[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ohio 

Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion No. 2017-Ohio-2804.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2017-OHIO-2804

OHIO PATROLMEN’S BENEVOLENT ASSOCIATION ET AL., APPELLANTS, v. THE 

CITY OF FINDLAY, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Ohio Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion 

No. 2017-Ohio-2804.] 

Arbitration—Any limitation on an arbitrator’s authority to modify a disciplinary 

action pursuant to a collective bargaining agreement (“CBA”) provision 

requiring that discipline be imposed only for just cause must be specifically 

bargained for by the parties and incorporated into the CBA—CBA placed 

no limitation on arbitrator’s authority to review disciplinary action 

imposed and fashion a remedy—Arbitrator’s award draws its essence from 

CBA, and arbitrator acted within his authority—Court of appeals’ judgment 

reversed, award reinstated, and cause remanded. 

(No. 2015-1581—Submitted February 7, 2017—Decided May 17, 2017.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 102282, 2015-Ohio-3234. 

_______________ 

 
SUPREME COURT OF OHIO

2

O’DONNELL, J. 

{¶ 1} The Ohio Patrolmen’s Benevolent Association (“OPBA”) and 

Sergeant David Hill of the Findlay Police Department appeal from a judgment of 

the Eighth District Court of Appeals affirming a common pleas court decision that 

vacated an arbitration award that changed the disciplinary sanction recommended 

by the chief of police against Hill from termination to a lengthy suspension. The 

issue presented on this appeal is whether the collective bargaining agreement 

between the city of Findlay and the OPBA requiring that discipline be imposed only 

for just cause authorized the arbitrator to change the sanction recommended by the 

chief of police in accordance with the department’s matrix of discipline. 

Facts and Procedural History 

{¶ 2} The Findlay police department hired David Hill in 1992 as an 

auxiliary police officer; in 1999 he became a patrolman, and in 2005 he was 

promoted to sergeant. The department’s disciplinary procedures include a 

“discipline matrix” setting forth progressive levels of discipline based on the 

seriousness of the offense and the number of prior violations and providing that 

“[i]f more than one discipline level is indicated, the Chief of Police has sole 

discretion in determining which of the two levels is appropriate, based on the facts 

of the case and history of the involved employee.” 

{¶ 3} Hill is a member of the OPBA, and that organization is a party to a 

collective bargaining agreement (“CBA”) with the city containing a provision that 

discipline shall be imposed only for just cause and establishing a grievance 

procedure which includes binding arbitration. 

The July 2012 Incidents 

{¶ 4} On July 6, 2012, Hill helped to create a video of him using a taser 

against the son of a fellow officer which violated the department’s social media 

policy, resulting in a written reprimand for his conduct. On July 27, 2012, Hill 

made disparaging comments about another fellow officer’s mental health and 
January Term, 2017 

3

placed the barrel of his service weapon into his own mouth. As a result of that 

incident, Chief of Police Gregory Horne recommended that Hill be suspended for 

30 days with 15 days stayed for conduct unbecoming an officer. Hill then filed a 

grievance, but the city’s safety director agreed with the recommendation and denied 

it, and as a result, the matter was scheduled for arbitration on November 28, 2012. 

The November 2012 Incident 

{¶ 5} On November 13, 2012, after the midnight shift roll call, Hill referred 

to Officer Morgan Greeno as “Whoregan” in response to a question about the 

committee coordinating an upcoming Fraternal Order of Police Christmas party. 

Greeno filed a complaint because she thought the comment could have been related 

to her scheduled testimony against Hill at the arbitration hearing. She also claimed 

that Hill had made and condoned comments based on the running joke that she was 

pregnant with the baby of a municipal building custodian. 

The First Arbitration 

{¶ 6} Jonathan Klein arbitrated the July 27 incident, found the city had just 

cause to discipline Hill for that incident but that Chief Horne’s recommendation of 

a 30 day suspension with 15 days stayed “exceeded the disciplinary matrix without 

justification,” and therefore reduced the disciplinary action to a ten day suspension 

in accordance with the matrix. Noting Chief Horne’s testimony that the city is not 

required to and does not always follow the matrix, the arbitrator determined that 

“under the principles of just cause, the City cannot simply pick and choose when it 

will apply the Discipline Matrix to a particular infraction warranting discipline.” 

