[Cite as Stow Firefighters, IAFF Local 1662 v. Stow, 193Ohio App.3d 148, 2011-Ohio-1559.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STOW FIREFIGHTERS,                                       C.A. No.         25209
IAFF LOCAL 1662,

        Appellant and Cross-Appellee,
                                                         APPEAL FROM JUDGMENT
        v.                                               ENTERED IN THE
                                                         COURT OF COMMON PLEAS
CITY OF STOW,                                            COUNTY OF SUMMIT, OHIO
                                                         CASE No.   CV 2009 05 3705
        Appellee and Cross-Appellant.

                                DECISION AND JOURNAL ENTRY

Dated: March 31, 2011



Ryan J. Lemmerbrock, for appellant and cross-appellee.

Brian A. Reali, Stow Law Director, and Kelley Bryan, Assistant Law Director; and R. Scott
Harvey, for appellee and cross-appellant.




        DICKINSON, Presiding Judge.

                                           INTRODUCTION

        {¶ 1} The city of Stow suspended Rod Yoder, a member of the city’s fire department,

for three days for allegedly harassing and acting discourteously, disrespectfully, and

unprofessionally toward a member of the city’s parks department and for supposedly being

insubordinate and dishonest during an investigation of that alleged misconduct. At the same

time it suspended him, it ordered him to submit to a fitness-for-duty evaluation by a specific

psychologist and placed him on involuntary paid leave pending that evaluation. Following the

fitness-for-duty evaluation, the city continued him on involuntary leave, but changed it to unpaid
                                                 2


leave, and told him he could not return to work until the psychologist released him for duty. At

the conclusion of the unpaid leave, it discharged him because his leave had expired and the

psychologist had not released him for duty.

       {¶ 2} While Yoder was on paid leave, his collective-bargaining representative, Local

1662 of the International Association of Firefighters, filed a grievance on his behalf, challenging

the suspension, the order that he submit to a fitness-for-duty evaluation, and the involuntary

leave. After the union filed that grievance, but before the arbitrator heard it, the city placed

Yoder on unpaid leave. He reached the end of his unpaid leave and the city discharged him after

the arbitrator heard the grievance, but before he issued his opinion. The union filed a second

grievance challenging the discharge. This opinion addresses the first grievance. The second

grievance is addressed in an opinion in a companion case, Stow Firefighters, IAFF Local 1662 v.

Stow, Case No. 25090, 2011-Ohio-1558, which is also being filed today.

       {¶ 3} The arbitrator who heard the first grievance reduced Yoder’s three-day suspension

to one day, determined that the city had reasonable cause for ordering him to submit to the

fitness-for-duty evaluation, determined that the city had acted unreasonably by placing him on

paid leave pending the fitness-for-duty evaluation, determined that the fitness-for-duty

evaluation itself was tainted and, therefore, void, and directed the city to reinstate him with full

back pay and benefits. The union applied to the Summit County Common Pleas Court for an

order confirming the arbitration award, and the city applied to that same court for an order

vacating, modifying, or correcting the award. Although the city did not challenge the arbitrator’s

reduction of Yoder’s three-day suspension to one day, it did challenge the other aspects of his

opinion and award, arguing that he had exceeded his authority.
                                                 3


       {¶ 4} The common pleas court determined that the arbitrator had not exceeded his

authority or jurisdiction by addressing the order that Yoder submit to the fitness-for-duty

evaluation or the city’s placing him on paid leave pending that evaluation. It, therefore, affirmed

the parts of the opinion and award that dealt with those matters. It further determined, however,

that the fitness-for-duty evaluation itself and Yoder’s unpaid leave following that evaluation

were not properly before the arbitrator and vacated the parts of the opinion and award dealing

with those matters, along with the order that the city reinstate Yoder with back pay and benefits.

The union appealed, and the city cross-appealed. This court reverses the trial court’s judgment

because the arbitrator’s determination that the union’s grievance was arbitrable did not draw its

essence from the collective-bargaining agreement and the trial court, therefore, should have

vacated the entire arbitration award as requested.

                                        BACKGROUND

       {¶ 5} The parties agree that Yoder made a sarcastic comment to a parks department

employee, Neil Winnen, about some safety-town buildings that Winnen was helping to move

into the fire station where Yoder was working. After someone complained of harassment, the

Stow fire chief, William Kalbaugh, opened an investigation into the incident. Chief Kalbaugh

talked to the park employees and the firefighters who had been present at the time of the

incident. Chief Kalbaugh concluded that Yoder and two other firefighters were lying about what

had happened. As a result, he suspended all three for three days. At the same time that Chief

Kalbaugh informed Yoder of his three-day suspension, the chief also notified him that he was

being placed on involuntary paid leave pending the results of a fitness-for-duty evaluation to be

conducted by Dr. Alfred Grzegorek. The union filed a grievance on behalf of the firefighters.

Yoder’s grievance proceeded separately and is the only grievance at issue in this appeal.
                                                4


       {¶ 6} After notifying Yoder about the evaluation, the chief continued gathering

collateral information from other firefighters about other alleged incidents Yoder had been

involved in over the years. In preparation for the evaluation, the chief disclosed the information

to Dr. Grzegorek, but refused to share it with Yoder or the union. On the first day of the

arbitration hearing, the city was required to disclose the information in response to a subpoena

duces tecum.

                                     THE ARBITRATION

       {¶ 7} The union filed the grievance on Yoder’s behalf, using a preprinted grievance

form. On the part of the form captioned “Alleged Contract Violation,” it wrote: “Article XII,

and all other applicable Articles of Collective Bargaining Agreement.” Article XII deals with

disciplinary procedure and, among other things, provides that “[d]iscipline shall be imposed only

for just cause.”

       {¶ 8} On the part of the form captioned “Brief Description of Violation,” it wrote, in

part, that Chief Kalbaugh had suspended Yoder for three days without pay “stemming from a

complaint filed by a City Parks Department employee against Firefighter Yoder and Chief

Kalbaugh’s investigation of the complaint” and “Chief Kalbaugh has also placed Firefighter

Yoder on Administrative Leave and ordered him to undergo a fitness for duty examination.” In

that same part, after reciting that the chief had alleged that Yoder had harassed Winnen and had

been untruthful and evasive during the chief’s investigation, it asserted that the chief’s

allegations “are without basis, and are the result of a biased, unfair investigation engineered to

support the charges against Firefighter Yoder,” and that “Firefighter Yoder did not harass

Winnen, nor was he untruthful or evasive in responding to Winnen’s allegations.” The union

concluded the “Brief Description” by asserting that Yoder was “denied a fair and impartial
                                                5


investigation of the claims against [him].” The union completed the part of the form captioned

“Remedy Requested” by asking that Yoder’s three-day suspension be rescinded, that he be

compensated for any wages or benefits lost because of the suspension, that he be compensated

for any wages or benefits lost “as a result of being taken off shift and subjected to a fitness for

duty examination by a psychologist; that all records relating to the discipline be expunged; and

any other remedies deemed equitable.”

       {¶ 9} An arbitrator chosen by the city and the union conducted a four-day hearing

spread over four months. He heard testimony from 16 witnesses and issued a 74-page opinion

and award. In that opinion and award, he listed three issues. The first, he described as the

stipulated issue: “1. Did the Employer have just cause to discipline grievant Rod Yoder? If not,

what shall be the remedy?” The other two, he described as issues also presented by the evidence:

“2. Whether or not the City’s order that the grievant submit to a psychological fitness for duty

evaluation is arbitrable?” and “3. Whether or not the City had reasonable cause to refer the

grievant for a psychological fitness for duty evaluation and its placement of the grievant on

involuntary leave?”

       {¶ 10} The arbitrator found that the city had failed to prove that Yoder had committed

most of the offenses with which it had charged him. Specifically, while he was convinced that

some kind of exchange took place between Yoder and the parks-department employee, he was

not convinced that that exchange had amounted to harassment as charged by the city. He did

find that the city had shown that Yoder had been discourteous and unprofessional, thereby

violating Fire Department Rules and Regulations 600.01.01. The arbitrator further determined

that the city had failed to show that Yoder was untruthful or attempted to mislead the chief in his

investigation.
                                                   6


       {¶ 11} The arbitrator noted that the city had argued that the chief’s order that Yoder

submit to a fitness-for-duty evaluation was not arbitrable. But he rejected that argument: “The

record reveals that the section of the instant grievance entitled ‘Brief Description of Violation’

specifically mentions the placement of the grievant on administrative leave and the order that he

undergo a fitness for duty evaluation. Furthermore, the grievance specifically requests that the

grievant ‘* * * be compensated for any wages and/or benefits lost as a result of being taken off

shift and subjected to a fitness for duty examination by a psychologist; * * *.’ Based upon the

content of the grievance language describing the alleged contractual violation by the City and the

Union’s requested remedy in this case, the arbitrator determines the instant grievance constitutes

a challenge to the exercise of management’s rights and responsibilities set forth under Article IV

of the collective bargaining agreement. Therefore, the City’s order that the grievant submit to a

psychological fitness for duty evaluation is, in fact, arbitrable.”

