Preview
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
SERVICE EMPLOYEES INTERNATIONAL
UNION, DISTRICT 1199, THE HEALTH
CARE AND SOCIAL SERVICE UNION, CASE NO. 23 CV 005597
CHANGE TO WIN, CLC
Movant, JUDGE JULIE LYNCH
VS.
STATE OF OHIO, APPLICATION TO CONFIRM
ARBITRATION AWARD
Respondent.
Pursuant to R.C. § 2711.09, Respondent State of Ohio (the “State”), by and through its
undersigned counsel, respectfully files its Application to Confirm the May 10, 2023 Arbitration
Award of Arbitrator William J. Miller in State of Ohio, Department of Administrative Services and
SEIU, Case No. 2020-00848. For the reasons set forth in the attached Memorandum in Opposition
to Motion to Vacate Arbitration Award, and in Support of Application to Confirm Arbitration
Award, the Movant Service Employees International Union, District 1199, The Health Care and
Social Service Union, Change to Win, CLC (“Union”) has failed to meet its heavy burden to
establish grounds for vacatur under R.C. § 2711.10. Therefore, the State requests that this Court
grant its Application and Motion to Confirm the Arbitration Award.
Respectfully Submitted,
/s/ Jonathan J. Downes
Jonathan J. Downes (0009905)
Scott H. DeHart (0095463)
Matthew C. Smallwood (100354)
ZASHIN & RICH Co., L.P.A.
17 South High Street, Ste. 900
Columbus, Ohio 43215
(614) 224-4411
Fax (614) 224-4433
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Email: jjd@zrlaw.com
shd@zrlaw.com
mes@zrlaw.com
Attorneys for Respondent, State of Ohio
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TABLE OF CONTENTS
I INTRODUCTION ..............
IL. STATEMENT OF FACTS..............
Til. STANDARD
OF REVIEW .............. 12
A. Judicial Review of Arbitration Awards is Narrow and Extremely Limited 12
B. Arbitration Awards are Presumed Valid............. 12
C. A Trial Court May Not Evaluate the Actual Merits of an Award ........... 12
IV. ARGUMENT............. 13
A. Arbitrator Miller Did Not Exceed His Authority; He Properly Interpreted and Applied
Article 35.01 B, “Other Than Weather Emergency” to Construe the CBA. The Arbitrator Did
Not Add Requirements to the CBA. sees 13
B. Arbitrator Miller Did Not Exceed His Authority; Section 35.01(B) of the CBA Contained
a Leave Requirement Prior to the Executive Order. . see 17
V. STATE’S APPLICATION TO CONFIRM ............. seers 20
VI CONCLUSION............ seers 20
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TABLE OF AUTHORITIES
Cases
cf. Cedar Fair, L.P. v. Falfas,
140 Ohio St.3d 447, 2014-Ohio-3942 (2014) 12
Dodge v. Dodge,
2017-Ohio-7087 (10" Dist. 2017) 13
Fresh Eggs Manager, LLC v. Ohio Fresh Eggs,
2013-Ohio-3454, P14 (10th Dist. 2013) 15
Goodyear Tire & Rubber Co. v. Local Union No. 220,
United Rubber, Cork, Linoleum and Plastic Workers of Am.,
42 Ohio St.2d 516 (1975) 14
Internatl. Assn. of Firefighters, Local 67 v. Columbus,
95 Ohio St.3d 101 (2002) 15
Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. IMR Educ. Ass’n.,
22 Ohio St.2d 80 (1986). 13
Ohio Civ. Sery. Emples. Ass'n, AFSCME Local 11 v. Franklin County Dep t of Human Servs.,
2001 Ohio App. LEXIS 2587 (10th Dist. 2001) 21
Ohio Patrolmen’s Benevolent Ass'n v. City of Findlay,
149 Ohio St.3d 718 (2017). 15
Oxford Health Plans LLC y. Sutter,
569 U.S. 564, 572-573 (2013) 20
Piqua v. Fraternal Order of Police, OLC,
185 Ohio App.3d 496, 2009-Ohio-6591 § 26 (2nd Dist. 2009) 1S
Professionals Guild of Ohio v. Franklin County Children Servs.,
180 Ohio App. 3d 91, 98-99 (10th Dist. 2008) 17
Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627,
91 Ohio St.3d 108 (2001) 14
State v. Ohio Civ. Serv. Emps. Assn., Local 11 AFSCME AFL-CIO,
2016-Ohio-5899 (10th Dist. 2016) 13
Telle v. Estate of William Soroka,
2008-Ohio-4902 (10th Dist. 2008) 14
liv]
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Warren Educ. Ass'n v. Warren City Bd. of Educ.,
18 Ohio St.3d 170 (1985) cesses 2,22
Woods v. Farmers Ins. of Columbus, Inc.,
106 Ohio App.3d 389 (10th Dist. 1995) . 22
Statutes
Ohio Revised Code § 2711.09 1,21,22
Ohio Revised Code § 2711.10 1,7, 12, 14, 19, 20,21
Ohio Revised Code § 2711.11 1, 14,21
Ohio Revised Code § 2711.12 22
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
SERVICE EMPLOYEES INTERNATIONAL
UNION, DISTRICT 1199, THE HEALTH
CARE AND SOCIAL SERVICE UNION, CASE NO. 23 CV 005597
CHANGE TO WIN, CLC
Movant, JUDGE JULIE LYNCH
VS. MEMORANDUM IN OPPOSITION TO
MOTION TO VACATE ARBITRATION
STATE OF OHIO, AWARD AND IN SUPPORT OF
APPLICATION TO CONFIRM
Respondent. ARBITRATION AWARD
I INTRODUCTION
The Service Employees International Union, District 1199, The Health Care and Social
Service Union, Change to Win, CLC, (the “Union”) initiated the above-captioned action seeking
to relitigate an arbitration award denying the Union’s grievance which sought additional payments
to Union employees who worked during the pandemic. This issue is before this Court because the
Union disagrees with the Arbitrator’s application and interpretation of the parties’ collective
bargaining agreement (“the CBA”). The Arbitrator did not exceed the responsibility granted the
Arbitrator under the CBA when applying the express terms of the CBA. This Court should not
permit the Union to relitigate the arbitration and should deny the Union’s Application to Vacate
the Award, and instead, should grant the State of Ohio’s Motion to Confirm the Arbitration Award
This case arises from a contract interpretation arbitration between the State of Ohio (the
“State”) and the Union regarding an emergency pay provision of the parties’ CBA. The Union
asked Arbitrator William J. Miller (the “Arbitrator”) to grant a grievance which claimed that its
members were entitled to an additional $8.00 per hour for a period of almost 16 months. After
hearing testimony and analyzing both parties’ post-hearing briefs, the Arbitrator issued an Award
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denying the Union’s grievance in its entirety. The Union initiated the instant civil action on August
8, 2023, to challenge the Award and filed a briefin support of its motion (its “Application”), asking
this Court to vacate the Award under R.C. § 2711.10(D)
The Union’s Application takes aim at the Arbitrator’s interpretation of the CBA claiming
that he “exceeded his authority” by “adding language to the agreement.” The Union improperly
requests this Court to substitute its judgment for that of the Arbitrator, who was jointly selected
through the Federal Mediation and Conciliation Service. In other words, the Union is asking this
Court to reach a different interpretation of the language of the CBA, thereby relitigating the
arbitration because they disagree with the result. However, it is well-settled that judicial review
under the Ohio Arbitration Act, R.C. Chapter 2711, is “narrow” and “extremely limited.”
The parties mutually selected Arbitrator Miller to resolve a dispute over the interpretation
of the express contract language; specifically, whether Article 35.01(B) of the CBA required a
certain stipend to be paid. The State of Ohio argued, and the Arbitrator agreed, that the express
language contains two requirements, while the Union argued that the contract contains only one
requirement. Specifically, the Arbitrator found that Section 35.01(B) of the CBA contains two
prerequisites to the stipend being paid: (1) that an emergency be declared by the State and (2) that
administrative leave be granted to a class of employees. The Arbitrator then correctly held that
under the express provisions of this two-part Article 35 test, neither condition was satisfied: no
emergency was declared that would make Article 35 operative, and administrative leave was not
granted to a class of employees. Arbitration Record (“R”),! Arbitration Award (hereinafter, the
1 The Union filed a Notice of Filing on August 8, 2023, along with a copy of the parties’ CBA, the Award, and the
various arbitration exhibits. Throughout this brief, the State will refer to these documents as the Arbitration Record
(“R”). The Union’s Notice of Filing did not identify certain exhibits that it filed, including the Arbitration Award
itself and the parties’ post-hearing briefs to the Arbitrator, nor are these exhibits plainly numbered or lettered on the
docket. The State will refer to these documents by name and/or based on the order in which they were filed on the
docket (e.g., the Union’s Fifth filed exhibit).
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“Award”) pp.20-21
Regarding the first factor of the two-part test the Arbitrator concluded:
“The Agreement clearly provides in Article 5, Management Rights, that the
Employer maintains the right to operate its work and business in the manner that it
deems appropriate under the circumstances. This would not be considered as
changing any provision of the Agreement or existing rule or regulation related to
wages, hours and conditions of work. When the record is carefully reviewed and
considered this is exactly what occurred in this situation. The Governor issued an
emergency directive which specified how employees would work during the
emergency. In my considered opinion, the Executive Order did not change any
provision of the Agreement.”
Regarding the second factor the arbitrator held:
“State employee's obligations to travel to and from work is not to be limited as a
result of this proclamation. In effect, the Employer was not activating its Public
Safety Emergency Policy, and in fact employees were being directed to report to
work.” the question arises as to whether or not the emergency was the kind
which was envisioned by Article 35 of the Agreement. When Article 35 is carefully
reviewed and considered, it becomes readily apparent that such provision
contemplates some employees reporting for work, and other employees not
reporting for work..... and in fact, as established by the jointly stipulated facts "both
essential and non-essential State of Ohio employees were required to work during
the period of the declared emergency from March 09, 2020 -June 18, 2021."
Award, pp. 20-21
Based on these two findings, the Arbitrator concluded that the Union members were not
entitled to the stipend. The arguments in the Union’s Application are the same arguments
presented to the Arbitrator and that the Arbitrator rejected. See Award, pp.19-20; see also, R.,
Union’s Fifth filed exhibit (Union’s post-hearing brief). As discussed herein, the Union’s
disagreement with the Arbitrator’s interpretation of the CBA is not a basis for vacating the Award.
IL. STATEMENT OF FACTS
Parties who submit their disputes to arbitration are bound by the arbitrator’s findings of
fact — most of which were facts stipulated by the Union and State. See, Award, pp.18-19. The
parties cannot “re-litigate” the facts before this Court. Ohio courts categorically reject parties’
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claims that an arbitrator “got it wrong” or otherwise erred in making factual determinations.
Therefore, for purposes of this Court’s limited review, the established facts are those set forth in
Arbitrator Miller’s Award, issued on May 10, 2023, and the Stipulated Facts included therein.
In 2006 the parties incorporated Section 35.01 into the CBA and it remained unchanged as
of the 2018-2021 CBA. In 2020, Section 35.01(A), “Weather Emergency,” read, in pertinent part:
Employees directed not to report to work or sent home due to weather as declared
by the Director of the Department of Public Safety, shall be granted leave with pay
at regular rate for their scheduled work hours during the duration of the weather
emergency. The Director of the Department of Public Safety is the Governor’s
designee to declare a weather emergency which affects the obligation to travel to
and from work. Employees required to report to work or required to stay at work
during such weather emergency shall receive their total rate of pay for hours worked
during the weather emergency. In addition, employees who work during a weather
emergency declared under this section shall receive a stipend of eight dollars
($8.00) per hour worked.
The next provision, Section 35.01(B), titled “Other Than Weather Emergency,” read in its entirety
as follows:
Employees not designated essential may be required to work during an emergency.
When an emergency, other than a weather emergency, is declared by the Governor
or designee and Administrative leave with pay is granted for employees not
required to work during the declared emergency, such leave is to be incident
specific and only used in circumstances where the health or safety of an employee
or of any person or property entrusted to the employee’s care could be adversely
affected. Payment for hours worked for other than weather emergencies shall be
pursuant to Section 35.01(A) above
(Award, pg. 15-17). As explicitly stated, for 35.01(B) to be triggered, two events must occur: 1)
“other than a weather emergency” must be declared, and 2) Administrative leave with pay must
be granted for employees who are not required to work during the declared emergency. Arbitrator
Miller found that no public health emergency occurred within the meaning of this CBA provision,
and that administrative leave was not granted. (Award, 21).