The arbitrator declined to address the OPBA’s contention that it had never agreed 

to the matrix because the record on that issue was not “sufficiently developed.” 

The Second Arbitration 

{¶ 7} Following an investigation of the November 13 incident, Chief Horne 

concluded Hill had violated several department rules and regulations, “the most 

serious” being the department’s sexual harassment policy, and he applied the matrix 
SUPREME COURT OF OHIO

4

to recommend Hill’s termination. Hill filed a grievance asserting no just cause for 

his termination and that the chief’s application of the matrix violated the CBA. The 

safety director agreed with the chief’s recommended termination and denied Hill’s 

grievance. 

{¶ 8} James Mancini arbitrated this matter and granted in part and denied 

in part the grievance. Mancini found the evidence did not clearly demonstrate Hill 

had violated the department’s sexual harassment policy and therefore set aside the 

discharge penalty; however, he concluded that the city had “just cause to impose 

severe discipline” because Hill had engaged in conduct unbecoming an officer and 

had failed to properly carry out his supervisory duties. Mancini noted Klein’s 

decision “concerning the department’s Discipline Matrix Guidelines” and 

concluded that the matrix “should be applied in this case” and that it indicated two 

levels of discipline, i.e., “the discipline could range from a 3-10 day suspension up 

to termination.” He determined a “lengthy disciplinary suspension is warranted” 

and ordered that Hill be reinstated with full seniority but no back pay. 

{¶ 9} Hill and the OPBA filed an application in the common pleas court to 

enforce the arbitration award, claiming that the city refused to reinstate him and 

seeking lost wages, benefits, and seniority and interest, attorney fees, and court 

costs. The city filed an application to vacate and/or modify the award. The 

common pleas court consolidated the appeals and vacated the award pursuant to 

R.C. 2711.10(D), concluding that after Mancini had determined that the matrix 

should have been applied, he “exceeded and imperfectly executed his power” by 

departing from the matrix’s plain language, which gives sole discretion to the chief 

of police to choose between a three to ten day suspension or termination. 

{¶ 10} In a split decision, the court of appeals affirmed the judgment of the 

common pleas court, concluding the arbitration award did not draw its essence from 

the CBA and was arbitrary, capricious, and unlawful. The majority explained the 

arbitrator “interpreted the CBA (and its just cause standard for disciplinary action) 
January Term, 2017 

5

as requiring the application of the discipline matrix to determine the 

appropriateness of the discipline imposed.” 2015-Ohio-3234, 40 N.E.3d 610, ¶ 41. 

The majority held that after determining the matrix applied and indicated two levels 

of discipline, the arbitrator lacked “arbitral authority to modify the disciplinary 

action imposed, which under the discipline matrix and the CBA was within the ‘sole 

discretion’ of Chief Horne.” Id. at ¶ 43. The dissenting judge opined that the 

disciplinary procedures and matrix were not part of the CBA, that the arbitrator had 

full authority to fashion a remedy, and that even if the procedures and matrix were 

part of the CBA, the choice of discipline was still subject to the just cause standard 

in the CBA. 

{¶ 11} The OPBA and Hill appealed, and we accepted the following 

proposition of law for review: “Any limitation on an arbitrator’s ability to review 

and modify disciplinary action under the ‘just cause’ standard must be specifically 

bargained for by the parties and contained within the four corners of the collective 

bargaining agreement.” 