       {¶ 12} Having determined that the city’s order for the fitness-for-duty evaluation was

arbitrable, the arbitrator further determined that the city had a reasonable basis for giving that

order: “The arbitrator finds that [Mr.] Smith’s reporting of a physical altercation involving the

grievant, as well as the ‘collateral information’ concerning the grievant which was collected by

Chief Kalbaugh, is sufficient to find reasonable cause for the City to order the grievant to submit

to a psychological fitness for duty examination.” But he concluded that it was unreasonable to

place Yoder on administrative leave pending that evaluation: “The arbitrator determines that it

was unreasonable for the City to place the grievant on involuntary administrative leave [before

the evaluation] without ‘more substantial or probative evidence’ giving the City a reasonable

basis to place the grievant on involuntary leave, paid or unpaid. No exigent circumstances were
                                                7


shown to exist. Such action by the City in this case was arbitrary and capricious, and constituted

an abuse of managerial discretion.”

       {¶ 13} Despite having determined that the city had reasonable cause for ordering the

fitness-for-duty evaluation, the arbitrator found that the evaluation itself was fatally flawed. In

part, he reached that conclusion based on the fact that Dr. Grzegorek’s description in his report

of the two written statements from other firefighters that the city had provided was inaccurate.

According to the arbitrator, Dr. Grzegorek had asserted that both statements accused Yoder of

“physical aggressiveness beyond shoving or pushing” although, according to the arbitrator,

neither did. He also reached that conclusion based upon the city’s refusal to provide the union or

Yoder copies of the materials it had given Dr. Grzegorek until required to do so by subpoena

during the arbitration hearing: “The examiner’s reliance, in part, on the ‘collateral information’

consisting of multiple levels of hearsay and for which the grievant and Union were without

adequate notice and an opportunity to respond to for the examiner’s benefit, undermined and

severely tainted Dr. Grzegorek’s psychological evaluation.” The arbitrator further wrote that he

found “the probative value of the grievant’s fitness for duty evaluation was seriously undermined

due to the fact that Dr. Grzegorek did not question the grievant during the interview process

concerning any of the incidents contained in the City’s collateral information.” The arbitrator

concluded that the city “did not have reasonable cause to place or maintain the grievant on

administrative leave following the issuance of Dr. Grzegorek’s report.”

       {¶ 14} In his opinion and award, the arbitrator sustained the union’s grievance in part:

“The grievance is sustained in part. The grievant’s three-day suspension was without just cause,

and the same is hereby modified to a one-day suspension without pay. The City’s placement of

the grievant on involuntary leave pending and subsequent to his fitness for duty examination
                                                8


shall be set aside as void and without effect for lack of reasonable cause, and the grievant shall

be reinstated to his position with full back pay and benefits.” The union applied to the Summit

County Common Pleas Court for an order affirming the arbitrator’s opinion and award, and the

city applied to the same court for an order vacating, modifying, or correcting that opinion and

award.

                                THE COMMON PLEAS COURT

         {¶ 15} The city did not challenge the arbitrator’s determination that the three-day

suspension was without just cause or his modification of that suspension to one day. Therefore,

the part of the arbitrator’s decision and award that addressed the incident with the parks-

department employee and Yoder’s subsequent suspension are not at issue in this appeal.

         {¶ 16} The city has argued that the arbitrator exceeded his authority by addressing the

parts of the grievance that challenged the city’s order that Yoder submit to the fitness-for-duty

evaluation and the leave dispute flowing from it, by determining that the city acted unreasonably

by placing Yoder on leave pending and subsequent to the fitness-for-duty evaluation, by

determining that the evaluation was “fatally flawed,” and by determining that Yoder should be

reinstated with full back pay and benefits.

