Montgomery Cty. Bd. of Trustees v. Fraternal Order of Police, Ohio Labor Council, Inc.

[Cite as Montgomery Cty. Bd. of Trustees v. Fraternal Order of Police, Ohio Labor Council, Inc., 2021-Ohio-

2052.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

BOARD OF TRUSTEES, MIAMI :

TOWNSHIP, MONTGOMERY :

COUNTY, OHIO : Appellate Case No. 28996

:

Plaintiffs-Appellants : Trial Court Case No. 2020-CV-2839

:

v. : (Civil Appeal from

: Common Pleas Court)

FRATERNAL ORDER OF POLICE, :

OHIO LABOR COUNCIL, INC., et al. :

Defendants-Appellees

...........

OPINION

Rendered on the 18th day of June, 2021.

...........

W. JOSEPH SCHOLLER, III, Atty. Reg. No. 0072764, ALEXANDER L. EWING, Atty.

Reg. No. 0083934 and CHARLES B. GALVIN, Atty. Reg. No. 0091138, 9277 Centre Point

Drive, Suite 300, West Chester, Ohio 45069

Attorneys for Plaintiffs-Appellants

STEPHEN S. LAZARUS, Atty. Reg. No. 0041368 and ALEXANDER N. BECK, Atty. Reg.

No. 0097008, 30 Garfield Place, Suite 915, Cincinnati, Ohio 45202

Attorneys for Defendants-Appellees

.............

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TUCKER, P.J.

{¶ 1} Plaintiff-appellant Miami Township Board of Trustees (“the Board”) appeals

from a judgment of the Montgomery County Court of Common Pleas, which denied its

application to vacate an arbitrator's decision that reversed the employment termination

imposed by the Board upon Douglas Hesler. The Board challenges the court's finding

that the arbitrator did not exceed her authority under the terms of the collective bargaining

agreement (CBA) executed by and between the Board and the police union. The Board

also asserts that the arbitrator’s order to reinstate Hesler violated public policy.

{¶ 2} Because we conclude that the arbitrator did not exceed her authority, we

must conclude that the trial court did not err in denying the application to vacate. We

further conclude the arbitrator's award did not violate public policy. Accordingly, the

judgment of the common pleas court is affirmed.

I. Facts and Procedural Background

{¶ 3} Hesler was hired as a police officer by the Miami Township Police

Department in 2007.1 On March 8, 2018, Hesler and another officer, Scott Miller, were

summoned to a meeting with Captain John Magill. Magill informed the officers that they

were the subject of an internal investigation and that they were entitled to union

1 The facts relevant to this appeal are gleaned from the exhibits attached to the Board’s

application to vacate the arbitration award filed with the common pleas court on July 22,

2020. Those exhibits include the transcript of the arbitration hearing that is the subject

of this appeal and, because this case involved matters which occurred during a prior

arbitration involving Hesler, a transcript of that prior arbitration hearing and evidentiary

documents relevant thereto were also attached to the application. These transcripts and

evidentiary documents will be referred to by the exhibit numbers set forth in the

application.

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representation during the meeting. Hesler and Miller indicated they would represent one

another in their official capacities as Vice-President and President, respectively, of the

police union. As a result of that investigation, Hesler received a five-day suspension,

which he appealed. The matter proceeded to arbitration. An arbitration hearing was

conducted on February 13, 2019, following which the arbitrator affirmed the suspension.

{¶ 4} Of relevance to this appeal, during that February 2019 arbitration hearing,

counsel for Hesler questioned Magill on cross-examination regarding an alleged

statement made by Magill to Hesler. When Magill denied making the statement, counsel

asked, “[w]ould you be surprised if we have it on a recording if you heard yourself say

that?” Exh. D-9, p. 80. Magill replied by indicating such a recording would violate

departmental policy.

{¶ 5} The recording policy to which Magill referred was set forth in Special Order

Number 15-02, entitled “Workplace Recording Policy” (“the Recording Policy”), which

provides in pertinent part as follows:

No employee or member of the Police Department for Miami Township,

Ohio may record or attempt to record a conversation of any other employee

or member of this department without the express knowledge and consent

of all parties involved in the conversation.

***

This policy is not intended and should not be interpreted to interfere with the

rights of employees to engage in any concerted activity that is protected

under the National Labor Relations Act, or any other applicable laws or

regulations.

