[Cite as Swanson v. Stark Cty. Deputies Assn., 2011-Ohio-1327.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



TIMOTHY A. SWANSON                                         JUDGES:
                                                           Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                                 Hon. William B. Hoffman, J.
                                                           Hon. John W. Wise, J.
-vs-

STARK COUNTY DEPUTIES                                      Case No. 2010 CA 00168
ASSOCIATION

        Defendant-Appellant                                OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Court of Common
                                                       Pleas, Case No. 2010 CV 00766


JUDGMENT:                                              Affirmed



DATE OF JUDGMENT ENTRY:                                March 21, 2011



APPEARANCES:

For Plaintiff-Appellee                                 For Defendant-Appellant

VIVIANNE WHALEN                                        RODNEY A. BACA
STARK COUNTY SHERIFF'S OFFICE                          SCHNARS, BACA &
4500 Atlantic Boulevard, NE                            INFANTINO
Canton, Ohio 44705                                     610 Market Avenue North
                                                       Canton, Ohio 44702
DEBORAH DAWSON
ASSISTANT PROSECUTOR
110 Central Plaza South
Canton, Ohio 44702
Stark County, Case No. 2010 CA 00168                                                    2

Wise, J.

       {¶1}   Appellant Stark County Deputies Association (“SCDA”) appeals from the

decision of the Court of Common Pleas, Stark County, which vacated an arbitrator’s

decision regarding a sheriff deputy’s request for job duty transfer. Appellee Timothy

Swanson is the Stark County Sheriff. The relevant facts leading to this appeal are as

follows.

       {¶2}   The Stark County Sheriff’s Department has three main divisions: jail, civil,

and road patrol. At the times pertinent to this appeal, Stark County Sheriff Deputy

Michael Lattea was assigned to duty at the Stark County Jail. Deputy Lattea has been

on the force since 1996. In May 2009, he decided that he would prefer being on road

patrol or in the civil division, which handles court security and other non-patrolling

duties. He made his formal request for transfer through his chain of command, where it

was ultimately denied.

       {¶3}   On July 10, 2009 Deputy Lattea, through the Stark County Deputies

Association, filed a grievance with the Sheriff’s Office. Pursuant to the Collective

Bargaining Agreement (“CBA”), Article 11, Lattea’s grievance was presented to the

division commander and then to the Sheriff. At both steps of the process, Lattea’s

grievance was denied.

       {¶4}   The Stark County Deputies Association proceeded with arbitration for

Deputy Lattea pursuant to the CBA. A panel of arbitrators was requested by the Stark

County Deputies Association through Federal Mediation and Conciliation Services.

From a list of seven arbitrators, one was selected to hear the issues.
Stark County, Case No. 2010 CA 00168                                                        3


       {¶5}   The arbitration was held on January 27, 2010. An opinion and award was

issued on January 31, 2010. After reviewing the evidence, the abitrator decided that the

grievance should be granted and directed the Sheriff’s Office to transfer Deputy Lattea

to the civil division as soon as practicable.

       {¶6}   Upon a motion to vacate filed by appellee, the trial court held a hearing,

and, citing R.C. 2711.10(D), ordered that the arbitrator’s decision be vacated. Judgment

Entry, June 18, 2010.

       {¶7}   On June 29, 2010, SCDA filed a notice of appeal. It herein raises the

following sole Assignment of Error:

       {¶8}   “I.    THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT WHEN IT DETERMINED THAT THE ARBITRATOR EXCEEDED HIS

POWERS, WHEN IT SUBSTITUTED ITS INTERPRETATION OF THE COLLECTIVE

BARGAINING          AGREEMENT      FOR     THE       INTERPRETATION      MADE      BY    THE

ARBITRATOR AND WHEN IT MISAPPLIED THE TEST FOR OVERTURNING AN

ARBITRATOR’S AWARD PURSUANT TO ORC 2711.10.”

                                                I.

       {¶9}   In its sole Assignment of Error, Appellant SCDA contends the trial court

committed reversible error in vacating the arbitrator’s decision regarding Deputy

Lattea’s transfer from jail duty to civil division. We disagree.

       {¶10} “For a dispute resolution procedure to be classified as ‘arbitration,’ the

decision rendered must be final, binding, and without any qualifications or conditions as

to the finality of an award. * * * The jurisdiction of the courts to review arbitration awards

is thus statutorily restricted; it is narrow and it is limited.” Smith v. Palm Harbor Homes,
Stark County, Case No. 2010 CA 00168                                                  4

Inc., Guernsey App.No. 05 CA 31, 2006-Ohio-5863, ¶ 14, quoting Taylor Bldg. Corp. of

Am. v. Benfield, Clermont App.No. CA2005-09-083, 2006-Ohio-4428, ¶ 47, quoting

Miller v. Gunckle, 96 Ohio St.3d 359, 2002-Ohio-4932, 775 N.E.2d 475, ¶ 10 (additional

citations and internal quotations omitted). It is generally recognized that the

interpretation of the agreement and the determination of the factual matters are clearly

within the powers of the arbitrator. See Lancaster Educ. Ass'n. v. Lancaster City School

Dist. Bd. of Educ. (May 29, 1998), Fairfield App.No. 97 CA 82, citing Hillsboro v.

Fraternal Order of Police, Ohio Labor Council, Inc. (1990), 52 Ohio St.3d 174, 556

N.E.2d 1186. Nonetheless, R.C. 2711.10 provides for the ability of a common pleas

court to vacate an arbitration award under certain circumstances. The applicable

subsection in this case is subsection (D), which states a court shall vacate an award if

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.”

      {¶11} Thus, “[a] reviewing court's role in evaluating an arbitration award is

limited to determining whether the award is unlawful, arbitrary, or capricious and

whether it draws its essence from the collective bargaining agreement.* * * For an

award to draw its essence from the CBA, there must be a rational nexus between the

agreement and the award* * *.” International Assn. of Firefighters, Local 67 v.

Columbus, 95 Ohio St.3d 101, 102, 2002-Ohio-1936. (Citations omitted.) This Court

reviews the trial court's decision de novo. See Board of Trustees of Miami Township v.

Fraternal Order of Police, Ohio Labor Council, Inc. (1998), 81 Ohio St.3d 269.

      {¶12} In the case sub judice, Article 11 of the CBA addresses arbitration. Under

Section 7(A) of said article, the arbitrator “shall limit his decision strictly to the
Stark County, Case No. 2010 CA 00168                                                       5


interpretation, application or enforcement of the specific articles and sections of this

agreement.”

       {¶13} Under Article 11, Section 7(C) the decision of the arbitrator “shall be

binding on both parties.”

       {¶14} Appellant contends that by the clear language of Article 11, an arbitrator is

given the power to interpret and enforce specific articles and sections of the CBA

between the Sheriff’s Office and the Stark County Deputies Association. In this

instance, the pertinent issue before the arbitrator was the interpretation of Section 1

through 5 of Article 15 of the CBA, which addresses “transfers within a classification” as

follows:

       {¶15} “SECTION 1. A transfer within a classification shall be defined as the

movement of an employee from one position to another position within the same

classification as defined by Article 3, Section 1, but assigned to another division of the

department. Such transfer shall not involve any change in the employee’s rate of pay.

       {¶16} “SECTION 2.        Employees shall be permitted to submit requests for

transfer within their classification throughout the year.        Such requests shall be

considered by the Employer.

       {¶17} “SECTION 3. Whenever the Employer determines the individual to be

transferred within his or her classification, the Employer shall first consider the list of

employees who have submitted letters of interest. However, if the Employer determines

that none of the individuals who submitted letters of interest are appropriate for the job,

he shall transfer any individual in that classification that he deems to be appropriate.
Stark County, Case No. 2010 CA 00168                                                      6


       {¶18} “SECTION 4.       Nothing in the Article shall prevent the Employer from

transferring employees within a classification at any time deemed appropriate or

necessary.    This includes such transfer of any employee from a position that the

employee obtained through the submittal of a letter of interest.

       {¶19} “SECTION 5. In any case in which more than one (1) employee is being

considered for a transfer within a classification, the Employer shall utilize seniority as a

favorable factor in determining which employee shall be transferred.”

       {¶20} In his written opinion, the arbitrator in the case sub judice made the

following pertinent findings regarding Article 15, supra:

       {¶21} “The issue here is whether the Employer violated the parties (sic)

Collective Bargaining Agreement by not granting the Grievant his transfer request to the

civil division based on the Employer’s determination that the Grievant was not

appropriate for the job.

       {¶22} “The language in Article XV, Section 3, is very clear and very

unambiguous and favors the Union’s argument. Should the Grievant be qualified or

considered appropriate for the job, then seniority, as favorable factor, in Section 5, shall

prevail and the Grievant would be entitled to the transferred position over the less senior

Deputies. Should the Employer be correct as to the Grievant not being appropriate for

the transfer then the seniority factor does not come into play.

