COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69652 : GARFIELD HEIGHTS FIREFIGHTERS, : INTERNATIONAL ASSOCIATION OF : FIRE FIGHTERS, LOCAL #340, : JOURNAL ENTRY : Plaintiff-Appellant : and v. : : OPINION CITY OF GARFIELD HEIGHTS : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 5, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-283215 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOSEPH W. DIEMERT, JR., ESQ. MARC J. BLOCH, ESQ. LAURA J. GENTILCORE, ESQ. MARTIN S. LIST, ESQ. 1360 SOM Center Road DUVIN, CAHN & HUTTON Cleveland, Ohio 44124-2189 1301 East Ninth Street Cleveland, Ohio 44114-1886 - 2 - KARPINSKI, J.: This appeal arises from an order of the trial court denying a motion to modify or vacate an arbitration award. For the following reasons the trial court's judgment is affirmed. The arbitration in this case involved determining four specific terms of employment under a collective bargaining agreement between Garfield Heights Firefighters, International Association of Firefighters, Local #340 ("Union") and the City of Garfield Heights ("City"). Article VIII Section 6 et seq. of the collective bargaining agreement provided that each party present a "final offer" to the arbitrator (Section 7) who would then select one of the parties' final offers on an issue-by-issue basis (Section 8). The parties presented written positions three days prior to the arbitration. The Union presented its written position on each term separately. The City, however, specified its position was a "package deal" on the four outstanding terms. The record contains no transcript of the arbitration proceedings. During the appellate proceedings in the common pleas court, the City presented an affidavit of Fire Chief Collova which stated that it had orally submitted separate positions on the four terms during the arbitration hearing. The arbitrator permitted the City to treat these separate positions as its "final offer" for each of the four outstanding terms. The - 3 - arbitrator then selected two terms proposed by the Union and two terms orally proposed by the City. The Union argues the arbitration award was improper because the arbitrator selected two terms from what the City had provided orally at the hearing rather than from the City's written prehearing position. Resolution of this dispute involves whether the arbitrator had the authority to determine that the City's oral proposals constituted the City's "final offer" within the meaning of the collective bargaining agreement. The Union specified four assignments of error (see Appendix). The Union's brief did not discuss each of these assignments separately; neither will this court, especially because a threshold question--the absence of a record--affects each. A. Inadequate Record This appeal involves a procedural ruling during an arbitration hearing. The parties characterize events during the hearing differently and dispute whether an objection to the 1 ruling was made or waived at the hearing. The record does not contain a transcript or adequate record of the arbitration 1 The dissent correctly points out that the city acknowledged in its brief that the firefighters objected to the city's package ("global") approach. Indeed, it was in response to this objection that the arbitrator permitted the city to reform its offer. The city did not acknowledge, however, that the firefighters objected to this decision of the arbitrator. On the contrary, at oral argument the city emphatically denied that the firefighters ever objected at the hearing to this second stage. The absence of a record to establish a timely objection on this point is critical. - 4 - proceedings. An independent review, therefore, cannot establish a timely objection, error by the arbitrator, or grounds to vacate the arbitration award. It is well established that arbitration awards are presumed valid. Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, paragraph one of the syllabus; Marra Constructors, Inc. v. Cleveland Metroparks System (1993), 82 Ohio App.3d 557, 562. As a result, when an aggrieved party fails to submit an adequate record to show grounds to vacate, reviewing courts must presume regularity of the proceedings and resulting arbitration awards. Id. at 563. Accord Motor Wheel Corp. v. Goodyear Tire & Rubber (1994), 98 Ohio App.3d 45. Marra involved a strikingly similar situation in which a public authority challenged an arbitration award. Metroparks complained that the arbitrator's damage award was contrary to two express provisions of the parties' contract. This court held that even if the disputed contract provisions were construed to be "ironclad," Metroparks was nevertheless required to produce a transcript of proceedings to challenge the arbitrator's award. This court specifically recognized that without an adequate record an aggrieved party could not prove that it did not waive the contract provisions during the arbitration hearing. Id. at 564. Accordingly, even if the Union's construction of the collective bargaining agreement were correct in this case, Marra directs us that the absence of a record precludes this court from - 5 - finding the arbitrator erred or that the provisions were not waived during the proceedings. Id. at 564-565. B. Standard of Review of Arbitration Award. In Findlay, supra, paragraph two of the syllabus, the review of an arbitration decision was described as a two-stage process: "Once it is determined that the arbitrator's award draws its essence from the collective bargaining agreement and is not unlawful, arbitrary or capricious, a reviewing court's inquiry for purposes of vacating an arbitrator's award pursuant to R.C. 2711.10(D) is at an end. ***" In Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St.3d 80, paragraph one of the syllabus, the Ohio Supreme Court further clarified that "[a]n arbitrator's award draws its essence from a collective bargaining agreement when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious or unlawful." This was the standard this court followed in Police Patrolmen's Assn. v. Cleveland (1990), 70 Ohio App.3d 157, 160. This abuse of discretion standard was also the test the Ohio Supreme Court applied in Goodyear Tire & Rubber Co. v. Local Union No. 200 (1975), 42 Ohio St.2d 516, 520. 2 The very broad language of the phrase "draws its essence," indicates that the role of an arbitrator in reading a contract is different from that of a judge. The arbitrator "is to bring his 2 This standard, as well as the language, was previously used in Goodyear v. Local Union No. 200 (1975), 42 Ohio St.2d 516, paragraph one of the syllabus, citing United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593. - 6 - informed judgment to bear in order to reach a fair solution of a problem." United Paperworkers Intern. Union v. Misco, Inc. (1987), 108 S.Ct. 364. In other words, arbitrators have considerable leeway to interpret and apply the terms of collective bargaining agreements. The parties agree in final binding arbitration to accept the arbitrator's award "regardless of its legal or factual accuracy." Marra, supra, at 563, citing Goodyear, supra. As a result of the broad powers of an arbitrator, judicial scrutiny of an arbitration award is different from review of court awards. "Because the authority of arbitration is a subject of collective bargaining, just as is any other contractual provision, the scope of the arbitrator's authority is itself a question of contract interpretation that the parties have delegated to the arbitrator." W. R. Grace & Co. v. Rubber Workers Local 759 (1983), 103 S.Ct. 2177, 2182-2183. The parties having freely chosen the arbitrator to settle their disputes, it is assumed they also chose to accept the arbitrator's, rather than the court's, interpretation of the contract. Thus "it is well established that arbitration awards are presumed valid***." Marra, supra, at 562; Findlay, supra, paragraph one of the syllabus. "As long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the court cannot overturn his decision simply because it disagrees with his factual findings, contract interpretation, or choice of remedies." (Emphasis - 7 - added.) Misco, supra, at 364. The few exceptions upon which an arbitration award may be challenged are severely limited by statute. Under R.C. 2711.10 an award may be vacated for the following reasons: (1) corruption, fraud, or procurement by undue means, (2) bias, (3) misconduct of the arbitrator that prejudices 3 a party's rights, (4) internal defects in the award itself, such as incompleteness, ambiguity, or inconsistency, and (5) 4 arbitrators exceeding their authority. Additionally, under R.C. 2711.11 an award may be modified or corrected for the following: (1) evident material mistake, either in calculating figures or in describing "any person, thing, or property referred to in an award," (2) basing an award "upon a matter not submitted", and 5 (3) an award imperfect in form, rather than on the merits. In the case at bar, the Union has provided no evidence of these exceptions. As in Marra, the burden was on the Union as the party challenging the arbitration award to show that any of the limited grounds for relief existed in this case. The Union has not met that burden. Appellant has argued that the arbitrator exceeded his authority in accepting the City's oral offer as its final offer. 3 We note that appellant does not claim the Union was prejudiced by the arbitrator's decision to disregard the City's "package" offer. 4 Another exception not specified in the statute is the violation of law or public policy. See the concurring opinion of Justice Sweeney in Nationwide Mutual Ins. Co. v. Marsh (1984), 15 Ohio St.3d 107. 5 In its Statement of Issues, appellant asks this court first to modify or correct and, in the alternative, to vacate the award. - 8 - "Arguably," the arbitrator could properly interpret and apply the collective bargaining agreement to find that the City's written prehearing position, because it was a package, did not constitute a "final offer" as envisioned by the collective bargaining agreement, which anticipated the final offer would be composed of individual terms that the arbitrator could choose from. The collective bargaining agreement, moreover, does not expressly prohibit the arbitrator from permitting this procedural substitution. There was, in other words, a rational nexus between the arbitrator's decision, on the one hand, to permit a substitution of a final offer with severable terms and, on the other, an agreement that required him to choose individual terms, not a package offer. We hold, therefore, that the arbitrator's decision drew its essence from the collective bargaining agreement and was not otherwise unlawful, arbitrary or capricious. Contrary to appellant's argument, it makes no difference whether the common pleas court considered the affidavit of Fire Chief Collova. Even if the court disregarded the affidavit, as appellant requests, appellant has not met its burden of producing affirmative evidence in the record that the arbitrator made a mistake or acted improperly, just as there is no evidence that appellant ever objected to these alleged mistakes or improprieties and, therefore, did not waive these claims. Because the events under review occurred at a hearing for which there is no record and because this court has previously - 9 - ruled in a published opinion that a record was essential under these circumstances, and further because this court is constrained to find that the arbitrator acted within the scope of his broad authority, the four assignments of error are, accordingly, overruled. 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 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. HARPER, P.J., CONCURS; O'DONNELL, J., DISSENTS (See Dissenting Opinion). DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). - 11 - APPENDIX ASSIGNMENTS OF ERROR First Assignment of Error The trial court erred by failing to find that the Arbitrator made an evident material mistake in the description of the contract language. Second Assignment of Error The trial court erred by failing to find that the Arbitrator awarded on a matter not submitted to him. Third Assignment of Error The trial court erred by failing to find that the Arbitrator exceeded his powers in that the award departs from the essence of the Collective Bargaining Agreement because the award conflicts with the express terms of the Agreement. Fourth Assignment of Error The trial court erred by relying upon the affidavit presented by Appellee-defendant as opposed to relying on the language of the Collective Bargaining Agreement and the language of the award in determining that the Arbitrator did not exceed his authority. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69652 GARFIELD HEIGHTS FIREFIGHTERS, : INTERNATIONAL ASSOCIATION OF : FIRE FIGHTERS, LOCAL #340 : : DISSENTING Plaintiff-Appellant : : OPINION vs. : : : CITY OF GARFIELD HEIGHTS, : : : Defendant-Appellee : : DATE: DECEMBER 5, 1996 O'DONNELL, J., DISSENTING: On January 1, 1991, the Garfield Heights Firefighters, Local 340, International Association of Firefighters and the City of Garfield Heights signed a two-year collective bargaining agreement which provided that the parties would submit unresolved issues to binding arbitration through the American Arbitration Association. When the contract expired, four matters remained unresolved: salary, duty hours/holidays, paramedic bonuses, and longevity pay. The parties agreed to arbitrate these matters. In accordance with the terms of the collective bargaining agreement, the firefighters served copies of their final written offers on each of the four items upon the arbitrator and the - 2 - State Employment Relations Boards; the city, however, proposed what it termed, a "global" settlement or package offer, as a single resolution of all of the issues presented to the arbitrator. In its brief presented to the common pleas court, the city acknowledges that the firefighters objected to the city's global approach. Further, the affidavit of Anthony J. Collova, Fire Chief of Garfield Heights, reflects that the city did in fact present two alternative positions at the arbitration. The city further acknowledges that it verbally modified its position before the arbitrator which consisted of changing its final written global offer on holidays from a two-day increase to zero additional holidays and on longevity from a fifty dollar increase to no increase. The arbitrator nonetheless permitted the city to make these changes orally at the time of the hearing despite the fact that this procedure was not part of the collective bargaining agreement and conflicted with the language of the agreement which specified written positions be served on each issue three days in advance of the hearing. These are all matters of record. The arbitrator's award on the four issues included the fire fighter's positions on salary and paramedic bonuses, and the city's modified verbal positions on longevity and duty hours/holidays. The fire fighters appealed the arbitration award on the issues of longevity and duty hours/holiday pay to the common pleas court in accordance with R.C. 2711.10 and 2711.11 - 3 - alleging the award did not conform to the final written offer submitted by the city on those issues. The city did not cross- appeal. On September 7, 1995, the common pleas court issued its opinion overruling the fire fighters' motion and dismissed the case. The fire fighters now appeal from that determination and assigned four errors for our review. Because I disagree with the majority regarding resolution of the first three assignments, I have considered them together and separately state my reasons for dissent. I. THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE ARBITRATOR MADE AN EVIDENT MATERIAL MISTAKE IN THE DESCRIPTION OF THE CONTRACT LANGUAGE. II. THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE ARBITRATOR AWARDED ON A MATTER NOT SUBMITTED TO HIM. III. THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE ARBITRATOR EXCEEDED HIS POWERS IN THAT THE AWARD DEPARTS FROM THE ESSENCE OF THE COLLECTIVE BARGAINING AGREEMENT BECAUSE THE AWARD CONFLICTS WITH THE EXPRESS TERMS OF THE AGREEMENT. The fire fighters argue that the trial court erred in not granting relief because the arbitrator exceeded the scope of his authority by permitting the city to verbally materially change the terms of its longevity and holiday final written offers at the commencement of the arbitration and then made an award based - 4 - on those change positions which resulted in an award made on matters not submitted in writing to the arbitrator and not served on SERB as required by the collective bargaining agreement. The city contends that the trial court did not err because an arbitrator is vested with the authority to interpret terms of the collective bargaining agreement and, therefore, in the proper exercise of his discretion, the arbitrator interpreted the agreement, correctly permitted the city to orally amend its offer, and selected an award based upon matters submitted to him. Thus, the issue for resolution is whether the trial court erred in overruling the motion to correct or vacate the arbitrator's award and in dismissing the case. The duty of a trial court is to review matters submitted in accordance with relevant law. Here, two statutes control that review, R.C. 2711.10 and 2711.11. R.C. 2711.10 permits a court to vacate an arbitrator's award and provides in part: In any of the following cases, the court of common pleas shall make an order vacating the award upon application of any party to the arbitration if * * * (D) The arbitrators exceed their powers, or so imperfectly execute them that a mutual, final, and definite award upon the subject matter submitted was not made. * * *. R.C. 2711.11 permits a court to modify an arbitrator's award and provides in part: - 5 - In any of the following cases, the court of common pleas in the court wherein an award was made in an arbitration proceeding shall make an order modifying or correcting the award upon the application of any party to the arbitration if: * * * (B) The arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted; * * * The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties. In this case, the powers exercised by the arbitrator originate from and are contained in the collective bargaining agreement which define the lawful scope of his authority. In State Farm Mut. Ins. Co. v. Blevins (1990), 49 Ohio St.3d 165, the Supreme Court in its syllabus stated: 1. An arbitrator's powers are set by the agreement from which he draws his authority. The arbitrator has no authority to decide issues which, under the agreement, the parties did not submit to review. Here, Sections 7 and 8 of Article VIII of the Collective Bargaining Agreement are particularly relevant. Those state in part: 7. Not later than three (3) days before the hearing, the City and the Union shall serve on the arbitrator, the opposing party and the SERB a written report summarizing the unresolved issues and other matters submitted to the arbitrator, the party's final offer on the issues and the rationale for that position. (Emphasis added.) 8. After the hearing, the arbitrator shall resolve the dispute between the parties by - 6 - selecting on an issue-by issue- basis from between either of the party's final offers, * * *. (Emphasis added.) We note here that the collective bargaining agreement does not provide for the amendment of a submitted final offer, either procedurally or substantively, orally or in writing and further does not authorize the arbitrator to permit the parties to alter, vary, or modify a submitted final offer. Rather, the agreement limits the scope of the arbitrator's authority to "selecting on an issue-by-issue basis from between either of the party's final offers. ***." Further, the Supreme Court in Ohio Office of Collective Bargaining v. Ohio Civil Service Employees Assn., Local 11, AFSCME, AFL-CIO (1991), 59 Ohio St.3d 177, 180, in considering an arbitrator's powers stated: *** we recognize his powers are not unlimited in the resolution of labor disputes, "the arbitrator is confined to the interpretation and application of the collective bargaining agreement, and although he may construe ambiguous contract language, he is without authority to disregard or modify plain and unambiguous provisions." Detroit Coil Co. v. Internatl. Assn. of Machinists & Aerospace Workers, Lodge No. 82 (C.A.6, 1979), 594 F.2d 575, 579. And finally, in Hillsboro v. Fraternal Order of Police, Ohio Labor Council, Inc. (1990), 52 Ohio St.3d 174, the court held that an arbitrator had not exceeded the scope of her authority, and stated at 177: Further, the arbitrator merely interpreted the contract rather than adding to, subtracting from, or altering the language of the contract and, - 7 - hence, she did not exceed her authority under the terms of the contract. Reasoning by analogy then, when an arbitrator adds to or subtracts from existing provisions of a collective bargaining agreement, the arbitrator has exceeded the scope of authority. The overriding issue upon review in these matters is whether a rational nexus exists between the parties' collective bargaining agreement and the award and whether the arbitrator committed flagrant procedural errors. See Cuyahoga Community College v. District 925, Serv. Emp. International (1988), 42 Ohio App.3d 166. Further, the Supreme Court stated in its syllabus in Ohio Office of Collective Bargaining v. Ohio Civil Service Employees Assn., Local 11, AFSCME, AFL-CIO (1991), 50 Ohio St.3d 177: An arbitrator's award departs from the essence of a collective bargaining agreement 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. Here, the arbitrator's decision to permit the city to substantively modify its final written offer at the hearing transcended mere contract interpretation; it materially altered the collective bargaining agreement in that it added the ability of a party to materially alter a final written position, which ability did not emanate from the collective bargaining agreement. Hence, this award departs from the essence of the agreement because the arbitrator went outside the scope of his authority to - 8 - derive it and it conflicts with the express terms of the agreement. The trial court therefore, should have found the award unlawful because it was not rendered in accordance with terms of the agreement in that it was not written, not submitted three days in advance of the hearing, not served on SERB, and was not the city's final offer. In addition, material differences existed between the city's final written offer and its modified verbal offer; thus the arbitrator did not select from the city's final written offer as he was required to do by the express terms of the agreement (see Article VIII, Sections 7 and 8) but rather selected from a modified verbal offer proposed for the first time at the arbitration hearing. This procedure was never contemplated by the collective bargaining agreement, is not productive, and only serves to have parties negotiate in bad faith, believing an eleventh hour oral modification or change of position will be sanctioned. Thus, "ambush" negotiation is encouraged by the majority's conclusion authorizing an arbitrator to act outside the terms of the collective bargaining agreement and beyond the scope of delegated authority. Accordingly, I believe the trial court erred in failing to vacate or modify the award of the arbitrator in accordance with mandatory language of R.C. 2711.10 and 2711.11 and also erred in dismissing this case. That judgment should be reversed and this cause should be remanded to the trial court with instructions to vacate the arbitrator's longevity and duty hours/holiday awards - 9 - based on the city's verbal offers and to modify the award pursuant to R.C. 2711.11 based upon the final written offers .