[Cite as Cleveland v. Cleveland Assoc. of Rescue Emps., 2011-Ohio-4263.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96325 

CITY OF CLEVELAND

PLAINTIFF-APPELLANT 

vs. 

CLEVELAND ASSOC. OF RESCUE EMPLOYEES

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-729354 
BEFORE: Sweeney, J., Stewart, P.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: August 25, 2011

ATTORNEYS FOR APPELLANT

Robert J. Triozzi, Esq. 

Director of Law 

L. Stewart Hastings, Esq. 

Chief Assistant Director of Law 

Kevin J. Gibbons, Esq. 

Asst. Director of Law 

601 Lakeside Ave., Room 106 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Ryan J. Lemmerbrock, Esq. 

Carrie L. Lewine, Esq. 

Muskovitz & Lemmerbroch, L.L.C. 

820 West Superior Avenue, Suite 800 

Cleveland, Ohio 44113 

JAMES J. SWEENEY, J.: 

{¶ 1} Plaintiff-appellant the City of Cleveland (“the City”) appeals the court’s order 

confirming and enforcing an arbitration award in favor of the Cleveland Association of Rescue 

Employees (“the Union”) in this wrongful discharge from employment case. After reviewing 

the facts of the case and pertinent law, we affirm. 

{¶ 2} Glenn Burks was a member of the Union and worked as a paramedic for the 

City. Burks’s employment was subject to the terms of a collective bargaining agreement 

(“the CBA”). In October of 2008, the City placed Burks on administrative leave, pending an 
investigation of two complaints alleging improper physical contact with patients under Burks’s 

care. Subsequently, Burks was charged in a criminal indictment with various felony sex 

offenses. On May 13, 2009, a jury acquitted Burks of all charges. On June 1, 2009, after a 

hearing, the City terminated Burks’s employment. 

{¶ 3} The Union, on behalf of Burks, filed a grievance appealing the termination. A 

three-day arbitration hearing was held to resolve the following issues: “Whether there was just 

cause to discharge paramedic Glenn Burks under the collective bargaining agreement? If not, 

what shall the remedy be?”

{¶ 4} On June 2, 2010, the arbitrator found in favor of the Union, reinstated Burks to 

his former position, awarded Burks back pay, and reduced the disciplinary action to a 30-day 

suspension without pay. The City filed an action in court to vacate the arbitration award, 

arguing that the arbitrator’s use of a “clear and convincing evidence” standard was 

unauthorized under the CBA. On December 27, 2010, the court found that the arbitrator 

acted within his authority and upheld the arbitration award. 

{¶ 5} The City appeals and raises three assignments of error, the first two of which 

will be addressed together. 

{¶ 6} “I. The common pleas court committed reversible error in denying the City’s 

motion to vacate or modify the arbitrator’s award in that the arbitrator’s use of a ‘clear and 
convincing’ evidence standard was arbitrary and lead to an award that is unjust, inequitable 

and unconscionable.”

{¶ 7} “II. The trial court erred in not holding that as a matter of law no reasonable 

arbitrator, using a preponderance standard, could come to any conclusion other than that Glen 

Burks committed violation of City Policy.”

{¶ 8} Judicial review of arbitration awards is narrowly governed by R.C. 2711.10, 

which states in pertinent part that a court shall vacate an arbitration award if “* * * (D) The 

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

definite award upon the subject matter submitted was not made.” 

{¶ 9} The Ohio Supreme Court has held that “a reviewing court is limited to 

determining whether the award draws its essence from the CBA and whether the award is 

unlawful, arbitrary, or capricious. ‘An arbitrator’s award draws its essence from a collective 

bargaining agreement when there is a rational nexus between the agreement and the award * * 

*.’” Assn. of Cleveland Fire Fighters, Local 93 of the Internatl. Assn. of Fire Fighters v. City 

of Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278, 793 N.E.2d 484, ¶13 (internal citations 

omitted.) 

{¶ 10} An arbitrator’s authority is confined to interpreting and applying a collective 

bargaining agreement. See Board of Trustees of Miami Twp. v. Fraternal Order of Police 

(1998), 81 Ohio St.3d 269, 690 N.E.2d 1262 (holding that, generally, if an arbitration 
“decision is based on the language and requirements of the collective bargaining agreement 

itself, * * * the arbitrator has not exceeded his powers”). R.C. 2711.10 “clearly demonstrates 

that a common pleas court is precluded from examining the actual merits upon which the 

arbitrators based their award.” Resource Realty Exchange Corp. v. Schaney, Cuyahoga App. 

No. 85972, 2005-Ohio-4131, ¶12. 

{¶ 11} If an arbitration award was “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 determination.” 

Goodyear Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork, Linoleum and 

Plastic Workers of America (1975), 42 Ohio St.2d 516, 520, 330 N.E.2d 703. 

{¶ 12} In the instant case, the arbitration award included analysis of the City’s burden 

of proof regarding whether it had just cause to discharge Burks. The arbitrator cited to a 

provision in the CBA,1

 which states that “a challenge to the legitimacy of the administrative 

suspension * * * in those cases where an employee has been found not guilty of the offense by 

a judge or jury” is subject to a preponderance of the evidence burden of proof. The arbitrator 

found that this provision was not applicable to Burks’s case, however, because Burks was 

 1

 A copy of the CBA is not part of the record on appeal. Our review is limited to the 

provision cited by arbitrator. 
“found not guilty after a criminal jury trial and then discharged, rather than administratively 

suspended * * *.” (Emphasis in original.) 

