COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68265 OHIO COUNCIL 8, AMERICAN : FEDERATION OF STATE, COUNTY AND : MUNICIPAL EMPLOYEES, AFL-CIO, : LOCAL 100 : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND, DEPARTMENT : OF RECREATION : : Defendant-Appellee : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 19, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 269805 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Andrew J. Love, Esq. Sharon Sobol Jordan, Esq. 6800 North High Street Director of Law Worthington, Ohio 43085-2512 Joseph J. Jerse, Esq. Assistant Dir. of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 -2- HARPER, J.: Plaintiff-appellant, Ohio Council 8, Local 100, AFSCME, AFL- CIO ("the union"), appeals from the denial of its application to vacate an arbitrator's award pursuant to R.C. 2711.10(D). The Court of Common Pleas of Cuyahoga County, in the alternative, granted the motion of defendant-appellee, the city of Cleveland, Department of Recreation ("the city"), to confirm the arbitration award pursuant to R.C. 2711.09. The underlying grievance arose during the parties' collective bargaining agreement for the years 1989 through 1992 ("the contract"). The city gave merit pay increases to approximately seventeen Physical Directors or Recreation Directors employed in the city's Recreation Department. Though all employees were members of the union, the city failed to grant merit increases to some of the employees in the affected classifications. Section 143 ("Section 143") of the contract provided: It is the general policy of the City that no new employee will start at a higher rate than an employee in the same classification. If an individual increase above the general increase is contemplated, the City will advise the Union of its intent to implement such action. The union filed grievances on behalf of those employees who did not receive merit increases. According to these grievances, the city's award of merit increases to only a portion of employees in the classifications, violated the contract. Alternatively, the city's failure to award the increases across the board constituted disparate treatment. -3- The union thereafter requested that the city provide the information it used to determine which employees deserved the increases. The city refused to provide the information. The parties then agreed to hold the grievances in abeyance until an arbitrator decided whether the city was rightfully withholding the requested information. On December 6, 1990, Arbitrator Phillip-Harold Marshall determined that the city was obligated to provide the requested information to the union. He ordered the city to provide the information so that the grievances could be reviewed on the merits. Specifically, in this regard, Marshall stated: *** A review of such merit raise after the City's granting of such increase is a matter of legitimate concern and challenge should it be determined that Section 143 had been defectively administered. Again, the Union had no contract right to veto, negotiate, and/or discuss the City's intended merit raise action, only the right to question the basic facts as to the Employer's method of applying such merit raise proviso. Moreover, the applicable contract's grievance provisions are found to effectively anticipate such type of challenge which may be lodged by the Union in the event it determines a valid basis exists to question a merit raise event. Notably, such proviso conspicuously contains no restriction as to the filing of a complaint which deals with the granting of merit increases. *** (Emphasis sic) Finally, Marshall advised the city in dicta to grant merit increases in an "even-handed" manner. ("Arbitration Award I") -4- Arbitration Award I thus established that the union could question how the city determined which employees were entitled to merit increases; it could not, on the other hand, question the city's initial decision to award merit increases. Marshall concluded that the city violated the contract by not providing requested employee information to the union because, without it, the union could not effectively ascertain the propriety of the city's merit increase decisions. Marshall, however, did not address whether the city violated the contract by not awarding merit increases to all of the employees in the classifications at issue. The first arbitration, therefore, merely focused on the city's duty to provide the union with requested employee information. The negotiations between the parties disintegrated in 1993 when the city allegedly failed to fully comply with Arbitration Award I insofar as it did not furnish all requested information to the union. A second grievance was, therefore, brought with the issue being whether the city violated the contract in 1989 when it awarded merit pay increases to the seventeen union members, and not to the remaining members of the same classifications. The matter proceeded to arbitration. The union submitted that certain union members who received merit increases were less deserving of them than members who did not receive the increases. It moreover suggested that it was in a better position to determine which union members were entitled to the increases. The union, therefore, requested that the arbitrator, Roland Strasshofer, award -5- merit increases to the members of the classifications who did not receive merit increases, thereby converting the merit increases to some to a general increase for all members. Strasshofer issued his report on February 8, 1994, granting the grievance in part. First, he confirmed the merit pay increases to those union members who previously received them. Second, he ordered the union and the city to negotiate possible merit increases for the remaining members of the classifications. The increases, if granted, were to be effective as of five working days of the receipt of Arbitration Award I, December 6, 1990. Strasshofer ordered further that the negotiations were to be complete by March 31, 