[Cite as Perry Twp. Bd. of Trustees v. Fraternal Order of Police, 2011-Ohio-6148.]

COURT OF APPEALS 

 STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

PERRY TOWNSHIP BOARD OF 

TRUSTEES, 

: 

: 

JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellant, : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

v. : 

 : Case No. 2011CA00092 

FRATERNAL ORDER OF POLICE, 

OHIO LABOR COUNCIL, et al., 

: 

: 

 : 

 : 

 Defendants-Appellees, : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2011CV00261 

 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: November 21, 2011 

APPEARANCES: 

For Appellant: For Appellees: 

 

CHARLES D. HALL, III MICHAEL W. PIOTROWSKI 

610 Market Ave. N. 2721 Manchester Rd. 

Canton, OH 44702 Akron, OH 44319 

 
[Cite as Perry Twp. Bd. of Trustees v. Fraternal Order of Police, 2011-Ohio-6148.]

Delaney, J. 

{¶ 1} Plaintiff-Appellant Perry Township Board of Trustees appeals the March 

22, 2011 judgment entry of the Stark County Court of Common Pleas ordering this 

matter to arbitration. Defendants-Appellees are the Fraternal Order of Police, Ohio 

Labor Council, Inc. and Sergeant Donald C. Berkey. 

STATEMENT OF THE FACTS AND CASE 

{¶ 2} Appellant Perry Township Board of Trustees entered into a Collective 

Bargaining Agreement (“CBA”) with Appellees the Fraternal Order of Police and Ohio 

Labor Council, Inc. (“Union”). The CBA in this case is applicable to the Perry 

Township Police Sergeants. 

{¶ 3} On May 4, 2010, the Trustees created the new position of Deputy Chief 

of Police within the Perry Township Police Department. Shortly thereafter, the 

Trustees appointed Patrol Officer Brian Carbenia to the position of Deputy Chief of 

Police. 

{¶ 4} Appellee Sergeant Donald Berkey of the Perry Township Police 

Department filed a grievance asserting a breach of the CBA under Article 20, Section 

20.1, and Section 20.2. Article 20, Section 20.1, and Section 20.2 state as follows: 

{¶ 5} “ARTICLE 20 

{¶ 6} “PROMOTIONAL EXAMS

{¶ 7} “Section 20.1 Should the Employer [Perry Township Board of Trustees] 

determine to create a new position of rank (i.e., Lieutenant or other rank, superior to 

that of Sergeant and subordinate to that of Chief of Police) said position shall be filled 

by internal promotion. Applicants shall have no less than five (5) years full-time 
Stark County, Case No. 2011CA00092 3 

employment as a commissioned police officer with the Employer to include no less 

than one (1) year in a supervisory position with Employer. If no qualified applicants 

are available from within the existing Employer’s employees, the Employer may fill the 

position by way of a new hire. 

{¶ 8} “Section 20.2 Promotions to such vacancy shall be by objective, 

competitive examination from a reputable test preparer agency, such as but not limited 

to Case Western Reserve University. Bargaining unit members who participate in the 

competitive examination shall receive one (1) additional bonus point for each year of 

completed service with the Employer not to exceed a total of twenty (20) bonus points. 

Promotional examination results shall be active for a period of twenty-four (24) months 

following the publication of results of the examination.” 

{¶ 9} The Trustees denied Sgt. Berkey’s grievance. They determined the 

claims were not subject to the grievance procedure, the claims were outside the scope 

of the CBA, and the position of Deputy Chief of Police was excluded from the CBA 

because it was a management level position. Sgt. Berkey and the Union demanded to 

proceed to arbitration and sought a panel of arbitrators from the Federal Mediation 

and Conciliation Service. The Trustees notified Sgt. Berkey and the Union that they 

would not participate in arbitration. 

{¶ 10} On January 21, 2011, the Trustees filed a Complaint with the 

Stark County Court of Common Pleas seeking declaratory judgment that the creation 

of the Deputy Chief of Police position and the appointment of Brian Carbenia to the 

position by the Trustees was outside the scope of the CBA and therefore not subject 

to arbitration. The Trustees served a Request for Admissions upon the Sgt. Berkey 
Stark County, Case No. 2011CA00092 4 

and the Union. The Trustees also took the depositions of Sgt. Berkey and Sgt. 

