could contend that such

conduct permitted the abrogation of the teacher’s right to notice and hearing before

suspension or termination of the teacher’s employment contract as provided in the

CBA.

       {¶30} Furthermore, otherwise, the language of Section 5.05.5 of the CBA would

not have made a distinction between the two procedures. If the “egregious acts and/or

behavior” language were intended to apply to teacher terminations and suspensions, it

would have been placed in the section that directly addresses the standard for teacher

terminations, i.e., Section 5.05.1.   However, as noted, that section mandates that

terminations/suspensions be effectuated in accordance with R.C. 3319.16, which

provides that termination or suspension require “good and just cause.”

       {¶31} In sum, the express terms of the CBA states that terminations will be

pursuant to R.C. 3319.16, i.e., for good and just cause. The District was not required

to prove that Amanda’s conduct was egregious before it could suspend or terminate

her teaching contract. Therefore, the arbitrator exceeded his authority and improperly

executed his powers when he utilized a standard not provided for in the CBA and

ignored the application of the good and just cause standard to Amanda’s termination.

       {¶32} Appellant argues that the version of R.C. 3319.16 in effect in August-

September 2009 controls rather than the version that became effective October 16,

2009. However, while the former version of R.C. 3319.16 includes additional language




                                           8
that encompasses specifically enumerated personal character failures, the ending

phrase of both versions of the statute is the same, i.e., “except for good and just

cause.” Thus under either version of the statute, the basis of a teacher’s suspension or

termination must at least rise to the crest of “good and just cause.” Therefore, the trial

court’s reference to “good and just cause” refers to either the current or former version

of R.C. 3319.16 given that the phrase is contained in both.

      {¶33} Accordingly, based on the foregoing, because the Arbitrator’s award was

based upon a determination that was in excess of his authority, the decision that

Amanda is entitled to be compensated for the “back pay” period must be vacated. The

Association’s first assignment of error is without merit.

      {¶34} Under its second assignment of error, the Association argues that when

the trial court vacated the arbitration award under R.C. 2711.10, it improperly modified

the award by ordering the Association to pay the costs of arbitration and that it erred in

doing so. Specifically, the Association points out that the District never applied to

modify the award; instead, it simply moved to vacate it. Therefore, the trial court erred

when it sua sponte ordered the Association to pay the costs of arbitration. Again, we

disagree with the Association.

      {¶35} R.C. 2711.12 provides that “[u]pon the granting of an order confirming,

modifying, correcting, or vacating an award made in an arbitration proceeding, the

court must enter judgment in conformity therewith.” The trial court’s order that the

Association pay the costs of the arbitration is in conformity with its decision to vacate

the arbitration award since the Association, not the District, was the losing party. The

CBA provides for the losing party to pay the expenses of the arbitration. Moreover,




                                             9
contrary to the Association’s argument, the imposition of costs was not a separate

modification of the arbitration award because the award itself was vacated.

Accordingly, the trial court properly charged the Association with the costs of the

arbitration. The Association’s second assignment of error is without merit.

      {¶36} For the reasons stated in the opinion of this court, it is the judgment and

order of this court that the judgment of the Geauga County Court of Common Pleas is

affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                                ____________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶37}         I respectfully dissent.

      {¶38} This court has held that a trial court’s role in reviewing an arbitration award

to determine whether to vacate or confirm the award is limited. Kent State Univ. v. Am.

Assn. of Univ. Professors, 11th Dist. Portage No. 2010-P-0064, 2011-Ohio-5597, ¶20,

citing Madison Local School Dist. Bd. of Edn. v. OAPSE/AFSCME Local 4, AFL-CIO

and its Local #238, 11th Dist. Lake No. 2008-L-086, 2009-Ohio-1315, ¶9. An arbitrator

is the final judge of law and facts and, as a result, a court may not substitute its

judgment for the arbitrator. Madison at ¶9. Judicial deference in arbitration cases is

based on the recognition that the parties have bargained and contracted for dispute




                                              10
resolution via arbitration in lieu of court proceedings. Id. at ¶10. As such the parties

have agreed to accept the arbitrator’s view of the facts and the meaning of the contract

regardless of the outcome. Id.

         {¶39} The trial court held that the arbitrator went beyond misinterpreting the

collective bargaining agreement (Agreement) to the point that he added terms or

provisions to the Agreement. The basis of the trial court’s holding is that the arbitrator

improperly used section 5.05.5 of the Agreement in making his decision regarding the

termination of Ms. Stechschulte’s employment. Section 5.05.5 states in part:

         {¶40} Except for egregious acts and/or behavior, the Board shall not

               abrogate a teacher’s contractual rights provided by the agreement

               between the Board and Association; nor shall a teacher be

               summarily suspended and terminated by the Board of Education

               without reason and a just cause substantive and procedural due

               process hearing.

         {¶41} The trial court stated that section 5.05.1 of the Agreement contains the

appropriate provision on teacher terminations. Section 5.05.1 state in part:

         {¶42} Termination of a teacher’s contract shall be according to Section

               3319.16 and related provisions of the Ohio Revised Code.

         {¶43} According to the trial court, since R.C. 3319.16 does not contain any

provision stating that a teacher may not be terminated except for egregious conduct, the

arbitrator exceeded his authority by including provisions in the Agreement that do not

exist.




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       {¶44} The fact remains that both provisions of the Agreement reference the

standards to be used in the case of teacher terminations.           When provisions in a

collective bargaining agreement are subject to more than one reasonable interpretation,

it is the arbitrator’s interpretation of the contract that governs the rights of the parties.

“The arbitrator’s interpretation must prevail regardless of whether his or her

interpretation is the most reasonable under the circumstances.” Hillsboro v. Fraternal

Order of Police, Ohio Labor Council, Inc., 52 Ohio St.3d 174, 177-178 (1990).

       {¶45} “‘The arbitrator may not ignore the plain language of the contract; but the

parties having authorized the arbitrator to give meaning to the language of the

agreement, a court should not reject an award on the ground that the arbitrator misread

the contract.’” Field Local Teachers Assn., OEA/NEA v. Field Local School Dist. Bd. of

Edn., 11th Dist. Portage No. 2010-P-0086, 2012-Ohio-862, ¶22, quoting Stow

Firefighters v. City of Stow, 193 Ohio App.3d 148, 2011-Ohio-1559, quoting Summit

Cty. Bd. of Mental Retardation & Dev. Disabilities v. Am. Fedn. of State,Cty. & Mun.

Emp., 39 Ohio App.3d 175, 176 (9th Dist.1988).        “‘(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.” Madison, supra, at ¶12,

quoting United Paperworkers Internatl. Union v. Misco, Inc., 484 U.S. 29, 38 (1987).

Requests for judicial intervention should be resisted even where the arbitrator has

ostensibly made “‘“serious,” improvident” or “silly” errors in resolving the merits of the

dispute.’” Madison, supra, at ¶12, quoting Michigan Family Resources, Inc. v. Service

Employees Internl. Union Local 517M, 475 F.3d 746, 753 (6th Cir.2007).




                                             12
       {¶46} As the arbitrator based his decision upon a provision of the Agreement

that concerns teacher terminations he has therefore acted within the scope of his

authority.

       {¶47} For the foregoing reasons, I dissent.




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