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City of Cleveland v. Fraternal Order of Police

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

CITY OF CLEVELAND PLAINTIFF-APPELLANT
v.
FRATERNAL ORDER OF POLICE, LODGE 8 DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-849963

          ATTORNEYS FOR APPELLANT Barbara A. Langhenry Director of Law Cleveland Law Department William M. Menzalora Chief Assistant Director of Law Janeane R. Cappara Assistant Director of Law.

          ATTORNEYS FOR APPELLEE Robert M. Phillips Joseph D. Mando Faulkner, Hoffman & Phillips, L.L.P.

          BEFORE: Blackmon, J., McCormack, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE.

         {¶1} The city of Cleveland ("the City") appeals from the trial court's journal entry denying in part and granting in part the City's motion to vacate or modify arbitration award and the Fraternal Order of Police Lodge 8's ("FOP") motion to confirm and enforce arbitration award. The City assigns the following error for our review:

I. The trial court erred to the prejudice of appellant by affirming part of the arbitrator's award because the arbitrator exceeded his powers and also so imperfectly executed them that a mutual, final, and definite award upon the subject matter of the arbitration was not made because he issued an arbitration decision that was arbitrary and capricious, and, thereby, dispensed his own brand of industrial justice.

         {¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.

         {¶3} On November 29, 2012, over 100 police officers in 58 patrol cars as well as several unmarked police cars were involved in a 23-minute pursuit of a speeding vehicle, which culminated in the shooting deaths of Timothy Russell and Malissa Williams. Two investigations[1] of the incident revealed that 13 Cleveland police officers fired more than 137 bullets into the vehicle, when the pursuit ended in a parking lot in East Cleveland. According to the investigations, Russell and Williams were unarmed. At least 25 of the officers involved in the pursuit, nine of whom fired their weapons, were under the command of Cleveland Police Sergeants Randolph Daley, Patricia Coleman, Brian Chetnik, and Matthew Putnam (collectively "the Grievants"). The investigations determined that, in general, the Grievants failed to supervise their subordinates and failed to comply with various police department policies.

         {¶4} On June 11, 2013, the City suspended without pay Coleman for 20 days; Daley for 15 days; and Putnam for ten days. On June 13, 2013, the FOP filed grievances pursuant to the collective bargaining agreement ("the CBA") between the City and the FOP on behalf of Coleman, Daley, and Putnam requesting the following relief: that the suspensions be rescinded; that the sergeants be "made whole" for time lost due to the suspensions; that disciplinary records related to the suspensions be removed from the sergeants' files; and that "the division" publicly notify the City's police force that the sergeants have been cleared of the allegations.

         {¶5} On July 18, 2013, the City suspended Chetnick without pay for ten days. On July 22, 2013, the FOP filed a grievance pursuant to the CBA on behalf of Chetnik, requesting relief identical to that requested for Coleman, Daley, and Putnam.

         {¶6} On August 7, 2013, the City denied all four grievances, finding that "[management acted in a proper manner and no clause of the [CBA] was violated." The FOP invoked the arbitration provision of the CBA, and on March 19 and 20, 2014, an arbitrator held hearings on the grievances.

         {¶7} On May 24, 2015, the arbitrator issued an award finding that the City did not have "just cause" to discipline any of the Grievants. The award revoked Coleman, Daley, Putnam, and Chetnik's suspensions in full and permanently removed "all departmental records of these respective suspensions" from the City's files. On August 18, 2015, the City initiated this case by filing a motion to vacate or modify the arbitration award. In turn, the FOP filed an application to confirm and enforce the arbitration award. On March 14, 2017, the court issued an opinion enforcing the arbitration award in part and vacating the award in part. Specifically, the court granted the City's motion to vacate the award regarding the removal and destruction of the disciplinary records from the Grievants' files and granted the FOP's motion to enforce the award revoking the suspensions.

         {¶8} Put another way, the court upheld the arbitrator's conclusion that the City did not have just cause to take any disciplinary action against the Grievants. In addition, the court found that the arbitrator lacked authority to purge the Grievants' disciplinary files. It is from this order that the City appeals.

         Standard of Review

         {¶9} Courts review arbitration awards under the limited standard found in R.C. 2711.10, which states, in pertinent part, as follows: "the court of common pleas shall make an order vacating the award * * * 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." Generally, an arbitrator has not exceeded his or her authority when an arbitration award "draws its essence" from the underlying contract. Bd. of Edn. of Findlay City School Dist. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 132, 551 N.E.2d 186 (1990). "An arbitrator's award draws its essence from a collective bargaining agreement when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious or unlawful." Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Education Assn., 22 Ohio St.3d 80, 84, 488 N.E.2d 872 (1986).

         {¶10} An appellate court's standard regarding arbitration awards is confined to reviewing the trial court order. Orwell Natural Gas Co. v. PCC Airfoils, L.L.C, 189 Ohio App.3d 90, 2010-Ohio-3093, 937 N.E.2d 609 (8th Dist.2010). "The substantive merits of the original arbitration award are not reviewable on appeal absent evidence of material mistake or extensive impropriety. A de novo review of the ...


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