Oral Argument Preview: Arbitrator’s Powers in Police Disciplinary Action. Ohio Patrolmen’s Benevolent Ass’n, et al. v. City of Findlay.

Update: On May 17, 2017, the Supreme Court of Ohio handed down a merit decision in this case at  2017-Ohio-2804. By a vote of 6-1, the court held that the arbitrator’s award reinstating rather than terminating Findlay police officer David Hill was proper and should have been upheld.  The Collective Bargaining Agreement contained no limitation on the arbitrator’s authority to fashion a remedy.  Because the Discipline Matrix, on which the City relied to support firing Hill was not incorporated into the Collective Bargaining Agreement, the Arbitrator was not bound by it, but could use it as a guide. Chief Justice O’Connor dissented and would dismiss the case as improvidently allowed.

Read the analysis of the oral argument here.

On February 7, 2017, the Supreme Court of Ohio will hear oral argument in the case of Ohio Patrolmen’s Benevolent Ass’n, et al. v. City of Findlay, 2015-Ohio-1581. At issue in this case is whether 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.

Case Background

Appellant, David Hill, was a sergeant with the Findlay Police Department. Appellee, the city of Findlay (“City”), and Appellant Ohio Patrolmen’s Benevolent Association (“the Union”), are parties to a Collective Bargaining Agreement (“CBA”) which governs Hill’s employment. The CBA requires that disciplinary matters be resolved through the CBA’s grievance-arbitration procedure.

The Incident

On November 21, 2012, Morgan Greeno, a police officer with the Findlay Police Department, filed a harassment complaint with the department regarding an incident that had occurred with Hill, who was her direct supervisor. The incident, occurring on November 13, 2012, took place during a conversation after midnight roll call in which Hill referred to Greeno as, “Whoregan,” a perceived combination of the word “whore” and Greeno’s first name, Morgan. The entire shift was in the room when the comment was made.

Greeno believed the comment stemmed from her anticipated testimony against Hill in a disciplinary arbitration scheduled later in the month. Greeno also complained that Hill had condoned or participated in jokes among other officers on her shift regarding a sexual relationship between her and the building’s custodian.

The Investigation 

Greeno’s claims were investigated by Lieutenant Robert Ring. Hill admitted that he had referred to Greeno as “Whoregan,” but claimed it was just an unintentional slip of the tongue. He denied comments about a sexual relationship between Greeno and the custodian, asserting that the comments of her fellow officers were typical roll call banter.

The other officers present during the incident confirmed that they heard Hill refer to Greeno as “Whoregan,” but believed it was not a deliberate comment, perceiving it as not “that big of a deal,” “more of a tongue tie,” or “an attempt at humor that was taken the wrong way.” The officers stated that they had not otherwise heard Hill use that term or call Greeno other derogatory names.

Ring’s report stated that it was unacceptable for a sergeant to refer to his subordinate as a “whore,” in any setting, and determined that the statement was unlikely accidental. Even without considering Greeno’s additional claims that Hill had commented on a sexual relationship of hers, his reference to Greeno as “Whoregan” violated several department rules.

The investigation also involved review of Hill’s personnel file and disciplinary record, which indicated that in July 2012, Hill was charged with violating the department’s social media policy. He was also issued a written reprimand after he tased a 14-year-old boy while the boy’s father, a fellow Findlay police officer, recorded the tasing and later posted it to Facebook. Hill had also been suspended for ten days when he reacted to another officer’s promotion by disparaging the officer’s mental health in front of his subordinates, and placing the barrel of his .45 caliber service weapon in his mouth, feigning a suicide attempt when the announcement was made.

In his report Ring recommended that Hill be suspended for thirty days and demoted to patrol officer. The report was forwarded to Captain Sean Young who determined that Hill’s actions constituted gross misconduct, and violated department rules and regulations. Based on Hill’s disciplinary record, and his opinion that Hill’s unacceptable conduct was not correctable, Young recommended that Hill be terminated. Police Chief Gregory Horne reviewed the reports and agreed that based a past pattern of egregious and unacceptable conduct, and the lack of any effect on Hill of prior disciplinary action, Hill should be terminated. Chief Horne indicated that he had followed the department’s Discipline Matrix (“the Matrix”) in terminating Hill. The Matrix is part of the police department’s disciplinary procedures, and sets forth a three step process of progressive discipline. Chief Horne sent the notice of the disciplinary action of termination to Hill.

The Grievance

Following receipt of the notice, Hill filed a grievance, claiming that his termination lacked just cause under the CBA. Hill was represented by the Union. A hearing took place before the City’s service-safety director, who further investigated the incident. The safety director agreed that Hill should be terminated.

Arbitration

Hill and the Union challenged Hill’s termination, and the matter proceeded to arbitration. The arbitrator modified the penalty from termination to a five month suspension and reinstatement without back pay.

Appeals

Despite the arbitration award, the City did not reinstate Hill. Hill and the Union filed an application in the Cuyahoga Court of Common Pleas to confirm and enforce the arbitration award. The City filed a separate application to vacate the arbitration award. The trial court consolidated the cases, granting the city’s motion to vacate and denying the Union’s motion to confirm the award, finding that the arbitrator had exceeded his authority by failing to properly apply the Matrix, and had thus acted arbitrarily and capriciously.

Hill and the Union appealed, and in a 2-1 decision authored by Judge Eileen A. Gallagher and joined by Judge Jones, the Eighth District upheld the trial court decision. Judge Boyle dissented, believing that the arbitrator did not exceed his authority because the City’s disciplinary procedures were not expressly a part of the CBA.

Votes to Accept the Case

Yes: Justices Pfeifer, O’Neill, Kennedy and French

No: Chief Justice O’Connor, and Justices Lanzinger and O’Donnell

Key Precedent

R.C. 2711.10(D) (“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.”)

R.C. 4117 (Ohio Public Employees Collective Bargaining Act)

R.C. 4117.08(A) (“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 and division (E) of section 4117.03 of the Revised Code.”)

Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union Local 627, 91 Ohio St.3d 108; 742 N.E.2d 630 (2001) (adoption of immediate dismissal as a sanction for violating a drug policy conflicted with CBA’s terms allowing termination only for sufficient cause.)

Summit County Children Services Bd. v. Communication Workers of America, Local 4546, 2007-Ohio-1949, 113 Ohio St.3d 291 (where “good cause” was undefined in CBA, arbitrator could use the Daugherty test to determine whether good cause existed to terminate an employee.)

Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. TMR Educ. Assn., 22 Ohio St.3d 80 (1986) (An arbitrator’s award should be upheld if it draws its essence from the CBA; it does so when there is a rational nexus between the CBA and the award, and when the award is not arbitrary, capricious or unlawful. “The whole purpose of arbitration would be undermined if courts had broad authority to vacate an arbitrator’s award.”)

Findlay City Sch. Dist. Bd. of Educ. v. Findlay Educ. Assn., 49 Ohio St.3d 129 (1990) (presumption of validity of an arbitrator’s award)

Board of Trustees of Miami Township v. Fraternal Order of Police, OLC, Inc., 81 Ohio St.3d, 269 (1998) (“‘just cause’ requires the arbitrators to make two determinations in considering cases: (1) whether a cause for discipline exists and (2) whether the amount of discipline was proper under the circumstances.”)

Article 10.01 of the CBA (“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 grievance procedure if they violate this Agreement.”)

Article 4.01 of the CBA (“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. Such rights shall include, but are not limited to, the following: (a) to develop, revise, or eliminate work practices, procedures and rules in the operation of the Department of Police and to maintain discipline; . . . (c) to transfer, promote or demote employees, or to layoff, terminate or otherwise relieve employees from duty for just cause.”)

Hill’s and Union’s Argument

Judicial review of arbitration awards is limited. Courts must afford an arbitrator’s decision substantial deference because the law favors arbitration as a matter of policy. An arbitration award properly draws its essence from the collective bargaining agreement where there is a nexus between the agreement and the award, and the award is not arbitrary, capricious, or unlawful. The issue before the arbitrator was whether the City had just cause to terminate Hill and if not, what was the appropriate remedy. In this case, the arbitrator acted well within his authority under the CBA by examining the alleged misconduct and fashioning an appropriate remedy. The award in this case was properly based in the CBA.

The Discipline Matrix upon which the decision was made to terminate Hill is separate from the CBA. The Discipline Matrix was not bargained for, and was not expressly set forth in the CBA, attached to the CBA, nor incorporated by reference into the CBA. The arbitrator’s authority is only properly limited by the CBA, not by the Discipline Matrix contained outside the four corners of the CBA.

In this case, the arbitrator had broad remedial authority under the CBA, specifically Article 39 (discipline shall be imposed only for just cause). The arbitrator had the right to determine (1) whether there was just cause for discipline, and (2) whether the amount of discipline administered was appropriate under the circumstances. As such, and in consideration of the fact that the Discipline Matrix is not part of the CBA, the court of appeals erred when it determined that the arbitrator exceeded his authority under the CBA. In this case, allowing the Chief to terminate Hill pursuant to the Discipline Matrix, which is not part of the CBA, would effectively eliminate the “just cause” provision from the CBA. The Chief’s choice of discipline remains subject to the “just cause” standard in the CBA.

Under existing precedent of this court, the use of outside rules and policies to redefine terms in the CBA and/or add additional requirements not found there is prohibited.

City’s Argument

Ohio law permits a court to overrule an arbitrator’s award where the arbitrator exceeds his authority under the CBA. The Management Rights clause of the CBA gives the City the exclusive right “to develop, revise, or eliminate work practices and procedures and rules in the operation of the Department of Police and to maintain discipline.” The CBA permits the Union to object to the imposition of a new rule or policy by filing a grievance.

The City added rules in accordance with its Management Rights Clause, which predetermined discipline based on the severity and frequency of infractions. The discipline is set forth in a disciplinary Matrix. The Union did not object to this, nor file a grievance. Rather, the Union participated in negotiations regarding the Discipline Matrix. The Union did not object when the Matrix was used to reduce a penalty in another earlier disciplinary matter involving Hill.

Parties may fashion their own disciplinary procedures and restrict the authority of an arbitrator as they wish. Arbitration awards are upheld when the award draws its essence from the CBA, but are routinely vacated when the award exceeds the arbitrator’s authority under the CBA. The City properly limited the arbitrator’s authority in disciplinary matters by predetermining the penalty for disciplinary matters. The Union failed to exercise its right to object or grieve the Discipline Matrix, and as such, it is incorporated into the CBA. Therefore, the arbitrator in this case was not permitted to fashion his own remedies because the predetermined penalties are incorporated into the CBA.

Amici in Support of Hill and the Union

Amici Cleveland Police Patrolmen’s Association, Toledo Police Patrolman’s Association, Dayton Fraternal Order of Police Lodge 44, and Ohio Employment Lawyers Association (unions representing various civil servants, and lawyers who represent employees in labor, employment, and civil matters) filed a brief in support of  Hill and the Union. Amici support the appellants’ proposed proposition of law, noting that any limitation on an arbitrator’s ability to review and modify disciplinary action under the “just cause” standard must be specifically bargained for and contained within the four corners of the CBA.

Amicus Fraternal Order of Police of Ohio, Incorporated argued that an agreement between a public employer and an exclusive representative under R.C. 4117 governs the wages, hours, and terms and conditions of public employees covered by the agreement. Discipline matters are a term or condition of employment. If the City intended something other than the terms contained in the agreement, it should have been addressed in negotiations. The arbitrator had proper jurisdiction over this case, and therefore had the authority to impose a proper remedy.

Hill’s and Union’s Proposed 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.

Student Contributor: Connie Kremer

 

 

This entry was posted in Labor and Employment Law, Ohio Supreme Court Watch, Oral Argument Preview, Student Contributors and tagged , , . Bookmark the permalink.