[Cite as Pike-Delta-York Local School Dist. Bd. of Edn. v. Pike-Delta-York Edn. Assn., 2017-Ohio-1476.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     FULTON COUNTY


Pike Delta York Local School                               Court of Appeals No. F-16-006
District Board of Education
                                                           Trial Court No. 16CV000038
        Appellee

v.

Pike Delta York Education Association                      DECISION AND JUDGMENT

        Appellant                                          Decided: April 21, 2017

                                                 *****

        C. Bronston McCord, III, for appellee.

        Christine A. Reardon and Edward J. Stechschulte, for appellant.


                                                 *****

        SINGER, J.

        {¶ 1} Appellant, Pike-Delta-York Education Association (“Association”), appeals

the August 24, 2016 judgment entry of the Fulton County Court of Common Pleas. For

the reasons that follow, we affirm.
                                       Background

      {¶ 2} The Association, as the bargaining representative for its union members, and

appellee, Pike-Delta-York Board of Education (“the Board”), were parties to the Master

Agreement, a collective bargaining agreement (“CBA”), which was effective

September 1, 2014 through August 31, 2017.

      {¶ 3} At all times relevant, Stephanie Rayfield (“Grievant”) was employed by the

Board as a teacher and was a member of the Association. Grievant was also the varsity

softball head coach for 15 years, under a yearly supplemental contract, including the

spring of 2012 (the 2011-2012 school year).

      {¶ 4} Grievant reapplied to be the head softball coach for the 2012-2013 school

year. Both the athletic director and the superintendent recommended Grievant but the

Board hired Sam Keesey, who was not employed by the school district, to be the varsity

softball head coach for the 2012-2013 school year.

                        First Grievance and Arbitration Decision

      {¶ 5} On September 25, 2012, Grievant filed a grievance alleging the Board

violated the CBA by denying the renewal of Grievant’s supplemental softball coaching

contract for the 2012-2013 school year. The grievance was denied and arbitration was

demanded.

      {¶ 6} Keesey was hired again by the Board to be the varsity softball head coach

for the 2013-2014 school year.




2.
       {¶ 7} An arbitration was held on February 18, 2014. On May 22, 2014, the

arbitrator issued a decision, sustaining the grievance and ruling the Board violated the

CBA with respect to the 2012-2013 school year. The arbitrator awarded Grievant back

pay for the 2012-2013 school year. The arbitrator observed that the Association, in its

post hearing brief, also sought compensation for Grievant for the 2013-2014 school year

and for Grievant to be reinstated as head softball coach for the 2014-2015 school year.

However, the arbitrator found:

              The difficulty in awarding the [Association’s] requested remedy is

       that the grievances before this Arbitrator only address the 2012/13 school

       year. As such, no record evidence was adduced at the hearing regarding the

       ensuing years. An Arbitrator cannot render decisions predicated on the

       mere possibility that in ensuing years certain situations may have

       transpired, or base remedies on those possibilities. Furthermore, in that the

       grievances before this Arbitrator only address the 2012/13 school year,

       remedies granted for the 2013/14 and 2014/15 school years would be

       beyond the scope of the grievances, and beyond the authority of this

       Arbitrator.

       {¶ 8} The arbitrator’s decision was not appealed.




3.
                        Second Grievance and Arbitration Decision

       {¶ 9} In May 2014, Grievant applied to be the head softball coach for the 2014-

2015 school year, but was not hired as the Board rehired Keesey. On October 1, 2014,

the Association filed a grievance alleging Grievant did not receive consideration or an

interview for the head softball coach position, despite applying for the position. The

Association also alleged the Board violated several provisions of the CBA, as well as

long standing past precedence. It was further alleged that the Board’s action violated

R.C. 3313.53, and was retaliatory in nature, which violated Grievant’s civil rights. The

relief sought was to “[a]ward contract as head softball coach [and] agree to cease

retaliatory actions.”

       {¶ 10} An arbitration hearing was held on September 16, 2015. On December 22,

2015, the arbitrator issued his decision. The arbitrator determined that two issues were

the subject matter of the arbitration. Those issues were:

              1. Whether the District violated the Agreement when it did not

       consider the grievant or offer her the supplemental contract as Varsity

       Softball Head Coach for the 2014/15 school year? If so, what is the

       remedy?

              2. Whether the District retaliated against the grievant when it did

       not interview or hire her to be Varsity Softball Head Coach for the 2014/15

       school year? If so, what is the remedy?




4.
       {¶ 11} The arbitrator granted the grievance in part and denied it in part. The

arbitrator found the Board did not retaliate against the Grievant, but “[g]iven the past

practice of retaining an incumbent coach,” the Board did violate the CBA by not

awarding Grievant the head softball coaching position for the 2015-16 school year. The

arbitrator found he “cannot apply any remedy prior to the current school year [2015-16]”

because the first arbitrator’s decision “addressed the events and remedy through the

2014-15 school year.” The arbitrator concluded “he has no authority to contradict [the

first arbitrator’s] award in any way.” The arbitrator held the Board’s earlier violation of

the CBA in not awarding Grievant the head coaching position, which was the subject of

the first grievance, resulted in Grievant not being retained in subsequent years. The

arbitrator therefore awarded Grievant the head softball coaching position for the 2015-

2016 school year.

       {¶ 12} On February 22, 2016, the Board filed a motion to vacate/modify/correct an

arbitration award with the trial court; the Association filed a cross-motion/application to

confirm and enforce the arbitration award.

       {¶ 13} On August 24, 2016, the trial court issued its judgment entry, reversing the

arbitrator’s decision. The Association appealed and set forth three assignments of error:

              1. The Trial Court Committed Reversible Error in Entering

       judgement to “Reverse” a final and binding arbitration Award.




5.
             2. The Trial Court committed reversible error when it reversed

      and/or vacated Arbitrator Zeiser’s binding Arbitration Award.

             3. The Trial Court committed reversible error by not entering an

      order to confirm and enforce Arbitrator Zeiser’s binding Arbitration Award.

                                           Law

      {¶ 14} Generally, an arbitration award is considered final because the purpose of

arbitration is to end the controversy and avoid future litigation. Youghiogheny & Ohio

Coal Co. v. Oszust, 23 Ohio St.3d 39, 41, 491 N.E.2d 298 (1986). However, a trial court

may vacate an arbitrator’s award if:

             (A) The award was procured by corruption, fraud, or undue means.

             (B) Evident partiality or corruption on the part of the arbitrators, or

      any of them.

             (C) The arbitrators were guilty of misconduct in refusing to

      postpone the hearing, upon sufficient cause shown, or in refusing to hear

      evidence pertinent and material to the controversy; or of any other

      misbehavior by which the rights of any party have been prejudiced.

             (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. R.C. 2711.10.




6.
       {¶ 15} An arbitrator’s award will not be vacated if the award “draws its essence

from the collective bargaining agreement and is not unlawful, arbitrary or capricious.”

Bd. of Edn. of Findlay City School Dist. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 132-

133, 551 N.E.2d 186 (1990), superseded on other grounds by R.C. 4117.10(A).

       {¶ 16} The powers of an arbitrator are established by the agreement from which he

draws his authority. State Farm Mut. Ins. Co. v. Blevins, 49 Ohio St.3d 165, 551 N.E.2d

955 (1990), paragraph one of the syllabus. The arbitrator has no authority to determine

issues which, under the agreement, the parties did not submit for review. Id.

                                    Standard of Review

       {¶ 17} An appellate court is confined to a review of the trial court’s decision,

pursuant to R.C. 2711, and the substantive merits of the arbitrator’s award are not

reviewable absent evidence of material mistake or extensive impropriety. Hussein v.

Hafner & Shugarman Enters., 6th Dist. Wood No. WD-09-020, 2010-Ohio-4205, ¶ 25;

Univ. of Toledo v. Am. Assn. of Univ. Professors, 6th Dist. Lucas No. L-12-1317, 2013-

Ohio-2811, ¶ 10.

                                          Analysis

       {¶ 18} The assignments of error are interrelated and will be addressed together.

The assignments of error assert the trial court erred in vacating and not confirming the

December 22, 2015 arbitration decision.




7.
       {¶ 19} The trial court, in its August 24, 2016 judgment entry, observed the

arbitrator determined that two issues were the subject matter of the arbitration. The court

then recognized only the first issue was in dispute: “Whether the District violated the

Agreement when it did not consider the grievant or offer her the supplemental contract as

Varsity Softball Head Coach for the 2014/15 school year? If so, what is the remedy?”

Accordingly, the court addressed only the first issue. We find the trial court’s scope of

review was proper.

       {¶ 20} The trial court, in reversing the arbitrator’s decision, accepted the Board’s

arguments. The Board argued the subject of the grievance was the 2014-2015 school

year but the arbitrator had ruled that the Grievant was to be awarded the head coach

position for the 2015-2016 school year. The Board claimed only the matters related to

the 2014-2015 school year could be considered the subject matter of the arbitration

before the court. The Board contended the Grievant did not file a grievance regarding the

decision made for the 2015-2016 school year, and the 2015-2016 school year had never

been the subject of the arbitration. The court noted the Board also asserted “since no

back pay was awarded for any of the years the Arbitrator says Grievant ‘should’ have

been working, and no back pay had been awarded for the school year that actually was

the subject of the Arbitration, it must follow that NO DECISION was actually made.”

(Emphasis sic.)




8.
       {¶ 21} The trial court found the arbitrator’s decision was “premised upon a two

year’s previous Decision, which was premised upon facts which do not exist in the

present case. Moreover [the arbitrator] drew a number of ‘inferences,’ from other

‘inferences,’ which makes this case too speculative to sustain.” The court ruled the

Association did not carry its initial burden of proof, and also ruled “that an actual

Decision was not reached in this case.”

       {¶ 22} Upon review of the trial court’s judgment, we find the court’s reversal of

the arbitrator’s decision is premised on R.C. 2711.10(D), that the arbitrator exceeded his

powers and imperfectly executed his powers so that a final and definite award upon the

subject matter submitted was not made. We further find, based on the record, these were

proper bases for the court to vacate the arbitrator’s award.

       {¶ 23} The arbitrator framed the issue to be arbitrated: whether the Board violated

the CBA when it did not consider the grievant or offer her the supplemental contract as

head softball coach for the 2014-2015 school year. However, the arbitrator did not

decide this issue because he found he “cannot apply any remedy prior to the current

school year [2015-2016]” because the first arbitrator’s decision “addressed the events and

remedy through the 2014-15 school year.” The arbitrator imperfectly executed his

powers in so finding. The first arbitrator clearly set forth in his decision that he did not

hear evidence or fashion a remedy for the 2014-2015 school year as that was beyond the

scope of the grievance and beyond his authority.




9.
       {¶ 24} The arbitrator also exceeded his power and authority by finding “[g]iven

the past practice of retaining an incumbent coach, the [Board] violated the [CBA] when it

did not award the Grievant the supplemental contract as Varsity Softball Head Coach for

the 2015-2016 school year.” Since the 2015-2016 school year was not the subject of the

grievance, the arbitrator had no authority to determine this issue. The arbitrator further

exceeded his power and authority by awarding Grievant the head coaching position for

the 2015-2016 school year, as this was not an issue before the arbitrator.

       {¶ 25} Upon further review, we find no evidence of material mistake or extensive

impropriety on the part of the trial court. We therefore find the trial court properly

reversed and/or vacated the arbitrator’s award. Accordingly, the Association’s

assignments of error are not well-taken.

       {¶ 26} Having found that the trial court did not err, the judgment of the Fulton

County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is hereby

ordered to pay the court costs incurred on appeal.




                                                                         Judgment affirmed.




10.
                                                          Pike-Delta-York Bd. Of Edn. v.
                                                             Pike-Delta-York Edn. Assn.
                                                                      C.A. No. F-16-006




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Arlene Singer, J.
                                               ____________________________
Thomas J. Osowik, J.                                   JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




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