         {¶ 17} The common pleas court refused to vacate, modify, or correct the arbitrator’s

determination that the contested parts of the grievance were arbitrable under the terms of the

collective-bargaining agreement. According to the court, that part of the arbitrator’s order and

award “drew its essence” from the collective-bargaining agreement and there was a “rational

nexus between the agreement and [that] portion of the arbitrator’s findings.” It also refused to

vacate, modify, or correct the arbitrator’s determination that the city had a reasonable basis for

ordering Yoder to submit to the fitness-for-duty evaluation.
                                                9


       {¶ 18} The court further refused to vacate, modify, or correct the part of the arbitrator’s

opinion and award that determined that the city’s order placing Yoder on paid leave pending the

fitness-for-duty evaluation was void. It held that the arbitrator acted “within his authority to

weigh the conflicting opinions and testimony before him and to evaluate the credibility of the

witnesses” in determining that the city had abused its “managerial discretion” by placing him on

leave pending the evaluation.

       {¶ 19} Finally, however, the court vacated the arbitrator’s determination that the city

acted without reasonable cause when it placed Yoder on unpaid leave following the fitness-for-

duty evaluation and his direction that the city reinstate him with full back pay and benefits.

According to the court, the issue of whether the fitness-for-duty evaluation was fatally flawed

was not properly before the arbitrator.

       {¶ 20} The union appealed and has assigned two errors. The city cross-appealed and has

assigned two errors.

                           ARBITRABILITY OF THE GRIEVANCE

       {¶ 21} The city’s first assignment of error is that the trial court incorrectly denied its

application to vacate the arbitrator’s award because the union’s grievance is not arbitrable under

the collective-bargaining agreement.      The city has argued that the parts of the grievance

involving the city’s order that Yoder submit to a fitness-for-duty evaluation and its placement of

him on involuntary leave pending that evaluation are not arbitrable under the contract because

the parties did not bargain for any limitations on the city’s otherwise unrestricted right to

evaluate its employees’ fitness for duty. It has also argued that there is no rational nexus

between the arbitrator’s award and the collective-bargaining agreement because the agreement

says nothing about the city’s right to make decisions regarding an employee’s fitness for duty.
                                                 10


       {¶ 22} Neither party has suggested that the question of arbitrability was not a question to

be decided by the arbitrator in the first instance. For purposes of this decision, therefore, this

court has assumed, without deciding, that it was. Contra Council of Smaller Ents. v. Gates,

McDonald & Co. (1998), 80 Ohio St.3d 661, 666, quoting AT & T Technologies, Inc. v.

Communications Workers of Am. (1986), 475 U.S. 643, 649 (“ ‘the question of arbitrability—

whether a[n] * * * agreement creates a duty for the parties to arbitrate the particular grievance—

is undeniably an issue for judicial determination’ ”).

       {¶ 23} “[T]he courts play only a limited role when asked to review the decision of an

arbitrator” regarding a collective-bargaining agreement. United Paperworkers Internatl. Union,

AFL-CIO v. Misco Inc. (1987), 484 U.S. 29, 36. “The courts are not authorized to reconsider the

merits of an award even though the parties may allege that the award rests on errors of fact or on

misinterpretation of the contract.” Id. Trial courts “ ‘do not sit to hear claims of factual or legal

error by an arbitrator as an appellate court does in reviewing decisions of lower courts.’ ”

Summit Cty. Bd. of Mental Retardation & Developmental Disabilities v. Am. Fedn. of State, Cty.

& Mun. Emps. (1988), 39 Ohio App.3d 175, 176, quoting United Paperworkers, 484 U.S. at 38.

A court may not reject the factual findings of an arbitrator simply because it disagrees with them.

Id. “ ‘The same is true of the arbitrator’s interpretation of the contract.’ ” Id., quoting United

Paperworkers, 484 U.S. at 38. “ ‘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.’ ” Id., quoting United Paperworkers, 484 U.S. at 38.

       {¶ 24} “Contracting parties who agree to submit disputes to an arbitrator for final

decision have chosen to bypass the normal litigation process. If parties cannot rely on the
                                                11


arbitrator’s decision (if a court may overrule that decision because it perceives factual or legal

error in the decision), the parties have lost the benefit of their bargain.” Automated Tracking

Sys., Inc. v. Great Am. Ins. Co. (1998), 130 Ohio App.3d 238, 243 quoting Motor Wheel Corp. v.

Goodyear Tire & Rubber Co. (1994), 98 Ohio App.3d 45, 52.

       {¶ 25} The parties have implicitly agreed that the arbitrator was authorized to determine

substantive arbitrability in the first instance. See Belmont Cty. Sheriff v. Fraternal Order of

Police, Ohio Labor Council Inc., 104 Ohio St.3d 568, 2004-Ohio-7106, at ¶ 11. In reviewing the

arbitrability question, the trial court correctly applied the standard it would have applied to any

other matter that the parties had agreed to arbitrate. Id., citing AT & T Technologies, Inc., 475

U.S. at 649. This court applies a de novo standard of review to the trial court’s decision on a

motion to vacate under R.C. 2711.10. Cloverleaf Local School Dist. Bd. of Edn. v. Ohio Assn. of

Pub. School Emps., Local 371 (July 19, 2000), 9th Dist. No. 3000-M, 2000 WL 988759 at * 2.

                      Section 2711.10(D): Vacating an Arbitrator’s Award

       {¶ 26} Under R.C. 2711.10(D), “the court of common pleas shall make an order vacating

the [arbitration] award upon the application of any party to the arbitration if * * * [t]he

arbitrator[] exceeded [his] powers.” The purpose of R.C. 2711.109(D) is “to ensure that the

parties get what they bargained for by keeping the arbitrator within the bounds of the authority

they gave him” in the underlying arbitration agreement. Piqua v. Fraternal Order of Police, 185

Ohio App. 3d 496, 2009-Ohio-6591, at ¶ 21. Generally speaking, provided that the arbitrator’s

award “ ‘draws its essence from the collective bargaining agreement and is not unlawful,

arbitrary or capricious,’ ” the arbitrator has not exceeded his power under R.C. 2711.10(D). Id.

at ¶ 22, quoting Findlay City School Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d

129, paragraph two of the syllabus. An arbitrator’s award draws its essence from a collective-
                                                12


bargaining agreement when there is a rational nexus between the agreement and the award. S.W.

Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627 (2001), 91 Ohio St.3d

108, 110. There is a rational nexus between the two if the award is “‘rationally supported’ by

[the] agreement or can be ‘rationally derived’ from [it].” Piqua, 2009-Ohio-6591, at ¶ 26,

quoting Dayton v. Fraternal Order of Police, 2d Dist. No. 20863, 2006-Ohio-1129, at ¶ 11.

“Generally, if the arbitrator’s award is based on the language and requirements of the agreement,

the arbitrator has not exceeded his powers.” Id. at ¶ 22.

       {¶ 27} The Second District Court of Appeals has described the standard for determining

whether an arbitrator’s award “has rational support or can be rationally derived from the terms of

the agreement.” Piqua, 185 Ohio App.3d 496, 2009-Ohio-6591, at ¶ 24, citing Ohio Office of

Collective Bargaining v. Ohio Civil Serv. Emps., Local 11 (1991), 59 Ohio St.3d 177, syllabus.

The court in Piqua explained that “[t]he word ‘support’ has many senses. Here, we understand

the Supreme Court’s use of the word in the sense of ‘justify,’ that the agreement must justify the

arbitrator’s award: the agreement must give grounds for, make legitimate, or provide justification

for, the award.” Id. at ¶ 26. “Similarly, the word ‘derive’ can be used in different senses. We

understand the court’s use of the word here to be in the sense that the award may be ‘deduced’

from the agreement, that it may be obtained by reasoning, or reasoned from the agreement.” Id.

                              The Arbitrator’s Decision and Award

       {¶ 28} The collective-bargaining agreement at issue in this case provides that “[a]

grievance is a dispute between the City and the Union or an employee or group of employees, as

to the interpretation, application or violation of any terms or provisions of this Agreement,

excluding those terms or provisions, or any part thereof governed by ordinances, Charter or those

terms or provisions, or any part thereof, under the jurisdiction of the Civil Service Rules and
                                                13


Regulations.” The agreement provides that “[a]ny grievance shall be remedied” through the

procedure described in Article XIII. Step Four of that procedure permits the union to appeal an

unfavorable decision to arbitration. The agreement also provides that “[t]he decision of the

arbitrator shall be final and binding on the parties. The arbitrator shall not have the power to add

or subtract from or modify any of the terms of this Agreement.”

