[Cite as Belmont Cty. Sheriff v. Fraternal Order of Police, Ohio Labor Council, Inc., 104 Ohio 

St.3d 568, 2004-Ohio-7106.]

BELMONT COUNTY SHERIFF, APPELLEE, v. FRATERNAL ORDER OF POLICE,

OHIO LABOR COUNCIL, INC., APPELLANT. 

[Cite as Belmont Cty. Sheriff v. Fraternal Order of Police, Ohio Labor Council, 

Inc., 104 Ohio St.3d 568, 2004-Ohio-7106.] 

Collective bargaining—Arbitration—Issue of arbitrability to be determined by 

arbitrator if agreement unmistakenly gives arbitrator that authority. 

(No. 2003-1947 — Submitted September 14, 2004 — Decided December 30, 

2004.) 

APPEAL from the Court of Appeals for Belmont County, No. 03 BE 8, 2003-Ohio5154. 

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SYLLABUS OF THE COURT

Where the parties to a collective-bargaining agreement have clearly and 

unmistakably vested the arbitrator with the authority to decide the issue of 

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

by the arbitrator. 

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O’DONNELL, J. 

{¶ 1} The issue presented for our review in this appeal concerns the 

scope of the authority of an arbitrator to determine whether or not a grievance is 

arbitrable. After careful review of the facts as contained in the record presented 

to us and a review of applicable law, we have concluded that where the parties to 

a collective-bargaining agreement have clearly and unmistakably vested the 

arbitrator with the authority to decide the issue of arbitrability, the question of 

whether a matter is arbitrable is to be decided by the arbitrator. 
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{¶ 2} The facts of this case are generally not disputed and arise from the 

provisions of a collective-bargaining agreement that became effective November 

11, 1999, between the Fraternal Order of Police and the Sheriff of Belmont 

County. Pursuant to that agreement, members of the Fraternal Order of Police 

filed a grievance alleging that the sheriff had failed to make required contributions 

to the Public Employees Retirement System on behalf of employees hired before 

April 1999 and asking that the sheriff make contributions for all service from their 

original hire dates. 

{¶ 3} Following denial of that grievance, the Fraternal Order of Police 

filed for arbitration, which the sheriff opposed with a motion to dismiss, 

contending that the terms of the collective-bargaining agreement precluded the 

arbitrator from entertaining the matter. According to the arbitrator’s opinion, the 

sheriff relied on the following provision of the agreement: 

{¶ 4} “The arbitrator shall be without authority to recommend any right 

or relief on an alleged grievance occurring at any time other than the contract 

period in which such right originated or to make any award based on rights arising 

under any previous Agreement.” 

{¶ 5} The Fraternal Order of Police argued that its claim involved a 

continuing violation affecting long-term retirement benefits for those involved. 

{¶ 6} The merits of that conflict are not before us in this appeal because 

the arbitrator held any ruling on the merits of that controversy in abeyance 

pending her consideration of the issue of arbitrability as stipulated by the parties: 

“Is the grievance arbitrable?” 

{¶ 7} The arbitrator made an “interim award,” deciding only that the 

grievance could be arbitrated and that the sheriff’s motion to dismiss should be 

denied. 
January Term, 2004 

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{¶ 8} The common pleas court granted the sheriff’s application to vacate 

the arbitrator’s award, and upon review, the court of appeals affirmed that 

determination. 

{¶ 9} We granted discretionary review and concern ourselves with the 

authority of the arbitrator to decide the issue of arbitrability in accordance with 

the terms contained in a collective-bargaining agreement. The Fraternal Order of 

Police argues that the common pleas court improperly vacated the arbitrator’s 

determination of arbitrability, since the collective-bargaining agreement granted 

the arbitrator the right to decide that issue. 

{¶ 10} 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: 

{¶ 11} “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.) 

{¶ 12} 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 
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principles delineating a court’s role in reviewing arbitration. Of particular interest 

is principle two: 

{¶ 13} “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. 

{¶ 14} Accordingly, we next examine the provisions of the collectivebargaining agreement to determine the extent of agreement or lack thereof on the 

issue of arbitrability. Article 7, Section 3, states: 

{¶ 15} “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.) 

{¶ 16} In this instance, then, the collective-bargaining agreement clearly 

and unmistakably places the question of arbitrability before the arbitrator for 

determination. Hence, there can be no dispute with regard to what authority the 

parties have granted the arbitrator. 

{¶ 17} Finally, we note that in Fraternal Order of Police, Ohio Labor 

Council, Inc. v. Umpleby (Feb. 12, 1996), 5th Dist. No. 1995 CA 00196, 1996 

WL 74031, the court examined an identical collective-bargaining provision and 

concluded that the trial court erred by vacating the arbitrator’s determination of 
January Term, 2004 

5 

arbitrability because the collective-bargaining agreement granted the arbitrator the 

power to make that decision. 

{¶ 18} In this case, we have concluded that Article 7 of the collectivebargaining agreement empowers the arbitrator to determine the issue of 

arbitrability because the parties have clearly and unmistakably provided for the 

arbitrator to hear that matter. Where the parties to a collective-bargaining 

agreement have clearly and unmistakably vested the arbitrator with the authority 

to decide the issue of arbitrability, the question of whether a matter is arbitrable is 

to be decided by the arbitrator. Therefore, the judgment of the court of appeals is 

hereby reversed, and the matter is remanded for further proceedings in accordance 

with this decision. 

Judgment reversed 

and cause remanded. 

 MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON and

O’CONNOR, JJ., concur. 

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Paul L. Cox, Douglas J. Behringer and Gwen Callender, for appellant. 

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