[Cite as Wright State Univ. v. Fraternal Order of Police,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

WRIGHT STATE UNIVERSITY : : Appellate Case No. 2016-CA-35 Plaintiff-Appellant : : Trial Court Case No. 16-CV-36 v. : : (Civil appeal from Greene FRATERNAL ORDER OF POLICE, : County Common Pleas Court) OHIO LABOR COUNCIL, INC., : POLICE OFFICERS AND POLICE : SERGEANTS :

Defendants-Appellees

...........

OPINION

Rendered on the 10th day of March, 2017.

...........

MICHAEL DeWINE, Attorney General of Ohio, by DAVID S. KESSLER, Atty. Reg. No. 0041982, Blaugrund Kessler Myers & Postalakis, Incorporated, 300 West Wilson Bridge Road, Suite 100, Worthington, Ohio 43085 Attorney for Plaintiff-Appellant

KAY E. CREMEANS, Atty. Reg. No. 0040706, and PAUL L. COX, Atty. Reg. No. 0007202, Fraternal Order of Police, Ohio Labor Council, Inc., 222 East Town Street, Columbus, Ohio 43215 Attorneys for Defendants-Appellees

............. -2-

TUCKER, J.

Plaintiff-appellant, Wright State University (“WSU”), appeals from a decision

of the Greene County Court of Common Pleas denying its application to vacate an

arbitrator's decision that modified the discipline imposed by WSU upon the grievant,

University Police Officer Marcus Wyatt. WSU challenges the court's finding that the

arbitrator did not exceed his authority under the terms of the collective bargaining

agreement between it and the police union. WSU further challenges the court’s decision,

claiming that reinstatement of the officer violates public policy.

We conclude that the court did not err in finding that the arbitrator did not

exceed his authority. Thus, we conclude that the court did not err in denying the

application to vacate. We further conclude that the arbitrator’s award does not violate

public policy. Accordingly, the judgment of the common pleas court is affirmed.

I. Facts and Procedural History

WSU maintains a campus police department providing law enforcement

services to its entire campus. The university employs campus police officers and police

sergeants. Both groups of officers share the same Collective Bargaining Agreement

(“CBA”). The Fraternal Order of Police/Ohio Labor Council (“FOP”) represents both the

officers and the sergeants.

WSU hired Marcus Wyatt in 1997. He was promoted to sergeant in 2004.

On December 6, 2014, Wyatt was scheduled to work during two events at a WSU venue.

The first event was scheduled to begin at 3:00 p.m., with the second event set to start five

hours later. When Wyatt arrived for a briefing prior to the first event, he was asked if he -3-

had seen another officer, Stefan Kempf, who was also scheduled to work during both

events. Wyatt indicated that he had not. He then called Kempf, who stated that he did

not realize he was scheduled to work at the earlier event, and that he would report for

duty as quickly as possible.

Wyatt then called Lieutenant Jon Cross, and told him that Kempf was having

vehicle problems, but that he was on his way to work. When Kempf arrived, he informed

Cross that he did not have vehicle issues, but rather, had failed to read an email regarding

his work schedule.

Cross informed WSU Police Chief David Finnie about the incident. Wyatt

was placed on administrative leave pending an investigation. Wyatt readily admitted that

he had provided incorrect information to Cross regarding Kempf’s late arrival to work.

Finnie determined that Wyatt had violated WSU Police Department polices. These

policies included requirements of honesty, truthfulness, reporting information properly,

conduct becoming an officer, and satisfactory performance.

A due process meeting was held in January 2015, following which Wyatt’s

employment was terminated. Wyatt and the FOP challenged his termination, and the

matter was submitted to binding arbitration in accordance with the CBA. The parties

submitted the following as their issue for determination by the arbitrator, “[d]id the

University have just cause to terminate [Wyatt], and if not, what shall be the remedy?” A

hearing was conducted in August 2015.

Of relevance to this appeal, the CBA contains the following provisions that

were relied upon by the parties and the arbitrator:

Article 3 – Management Rights -4-

Unless expressly provided to the contrary by a specific provision of this

Agreement, the University reserves and retains solely and exclusively all of

its rights to manage the operation of the Police Department.

These rights shall include, but are not limited to, the right of the University

to:

***

G. suspend, discipline, demote, or discharge for just cause * * *.

***

The University is not required to bargain over its management decisions or

on subjects reserved to management except as provided by the provisions

of ORC 4117. The Union may raise a legitimate complaint or file a

grievance based on the Collective Bargaining Agreement.

Article 11 – Grievance and Arbitration Procedure

Section 5 – Arbitration Decision

***

Only disputes involving the interpretation or application of a provision of this

Agreement shall be subject to arbitration. The arbitrator shall have no

power to add or subtract from or modify any of the terms of this Agreement,

nor shall the arbitrator substitute the arbitrator’s discretion for that of the

University or impose on either party a limitation or obligation not specifically

required by the express language of this Agreement. -5-

Article 17 – Corrective Action

Section 1 – Representation. The University shall not discipline a non-

probationary employee without just cause. Employees shall be entitled to

union representation at any level of the discipline process. * * *

Section 2 – Offenses. Administering discipline is a management right.

The University’s decision to administer a certain level of discipline for a

given offense shall be based on the facts and circumstances of each

situation. * * *

Examples (list not inclusive) of minor offenses best addressed by

progressive discipline include poor performance, chronic absenteeism,

disregard for instructions and/or work procedures, absence from an

assigned work area without significant reason, extended break or meal

periods that constitute an absence from the employee’s assigned work

area, late arrivals and/or early quits, minor insubordination, minor negligent

damage to University equipment and/or property, and other similar types of

offenses.

Examples (list not inclusive) of major offenses best addressed by

accelerated discipline include cases of the use, sale, or possession of

controlled substances on the job, arriving for work intoxicated or otherwise

impaired by substance abuse or ingestion, theft, fraud, verbal and/or

physical threat to another person, serious and/or chronic disregard for

safety policies, instructions and/or work procedures, ethnic intimidation,

major intentional damage to University equipment and/or property, sleeping -6-

on the job, gross insubordination, or similar serious offenses.

Section 3 – Progressive Discipline. Discipline is cumulative. Any written

form of discipline for any matter is considered in determining a greater level

of discipline for any subsequent offenses. Discipline shall take into

account the nature of the violation, the employee’s work record, the

employee’s disciplinary record and his length of service with the

department. * * *

***

Section 5 – Potential Levels of Discipline. The University will administer a

system of discipline based on its assessment of the circumstances.

Discipline may include: (1) verbal warning; (2) written warning; (3)

suspension or demotion (reassignment); and (4) termination of

employment; depending on the nature and seriousness of any infraction.

Section 6 – Arbitration. With respect to discipline under this Article, only

suspensions, demotions and terminations of employment are arbitrable.

Following the hearing, the arbitrator determined that WSU had just cause to

discipline Wyatt for making an untruthful statement, but that it lacked just cause to

terminate his employment. The arbitrator modified the discipline to a written warning and

ordered that Wyatt be reinstated with full benefits.

WSU filed an application to vacate the arbitrator’s award with the Greene

County Court of Common Pleas. The court found that the arbitrator’s award was

appropriate and denied the application to vacate. This appeal follows. -7-

II. A Court’s Scope of Review of an Arbitrator’s Award is Narrow.

“Public policy favors arbitration.” Cincinnati v. Queen City Lodge No. 69,

Fraternal Order of Police,

,

,

(1st Dist.), quoting Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union,

Local 627,

,

(2001). “Arbitration ‘provides the parties

with a relatively speedy and inexpensive method of conflict resolution and has the

additional advantage of unburdening crowded court dockets.’ ” Cleveland v. Cleveland

Police Patrolmen’s Assn.,

,

, ¶ 21 (8th Dist.), appeal not

allowed,

,

,

, quoting Mahoning Cty.

Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn.,

,

(1986).

“Judicial review of arbitration awards is limited in order to encourage parties

to resolve their disputes in arbitration.” Piqua v. Fraternal Order of Police,

,

,

(2d Dist.). The vacation of an

arbitrator’s award is permitted when the court finds that one of the conditions set forth in

R.C. 2711.10 exists. Id. at ¶ 19. Pursuant to R.C. 2711.10(D), the court of common

pleas may vacate an award if it finds that the arbitrator exceeded his or her powers. In

order to determine whether an arbitrator has exceeded his or her authority, a court must

look to whether the award “draws its essence” from the CBA. Queen City Lodge No. 69,

Fraternal Order of Police,

,

,

(1st Dist.). An award satisfies this requirement when there is a rational nexus between

the CBA and the award. Id. at ¶ 18.

Further, “[t]he comments to R.C. 2711.10, the statute governing judicial -8-

vacation [of arbitration awards,] explain, [that] ‘[t]he arbitrators are the sole judges of the

law and of the evidence[,] and no vacation of an award will be had because of their

misconstruction of the facts or of the law.” Piqua v. Fraternal Order of Police,

,

,

(2d Dist.). “It is because arbitration

is a creature of private contract that courts must ignore errors of fact or law.”

“Critically then, in reviewing an arbitrator’s award, the court must distinguish between an

arbitrator’s act in excess of his powers and an error merely in the way the arbitrator

executed his powers. The former is grounds to vacate; the latter is not.”

III. The Arbitrator did not Exceed his Authority.

The first Assignment of Error set forth by WSU states as follows:

OHIO LAW MANDATES THAT THE COURT VACATE AN ARBITRATION

AWARD WHEN AN ARBITRATOR EXCEEDS THE AUTHORITY

GRANTED TO HIM BY THE PARTIES UNDER THEIR COLLECTIVE

BARGAINING AGREEMENT.

WSU contends that the arbitrator’s award must be vacated because the

arbitrator exceeded his authority when he modified the discipline imposed by the

university. In support, the university argues that once there is a finding of just cause to

discipline, the CBA does not permit the arbitrator to substitute his judgment regarding the

type of discipline imposed. The university also contends that the award must be vacated

because the arbitrator limited the testimony of one witness, and refused to hear the

testimony of a proposed expert.

Pursuant to the CBA executed by the parties, WSU may discipline an -9-

employee only upon a finding of “just cause.” However, the agreement does not define

“just cause.” Without such a definition or limitation, the arbitrator must make two

determinations in deciding whether an employer has disciplined and discharged an

employee for just cause: “(1) whether a cause for discipline exists and (2) whether the

amount of discipline was proper under the circumstances.” Cleveland Police

Patrolmen’s Assn.,

at ¶ 28. Thus, whether WSU had just cause to

terminate Wyatt is a factual determination for the arbitrator to make in accordance with

the terms of the CBA.

WSU contends that once the arbitrator determined there was just cause to

find that Wyatt committed an offense, his inquiry ended. However, “[a]bsent language in

a collective-bargaining agreement that restricts the arbitrator's power to review, if the

arbitrator determines that there was just cause to discipline an employee, the arbitrator is

not required to defer to the employer as to the type of discipline imposed.” Queen City

Lodge No. 69, Fraternal Order of Police,

. We are cognizant that

“[t]he fact that an arbitrator may review the appropriateness of the type of discipline

imposed after determining that just cause exists for discipline does not mean, however,

that the arbitrator can issue an arbitration award, modifying the discipline imposed, that

conflicts with the express terms of the agreement. Where the collective bargaining

agreement sets forth ‘predetermined’ levels of discipline or otherwise limits the authority

of the arbitrator to review the discipline imposed, those limitations will be enforced.”

Cleveland Police Patrolmen’s Assn. at ¶ 28.

In this case, we find nothing in the CBA to prevent the arbitrator from

reviewing the appropriateness of the discipline imposed. The CBA does not set forth a -10-

predetermined level of discipline nor a matrix to follow when determining what discipline

is required. The only restrictions imposed thereon are found in Article 11, Section 5,

which prohibits an arbitrator from adding to, subtracting from or modifying the language

of the CBA, and prevents the arbitrator from substituting his discretion for that of the

university.

WSU is correct that the CBA provides it with the exclusive right to manage

discipline as set forth in Article 3 and Article 17, Section 2 of the CBA. It is also correct

that the CBA states that the arbitrator cannot substitute his discretion for that of the

university. However, these restrictions are necessarily modified by the fact that the

CBA provides that discipline is subject to a determination of just cause, which as

discussed above is, in this case, a factual determination for the arbitrator. Also, the CBA

invites review of the level of discipline by providing that the level and type of discipline

must be determined by the facts and circumstances of each situation, including the nature

and seriousness of the offense, as well as consideration of the employee’s work record,

disciplinary record, and length of service. Arcticle 17, Sections 2, 3 and 5.

WSU further argues that the modification of the discipline is not warranted

by the terms of the CBA because Wyatt has been the subject of two prior disciplinary

actions, one of which involved a suspension. WSU notes that its progressive discipline

language requires that Wyatt not receive less discipline than meted out in his prior case.

We note there is nothing in this record regarding any prior discipline other than the

arbitrator’s finding that he was subject to two minor disciplinary actions. Nor is there any

competent evidence to indicate the level of discipline imposed. Even if the university is

correct regarding the level of the prior discipline, any error is one of fact, and is not -11-

reviewable.

The CBA provides examples of minor offenses that are subject to

progressive discipline. It also gives examples of major offenses subject to accelerated

discipline. The offense at issue here is not expressly provided for in either category.

There is no definition of accelerated discipline set forth in the CBA, and the definition of

progressive discipline indicates that the facts and circumstances must be considered in

determining discipline. Further, the level of discipline that can be imposed ranges from

a verbal warning to termination, and under the terms of the CBA is dependent upon an

assessment of the nature and seriousness of the infraction. Again, this is a factual

determination for the arbitrator.

WSU could have negotiated with the FOP for the inclusion in the CBA of a

specific definition of just cause, a more limited review of its disciplinary actions, or for the

absolute right to terminate an employee for any action involving dishonesty. It did not.

Thus, in the absence of such an express provision, the arbitrator was entitled to determine

the meaning of just cause as well as the penalty imposed for any infraction.

We conclude that the arbitrator was entitled to review the level of discipline

imposed in this case and to determine whether WSU had just cause for the level it chose.

Since the arbitrator had that power, and since he utilized a level of discipline permitted by

the CBA, we conclude his decision drew from the essence of the CBA. Thus, we

conclude that the common pleas court did not err in finding that the arbitrator did not

exceed his authority. This conclusion is consistent with the parties’ statement regarding

the issue for determination by the arbitrator, with this issue being, “[d]id the University

have just cause to terminate [Wyatt], and if not, what shall be the remedy?” -12-

We next turn to the claim that the award must be vacated because the

arbitrator did not permit WSU to present certain testimony. Specifically, WSU argues

that the arbitrator refused to permit Kempf to testify as to the impact Wyatt’s offense had

on him, and refused to permit the testimony of an expert witness on the importance of

police officer honesty and the effect of dishonesty as it pertains to the WSU police

department’s duty to disclose information pursuant to Brady v. Maryland,

,

,

(1963). WSU cites Bordonaro v. Merrill Lynch, Pierce,

Fenner & Smith,

,

,

(8th Dist.)

for the proposition that an arbitration award should be vacated if an expert witness is not

permitted to testify.

Generally, the rules of evidence are more relaxed during arbitration

hearings, and an arbitrator has wide discretion regarding evidence. Bordonaro, at ¶ 7.

“However, if the exclusion or admission of evidence during an arbitration results in a gross

procedural impropriety, vacating the award is then required.”

We begin by noting that we find Bordonaro distinguishable from the facts at

hand. Bordonaro involved an action similar to malpractice over a claim that the

defendants had mishandled, and given negligent advice on, the plaintiff’s securities

accounts. Id. at ¶ 2. The arbitrators did not permit expert testimony on “industry

customs and practices and the applicable standard of care in this case.” Id. at ¶ 9. The

court of appeals found that this error required vacation of the award because, absent

testimony on the standard of care, there was no means for determining how the arbitrator

reached its decision finding no liability. Id. at ¶ 27. While expert testimony would be

necessary in a securities case, or for example in a medical malpractice case, here there -13-

is no issue of an applicable standard of care.

We cannot disagree with the arbitrator’s decision not to allow Kempf’s

testimony on the issue of how Wyatt’s actions personally affected Kempf. The arbitrator

did not allow Kempf’s testimony based upon the conclusion such testimony was not

relevant. This was a legal determination solely within the arbitrator’s purview. Such a

determination cannot be the basis for vacation of an arbitration award. Further, such

information was set forth as an exhibit to the post-brief that WSU was permitted to file.

With regard to the expert’s testimony regarding Brady issues raised by

Wyatt’s actons, we agree with the FOP that this constituted a matter of legal interpretation

that was capable of being, and actually was, briefed by WSU. Further, it is not clear from

our record whether the arbitrator completely rejected the expert’s testimony, or whether

he merely ordered that it be included in the post-trial brief. Indeed, the university

dedicated numerous pages of the post-trial brief to a discussion of Brady as it relates to

officer dishonesty.

Based upon our review of the record, we cannot conclude that the arbitrator

exceeded his authority. We further cannot conclude that the failure to permit Kempf and

the expert to testify as to the effect of Wyatt’s offense requires vacation of the award.

Thus, we conclude that the common pleas court did not err by denying WSU’s application

to vacate the arbitration award.

Accordingly, the first Assignment of Error is overruled.

IV. Wyatt’s Reinstatement Does Not Violate Public Policy.

WSU’s second Assignment of Error provides as follows: -14-

THE AWARD MUST BE VACATED BECAUSE REINSTATEMENT OF THE

GRIEVANT, A DISHONEST POLICE OFFICER WHO LIED TO HIS

LIEUTENANT WHILE ON DUTY, WOULD VIOLATE WELL ESTABLISHED

OHIO PUBLIC POLICY.

WSU contends that the common pleas court was required to vacate the

arbitration award because the reinstatement of Wyatt violates Ohio public policy which

mandates that police officers are held to a higher standard of conduct than the general

public, especially regarding issues of honesty.

“The Ohio Supreme Court has recognized that, if an arbitrator's

interpretation of a CBA violates public policy, the resulting award is unenforceable.”

Fraternal Order of Police Lodge 8 v. Cleveland, 8th Dist. Cuyahoga No. 102565, 2015-

Ohio-4188, ¶ 25, appeal not allowed,

,

,

, citing Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local

627,

,

(2001), citing W.R. Grace & Co. v. Local

Union 759, Internatl. Union of the United Rubber, Cork, Linoleum & Plastic Workers of

Am.,

,

,

(1983). The public policy “must

be well[-]defined and dominant, and is to be ascertained ‘by reference to the laws and

legal precedents and not from general considerations of supposed public interests.’ ”

W.R. Grace & Co. at 766.

However, the issue is not whether the officer's conduct violated some public

policy, but whether the arbitrator's reinstatement order did so. Dayton v. AFSCME, Ohio

Council 8, 2d Dist. Montgomery No. 21092, 2005–Ohio–6392, ¶ 23, citing Southwest Ohio

Regional Transit Auth. at 112–113,

; see also Cleveland Police -15-

Patrolmen’s Assn.,

,

, ¶ 44 (8th Dist.). “A court may refuse

to enforce an [arbitration] award when specific terms in the contract would violate public

policy, but there is no broad power to set aside an arbitration award as against public

policy.” AFSCME, Ohio Council 8, at ¶ 23, quoting Board of County Comm’rs v. L.

Robert Kimball and Assoc.,

(6th Cir. 1988).

“Public policy, however, does not demand that the [university] have

unbridled authority to terminate its employees for their misconduct. In its collective

bargaining agreement with the FOP, the [university] bargained for the right to terminate

or otherwise discipline police officers for just cause and to have an arbitrator review the

propriety of its actions if other efforts to resolve disputes between the [university] and the

FOP failed. There is nothing against public policy about enforcing this agreement.” City

of Dayton v. Fraternal Order of Police, 2d Dist. Montgomery No. 18158,

,

* 5 (June 2, 2000).

We do not question that officer honesty and integrity are vital. And we

certainly do not condone Wyatt’s actions. However, WSU does not cite, and we cannot

find, any public policy that renders unlawful an arbitration award reinstating an officer in

this type of situation. Accordingly, the second Assignment of Error is overruled.

V. Conclusion

Both of the Assignments of Error set forth by WSU are overruled, and the

judgment of the common pleas court is Affirmed.

............. -16-

DONOVAN, J., and WELBAUM, J., concur.

Copies mailed to:

Michael DeWine David S. Kessler Kay E. Cremeans Paul L. Cox Hon. Stephen Wolaver