       {¶23} “The Employer selected less senior Deputies over a senior Deputy for the

vacant positions in the Civil Division. The main reasons for the Employer’s choice was

the less senior Deputies needed to be rotated from the Jail to the Civil Division to gain

experiences in that Division so they would eventually be qualified and understand the
Stark County, Case No. 2010 CA 00168                                                   7


work required in all three (3) Divisions. The Employer also believed that the Grievant,

based on his performance ratings, was better suited for the Jail and therefore deemed

not appropriate for the transfer to the Civil Division.

       {¶24} “Article 15, Section 3 has a two pronged requirement.           First, when

determining an employee transfer, the Employer shall first consider the list of

employees who have submitted letters of interest.         Second, the Employer must

determine if any of those individuals are appropriate for the job.     In doing so, the

decision by the Employer, as to whether an employee is appropriate for the job or not,

cannot be made in arbitrary, capricious or unreasonable manner. To do so otherwise

would rule Section 3 meaningless.

       {¶25} “The underlying issue here, is whether the Employer made a correct

determination that the Grievant was not appropriate for the job for which he was

requesting a transfer to.

       {¶26} “When challenged on how the qualifications or non-qualifications of an

employee requesting a transfer was decided, Employers must show what form of

measurement they used to distinguish, as for this case, how the Grievant was or was

not appropriate for the job.” Opinion and Award, January 31, 2010, at 6.

       {¶27} In International Assn. of Firefighters, supra, 2002-Ohio-1936, the Ohio

Supreme Court held: “An arbitrator is confined to interpreting the provisions of a CBA as

written and to construe the terms used in the agreement according to their plain and

ordinary meaning.” Id. at 103, citing Ohio Office of Collective Bargaining v. Ohio Civ.

Serv. Emp. Assn., Local 11, AFSCME, AFL-CIO (1991), 59 Ohio St.3d 177, 180, 572

N.E.2d 71. In the case sub judice, we find several instances of expanded or additional
Stark County, Case No. 2010 CA 00168                                                      8


language instituted by the arbitrator. For example, the arbitrator utilized the terms

“qualified” and “qualifications” in his decision even though they are not found in the

“Transfers” portion of Article 15 and are not necessarily synonymous with the concept of

appropriateness. The arbitrator also indicated that an appropriate deputy’s seniority

“shall prevail,” even though Article 15 merely states that seniority is “a favorable factor”

for consideration. The arbitrator furthermore added the requirements that the sheriff’s

transfer decision cannot be made in an arbitrary, capricious or unreasonable manner,

and that the sheriff “must show what form of measurement [he] used to distinguish ***

how the Grievant was or was not appropriate for the job.” See Opinion and Award at 6.

Again, this language is not found in the pertinent sections of Article 15, and, as appellee

aptly notes, had the parties who negotiated the CBA mutually desired such legal

standards, one would expect to find them in the contractual terms. Instead, the overall

language states that it is the Sheriff who determines who is “appropriate” for a transfer,

not an arbitrator.

       {¶28} Thus, on several grounds, we hold the arbitrator exceeded his powers by

reading language and requirements into the CBA which simply do not exist.

Accordingly, upon review, we find the trial court did not err in determining the arbitrator

had exceeded his powers, and thereby vacating the arbitration award concerning

Deputy Lattea.1



1
   We note the record before us includes a transcript of the hearing before the trial court
and a notebook of documents presented to the arbitrator, but does not appear to include
a transcript of the proceedings before the arbitrator. We have previously held that where
the parties have not provided the trial court or this Court with the transcript of the
arbitrator's hearing, both the trial court and this Court must presume regularity in the
proceedings before the arbitrator. See R.L. Bates Co. v. Schmidt (Dec. 28, 1998),
Delaware App. No. 98CAE07031, citing Knapp v. Edwards Lab. (1980), 61 Ohio St.2d
Stark County, Case No. 2010 CA 00168                                                9


      {¶29} Appellant's sole Assignment of Error is therefore overruled.

      {¶30} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0309




197, 400 N.E.2d 384. However, we find under the present circumstances that our
analysis is not hampered by the lack of said transcript.
Stark County, Case No. 2010 CA 00168                                         10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




TIMOTHY A. SWANSON                        :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
STARK COUNTY DEPUTIES                     :
ASSOCIATION                               :
                                          :
       Defendant-Appellant                :         Case No. 2010 CA 00168




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
