[Cite as Greater Dayton Regional Transit Auth. v. Amalgamated Transit Union AFL-CIO Local 1385, 2019-

Ohio-392.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

GREATER DAYTON REGIONAL 

TRANSIT AUTHORITY 

Plaintiff-Appellant 

v. 

AMALGAMATED TRANSIT UNION 

AFL-CIO LOCAL 1385 

Defendant-Appellee 

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Appellate Case No. 28155 

Trial Court Case No. 2018-CV-3250 

(Civil Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 8th day of February, 2019. 

. . . . . . . . . . . 

RONALD G. LINVILLE, Atty. Reg. No. 0025803, MATTHEW L. ROBERTS, Atty. Reg. No. 

0079938 and RYAN A. CATES, Atty. Reg. No. 0085496, 200 Civic Center Drive, Suite 

1200, Columbus, Ohio 43215 

 Attorneys for Plaintiff-Appellant 

 

JOSEPH S. PASS, Atty. Reg. No. 0093158, 219 Fort Pitt Boulevard, Pittsburgh, 

Pennsylvania, 15222 

 Attorney for Defendant-Appellee 

. . . . . . . . . . . . . 

 
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WELBAUM, P.J. 

{¶ 1} In this case, the Greater Dayton Regional Transit Authority (“RTA”) appeals 

from a judgment confirming an arbitration award in favor of Amalgamated Transit Union, 

AFL-CIO Local 1385 (“Union”). According to RTA, the trial court erred in confirming the 

award because the award destroys management rights guaranteed to RTA by the Ohio 

Revised Code and by the parties’ collective bargaining agreement (“CBA”). RTA further 

contends that the award conflicts with the CBA’s express terms, which give RTA 

management rights over assigning job duties. 

{¶ 2} We conclude that the trial court did not err in confirming the arbitration award 

in favor of the Union. The award drew its essence from the CBA because it did not 

conflict with the agreement’s express terms and was rationally supported by the 

agreement. The parties agreed to assign a specific task to a particular job classification, 

and there was also a past practice of having only employees in that job classification 

perform the task. This past practice was unequivocal, was clearly enunciated, and was 

followed for a reasonable period of time as a fixed and established practice accepted by 

both parties. It, therefore, was binding on the parties. Even if the past practice had not 

been binding, the CBA specifically required past practices or precedent to be considered 

in interpreting the agreement. Accordingly, the judgment of the trial court will be 

affirmed. 

I. Facts and Course of Proceedings 

{¶ 3} In July 2018, RTA filed a motion asking the trial court to vacate an arbitration 

award that was issued in April 2018. The award arose from a dispute between RTA and 
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the Union over whether RTA could require paratransit operators to fuel their vehicles 

offsite rather than having this task performed by individuals employed in a “cleaner/fueler” 

position. 

{¶ 4} RTA is a regional transit authority that provides transportation for passengers 

using route buses. RTA also transports disabled passengers using Project Mobility 

(PMOB) operators. Before 1995, RTA used seven diesel vehicles for PMOB, and the 

rest of the transportation was done by Liberty Cab. In 1995, however, PMOB became 

in-house in its entirety. Chrysler minivans were obtained in 1995, and the operators 

fueled these gasoline vehicles themselves offsite because no fuel pump was available on 

site. After a grievance was filed, alleging that fueling was not the work of PMOB 

operators, but was the work of fuelers, the parties agreed that fuelers would fuel the 

PMOB vehicles. Thereafter, PMOB operators did not fuel their own vehicles. 

{¶ 5} Subsequently, RTA replaced the minivans with 2008 and 2009 TESCO diesel 

vehicles, which essentially consisted of a Ford E450 chassis with a box on back for 

passengers. These vehicles used diesel fuel and were about 24 feet long, with a 

wheelchair lift for passengers. 

{¶ 6} RTA uses two buildings located on Longworth Street in Dayton, Ohio, to 

house and service its vehicles. The route buses, which use diesel fuel, are housed in 

600 Longworth (“600 building”), which has fueler lanes. This location also has two 

gasoline tanks, each of which has a capacity of about 2,000 gallons. However, because 

the tanks are not connected, each can be filled only to 85% of capacity, or to about 1,700 

gallons. 