{¶ 13} Rather, the arbitrator found that under the terms of the CBA, the City was 

required to prove that Burks committed the violations charged by clear and convincing 

evidence. The arbitrator reasoned that this heightened standard of proof was required 

because Burks was “charged with conduct which is criminal in nature or constitutes acts of 

moral turpitude.” 

{¶ 14} The arbitrator concluded “that the City has failed to prove by clear and 

convincing evidence that [Burks] violated the EMS Manual and Rules and Regulations with 

respect to the central and most serious charge: that he sexually assaulted” two patients in his 

care. The arbitrator found no just cause to discharge Burks and reinstated his employment. 

The arbitrator also concluded that Burks violated certain patient care policies, warranting a 

30-day suspension without pay. 

{¶ 15} Upon review, we find that the arbitrator’s decision draws its essence from the 

CBA. In interpreting the CBA, the arbitrator concluded that the reference to “preponderance 

of evidence” was not applicable to the case at hand. The arbitrator reasoned that a clear and 

convincing evidence standard should be used, in light of the allegations’ criminal nature. In 

enforcing this arbitration award, the court stated that the “language found in the [CBA] 
supports the Arbitrator’s decision and this court cannot substitute its interpretation or judgment 

for that of the arbitrator where the award appears to be neither arbitrary nor capricious.”

{¶ 16} In Piqua v. Fraternal Order of Police, 185 Ohio App.3d 496, 2009-Ohio-6591, 

924 N.E.2d 876, the Second District Court of Appeals of Ohio upheld an arbitration award 

using reasoning similar to the rationale applied here. The Piqua court rejected the argument 

that the arbitrator exceeded his powers by using the heightened standard of clear and 

convincing evidence regarding “just cause” for disciplining a union employee, where the 

collective bargaining agreement was silent on the “quantum of proof.” Id. at ¶ 30. 

“[W]hen the subject matter of a dispute is arbitrable, ‘procedural’ questions which grow out of 

the dispute and bear on its final disposition are to be left to the arbitrator.” Id. at ¶33, 

quoting United Paperworkers Internatl. Union v. Misco, Inc. (1987), 484 U.S. 29, 40, 108 

S.Ct. 364, 98 L.Ed.2d 286. 

{¶ 17} Accordingly, we find that the arbitrator acted within his authority in applying a 

clear and convincing evidence standard to sustain the Union’s grievance regarding Burks’s 

termination. 

{¶ 18} The City further argues that the arbitrator’s decision “has [led] to a result that is 

unconscionable.” The essence of this argument is that “significant evidence * * * 

demonstrates that Burks sexually assault two unrelated patients.” It is well-settled that an 

appeal alleging an arbitrator’s decision was against the manifest weight of the evidence is 
unauthorized under law. Russo v. Chittick (1988), 48 Ohio App.3d 101, 105, 548 N.E.2d 

314. Accordingly, we are precluded from reaching the merits of this argument. 

{¶ 19} The City’s first two assignments of error are overruled. 

{¶ 20} “III. The common pleas court committed reversible error in failing to hold 

that the arbitrator’s award is contrary to pubic policy.”

{¶ 21} In addition to the reasons stated in R.C. 2711.10, a court may vacate an 

arbitration award when it “is contrary to the well-defined and dominant public policy of Ohio 

or the United States.” Cleveland Bd. of Edn. v. Intl. Bhd. of Firemen & Oilers Local, 701 

(1997), 120 Ohio App.3d 63, 69, 696 N.E.2d 658. However, the United States Supreme 

Court has cautioned “that a court’s refusal to enforce an arbitrator’s interpretation of such 

contracts is limited to situations where the contract as interpreted would violate ‘some explicit 

public policy’ * * *.” Misco at 43. 

{¶ 22} The City argues that the instant case is not a “garden-variety termination that 

only affected [Burks] and [the City], * * * but potentially every patient that [Burks] comes 

into contact with.” The City argues the public policy of “prohibiting medical providers from 

having sexual contact with patients” is violated “by putting Burks in a position of patient care 

when there is significant evidence that he committed the acts alleged.”
{¶ 23} Although we recognize the importance of the public policy identified, this 

argument is not well-taken, as the arbitrator found insufficient evidence that Burks committed 

the alleged acts, and we are prohibited from re-examining the merits of this case. 

{¶ 24} This court affirmed vacating an arbitration award reinstating a union employee 

as being against public policy in Firemen & Oilers, 120 Ohio App.3d 63. The Firemen & 

Oilers court found that the arbitrator’s decision undermined the public policy of “zero 

tolerance” of illegal drug use by transportation employees because the arbitrator found 

undisputed evidence that the employee tested positive for cocaine in a random drug screening. 

 Id. at 75-76. See, also Newsday, Inc. v. Long Island Typographical Union, No. 915, CWA, 

AFL-CIO (C.A.2, 1990), 915 F.2d 840, 843-845 (holding that the arbitrator’s “award of 

reinstatement completely disregarded the public policy against sexual harassment in the work 

place,” when, in the same decision, the arbitrator found “no doubt” that the employee 

inappropriately touched female co-workers). 

{¶ 25} The instant case is distinguishable because there is no finding that Burks had 

sexual contact with patients under his care. Quite the opposite — the arbitrator found that 

the City failed to prove the sexual assault allegation. Thus, we cannot say that the arbitration 

award reinstating Burks to his position as a paramedic is contrary to public policy. The 

City’s third and final assignment of error is overruled. 

Judgment affirmed. 
It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

JAMES J. SWEENEY, JUDGE 

MELODY J. STEWART, P.J., CONCURS; 

FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY