Ohio Office of Collective Bargaining v. Ohio Civil Service Employees Assn., Local 11, AFSCME, AFL-CIO

• Decision Date: 15 May 1991
• Docket Number: A,No. 90-361,AFL-CI,90-361
• Parties: OHIO OFFICE OF COLLECTIVE BARGAINING, Appellee, v. OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 11, AFSCME,ppellant.
• Court: Ohio Supreme Court

Page 177

59 Ohio St.3d 177

572 N.E.2d 71

OHIO OFFICE OF COLLECTIVE BARGAINING, Appellee, v. OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 11, AFSCME, AFL-CIO, Appellant.

No. 90-361.

Supreme Court of Ohio.

Submitted Jan. 22, 1991.

Decided May 15, 1991.

Syllabus by the Court

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.

The Northwest Ohio Development Center, the employer in this case, is located in Toledo. The employer's facility houses mentally retarded individuals on a temporary basis while they are developing living skills as well as eliminating undesirable behaviors. The facility targets undesirable behaviors through individually tailored programs. The goal for residents of the facility is group home placement.

The facts giving rise to this employee grievance appeal, as stated in the arbitrator's opinion, are as follows. The grievant, Juliette Dunning, had been employed as a hospital aide for the facility for approximately three and one-half years prior to the incident which gave rise to this action. On September 7, 1986, Dunning was working the second shift and was assigned to Cottage 604. Her responsibilities included the care of eight residents. One of these residents Resident A, was involved in an altercation with Dunning that led to the latter's dismissal. Resident A had been diagnosed as mentally retarded and nonverbal (although she could scream and utter some other sounds).

On the day of the incident, Resident A was eating her supper when Dunning instructed her to wash dishes in the kitchen. Usually Resident A was responsible for setting the tables, but that task had been completed prior to her return from a field trip; therefore, Dunning decided that a dishwashing assignment was appropriate as part of Resident A's behavioral program.

The incident between Resident A and Dunning began when Dunning started verbally harassing Resident A about the way she was completing her assignment of washing dishes at the sink. Two witnesses to the incident quoted Dunning as saying to Resident A, "Do you want to go to the floor?" Resident A and Dunning entered and left the kitchen on at least two separate occasions. During the incident Dunning put Resident A on her knees with one arm behind her back while holding her in a headlock and asking Resident A if she was "going to wash the dishes good." Resident A returned to the kitchen and began washing dishes again while Dunning continued her verbal harassment. After Dunning forcibly escorted Resident A out of the kitchen again, Resident A broke free and was eventually put on the floor by Dunning while three other staff members assisted in restraining her.

A supervisor of two of the witnesses to the incident brought the incident to the attention of the facility's Abuse Committee. The Abuse Committee recommended that Dunning be removed from employment for verbal abuse (harassing the resident while the resident was complying with instructions), inappropriate behavior modification (threatening her with a takedown), and physical abuse (putting Resident A in a headlock). On October 2, 1986, the superintendent conducted an administrative conference. The superintendent found that Dunning's actions warranted removal. On October 29, 1986, Dunning and defendant-appellant, Ohio Civil Service Employees Association, Local 11, AFSCME, AFL-CIO ("OCSEA"), contested the removal by filing a grievance. ¹ On December 17, 1986, the Chief of Labor Relations denied the grievance. Subsequently, the matter was submitted to arbitration upon Dunning's appeal from the removal order.

The arbitrator conducted a bifurcated hearing in order to determine the merits of Dunning's dispute. Based on the first phase of the hearing, the arbitrator defined "abuse." In the second phase, he found that Dunning had committed abuse of the patient. ² However, the arbitrator reinstated Dunning with no back pay and without any loss in seniority. The arbitrator cited improper notice and a penalty disproportionate to those in similar cases, in support of his decision to reinstate Dunning for lack of just-cause dismissal.

Plaintiff-appellee, the state of Ohio through its Office of Collective Bargaining, applied to vacate the award in the Franklin County Common Pleas Court, pursuant to R.C. 2711.10. The court vacated the arbitrator's decision to reinstate Dunning, holding that, " * * * upon the finding of the arbitrator that said abuse had occurred, as was defined at the first hearing on this matter, * * * the arbitrator specifically did not have the authority to modify the termination." OCSEA appealed to the Court of Appeals for Franklin County. The court affirmed, holding, inter alia, that the arbitrator exceeded his authority under the collective bargaining agreement by ignoring the agreement's plain meaning.

