Adams Cnty./Ohio Valley Local Sch. v. OAPSE/AFSCME

• Decision Date: 13 July 2017
• Docket Number: No. 16CA1034,16CA1034
• Citation: 2017 Ohio 6929,94 N.E.3d 937
• Parties: ADAMS COUNTY/OHIO VALLEY LOCAL SCHOOL, Plaintiff–Appellee, v. OAPSE/AFSCME, LOCAL 572, Defendant–Appellant.
• Court: Ohio Court of Appeals

94 N.E.3d 937

2017 Ohio 6929

ADAMS COUNTY/OHIO VALLEY LOCAL SCHOOL, Plaintiff–Appellee,

v.OAPSE/AFSCME, LOCAL 572, Defendant–Appellant.

No. 16CA1034

Court of Appeals of Ohio, Fourth District, Adams County.

RELEASED: July 13, 2017

C. Bronston McCord, III, Ennis Britton, Cincinnati, Ohio, for Appellant.

Kristen E. McKinley, Ohio Association of Public School Employees, Columbus, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Hoover, J.

{¶ 1} Defendant–Appellant, Ohio Association of Public School Employees, AFSCME, Local 572 ("the Union") appeals the judgment of the Adams County Court of Common Pleas granting a motion to vacate an arbitration award filed by Plaintiff–Appellee, Adams County/Ohio Valley Local School ("the Board") and denying the Union's application to confirm an arbitration award. On appeal, the Union argues that the trial court erred in substituting its judgment and findings for that of the arbitrator.

{¶ 2} Here, the Union had applied to the trial court for an order confirming the award. Under R.C. 2711.09, a trial court shall grant such an order and enter judgment thereon, unless the award is vacated, modified, or corrected as prescribed in sections 2711.10 and 2711.11 of the Revised Code.

{¶ 3} An award can be vacated only if (1) the award was procured by corruption, fraud, or undue means; (2) there was evident partiality or corruption on the part of the arbitrators, or any of them; (3) 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; or (4) 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.

{¶ 4} In the case sub judice, the record does not demonstrate that the trial court considered R.C. 2711.10 in vacating the arbitration award. Instead, the trial court independently reviewed the merits of the dispute as presented to the arbitrator and concluded that it had not been established by a preponderance of the evidence that the Board violated the parties' underlying agreement. "Such a review exceeds the scope of the trial court's authority." Jackson Cty., Ohio Sheriff v. The Fraternal Order of Police Ohio Labor Council, Inc. , 4th Dist. Jackson No. 02CA15, 2004-Ohio-3535, 2004 WL 1488674, ¶ 17, citing Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627 , 91 Ohio St.3d 108, 110, 742 N.E.2d 630 (2001).

{¶ 5} The trial court performed its own independent analysis of the issues involved in the case; and it decided that the award should be vacated. However, the trial court failed to apply R.C. 2711.10 when considering whether the arbitration award should be vacated. This exceeds the scope of the trial court's authority. Consequently, we sustain the Union's assignment of error.

{¶ 6} Accordingly, we reverse the judgment of the trial court and remand the matter for the trial court to review the arbitration award applying the provisions set forth in Chapter 2711 of the Revised Code.

I. Facts and Procedural History

{¶ 7} The Union and the Board were parties to a collective bargaining agreement ("the CBA") effective from October 1, 2013 through September 30, 2016. The CBA outlined the terms and conditions of employment for school employees who were part of the bargaining unit.

{¶ 8} In January 2015, the Union filed a grievance with the Board alleging that the Board violated the CBA when it subcontracted the job of salting and plowing its parking lots to an outside contractor and removed this work from the bargaining unit employees who usually performed it. The grievance was eventually submitted to arbitration pursuant to the CBA.

{¶ 9} On June 23, 2015, an evidentiary hearing was held. The Union argued that the Board violated the CBA by contracting out bargaining unit work, relying on the Board's job description for custodians and testimony regarding the work that was customarily performed by custodians. The Board argued that it could subcontract out bargaining unit work under Article 30A of the CBA and that a similar issue had already been decided in a prior arbitration in the Board's favor.