{¶ 7} The PMOB vehicles are housed across the street at 601 Longworth (“601 
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building”), which contains two 20,000 gallon tanks filled with diesel fuel. These tanks 

were used to fuel the PMOB diesel vehicles, but also serve as a backup for the route 

buses in case of issues with the diesel tanks at the 600 building. 

{¶ 8} The TESCO vehicles were designated as about seven-year vehicles. When 

RTA began preparing for their replacement, it could not find a manufacturer who used 

diesel engines in the chassis size needed for para-transit operations. As a result, RTA 

ordered a gasoline vehicle called an Eldorado, which used a Ford E50 chassis, was about 

30 feet long, and carried 15 passengers. The Eldorado was about the same size as the 

prior vehicle. 

{¶ 9} RTA purchased the Eldorados in early 2016, and received 30 new vehicles 

in the fourth quarter of 2016. The first vehicles were placed in service in January 2017. 

When RTA purchased these vehicles, it knew a fueling plan would have to be devised 

because the vehicles did not use diesel fuel. RTA investigated various options, including 

having someone come on-site and fuel the vehicles, but RTA could not find a vendor 

willing to do that for gasoline. RTA also investigated building a gasoline tank, but that 

involved a one- to two-year process. There were also environmental concerns because 

the 601 building was close to a river. 

{¶ 10} RTA began fueling the vehicles on-site at the two gasoline pumps at the 

600 building. At that point, RTA thought it could succeed with the first 30 vehicles until 

a contract could be put in place for off-site fueling. These pumps were located outside, 

with no cover. 

{¶ 11} The prior fueling process with a diesel vehicle at the 601 building, including 

running the vehicle through the hot washer, took four to five minutes. Notably, this 
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location had high pressure diesel pumps and nozzles that could fuel vehicles very quickly. 

In contrast, the new process took about 15 to 20 minutes. Time was added by having to 

drive the Eldorado down the street, and because the 600 building used siphon pumps on 

its gasoline pumps. The pumps, thus, had low pressure, and it took longer to fill vehicles. 

{¶ 12} Based on the 75 PMOB vehicles that would be in use, RTA concluded that 

it would not be possible to fuel at the 601 building. Ultimately, RTA decided to use an 

outside vendor and have PMOB operators pump the gas. RTA arranged with Speedway 

to allow operators to fuel the vehicles at any Speedyway station in Ohio, and placed fuel 

cards in the vehicles. The procedure at the pump was to be done at the end of the 

employee’s run and involved the same process any motorist would use, other than the 

fact that the operator was required to put in the vehicle’s mileage and an employee 

identification number. 

{¶ 13} About 30 Eldorados went into use in early 2017 and RTA expected to begin 

using another 28 vehicles in March 2017. On February 21, 2017, RTA and the Union 

discussed the PMOB buses, fuel, and a memorandum of understanding (“MOA”). After 

this meeting, Robert Stevens, RTA’s manager of labor relations, sent a MOA to Glenn 

Salyer, the Union President. Stevens had been employed at RTA since 1991 and had 

been on the Union’s executive board from 1992 until 2016, when he took the labor 

relations position. Stevens had negotiated every contract on behalf of the Union from 

1992 until 2010. 

{¶ 14} Salyer had been employed by RTA for about nine years, had been the 

Union president for the past five and a half years, and was part of the negotiating team 

for the current labor agreement, which was effective from April 1, 2016 through March 31, 
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2019. 

{¶ 15} The MOA, dated February 22, 2017, was addressed to Salyer and stated 

as follows: 

On February 21, 2017, the Authority met with ATU officials including 

you and discussed revised fueling procedures that will include Para-Transit 

Operators fueling their vehicles prior to returning to the garage. During the 

1995-1996 time frame ATU Para-Transit Operators fueled minivans offsite. 

The purpose of this change comes from the recent and future purchases of 

new Para-Transit vehicles. We have received 30 new vehicles in 4th 

quarter 2016 and [are] currently receiving 28 additional vehicles by March 

2017. We will receive the remaining 17 vehicles in the summer of 2017 for 

a total of 75. 

The old fleet requires diesel fuel and are fueled at our Longworth 

facilities. Currently the market is moving away from engines using diesel 

to unleaded fuels. The new fleet requires unleaded fuel and each vehicle 

can hold up to 55 gallons. We do not have the storage capacity at the 600 

Longworth facility for unleaded fuel to accommodate the additional service 

requirement. RTA will contract with a local fuel supplier to provide 

resources at multiple locations for the ability to fuel our vehicles throughout 

the day. 

The Operations Department Para-Transit Operators will fuel vehicles 

at a designated location prior to returning to the garage. The fueling of the 

vehicle will be incorporated into their workday. The Maintenance 
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Department will check fluids, clean, empty fareboxes and maintain the bus 

consistent to the current practice except for fueling. 

Union Ex. 1, p. 1. 

{¶ 16} Stevens sent the agreement to Salyer by email on February 25, 2017; 

Stevens had already signed the document. Salyer responded that the Union did not 

agree with the MOU. At that point, Stevens reminded Salyer of his prior comment that 

the MOU appeared to be workable, but was a change in working compensation for the 

operators who would have to do the fueling.1 Further correspondence from the Union 

asserted that this was also a change in working conditions. See Union Ex. 4. RTA 

offered additional incentives, but no agreement was reached. As a result, on March 28, 

2017, Stevens informed the Union that RTA would award a contract for fueling the 

gasoline vehicles off premises, that PMOB operators would be fueling their vehicles, and 

that Union maintenance employees (the cleaners/fuelers) would still perform all their 

current duties, other than fueling these vehicles. Union Ex. 3. 

{¶ 17} On April 4, 2017, the Union filed a grievance alleging that RTA had violated 

the following provisions of the CBA: Article I, Section 4(I); Article VI, Sections 1 (A), (B), 

and (C); Article XIX, Sections 1-11; and Article XXVI, Section 4. After the grievance was 

denied on all levels, the matter was referred to an arbitrator, whose decision was “final 

and binding upon both parties” pursuant to Article XXXI, Section 9 of the CBA. Joint Ex. 

1, p. 38. 

{¶ 18} The arbitrator held a hearing in December 2017 and heard testimony from 

 

1 At the time of the arbitration hearing, a cleaner/fueler was paid $25.33 per hour, while 

the top pay for PMOB operators was $15.29 per hour. Thus, a disparity in pay rates 

existed, and PMOB operators were paid only their regular rate while fueling their vehicles. 
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Salyer and Stevens, as well as the following individuals: Robert Baker, a former RTA 

employee and Union member from 1995 to 2008; Daron Brown, RTA Director of 

Maintenance; and Pat O’Malley, who had been employed by RTA for more than 25 years 

and was the current Maintenance Fleet Manager. Following the hearing, the arbitrator 

issued a decision concluding that RTA had violated the CBA by requiring PMOB operators 

to fuel, and, therefore, to perform duties of the cleaners/fuelers. The arbitrator ordered 

RTA to cease and desist from requiring operators to perform fueling duties (which had 

begun in September 2017). In addition, the arbitrator ordered RTA to retroactively 

compensate PMOB operators who had performed such work at the rate the CBA 

established for a cleaner/fueler. 

{¶ 19} RTA then filed a motion asking the trial court to vacate the arbitration 

decision. The Union followed with an application for an order confirming the arbitration 

award. Subsequently, the trial court filed a decision and entry overruling RTA’s motion 

and granting the application to confirm the award. This appeal by RTA followed. 

II. Alleged Error in Overruling the Motion to Vacate the Arbitration Award 

and in Granting the Application to Confirm the Award. 

{¶ 20} In support of its appeal, RTA has filed two assignments of error. Because 

they are intertwined, we will address them together. The assignments of error, in order, 

are as follows: 

The Montgomery County Court of Common Pleas Erred in Its 

Decision and Entry Overruling Plaintiff’s Motion to Vacate Arbitration Award 

Dated September 12, 2018, by Overruling Plaintiff/Appellant Greater 
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Dayton Regional Transit Authority’s Motion to Vacate Arbitration Award 

Dated July 13, 2018 (September 12, 2018 Decision and Entry). 

The Montgomery County Court of Common Pleas Erred in Its 

Decision and Entry Overruling Plaintiff’s Motion to Vacate Arbitration Award 

dated September 12, 2018, by Confirming Defendant/Appellee 

Amalgamated Transit Union Local 1385’s Application for Order Confirming 

Award Dated September 12, 2018 (September 12, 2018 Decision and 

Entry). 

