[Cite as Orange Twp. v. Internatl. Assn. of Fire Fighters Local 3816 , 2022
- Ohio
- 2757.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

ORANGE TOWNSHIP, OHIO : JUDGES: : Hon. Craig R. Baldwin , P.J. Plaintiff

- Appell ant : Hon. Patricia A. Delaney , J. : Hon. Earle E. Wise, Jr. , J.

- vs - : : IAFF LOCAL 3816 : Case No. 21 CAE 070033 : Defendant

- Appell ee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 20 CVH 120554

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 8, 2022

APPEARANCES: For Plaintiff

- Appell ant For Defendant

- Appell ee BRIAN M. ZET S HENRY A. ARNETT BENJAMIN D. HUMPHREY COLLEEN M. ARNETT Two Miranova Place 1335 Dublin Road Suite 700 Suite 108

- B Columbus, OH 43215 Columbus, OH 43215Delaware County, Case No. 21 CAE 070033 2

Wise, Earle, J. {¶ 1} Appellant, Orange Township, Ohio, appeals the June 4, 2021 judgment entry of the Court of Common Pleas of Delaware County, Ohio, granting the motion to confirm arbitration award f iled by appellee, International Assoc i ation of Fire Fighters, Local 3816. FAC TS AND PROCEDURAL HISTORY {¶ 2} In October 2016, Marcus Musser started working as a part

- time firefighter for appellant and was assigned to 1

- Unit at Station 361

. The grievants herein are fellow firefighter Bradley Belville and appellant's chain of command , Lieutenant David Martin and Captain John Hodges. In September 2019, Musser requested a transfer and was subsequently transferred to 2

- Unit. {¶ 3} Fire Chief Matt Noble interviewed Musser regarding his transfer request.
Therea fter, Chief Noble conducted an investigation, held predisciplinary hearing s , and in report s dated December 5, 2019, recommended the termination of the grievants for violating several sections of the Orange Township p olicies including threats or acts of physical violence against a coworker, abusive behavior, hazing, harassment of a coworker, conduct unbecoming , neglect of duty, and failure to meet essential job functions

. {¶ 4} On December 9, 2019, the Orange Township Trustees held a special meeting to consider the Fire Chief's recommendation. The trustees adopted the Fire Chief's findings and recommendation and terminated the grievants. {¶ 5} On December 1 1 , 2019, the grievants , represented by appellee, filed a grievance contesting their termination s

. A rbitration h earings were held on August 20, and 21, 2020. By award dated November 6, 2020, the arbitrator found appell ant did not haveDelaware County, Case No. 21 CAE 070033 3

just cause to terminate the grievants and ordered the grievants be reinstated to their positions with no loss of seniority , receive back pay, and have their records expunged regarding their terminations . Specifically, the arbitrator found 1) there was insufficient evidence of "unwelcome harassment, hazing, bullying, or physical assault," 2) the grievants were not afforded proper due p rocess, and 3) appellant did not put grievants on notice of the disciplinary consequences of their behavior. {¶ 6} On December 7, 2020 , appellant filed a motion and a n application with the trial court to vacate or modify the arbitration award. On January 7, 2021, a ppellee filed a
counterclaim and a motion to confirm the award. By judgment entry filed June 4, 2021, the trial court denied appellant's application and granted appellee's counterclaim, confirming the award

. {¶ 7} Ap pellant filed an appeal. This matter is now before this court for consideration. Assignment of error is as follows:
I {¶ 8} "THE TRIAL COURT ERRED WHEN IT CONFIRMED THE ARBITRATOR ' S AWARD AND FAILED TO VACATE OR MODIFY THE AWARD. "
I {¶ 9} In its sole assignment of e rror, appellant claims the trial court erred in confirming the arbitrator's award. {¶ 10} In its application to the trial court, appellant argued the arbitrator modified the collective bargaining agreement (hereinafter "CBA") and/or exceeded his powers in his determination under R.C. 2711.10(D) which states: " the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if:Delaware County, Case No. 21 CAE 070033 4

[t] he arbitrators exceeded their powers, or so imperfectly executed them that a mut ual, final, and definite award upon the subject matter submitted was not made. " {¶ 11} Pursuant to R.C. Chapter 2711 , a trial court may confirm, vacate, or modify
an arbitrator's award ; however, as explained in Board of Education of Findlay City School District v. Findlay Education Association, 49 Ohio St.3d 129, 551 N.E.2d 186 (1990), syllabus :

1. Given the presumed validity of an arbitrator's award, a reviewing court's inquiry into whether the arbitrator excee ded his authority, within the meaning of R.C. 2711.10(D), is limited. 2. Once it is determined that the arbitrator's award draws its essence from the collective bargaining agreement and is not unl awful, arbitrary or capricious, a reviewing court's inquiry for purposes of vacating an arbitrator's award pursuant to R.C. 2711.10(D) is at an end. ( R.C.
2711. 10[D], construed and applied.)

{¶ 12} " ' [A]n 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 ra tionally derived from the terms of the agreement. ' " City of Alliance v. FOP/Ohio Labor Council, Inc., 5th Dist. Stark No. 2002CA00195, 2003

- Ohio

- 223, ¶ 20, quoting Ohio Office of Collective Bargaining v. Ohio Civil Service Employees Ass ociatio n , Local 11 , 59 Ohio St.3d 177, 572 N.E.2d 71 (1991) , syllabus. "An arbitrator's award draws its essence from a collective bargaining ag reement when there is a rational nexus between the agreement and the award, and where theDelaware County, Case No. 21 CAE 070033 5

award is not arbitrary, capricious or unlawful." Mahoning County Board of Mental Retardation & Developmental Disabiliti es v. Mahoning County TMR Education Association, 22 Ohio St.3d 80, 488 N.E.2d 872 (1986) , paragraph one of the syllabus. {¶ 13} As explained by the Supreme Court of Ohio in Goodyear Tire & Rubber Co. v. Local Union 200, 42 Ohio St.2d 516, 520, 330 N.E.2d 703 (1975):

Were the arbitrator's decision to be subject to reversal because a reviewing court disagreed with findings of fact or with an interpretation of the contract, arbitration would become only an added proceeding and expense prior to final judicial det ermination. This would defeat the bargain made by the parties and would defeat as well the strong public policy favoring private settlement of grievance disputes arising from collective bargaining agreements. Ohio's statutory scheme in R.C. 2711.10 thus limits judicial review of arbitration to claims of fraud, corruption, misconduct, an imperfect award, or that the arbitrator exceeded his authority.

{¶ 14} As explained by our colleagues from the Second District in Piqua v. Fraternal Order of Police, 185 Ohio App.3d 496, 2009

- Ohio

- 6591, 924 N.E.2d 876, ¶ 18 (2d Dist.): "a trial court may not substitute its judgment

— its view of the facts or law

— for that of the arbitrator. * * * Critically then, in reviewing an arbitrator's award, the court must distinguish between an arbitrator's act in excess of his powers and an error merely in the way the arbitrator executed his powers. The former is grounds to vacate; the latter isDelaware County, Case No. 21 CAE 070033 6

not. " " Generally, if the arbitrator's award is based on the language and requirements of the agreement, the arbitrator has not exceeded his powers. " Piqua at ¶ 22. {¶ 15} " When reviewing a d ecision of a common pleas court confirming, modifying, vacating, or correcting an arbitration award, an appellate court should accept findings of fact that are not clearly erroneous but decide questions of law de novo. " Portage C oun ty B oar d of Dev

elopmental Disabilities v. Portage C oun ty Educators' Ass ociatio n for
Dev elopmental Disabilities , 153 Ohio St.3d 219, 2018

- Ohio

- 1590, 103 N.E.3d 804, syllabus. " The substantive merits of the original arbitration award are not reviewable on appeal absent evidence of material mistake or extensive impropriety. " N orthern Ohio Sewer Contr

actor s., Inc. v. Bradley Dev

elopment Co. , 159 Ohio App.3d 794, 2005

- Ohio

1014, 825 N.E.2d 650, ¶ 17 (8th Dist.)

. {¶ 16} Article 25 of the CBA governs "Grievance Procedure" and states the following in pertinent part:

Section 25.6 * * * The Arbitrator shall have no authority to alter, amend, modify, add to, or subtract from the specific provisions, or terms, of the collective bargaining agreeme nt. Section 25.8 The decision of the Arbitrator shall be final and binding upon the Union, the employees, and the Township.

{¶ 17} Article 7 of the CBA governs "Discipline" and states the following in pertinent part:Delaware County, Case No. 21 CAE 070033 7

Section 7.4 The Employer retains the right to discharge, suspend and discipline any non

- probationary employee(s) for just cause. For lesser forms of misconduct, discipline will normally be applied in a progressive manner. Progressive discipline shall take into account the nature of the violation, the employee's record of discipline and the employee's record of performance and conduct. Section 7.6 Notwithstanding any other provisions of this Agreement all matters relating to disciplinary actions against non

- probationary employee shall be subject to the Grievance and Arbitration Procedures herein
contained.

{¶ 18} Section 7.7 lists a range of disciplinary actions which may be imposed "[d]epending upon the seriousness of the conduct" : verbal counseling, verbal reprimand with written summary, written reprimand, suspension up to 30 calendar days, and the last
one, subsection (E), suspension with recommendation for dismissal, which states:

With this action the employee is suspended pend ing a hearing by the Fire Chief. A written report must be filed by the Chief outlining the offense with a copy to the employee. The Fire Chief will decide whether to recommend the dismissal of the employee to the Orange Township Board of Trustees.
The B oard will make the final decision. The Trustees may also in their sole
discretion initiate dismissal. In the event the Board initiates the dismissal the process will go directly to the Board.Delaware County, Case No. 21 CAE 070033 8

{¶ 19} In its appellate brief at 11, appellant first argues the arbi trator exceeded his powers in determining the grievants were not afforded proper due process. In his November 6, 2020 award at 23, the arbitrator stated, "[j]ust cause requires a fair and independent investigation" and concluded, "[t]he investigative proc ess used in this case did not constitute a fair and independent investigation." The arbitrator based this conclusion on the following at 22:

In this case, Chief Noble acted as the investigator. He conducted all of the interviews. He made the disciplina ry recommendation. He acted as the Hearing Officer at the pre

- disciplinary hearing. Following the pre

disciplinary hearing, he recommended that the Board of Trustees discharge the Grievants. Chief Noble provided the Trustees with his investigative report and his Hearing Officer report. No other management official had any input into the reports. The Trustees followed the disciplinary recommendations in Chief Noble's reports. The Trustees did not hear from any witnesses. They did not conduct an indepen dent review. They made a decision based on the recommendations of Chief Noble.

{¶ 20} The arbitrator questioned why there was not an independent review of the investigation. In its June 4, 2021 judgment entry at 7, the trial court found the arbitrator "did not exceed his authority and did not create a new process under the CBA for investigating misconduct and terminating employees." We disagree.Delaware County, Case No. 21 CAE 070033 9

{¶ 21} In this case , the Fire Chief , along with HR/Communications Manager Amanda Sheterom, conducted over twenty interviews, including Musser and the three grievants. Township's Exhibit 1. The Fire Chief conducted pre

- disciplinary hearings wherein the three grievants were present and repr esented by counsel and union officials. Township's Exhibits 6, 7, and 8. The Fire Chief filed a written report and submitted his recommendation of dismissal to the Board. Id. The Board then held executive sessions to consider the discipline, demotion, and/or dismissal of the grievants

. Township's Exhibit
9. Again, the three grievants were present. Id. The Board made the final decision to adopt the findings and recommendations of the Fire Chief and terminated the grievants. {¶ 22} We find Section 7.7(E) of the CBA was followed. Nothing in the CBA requires an independent review of the investigation. The grievants received what they bargained for in the CBA. We agree the arbitrator exceeded his powers in determining the grievants were not afforded proper du e process

. {¶ 23} In its appellate brief at 14, appellant next argues the arbitrator exceeded his powers in determining it did not put the grievants on notice of the disciplinary consequences of their behavior. In his award at 2 3 , the arbitrator found appell ant "never notified the Grievants that they were engaging in improper behavior prior to discharging them. When an employer wants to prohibit beh avior that it has tolerated in the past, it must take action to notify employees of the change in policy." The arbitrator cited to Section 6 (3) of the " Guiding Principles " for the Captain Position which provides, "[c]ounseling shall be utilized ahead of a ny formal discipline, unless the infraction is severe enough there is no choice but to begin the formal discipline process." The
arbitrator determined at 24, "[i]f employees continue to engage in objectional behavior,Delaware County, Case No. 21 CAE 070033 10

the situation must be addressed by pr ogressive discipline, as required by the collective bargaining agreement." {¶ 24} In its appellate brief at 15, appell ee noted the arbitrator relied on rules outside the CBA, the " Guiding Principles " for the Captain Position, to conclude the CBA required progressive discipline. Section 6(2) of the "Guiding Principles" instructs a captain to "[a]lways follow the current Collective Bargaining Agreement when it comes to formal discipline." As cited abo ve in ¶ 17 , Section 7. 4 of the CBA states appell ant "retains the right to discharge, suspend and discipline any non

- probationary employee(s) for just cause. For lesser forms of misconduct, discipline will normally be applied in a progressive
manner." Pro gressive discipline is not required in the CBA if an employee is discharged for just cause

. {¶ 25} As cited above in ¶ 18, Section 7.7 of the CBA lists a range of disciplinary actions which may be imposed "[d]epending upon the seriousness of the conduct": verbal counseling, verbal reprimand with written summary, written reprimand, suspension up to 30 calendar days, or suspension with recommendation for dismissal. {¶ 26} We find the CBA permitted appell ant to skip progressive discipline "[d]epending upon the seriousness of the conduct" and/or for "just cause." The refore, the gravamen of this case is s et forth in the arbitrator's award at 8: " The parties agreed that the following issue is before the Arbitra tor: Were the Grievants, Firefighter Bradley Belville, Lie u tenant David Martin, and Captain John Hodges discharged for just cause? If not, what shall the remedy be?" {¶ 27} Article 33 of the agreement governs " Management Rights " and states the following in perti nent part:Delaware County, Case No. 21 CAE 070033 11

Article 33.1 Unless otherwise in this Collective Bargaining Agreement, nothing in Chapter 4117 of the Revised Code impairs the right and responsibility of the Employer to: E. Suspend, discipline, demote or discharge for just cause, or layoff, transfer, assign , schedule, promote, or retain emp l oyees.

{¶ 28} The agreement does not define "just cause." The I nappropriate B ehavior
P olicy in effect prohibits employees while on duty to engage in "[t]hreats or acts of physical violence against a member of the public, coworke rs or other township employees" and "[a]busive behavior, hazing or harassment of coworkers or members of the public, horseplay, practical jokes and other disruptive behavior is also prohibited." This policy is not a part of the CBA. However, unlike the " Guiding Principles " for the Captain Position which "provide guidance in the position of Fire Captain," this policy pertains to CBA members while on duty

. {¶ 29} In his award, the arbitrator outlined the complained of conduct directed toward Musser at length , and stated the following at 17 :

The basic facts of this case are not in dispute. The evidence supports the conclusion that members of 1

- Unit engaged in various activities that would be considered vulgar or offensive in most workplaces. Howev er, there is clear evidence that these types of activities are not unusual for firefighters who work together on 24

- hour shifts. Behaviors occur that would not be tolerated in almost any other workplace. Numerous witnesses testified thatDelaware County, Case No. 21 CAE 070033 12

the work culture in a firehouse is unique, and that the behavior of the Grievants was consistent with normal firehouse behavior.

{¶ 30} The arbitrator concluded , "the conduct of the members of 1

- Unit was within the range of activities that are generally considered acceptable in teraction among firefighters." Id. The arbitrator acknowledge d , " [t]he fact that these activities were occurring does not necessarily mean that everyone working on the unit must willingly accept them. " Id. He stated at 17

- 18 :

Clearly, no one should be forced to participate in workplace activities that are clearly unrelated to the job. If any member of 1

- Unit made his or her objections known, other crew members would be obligated to exclude the complaining crewmember from the a ctivities. However, a crew member who is offended or uncomfortable with any of the workplace rituals, has a clear responsibility to make his or her concerns known to coworkers.

{¶ 31} The arbitrator concluded at 21, "Musser did not clearly communicate that he o bjected to the conduct that led to the discharge of the Grievants. He did not notify members of 1

- Unit that he was no longer willing to tolerate their behavior. Further, Musser did not make any complaint either within or outside the chain of command." T he arbitrator further concluded, "the Township failed to establish that any of the Grievants engaged in conduct that they knew or should have known was unwelcome." Id. {¶ 32} To reiterate, the arbitrator found the complained of conduct "was within the range of a ctivities that are generally considered acceptable interaction amongDelaware County, Case No. 21 CAE 070033 13

firefighters." Conversely, in its appellate brief at 16

- 17, appell ant deems the complained of conduct as workplace bullying. Appell ant argues the arbitrator exceeded his powers and made a material mistake. However, other than citing to articles about workplace bullying, appell ant does not explain how the arbitrator made a material mistake in this case. Appell ant mere ly notes, "[t]he arbitrator and the trial court simply refused to
ackn owledge Musser talked individually to Belville and then tried to address this issue again at dinner" and Musser did not have " to confront the bullying in order for the behavior
to be 'unwelcome'." Appell ant 's Brief at 17. Appell ant ignores the fact th at "Musser appeared to willingly accept all the firehouse banter and the horseplay * * * as he initially embraced the conduct as a sign of acceptance by full

- time firefighters." Arbitrator's Award
at 7

- 8. In fact, Musser instigated some of the conduct. Id

. at 6

- 7. {¶ 33} In its June 4, 2021 judgment entry at 7, the trial court found the arbitrator "appears to have reasonably construed and applied the CBA, and the Award draws its essence from the CBA." We agree. {¶ 34} The arbitrator determined the facts did not rise to the level of just cause. C ontract interpretation is left to the discretion of the arbitrator as long as it does not conflict with an express term in the CBA and/or cannot be rationally derived from the terms of the CBA. We cannot find either to a pply in this case. We also cannot find the arbitrator's interpretation was unlawful, arbitrary or capricious. Whether we agree with the arbitrator's interpretation is not for us to say. As noted in ¶ 15, o ur role is not to second

- guess the substantive nature of the arbitrator's decision, but to determine if there is any evidence of
material mistake or extensive i mpropriety . After a thorough and lengthy review of the record, the arbitrator's award, and the trial court's decision, we do not find a material mistake or extensive impropriety regarding the arbitrator's decision on just cause.Delaware County, Case No. 21 CAE 070033 14

{¶ 35} Despite our decision that the arbitrator exceeded his powers in determining the grievants were not afforded proper due process, the sole assignment of error is
denied. {¶ 36} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby affirmed

. By Wise, Earle , J. Baldwin , P.J. and Delaney , J. concur.

EEW/ db[Cite as Orange Twp. v. Internatl. Assn. of Fire Fighters Local 3816 , 2022
- Ohio
- 2757.]