[Cite as Intl. Union of Operating Engineers, Local 20 v. Hamilton, 2019-Ohio-2491.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




IUOE, LOCAL 20,                                        :

       Appellee,                                       :           CASE NO. CA2018-10-195

                                                       :                   OPINION
   - vs -                                                                   6/24/2019
                                                       :

CITY OF HAMILTON,                                      :

       Appellant.                                      :




            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2017-12-2799



Hardin, Lazarus & Lewis, LLC, R. Jessup Gage, 30 Garfield Place, Suite 915, Cincinnati,
Ohio 45202, for appellee

Frost Brown Todd LLC, W. Joseph Scholler, Charles B. Galvin, 9277 Centre Pointe Drive,
Suite 300, West Chester, Ohio 45069, for appellant



        PIPER, J.

        {¶ 1} Appellant, the City of Hamilton, appeals a decision of the Butler County Court of

Common Pleas finding in favor of appellee, International Union of Operating Engineers, Local

20, granting its motion to compel arbitration.

        {¶ 2} A former city employee filed a grievance after he was terminated for failing to

participate in an investigation regarding whether a co-worker brought a gun to work. The
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Union represented the employee and challenged the termination. The parties submitted the

issue to an arbitrator, and the arbitrator found in favor of the Union and ordered the City of

Hamilton to reinstate the employee. The City of Hamilton then appealed that decision to the

common pleas court. The common pleas court reversed the arbitrator's decision as being

outside the scope of the arbitrator's authority. In so reversing the arbitrator's award, the

common pleas court did not order a remand back to the arbitrator for further action.

       {¶ 3} The Union appealed the common pleas court's decision, asking that this court

reverse the common pleas court's decision and reinstate the arbitrator's award. However,

this court affirmed the common pleas court's decision to reverse the arbitrator's award. In re

Hamilton v. Intl. Union of Operating Engineers, Local 20, Butler No. CA2016-03-054, 2016-

Ohio-5565. After this court's decision, the Union appealed to the Ohio Supreme Court, which

accepted jurisdiction. However, the Union declined to proceed with its appeal resulting in it

being dismissed.

       {¶ 4} Once the Union's case was dismissed by the Ohio Supreme Court, the Union,

four months later, expressed its intention to submit the same issue previously arbitrated to a

second arbitrator, as if the first arbitration and appellate process had not occurred. The

Union filed a motion to compel arbitration in the court of common pleas, and the matter was

assigned to a different judge than the one who heard the first appeal of the arbitrator's

decision.

       {¶ 5} The City of Hamilton opposed the Union's motion to compel, and argued that

the first common pleas court decision reversing the original arbitrator's decision remained the

proper judgment, as that decision was affirmed by this court. The common pleas court

disagreed and granted the Union's motion to compel arbitration. The City of Hamilton now

appeals the common pleas court's decision raising the following assignment of error:

       {¶ 6} THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ORDER TO
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COMPEL ARBITRATION, FORCING THE PARTIES TO SUBMIT TO A SECOND

ARBITRATION.

       {¶ 7} According to R.C. 2711.10(D), a common pleas court has the power to vacate

an arbitration award should the arbitrator exceed his or her power. The statute further

provides, "if an award is vacated and the time within which the agreement required the award

to be made has not expired, the court may direct a rehearing by the arbitrators." Thus,

according to the statute, the common pleas court is permitted, but not required, to remand

the issue to the arbitrator for a rehearing.

       {¶ 8} The record is clear that neither the common pleas court, nor this court on

appeal, ordered the matter remanded to an arbitrator for a rehearing after the original

arbitrator's award was reversed. Instead, both decisions recognized that the arbitrator had

exceeded his authority in reviewing the employee's termination according to a standard that

did not exist in the collective bargaining agreement between the City of Hamilton and the

Union. However, before the arbitrator utilized the incorrect standard, the arbitrator found that

the employee should have participated in the investigation and that the collective bargaining

agreement provided for the employee's termination for insubordination.

       {¶ 9} The issue of whether the employee was entitled to reinstatement was settled on

the merits through the decisions of the common pleas court and this court. Both decisions

concluded that the employee was subject to discipline, up to and including termination,

according to the terms of the collective bargaining agreement for his refusal to participate in

the investigation, and that such refusal amounted to insubordination. The decisions further

noted that the reversable aspect of the arbitrator's decision was that he required a showing of

gross insubordination, which was never a standard set forth in the agreement between the

City of Hamilton and the Union. As such, the decisions make clear that the arbitrator did not

have the authority to require a higher standard and that the employee's termination was
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proper given his insubordination.        The arbitrator determined the City of Hamilton's

investigation, and the employee's obligation to cooperate, was necessary due to the gravity

of the seriousness of the allegations involved and the potential life-threatening consequences

to the public and city employees.

       {¶ 10} The fact that the common pleas court and this court reversed the arbitrator's

award for utilizing the incorrect standard does not automatically require a rehearing as the

Union suggests. Instead, and as noted above, requiring a rehearing is a possibility according

to statute, but it is not a requirement. The record is undisputed that the arbitrator provided a

full and fair hearing, during which both parties were heard on whether the employee's

termination was proper. The arbitrator, the common pleas court, and this court all noted the

seriousness of the employee's insubordination by refusing to comply with the investigation,

and that termination was a consequence of insubordination. As such, the Union had a full

opportunity for a hearing on the matter, and reversal of the arbitrator's incorrect use of a legal

standard does not vitiate the arbitrator's determination, as well as the determinations of

common pleas court and this court, that termination was a proper consequence of

insubordination.

       {¶ 11} Given the analysis of both courts, the parties were never sent back to "square

one" because of the appellate process, nor were they presented with a situation where the

merits of the issue involved were not decided. Without any remand instructions from the

common pleas court or this court, the effect of the common pleas court's reversal was to

establish that the termination was proper given the collective bargaining agreement, and that

decision was affirmed by this court on appeal. As such, the Union is not entitled to re-

arbitrate the issue, and the common pleas court erred in holding otherwise.

       {¶ 12} We would also note that even if a rehearing was permitted, the Union did not

meet the timing requirements set forth in the parties' collective bargaining agreement.
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According to that agreement, a grievance was required to be filed within 15 days of a

disposition triggering an arbitration demand. Thus, and even if a rehearing was required, the

Union had to submit the grievance within 15 days of having its case dismissed by the Ohio

Supreme Court for lack of prosecution. However, it did not. Instead, the Union waited four

months before asking that the issue be submitted for a second arbitration. Thus, the

grievance was filed outside the timing requirements set forth by the collective bargaining

agreement, providing a second reason why the common pleas court erred in granting the

Union's motion to compel.1

        {¶ 13} We accordingly find that the common pleas court erred in granting the Union's

motion to compel. As such, the City of Hamilton's sole assignment of error is sustained.

        {¶ 14} Judgment reversed.


        RINGLAND, P.J., concurs.

        M. POWELL, J., concurs in judgment.



        M. POWELL, J., concurring in judgment.

        {¶ 15} With regard and respect for my colleagues, I concur in judgment only. I do not

agree with the analysis or conclusion that the matter was properly decided on its merits

through the common pleas court's reversal of the arbitrator's award or this court's affirmance

of the common pleas court's decision. I dissented in the Union's appeal to this court, and still

maintain my position that the arbitrator acted within his authority in overturning the

employee's termination and ordering reinstatement.

        {¶ 16} Even so, I concur in the overall decision to reverse the second decision

rendered by the common pleas court because of the Union's failure to pursue arbitration


1. The common pleas court did not address the timing aspect of the Union's appeal. Instead, the common pleas
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within the timeframe set forth in the CBA.

        {¶ 17} The CBA's provision clearly requires the arbitration demand within 15 days, and

the Union did not inform the City of Hamilton of its intent to arbitrate for the second time until

four months after the Ohio Supreme Court dismissed the case for lack of prosecution. Once

the 15 days passed, the Union was no longer able to assert its arbitration demand, and I

must agree to reverse the common pleas court's decision. However, I write separately to

state that I concur in judgment only because of the Union’s procedural default.




court determined that the timing issue was a matter for the arbitrator to determine.
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