[Cite as Greater Dayton Regional Transit Auth. v. Amalgamated Transit Union AFL-CIO Local 1385, 2019-
Ohio-392.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 GREATER DAYTON REGIONAL                            :
 TRANSIT AUTHORITY                                  :
                                                    :    Appellate Case No. 28155
         Plaintiff-Appellant                        :
                                                    :    Trial Court Case No. 2018-CV-3250
 v.                                                 :
                                                    :    (Civil Appeal from
 AMALGAMATED TRANSIT UNION                          :    Common Pleas Court)
 AFL-CIO LOCAL 1385                                 :
                                                    :
         Defendant-Appellee


                                            ...........

                                            OPINION

                          Rendered on the 8th day of February, 2019.

                                            ...........

RONALD G. LINVILLE, Atty. Reg. No. 0025803, MATTHEW L. ROBERTS, Atty. Reg. No.
0079938 and RYAN A. CATES, Atty. Reg. No. 0085496, 200 Civic Center Drive, Suite
1200, Columbus, Ohio 43215
      Attorneys for Plaintiff-Appellant

JOSEPH S. PASS, Atty. Reg. No. 0093158, 219 Fort Pitt Boulevard, Pittsburgh,
Pennsylvania, 15222
     Attorney for Defendant-Appellee

                                           .............
                                                                                         -2-


WELBAUM, P.J.

      {¶ 1} In this case, the Greater Dayton Regional Transit Authority (“RTA”) appeals

from a judgment confirming an arbitration award in favor of Amalgamated Transit Union,

AFL-CIO Local 1385 (“Union”). According to RTA, the trial court erred in confirming the

award because the award destroys management rights guaranteed to RTA by the Ohio

Revised Code and by the parties’ collective bargaining agreement (“CBA”). RTA further

contends that the award conflicts with the CBA’s express terms, which give RTA

management rights over assigning job duties.

      {¶ 2} We conclude that the trial court did not err in confirming the arbitration award

in favor of the Union. The award drew its essence from the CBA because it did not

conflict with the agreement’s express terms and was rationally supported by the

agreement. The parties agreed to assign a specific task to a particular job classification,

and there was also a past practice of having only employees in that job classification

perform the task. This past practice was unequivocal, was clearly enunciated, and was

followed for a reasonable period of time as a fixed and established practice accepted by

both parties. It, therefore, was binding on the parties. Even if the past practice had not

been binding, the CBA specifically required past practices or precedent to be considered

in interpreting the agreement.     Accordingly, the judgment of the trial court will be

affirmed.



                             I. Facts and Course of Proceedings

      {¶ 3} In July 2018, RTA filed a motion asking the trial court to vacate an arbitration

award that was issued in April 2018. The award arose from a dispute between RTA and
                                                                                          -3-


the Union over whether RTA could require paratransit operators to fuel their vehicles

offsite rather than having this task performed by individuals employed in a “cleaner/fueler”

position.

        {¶ 4} RTA is a regional transit authority that provides transportation for passengers

using route buses. RTA also transports disabled passengers using Project Mobility

(PMOB) operators. Before 1995, RTA used seven diesel vehicles for PMOB, and the

rest of the transportation was done by Liberty Cab. In 1995, however, PMOB became

in-house in its entirety. Chrysler minivans were obtained in 1995, and the operators

fueled these gasoline vehicles themselves offsite because no fuel pump was available on

site.   After a grievance was filed, alleging that fueling was not the work of PMOB

operators, but was the work of fuelers, the parties agreed that fuelers would fuel the

PMOB vehicles. Thereafter, PMOB operators did not fuel their own vehicles.

        {¶ 5} Subsequently, RTA replaced the minivans with 2008 and 2009 TESCO diesel

vehicles, which essentially consisted of a Ford E450 chassis with a box on back for

passengers.     These vehicles used diesel fuel and were about 24 feet long, with a

wheelchair lift for passengers.

        {¶ 6} RTA uses two buildings located on Longworth Street in Dayton, Ohio, to

house and service its vehicles. The route buses, which use diesel fuel, are housed in

600 Longworth (“600 building”), which has fueler lanes. This location also has two

gasoline tanks, each of which has a capacity of about 2,000 gallons. However, because

the tanks are not connected, each can be filled only to 85% of capacity, or to about 1,700

gallons.

        {¶ 7} The PMOB vehicles are housed across the street at 601 Longworth (“601
                                                                                         -4-


building”), which contains two 20,000 gallon tanks filled with diesel fuel. These tanks

were used to fuel the PMOB diesel vehicles, but also serve as a backup for the route

buses in case of issues with the diesel tanks at the 600 building.

       {¶ 8} The TESCO vehicles were designated as about seven-year vehicles. When

RTA began preparing for their replacement, it could not find a manufacturer who used

diesel engines in the chassis size needed for para-transit operations. As a result, RTA

ordered a gasoline vehicle called an Eldorado, which used a Ford E50 chassis, was about

30 feet long, and carried 15 passengers. The Eldorado was about the same size as the

prior vehicle.

       {¶ 9} RTA purchased the Eldorados in early 2016, and received 30 new vehicles

in the fourth quarter of 2016. The first vehicles were placed in service in January 2017.

When RTA purchased these vehicles, it knew a fueling plan would have to be devised

because the vehicles did not use diesel fuel. RTA investigated various options, including

having someone come on-site and fuel the vehicles, but RTA could not find a vendor

willing to do that for gasoline. RTA also investigated building a gasoline tank, but that

involved a one- to two-year process. There were also environmental concerns because

the 601 building was close to a river.

       {¶ 10} RTA began fueling the vehicles on-site at the two gasoline pumps at the

600 building. At that point, RTA thought it could succeed with the first 30 vehicles until

a contract could be put in place for off-site fueling. These pumps were located outside,

with no cover.

       {¶ 11} The prior fueling process with a diesel vehicle at the 601 building, including

running the vehicle through the hot washer, took four to five minutes. Notably, this
                                                                                        -5-


location had high pressure diesel pumps and nozzles that could fuel vehicles very quickly.

In contrast, the new process took about 15 to 20 minutes. Time was added by having to

drive the Eldorado down the street, and because the 600 building used siphon pumps on

its gasoline pumps. The pumps, thus, had low pressure, and it took longer to fill vehicles.

      {¶ 12} Based on the 75 PMOB vehicles that would be in use, RTA concluded that

it would not be possible to fuel at the 601 building. Ultimately, RTA decided to use an

outside vendor and have PMOB operators pump the gas. RTA arranged with Speedway

to allow operators to fuel the vehicles at any Speedyway station in Ohio, and placed fuel

cards in the vehicles. The procedure at the pump was to be done at the end of the

employee’s run and involved the same process any motorist would use, other than the

fact that the operator was required to put in the vehicle’s mileage and an employee

identification number.

       {¶ 13} About 30 Eldorados went into use in early 2017 and RTA expected to begin

using another 28 vehicles in March 2017. On February 21, 2017, RTA and the Union

discussed the PMOB buses, fuel, and a memorandum of understanding (“MOA”). After

this meeting, Robert Stevens, RTA’s manager of labor relations, sent a MOA to Glenn

Salyer, the Union President. Stevens had been employed at RTA since 1991 and had

been on the Union’s executive board from 1992 until 2016, when he took the labor

relations position. Stevens had negotiated every contract on behalf of the Union from

1992 until 2010.

       {¶ 14} Salyer had been employed by RTA for about nine years, had been the

Union president for the past five and a half years, and was part of the negotiating team

for the current labor agreement, which was effective from April 1, 2016 through March 31,
                                                                                          -6-


2019.

        {¶ 15} The MOA, dated February 22, 2017, was addressed to Salyer and stated

as follows:

               On February 21, 2017, the Authority met with ATU officials including

        you and discussed revised fueling procedures that will include Para-Transit

        Operators fueling their vehicles prior to returning to the garage. During the

        1995-1996 time frame ATU Para-Transit Operators fueled minivans offsite.

        The purpose of this change comes from the recent and future purchases of

        new Para-Transit vehicles.     We have received 30 new vehicles in 4th

        quarter 2016 and [are] currently receiving 28 additional vehicles by March

        2017. We will receive the remaining 17 vehicles in the summer of 2017 for

        a total of 75.

               The old fleet requires diesel fuel and are fueled at our Longworth

        facilities. Currently the market is moving away from engines using diesel

        to unleaded fuels. The new fleet requires unleaded fuel and each vehicle

        can hold up to 55 gallons. We do not have the storage capacity at the 600

        Longworth facility for unleaded fuel to accommodate the additional service

        requirement.     RTA will contract with a local fuel supplier to provide

        resources at multiple locations for the ability to fuel our vehicles throughout

        the day.