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{¶ 6} The day after that arbitration hearing, on February 14, 2019, Magill

summoned Hesler to his office for an “informal meeting.” Exh. C, p. 34. However, when

Magill arrived for the meeting, Sergeant Julie Fiebig and Captain Charlie Stiegelmeyer

were also present in Magill’s office. Magill asked Hesler whether he had made a

recording of the March 8, 2018 meeting. According to Magill, Hesler replied, “yes, I do,

or yes, I did, I made an audio recording, I can’t find them.” Exh. C, p. 35. Magill then

told Hesler to “stop” and told him to leave the office. Magill also told Hesler he had made

an “error” if he had made a recording. Id. at p. 36. Magill indicated that he ended the

meeting because there were “contractual guarantees and processes that we need to

invoke and enact before we conduct internal investigations.” Id.

{¶ 7} Magill immediately obtained permission to proceed with an internal

investigation of the matter, and within 45 minutes of the “informal meeting,” he summoned

Hesler back to his office. Fiebig was still present at that time, and Hesler was provided

written notice of the investigation. Hesler admitted that he had tried to make a recording,

but he had later discovered that his recording device did not capture the conversations

during that meeting.

{¶ 8} Because he believed that Hesler’s statements during the first and second

meetings were inconsistent and that Hesler was being untruthful, Magill recommended

termination of Hesler’s employment. A pre-disciplinary notice was provided to Hesler,

and a pre-disciplinary conference was conducted on May 6, 2019. Hesler had union

representation during the conference. Following the conference, the hearing officer

concluded Hesler had violated the Recording Policy. The hearing officer also found a

violation of General Order 1.2.10 Core Values and General Order 26.1.1 of the Code of

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Conduct, both of which relate to honesty and truthfulness. Hesler’s employment was

terminated on May 20, 2019.

{¶ 9} Hesler appealed the termination in accordance with the terms of the

collective bargaining agreement executed between the Board and the Miami Township

Police Union, and the matter proceeded to arbitration. An arbitration hearing was

conducted on November 13, 2019, at which the Board argued that Hesler’s prior

disciplinary history and the violation of the Recording Policy, coupled with Hesler’s

dishonesty when questioned about the recording, constituted just cause for termination.2

The Union argued that Hesler was terminated without just cause and that there were

procedural violations associated with the termination. The Union asked that Hesler be

reinstated and made whole.

{¶ 10} Testimony adduced during the 2019 arbitration hearing included Magill’s

above-cited testimony setting forth the two meetings he had with Hesler on February 14,

2019. Magill also testified that Hesler admitted he knew it was a violation of policy to

make the recording. A memo executed by Magill to memorialize the incident was

introduced into the arbitration record. In that memo, Magill indicated that when he later

summoned Hesler back to his office to continue the investigation into the recording,

Hesler stated he had set his cell phone to record the March 8 meeting but “after the

meeting he found that there was no recording or he could not find the recording on his

phone.” Exh. D-11.

{¶ 11} Stiegelmeyer testified that he was present when Magill first summoned

2

In addition to the 5-day suspension in 2018, Hesler was suspended in 2016 for one and

one-half days.

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Hesler to his office regarding the recording issue. According to Stiegelmeyer, when

Magill asked him if he had recorded the March meeting, Hesler responded affirmatively

and also indicated he did not know where “they” were. Exh. C, p. 69. Hesler also

admitted he was aware the recording violated department policy. According to a memo

prepared by Stiegelmeyer regarding the incident and introduced during the hearing,

Hesler stated he did not know “where he put the recordings.” Exh. D-26. Stiegelmeyer

noted Magill stopped the interview at that point.

{¶ 12} A memo executed by Fiebig was also introduced into the hearing. It

indicated that Hesler, when asked about the recording, stated, “yes there are recordings

but I don’t have them.” Exh. D-12. The memo further noted that when Hesler returned

to Magill’s office, he stated he had set his cell phone to record, but it did not work properly.

Id.

{¶ 13} During his testimony, Hesler did not dispute that he attempted to record the

March 8, 2018 meeting. However, Hesler testified that he was not only representing

Miller during that meeting but was also appearing on behalf of other union members who

had complaints regarding a supervisor. He claimed his representation of the other

officers constituted concerted activity because it was an investigatory meeting. Hesler

testified that when he was called into Magill’s office and was asked about the existence

of a recording, he admitted that he had tried to record the meeting. He testified that

Magill then became angry and told him to leave the office. Hesler testified that he knew

his phone had failed to make a recording, but before he could explain, Magill ended the

meeting and Hesler’s attempt to explain was “cut off.” Exh. C, p. 116.

{¶ 14} Following the hearing, the arbitrator determined that the Board lacked just

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cause to terminate Hesler’s employment and ordered that he be reinstated with full

benefits. In doing so, the arbitrator found Hesler’s conduct was protected by the

exception clause contained within the Recording Policy. In her decision, the arbitrator

stated:

[Hesler] contended that he believed recording the meeting was not a

violation as he was engaged in concerted activity protected by the National

Labor Relations Act (NLRA). The Union argues in its post hearing brief

* * * that the Workplace Recording Policy specifically exempts Union Activity

from its prohibition on workplace recordings. Further, since [Hesler]

attempted to make the recording while acting in his Union capacity, it was

concerted activity and thus permissible under the express terms of the

policy.

The Employer argues * * * that the NLRA does not apply to this

Employer because it “expressly” does not apply to state and local

governmental employers (29 U.S.C Sec 152(2)). Additionally, the

Employer contends that the reference to “other applicable laws and

regulations” cannot be cause to read into the Workplace Recording Policy

a right of police officers to create unauthorized workplace recordings.

Further, that the State Employment Relations Board (SERB) is the

governing body pursuant to Ohio Revised Code 4117, the prevailing statute,

and that SERB has not found this right to exist.

It is not known if discussions occurred between the Union and the

Employer regarding the Workplace Recording Policy, and if so, if there was

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any meeting of the minds between the parties on the language ultimately

included within the policy, although it appears that the Grievant had been

involved in the development of the policy. Additionally, the arbitrator is not

aware of any training of the employees on this policy, and particularly the

provision of the policy in question here. However, it is evident to this

arbitrator, that there appears to be confusion, on both sides, about the

intent, meaning, and/or application of [the exception clause set forth in] the

Workplace Recording Policy.

This arbitrator does find it beyond the pale that managers engaged

in drafting a policy in the public sector would not be aware that SERB, not

the NLRB, would have jurisdiction with regard to the lawful conduct of

employees engaged in concerted activity; particularly in the year 2016,

when the policy was adopted, as by that time, Ohio’s collective bargaining

law (ORC 4117) had been in effect for thirty-two years.

Why “National Labor Relations Act” verbiage was included in the

policy was not explained through evidence or testimony. However, it has

been common practice for SERB to look to established NLRB case law for

guidance, as far back as the enactment of ORC 4117 in 1984. The

National Labor Relations Board (NLRB) has a long history of upholding an

employee’s right to record meetings, overtly or covertly, where those

employees are deemed to be engaged in concerted activity pursuant to

NLRA Sections 7 and 8(a)(1) and thus, protected.

Of critical importance is the fact that the end phrase contained in the

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language of [the exclusion provision], “or any other applicable laws or

regulations” has been ignored in this case, and it cannot be. It is the

opinion of this Arbitrator that the phrase would automatically encompass

ORC 4117 as an “applicable law.” Therefore, the public employee rights

set forth under ORC 4117.03 would be applicable in this instance.

Specifically, section (A)(2):

(A) Public employees have the right to:

***

(2) Engage in concerted activities for the purpose of collective

bargaining or other mutual aid and protection.

The Employer’s argument that SERB has not rendered a specific

ruling that “workplace recording policies are inherently violative of a police

officer’s Chapter 4117 rights” cannot be construed to negate the clear

language of ORC 4117.03.

The NLRB and the U.S. Supreme Court (NLRB v. J. Weingarten,

Inc., 420 U.S. 251 (1975), 73-1363, SCOTUS) and SERB (Davenport,

SERB 95-023, (12-29-95)), have all held that employees have a right to

engage in concerted activities for mutual aid and protection and have the

right to union representation at investigatory interviews. In Davenport,

SERB held as follows:

We believe that Weingarten provides the proper balance between

the public employer’s need to manage and the public employees’

rights in O.R.C. Section 4117.03(A)(2) to engage in concerted

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activities for mutual aid and protection. Therefore, we

specifically find that, upon an employee’s request, representation

by an employee organization is required at investigatory

interviews which the employee reasonably believes could lead to

discipline (the Weingarten standard) and at grievance meetings.

One can only surmise that the reference to the National Labor Relations Act

in the policy may have been an effort to address “Weingarten” rights.

***

In this arbitration case, it is clear from both [Hesler’s] testimony and

the testimony of Magill, that [Hesler] was not only the subject of an internal

investigation, but was in fact engaged in protected concerted activity at the

investigatory meeting of March 8, 2018. [Hesler] testified that he and

Officer Scott Miller, President of the Union, were not only engaged in

concerted activity on behalf of each other, but he believed he was also there

in an effort to provide mutual aid and protection for a group of employees

who had a problem with a particular supervisor. Whether any other group

of employees were at issue is irrelevant, as in their respective positions with

the Union, President and Vice President, if it was the two of them being

investigated, it stands to reason that they would have been representing

each other and thereby engaged in protected concerted activity.

Magill was clear in his testimony that the March 8, 2018 meeting was

an internal complaint investigation and that Officer Hesler and Officer Miller

were representing each other.

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Clearly, the March 8, 2018 meeting was an “investigatory” meeting,

[Hesler] and the Union President were the subjects of the investigation;

therefore, it was reasonable to believe disciplinary action could result and

each was entitled to Union representation, which is a protected activity.

It should be abundantly clear to any reasonable person that the

caveat contained in the Workplace Recording Policy would have no reason

to be there other than to provide an exception in order to protect an

employee or the union in the event they feel a need to record a meeting

while engaging in concerted activity. The exception being clearly stated

as: “This policy is not intended and should not be interpreted to interfere

with the rights of employers to engage in any concerted activity that is

protected under. . . any other applicable laws or regulations.”

This arbitrator finds that [Hesler] was, in fact, engaged in concerted,

protected activity as the meeting of March 8, 2018, and that his attempted

recording was therefore not a violation of the Employer’s Special Order 15-

02 (Workplace Recording Policy).

(Emphasis sic.) Exh. A.

{¶ 15} The Board filed an application to vacate the arbitrator's award with the

Montgomery County Court of Common Pleas. The Union filed a motion to confirm the

award. After a hearing on the issue, the common pleas court found the arbitrator's award

was appropriate and denied the application to vacate. This appeal follows.

II. Scope of Review

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{¶ 16} This court has previously discussed the narrow scope of review of

arbitration matters in Wright State Univ. v. Fraternal Order of Police, 2d Dist. Greene No.

2016-CA-35, 2017-Ohio-854, wherein we stated:

“Public policy favors arbitration.” Cincinnati v. Queen City Lodge

No. 69, Fraternal Order of Police, 164 Ohio App.3d 408, 2005-Ohio-6225,

842 N.E.2d 588, ¶ 14 (1st Dist.), quoting Southwest Ohio Regional Transit

Auth. v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108, 742

N.E.2d 630 (2001). “Arbitration ‘provides the parties with a relatively

speedy and inexpensive method of conflict resolution and has the additional

advantage of unburdening crowded court dockets.’ ” Cleveland v. Cleveland

Police Patrolmen's Assn., 2016-Ohio-702, 47 N.E.3d 904, ¶ 21 (8th Dist.),

* * *, quoting Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v.

Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 83, 488 N.E.2d 872

(1986).

“Judicial review of arbitration awards is limited in order to encourage

parties to resolve their disputes in arbitration.” Piqua v. Fraternal Order of

Police, 185 Ohio App.3d 496, 2009-Ohio-6591, 924 N.E.2d 876, ¶ 16 (2d

Dist.). The vacation of an arbitrator's award is permitted when the court

finds that one of the conditions set forth in R.C. 2711.10 exists. Id. at ¶ 19.

Pursuant to R.C. 2711.10(D), the court of common pleas may vacate an

award if it finds that the arbitrator exceeded his or her powers. In order to

determine whether an arbitrator has exceeded his or her authority, a court

must look to whether the award “draws its essence” from the CBA. Queen

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City Lodge No. 69, Fraternal Order of Police, 164 Ohio App.3d 408, 2005-

Ohio-6225, 842 N.E.2d 588, ¶ 17 (1st Dist.). An award satisfies this

requirement when there is a rational nexus between the CBA and the

award. Id. at ¶ 18.

Further, “[t]he comments to R.C. 2711.10, the statute governing

judicial vacation [of arbitration awards,] explain, [that] ‘[t]he arbitrators are

the sole judges of the law and of the evidence[,] and no vacation of an award

will be had because of their misconstruction of the facts or of the law.”

Piqua v. Fraternal Order of Police, 185 Ohio App.3d 496, 2009-Ohio-6591,

924 N.E.2d 876, ¶ 18 (2d Dist.). “It is because arbitration is a creature of

private contract that courts must ignore errors of fact or law.” Id.

“Critically then, in reviewing an arbitrator's award, the court must distinguish

between an arbitrator's act in excess of his powers and an error merely in

the way the arbitrator executed his powers. The former is grounds to

vacate; the latter is not.” Id.

Wright State at ¶ 11-13.

III. Analysis

{¶ 17} The sole assignment of error asserted by the Board states:

THE TRIAL COURT ERRED BY CONFIRMING AND REFUSING TO

VACATE THE ARBITRATION AWARD.

{¶ 18} The Board asserts that the common pleas court erred by denying its request

to vacate the arbitration award.

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{¶ 19} The Board first claims the arbitrator exceeded her authority because her

award did not draw its essence from the CBA. Specifically, the Board claims the

arbitrator deviated from her sole duty to determine whether Hesler was terminated for just

cause by focusing “nearly entirely on whether Ohio law protected Hesler’s conduct as

concerted activity, which is not settled law in Ohio.”

{¶ 20} We find this argument somewhat disingenuous. In order to make a

determination of whether Hesler was terminated for just cause, the arbitrator first had to

determine whether he actually violated the Recording Policy. The language of the

Recording Policy indicates the parties did not intend to create a blanket prohibition barring

all recordings and that they anticipated the necessity of exceptions to the prohibition.

Thus, the express language of the Recording Policy made it necessary for the arbitrator

to determine whether the NLRA or “any other applicable law” would mandate an exception

to the prohibition on recording in the workplace.

{¶ 21} Based upon the Recording Policy language, the arbitrator looked to R.C.

Chapter 4117, which governs public sector collective bargaining in Ohio. She

specifically noted that R.C. 4117.03, which governs the rights of public employees,

provides that in addition to forming, joining, assisting and participating in any employee

organization of their own choosing, public employees also have the right to “[e]ngage in

other concerted activities for the purpose of collective bargaining or other mutual aid and

protection[.]” R.C. 4117.03(A)(1) and (2). The arbitrator also noted that R.C. Chapter

4117 does not explicitly permit recordings of concerted activity. Further, neither the Ohio

courts nor SERB have set forth any guidance on whether recording concerted activity is

permitted.

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{¶ 22} However, the arbitrator correctly noted that precedent established by the

NLRB, while not binding upon actions involving public employees in Ohio, does serve to

provide guidance in the interpretation of comparable statutory provisions. Further, the

NLRA, which contains language similar to R.C. 4117.03, has been held to protect the

right to record when an employee is engaged in concerted activity or is acting in concert

for their mutual aid and protection.3 See Whole Foods Mkt. Group, Inc. v. Natl. Labor

Relations Bd., 691 Fed.Appx. 49, 51 (2d Cir.2017). Accord ADT, LLC, 369 N.L.R.B. No.

23, 2020 L.L.R.M. (BNA) 40724, 2020 WL 591740. Indeed, under NLRA guidelines,

Hesler’s actions in recording the meeting were protected because he was engaged in

concerted activity in that he was acting in his capacity as Union Vice-President to

represent Miller in an investigatory interview that could have resulted in the imposition of

discipline against Miller. See ATT Mobility, LLC and Marcus Davis, 370 N.L.R.B. No.

121, 202 L.L.R.M. (BNA) 162892, 2021 WL 1815083. Based upon this analysis, the

arbitrator determined Hesler’s actions were protected under the terms of R.C. 4117.03.

{¶ 23} On this record, we conclude that the Board’s claim that the arbitrator

exceeded her authority lacks merit. The Board cannot, and did not, demonstrate that the

arbitrator modified the broad language of the Recording Policy because, under the

presented circumstances, the arbitrator had to determine the meaning and applicability

of the “any other applicable law” language. Further, a review of the record and the

arbitrator’s reasoning set forth above confirms that the award had a rational nexus to the

Recording Policy. However, even if the arbitrator misconstrued R.C. 4117.03, which is

3

Like R.C. 4117.03, the NLRA provides that “[e]mployees shall have the right * * * to

engage in * * * concerted activities for the purpose of collective bargaining or other mutual

aid or protection * * *.” 29 U.S.C.157.

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the core argument made by the Board, we would have no basis for vacating the award

as a mistake of law does not nullify an arbitration award. Thus, we find this argument

lacks merit.

{¶ 24} Further, regardless of whether the NLRA generally applies to public

employees, the language used in the Recording Policy, on its face, indicated that the

parties had specifically agreed the policy would not affect any concerted activity protected

under that Act. In other words, the parties agreed that as to the sole issue of workplace

recordings, they would be bound by both the NLRA as well as any other applicable laws

permitting workplace recordings. We cannot find, and the Board fails to cite, any

authority that would indicate that public employers and employees cannot agree to be

bound by various provisions of the NLRA. The Board cannot now argue it is not bound

by a contract term to which it expressly agreed. And, as set out above, the NLRA permits

the recording of concerted activity.4

{¶ 25} The Board next contends that the arbitrator ignored the contradictions made

by Hesler during the two meetings regarding the recordings, and thus, erred in

determining that Hesler was “not untruthful in violation of General Order 26.1.1 or 1.2.10.”

We disagree.

{¶ 26} The arbitrator’s decision expressly noted the statements and testimony of

Magill, Stiegelmeyer and Fiebig. She also noted Hesler’s testimony recounting the

meetings. The arbitrator stated she found relevant that “[t]here is no dispute that [Hesler]

was not afforded full opportunity to expound upon his statement as to the existence of

4

The Board does not dispute that Hesler’s representation of Miller constituted concerted

activity.

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any audio recording at the first interview on February 14, 2019. The testimonies of both

[Hesler] and Magill support that the first interview ended right after [Hesler] responded to

Magill’s question with just a single statement.” Exh. A., p. 26-27. The arbitrator

concluded that, given the circumstances, Hesler’s statements were not “inordinately

inconsistent; particularly in light of the brevity of the first interview and the circumstances

by which it occurred, which will be addressed later.”5 Id. at p. 27. The arbitrator found

the evidence did not support a finding that Hesler had been untruthful when responding

to Magill’s questioning about the recording.

{¶ 27} The arbitrator’s decision finding the evidence did not support a finding of

dishonesty was a factual conclusion based upon the evidence presented to her and a

determination of witness credibility. Even if we disagreed with this finding, which we do

not, we would not have the authority to reverse based upon an erroneous finding of fact.

{¶ 28} The Board next contends that the common pleas court was required to

vacate the arbitration award because the reinstatement of Hesler violated Ohio public

policy, which mandates that police officers be held to a higher standard of conduct than

the general public, especially regarding issues of honesty. In conjunction, the Board also

contends that the arbitrator should have considered the fact that Hesler’s termination was

the culmination of progressive discipline when viewed in the context of his prior

5 The arbitrator’s decision indicates that she found “the initial questioning of [Hesler] on

February 14, 2019, was investigative questioning, or constituted an investigatory

interview, and as such [Hesler] should have been advised of the nature of the

investigation and whether he was the focus or a witness prior to such questioning so that

he could determine if he wanted to seek Union representation. The arbitrator recognizes

that Magill quickly ended the first investigatory interview because he recognized that

‘contractual guarantees’ and ‘processes’ need to be invoked, but the harsh reality is that

those contractual guarantees and processes should have been invoked before the first

question about an audio recording was asked of [Hesler].” Exh. A, p. 32-33.

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disciplinary actions.

{¶ 29} “The Ohio Supreme Court has recognized that, if an arbitrator's

interpretation of a CBA violates public policy, the resulting award is unenforceable.”

(Citations omitted.) Fraternal Order of Police Lodge 8 v. Cleveland, 8th Dist. Cuyahoga

No. 102565, 2015-Ohio-4188, ¶ 25. The issue is not whether the officer's conduct

violated some public policy, but whether the arbitrator's reinstatement order did so.