       {¶ 29} Although the arbitration provision is broadly worded, only disputes regarding

“terms or provisions of [the] Agreement” may be arbitrated. The city has argued that issues

related to fitness-for-duty evaluations are not subject to the arbitration clause because such

evaluations are not included in the terms or provisions of the collective-bargaining agreement.

In fact, the arbitrator determined that “there is no provision contained in the parties’ collective

bargaining agreement which specifically pertains to fitness for duty evaluations or otherwise

limits the City’s right to conduct such evaluations.”

       {¶ 30} Despite finding no mention of fitness-for-duty evaluations in the agreement, the

arbitrator went on to determine that the grievance language “constitute[d] a challenge to the

exercise of management’s rights and responsibilities set forth under Article IV of the collective

bargaining agreement.” In support of this conclusion, however, the arbitrator cited only the

language of the grievance form itself rather than language of the collective-bargaining

agreement. The only part of the collective-bargaining agreement the arbitrator mentioned was

the language defining grievance, which requires that in order to be grievable and, therefore,

arbitrable, the disputed issue must be a term or provision of the contract. The arbitrator did not

point to any term or provision of the management rights and responsibilities section of the

agreement that in any way affected the employer’s right to conduct fitness-for-duty evaluations.

Although acknowledging that the city had consistently argued that the grievance regarding the
                                                 14


order to submit to a fitness-for-duty evaluation was not arbitrable, he rejected that argument

based on an analysis of the grievance language under the heading of “Brief Description of

Violation” and the remedy requested. The arbitrator acknowledged that he “[b]ased * * * [his

decision on] the grievance language” rather than on any language or requirements of the

collective bargaining agreement. See Piqua, 185 Ohio App. 3d 496, 2009-Ohio-6591, at ¶ 22.

       {¶ 31} As the arbitrator did not explain how his arbitrability decision is rationally

supported by the collective-bargaining agreement, this court must determine whether his decision

could be rationally derived from the collective-bargaining agreement in order to determine

whether the trial court should have vacated the arbitrator’s decision in this regard. See Piqua at ¶

26, quoting Dayton v. Fraternal Order of Police, 2d Dist. No. 20863, 2006-Ohio-1129, at ¶ 11.

The question is whether the arbitrator’s decision that the fitness-for-duty evaluation “properly

falls under those actions of management which are covered by Article IV of the collective

bargaining agreement” can be rationally derived from the contract. Article IV of the agreement

is entitled “Management Responsibilities.” Section 4.03 provides that “[t]he City hereby retains

and reserves unto itself all rights, power, authority, duty and responsibility conferred on and

vested in it by the laws and constitution of the State of Ohio and the Charter of the City of

Stow.” Section 4.04 lists certain “exclusive rights and responsibilities of the City” “[n]ot by way

of limitation,” but “only to indicate the type of rights retained by the City.” The list includes the

right and responsibility “[t]o direct, supervise, evaluate, or hire and select employees.” Section

4.05 of the agreement provides that “the Union agrees that all of the functions, rights, powers,

responsibilities and authority of the Employer in regard to the operation of its work and business

and the direction of its workforce which the Employer has not specifically abridged, deleted,

granted or modified by the express and specific written provisions of this Agreement are, and
                                                  15


shall remain, exclusively those of the Employer.” The plain language of the agreement seems to

indicate that the city has reserved for itself the right to evaluate its employees’ fitness for duty.

        {¶ 32} The union has not pointed to any term or provision of the collective-bargaining

agreement that modifies the city’s reserved right to order an employee to submit to a fitness-for-

duty evaluation so as to subject disputes regarding such evaluations to arbitration. The union has

argued, however, that management-rights clauses are not exempt from the grievance-and-

arbitration process unless there is forceful evidence that the parties agreed to exclude them. The

city has argued that Supreme Court precedent supports its position that management-rights

clauses in collective-bargaining agreements generally operate to reiterate the statutory

reservation of rights to the employer rather than subjecting those rights to arbitration.

        {¶ 33} Under R.C. 4117.08(C)(2), a public employer retains the right to “evaluate”

employees “[u]nless [it] agrees otherwise in a collective bargaining agreement.” In State ex rel.

Bardo v. Lyndhurst (1988), 37 Ohio St. 3d 106, the Ohio Supreme Court explained that R.C.

4117.08(C) removes the itemized reserved powers from the scope of a collective-bargaining

agreement “unless the parties affirmatively address that subject in their negotiations.” Id. at 113,

fn. 5. The arbitrator in this case agreed with the parties that this collective-bargaining agreement

did not include terms or provisions dealing with fitness-for-duty evaluations. Under Bardo, the

city’s right to evaluate its employees did not become a “term or provision” of the contract,

subject to arbitration, simply by being included in the listing of reserved rights in the

management-responsibilities provision. Both the plain language of R.C. 4117.08(C) and the

Supreme Court’s decision in Bardo run directly contrary to the union’s position that “[i]f an

employer seeks to prohibit management right terms from being subject to arbitration, it must

negotiate terms into the labor agreement excluding such from arbitration.”
                                                 16


       {¶ 34} The narrow standard of judicial review of an arbitrator’s decision requires courts

to overlook an arbitrator’s legal errors and misinterpretations of the contract. Summit Cty. Bd. of

Mental Retardation & Developmental Disabilities, 39 Ohio App.3d 175, 176, quoting United

Paperworkers, 484 U.S. 29, 38. In order to misinterpret the contract, however, the arbitrator

must first attempt to interpret the contract and he “may not ignore the plain language of the

contract.” Id., quoting United Paperworkers, 484 U.S. at 38. In order to avoid being vacated, an

arbitrator’s decision challenged under R.C. 2711.10(D) must be rationally supported by the

collective-bargaining agreement or, at least, be capable of being rationally derived from it. See

Piqua, 185 Ohio App. 3d 496, 2009-Ohio-6591, at ¶ 24, citing Ohio Office of Collective

Bargaining, 59 Ohio St. 3d 177, syllabus.

       {¶ 35} It does not appear that the terms of the collective-bargaining agreement in this

matter can “give grounds for, make legitimate, or provide justification for, the [arbitrator’s]

award” in regard to the arbitrability of the grievance. Piqua, 185 Ohio App. 3d 496, 2009-Ohio-

6591, at ¶ 26. Furthermore, “the award may [not] be ‘deduced’ from the agreement [or] * * *

obtained by reasoning, or reasoned from the agreement.” Id. Having reviewed the arbitrator’s

decision, the collective-bargaining agreement, the arguments of the parties, and the entirety of

the record in this case, this court is unable to point to any rational nexus between the terms of the

collective-bargaining agreement and the arbitrator’s decision regarding the arbitrability of the

Union’s grievance. See id., quoting Dayton v. Fraternal Order of Police, 2d Dist. No. 20863,

2006-Ohio-1129, at ¶ 11.

       {¶ 36} Therefore, the arbitrator’s award failed to draw its essence from the collective-

bargaining agreement and the arbitrator exceeded the power the agreement afforded him. See

R.C. 2711.10(D). Under R.C. 2711.10(D), when an arbitrator exceeds his power, “the court of
                                                 17


common pleas shall make an order vacating the award upon the application of any party to the

arbitration.” In this case, the statute required the trial court to grant the city’s motion to vacate

the part of the arbitrator’s award that addressed the arbitrability of the grievance. The city’s first

assignment of error is sustained to the extent that it addressed the arbitrator’s decision that the

union’s grievance was arbitrable.

            MERITS OF THE ARBITRATOR’S DECISION REGARDING LEAVE

       {¶ 37} The second part of the city’s first assignment of error is that the trial court should

have vacated the part of the arbitrator’s award that ruled that the city breached the management-

rights article of the collective-bargaining agreement by placing Yoder on paid administrative

leave pending the fitness-for-duty evaluation. This court has determined that the trial court

should have vacated the arbitrator’s decision that the city’s placement of Yoder on leave pending

the fitness-for-duty evaluation was arbitrable under the collective-bargaining agreement.

Therefore, this part of the city’s first assignment of error has been rendered moot and is

overruled on that basis.

                                 ARBITRABILITY REVISITED

       {¶ 38} The city’s second assignment of error is that the grievance is not arbitrable

because R.C. 4117.10(A) requires that if the collective-bargaining agreement is silent regarding

the employees’ fitness-for-duty, the parties are governed by Ohio civil-service law rather than

the terms of the collective-bargaining agreement. In this assignment of error, the city has not

argued that the arbitrator exceeded his authority under R.C. 2711.10(D). This argument is

merely an attack on the legal foundations of the arbitrator’s decision, which this court is unable

to review. Summit Cty. Bd. of Mental Retardation & Developmental Disabilities, 39 Ohio App.

3d 175, 176, quoting United Paperworkers, 484 U.S. at 38. Furthermore, since this court has
                                                18


determined that the trial court should have vacated the arbitrator’s decision that the dispute

flowing from the fitness-for-duty evaluation was arbitrable, this assignment of error is moot and

is overruled on that basis.

                          THE UNION’S ASSIGNMENTS OF ERROR

       {¶ 39} The union’s first assignment of error is that the trial court incorrectly modified the

part of the arbitration award dealing with Yoder’s involuntary leave following the fitness-for-

duty evaluation because it determined the issue was not before the arbitrator. The union’s

second assignment of error is that the trial court incorrectly modified the arbitration award based

on its conclusion that the arbitrator’s remedy failed to draw its essence from the collective-

bargaining agreement. As this court has determined that the arbitrator exceeded his authority

and the award should have been vacated in its entirety, these assignments of error are moot and

are overruled on that basis. App.R. 12(A)(1)(c).

                                         CONCLUSION

       {¶ 40} The city’s first assignment of error is sustained because the arbitrator exceeded

his authority by deciding that the grievance was arbitrable and, therefore, should not have

reached the merits of the dispute over whether the city breached the collective-bargaining

agreement by placing Yoder on leave pending the fitness-for-duty evaluation. Thus, the trial

court should have granted the city’s motion to vacate the arbitrator’s award under R.C.

2711.10(D). The city’s second assignment of error and both of the union’s assignments of error

are moot based on this court’s disposition of the city’s first assignment of error. The judgment of

the Summit County Common Pleas Court is reversed, and the cause remanded for further

proceedings consistent with this opinion.

                                                                                Judgment reversed
                                                                              and cause remanded.
                                                19


       WHITMORE, J., concurs.

       MOORE, J., dissents.

                                    __________________


       MOORE, Judge dissenting.

       {¶ 41} I respectfully dissent, as I would conclude that the arbitrator’s award draws its

essence from the collective-bargaining agreement.        I believe that the majority’s technical

interpretation of the collective-bargaining agreement is a fair interpretation. However, it fails to

give the arbitrator’s award the appropriate level of deference.

       {¶ 42} Because arbitration is favored as an alternative method of dispute resolution, we

encourage its practice and give the decision of the arbitrator a great deal of deference so long as

the award “draws its essence” from the collective-bargaining agreement. Technigraphics, Inc. v.

MIT, L.L.C., 9th Dist. No. 09CA0005, 2010-Ohio-2946, at ¶ 9, 15. “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. Emps. Assn. (1991), 59 Ohio St.3d 177, syllabus.

       {¶ 43} This court has, when reviewing a trial court’s ruling upholding an arbitrator’s

decision, said:

       [W]hen a provision in an agreement is subject to more than one interpretation, and
       the parties have agreed to submit their contract interpretation disputes to final and
       binding arbitration, the arbitrator’s interpretation of the contract, and not the
       interpretation of a reviewing court, governs the rights of the parties. * * * “This
       is so because the arbitrator’s interpretation of the contract is what the parties
       bargained for in agreeing to submit their disputes to final and binding arbitration.
       The arbitrator’s interpretation must prevail regardless of whether his or her
       interpretation is the most reasonable under the circumstances.”
                                                20


Cty. of Summit v. Cuyahoga Falls, 9th Dist. No. 21799, 2004-Ohio-1879, at ¶ 10, quoting

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

174, 177-178, 556 N.E.2d 1186.


       {¶ 44} In fact, the Supreme Court of Ohio has stated that “ ‘if the reasoning (of an

arbitrator) is so palpably faulty that no judge, or group of judges, could ever conceivably have

made such a ruling, then the Court can strike down the award.’ ” Goodyear Tire & Rubber Co.

v. Local Union No. 200, United Rubber, Cork, Linoleum & Plastic Workers of Am. (1975), 42

Ohio St.2d 516, 523, quoting Safeway Stores v. Am. Bakery & Confectionary Workers, Local 11

(C.A.5, 1968), 390 F.2d 79, 82.

       {¶ 45} Under the facts of this case, I believe that a judge, or group of judges, could reach

the conclusion that the arbitrator’s interpretation of the collective bargaining agreement drew its

essence from the agreement. Accordingly, I respectfully dissent.
