Reversing the decision of two lower courts, the Ohio Supreme Court recently ruled that absent negotiated language in a collective bargaining agreement (CBA) limiting an arbitrator’s authority to modify a disciplinary action for just cause, an arbitrator has authority both to review the disciplinary action and to fashion a remedy that is outside the scope of the CBA.
A City of Findlay police officer was first disciplined in 2012 for conduct unbecoming. This discipline was grieved, taken to arbitration, and then modified by the arbitrator to be in line with the city’s use of a discipline matrix.
Later that same year, the same officer was found to have violated the department’s sexual harassment policy, and termination of the officer’s employment contract was recommended. The termination was grieved and taken to arbitration. The arbitrator determined that the city did not present evidence to support termination, and therefore he set aside the termination. Instead, the arbitrator determined that the disciplinary matrix could not be used, stated that a “lengthy disciplinary suspension [was] warranted,” and imposed a five-month suspension. The city appealed this decision to the county common pleas court. Both the common pleas court and the appeals court agreed with the city and found that the arbitration award did not draw its essence form the CBA and was arbitrary, capricious, and unlawful (i.e., the arbitrator overstepped his authority and power). However, the Ohio Patrolmen’s Benevolent Association, on behalf of the officer, appealed these decisions to the Ohio Supreme Court.
The Supreme Court was left to determine whether the just cause discipline provision in the CBA authorized an arbitrator to change the disciplinary action recommended by the employer (in this case, the police chief using a disciplinary matrix). Key to this case was the fact that the disciplinary matrix used by the department to discipline the officer was not part of or mentioned in the CBA. Furthermore, the CBA neither mentioned the department’s disciplinary procedures nor restricted an arbitrator’s authority to review the appropriateness of the type of discipline imposed upon finding just cause for discipline. Absent this limiting language in the CBA, the arbitrator was free to fashion a remedy that he believed was appropriate.
Only Chief Justice Maureen O’Connor dissented from the court’s majority opinion, noting that the case should not have been accepted by the Supreme Court in the first place and that the majority’s decision could have unintended consequences as it seems to throw out the consideration of past practice(s). She noted that the department used the matrix as a past practice as the basis for disciplinary action, and the inability to rely on this or throw it out of consideration is dangerous. O’Connor concluded that under the majority opinion, even if a past practice is established related to disciplinary outcomes, an arbitrator could modify the discipline if the practice is shown as not specifically bargained for and incorporated into the CBA. This, in her opinion, is an undesirable result.
School districts should be aware that this holding by the Supreme Court could impact arbitrations and the review of the same by courts in Ohio. The court concluded, “Any limitation on an arbitrator’s authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.”
Ohio Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion No. 20147-Ohio-2804.