{¶ 21} RTA does not make specific arguments relating to these assignments of 

error, but focuses instead on ways in which the arbitrator’s award departed from the 

essence of the CBA by conflicting with its express terms and by failing to be rationally 

derived from the CBA. In this regard, RTA makes the following contentions: the 

arbitrator’s award eviscerates management rights that the CBA and Ohio Revised Code 

guarantee to RTA; the award conflicts with RTA’s right to assign job duties to its 

employees; there is no rational basis for the award because it imposes new restrictions 

for which the parties did not contract; and the arbitrator reached an absurd conclusion by 

holding that RTA agreed to give up its management right to assign the task of fueling. 

Before we address these arguments, we will outline the relevant standards for evaluating 

arbitration awards. 

{¶ 22} Under R.C. 2711.13, any party may file a motion in the common pleas court 

to vacate awards that have been made in arbitration proceedings. In addition, R.C. 

2711.09 also permits parties to file motions in the common pleas court for orders 

confirming arbitration awards. In either situation, a common pleas court must grant the 
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order to confirm unless the court vacates, modifies, or corrects the award under R.C. 

2711.10 or R.C. 2711.11. 

{¶ 23} The applicable provision here is R.C. 2711.10, which states, in pertinent 

part, that: 

In any of the following cases, the court of common pleas shall make 

an order vacating the award upon the application of any party to the 

arbitration 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. 

{¶ 24} The Supreme Court of Ohio has rejected an abuse of discretion standard 

for reviewing arbitration awards and has held that: 

When reviewing a decision 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 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. 

{¶ 25} Because public policy favors arbitration, we 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. Thus, we are restricted to deciding if “the award draws its essence from the CBA 
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and whether the award is unlawful, arbitrary, or capricious.” Id., citing Findlay City 

School Dist. Bd. of Edn. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 551 N.E.2d 186 (1990), 

paragraph two of the syllabus. Consequently, if a rational nexus exists between the 

contract and the award, and “the award is not arbitrary, capricious or unlawful, the 

arbitrator did not exceed her authority and the award cannot be vacated pursuant to R.C. 

2711.10(D).” Montgomery Cty. Sheriff v. Fraternal Order of Police, 158 Ohio App.3d 

484, 2004-Ohio-4931, 817 N.E.2d 107, ¶ 22 (2d Dist.). 

{¶ 26} “An 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 rationally derived from the terms 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. Accord 

Dayton City School Dist. Bd. of Edn. v. Dayton Edn. Assn., 2d Dist. Montgomery No. 

27793, 2018-Ohio-4350, ¶ 40. In addition, arbitrators may not create their own contracts 

“by imposing additional requirements not expressly provided for in the agreement.” 

Internatl. Assn. of Firefighters, Local 67 v. Columbus, 95 Ohio St.3d 101, 104, 766 N.E.2d 

139 (2002), citing Ohio Office of Collective Bargaining at 183. 

{¶ 27} Because the issue of whether an arbitrator exceeds his or her authority is a 

question of law, we review this point de novo, without deferring to the trial court’s decision. 

Dayton City School Dist. Bd. of Edn. at ¶ 42, citing Portage Cty. Bd. of Dev. Disabilities, 

153 Ohio St.3d 219, 2018-Ohio-1590, 103 N.E.3d 804, at ¶ 25. With these standards in 

mind, we will consider RTA’s arguments. 
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A. Management Rights Granted by the Revised Code 

{¶ 28} During the hearing, the Union stated its grievance as follows: 

Whether the RTA violated the parties’ Collective Bargaining 

Agreement requiring operators to fuel coaches and not paying the fueler 

rate; and if so, what shall the remedy be. 

December 12, 2017 Arbitration Transcript (“Tr.”), p. 6. 

{¶ 29} RTA’s description of the issue was similar, by asking whether the Union 

proved that RTA violated any specific provision of the CBA by assigning fueling of PMOB 

vehicles to para-transit operators. Arbitrator’s Opinion and Award, p. 7. The arbitrator 

elected to use the Union’s statement. Id. 

{¶ 30} As RTA suggests, R.C. 4117.08, which is part of Ohio law on public 

employee collective bargaining, does provide protection for certain management rights. 

However, there are qualifications. In this regard, R.C. 4117.08(A) provides that: 

All matters pertaining to wages, hours, or terms and other conditions 

of employment and the continuation, modification, or deletion of an existing 

provision of a collective bargaining agreement are subject to collective 

bargaining between the public employer and the exclusive representative, 

except as otherwise specified in this section * * *. 

{¶ 31} R.C. 4117.08(C) also states, in pertinent part, that: 

Unless a public employer agrees otherwise in a collective bargaining 

agreement, nothing in Chapter 4117 of the Revised Code impairs the right 

and responsibility of each public employer to: 

* * * 
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(2) Direct, supervise, evaluate, or hire employees; 

(3) Maintain and improve the efficiency and effectiveness of 

governmental operations; 

(4) Determine the overall methods, process, means, or personnel by 

which governmental operations are to be conducted; 

(5) Suspend, discipline, demote, or discharge for just cause, or lay 

off, transfer, assign, schedule, promote, or retain employees; 

* * * 

(8) Effectively manage the work force * * *. 

{¶ 32} Finally, R.C. 4117.08(C) also states that: 

The employer is not required to bargain on subjects reserved to the 

management and direction of the governmental unit except as affect wages, 

hours, terms and conditions of employment, and the continuation, 

modification, or deletion of an existing provision of a collective bargaining 

agreement. A public employee or exclusive representative may raise a 

legitimate complaint or file a grievance based on the collective bargaining 

agreement. 

(Emphasis added). 

{¶ 33} The statutory framework, thus, is as follows: (1) subsection (A) sets out the 

matters that are subject to collective bargaining; (2) subsection (C) outlines management 

rights that are not impaired by statutes pertaining to public employees’ collective 

bargaining, unless the employer agrees otherwise; and (3) the last paragraph of 

subsection (C) qualifies the rest of that subsection, “i.e., the exemption from bargaining 
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does not extend to subjects that ‘affect wages, hours, terms and conditions of 

employment, and the continuation, modification, or deletion of an existing provision of a 

collective bargaining agreement.’ ” Dayton City School Dist. Bd. of Edn., 2d Dist. 

Montgomery No. 27793, 2018-Ohio-4350, ¶ 55. 

{¶ 34} In Lorain City School Dist. Bd. of Educ. v. State Emp. Relations Bd., 40 Ohio 

St.3d 257, 262, 533 N.E.2d 264 (1988), the Supreme Court of Ohio concluded that: 

The word “affect” in R.C. 4117.08(C) suggests that management 

rights which “act upon” or “produce a material influence upon” working 

conditions are bargainable. See Webster's Third New International 

Dictionary (1986) 35. Thus, a reasonable interpretation of R.C. 4117.08(C) 

is that where the exercise of a management right causes a change in or 

“affects” working conditions or terms of a contract, then the decision to 

exercise that right is a mandatory subject for bargaining. 

{¶ 35} Consistent with R.C. 4117.08(C), Article I, Section 4(A) through (I) of the 

CBA incorporate the statutory reservation of management rights. See Joint Ex. 1, p. 1. 

Thus, as RTA indicates, it retained the right to exercise certain management rights, unless 

a specific provision in the agreement provided otherwise. The arbitrator recognized this, 

but also noted that under Article I, Section 4(I), RTA was “obligated to bargain over 

matters that . . . ‘affect wages, hours, terms and conditions of employment, and the 

continuation, modification, or deletion of an existing provision of the Agreement.’ ” 

Arbitrator’s Opinion and Award at p. 15, quoting Joint Ex. 1 at p. 2. This provision of the 

CBA echoes R.C. 4117.08(C), which, as noted, provides exceptions to the exemption 

from bargaining. 
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{¶ 36} After making the above observation, the arbitrator noted that Article XXVI, 

Section 4 of the CBA designated fueling as the job function of a cleaner/fueler, and 

concluded that this could not be changed without the Union’s consent. Id. The 

Arbitrator further rejected RTA’s argument that including the words “as the situation 

dictates” allowed it to assign the fueling task to the PMOB operators. In this regard, the 

Arbitrator reasoned that the cleaner/fueler provision appeared in maintenance titles, 

which were separate and apart from parts of the agreement pertaining to RTA operations 

(where the provisions pertaining to PMOB operators appeared). The arbitrator further 

reasoned that the bargaining history of the parties indicated that fueling had traditionally 

been considered maintenance work, and that the parties did not bargain to include fueling 

as part of the PMOB operators’ duties. 

{¶ 37} After reviewing the agreement and the record, we cannot conclude that the 

arbitrator’s award eviscerates RTA’s statutory or contractual rights. To the contrary, the 

arbitrator recognized these rights, but concluded that under the terms of the contract, the 

RTA was required to bargain over a change in duties. Furthermore, the arbitrator’s 

decision does not conflict with the terms of the contract giving RTA the right to assign job 

duties to its employees. 

{¶ 38} As was noted, even though a party retains management rights, “where the 

exercise of a management right causes a change in or ‘affects’ working conditions or 

terms of a contract, then the decision to exercise that right is a mandatory subject for 

bargaining.” Lorain City School Dist. Bd. of Educ., 40 Ohio St.3d at 262, 533 N.E.2d 

264. 

{¶ 39} There is no question that removing a job duty specifically assigned to 
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cleaners/fuelers affected a term of the contract. Article XXVI, Section 4, specifically 

states that: 

A cleaner/fueler classification will be created within the utility cleaner 

classification. The job function of this classification will be fueling, servicing 

and cleaning coaches as the situation dictates. The rate of pay will be 

equal to that of a number three (#3) Service and Repair Mechanic. 

Joint Ex. 1 at p. 31. 

{¶ 40} As the arbitrator noted, the CBA does distinguish between maintenance and 

operations, and the provisions pertaining to PMOB operators are found in a different part 

of the CBA (Article IV(A)). Joint Ex. 1 at p. 7. Article IV(A), Section 1(A) also states that 

“all sections of this Labor Agreement applicable to operators will apply to Project Mobility 

(PMOB) Operators * * *.” (Emphasis added.) Id. Referring to the CBA, the agreement 

clearly does contain various sections that distinguish between maintenance employees 

and operators. See, e.g., Article VII (outlining holidays for operators versus those for 

maintenance employees); Articles XVIII through XXII (describing seniority and working 

conditions for operators); and Articles XXVI through XXVIII (outlining seniority and 

working conditions for maintenance personnel). 

{¶ 41} Furthermore, the arbitrator correctly looked to the parties’ historical and 

traditional practice in interpreting the contract. In fact, Article XXX (Governing 

Interpretations), states in Section 1 that: 

The interpretations or the wording or terms of this Agreement shall 

be by the application of definitions where they are set forth in this 

Agreement, by established past precedents and past practices or in light of 
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the intent and purposes to be accomplished. 

(Emphasis added.) Joint Ex. 1 at p.35. 

{¶ 42} In Assn. of Cleveland Fire Fighters, 99 Ohio St.3d 476, 2003-Ohio-4278, 

793 N.E.2d 484, at ¶ 9, the Supreme Court of Ohio considered whether a practice known 

as “arrowing” violated the express terms of a collective bargaining agreement. The court 

held that this practice, which involved the city’s temporary day-to-day changing of shifts, 

did violate the agreement, because only yearly shift changes were authorized by the CBA. 

Id. at ¶ 14. The arbitrator had also held that arrowing was a binding past practice, but 

the court disagreed with this, commenting that “arrowing cannot be interpreted as a 

binding past practice because of the union's continuing vehement fight against its use.” 

Id. at ¶ 15. The court went on to adopt a new test, noting that: 

Other states have contemplated the factors required for a past 

practice to be binding. The predominant definition, and the one used by 

both the arbitrator and the union, requires that to be binding on parties to a 

collective bargaining agreement, a past practice must be (1) unequivocal, 

(2) clearly enunciated, and (3) followed for a reasonable period of time as a 

fixed and established practice accepted by both parties. Celanese Corp. of 

Am. (1954), 24 Labor Arb. Reports 168, 172. We think this a sound and 

logical test, and hereby adopt it. 

(Footnote omitted.) Id. at ¶ 16. 