               The Operations Department Para-Transit Operators will fuel vehicles

        at a designated location prior to returning to the garage. The fueling of the

        vehicle will be incorporated into their workday.           The Maintenance
                                                                                           -7-


       Department will check fluids, clean, empty fareboxes and maintain the bus

       consistent to the current practice except for fueling.

Union Ex. 1, p. 1.

       {¶ 16} Stevens sent the agreement to Salyer by email on February 25, 2017;

Stevens had already signed the document. Salyer responded that the Union did not

agree with the MOU. At that point, Stevens reminded Salyer of his prior comment that

the MOU appeared to be workable, but was a change in working compensation for the

operators who would have to do the fueling.1 Further correspondence from the Union

asserted that this was also a change in working conditions. See Union Ex. 4. RTA

offered additional incentives, but no agreement was reached. As a result, on March 28,

2017, Stevens informed the Union that RTA would award a contract for fueling the

gasoline vehicles off premises, that PMOB operators would be fueling their vehicles, and

that Union maintenance employees (the cleaners/fuelers) would still perform all their

current duties, other than fueling these vehicles. Union Ex. 3.

       {¶ 17} On April 4, 2017, the Union filed a grievance alleging that RTA had violated

the following provisions of the CBA: Article I, Section 4(I); Article VI, Sections 1 (A), (B),

and (C); Article XIX, Sections 1-11; and Article XXVI, Section 4. After the grievance was

denied on all levels, the matter was referred to an arbitrator, whose decision was “final

and binding upon both parties” pursuant to Article XXXI, Section 9 of the CBA. Joint Ex.

1, p. 38.

       {¶ 18} The arbitrator held a hearing in December 2017 and heard testimony from


1 At the time of the arbitration hearing, a cleaner/fueler was paid $25.33 per hour, while
the top pay for PMOB operators was $15.29 per hour. Thus, a disparity in pay rates
existed, and PMOB operators were paid only their regular rate while fueling their vehicles.
                                                                                        -8-


Salyer and Stevens, as well as the following individuals: Robert Baker, a former RTA

employee and Union member from 1995 to 2008; Daron Brown, RTA Director of

Maintenance; and Pat O’Malley, who had been employed by RTA for more than 25 years

and was the current Maintenance Fleet Manager. Following the hearing, the arbitrator

issued a decision concluding that RTA had violated the CBA by requiring PMOB operators

to fuel, and, therefore, to perform duties of the cleaners/fuelers. The arbitrator ordered

RTA to cease and desist from requiring operators to perform fueling duties (which had

begun in September 2017).       In addition, the arbitrator ordered RTA to retroactively

compensate PMOB operators who had performed such work at the rate the CBA

established for a cleaner/fueler.

       {¶ 19} RTA then filed a motion asking the trial court to vacate the arbitration

decision. The Union followed with an application for an order confirming the arbitration

award. Subsequently, the trial court filed a decision and entry overruling RTA’s motion

and granting the application to confirm the award. This appeal by RTA followed.



           II. Alleged Error in Overruling the Motion to Vacate the Arbitration Award

                     and in Granting the Application to Confirm the Award.

       {¶ 20} In support of its appeal, RTA has filed two assignments of error. Because

they are intertwined, we will address them together. The assignments of error, in order,

are as follows:

              The Montgomery County Court of Common Pleas Erred in Its

       Decision and Entry Overruling Plaintiff’s Motion to Vacate Arbitration Award

       Dated September 12, 2018, by Overruling Plaintiff/Appellant Greater
                                                                                       -9-


      Dayton Regional Transit Authority’s Motion to Vacate Arbitration Award

      Dated July 13, 2018 (September 12, 2018 Decision and Entry).

                The Montgomery County Court of Common Pleas Erred in Its

      Decision and Entry Overruling Plaintiff’s Motion to Vacate Arbitration Award

      dated      September    12,   2018,   by   Confirming   Defendant/Appellee

      Amalgamated Transit Union Local 1385’s Application for Order Confirming

      Award Dated September 12, 2018 (September 12, 2018 Decision and

      Entry).

      {¶ 21} RTA does not make specific arguments relating to these assignments of

error, but focuses instead on ways in which the arbitrator’s award departed from the

essence of the CBA by conflicting with its express terms and by failing to be rationally

derived from the CBA.        In this regard, RTA makes the following contentions: the

arbitrator’s award eviscerates management rights that the CBA and Ohio Revised Code

guarantee to RTA; the award conflicts with RTA’s right to assign job duties to its

employees; there is no rational basis for the award because it imposes new restrictions

for which the parties did not contract; and the arbitrator reached an absurd conclusion by

holding that RTA agreed to give up its management right to assign the task of fueling.

Before we address these arguments, we will outline the relevant standards for evaluating

arbitration awards.

      {¶ 22} Under R.C. 2711.13, any party may file a motion in the common pleas court

to vacate awards that have been made in arbitration proceedings. In addition, R.C.

2711.09 also permits parties to file motions in the common pleas court for orders

confirming arbitration awards. In either situation, a common pleas court must grant the
                                                                                          -10-


order to confirm unless the court vacates, modifies, or corrects the award under R.C.

2711.10 or R.C. 2711.11.

       {¶ 23} The applicable provision here is R.C. 2711.10, which states, in pertinent

part, that:

               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.

       {¶ 24} The Supreme Court of Ohio has rejected an abuse of discretion standard

for reviewing arbitration awards and has held that:

               When reviewing a decision of a common pleas court confirming,

       modifying, vacating, or correcting an arbitration award, an appellate court

       should accept findings of fact that are not clearly erroneous but decide

       questions of law de novo.

Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators' Assn. for Dev. Disabilities,

153 Ohio St.3d 219, 2018-Ohio-1590, 103 N.E.3d 804, syllabus.

       {¶ 25} Because public policy favors arbitration, we have “only limited authority to

vacate an arbitrator's award.” Assn. of Cleveland Fire Fighters, Local 93 of the Internatl.

Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278, 793 N.E.2d 484,

¶ 13. Thus, we are restricted to deciding if “the award draws its essence from the CBA
                                                                                           -11-

and whether the award is unlawful, arbitrary, or capricious.”         Id., citing Findlay City

School Dist. Bd. of Edn. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 551 N.E.2d 186 (1990),

paragraph two of the syllabus. Consequently, if a rational nexus exists between the

contract and the award, and “the award is not arbitrary, capricious or unlawful, the

arbitrator did not exceed her authority and the award cannot be vacated pursuant to R.C.

2711.10(D).” Montgomery Cty. Sheriff v. Fraternal Order of Police, 158 Ohio App.3d

484, 2004-Ohio-4931, 817 N.E.2d 107, ¶ 22 (2d Dist.).

       {¶ 26} “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 Civ. Serv. Emps. Assn.,

Local 11, AFSCME, AFL-CIO, 59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus. Accord

Dayton City School Dist. Bd. of Edn. v. Dayton Edn. Assn., 2d Dist. Montgomery No.

27793, 2018-Ohio-4350, ¶ 40. In addition, arbitrators may not create their own contracts

“by imposing additional requirements not expressly provided for in the agreement.”

Internatl. Assn. of Firefighters, Local 67 v. Columbus, 95 Ohio St.3d 101, 104, 766 N.E.2d

139 (2002), citing Ohio Office of Collective Bargaining at 183.

       {¶ 27} Because the issue of whether an arbitrator exceeds his or her authority is a

question of law, we review this point de novo, without deferring to the trial court’s decision.

Dayton City School Dist. Bd. of Edn. at ¶ 42, citing Portage Cty. Bd. of Dev. Disabilities,

153 Ohio St.3d 219, 2018-Ohio-1590, 103 N.E.3d 804, at ¶ 25. With these standards in

mind, we will consider RTA’s arguments.
                                                                                     -12-


                    A. Management Rights Granted by the Revised Code

      {¶ 28} During the hearing, the Union stated its grievance as follows:

             Whether the RTA violated the parties’ Collective Bargaining

      Agreement requiring operators to fuel coaches and not paying the fueler

      rate; and if so, what shall the remedy be.

December 12, 2017 Arbitration Transcript (“Tr.”), p. 6.

      {¶ 29} RTA’s description of the issue was similar, by asking whether the Union

proved that RTA violated any specific provision of the CBA by assigning fueling of PMOB

vehicles to para-transit operators. Arbitrator’s Opinion and Award, p. 7. The arbitrator

elected to use the Union’s statement. Id.

      {¶ 30} As RTA suggests, R.C. 4117.08, which is part of Ohio law on public

employee collective bargaining, does provide protection for certain management rights.

However, there are qualifications. In this regard, R.C. 4117.08(A) provides that:

             All matters pertaining to wages, hours, or terms and other conditions

      of employment and the continuation, modification, or deletion of an existing

      provision of a collective bargaining agreement are subject to collective

      bargaining between the public employer and the exclusive representative,

      except as otherwise specified in this section * * *.

      {¶ 31} R.C. 4117.08(C) also states, in pertinent part, that:

             Unless a public employer agrees otherwise in a collective bargaining

      agreement, nothing in Chapter 4117 of the Revised Code impairs the right

      and responsibility of each public employer to:

      ***
                                                                                       -13-


             (2) Direct, supervise, evaluate, or hire employees;

             (3) Maintain and improve the efficiency and effectiveness of

      governmental operations;

             (4) Determine the overall methods, process, means, or personnel by

      which governmental operations are to be conducted;

             (5) Suspend, discipline, demote, or discharge for just cause, or lay

      off, transfer, assign, schedule, promote, or retain employees;

      ***

             (8) Effectively manage the work force * * *.

      {¶ 32} Finally, R.C. 4117.08(C) also states that:

             The employer is not required to bargain on subjects reserved to the

      management and direction of the governmental unit except as affect wages,

      hours, terms and conditions of employment, and the continuation,

      modification, or deletion of an existing provision of a collective bargaining

      agreement. A public employee or exclusive representative may raise a

      legitimate complaint or file a grievance based on the collective bargaining

      agreement.

(Emphasis added).

      {¶ 33} The statutory framework, thus, is as follows: (1) subsection (A) sets out the

matters that are subject to collective bargaining; (2) subsection (C) outlines management

rights that are not impaired by statutes pertaining to public employees’ collective

bargaining, unless the employer agrees otherwise; and (3) the last paragraph of

subsection (C) qualifies the rest of that subsection, “i.e., the exemption from bargaining
                                                                                        -14-


does not extend to subjects that ‘affect wages, hours, terms and conditions of

employment, and the continuation, modification, or deletion of an existing provision of a

collective bargaining agreement.’ ”    Dayton City School Dist. Bd. of Edn., 2d Dist.

Montgomery No. 27793, 2018-Ohio-4350, ¶ 55.

      {¶ 34} In Lorain City School Dist. Bd. of Educ. v. State Emp. Relations Bd., 40 Ohio

St.3d 257, 262, 533 N.E.2d 264 (1988), the Supreme Court of Ohio concluded that:

             The word “affect” in R.C. 4117.08(C) suggests that management

      rights which “act upon” or “produce a material influence upon” working

      conditions are bargainable. See Webster's Third New International

      Dictionary (1986) 35. Thus, a reasonable interpretation of R.C. 4117.08(C)

      is that where the exercise of a management right causes a change in or

      “affects” working conditions or terms of a contract, then the decision to

      exercise that right is a mandatory subject for bargaining.

      {¶ 35} Consistent with R.C. 4117.08(C), Article I, Section 4(A) through (I) of the

CBA incorporate the statutory reservation of management rights. See Joint Ex. 1, p. 1.

Thus, as RTA indicates, it retained the right to exercise certain management rights, unless

a specific provision in the agreement provided otherwise. The arbitrator recognized this,

but also noted that under Article I, Section 4(I), RTA was “obligated to bargain over

matters that . . . ‘affect wages, hours, terms and conditions of employment, and the

continuation, modification, or deletion of an existing provision of the Agreement.’ ”

Arbitrator’s Opinion and Award at p. 15, quoting Joint Ex. 1 at p. 2. This provision of the

CBA echoes R.C. 4117.08(C), which, as noted, provides exceptions to the exemption

from bargaining.
                                                                                         -15-


       {¶ 36} After making the above observation, the arbitrator noted that Article XXVI,

Section 4 of the CBA designated fueling as the job function of a cleaner/fueler, and

concluded that this could not be changed without the Union’s consent.             Id.   The

Arbitrator further rejected RTA’s argument that including the words “as the situation

dictates” allowed it to assign the fueling task to the PMOB operators. In this regard, the

Arbitrator reasoned that the cleaner/fueler provision appeared in maintenance titles,

which were separate and apart from parts of the agreement pertaining to RTA operations

(where the provisions pertaining to PMOB operators appeared). The arbitrator further

reasoned that the bargaining history of the parties indicated that fueling had traditionally

been considered maintenance work, and that the parties did not bargain to include fueling

as part of the PMOB operators’ duties.

       {¶ 37} After reviewing the agreement and the record, we cannot conclude that the

arbitrator’s award eviscerates RTA’s statutory or contractual rights. To the contrary, the

arbitrator recognized these rights, but concluded that under the terms of the contract, the

RTA was required to bargain over a change in duties. Furthermore, the arbitrator’s

decision does not conflict with the terms of the contract giving RTA the right to assign job

duties to its employees.

       {¶ 38} As was noted, even though a party retains management rights, “where the

exercise of a management right causes a change in or ‘affects’ working conditions or

terms of a contract, then the decision to exercise that right is a mandatory subject for

bargaining.” Lorain City School Dist. Bd. of Educ., 40 Ohio St.3d at 262, 533 N.E.2d

264.

       {¶ 39} There is no question that removing a job duty specifically assigned to
                                                                                            -16-


cleaners/fuelers affected a term of the contract. Article XXVI, Section 4, specifically

states that:

               A cleaner/fueler classification will be created within the utility cleaner

       classification. The job function of this classification will be fueling, servicing

       and cleaning coaches as the situation dictates. The rate of pay will be

       equal to that of a number three (#3) Service and Repair Mechanic.

Joint Ex. 1 at p. 31.

       {¶ 40} As the arbitrator noted, the CBA does distinguish between maintenance and

operations, and the provisions pertaining to PMOB operators are found in a different part

of the CBA (Article IV(A)). Joint Ex. 1 at p. 7. Article IV(A), Section 1(A) also states that

“all sections of this Labor Agreement applicable to operators will apply to Project Mobility

(PMOB) Operators * * *.” (Emphasis added.) Id. Referring to the CBA, the agreement

clearly does contain various sections that distinguish between maintenance employees

and operators. See, e.g., Article VII (outlining holidays for operators versus those for

maintenance employees); Articles XVIII through XXII (describing seniority and working

conditions for operators); and Articles XXVI through XXVIII (outlining seniority and

working conditions for maintenance personnel).

       {¶ 41} Furthermore, the arbitrator correctly looked to the parties’ historical and

traditional practice in interpreting the contract.        In fact, Article XXX (Governing

Interpretations), states in Section 1 that:

               The interpretations or the wording or terms of this Agreement shall

       be by the application of definitions where they are set forth in this

       Agreement, by established past precedents and past practices or in light of
                                                                                        -17-


      the intent and purposes to be accomplished.

(Emphasis added.) Joint Ex. 1 at p.35.

      {¶ 42} In Assn. of Cleveland Fire Fighters, 99 Ohio St.3d 476, 2003-Ohio-4278,

793 N.E.2d 484, at ¶ 9, the Supreme Court of Ohio considered whether a practice known

as “arrowing” violated the express terms of a collective bargaining agreement. The court

held that this practice, which involved the city’s temporary day-to-day changing of shifts,

did violate the agreement, because only yearly shift changes were authorized by the CBA.

Id. at ¶ 14. The arbitrator had also held that arrowing was a binding past practice, but

the court disagreed with this, commenting that “arrowing cannot be interpreted as a

binding past practice because of the union's continuing vehement fight against its use.”

Id. at ¶ 15. The court went on to adopt a new test, noting that:

             Other states have contemplated the factors required for a past

      practice to be binding. The predominant definition, and the one used by

      both the arbitrator and the union, requires that to be binding on parties to a

      collective bargaining agreement, a past practice must be (1) unequivocal,

      (2) clearly enunciated, and (3) followed for a reasonable period of time as a

      fixed and established practice accepted by both parties. Celanese Corp. of

      Am. (1954), 24 Labor Arb. Reports 168, 172. We think this a sound and

      logical test, and hereby adopt it.

(Footnote omitted.) Id. at ¶ 16.

      {¶ 43} According to the evidence, RTA and the Union did grieve this specific

fueling issue in 1996, and they agreed in a settlement that only a cleaner/fueler would

fuel, not the project mobility operators. RTA and the Union then conducted business this
                                                                                        -18-


way from 1996 (and through several contracts) until September 2017, when RTA

unilaterally decided to have the project mobility operators also fuel. Under the test that

the Supreme Court of Ohio adopted, this practice was unequivocal, was clearly

enunciated, and was followed for a reasonable period of time as a fixed and established

practice accepted by RTA and the Union. The practice, therefore, was binding on the

parties and was properly considered by the arbitrator.

       {¶ 44} Even if the past practice were not deemed “binding,” the CBA specifically

required past practices or precedent to be considered in interpreting the agreement.

Furthermore, the CBA was in effect from April 2016 through March 2019. In early 2016,

however, RTA knew that it would use gasoline buses and would need some other fueling

method because its on-site facilities limited gasoline capacity. Despite these facts, RTA

did not raise the subject during negotiations (which lasted 20 months). Instead, RTA

waited until February 21, 2017 (after 30 buses had been placed into service) to discuss

the issue with the Union.     Then, after failing to reach agreement, RTA unilaterally

decided to change the job duties of the fueler/cleaner position and to require operators to

perform the fueling job.

       {¶ 45} The trial court discussed the fact that the CBA did not extend the

cleaner/fueler duties to other positions and that forcing PMOB operators to perform

cleaner/fueler duties at a lower rate violated the CBA. The court then held that the award

drew its essence from the CBA as “the Arbitrator relied directly on its provisions in

formulating her decision.” Doc. #15, p. 8. The court, therefore, found that the award did

not conflict with the CBA and rationally flowed from the terms in the CBA. Id. For the

reasons discussed above, we agree with the trial court. Accordingly, the arbitrator did
                                                                                        -19-


not violate the express terms of the contract which gave RTA the right to assign job duties

to employees.



                            B. Lack of Rational Basis for the Award

      {¶ 46} RTA also argues that the award has no rational basis because it imposes

new conditions for which the parties did not contract. As support for this contention, RTA

repeats the argument, already rejected, that it had an express right under the contract to

assign employees and no other provision restricted this right. For the reasons previously

discussed, we disagree.

      {¶ 47} RTA also contends that Article XXVI, Section 4, clearly indicates that there

would be instances when the cleaner/fueler would not fuel the buses. In this regard, RTA

relies on the statement that the job function of the cleaner/fueler “will be servicing and

cleaning coaches as the situation dictates.” (Emphasis added.) Joint Ex. 1 at p. 31.

Both the arbitrator and trial court rejected this argument, after noting that the statement

only pertains to the particular job classification and does not appear elsewhere in the

CBA, including the management rights section.        See Doc. #13 at p. 9; Arbitrator’s

Opinion and Award at p. 16. In addition, the arbitrator noted that “the parties never

bargained to include fueling as part of the PMO[B] duties.” Id.

      {¶ 48} We agree with the trial court and arbitrator. In addition, to the extent that

the term “as the situation dictates” could be considered ambiguous, any ambiguity in a

collective bargaining agreement “cannot be resolved against any one particular party,

which further makes the arbitrator's interpretation of the contract provision worthy of

deference by a reviewing court * * *.” Cleveland Police Patrolmen's Assn. v. Cleveland,
                                                                                        -20-

99 Ohio App.3d 63, 66-67, 649 N.E.2d 1291 (8th Dist.1994).           See also Dayton v.

Fraternal Order of Police, 76 Ohio App.3d 591, 598, 602 N.E.2d 743 (2d Dist.1991) (“[i]n

determining the mutual intent of the parties concerning any ambiguity the arbitrator may

look to the entire agreement, the history of the dealings between the parties, and industry

practice”).

       {¶ 49} As was noted, the history of the parties’ dealings indicates that the fueling

function was limited to the fueler/cleaner position, and PMOB operators did not engage

in fueling between 1996 and 2017. Furthermore, the testimony from RTA witness Robert

Stevens was that the language “as the situation dictates” was negotiated when Article

XXVI, Section 4 (the cleaner/fueler classification) was added to the CBA for the 2006-

2009 contract. According to Stevens, this language was included because more than

two fuelers/cleaners were needed, and RTA did not want to be held to a situation where

fuelers had to act as fuelers all the time. Instead, RTA wanted fuelers to also perform

cleaning, because RTA needed cleaners seven days a week. Arbitration Tr. at pp. 157-

159.

       {¶ 50} “An arbitrator's award draws its essence from a collective bargaining

agreement when there is a rational nexus between the agreement and the award.”

Mahoning Cty. Bd. of Mental Retardation & Developmental Disabilities v. Mahoning Cty.

TMR Educ. Assn., 22 Ohio St.3d 80, 488 N.E.2d 872 (1986), syllabus. Another way of

saying this is that “an arbitrator departs from the essence of a collective bargaining

agreement when * * * ‘an award is without rational support or cannot be rationally derived

from the terms of the agreement.’ ” Ohio Office of Collective Bargaining, 59 Ohio St.3d

at 183, 572 N.E.2d 71, quoting Cement Divisions, Nat. Gypsum Co. (Huron) v. United
                                                                                         -21-

Steelworkers of Am., AFL-CIO-CLC, Local 135, 793 F.2d 759, 766 (6th Cir.1986),

overruled on other grounds, Michigan Family Resources, Inc. v. Serv. Emps. Intern. Union

Local 517M, 475 F.3d 746 (6th Cir.2007). This is a difficult standard to meet, and RTA

failed to establish that the award lacked any rational support.

       {¶ 51} As a further matter, RTA argues that Ohio courts routinely vacate awards

where an arbitrator inserts new restrictions to which the parties did not agree. However,

no such restriction was inserted. Consequently, we cannot conclude that the arbitrator’s

decision lacked rational support or could not rationally be derived from the terms of the

CBA.

       {¶ 52} We note the well-established rule that “[a]n arbitrator's improper

determination of the facts or misinterpretation of the contract does not provide a basis for

reversal of an award by a reviewing court, because ‘[i]t is not enough * * * to show that

the [arbitrator] committed an error – or even a serious error.’ ” Cedar Fair, L.P. v. Falfas,

140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 6, quoting Stolt-Nielsen, S.A. v.

AnimalFeeds Internatl. Corp., 559 U.S. 662, 671, 130 S.Ct. 1758, 176 L.Ed.2d 605

(2010). Arbitrators also have “ ‘broad authority to fashion a remedy, even if the remedy

contemplated is not explicitly mentioned’ in the applicable contract.” Id., quoting Queen

City Lodge No. 69, Fraternal Order of Police, Hamilton Cty., Ohio, Inc. v. Cincinnati, 63

Ohio St.3d 403, 407, 588 N.E.2d 802 (1992).



                               C. Alleged Absurdity of the Award

       {¶ 53} Finally, RTA focuses on the alleged absurdity of the arbitrator’s finding that

RTA agreed to give up its management right to assign the task of fueling. As examples,
                                                                                          -22-


RTA contends that it would be seriously hampered if it could not require transit operators

to stop at a gas station if their vehicles were running out of gas, require employees to

keep the interior of their buses clean and free of tripping hazards, or require employees

to keep their windshields clear of bugs.

       {¶ 54} This case is not about bugs or tripping hazards; it involves fueling of

vehicles.   The CBA also does not assign those other tasks to any specific job

classification. Furthermore, RTA did not provide any information about how many daily

miles any vehicles travel, nor did it provide evidence that any vehicle had ever run out of

gas. The only evidence was that PMOB vehicles carry up to 50-55 gallons of fuel and

RTA’s policy is that the vehicles are fueled every morning, no matter where a vehicle has

to go or whether it has a full tank of fuel. Arbitration Tr. at pp. 26, 135-136; Union Ex. 1.

The arbitrator and trial court were not required to speculate about evidence that was not

presented; likewise, they did not have to consider irrelevant matters.

       {¶ 55} More importantly, the parties operated in a certain manner for many years,

with fueling duties being confined only to maintenance personnel.            This duty was

specifically assigned by the CBA to cleaners/fuelers, and there was no evidence that the

parties intended otherwise.      Accordingly, the arbitrator’s award and the decision

affirming the award were not absurd.

       {¶ 56} Based on the preceding discussion, the First and Second Assignments of

Error are overruled.



                                           III. Conclusion

       {¶ 57} All of RTA’s assignments of error having been overruled, the judgment of
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the trial court is affirmed.

                                   .............



HALL, J. and TUCKER, J., concur.



Copies sent to:

Ronald G. Linville
Matthew L. Roberts
Ryan A. Cates
Joseph S. Pass
Hon. Gregory F. Singer
