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City of Mt. Healthy v. Fraternal Order of Police, Ohio Labor Council, Inc.

Court of Appeals of Ohio, First District, Hamilton

December 20, 2017

CITY OF MT. HEALTHY, Plaintiff-Appellee,
v.
FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL, INC., Defendant-Appellant.

         Civil Appeal From: Hamilton County Court of Common Pleas No. A-1605180

          Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, Scott A. Sollmann and Jonathan T. Deters, for Plaintiff-Appellee

          Tonya M. Sapp and Gwen Callender, for Defendant-Appellant.

          OPINION

          Myers, Judge.

         {¶1} The Fraternal Order of Police, Ohio Labor Council, Inc., ("FOP") has appealed from the trial court's entry vacating an arbitration award that had been entered in its favor against the city of Mt. Healthy.

         {¶2} On February 16, 2014, Mt. Healthy hired Antwan Sparks as a part-time police officer. Pursuant to the collective bargaining agreement ("CBA") entered into between the FOP on behalf of part-time patrolmen and Mt. Healthy, all newly hired part-time employees were subject to a one-year probationary period.

         {¶3} On June 30, 2014, Sparks was injured in the line of duty and was assigned to light duty. He returned to duty on August 2, 2014, but was again assigned to light duty on September 22, 2014, where he remained until April 22, 2015. Because of the amount of time that Sparks had spent on light duty, Mt. Healthy Police Chief Vincent Demasi and City Manager Bill Kocher determined that they could not adequately evaluate Sparks's performance and that his probationary period needed to be extended. On January 13, 2015, Kocher spoke with the FOP staff representative regarding extension of Sparks's probationary period. The union representative agreed to the extension. That same day, Demasi delivered a letter to Sparks notifying him about the extension of the probationary period. Because he had not returned to duty, Mt. Healthy did not give him an end date to his probationary period.

         {¶4} Approximately four months later, on May 14, 2015, Demasi gave Sparks a second letter stating that his probationary period was extended until December 4, 2015. After receiving this letter, Sparks filed a grievance against Mt. Healthy, which proceeded to arbitration. On behalf of Sparks, the FOP argued that the extension of Sparks's probationary period violated the terms of the CBA. The arbitrator did not reach the merits of this argument, but rather sustained Sparks's grievance after finding that the FOP and Mt. Healthy could not extend the probationary period without obtaining consent from Sparks. After concluding that Sparks had successfully completed his probationary period-one year without any extension-the arbitrator ordered that Sparks be returned to duty as a part-time officer.

         {¶5} Mt. Healthy filed a motion to vacate the arbitrator's award, arguing that the arbitrator had exceeded his powers and had deviated from the essence of the CBA. The FOP filed a memorandum in opposition and requested that the award be confirmed. The trial court granted Mt. Healthy's motion to vacate.[1]

         {¶6} The FOP has appealed the trial court's entry, arguing in four assignments of error that the trial court erred by: (1) determining that the arbitrator exceeded his powers; (2) determining that the arbitrator imperfectly performed his duties; (3) misapplying the test for overturning an arbitrator's award; and (4) failing to confirm the arbitration award. Because these arguments are related, we address them together.

         {¶7} Arbitrators have great latitude in issuing a decision, as long as they act within the scope of the contract. Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 6. Pursuant to R.C. 2711.10, a trial court may vacate an arbitrator's award only under very limited circumstances, including when the arbitrator has exceeded her or his power. R.C. 2711.10(D). Arbitrators exceed their power when they go beyond their contractual authority to craft a remedy under the law. Falfas at ¶ 7. When an award "draws its essence" from the parties' contract, an arbitrator has acted within her or his authority to craft an award. Id. But an arbitrator's award departs from the essence of the contract 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." Id., quoting Ohio Office of Collective Bargaining v. Ohio Civ. Serv. Emps. Assn., Local 11, AFSCME, AFL-CIO, 59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus.

         {¶8} Following our review of the record, we hold that the arbitrator's award, based on his finding that the FOP representative and Mt. Healthy could not extend Sparks's probationary period without his personal consent, did not draw its essence from the terms of the CBA. Section 13.7 of the CBA provides that the arbitrator could not make any decision "[c]ontrary to, or inconsistent with, or modifying or varying in any way the terms of this Agreement or applicable laws." Section 1.1 of the CBA provides that the purpose of the agreement is for Mt. Healthy and the FOP, on behalf of the part-time patrolmen, to set forth "the full and complete understandings and agreements between the parties governing wages, hours, terms and conditions of employment for those employees included in the bargaining unit." And section 3.1 of the CBA provides that "[t]he Employer recognizes the Fraternal Order of Police, Ohio Labor Council, Inc. as the sole and exclusive representative for all part-time employees in the bargaining unit."

         {¶9} The arbitrator's conclusion that the probationary period could not be extended without Sparks's personal consent conflicted with both applicable law and sections 1.1 and 3.1 of the CBA. Under the terms of the CBA, the FOP had sole and exclusive authority to represent all part-time patrolmen in matters concerning the terms and conditions of employment. This included the authority to agree to an extension of the probationary period. The FOP was granted the authority to act on behalf of its members.

         {¶10} Moreover, the arbitrator's decision was contrary to law. Under agency principles, the union representative, as the "exclusive representative for all part-time employees, " acted as Sparks's agent and had the authority to agree to an extension of the probationary period without Sparks's personal consent. See Damon's Missouri Inc. v. Davis,63 Ohio St.3d 605, 608, 590 N.E.2d 254 (1992) ("an agent, acting ...


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