Dayton v. AFSCME, Ohio Council 8, 2d Dist. Montgomery No. 21092, 2005-Ohio-6392,

¶ 23. “A court may refuse to enforce an [arbitration] award when specific terms in the

contract would violate public policy, but there is no broad power to set aside an arbitration

award as against public policy.” Id. at ¶ 23, quoting Board of County Commrs. v. L

Robert Kimball and Assocs., 860 F.2d 683, 686 (6th Cir.1988).

{¶ 30} As stated above, the arbitrator made a factual finding that there was no

evidence to support a finding that Hesler was dishonest. We agree with that finding.

Thus, any issues of public policy relating to Hesler’s honesty have no bearing on this

case.

{¶ 31} As to the claim regarding progressive discipline, we note that the arbitrator

considered and rejected the argument. In her decision, the arbitrator stated:

The case that the [Board] attempted to make throughout the

proceedings in this instant arbitration is that it terminated [Hesler] for policy

violations and for dishonesty. The [Board] in its opening statement

emphasized its feeling that in the two prior situations that resulted in

suspensions, one (1) day and five (5) day[s], it had been quite benevolent

towards [Hesler] considering the circumstances for which he was

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disciplined. In its Post Hearing Brief the [Board] stated that [Hesler’s] time

with the department is “riddled” with instances of inappropriate conduct

citing the two instances from 2016 and 2018 for which [Hestler] served the

aforementioned suspensions.

It appears that the [Board] loosely uses the terms like “numerous”

and “riddled” and “throughout his career” to convince whomever they stand

before that [Hesler] has consistently been a poor employee for his entire

tenure as an officer with the Miami Township Police Department.

[Hesler] has been with the Department for approximately twelve (12)

years and it is apparent to this arbitrator that if [Hesler’s] history was

“riddled” with inappropriate conduct there would have been more instances

of disciplinary action that would still be on the record. This is particularly

evident in light of the stringent language in Article 10, Personnel Files, of

the CBA, including the language that allows prior discipline to be considered

beyond the threshold time frames, if there has been intervening discipline[.]

Exh. A.

{¶ 32} The arbitrator went on to reject the claim that Hesler’s record was riddled

with problems. She further stated that, since she had determined the evidence did not

support the claim of misconduct in the case before her, “termination of employment is not

for just cause * * *.” Exh. A.

{¶ 33} We agree. Since the evidence in this record does not support Hesler’s

termination for dishonesty, we cannot ascertain how claims regarding progressive

discipline nor public policy would lead us to ignore that evidence and vacate the arbitration

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award.

{¶ 34} Finally, the Board contends the arbitrator erred by failing to consider

evidence Hesler had filed an unfair labor practice claim with SERB relating to his

termination. In that action, Hesler alleged the Board violated R.C. 4117.11 by

terminating him in retaliation for engaging in union activity. SERB dismissed the action,

finding the Board did not violate the statute. Thus, the Board argues the arbitrator’s

decision is in conflict with the SERB decision.

{¶ 35} The arbitrator did take notice of the above claim and dismissal. However,

she gave it little credit because the Board did not present evidence of the claim and its

disposition until after the arbitration hearing.6 Further, the evidence presented by the

Board consisted solely of Hesler’s charging document, the Board’s response and the

decision dismissing the claim. None of the evidence presented in that action is a part of

the evidence in this record. Moreover, the order dismissing the action was summary in

nature, and, thus, did not provide information as to the evidence considered. Finally, that

action involved a finding of whether the Board violated R.C. 4117.11, while this arbitration

involved the question of whether R.C. 4117.03 permitted recording in an investigatory

meeting. Based upon this record, we cannot conclude that the arbitrator erred in finding

that the SERB decision was not dispositive of the issues presented in the arbitration.

{¶ 36} After reviewing the voluminous record, we conclude the decision of the

arbitrator was rationally related to the Recording Policy and, as such, the arbitrator did

not exceed her authority. Accordingly, the Board’s sole assignment of error is overruled.

6

The information was contained in the Board’s post-hearing brief.

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IV. Conclusion

{¶ 37} The Board’s assignment of error being overruled, the judgment of the

common pleas court denying the motion to vacate the arbitrator’s award is affirmed.

.............

DONOVAN, J. and EPLEY, J., concur.

Copies sent to:

W. Joseph Scholler, III

Alexander L. Ewing

Charles B. Galvin

Stephen S. Lazarus

Alexander N. Beck

Hon. Timothy N. O’Connell