Hamilton. Sgt. Berkey and Sgt. Hamilton were the only two sergeants within the Perry 

Township Police Department who would be eligible to take a promotional exam under 

Article 20. Sgt. Hamilton testified that he was not interested in the Deputy Chief 

position because it was not a union position. Sgt. Berkey testified he would have liked 

an opportunity to test for the position, but did not know if he was interested in the 

position. 

{¶ 11} Sgt. Berkey and the Union filed a Motion to Compel Arbitration 

and sought to stay the case. The matter came on for oral hearing on March 14, 2011. 

On March 22, 2011, the trial court granted the Motion to Compel Arbitration and 

stayed the proceedings. 

{¶ 12} It is from this decision the Trustees now appeal. 

{¶ 13} The Trustees raise two Assignments of Error: 

{¶ 14} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN 

IT ORDERED THE PARTIES TO ARBITRATION. 

{¶ 15} “II. THE TRIAL COURT COMMITTED AN ABUSE OF 

DISCRETION WHEN IT ORDERED THE PARTIES TO ENGAGE IN A VAIN ACT.” 

I. 

{¶ 16} The Trustees argue in their first Assignment of Error the trial court 

erred in granting the Motion to Compel Arbitration. We disagree. 

{¶ 17} The issue is whether the dispute between the parties is subject to 

arbitration. The Trustees argue the question of arbitrability is an issue for judicial 

determination. Sgt. Berkey and the Union point this Court to Article 18 of the CBA to 
Stark County, Case No. 2011CA00092 5 

state the parties agreed the arbitrator had authority to determine the issue of 

arbitrability. 

{¶ 18} Article 18, Section 18.1 of the CBA defines a “grievance” as “any 

allegation by a bargaining unit employee, or the Union that there has been a breach, 

misinterpretation, or improper application of this Agreement.” 

{¶ 19} Article 18, Section 18.7 states in pertinent part: 

{¶ 20} “The question of arbitrability of a grievance may be raised by 

either party before the arbitration hearing of the grievance on the grounds that the 

matter is non-arbitrable or beyond the arbitrator’s jurisdiction. The first question to be 

placed before the arbitrator will be whether or not the grievance is arbitrable. If the 

arbitrator determines the grievance is within the purview of arbitrability, the grievance 

will be heard on its merits before the same arbitrator.” 

{¶ 21} We agree with the position of Sgt. Berkey and the Union that the 

CBA in this case empowers the arbitrator to determine the issue of arbitrability. This 

exact issue was presented to the Ohio Supreme Court in Belmont Cty. Sheriff v. 

Fraternal Order of Police, Ohio Labor Council, Inc., 104 Ohio St.3d 568, 2004-Ohio7106, 820 N.E.2d 918. In that case, the Ohio Supreme Court reviewed a grievance 

between the Fraternal Order of Police and the Sheriff of Belmont County regarding 

contributions to the Public Employees Retirement System. The matter was presented 

to the arbitrator pursuant to the terms of the collective bargaining agreement and the 

arbitrator made an “interim award,” finding only that the grievance could be arbitrated. 

The Sheriff went to the common pleas court, which granted the Sheriff’s application to 

vacate the arbitrator’s award and the court of appeals affirmed. 
Stark County, Case No. 2011CA00092 6 

{¶ 22} The issue on appeal before the Supreme Court was the scope of 

authority of an arbitrator to determine whether or not a grievance is arbitrable. Id. at 

¶1. The Court first reviewed the applicable law: 

{¶ 23} “In First Options of Chicago, Inc. v. Kaplan (1995), 514 U.S. 938, 

943, 115 S.Ct. 1920, 131 L.Ed.2d 985, the court stated: 

{¶ 24} “’Just as the arbitrability of the merits of a dispute depends upon 

whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. 

Shearson Lehman Hutton, Inc., ante [(1995), 514 U.S. 52] at 57 [115 S.Ct. 1212, 131 

L.Ed.2d 76]; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 

626 [105 S.Ct. 3346, 87 L.Ed.2d 444] (1985), so the question ‘who has the primary 

power to decide arbitrability’ turns upon what the parties agreed about that matter. 

Did the parties agree to submit the arbitrability question itself to arbitration? If so, then 

the court's standard for reviewing the arbitrator's decision about that matter should not 

differ from the standard courts apply when they review any other matter that the 

parties have agreed to arbitrate. See AT & T Technologies, Inc. v. Communications 

Workers of Am., 475 U.S. 643, 649 [106 S.Ct. 1415, 89 L.Ed.2d 648] (1986) (parties 

may agree to arbitrate arbitrability)* * *.’ (Emphasis sic.) 

{¶ 25} “Further, in Council of Smaller Enterprises v. Gates, McDonald & 

Co. (1998), 80 Ohio St.3d 661, 687 N.E.2d 1352, we cited AT & T Technologies, Inc. 

v. Communications Workers of Am. (1986), 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 

648, in which the United States Supreme Court summarized four principles delineating 

a court's role in reviewing arbitration. Of particular interest is principle two: 
Stark County, Case No. 2011CA00092 7 

{¶ 26} “’The second principle is that ‘the question of arbitrability-whether 

a[n] *** agreement creates a duty for the parties to arbitrate the particular grievance-is 

undeniably an issue for judicial determination. Unless the parties clearly and 

unmistakably provide otherwise, the question of whether the parties agreed to 

arbitrate is to be decided by the court, not the arbitrator.’ Id. [AT & T Technologies, 

Inc. v. Communications Workers of Am. (1986)], 475 U.S. [643] at 649, 106 S.Ct. 

[1415] at 1418, 89 L.Ed.2d [648] at 655.’ (Emphasis added.) Council of Smaller 

Enterprises, 80 Ohio St.3d at 666, 687 N.E.2d 1352.” Id. at ¶10-13. 

{¶ 27} The Supreme Court next reviewed the relevant provision of the 

collective bargaining agreement in question. It contained the following language: 

{¶ 28} “The question of arbitrability of a grievance may be raised by 

either party before the arbitration hearing of the grievance, on the grounds that the 

matter is non-arbitrable or beyond the arbitrator's jurisdiction. The first question to be 

placed before the arbitrator will be whether or not the alleged grievance is arbitrable. 

If the arbitrator determines the grievance is within the purview of arbitrability, the 

alleged grievance will be heard on its merits before the same arbitrator. (Emphasis 

added).” Id. at ¶15. 

{¶ 29} The Court found the collective bargaining agreement clearly and 

unmistakably placed the question of arbitrability before the arbitrator for determination. 

It therefore held: 

{¶ 30} “Where the parties to a collective-bargaining agreement have 

clearly and unmistakably vested the arbitrator with the authority to decide the issue of 
Stark County, Case No. 2011CA00092 8 

arbitrability, the question of whether a matter is arbitrable is to be decided by the 

arbitrator.” Id. at syllabus. 

{¶ 31} In support of its holding, the Court further relied on this Court’s 

decision in Fraternal Order of Police, Ohio Labor Council, Inc. v. Umpleby (Feb. 12, 

1996), Stark App. No. 1995CA00196. In that case, we examined an identical 

collective bargaining provision and held the trial court erred by vacating the arbitrator’s 

determination of arbitrability because the collective bargaining agreement granted the 

arbitrator the power to make that decision. Id. at ¶17. 

{¶ 32} The CBA in the present case contains the identical provision as 

that analyzed in Belmont County Sheriff, supra and Fraternal Order of Police, Ohio 

Labor Council, Inc. v. Umpleby, supra. Accordingly, we find pursuant to the clear and 

unmistakable language of the CBA vesting the arbitrator with the authority to decide 

the issue of arbitrability, the question of whether the grievance regarding the creation 

and appointment of the Deputy Chief of Police position is arbitrable is to be decided by 

the arbitrator. The trial court did not err in granting the motion to compel arbitration. 

{¶ 33} The Trustees’ first Assignment of Error is overruled. 

II. 

{¶ 34} The Trustees argue in their second Assignment of Error that the 

trial court erred in ordering the parties to arbitration because it would be a vain act. 

Based on our disposition of the first Assignment of Error, we decline to address the 

second Assignment of Error. 
Stark County, Case No. 2011CA00092 9 

The judgment of the Stark County Court of Common Pleas is affirmed. 

By: Delaney, J. 

Gwin, P.J. and Farmer, J. concur. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER 

 
[Cite as Perry Twp. Bd. of Trustees v. Fraternal Order of Police, 2011-Ohio-6148.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

PERRY TOWNSHIP BOARD OF 

TRUSTEES, 

: 

: 

 : 

 : 

 Plaintiff-Appellant, : 

 : 

v. : JUDGMENT ENTRY 

 : 

FRATERNAL ORDER OF POLICE, 

OHIO LABOR COUNCIL, et al., 

: 

: 

 : 

 : Case No. 2011CA00092 

 Defendants-Appellees. : 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant. 

 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER