[Cite as Mun. Constr. Equip. Operators' Labor Council v. Cleveland, 2011-Ohio-5190.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96771




  MUNICIPAL CONSTRUCTION EQUIPMENT OPERATORS’
                 LABOR COUNCIL

                                                            PLAINTIFF-APPELLANT

                                                    vs.

                                 CITY OF CLEVELAND
                                                            DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                       Case No. CV-747613

        BEFORE: E. Gallagher, J., Jones, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                         October 6, 2011
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ATTORNEY FOR APPELLANT

Stewart D. Roll
Climaco, Wilcox, Peca, Tarantino & Garofoli
55 Public Square
Suite 1950
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

George S. Crisci
Jon M. Dileno
Ami J. Patel
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Suite 400
Cleveland, Ohio 44113



EILEEN A. GALLAGHER, J.:

       {¶ 1} This is an accelerated appeal authorized pursuant to App.R. 11.1

and Loc.App.R. 11.1.

       {¶ 2} The     Municipal    Construction   Equipment   Operators’   Labor

Council (hereinafter, the “Union”) appeals from the decision of the trial court

confirming an American Arbitration Association award. The Union argues

that the trial court modified the arbitrator’s award without authority to do

so. Finding no merit to this appeal, we affirm the decision of the trial court.

       {¶ 3} On September 20, 2010, the arbitrator issued an award finding
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in favor of the Union.    Specifically, the arbitrator sustained the Union’s

grievance and ordered that the city of Cleveland (“the City”) pay “the Union

WPO [water plant operators] lost pay in the amount of $781.92, as a result of

its violating Article 46, Paragraph 129” of the collective bargaining

agreement.   Subsequent to the award, the City made eight attempts to

contact the Union in order to identify the three WPO’s that were to receive

the lost pay award. During each attempt, the Union refused to identify the

three employees, arguing instead that the City was required to pay the

$781.92 directly to the Union.

      {¶ 4} On February 2, 2011, the Union filed a motion to confirm the

arbitration award and order the City to pay to the Union $781.92. The City

did not oppose this motion and, on March 8, 2011, filed its own motion to

confirm the arbitration award.    The City asked the court to confirm the

award and to order the Union to cooperate with the City in identifying the

employees who were entitled to the lost pay award. The Union opposed the

City’s motion, arguing that by attempting to pay the WPO’s, and not the

Union, the City was attempting to modify the arbitration award.

      {¶ 5} On May 4, 2011, the trial court granted the City’s cross-motion to

confirm the arbitration award and found:

      “Within 10 days of this order, the Union is to identify for the City
      which 3 employees are entitled to the back pay ordered by the
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      arbitrator. If the Union fails to do so, the City is to use its own
      method in determining which employees are to be paid. The City is
      then to issue checks to these employees in the appropriate amount.”

      {¶ 6} The Union appealed, arguing that the trial court erred when it

granted the City’s cross-motion to confirm the arbitration award.        The

Union’s assigned error is without merit.

      {¶ 7} “Appellate review of an arbitration award is limited to an

evaluation of the confirmation order of the court of common pleas.”

Cleveland v. Cleveland Police Patrolmen’s Assn., Cuyahoga App. No. 91486,

2009-Ohio-1087; Williams v. Colejon Mechanical Corp. (Nov. 22, 1995),

Cuyhaoga App. No. 68819. “Overturning an arbitration award on appeal is

more difficult than an ordinary appeal from a judgment in the court of law.”

Olah v. Ganley Chevrolet, Inc., Cuyahoga App. No. 86312, 2006-Ohio-694.

Our review of the trial court’s decision confirming arbitration is conducted

under an abuse of discretion standard.         Brookdale Senior Living v.

Johnson-Wylie, Cuyahoga App. No. 95129, 2011-Ohio-1243.

      {¶ 8} R.C. Chapter 2711 provides a statutory procedure authorizing a

limited and narrow judicial review of the award. Lake Cty. Bd. of Mental

Retardation & Dev. Disabilities v. Professional Assn. for the Teaching of the

Mentally Retarded (1994), 71 Ohio St.3d 15, 641 N.E.2d 180. It also sets

forth specific statutory procedures to vacate, modify, correct, or confirm an
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arbitration award.    Id.   R.C. 2711.09 provides as follows: “At any time

within one year after an award in an arbitration proceeding is made, any

party to the arbitration may apply to the court of common pleas for an order

confirming the award. Thereupon the court shall grant such an order and

enter judgment thereon, unless the award is vacated, modified, or corrected

as prescribed in sections 2711.10 [ (motion to vacate) ] and 2711.11 [ (motion

to modify) ] of the Revised Code.”

      {¶ 9} In the present case, both parties filed motions to confirm the

arbitration award; neither party moved the court to modify or vacate the

award.   Additionally, both parties’ briefs attempt to mischaracterize the

language of the arbitration award in a manner supporting their respective

arguments. However, the record before this court is clear, the arbitrator

ordered the City to “pay the Union WPO [water plant operators] lost pay in

the amount of $781.92.” While the Union quotes only the following: “pay the

Union,” in support of its claim that the City has to pay only the Union, such

interpretation of the facts is not supported by the record.

      {¶ 10} The arbitrator’s opinion is clear, the award of $781.92 was made

to compensate the three WPO’s who were aggrieved by the City’s violation of

the parties’ collective bargaining agreement. As such, it was the individual

union members, not the Union as a whole, that were owed the $781.92. The
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trial court reviewed the record and after agreeing with the City, confirmed

the award. We find that the trial court did not modify the arbitration award

and any arguments proffered by the Union alleging such are erroneous. See

Warren Educ. Assn. v. Warren City Bd. of Educ. (1985), 18 Ohio St.3d 170,

480 N.E.2d 456.

       {¶ 11} The Union’s sole assignment of error is overruled.

       {¶ 12} The judgment of the trial court is affirmed.

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




       It is ordered that a special mandate be sent to said lower court 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.




EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR



                                         Appendix

Assignments of Error:
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“I. The trial court erred in its May 4, 2011 journal entry
granting defendant/appellee’s cross-motion to confirm an
arbitral award, tacitly denying plaintiff/appellant’s motion to
confirm that same award.          That error included the trial
court’s failure to: (a) recognize that defendant/appellee’s
cross-motion     sought    modification    or  correction   not
confirmation of the award, and that the jurisdictional time
limit for seeking that modification or correction had expired,
(b)    acknowledge      that    defendant/appellee’s  proposed
modification or correction is contrary to the express terms of
the arbitral award and, (c) accept that R.C. 2711.09 mandates
issuance of an order confirming the arbitral award unless the
award is vacated, modified, or corrected as prescribed in
sections 2711.10 and 2711.11 of the Revised Code, and that
defendant/appellee failed to timely move this court to vacate,
modify or correct the award within the ninety day period of
time identified in R.C. 2711.13.”