{¶ 10} On October 13, 2015, the arbitrator sustained the Union's grievance. The arbitrator found that Article 30A of the CBA did not authorize the Board to subcontract out bargaining unit work to the extent that it did during the 2014–2015 school year. It explained,

This dispute involves the contracting out of work for the 2014–2015 winter months of the school year which falls within the Custodians' "Performance Responsibilities", set forth in the Board's job description. Such "performance Responsibilities" include the following: "19. Shovels, plows, and/or treats icy walkways, driveways, parking areas, and steps, as needed."

* * *

Pursuant to Article 30A, the parties expressly agreed to a prohibition on performing bargaining unit work by a supervisor or administrative employee, except in an emergency. No emergency existed in this case. However, such an express prohibition does not mean that the Board is free to contract out work to an outside contractor to the extent that it did so.

* * *

In other words, if the Board's position is upheld, the Board may contract out work with impunity so long as the work is not performed by a supervisor or administrative employee. If the Board's position is upheld, not only would the seniority clause be undermined, it would also undercut the clauses providing for wages and recognition in the CBA. The Board's position cannot be sustained.

(Docket No. 1, Ex. C, p. 7–9).

{¶ 11} It further concluded that this issue had not been decided in a prior arbitration in the Board's favor. It explained,

It is well established that prior labor arbitration awards which interpret existing terms of an Agreement between the same parties are not binding in exactly the same sense that authoritative legal decisions are; yet they may have a force that can be fairly characterized as authoritative. How Arbitration Works , at page 11–7. In this connection, the Board claims that a decision issued by Arbitrator Phyllis E. Florman on February 28, 2012 is binding upon the Arbitrator.

I disagree with the Board's position on this aspect of the dispute between the parties. The issue which Arbitrator Florman resolved is "Whether the Board violated the Agreement when it created the position of EMIS Coordinator as a non-bargaining unit position? If so, what is the appropriate remedy?"

* * *

The Union grieved the creation of the EMIS Coordinator as a non-bargaining unit position. The Union claimed various violations of the Agreement, but not the violation of Article 30A which is at issue in this case.

In How Arbitration Works , the following is stated:

"Any well-reasoned and well-written prior arbitration opinion has persuasive qualities where it is ‘on point with the subject matter of a current grievance’; however, to be given preclusive effect it must be between the same parties, must invoke the same fact situation, must pertain to the same contractual provisions, must be supported by the same evidence, and must concern an interpretation of the specific agreement before the arbitrator." At page 11–9.

In light of the aforementioned factors, it is sufficient to state that the Florman decision has no preclusive effect in this case; clearly, it is not entitled to any weight.

(Id. at p. 15–17).

{¶ 12} On January 8, 2016, the Board moved to vacate the award under R.C. 2711.10(D), arguing that the arbitrator exceeded his powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. Specifically, the Board argued that the arbitrator's decision (1) ignored clear precedent from a prior arbitration decision that authorizes the Board's actions; (2) could not rationally be derived from the CBA because it was based on implication and inference; and (3) added requirements to the CBA that did not exist in the language of the CBA. The Union responded by filing a memorandum in opposition, as well as an application to confirm the award.

{¶ 13} On October 11, 2016, the trial court denied the Union's application to confirm the award and granted the Board's motion to vacate the award. It explained, in part:

Arbitrator Cohen found that a previous Arbitration Award and decision by Arbitrator Phyllis E. Florman on February 28, 2012 involving the same parties (i.e., the Board and the Union) had no preclusive effect in this case, that her decision was not binding, and that it was not entitled to any weight. The Florman decision involved the Board's creation of an EMIS Coordinator position as a non-bargaining unit position. In the Florman decision, the Union did not grieve Article 30A as a specific Agreement violation ground. In our case, Arbitrator Cohen relied in significant part upon "How Arbitration Works", page 11–9, in distinguishing our case from the Florman case. Upon this Court's review of both the Florman case and our case, the Court finds that the Florman decision is both authoritative and persuasive, although not given preclusive or binding effect. While Article 30 A is involved in our case, its failure to be asserted in the Florman case does not render Florman's decision to be without some weight.

However, this Court is performing its own independent analysis of the issues involved in our case. The Court finds that Article 30 A has not been violated by the Board, in that the third party contractor * * * to whom the contract was awarded, is not a supervisory or administrative employee.

* * *

It has not been established by the requisite preponderance of the evidence that the Board violated the [CBA]. Accordingly pursuant to O.R.C. 2117.10, Arbitrator Cohen's October 13, 2015 Arbitrator's Opinion and Award is hereby vacated in its entirety. * * *

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