{¶ 43} According to the evidence, RTA and the Union did grieve this specific 

fueling issue in 1996, and they agreed in a settlement that only a cleaner/fueler would 

fuel, not the project mobility operators. RTA and the Union then conducted business this 
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way from 1996 (and through several contracts) until September 2017, when RTA 

unilaterally decided to have the project mobility operators also fuel. Under the test that 

the Supreme Court of Ohio adopted, this practice was unequivocal, was clearly 

enunciated, and was followed for a reasonable period of time as a fixed and established 

practice accepted by RTA and the Union. The practice, therefore, was binding on the 

parties and was properly considered by the arbitrator. 

{¶ 44} Even if the past practice were not deemed “binding,” the CBA specifically 

required past practices or precedent to be considered in interpreting the agreement. 

Furthermore, the CBA was in effect from April 2016 through March 2019. In early 2016, 

however, RTA knew that it would use gasoline buses and would need some other fueling 

method because its on-site facilities limited gasoline capacity. Despite these facts, RTA 

did not raise the subject during negotiations (which lasted 20 months). Instead, RTA 

waited until February 21, 2017 (after 30 buses had been placed into service) to discuss 

the issue with the Union. Then, after failing to reach agreement, RTA unilaterally 

decided to change the job duties of the fueler/cleaner position and to require operators to 

perform the fueling job. 

{¶ 45} The trial court discussed the fact that the CBA did not extend the 

cleaner/fueler duties to other positions and that forcing PMOB operators to perform 

cleaner/fueler duties at a lower rate violated the CBA. The court then held that the award 

drew its essence from the CBA as “the Arbitrator relied directly on its provisions in 

formulating her decision.” Doc. #15, p. 8. The court, therefore, found that the award did 

not conflict with the CBA and rationally flowed from the terms in the CBA. Id. For the 

reasons discussed above, we agree with the trial court. Accordingly, the arbitrator did 
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not violate the express terms of the contract which gave RTA the right to assign job duties 

to employees. 

 

B. Lack of Rational Basis for the Award 

{¶ 46} RTA also argues that the award has no rational basis because it imposes 

new conditions for which the parties did not contract. As support for this contention, RTA 

repeats the argument, already rejected, that it had an express right under the contract to 

assign employees and no other provision restricted this right. For the reasons previously 

discussed, we disagree. 

{¶ 47} RTA also contends that Article XXVI, Section 4, clearly indicates that there 

would be instances when the cleaner/fueler would not fuel the buses. In this regard, RTA 

relies on the statement that the job function of the cleaner/fueler “will be servicing and 

cleaning coaches as the situation dictates.” (Emphasis added.) Joint Ex. 1 at p. 31. 

Both the arbitrator and trial court rejected this argument, after noting that the statement 

only pertains to the particular job classification and does not appear elsewhere in the 

CBA, including the management rights section. See Doc. #13 at p. 9; Arbitrator’s 

Opinion and Award at p. 16. In addition, the arbitrator noted that “the parties never 

bargained to include fueling as part of the PMO[B] duties.” Id. 

{¶ 48} We agree with the trial court and arbitrator. In addition, to the extent that 

the term “as the situation dictates” could be considered ambiguous, any ambiguity in a 

collective bargaining agreement “cannot be resolved against any one particular party, 

which further makes the arbitrator's interpretation of the contract provision worthy of 

deference by a reviewing court * * *.” Cleveland Police Patrolmen's Assn. v. Cleveland, 
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99 Ohio App.3d 63, 66-67, 649 N.E.2d 1291 (8th Dist.1994). See also Dayton v. 

Fraternal Order of Police, 76 Ohio App.3d 591, 598, 602 N.E.2d 743 (2d Dist.1991) (“[i]n 

determining the mutual intent of the parties concerning any ambiguity the arbitrator may 

look to the entire agreement, the history of the dealings between the parties, and industry 

practice”). 

{¶ 49} As was noted, the history of the parties’ dealings indicates that the fueling 

function was limited to the fueler/cleaner position, and PMOB operators did not engage 

in fueling between 1996 and 2017. Furthermore, the testimony from RTA witness Robert 

Stevens was that the language “as the situation dictates” was negotiated when Article 

XXVI, Section 4 (the cleaner/fueler classification) was added to the CBA for the 2006-

2009 contract. According to Stevens, this language was included because more than 

two fuelers/cleaners were needed, and RTA did not want to be held to a situation where 

fuelers had to act as fuelers all the time. Instead, RTA wanted fuelers to also perform 

cleaning, because RTA needed cleaners seven days a week. Arbitration Tr. at pp. 157-

159. 

{¶ 50} “An arbitrator's award draws its essence from a collective bargaining 

agreement when there is a rational nexus between the agreement and the award.” 

Mahoning Cty. Bd. of Mental Retardation & Developmental Disabilities v. Mahoning Cty. 

TMR Educ. Assn., 22 Ohio St.3d 80, 488 N.E.2d 872 (1986), syllabus. Another way of 

saying this is that “an arbitrator departs from the essence of a collective bargaining 

agreement when * * * ‘an award is without rational support or cannot be rationally derived 

from the terms of the agreement.’ ” Ohio Office of Collective Bargaining, 59 Ohio St.3d 

at 183, 572 N.E.2d 71, quoting Cement Divisions, Nat. Gypsum Co. (Huron) v. United 
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Steelworkers of Am., AFL-CIO-CLC, Local 135, 793 F.2d 759, 766 (6th Cir.1986), 

overruled on other grounds, Michigan Family Resources, Inc. v. Serv. Emps. Intern. Union 

Local 517M, 475 F.3d 746 (6th Cir.2007). This is a difficult standard to meet, and RTA 

failed to establish that the award lacked any rational support. 

{¶ 51} As a further matter, RTA argues that Ohio courts routinely vacate awards 

where an arbitrator inserts new restrictions to which the parties did not agree. However, 

no such restriction was inserted. Consequently, we cannot conclude that the arbitrator’s 

decision lacked rational support or could not rationally be derived from the terms of the 

CBA. 

{¶ 52} We note the well-established rule that “[a]n arbitrator's improper 

determination of the facts or misinterpretation of the contract does not provide a basis for 

reversal of an award by a reviewing court, because ‘[i]t is not enough * * * to show that 

the [arbitrator] committed an error – or even a serious error.’ ” Cedar Fair, L.P. v. Falfas, 

140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 6, quoting Stolt-Nielsen, S.A. v. 

AnimalFeeds Internatl. Corp., 559 U.S. 662, 671, 130 S.Ct. 1758, 176 L.Ed.2d 605 

(2010). Arbitrators also have “ ‘broad authority to fashion a remedy, even if the remedy 

contemplated is not explicitly mentioned’ in the applicable contract.” Id., quoting 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). 

C. Alleged Absurdity of the Award 

{¶ 53} Finally, RTA focuses on the alleged absurdity of the arbitrator’s finding that 

RTA agreed to give up its management right to assign the task of fueling. As examples, 
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RTA contends that it would be seriously hampered if it could not require transit operators 

to stop at a gas station if their vehicles were running out of gas, require employees to 

keep the interior of their buses clean and free of tripping hazards, or require employees 

to keep their windshields clear of bugs. 

{¶ 54} This case is not about bugs or tripping hazards; it involves fueling of 

vehicles. The CBA also does not assign those other tasks to any specific job 

classification. Furthermore, RTA did not provide any information about how many daily 

miles any vehicles travel, nor did it provide evidence that any vehicle had ever run out of 

gas. The only evidence was that PMOB vehicles carry up to 50-55 gallons of fuel and 

RTA’s policy is that the vehicles are fueled every morning, no matter where a vehicle has 

to go or whether it has a full tank of fuel. Arbitration Tr. at pp. 26, 135-136; Union Ex. 1. 

The arbitrator and trial court were not required to speculate about evidence that was not 

presented; likewise, they did not have to consider irrelevant matters. 

{¶ 55} More importantly, the parties operated in a certain manner for many years, 

with fueling duties being confined only to maintenance personnel. This duty was 

specifically assigned by the CBA to cleaners/fuelers, and there was no evidence that the 

parties intended otherwise. Accordingly, the arbitrator’s award and the decision 

affirming the award were not absurd. 

{¶ 56} Based on the preceding discussion, the First and Second Assignments of 

Error are overruled. 

III. Conclusion 

{¶ 57} All of RTA’s assignments of error having been overruled, the judgment of 
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the trial court is affirmed. 

. . . . . . . . . . . . . 

HALL, J. and TUCKER, J., concur. 

Copies sent to: 

Ronald G. Linville 

Matthew L. Roberts 

Ryan A. Cates 

Joseph S. Pass 

Hon. Gregory F. Singer