The cause is before this court upon an allowance of a motion for leave to appeal.

Linda K. Fiely, Chillicothe, Anne Light Hoke and Brian J. Eastman, Columbus, for appellant.

Lee I. Fisher, Atty. Gen., Columbus, and Gregg H. Bachmann, Dayton, for appellee.

Susan G. Tobin and Shane Egan, Columbus, urging affirmance for amicus curiae, Ohio Legal Rights Service.

HOLMES, Justice.

The central issue in this case is whether the arbitrator exceeded his authority in reinstating Dunning to her former position. For the reasons that follow, we answer this query in the affirmative.

In its first proposition of law OCSEA asserts that the appellate court erred in determining that the arbitrator exceeded his authority based upon the interpretation of the parties' collective bargaining agreement. We disagree.

In reviewing an arbitrator's award, courts are bound by R.C. 2711.10, which provides in part:

"In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if:

" * * *

"(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."

Furthermore, in Goodyear Tire & Rubber Co. v. Local Union No. 200 (1975), 42 Ohio St.2d 516, 71 O.O.2d 509, 330 N.E.2d 703, paragraph one of the syllabus, certiorari denied (1975), 423 U.S. 986, 96 S.Ct. 393, 46 L.Ed.2d 303, we held that:

"A mere ambiguity in the opinion accompanying an arbitration award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for vacating the award when such award draws its essence from a collective bargaining agreement. (United Steelworkers of America v. Enterprise Wheel & Car Corp. [1960], 363 U.S. 593, [80 S.Ct. 1358, 4 L.Ed.2d 1424] followed.)"

In United Steelworkers of America v. Enterprise Wheel & Car Corp. supra, the United States Supreme Court cautioned that " * * * an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." Id. at 597, 80 S.Ct. at 1361. Thus, we will accord considerable latitude to an arbitrator, but we recognize his powers are not unlimited in the resolution of labor disputes. "The arbitrator is confined to the interpretation and application of the collective bargaining agreement, and although he may construe ambiguous contract language, he is without authority to disregard or modify plain and unambiguous provisions." Detroit Coil Co. v. Internatl. Assn. of Machinists & Aerospace Workers, Lodge No. 82 (C.A.6, 1979), 594 F.2d 575, 579; see, also, General Drivers, Warehousemen & Helpers, Local Union No. 89 v. Hays & Nicoulin, Inc. (C.A.6, 1979), 594 F.2d 1093; United Paperworkers' Internatl. Union v. MISCO, Inc. (1987), 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286. Accordingly, it is our duty to determine whether the arbitrator's award was reached in a rational manner from the collective bargaining agreement. See Detroit Coil, supra; Timken Co. v. Local Union No. 1123, United Steelworkers of America (C.A.6, 1973), 482 F.2d 1012, 1015.

The United States Court of Appeals, First Circuit, was confronted with a situation similar to the one at bar in S.D. WARREN CO. V. UNITED PAPERWORKERS' INTERNATL. UNION (C.A.1, 1988), 845 F.2D 3,³ certiorari denied (1988), 488 U.S. 992, 109 S.Ct. 555, 102 L.Ed.2d 582 ("Warren 1"), and its companion case S.D. Warren Co. v. United Paperworkers' Internatl. Union (C.A.1, 1988), 846 F.2d 827, certiorari denied (1988), 488 U.S. 992, 109 S.Ct. 555, 102 L.Ed.2d 582 ("Warren 2"). In these cases the arbitrator could not modify discharges that were based upon "proper cause." Specifically, as stated by the court, the management rights clause provided that " '[t]he Company reserves the sole right to manage the business of the Company and to direct the working force.' (emphasis supplied). This sole 'right includes but is not limited to ... the right to ... discharge employees for proper cause....' " Warren 1, supra, at 6. Furthermore, among the causes listed for discharge appended to the parties' contract were " * * * [p]ossession, use or sale on Mill property of ... marijuana...." Id. The parties agreed that the scope of the arbitrator's authority was " 'concerned solely with the interpretation and/or application of the collective bargaining agreement,' " and that " 'the arbitrator shall have no power to render a decision which in any way modifies any provision of the agreement.' " Id. In Warren 1, as a consequence of a police undercover...