1994. ("Arbitration Award II") With regard to the union's position that the city violated Section 143 by treating similarly situated employees differently in granting some merit increases, Strasshofer noted that the union's evidence was sparse. He, therefore, failed to find proof of disparate treatment at the hands of the city. As stated supra, the union filed an application to vacate Arbitration Award II in the trial court on May 2, 1994. The city filed an application to confirm the award on October 28, 1994 pursuant to R.C. 2711.09, which provides in part that "the court shall grant such an order [confirming the award] and enter judgment thereon, unless the award is vacated, modified, or corrected as prescribed" in R.C. 2711.10 and 2711.11. The trial court granted the city's application on November 8, 1994. -6- The union now appeals from the trial court's affirmance of Arbitration Award II, and claims error as follows: THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION BY CONFIRMING THE ARBITRATOR'S AWARD WHERE THERE WAS SUBSTANTIAL EVIDENCE THAT THE ARBITRATOR FAILED TO RENDER A MUTUAL, FINAL, AND DEFINITE AWARD UPON THE SUBJECT MATTER SUBMITTED. The union relies on R.C. 2711.10(D) to support its argument that the trial court abused its discretion in confirming Arbitration Award II because Strasshofer, the arbitrator, allegedly failed to decide a critical issue presented by the union. Specifically, the union asserts that Strasshofer should have decided whether the union members who did not receive merit increases were entitled to them. In other words, simply ordering the union and the city to negotiate the merit increases was not a sufficient remedy because the parties' inability to negotiate since Arbitration Award I necessitated the second grievance in 1994. As is true in this case, parties who submit controversies to binding arbitration must accept the result even if the result is factually or legally wrong. Goodyear Rubber Co. v. Local Union No. 200 (1975), 42 Ohio St.2d 516, 522-523; Huffman v. Valletto (1984), 15 Ohio App.3d 61; see, also, Cleveland Police Patrolmen's Assn. v. Cleveland (1990), 70 Ohio App.3d 157; Cuyahoga Community College v. District 925, Serv. Emp. Internatl. Union, AFL-CIO (1988), 42 Ohio App.3d 166. The scope of judicial review of arbitration proceedings is thus limited, thereby facilitating and encouraging the private settlement of grievance disputes. Goodyear Rubber Co. v. Local Union No. 200, 520; Huber Hts. v. Fraternal Order of -7- Police (1991), 73 Ohio App.3d 68, 73. An arbitrator's award will not be vacated as long as the award "draws its essence from the collective bargaining agreement." Queen City Lodge No. 69, Fraternal Order of Police, Hamilton Cty., Ohio, Inc. v. Cincinnati (1992), 63 Ohio St.3d 403, 406-407, citing United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428; Ohio Office of Collective Bargaining v. Ohio Civil Service Employees Assn., Local 11, AFSCME, AFL-CIO (1991), 59 Ohio St.3d 177, 179; Goodyear Tire & Rubber Co. v. Local Union No. 200 (1975), 42 Ohio St.2d 516, paragraph one of the syllabus, certiorari denied (1975), 423 U.S. 986, 96 S.Ct. 393, 46 L.Ed.2d 303. R.C. 2711.10(D) sets forth the limited circumstances under which a reviewing court is empowered to vacate an arbitration award. It provides: 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. A reviewing court may vacate an arbitration award if the arbitrator fails to consider a "critical" issue within the scope of the submission. Ohio Office of Collective Bargaining v. Ohio Civ. Serv. Emp. Assn., Local 11, AFSCME (1990), 69 Ohio App.3d 546, 550; Cleveland v. Assn. of Cleveland Fire Fighters (1984), 20 Ohio -8- App.3d 249, 254; Huffman, 63. However, Arbitrator Strasshofer considered the issue presented by the union, i.e., whether the city violated the contract by awarding merit increases to fewer than all of the union members in the classifications at issue. As a matter of fact, he framed the issue before him as being "[w]hether the City violated the contract in 1989 when it awarded merit pay increases to 17 Union members, but not others in the same Recreation Department classifications, without notification to the Union of intent to implement specific merit pay increases." Arbitration Award II confirms that the arbitrator found that the city violated the contract. Though the union postures that the arbitrator failed to decide a critical issue, what the union is now in actuality concerned with is the arbitrator's remedy to the contract violation. Arbitrator Strasshofer, in fact, questioned that if he found such a violation, "is the proper remedy to negotiate for merit increases to specified employees in the affected classifications who did not previously them?" An arbitrator possesses broad authority when fashioning a remedy for a contractual violation. Queen City Lodge, 407; see, also, General Tel. Co. of Ohio v. Communications Workers of America, AFL-CIO (C.A. 6, 1981), 648 F.2d 452, 456-457; United Steelworkers, 363 U.S. at 597, 80 S.Ct. at 1361, 4 L.Ed.2d at 1428; Ohio Office of Collective Bargaining v. Ohio Civ. Serv. Emp. Assn., Local 11, AFSCME, AFL-CIO (1993), 66 Ohio St.3d 194. The arbitrator herein recognized that the union requested through its -9- grievance that the non-receiving members be awarded the merit increases as a remedy. The arbitrator, however, found no evidence that the city treated the non-receiving members any differently than the members who received the merit increases. The union, therefore, fails to demonstrate that the arbitrator's remedy, i.e. that the parties negotiate merit increases for the remaining members of the classifications by date certain, was not appropriate. Queen City Lodge. Accordingly, we overrule appellant's assignment of error, and affirm the trial court's refusal to vacate Arbitration Award II pursuant to R.C. 2711.10(D). Judgment affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., AND DIANE KARPINSKI, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .