COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68471 CITY OF CLEVELAND : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CITY AND COUNTY & WASTE PAPER : DRIVERS UNION LOCAL NO. 244 : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 265,574 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: SHARON SOBOL JORDAN Director of Law BARBARA R. MARBURGER Chief Assistant Director of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 For defendant-appellee: SUSAN D. JANSEN Attorney at Law 111 West First Street, #1100 Dayton, Ohio 45402-1156 JOHN V. CORRIGAN, J.: This is an appeal from a judgment of the Cuyahoga County Court of Common Pleas which denied appellant City of Cleveland's application to vacate an arbitration award. The city assigns the following errors for review: I. THE TRIAL COURT SHOULD HAVE VACATED THE ARBITRATION AWARD BECAUSE THE ARBITRATOR EXCEEDED HIS AUTHORITY UNDER THE CONTRACT AND SO IMPERFECTLY EXECUTED HIS POWERS THAT A MUTUAL, FINAL, AND DEFINITE AWARD UPON THE SUBJECT MATTER WAS NOT MADE. II. THE TRIAL COURT SHOULD NOT HAVE CONFIRMED THE ARBITRATION AWARD AS A FINAL JUDGMENT WHERE THE AMOUNT IN CONTROVERSY HAS NEVER BEEN ESTABLISHED. The facts giving rise to this appeal are relatively undis- puted. Pursuant to the terms of a collective bargaining agreement between the city and appellee, City, County and Waste Paper Driv- ers Union, Local No. 244 (hereinafter "Union"), twenty-three truck drivers who had been laid off from the Division of Streets filed a grievance alleging a violation of the collective bargaining agreement (hereinafter "contract"). In accordance with the contract, the dispute proceeded to arbitration. At the arbitration, the issue before the arbitrator concerned whether the drivers, who were laid off from the Division of Streets - 3 - at the end of the winter season (April, 1992), should have been reassigned to work in the Division of Parks Maintenance for the summer performing vacant lot clean up, as was historically done. Each summer (prior to 1992), the drivers from the Division of Streets did vacant lot clean-up for the city to avoid being laid off during the summer months for lack of work. Throughout this time, the vacant lot clean-up project was performed under the supervision of the Commissioner of the Streets Division. Sometime in early 1991, however, responsibility for the vacant lot clean-up project was transferred from the Division of Streets to the Division of Parks Maintenance, which was supervised by Ozel Dobbins, Commissioner. Notwithstanding this administrative change, the drivers from the Division of Streets, who had performed this work in prior years under the supervision of the Division of Streets, were temporarily transferred to the Division of Parks Maintenance to perform the clean-up during the summer of 1991. On April 17, 1992, the drivers, who in the past would begin the clean-up work at this time, received notice that they were being laid off due to lack of funds in the Division of Streets. The city did not notify the Union of its intent to lay off the drivers and made no effort to meet with the Union for the purpose of ascertaining whether there were available jobs within the city which the drivers were capable of performing in lieu of being laid off. - 4 - After giving notice of the layoffs, Commissioner Dobbins told Union Business Agent Jarrell Williams that he had decided not to offer the 1992 summer clean-up work to the laid-off Streets Division drivers because he had experienced disciplinary problems with a few of the drivers during the summer of 1991. Temporary employees were hired by the city to perform the clean-up work during the summer of 1992. On November 13, 1993, the arbitrator issued his opinion and award. The arbitrator determined that rather than being laid off during the summer of 1992, the drivers, at their option, were entitled to be placed in the Division of Parks Maintenance to perform the lot clean-up work performed by the temporary employees pursuant to Article XIII of the contract, which provides: LAY-OFFS Whenever it is necessary to reduce the working force of the City, either for lack of work or lack of funds, employees shall be laid off based upon seniority within the affected classification within their division in the following order: a. Part-time employees, except interns who earn academic credit as a result of City employment for definite time- limited period; b. Temporary employees; c. Certified employees. * * * Before any bargaining unit employee is given notice of layoff under the above paragraphs, the City and the Union will meet immediately for the purpose of attempting to find an - 5 - available job within the City, within the bargaining unit, which the affected employee is qualified to perform, and if any such job is available, the employee will be given the option of accepting rather than being laid off. The Union shall receive a copy of all such layoff notices. (Emphasis added.) The arbitrator determined that under this