COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71148 OLMSTED FALLS BOARD OF : EDUCATION : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION OHIO ASSOCIATION OF PUBLIC : SCHOOL EMPLOYEES : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 17, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-305657 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: William J. Evans, Esq. George R. Rice, Esq. Susan C. Hastings, Esq. 6805 Oak Creek Drive Squire, Sanders & Dempsey Columbus, Ohio 43229 4900 Society Center 127 Public Square Cleveland, Ohio 44114-1304 -2- ROCCO, J.: Appellant the Ohio Association of Public School Employees appeals from an order of the trial court granting Appellee Olmsted Falls Board of Education's Motion to Vacate Arbitration Award. As the trial court exceeded its limited scope of review, we reverse. Appellant is the exclusive bargaining representative for certain non-teaching school employees of the appellee. Appellant and appellee were parties to a Collective Bargaining Agreement (hereinafter the CBA) which governed the initial dispute giving rise to this appeal. On October 1, 1994, appellee posted a position for a part- time cleaning position at the District Middle School. The position involved cleaning restrooms and the cafeteria between the hours of 11:00 a.m. and 2:00 p.m. daily. Three applicants for the position, including Pansy Daniels and Gayle Smith, were already employed by appellee, three were employed elsewhere. Appellee interviewed and reviewed the qualifications of all candidates. Ultimately, the position was offered to Gayle Smith, in spite of the fact that Pansy Daniels had more seniority. Pansy Daniels subsequently filed a grievance regarding the hiring decision. On November 6, 1995, Arbitrator Benjamin Wolkinson heard the matter. Daniels and the Union President testified for appellant, William Shannon, the Administrative Assistant for the Middle School, testified for appellee. The parties stipulated that the sole issue to be determined by the arbitration hearing would be whether appellee violated Article -3- 17, Section 3 of the CBA by selecting a candidate other than Daniels. This section provides: Qualifications and seniority shall be the relevant factors in filling an opening; with qualifications being given emphasis. Qualifications shall be determined by the Administration and shall be listed in the job posting. All bargaining unit applicants will be granted an interview. Where applicants are determined by the Administration to be equal in qualifications, seniority shall prevail. Applicants within the classification of the posted position shall be given priority in accordance with this Article. Applicants shall be notified as to whether or not they have been hired for the position. The Board and Administration reserve the management right to select the best applicant. The arbitrator noted that Article 17, Section 3 is known as a "relative ability provision." (Arbitrator's Opinion and Award, issued January 15, 1996 (hereinafter arb. award) p. 4). He also acknowledged that seniority will only be a determining factor "if a person's ability and qualifications are substantially the same." (arb. award p. 4). Further, in order to disregard seniority as a determining factor, "it is generally well accepted in arbitration that there must be evidence of real or material differences in the ability of the junior vis-a-vis the senior employee." (arb. award p. 5). The arbitrator next reviewed the factors upon which Shannon, who made the selection for the position, relied. Those factors were attendance records, supervisory evaluations and the comments from a chief custodian who had supervised both applicants Smith and Daniels, and personal interviews. (arb. award p. 6). The arbitrator first referred to the personal interviews. Shannon -4- documented the candidates' responses in a memo dated November 7, 1994 which was a part of the record before the arbitrator. Shannon's first question was: "Why do you choose to apply for the three hour cleaning position?" Daniels responded: "I want the position because I need the medical benefits." Smith responded: "I like working with children and I see that I could help keep an eye on the rest rooms so they are not trashed during the lunch hours and just the presence of an adult would make a lot of difference." The second question was: "What pluses do you see in this three-hour cleaning position?" Daniels responded: "The benefit that I see most is the fact that the Board would pay 90% of my major medical Blue Cross/Blue Shield insurance." Smith responded: I really enjoy working with kids and I really like listening to them and hearing what they have to say and all that goes with that." The third question Shannon asked was: "What qualities do you see that you possess that you could bring to this new position?" Daniels responded: "I can bring experience and a good work record." Smith responded: "I bring a good work record. I have been rewarded for perfect attendance the last two years through the Master Agreement with the incentive for pay and I want to serve the school district." While the arbitrator acknowledged that getting along well with students is an important qualification for the position, he concluded that the questions and answers did not adequately determine which of the candidates actually had the greater ability to work with students. (arb. award p. 9). The arbitrator next reviewed the attendance factor. He noted that Shannon remembered Smith had not been absent, but could not -5- remember the number of days Daniels had not been at work. The arbitrator noted that Shannon failed to submit documentation or other objective evidence to justify selecting Smith for the position on this basis. (arb. award p. 10). Shannon also reviewed written evaluations of each of the candidates. At the arbitration, however, he submitted composite evaluations which he created after he reviewed the written evaluations and added his own assessment. (arb. award p. 11). The arbitrator found these composite reports to be hearsay, and insufficient to determine the superiority of one candidate over another as there was neither direct evidence nor testimony from the supervisors who wrote the evaluations. (arb. award p. 11-12). The arbitrator also found that Shannon's additional appraisal was insufficient as Shannon did not supervise the candidates on a daily basis. He concluded that Shannon had not been able to "thoroughly and objectively apply the numerous performance criteria incorporated in the appraisal reports." (arb. award p. 13). The arbitrator concluded that: [h]ere the arbitrator must find that the employer has failed to provide such evidence of material and significant differences in the abilities of Ms. Smith and Ms. Daniels. As a result, the arbitrator must conclude that in bypassing Ms. Daniels, the senior employee, the employer's determination was arbitrary and in breach of Ms. Daniels's rights under Article 17 of the collective bargaining agreement. (arb. award p. 14). Appellee subsequently filed a Motion to Vacate the arbitration award in the court of common pleas. Appellant filed an application to reduce arbitration Award to -6- Judgment/Confirmation of Arbitration Award. The common pleas court granted appellee's motion. Appellant timely appeals to this court. ASSIGNMENTS OF ERROR Appellant's first assignment of error states: THE TRIAL COURT ERRED BY GRANTING APPELLEE BOARD OF EDUCATION'S MOTION TO VACATE ARBITRATION AWARD WHERE THERE WAS NO STATUTORILY MANDATED BASIS TO ORDER VACATION OF THE AWARD As an initial matter, appellee argues that appellant's arguments should not be considered by this court as they have been waived. Where an issue presented for appeal was not briefed and argued below, the issue is waived for purposes of consideration of an appeal. Thompson v. Preferred Risk Mut. Ins. Co. (1987) 32 Ohio St.3d 340, 342. In the court below, in opposition to appellee's motion to vacate judgment, appellant responded only that the motion was "without merit and should be dismissed." However, appellant's statement esentially raised the issue below that the arbitration award should not be vacated and sought to have the award reduced to judgment pursuant to R.C. 2711.09. Thus, no new issue is actually brought before this court. This appeal is governed by R.C. 2711.10(D), which provides, in pertinent part: 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. -7- The arbitrator's award is presumed valid "because the integrity and purposes of the arbitration system of dispute resolution would be seriously undermined in the absence of such restrictions." Findlay School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129 . "The only way to give effect to the purposes of the arbitration system of conflict resolution is to give lasting effect to the decisions rendered by an arbitrator whenever that is possible." Hillsboro v. Fraternal Order of Police, Ohio Labor Council, Inc. (1990), 52 Ohio St.3d 174, 176. Due to this presumption of validity, the reviewing court's inquiry pursuant to R.C. 2711.10 is limited. Findlay School Dist. Bd. of Edn. v. Findlay Edn. Assn., supra at 132. The reviewing court first determines whether the arbitration award draws its essence from the collective bargaining agreement. An arbitrator's award draws its essence from the collective bargaining agreement where there is a rational nexus between the agreement and the award. Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St.3d 80, 84. The court next establishes that the award was not unlawful, arbitrary or capricious. Id. Once the court determines the award draws its essence from the collective bargaining agreement and is not unlawful, arbitrary or capricious, the reviewing court's inquiry, pursuant to R.C. 2711.10(D), is at an end. Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn., supra. This limitation on the scope of review applies to all courts, including -8- the common pleas court that acts as a reviewing court and not a court of original jurisdiction. Cleveland Police Patrolmen's Assn. 1 v. Cleveland (1994), 99 Ohio App.3d 63, 66. Initially, this court notes that the parties submitted the matter to arbitration pursuant to the collective bargaining agreement. Article 16, Section 4 of the CBA outlines the grievance procedure which ultimately submits the grievance to an arbitrator selected by the parties. The CBA provides that "[t]he arbitrator's decision shall be binding on the parties." When contracting parties agree to submit a prospective controversy to binding arbitration, they must accept the result, even if its is legally and factually wrong. Goodyear Tire & Rubber Co. v. Local Union 200, (1984), 20 Ohio App.3d 249. A review of the record indicates the arbitrator's award did draw its essence from the collective bargaining agreement. The arbitrator's opinion and award clearly demonstrated that he applied Article 17, Section 3 to the testimony and evidence that had been presented to him. Further, there was no evidence to indicate the arbitrator's award was unlawful, arbitrary or capricious. See Findlay City School District Bd. of Edn. v. Findlay Edn. Assn., supra. 1 This court is mindful of the fact that appellate review of arbitration proceedings is confined to the order issued by the common pleas court pursuant to R.C. Chapter 2711; and that the substantive merits of the award are not reviewable on appeal absent evidence of material mistake or extensive impropriety. Lynch v. Halcomb (1984), 16 Ohio App.3d 223; See, also, Lockhart v. American Res. Ins. Co. (1981), 2 Ohio App.3d 99, paragraph 3 of the syllabus. -9- After reviewing the evidence that was presented to the arbitrator, this court may have reached a different conclusion than that reached by the arbitrator. However, neither this court nor the trial court may substitute its judgment for that of the arbitrator. As the record indicates the arbitrator's award drew its essence from the collective bargaining agreement, and was not illegal, arbitrary or capricious, the trial court, by vacating the arbitration award, evidently substituted its judgment for that of the arbitrator. Thus, it clearly exceeded the scope of authority granted to it by R.C. 2711.10. Police Patrolmen's Assn. v. Cleveland (1995), 107 Ohio App.3d 248, 257; citing Goodyear Tire & Rubber Co. v. Local Union 200, supra. Appellant's first assignment of error is well taken. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT OAPSE'S APPLICATION TO REDUCE ARBITRATION AWARD TO JUDGMENT/ CONFIRMATION OF ARBITRATION AWARD Appellant's second assignment of error contends that the trial court erred by failing to reduce the arbitrator's award to judgment. The award provides: The grievance is sustained. The arbitrator directs the school board to immediately award the position of cleaner in the middle school to Pansy Daniels, and to provide her with back pay for her lost wages retroactive to the date the position was filled by Ms. Smith. In accordance with Article 16, Section 4D, the arbitrator's fee and expenses are assessed upon the Employer. In an arbitration, the power to award a remedy usually accompanies the power to consider whether a bargaining agreement violation has occurred. If it did not, some of the major benefits of arbitration -10- would be undermined. Queen City Lodge No. 69, Fraternal Order of Police, Hamilton Cty., Ohio, Inc. v. Cincinnati (1992), 63 Ohio St.3d 403, 407. Once an award is made, only when the arbitrator has overstepped the bounds of his or her authority will a reviewing court vacate or modify an award. Id. There is no evidence to indicate the arbitrator overstepped his authority when fashioning the remedy. Appellant's second assignment of error is also well-taken. The order of the trial court is reversed and remanded for action consistent with this opinion. -11- It is ordered that appellant recover of appellee 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. ANN DYKE, P.J, AND LEO SPELLACY, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .