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Board of Trustees of Anderson Township v. Anderson Township Professional Firefighters Association

Court of Appeals of Ohio, First District, Hamilton

June 12, 2019

BOARD OF TRUSTEES OF ANDERSON TOWNSHIP, OHIO, Plaintiff-Appellant,
v.
ANDERSON TOWNSHIP PROFESSIONAL FIREFIGHTERS ASSOCIATION, IAFF LOCAL 3111, Defendant-Appellee.

          Civil Appeal From: Hamilton County Trial No. A-1800918 Court of Common Pleas

          Frost Brown Todd, LLC, and Thomas B. Allen, for Plaintiff-Appellant,

          Lazarus & Lewis, LLC, and Kimberly A. Rutowski, for Defendant-Appellee.

          OPINION

          MYERS, PRESIDING JUDGE.

         {¶1} Plaintiff-appellant the Board of Trustees of Anderson Township ("Board"), appeals the trial court's judgment denying its motion to vacate an arbitration award in favor of defendant-appellee the Anderson Township Professional Firefighters Association, IAFF Local 3111 ("Union"). Because the arbitration award drew its essence from the parties' collective-bargaining agreement ("CBA"), we affirm the trial court's judgment.

         Factual and Procedural Background

         {¶2} Pursuant to the terms of the CBA, Union member Lieutenant William Tillett received notice that disciplinary proceedings were being initiated against him because he had surrendered his fire-inspection certification. A conduct conference was held on May 1, 2017. Tillett received notice on May 4, 2017, that his conduct would result in disciplinary action, specifically a demotion from the rank of Lieutenant to the rank of Firefighter 6, effective May 6, 2017. Tillett requested a reconsideration meeting pursuant to Article 8.3(E) of the CBA. The reconsideration meeting was held on May 10, 2017, and, approximately one week later, Tillett received notice that his demotion, which had taken effect on May 6, was upheld. Tillett appealed to both the Township Administrator and the Board, but his demotion was upheld at all levels.

         {¶3} The Union filed a grievance on behalf of Tillett, arguing that the Board's implementation of his demotion prior to the exhaustion of his appellate remedies violated the CBA and disregarded the parties' long-standing past practice of not imposing discipline until the appeals process was completed. The grievance was denied, and the Union filed for arbitration.

         {¶4} At the arbitration hearing, the Board argued that the CBA allowed it to impose discipline effective immediately, and that because the CBA was not ambiguous, the arbitrator could not rely on the parties' past practice to interpret the agreement. It further argued that the Union could not successfully prove a past practice, and that a zipper clause in the CBA prohibited any party from relying on a past practice. But the Union contended that Article 8 of the CBA was ambiguous regarding when imposed discipline should be implemented, and that the parties' past practice of delaying the implementation of imposed discipline until after the appeals process was concluded should resolve the ambiguity.

         {¶5} At the arbitration hearing, Tillett testified that he served as president of the Union for approximately 18 years, and that in his tenure as president, absent an employee's decision not to appeal, discipline had never been implemented before all appeals were completed. Tillett discussed five specific instances in which discipline imposed on Union members was not implemented until the appeals process was concluded. Three of these occurred prior to the date of the current CBA. But two of these instances occurred after the effective date of the current CBA.

         {¶6} Ken Lovins, who was president of the Union during Tillett's disciplinary proceedings and arbitration hearing, testified that in his 20-year history with the Anderson Township Fire Department, he was unaware of discipline ever being implemented before all appeals were exhausted. Township Administrator Vicky Earhart likewise testified that, to her knowledge, discipline had never been implemented prior to the appeals process concluding.

         {¶7} The arbitrator sustained the Union's grievance. Construing the CBA, the arbitrator determined that the CBA language allowing for the imposition of discipline was clear and unambiguous, but that the CBA had a gap and was silent as to when the imposed discipline could be implemented. The arbitrator further determined that the parties' conduct, both before and after the controlling CBA took effect, required postponing the implementation of discipline until after the appeals process was completed.

         {¶8} The Board filed a motion to vacate the arbitrator's award in the court of common pleas. The trial court found that sufficient ambiguity existed in Article 8.3 of the CBA to preclude a finding that the arbitrator's decision directly conflicted with any express language in the CBA. The trial court further found that the arbitrator's award drew its essence from the CBA, and it denied the Board's motion to vacate.

         Standard ...


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