provision, an employee who faces lay-off may, at his option, be placed in any city job which he is capable of performing. The arbitrator fur- ther concluded that the seasonal employees hired by the Division of Parks Maintenance to perform the lot cleanup were temporary employees whom, under the terms of the lay-off provision, the city was obligated to lay off before it laid off the drivers, who are certified employees. The arbitrator also concluded that the city had failed to meet with the Union in an attempt to find jobs for the laid-off truck drivers before sending out notice of lay-off. Having reached the above conclusions, the arbitrator ordered that the city pay the drivers lost wages and benefits, minus any interim wages, including unemployment compensation. In the opin- ion and award, the arbitrator retained jurisdiction for a period of one hundred twenty days for the sole purpose of resolving any disputes which may arise as to the remedy. Prior to the expiration of the one hundred and twenty days, the city petitioned the Cuyahoga County Court of Common Pleas on 1 February 14, 1994 to vacate the arbitration award. The city 1 The record is silent as to whether the parties determined the specific amounts due the grievants under the award. - 6 - asserted that the award should be vacated under R.C. 2711.10(D), which allows for vacation when arbitrators exceed their powers or so imperfectly execute them that "a mutual, final, and definitive award upon the subject matter submitted [is] not made," because the arbitrator expanded the city's obligations under the agreement by requiring the city to place the laid-off Division of Street employees in the Division of Parks Maintenance. The city main- tained that the contract makes no guarantee of job availability over divisional lines for laid-off employees and that the city was therefore not obligated to offer the drivers positions in the 2 Division of Parks Maintenance. The Union subsequently filed a motion to confirm the arbitra- tion award pursuant to R.C. 2711.09 and a brief in response to the application to vacate. The Union argued that the arbitrator did not exceed his authority in deciding that the agreement's lay-off provision entitles a laid-off employee to be placed in any avail- able city job which he or she is qualified to perform, regardless of divisional lines, so long as the available job is in a classi- fication which is within the bargaining unit and that, therefore, the common pleas court should deny the city's application to vacate the arbitration award. On December 20, 1994, the common pleas court, without opin- ion, issued a journal entry overruling the city's application to 2 The arbitrator concluded that it is irrelevant under Article XIII that an available job is in a different division than the laid-off employee's current job. - 7 - vacate and confirming the arbitration award. This appeal fol- lowed. I. A common pleas court's review of an arbitration decision is quite narrow. Goodyear Rubber Co. v. Local Union No. 200 (1975), 42 Ohio St.2d 516, 520; City of Huber Heights v. Fraternal Order of Police (1991), 71 Ohio App.3d 68, motion to certify record overruled (1991), 62 Ohio St.3d 1417. The court may not review the merits of an arbitration award and can set aside an arbitration award only if the party attempting to set aside the award is able to establish that the award is defective in a manner recognized by R.C. Chapter 2711. Hillsboro v. Fraternal Order of Police (1990), 52 Ohio St.3d 174; Warren Edn. Assn. v. Warren City Bd. of Edn. (1985), 18 Ohio St.3d 170; see, also, Findlay Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129; State Farm Mut. Ins. Co. v. Blevins (1990), 49 Ohio St.3d 165; City of Huber Heights v. Fraternal Order of Police, supra. "R.C. 2711.10(D) *** permits a court to vacate an arbitration award which does not `draw its essence' from the terms of the col- lective bargaining agreement[.] ***" Id. at 75. An arbitrator's award departs from the essence of a collective bargaining agree- ment when: "(1) the award conflicts with the express terms of the agreement, and/or (2) the award is without rational support or cannot be rationally derived from the terms of the agreement." - 8 - Ohio Office of Collective Bargaining v. Ohio Civil Service Employ- ees Assn., Local 11, AFSCME, AFL-CIO (1991), 59 Ohio St.3d 177, syllabus. The fact that the common pleas court may have arrived at a different conclusion than did the arbitrator is immaterial. Hillsboro v. Fraternal Order of Police, supra. The common pleas court does not balance the equities, weigh the evidence or assess the credibility of witnesses. Sparks v. Barnett (1992), 78 Ohio App.3d 488. The limited scope of judicial review of arbitration decisions comes from the fact that arbitration is a creature of contract. Contracting parties who agree to submit disputes to an arbitrator for final decision have chosen to bypass the normal litigation process. If parties cannot rely on the arbitrator's decision (if a court may overrule that decision because it perceives factual or legal error in the decision), the parties have lost the benefit of their bargain. Arbitration, which is intended to avoid litiga- tion, would instead become merely a system of "junior varsity trial courts" offering the losing party de novo review. Motor Wheel Corp. v. Goodyear Tire & Rubber Co. (1994), 98 Ohio App.3d 45 (cite omitted). By the same token, respect for the parties' contract justi- fies the limited review undertaken by the court of common pleas. An arbitrator draws his power from the parties' contract. For a court to enforce an award that is clearly beyond the arbitrator's - 9 - authority denies the parties of the benefit of their bargain just as surely as overturning an award because the court disagrees with the decision on a factual or legal basis. Id. Our review of the common pleas court's judgment is likewise limited. "Appellate review of arbitration proceedings is confined to an evaluation of the order issued by the court of common pleas, pursuant to R.C. Chapter 2711. The substantive merits of the original arbitration award are not reviewable on appeal absent evidence of material mistake or extensive impropriety." Lynch v. Holcomb (1984), 16 Ohio App.3d 223, paragraph two of the syllabus; Sparks v. Barnett, supra, at 450. The city argues that the arbitrator's determination that the laid-off drivers were entitled to be placed in the Division of Parks Maintenance without reservation or right to management cannot be rationally derived from the terms of the agreement as it had no obligation to place the laid-off drivers in the city's other divisions. In support of this argument, the city cites Article 3 XII of the contract, which governs job bid procedure. 3 Article XII provides, in relevant part, as follows: BID PROCEDURE Whenever Management determines there is a vacancy in a classification within the bar- gaining unit the city shall post a bid notice within the Division where the vacancy exists. *** At the discretion of the Appointing Authority the bid notice may be posted in other Divi- sions within the Department. However, under no circumstances shall an Appointing Authority be (continued...) - 10 - Upon review, we believe that the arbitrator applied the correct section of the contract, viz., Article XIII, and that the award is rationally derived from the terms of this provision. The explicit language of Article XIII entitles a laid-off employee to be placed in any available city job which he or she is qualified to perform so long as the available job is in a classification which is within the bargaining unit. The arbitrator considered the city's argument that, pursuant to Article XII, it had no obligation to place the laid-off drivers in the city's other divisions but found that the city's argument ignored Article XIII, which specifically governs lay-offs. The arbitrator also found no conflict between the terms of Article XII and XIII and, to the extent a conflict might be perceived between Article XII and XIII, that the terms of the lay-off provision must control because it is more specific to the circumstances pres- ented. These conclusions of the arbitrator are grounded in the express terms of the contract and are rationally supported by the contract. Hence, the award bears a rational nexus to the collec- tive bargaining agreement, specifically the lay-off provision of Article XIII, and there is no basis to vacate the arbitration award. 3 (...continued) required to award a bid to an employee from another Division. Bid notices posted in Divisions other than the Division which has the vacancy shall be labeled as Courtesy Bid Notices. - 11 - Finally, we find that the arbitrator merely applied the terms of the contract and did not add to, subtract from or alter the language of the contract. Therefore, he did not exceed his authority under the terms of the contract. For the foregoing reasons, we hold that the common pleas court correctly denied the city's application to vacate the award. The first assignment of error is overruled. In its second assignment of error, the city argues that pur- suant to R.C. 2711.12, the trial court erred in confirming the award when the arbitrator did not specify the exact amount of back pay owed by the city to each of the individual grievants. There is nothing in the record affirmatively demonstrating that the city raised this issue or alleged error on appeal to the common pleas court. Consequently, it waived the right to raise this issue on appeal to this court. Cf. Morgan v. Girard City School Dist. Bd. of Edn. (1993), 90 App.3d 627. The second assignment of error is overruled. Judgment affirmed. - 12 - 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 Court of Common Pleas 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 SARA J. HARPER, J. CONCUR JUDGE JOHN V. CORRIGAN* *SITTING BY ASSIGNMENT: John V. Corrigan, retired judge of the Eighth Appellate District. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .