COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72482 FRATERNAL ORDER OF POLICE LODGE : NO. 8 : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION THE CITY OF CLEVELAND : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION APRIL 9, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE # CV-307599 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ------------------------ APPEARANCES: For Plaintiff-Appellant: ROBERT M. PHILLIPS (#0033079) WILLIAM M. MENZALORA (#0061136) THE PHILLIPS LEGAL GROUP 1040 Illuminating Building Cleveland, OH 44113-1904 Defendant-Appellee: FRANK W. BUCK (#0017864) JON M. DILENO (#0040836) DUVIN, CAHN & HUTTON Erieview Tower, 20th Floor 1301 East Ninth Street Cleveland, Ohio 44114-1886 SPELLACY, J.: Plaintiff-appellant, Fraternal Order of Police, Cleveland, Lodge No. 8 ( appellant ), appeals the trial court's judgment -2- denying its motion for summary judgment and granting defendant- appellee's, City of Cleveland ( appellee ), motion for summary judgment. Appellant assigns the following two errors for our review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS THE ARBITRATION AWARD AT ISSUE HAD TO BE VACATED BECAUSE ARBITRATOR IPAVEC CONSIDERED AND/OR RELIED UPON PARITY, A FACTOR THAT INHERENTLY CONTRAVENES O.R.C. 4117.01, et seq., THE PUBLIC EMPLOYEES COLLECTIVE BARGAINING ACT, IN RENDERING HIS ARBITRATION AWARD. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS THE ARBITRATION AWARD AT ISSUE HAD TO BE MODIFIED BECAUSE ARBITRATOR IPAVEC CONSIDERED AND/OR RELIED UPON PARITY, A FACTOR THAT INHERENTLY CONTRAVENES O.R.C. 4117.01, et seq., THE PUBLIC EMPLOYEES COLLECTIVE BARGAINING ACT, IN RENDERING HIS ARBITRATION AWARD. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On March 9, 1995, appellant and appellee entered into formal negotiations over a successor selective bargaining agreement. As a result, all but two issues, wages and health care benefits, were resolved. Pursuant to the terms of the Collective Bargaining Agreement, the parties agreed to submit the unresolved issues to binding arbitration. Appellant and appellee submitted a proposal on each issue to Arbitrator Ipavec. On February 1, 1996, the arbitrator issued his decision and -3- award which stated: The arbitrator finds that the final offer proposal of the City on the issue of salary increases and on the issue of employee contributionsfor health care benefits, is the more realistic, taking into consideration the financial condition of the City and the increased cost to the City which the Union's proposal would trigger for the other unionized and non-unionized employees of the City; provided that this Bargaining Unit must be given any direct or indirect benefit, given to any other bargaining unit, in keeping with the concept of parity, and to maintain equivalence, all as set forth in the decision herein. On April 26, 1996, appellant filed a complaint to vacate or modify arbitration award in the Cuyahoga County Court of Common Pleas pursuant to R.C. 2711.16. Count I of appellant's complaint alleged that the arbitrator's award should be vacated and set aside pursuant to R.C. 2711.10(D) because the award did not draw its essence from the Collective Bargaining Agreement. Count II of appellant's complaint alleged the arbitrator's award should be modified because Arbitrator Ipavec determined matters not submitted to him. On September 10, 1996, both appellant and appellee filed cross-motions for summary judgment. On September 30, 1996, appellee filed its brief in opposition to appellant's motion for summary judgment and appellant filed its brief in opposition to appellee's motion for summary judgment. On April 16, 1997, the trial court granted appellee's motion for summary judgment and denied appellant's motion for summary judgment. II. -4- For purposes of this appeal, appellant's two assignments of error will be addressed together. Appellant argues that the trial court improperly confirmed the arbitrator's award because the award was conditioned solely on the concept of parity. Thus, appellant maintains, summary judgment was improperly granted in favor of appellee. The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Lovsin, et al. v. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Relying on R.C. 2711.10(D), appellant first contends that the arbitrator's award should be vacated because the arbitrator failed to take into consideration any of the six factors enumerated in Article XXI, IMPASSE ARBITRATION, of the parties' Collective Bargaining Agreement. In the alternative, appellant argues because the award itself is unlawful, this court should modify the arbitration award pursuant to R.C. 2711.11. Initially, we are called upon to determine whether the record before us supports the trial court's conclusion that the arbitrator -5- did not rely on the concept of parity to the exclusion of all other considerations in determining the arbitration award. The Ohio Supreme Court has placed certain restrictions on a reviewing court's authority to vacate an arbitrator's award pursuant to R.C. 2711.10(D) because the integrity and purpose of the arbitration system of dispute resolution would be seriously undermined in the absence of such restrictions. Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, 131. Given the presumed validity of an arbitrator's award, a reviewing court's inquiry into whether the arbitrator exceeded his authority within the meaning of R.C. 2711.10(D) is limited. Findlay, supra.The reviewing court must look to whether the arbitrator's award draws its essence from the collective bargaining agreement and is not unlawful, arbitrary or capricious. Id. If the award is determined to draw its essence from the collective bargaining agreement, then the reviewing court's inquiry, for purposes of vacating an arbitrator's award pursuant to R.C. 2711.10(D), is at an end. Id.; Cleveland Police Patrolmen's Assn. v. Cleveland (1990), 70 Ohio App.3d 157. R.C. 2711.10 states in pertinent part that: * * * 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. -6- In the present case, appellant maintains the arbitrator exceeded his authority by conditioning the arbitration award solely on the concept of parity. A review of the record, however, reveals that the arbitrator did, in fact, take into consideration other factors before making his determination. In particular, the record reveals that the arbitrator took into consideration factors enumerated in the parties' Collective Bargaining Agreement, Article XXI, IMPASSE ARBITRATION, in making his final award determination. These factors include: 1. Past collectively bargained agreements, if any, between the parties; 2. Comparison of the issues submitted to final offer settlement relative to the members in the bargaining unit involved with those issues related to other public and private members doing comparable work, giving consideration to factors peculiar to the area and classification involved; 3. The interest and welfare of the public, the ability of the public employer to finance and administer the issues proposed, and the effect of adjustments on the normal standard of public service; 4. The lawful authority of the public employer; 5. The stipulations of the parties; 6. Such other factors, not confined to those listed in this section, which are normally or traditionally taken into considerationin the determination of the issues submitted to final offer settlement through voluntary collective bargaining, mediation, fact-finding, or other impasse resolution procedures in the public service or in private employment. -7- A review of the judgment entry of arbitration supports the trial court's conclusion that the arbitrator took into consideration several different factors in making his award determination. Moreover, the arbitration award itself states that parity alone should not be the basis for the imposition of all contract terms, upon a bargaining unit, that was conducting its own collective bargaining negotiations with the City. Furthermore, the arbitrator's award evidences that the arbitrator took into consideration appellee's financial condition, as well as the fact that the increased cost to appellee would not be limited to appellant, but the cost would also increase for members of other bargaining units within the City. Past collective bargaining agreements between the parties were also taken into consideration. In spite of appellant's arguments to the contrary, the record in the present case demonstrates there was a rational nexus between the parties' Collective Bargaining Agreement and the arbitrator's award. This determination having been made, judicial review is properly at an end. See Findlay, supra. Appellant failed to provide evidence that any ground existed to either vacate or modify the award in this case. Therefore, the trial court did not err in granting appellee's summary judgment motion. Accordingly, appellant's assignments of error are overruled. Judgment affirmed. -8- It is ordered that appellees recover of appellants their 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. DIANE KARPINSKI, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .