The Tenth District Ct. of Appeals upheld a decision of the Franklin Co. Common Pleas Ct. vacating an arbitration award of back pay and benefits to a city union member because the arbitrator exceeded his authority under the collective bargaining agreement. In addition, the Appeals Court affirmed the Common Pleas Court’s decision denying the union’s motion to vacate the award on public policy grounds and sustained the member’s termination.
The case arose from an arbitration between the Fraternal Order of Police, Capital City Lodge No. 9 (“Union”) and the City of Reynoldsburg over the termination of a city police officer. The officer called off sick to supposedly care for his injured son. This was the officer’s fifth absence due to illness in that year. Due to the amount of sick days the officer used, the City demanded that he provide a doctor’s excuse for his absence. The officer provided a doctor’s excuse which stated the officer’s son was under doctor’s care on the date in question. It was later discovered that the officer held a poker game at his residence that same evening. Consequently, the City investigated the officer’s use of sick leave. The investigator obtained records from the doctor’s office and discovered that the doctor’s excuse given by the officer was falsified. In fact, the officer’s son was never seen by the doctor. The City terminated the officer for failing to report for duty without a bona fide excuse to be absent, dishonesty and insubordination for failing to answer interview questions truthfully. The matter was submitted to binding arbitration in accordance with the collective bargaining agreement (“CBA”) between the City and Union.
The issue presented to the arbitrator was whether the City had just cause to terminate the officer, and if not, what shall the remedy be? The officer testified at the hearing and admitted to lying about his son’s medical condition and to submitting a falsified doctor’s excuse. The arbitrator determined that these admissions, along with the officer’s history of prior discipline, were just cause for termination. However, the arbitrator then stated that the City had committed procedural errors in its internal investigation, including improperly obtaining evidence to support the underlying charges against the officer. As a result, the arbitrator awarded the officer back pay and benefits from the date of termination to the date of the arbitration decision, while sustaining the termination.
Both the City and Union moved to vacate the arbitration award. The City argued the arbitrator exceeded his authority under the CBA by considering an issue not before him. The Union argued that the arbitration award violated public policy because it was based on evidence obtained improperly and other procedural errors committed by the City during its investigation. The Common Pleas Court agreed with the City and vacated the award of back pay and benefits. The Court denied the Union’s motion to vacate the award sustaining the termination after determining that the award was based on the officer’s own testimony and admission of wrongdoing at the hearing, not on evidence obtained by the City during its investigation. The Union appealed.
The Court of Appeals affirmed the lower court decision. The Court held that the that the arbitrator exceeded his authority when he premised his award of back pay and benefits to the officer on the City’s collection of evidence during its investigation and other procedural errors. The only issue presented to the arbitrator was whether the City violated the CBA by terminating the officer without just cause. Once the arbitrator determined there was just cause for termination, the inquiry should have ended there. The Court found that the Union could have filed a grievance over the City’s alleged procedural errors, but because it did not, the issue could not be considered by the Arbitrator.
The Court further held that the award sustaining the officer’s termination did not violate public policy. The Court found that to violate public policy, the award itself must result from a violation of public policy. Here, the underlying disciplinary charges may have been tainted by improperly obtained evidence and procedural errors during the City’s investigation, but not the award itself. The Court found that the award was based on the officer’s own testimony, admission of wrongdoing and past disciplinary record. The arbitrator only considered the officer’s testimony in determining that the City had just cause to terminate the officer. In other words, the award sustaining the officer’s termination was not based on any evidence obtained during the City’s investigation. That evidence led only to the underlying disciplinary charge, not the arbitration award, and thus the award did not violate public policy.
This case is a reminder that employers should pay attention to a relatively routine part of the arbitration; the framing of the issue for the arbitrator to consider. The manner in which an issue is framed can help or hinder a potential appeal. It can also be used to persuade the arbitrator before the evidence is even presented.
If you would like a copy of the decision in this case or have any questions, please contact Paul Bernhart at pbernhart@fishelhass.com