[Cite as Anderson Twp. Bd. of Trustees v. Anderson Twp. Professional Firefighters Assn., Laff Local 

3111, 2019-Ohio-2302.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

BOARD OF TRUSTEES OF 

ANDERSON TOWNSHIP, OHIO, 

 Plaintiff-Appellant, 

 vs. 

ANDERSON TOWNSHIP 

PROFESSIONAL FIREFIGHTERS 

ASSOCIATION, IAFF LOCAL 3111, 

 Defendant-Appellee. 

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APPEAL NO. C-180371 

TRIAL NO. A-1800918 

 O P I N I O N.

 

Civil Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: June 12, 2019 

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

Lazarus & Lewis, LLC, and Kimberly A. Rutowski, for Defendant-Appellee. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
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{¶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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 of Review 

{¶9} Pursuant to R.C. 2711.10, an arbitrator’s award may only be vacated in 

very limited circumstances, including, as relevant to this appeal, where “[t]he 

 arbitrators exceeded their powers, or so imperfectly executed them that a mutual, 

final, and definite award upon the subject matter submitted was not made.” R.C. 

2711.10(D). 

{¶10} An arbitrator’s authority is limited to that granted to the arbitrator 

under the terms of the parties’ agreement, and an arbitrator exceeds that authority 

where her award does not draw its essence from the agreement. H.C. Nutting Co. v. 

Midland Atlantic Dev. Co., LLC, 2013-Ohio-5511, 5 N.E.3d 125, ¶ 13 (1st Dist.). 

{¶11} An award draws its essence from the parties’ agreement where “there 

is a rational nexus between the agreement and the award, and where the award is not 

arbitrary, capricious, or unlawful.” Princeton City School Dist. Bd. of Edn. v. 

Princeton Assn. of Classroom Educators, 1st Dist. Hamilton No. C-120469, 2013-

Ohio-667, ¶ 12, quoting Mahoning Cty. Bd. of Mental Retardation and Dev. 

Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 84, 488 N.E.2d 

872 (1986). But an arbitrator’s award departs from the essence of the agreement 

where “(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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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of the agreement.” 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. 

{¶12} Deference must be given to the arbitrator’s decision. “[T]he arbitrator 

is the final judge of both the law and the facts, and a court may not substitute its 

judgment for that of the arbitrator. * * * Judicial deference in arbitration cases is 

based on a recognition that the parties have agreed to have their dispute settled by an 

arbitrator rather than the courts and ‘to accept the arbitrator’s view of the facts and 

the meaning of the contract regardless of the outcome of the arbitration.’ ” Portage 

Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators’ Assn. for Dev. Disabilities, 

2017-Ohio-888, 86 N.E.3d 580, ¶ 11 (11th Dist.), quoting Arrow Uniform Rental, LP 

v. K & D Group, Inc., 11th Dist. Lake No. 2010-L-152, 2011-Ohio-6203, ¶ 35-36. 

{¶13} While we must accept any findings of fact that are not clearly 

erroneous, we conduct a de novo review of the trial court’s decision to determine 

whether any of the grounds in R.C. 2711.10 exist to support vacating the arbitrator’s 

award. Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators’ Assn. for 

Dev. Disabilities, 153 Ohio St.3d 219, 2018-Ohio-1590, 103 N.E.3d 804, syllabus. 

Arbitrator’s Award Must be Upheld 

{¶14} In a single assignment of error, the Board argues that the trial court 

erred by denying its motion to vacate the arbitrator’s decision. It specifically 

contends that the arbitrator exceeded her powers by adding an exhaustion 

requirement to the language of the CBA; that the award departed from the essence of 

the CBA because the arbitrator failed to discuss sections 4.1, 4.2, 4.3, and 4.5 of the 

CBA; and that the award conflicted with express terms of the CBA. 

{¶15} Article 8 of the CBA provides for discipline of employees and sets forth 

the detailed procedure to be followed when imposing discipline. Article 8.3(A) 

provides that an employee shall be notified in writing that she or he is being accused 
OHIO FIRST DISTRICT COURT OF APPEALS 

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of conduct for which formal discipline is contemplated. Article 8.3(B) provides that 

the Chief or the Chief’s designee must conduct a conference, at which time the 

charges will be stated to the employee and the employee will have a chance to offer 

an explanation, defense, or mitigating circumstances. Article 8.3(C) provides that at 

the conclusion of the conference, the Chief or the Chief’s designee shall “1. Dismiss 

the allegations as unfounded without record; 2. Impose discipline of record; [or] 3. 

Continue the conference in progress for a period not to exceed seventy-two (72) 

hours.” Articles 8.3(D) and (E) outline the procedure for appealing any imposed 

discipline. 

{¶16} Article 6 concerns the grievance procedure and provides for 

arbitration. It sets forth the powers of the arbitrator, stating that the she or he “shall 

not have power to add to, subtract from, or modify this Agreement, but shall only 

have authority to interpret and apply the terms of this Agreement.” 

{¶17} And Article 4 of the CBA sets forth various management rights, 

including: 

4.1 The Employer retains the right to manage, direct, and supervise 

the work force as it sees fit except to the extent that such rights are 

specifically and expressly modified by the terms of this Agreement. 

4.2 The Employer retains all rights, authority, and powers of an 

Employer except as specifically and expressly modified herein. 

4.3 The Employer is free to implement changes in policy or operation 

during the term of this Agreement so long as such changes do not alter 

any of the terms specifically agreed upon herein. 

* * * 

4.5 Any matters not specifically covered by this Agreement shall be 

considered to be within the discretion of the Employer and shall be 

subject to all applicable laws or resolutions now existing or hereinafter 

adopted. * * * This agreement represents all of the Employees’ rights, 
OHIO FIRST DISTRICT COURT OF APPEALS 

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privileges and benefits granted by the Employer. Unless specifically 

and expressly set forth in this Agreement, all past practices and 

benefits previously granted are not in effect. 

{¶18} Following our review of the record, we find that the arbitrator’s award 

involves interpretation of the CBA, draws its essence from the CBA, and does not 

conflict with any express terms of the CBA. 

{¶19} In sustaining the Union’s grievance and concluding that the Board 

could not impose discipline until all appellate remedies had been exhausted, the 

arbitrator interpreted the CBA, as she was authorized to do pursuant to Article 6. In 

interpreting the CBA, the arbitrator determined that Article 8.3(C) allowed discipline 

to be imposed, but was silent as to when any imposed discipline could be 

implemented. In her award, the arbitrator seemingly distinguished situations 

involving a silent contract and those involving an ambiguous contract before 

determining that the parties’ conduct is relevant to filling any gap created by a 

contract that is silent on an issue. But here, we find this to be a distinction without a 

difference. Regardless of whether a contractual provision is considered ambiguous 

or silent, arbitrators can look to the conduct of the parties to see how they have 

interpreted the agreement. See St. Mary’s v. Auglaize Cty. Bd. of Commrs., 115 Ohio 

St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶ 39, quoting Natl. City Bank of 

Cleveland v. Citizens Bldg. Co. of Cleveland, 48 Ohio Law Abs. 325, 335, 74 N.E.2d 

273 (8th Dist.1947) (“Where a dispute arises relating to an agreement under which 

the parties have been operating for some considerable period of time, the conduct of 

the parties may be examined in order to determine the construction which they 

themselves have placed upon the contract * * *.”); William Powell Co. v. Onebeacon 

Ins. Co., 2016-Ohio-8124, 75 N.E.3d 909, ¶ 33 (1st Dist.) (the parties’ postcontract 

formation conduct is relevant to determine their intent when a contract is 

ambiguous); Money Station, Inc. v. Electronic Payment Serv., Inc., 136 Ohio App.3d 

65, 71, 735 N.E.2d 966 (1st Dist.1999) (when a court finds a contractual provision to 
OHIO FIRST DISTRICT COURT OF APPEALS 

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be ambiguous, it may look to extrinsic evidence to determine the parties’ intent, 

including any acts by the parties that demonstrate their interpretation of the 

contract). It was thus appropriate for the arbitrator to consider the conduct of the 

parties after the effective date of the current CBA to determine how they interpreted 

the contract and the timing of the implementation of imposed discipline. 

{¶20} Contrary to the Board’s argument, the arbitrator’s consideration of the 

parties’ conduct did not expressly conflict with the zipper clause in Article 4.5, which 

provided that “all past practices and benefits previously granted are not in effect.” In 

determining that the township could not impose discipline until the appeals process 

was completed, the arbitrator was not enforcing any past practice; rather, she was 

looking to the parties’ current conduct following the effective date of the current CBA 

to determine how they interpreted the contract. This she is permitted to do. And in 

two instances in which discipline was imposed under the terms of the current CBA, 

the discipline was not implemented until either all appeals were exhausted or the 

employee elected not to appeal any further. 

{¶21} We find no error in the arbitrator’s failure to discuss sections 4.1, 4.2, 

4.3, and 4.5 of the CBA. These provisions do not directly concern disciplinary 

procedures or the implementation of discipline, and are not in conflict with the 

arbitrator’s award. Moreover, these provisions provide generally that the township 

retains the right to supervise its workforce as it sees fit, unless the rights of the 

employer to manage, direct, or supervise the employees are specifically and expressly 

modified by the CBA. The right to discipline an employee is specifically addressed, 

even though the timing of the implementation is ambiguous. And, these provisions 

do not prohibit an arbitrator from interpreting the CBA to resolve an ambiguity. 

Further, there is no requirement that an arbitrator discuss every provision that she 

considered in determining an award. 

{¶22} The Board argues that if it is required to delay the implementation of 

discipline until the appeals process is completed, an employee could remain on the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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job committing acts that negatively impact the safety of the community. But the 

Board has alternative avenues available to handle such a situation, other than the 

immediate implementation of discipline. Article 8.2 of the CBA specifically defines 

discipline to be “written reprimand, suspension without pay, demotion to lower 

classification, loss of vacation, or dismissal.” Not included as discipline is a 

suspension with pay. Thus, if an employee posed a risk to the public, the township 

could suspend that employee with pay pending discipline. 

{¶23} Here, the arbitrator’s award did not conflict with the express terms of 

the CBA, and it drew its essence from that agreement, as there was a rational nexus 

between the agreement and the award and the award was not arbitrary, capricious, 

or unlawful. Consequently, we hold that the trial court did not err in denying the 

Board’s motion to vacate. 

{¶24} The Board’s assignment of error is overruled, and the judgment of the 

trial court is affirmed. 

Judgment affirmed. 

BERGERON and CROUSE, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.