Positions of the Parties 

{¶ 12} The OPBA and Hill contend that any limitation on an arbitrator’s 

authority to modify discipline pursuant to a CBA that requires discipline to be 

imposed for just cause must be specifically bargained for and incorporated into the 

CBA and in this case, the disciplinary procedures and the matrix were unilaterally 

adopted by the city and therefore do not meet this standard. They also claim that 

Articles 4.01 and 10 of the CBA, which permit the department to develop work 

rules and require OPBA members to comply with them, do not incorporate the 

matrix into the CBA, and they analogize this case to Southwest Ohio Regional 

Transit Auth. v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108, 742 

N.E.2d 630 (2001) (“SORTA”). The OPBA and Hill thus maintain that Mancini 

had authority to modify the discipline in this matter, properly used the matrix for 
SUPREME COURT OF OHIO

6

guidance, and fashioned an appropriate remedy in light of the city’s failure to prove 

its most serious allegation against Hill. 

{¶ 13} The city contends that an arbitrator’s authority to modify a 

disciplinary action if he finds that there is not just cause to impose it is limited by 

the predetermined penalties in the matrix which the city had authority to establish 

pursuant to Articles 4.01 and 10 of the CBA. The city asserts that it did not 

unilaterally adopt the matrix because the OPBA agreed its members would abide 

by department rules and participated in the creation of the matrix. Thus, the city 

claims Mancini was required to apply the matrix in this matter, including its 

language granting the chief sole discretion to choose between two levels of 

discipline. And the city claims that Klein determined the city could not impose 

discipline contrary to the matrix and that these parties are bound by that decision. 

Issue 

{¶ 14} The issue presented here is whether the just cause for discipline 

provision of the CBA authorized Mancini to change the disciplinary action 

recommended by the chief of police pursuant to the matrix.

Law and Analysis 

{¶ 15} “The public policy favoring arbitration requires that courts have only 

limited authority to vacate an arbitrator’s award.” Assn. of Cleveland Fire Fighters, 

Local 93 of the Internatl. Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 

2003-Ohio-4278, 793 N.E.2d 484, ¶ 13. R.C. 2711.10(D) provides that the court 

of common pleas “shall make an order vacating the award upon the application of 

any party to the arbitration if * * * [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,” and R.C. 2711.15 authorizes an appeal from such 

an order. 

{¶ 16} “An arbitrator derives his authority from the express terms of the 

collective-bargaining agreement between the parties.” Fostoria v. Ohio 
January Term, 2017 

7

Patrolmen’s Benevolent Assn., 106 Ohio St.3d 194, 2005-Ohio-4558, 833 N.E.2d 

720, ¶ 11. “Arbitrators act within their authority to craft an award so long as the 

award ‘draws its essence’ from the contract—that is, ‘when there is a rational nexus 

between the agreement and the award, and where the award is not arbitrary, 

capricious or unlawful.’ ” Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-

Ohio-3943, 19 N.E.3d 893, ¶ 7, quoting Mahoning Cty. Bd. of Mental Retardation 

& Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 488 

N.E.2d 872 (1986), paragraph one of the syllabus. “[A]n award ‘departs from the 

essence of a [contract] when: (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 of the agreement.’ ” (Brackets sic.) Id., quoting Ohio Office 

of Collective Bargaining v. Ohio Civ. Serv. Emps. Assn., Local 11, AFSCME, AFLCIO, 59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus. 

{¶ 17} “Where an arbitrator’s decision draws its essence from the collective 

bargaining agreement, and in the absence of language in the agreement that would 

restrict such review, the arbitrator, after determining that there was just cause to 

discipline an employee, has the authority to review the appropriateness of the type 

of discipline imposed.” Bd. of Trustees of Miami Twp. v. Fraternal Order of Police, 

Ohio Labor Council, Inc., 81 Ohio St.3d 269, 690 N.E.2d 1262 (1998), syllabus. 

“An arbitrator has broad authority to fashion a remedy, even if the remedy 

contemplated is not explicitly mentioned in the labor agreement.” Queen City 

Lodge No. 69, Fraternal Order of Police, Hamilton Cty., Ohio, Inc. v. Cincinnati, 

63 Ohio St.3d 403, 407, 588 N.E.2d 802 (1992). 

{¶ 18} Article 41.03 of the CBA1

 provides: “The arbitrator shall have no 

power or authority to add to, subtract from, or in any other manner alter the specific 

 

1

 The court of appeals recognized the parties’ apparent disagreement as to whether the version of 

the CBA effective January 1, 2011, to December 31, 2012, or January 1, 2013, to December 31, 

2015, governs this matter. The court noted that it was unclear from the record which version 

Mancini had used and determined that it did not need to resolve the issue, because the relevant 
SUPREME COURT OF OHIO

8

terms of this Agreement * * * nor to make any award that * * * violates any of the 

terms and conditions of this Agreement.” Article 39.07 states: “Discipline shall be 

imposed only for just cause.” And Article 4.01(5) similarly reserves the city’s right 

to “suspend, discipline, demote, or discharge for just cause.” 

{¶ 19} Here, Mancini stated the matrix “should be applied in this case,” but 

he did not find that a specific provision in the CBA mandated application of the 

matrix, nor could such a finding be rationally derived from the terms of the 

agreement. The CBA does not mention the police department’s disciplinary 

procedures or the matrix, and no language in the CBA restricts an arbitrator’s 

authority to review the appropriateness of the type of discipline imposed after the 

arbitrator has determined that there is just cause to discipline an employee for the 

type of misconduct at issue in this matter. 

{¶ 20} The city’s reliance on Articles 4.01 and 10 of the CBA is misplaced. 

Article 4.01 states: 

Unless expressly provided to the contrary by a specific provision of 

this Agreement, the Employer reserves and retains, solely and 

exclusively, all of its statutory and common law rights to manage 

the operation of its Department of Police. Employer[’]s rights shall 

include, but are not limited to, the following: the right to * * * (10) 

develop, revise, or eliminate work practices, procedures and rules in 

the operation of the Department of Police and to maintain discipline 

* * *. 

{¶ 21} Article 10.01 of the CBA states: 

 

provisions in both versions were “substantively similar, if not identical.” 2015-Ohio-3234, 40 

N.E.3d 610, at ¶ 11, fn. 1. Because the exhibits from the arbitration include only a copy of the 

version of the CBA effective January 1, 2013, to December 31, 2015, we quote from that version in 

this opinion. 
January Term, 2017 

9

The Union agrees that its membership shall comply with Police 

Department and City of Findlay Rules and Regulations, including 

those relating to working conditions, conduct, and performance. 

The Employer agrees that Police Department and City of Findlay 

Rules and Regulations, which affect working conditions, conduct, 

and performance shall be subject to the grievance procedure if they 

violate this Agreement. 

Article 10.02 requires the parties to add any proposed changes to the rules and 

regulations “to the discussion agenda of the next Labor-Management Committee 

meeting,” and Article 10.03 generally requires the city to notify the OPBA of 

changes in writing at least 14 days prior to their proposed effective date. 

{¶ 22} In SORTA, 91 Ohio St.3d 108, 742 N.E.2d 630, the employer 

terminated a union employee for violating a drug policy which called for automatic 

termination of an employee who tested positive for marijuana. An arbitration panel 

found the policy facially valid but determined that the automatic discharge sanction 

conflicted with, and thus violated, a provision of the CBA requiring sufficient cause 

for discharge. The arbitration panel reinstated the employee, finding no sufficient 

cause for discharge under the circumstances. A common pleas court affirmed the 

arbitration award, but the court of appeals reversed it and remanded with 

instructions to vacate the award. 

{¶ 23} We reversed the court of appeals and ordered reinstatement of the 

arbitration award, explaining that the employer had adopted the drug policy 

pursuant to a section of the CBA but that “any sanction for a violation of a rule 

adopted” pursuant to that section “was subject to the ‘sufficient cause’ standard” 

contained in a separate section of the CBA. Id. at 110. We noted that the Tenth 

Circuit Court of Appeals has held that although a CBA gave an employer 
SUPREME COURT OF OHIO

10 

“the right * * * to make necessary reasonable rules and regulations 

for the conduct of business, providing that said rules and regulations 

are not in conflict with the terms of [the CBA] in any way,” * * *, 

the right to make such rules is not the right to equate the violation 

of such rules with “good and sufficient cause” for termination. To 

hold otherwise would be to allow [the employer] to unilaterally 

define the meaning of “good and sufficient cause,” a right which 

was not contemplated by the CBA and for which [the employer] 

must negotiate with the Union. 

(Ellipses and first brackets sic and emphasis deleted.) Id. at 111, quoting Local No. 

7 United Food & Commercial Workers Internatl. Union v. King Soopers, Inc., 222 

F.3d 1223, 1227 (10th Cir.2000). 

{¶ 24} We agreed with and applied this reasoning to conclude: 

SORTA did not have the right to unilaterally adopt automatic 

termination * * * as a sanction for testing positive, because such a 

sanction conflicts with the “sufficient cause” requirement for 

dismissal found in * * * the CBA. Just as the court noted in King 

Soopers, allowing SORTA to enforce automatic termination would 

allow an employer to unilaterally adopt a sanction that conflicts with 

the sufficient-cause requirement for dismissal that was negotiated 

into the CBA, thereby undermining the integrity of the entire 

collective bargaining process. The proper avenue for SORTA to 

adopt such a sanction would be through the collective bargaining 

process, not through a unilateral decision. 
January Term, 2017 

11 

(Emphasis sic.) Id.

{¶ 25} Similarly, in this case, although the CBA reserves the city’s right to 

develop work rules and obligates OPBA members to comply with those rules, the 

city’s right to develop rules is not a right to determine what particular form of 

discipline it has just cause to impose for a violation of those rules. Stated 

differently, the city’s right to develop rules is not the right to unilaterally define the 

meaning of the phrase “just cause” for purposes of the CBA—a right that is not 

contemplated by the agreement. Moreover, the discipline matrix is not subject to 

the grievance procedure pursuant to Article 10.01, because it is not a rule affecting 

“working conditions, conduct, and performance,” but even if it were and the OPBA 

had the rights to notice and an opportunity to be heard pursuant to Articles 10.02 

and 10.03 with respect to adoption of the matrix, such rights would not operate to 

incorporate the matrix into the CBA. Pursuant to Article 46.01 of the CBA, to 

qualify as an appendix or amendment to the CBA, the matrix had to be signed by 

both the city and the OPBA. It was not. 

{¶ 26} Finally, the city’s reliance on Klein’s decision is misplaced because 

he did not reach the issue whether the OPBA had agreed to the matrix but instead 

took issue with the city’s arbitrary application of the matrix and the city’s decision 

to depart from it without justification. 

{¶ 27} Although nothing in the CBA precludes the city from using the 

matrix as a guide in imposing discipline, treating the matrix as binding on the 

arbitrator would conflict with the just cause requirement for discipline that the city 

and the OPBA negotiated into the CBA and as in SORTA, would undermine the 

integrity of the entire collective bargaining process. 

{¶ 28} Because the parties did not specifically bargain for the matrix and 

incorporate it into the CBA, Mancini had authority to review the appropriateness 

of the disciplinary action imposed in this matter and broad authority to fashion a 

remedy. His choice of remedy does not conflict with the express terms of the CBA, 
SUPREME COURT OF OHIO

12 

is rationally derived from the terms of the agreement, and is not arbitrary, 

capricious, or unlawful. Therefore, the arbitration award draws its essence from 

the CBA. 

Conclusion 

{¶ 29} Any limitation on an arbitrator’s authority to modify a disciplinary 

action pursuant to a CBA provision requiring that discipline be imposed only for 

just cause must be specifically bargained for by the parties and incorporated into 

the CBA. Here, the CBA placed no limitation on the arbitrator’s authority to review 

the disciplinary action imposed and fashion a remedy. Because Mancini’s award 

draws its essence from the CBA and because he acted within his authority, we 

reverse the judgment of the court of appeals, reinstate the award, and remand this 

matter to the common pleas court for further proceedings consistent with this 

opinion. 

Judgment reversed, 

arbitration award reinstated, 

and cause remanded. 

KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE, JJ., concur. 

O’CONNOR, C.J., dissents, with an opinion. 

_________________ 

O’CONNOR, C.J., dissenting. 

{¶ 30} I dissent. I would hold that this court improvidently accepted the 

discretionary appeal and would dismiss the cause. 

{¶ 31} We accepted the following proposition of law: “Any limitation on 

an arbitrator’s ability to review and modify disciplinary action under the ‘just 

cause’ standard must be specifically bargained for by the parties and contained 

within the four corners of the collective bargaining agreement.” See 144 Ohio St.3d 

1475, 2016-Ohio-467, 45 N.E.3d 243. I dissented from the decision to accept 

jurisdiction. And after consideration of the parties’ briefs and oral argument, it is 
January Term, 2017 

13 

even more clear that we accepted the appeal in error. Appellants, David Hill and 

the Ohio Patrolmen’s Benevolent Association (“OPBA”), ask us only to interpret a 

contract based on well-settled contract law. Moreover, appellants ask us to do so 

on a record that contains very little evidence. 

{¶ 32} In their merit brief, appellants admit that “the Eighth District 

correctly recited the applicable law and properly framed the issue in dispute 

between the parties,” before asking us to correct an error they perceive in the court 

of appeals’ application of that law: the finding that the arbitrator exceeded his 

authority under the collective-bargaining agreement (“CBA”) between the OPBA 

and the city by fashioning a remedy outside of the city’s discipline matrix. The 

crux of appellants’ argument is that the discipline matrix had not been incorporated 

into the CBA and thus did not limit the arbitrator’s authority to fashion a remedy. 

{¶ 33} Appellants are correct that the law is already clear on the issues 

inherently raised in their proposition. The Ohio Constitution charges us to exercise 

our discretionary jurisdiction in “cases of public or great general interest,” Article 

IV, Section 2(B)(2)(e), and this case presents neither. As a court of last resort, it is 

not our role to consider allegations that a lower court has erred in applying 

established law but, rather, to set forth legal interpretations to guide the lower 

courts. See State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 

1095, ¶ 63 (O’Donnell, J., dissenting) (“[W]e are not an error-correcting court; 

rather, our role as the court of last resort is to clarify confusing constitutional 

questions, resolve uncertainties in the law, and address issues of public or great 

general interest * * *. Significantly, appellate courts consider assignments of error, 

while this court considers propositions of law. The two are materially and 

substantively different”). 

{¶ 34} We have previously interpreted the law at issue in this case and have 

held that “ ‘[t]he arbitrator is confined to the interpretation and application of the 

collective bargaining agreement, and although he may construe ambiguous contract 
SUPREME COURT OF OHIO

14 

language, he is without authority to disregard or modify plain and unambiguous 

provisions.’ ” Office of Collective Bargaining v. Ohio Civil Serv. Emps. Assn., 

Local 11, AFSCME, AFL-CIO, 59 Ohio St.3d 177, 180, 572 N.E.2d 71 (1991), 

quoting Detroit Coil Co. v. Internatl. Assn. of Machinists & Aerospace Workers, 

Lodge No. 82, 594 F.2d 575, 579 (6th Cir.1979). It is also well settled that “[w]here 

an arbitrator’s decision draws its essence from the collective bargaining agreement, 

and in the absence of language in the agreement that would restrict such review, the 

arbitrator, after determining that there was just cause to discipline an employee, has 

the authority to review the appropriateness of the type of discipline imposed.” Bd. 

of Trustees of Miami Twp. v. Fraternal Order of Police, Ohio Labor Council, Inc., 

81 Ohio St.3d 269, 690 N.E.2d 1262 (1998), syllabus. Any further legal 

pronouncements are unnecessary, and we should not entertain the invitation to 

consider whether a lower court incorrectly applied settled law. 

{¶ 35} But even if the law were unsettled, this case is not a proper vehicle 

to address the proposition. The record lacks sufficient evidence to enable this court 

to determine whether the discipline matrix was incorporated into the CBA. 

Although counsel for appellants argued in her opening statement at the arbitration 

hearing that “this so-called matrix * * * is not a part of any collective bargaining 

agreement,” appellants offered no testimony to support that assertion. However, 

one of the city’s witnesses testified that the union had used the matrix to negotiate 

a reduction in the disciplinary action imposed in another officer’s case and that Hill 

actually had helped negotiate the matrix, a fact that he did not dispute. 

{¶ 36} Moreover, Hill previously used the discipline matrix to his 

advantage. In an earlier arbitration involving Hill, the arbitrator reduced Hill’s 

discipline from a 30-day suspension to a 10-day suspension, finding that the matrix 

permitted only a 10-day suspension. The arbitrator in the prior case noted that 

“[a]lthough the Union asserted at the hearing that it never agreed to the City’s 

Discipline Matrix, * * * the record in this case is not sufficiently developed as it 
January Term, 2017 

15 

concerns a challenge to the reasonableness of the matrix itself, as opposed to its 

application in this case.” The arbitrator of the present grievance assumed that the 

matrix was applicable but reduced the recommended disciplinary action because he 

found that the city failed to prove all its allegations against Hill and had failed to 

establish that it was justified in terminating him. 

{¶ 37} Although the record lacks any testimony that the discipline matrix 

had been incorporated into the CBA, it is also devoid of testimony that it had not 

been. The majority nevertheless bases its decision on this issue that was not 

litigated below. 

{¶ 38} Finally, the majority’s conclusion that “[a]ny limitation on an 

arbitrator’s authority to modify a disciplinary action pursuant to a CBA provision 

requiring that discipline be imposed only for just cause must be specifically 

bargained for by the parties and incorporated into the CBA,” majority opinion at 

¶ 29, is overbroad and may have unintended consequences. This conclusion 

violates at least one longstanding tenet of labor law—that “[t]he labor arbitrator’s 

source of law is not confined to the express provisions of the contract, as the 

industrial common law—the practices of the industry and the shop—is equally a 

part of the collective bargaining agreement although not expressed in it,” United 

Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-582, 80 

S.Ct 1347, 4 L.Ed.2d 1409 (1960); see also Assn. of Cleveland Fire Fighters, Local 

93 of the Intl. Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio4278, 793 N.E.2d 484, ¶ 16, 19 (recognizing that past practice may be binding on 

parties to a CBA in certain circumstances, even when the practice is not set forth in 

the CBA). By acceding to appellants’ proposition that “[a]ny limitation on an 

arbitrator’s ability to review and modify disciplinary action under the ‘just cause’ 

standard must be specifically bargained for by the parties and contained within the 

four corners of the collective bargaining agreement,” the majority opinion may 
SUPREME COURT OF OHIO

16 

prevent an employer from relying on past practice as the basis for a disciplinary 

action. 

{¶ 39} Past practice may be binding, even if it is not set forth in a CBA, and 

could limit an arbitrator’s ability to modify a disciplinary action. For instance, an 

employer may claim that it disciplined an employee according to its uncontested 

practice of imposing the same disciplinary action for a similar violation over a 

period of years. Under the majority opinion, even if the employer establishes a past 

practice, the arbitrator could modify the discipline if the employee shows that the 

practice had not been specifically bargained for and incorporated into the CBA, 

upending labor law that has been settled for decades. Without the development of 

facts regarding the full extent of the terms of the CBA here, the majority creates an 

unnecessary rule to reach a particular result. 

{¶ 40} For these reasons, I respectfully dissent and would hold that the 

discretionary appeal was improvidently accepted. 

_________________ 

Joseph M. Hegedus and Daniel J. Leffler, for appellants. 

Allain Legal, Ltd., William F. Schmitz, and Eric M. Allain, for appellee. 

Paul L. Cox, urging reversal for amicus curiae Fraternal Order of Police of 

Ohio, Inc. 

R. Brian Moriarty and Marisa L. Serrat, urging reversal for amici curiae 

Cleveland Police Patrolmen’s Association, Toledo Police Patrolman’s Association, 

and Dayton Fraternal Order of Police Lodge 44. 

Greg Gordillo, urging reversal for amicus curiae Ohio Employment 

Lawyers Association. 

_________________