The Arbitrator recognized that State “maintains the right to operate its work and business
in the manner that it deems appropriate under the circumstances.” Award, p.21. The Arbitrator
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relied on specific provisions of the CBA in rejecting the Union’s proffered interpretation and
provided a well-reasoned analysis of the applicable CBA language in Articles 5 and 35 (see Award,
pp.21-22). Article 35.01(B) does expressly specifically define the phrase “other than weather
emergency.” As such, under Article 1.03, the State has the right to define what constitutes an
emergency. (R., Joint Exhibit 1, Collective Bargaining Agreement)
Article 5 of the CBA, the management rights section, reserves to the State the power to
define the term “Emergency” by expressly stating that the Employer retains the rights to: “5) make
any and all rules and regulations.” The State promulgated a statewide policy, HR-D-11 to clarify
the ambiguity of “emergency” under Article 35.01(B) by defining “Public Safety Emergency” as
a declaration that would activate the first prerequisite of the required language of Article 35.01(B)
R., Joint Ex. 16. Arbitrator Miller appropriately recognized management’s right to define
“emergency” in his Award, explaining, “[t]he agreement clearly provides in Article 5,
Management Rights, that the Employer maintains the right to operate its work and business in a
manner that it deems appropriate under the circumstances.” He continued by finding that “the
Governor issued an emergency directive which specified how employees would work during the
emergency. In my considered opinion, the Executive Order did not change any provision of the
Agreement.” Award, p.21. The Arbitrator further explained that “the Employer was not activating
its Public Safety Emergency Policy, and in fact employees were being directed to report to work.”
Id., p.20 (emphasis provided).
Arbitrator Miller affirmed the State’s right under the CBA to utilize existing, known
policies which defined “emergency”, which was accomplished through the Department of
Administrative Services Directive HR-D-11, (R. Joint Exhibit 16), originally issued in 2011. The
Arbitrator recognized that HR-D-11 distinguishes between an “ordinary” emergency and a “public
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safety emergency.” A public safety emergency limits state employees’ obligation to travel to and
from work while an ordinary emergency does not always have that effect. (Joint Exhibit 16). This
directive was further revised in January 2018. (Award, p.11). The Union accepted these
promulgated standards which existed since 2011 and through several iterations, a period of several
negotiated CBAs between the parties. Collective bargaining agreements between the parties last
up to 3 years. See R., Joint Exhibits 5 to 12.
The COVID-19 pandemic began to impact Ohioans in early 2020. On March 9, 2020,
Governor DeWine signed Executive Order 2020-01D (“Executive Order”), declaring a state of
emergency. (Award, pg. 2). The Executive Order did not, however, declare an emergency for
purposes of Section 35.01(B) of the parties’ CBA. (Award, pg. 20). Instead, the Executive Order
explicitly excluded the implementation of HR-D-11, and obligations to travel to and from work
were not to be limited as a result of the proclamation. (Award, pg. 21). According to the Arbitrator,
the evidence showed that no employee received administrative leave as a result of the Executive
Order being issued. (Award, p.21).
The Union filed a grievance on behalf of thousands of State employees, seeking an
additional $8.00/hour stipend from Section 35.01(B) of the CBA for all hours worked from March
8, 2020 through June 18, 2021. (Award, pg. 8). The State denied the grievance at each ‘step’ o
the parties’ grievance process, and the parties proceeded to arbitration where the Union, as the
moving party for contractual interpretation, had the burden of proof.
The Arbitrator correctly found that the State properly applied the terms of the CBA. The
Arbitrator issued an Award in which he agreed with the State’s interpretation of the contract
language, and he denied the Union’s grievance. (Award, p.21). The Union then filed its
Application seeking to vacate the Award.
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Til. STANDARD OF REVIEW
A. Judicial Review of Arbitration Awards is Narrow and Extremely Limited
Under the Ohio Arbitration Act, “[t]he jurisdiction of the courts to review arbitration
awards is . Statutorily restricted; it is narrow and it is limited.” Warren Edn. Assn. v. Warren
City Bd. of Edn., 18 Ohio St.3d 170, 173 (1985) (emphasis added); cf Cedar Fair, L.P. v. Falfas,
140 Ohio St.3d 447, 2014-Ohio-3942, § 5 (the authority to vacate an arbitration award is
“extremely limited’) (emphasis added). Ohio Revised Code § 2711.10 delineates the very rare
circumstances in which a court may vacate an arbitration award. Section 10(D) of the statute
provides for vacatur when an arbitrator “exceeded [his powers].” The Union cannot establish that
Arbitrator Miller exceeded his powers or that his Award departs from the essence of the CBA.
Therefore, the Court must deny the Union’s Application.
B. Arbitration Awards are Presumed Valid
“Ohio has a strong and well-established public policy favoring arbitration.” State v.
OCSEA., Local 1] AFSCME AFL-CIO, 10th Dist. Franklin No. 14AP-906, 2016-Ohio-5899, citing
Schaefer y. Allstate Ins. Co., 63 Ohio St.3d 708, 711 (1992). Accordingly, Ohio courts give
deference to arbitration awards; they are “presumed valid, and a reviewing court may not merely
substitute its judgment for that of the arbitrator.” Dodge v. Dodge, 10th Dist. No. 16AP-166, 2017-
Ohio-7087, § 13 (10 Dist. 2017). “It is the policy of the law to favor and encourage arbitration
and every reasonable intendment will be indulged to give effect to such proceedings and to favor
the regularity and integrity of the arbitrator’s acts.” Mahoning Cty. Bd. of M.R. v. Mahoning Cty.
TMR Educ. Ass’n., 22 Ohio St.2d 80, 84 (1986) (observing that “[t]he whole purpose of arbitration
would be undermined if courts had broad authority to vacate an arbitrator’s award”).
Cc A Trial Court May Not Evaluate the Actual Merits of an Award
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The Union’s Application is a thinly veiled request for this Court to substitute its own
judgment impermissibly for that of Arbitrator Miller. The role of the reviewing Court is very
narrow: “[a] trial court may not evaluate the actual merits of an award and must limit its review to
determining whether the appealing party has established that the award is defective within the
confines of R.C. Chapter 2711.” Telle v. Estate of William Soroka, 2008-Ohio-4902, 4 9 (10th
Dist. 2008). “The refusal of courts to review the merits of an arbitration award is the proper
approach to arbitration under collective bargaining agreements. The federal policy of settling labor
disputes by arbitration would be undermined if courts had the final say on the merits of the
awards.” Goodyear Tire & Rubber Co. v. Local Union No. 220, United Rubber, Cork, Linoleum
and Plastic Workers of Am., 42 Ohio St.2d 516 (1975), quoting United Steelworkers of America v.
Enterprise Corp., 363 U.S. 593, 597 (1960). As the Ohio Supreme Court has similarly explained
Because the parties have contracted to have disputes settled by an arbitrator chosen
by them rather than by a judge, it is the arbitrator’s view of the facts and the
meaning of the contract that they have agreed to accept. Courts thus do not sit to
hear claims of factual or legal error by an arbitrator as an appellate court does in
reviewing decisions of lower courts To resolve disputes about the application of
a collective bargaining agreement, an arbitrator must find facts and a court may not
reject those findings simply because it disagrees with them. The same is true of the
arbitrator’s interpretation of the contract
S.O.R.T.A. v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108 (2001), citing United
Paperworkers Internatl. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37-38 (1987)
Iv. ARGUMENT
The Union has failed to satisfy its heavy burden under R.C. §2711.10 to show that the
Arbitrator exceeded his powers, and there is no basis for vacating or reversing his Award
Arbitrator Miller properly based his decision on the clear language of the parties’ CBA.
A. Arbitrator Miller Did Not Exceed His Authority; He Properly Interpreted
nd Applied Article 35.01 B, “Other Than Weather Emergency” to Constru
the CBA. The Arbitrator Did Not Add Requirements to the CBA.
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Judicial review of arbitration awards is narrowly limited by R.C. 2711.10 and 2711.11
Fresh Eggs Manager, LLC v. Ohio Fresh Eggs, 2013-Ohio-3454, P14 (10 Dist. 2013)
“Arbitrators act within their authority to craft an award so long as the award draws its essence from
the contract — that is, when there is a rational nexus between the agreement and the award, and
where the award is not arbitrary, capricious, or unlawful.” Ohio Patrolmen’s Benevolent Ass'n v.
City of Findlay, 149 Ohio St.3d 718 (2017). A “rational nexus” between the agreement and the
award exists where the arbitration award is “rationally supported” by the agreement or can be
"rationally derived" from the agreement. Piqua v. Fraternal Order of Police, OLC, 185 Ohio
App.3d 496, 2009-Ohio-6591 § 26 (2nd Dist. 2009).
In its attempts to persuade this Court that Arbitrator Miller somehow exceeded his
authority, Plaintiff incorrectly applies /nternatl. Assn. of Firefighters, Local 67 v. Columbus, 95
Ohio St.3d 101, 104 (2002). In AFF Local 67, the Supreme Court of Ohio found that the arbitrator
had improperly defined a term not expressly defined in the CBA, “disability,” by using a definition
that was used by the employer but which did not comport with the ordinary definition, for which
the Court consulted Black's Law Dictionary (7th Ed.1999). “In those particular circumstances,”
the Court concluded that the arbitrator's decision had exceeded his powers. (emphasis added)
Summit County Children Servs. Bd., 113 Ohio St. 3d 291, 294 (referencing JAFF, Local 67)
Summit County Children Sers. Bd. more closely resembles the facts of this case than /AFF,
Local 67. In Summit County Children Sers. Bd., the CBA at issue did not define "good cause," and
accordingly the arbitrator was required to give that term its plain and ordinary meaning. /d, at 294
The Supreme Court distinguished its IAFF decision, holding that “by focusing myopically on our
use of Black's Law Dictionary in JAFF, Local 67, the court of appeals in this case erroneously
found that the arbitrator was constrained to use the ordinary definition of "good cause," as in
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Black's Law Dictionary, without considering the context of this case, similar claims that had been
arbitrated, and our prior decisions.” Id, at 294-295. The arbitrator was allowed to look elsewhere
from the dictionary definition for the plain meaning ofan undefined CBA term. /d. The Supreme
Court further stated that if the parties do not expressly prohibit its use in the CBA and if they leave
the term undefined, they run the risk of the arbitrator looking outside the CBA for guidance in
defining, interpreting, and applying that phrase. /d, at 296. The in the instant case used a
reasonable, long-established known policy in analyzing and applying Section 35.01B.
Here, the CBA in question did not define “other than a weather emergency.” To interpret
the undefined term, Arbitrator Miller looked to the four corners of the contract for guidance, as
well as the accompanying Executive Order. Under CBA Articles 1 and 5, as stated above, the State
has the right to define “other that weather emergency.” The Executive Order specifically cited HR-
D-11, and that there would be no impact on an employee’s obligation to travel to and from work
HR-D-11 states that public safety emergency limits state employees’ obligation to travel to and
from work. The definition of public safety emergency was used in 2010 to define the same topic
and the same contract and provision at issue here between the State of Ohio and SEIU when the
Governor issued an order to not implement DAS Directive 08-03. (Award, pg. 12)
Here, as in Summit County Children Sers. Bd., Arbitrator Miller found the plain meaning
from “similar claims that had been arbitrated” and not by focusing myopically on the Ohio
Supreme Court’s use of Black's Law Dictionary in /AFF, Local 67. The Arbitrator referenced
2010 Award of another arbitrator stating, “Arbitrator Washington's decision covers the same topic
and involves the same contract and provision at issue here.” R., Union Exhibit 8.
The Tenth District Court of Appeals has also weighed in on the issue. "When a provision
in a collective bargaining agreement is subject to more than one reasonable interpretation and the
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parties to the contract have agreed to submit their contract interpretation disputes to final and
binding arbitration, the arbitrator's interpretation of the contract, and not the interpretation of a
reviewing court, governs the rights of the parties thereto. Professionals Guild of Ohio v. Franklin
County Children Servs., 180 Ohio App. 3d 91, 98-99 (10" Dist. 2008)
The Arbitrator reasonably interpreted “other than a weather emergency” by analyzing the
express terms of the contract, and by properly referring to Governor DeWine’s Executive Order
and HR-D-11 for the analysis of a term not otherwise defined in Article 35 itself. The Arbitrator’s
well-reasoned Award did not consider one Article of the CBA in isolation, but multiple provisions
including Article 1, Purpose and Intent of the Agreement, section 1.03, Total Agreement; and
Article 5, Management Rights. Once the Arbitrator applied the CBA he concluded that the
Executive Order did not enact the “other than emergency” requirement of Section 35.01. HR-D-
11 was clearly excluded: “This Proclamation does not require the implementation of the
Department of Administrative Services Directive HR-D-11.” Award, pp.20-21
The Arbitrator found that the CBA provides the Employer the right to manage operations.
While the parties and the Arbitrator agree that the Governor cannot change agreed upon language
or negate the requirements of an existing contract by an Executive Order the Arbitrator clearly
articulated how the Executive Order did not “negate” provisions of the CBA. The Arbitrator found
that the use of the known policy did not “change” any of the language of the contract, stating:
“T agree with the Union that Executive Orders cannot change agreed upon
contractual provisions of the Agreement. However, this does not preclude an
Executive Order being issued which may have an effect on an Agreement provision,
by the way the order is issued. The Agreement clearly provides in Article 5,
Management Rights, that the Employer maintains the right to operate its work and
business in the manner that it deems appropriate under the circumstances. This
would not be considered as changing any provision of the Agreement or
existing rule or regulation related to wages, hours, and conditions of work.”
Award, pp.19-20 (emphasis added). HR-D-11 had been promulgated and was known to both
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parties for nearly a decade before the COVID-19 pandemic and had remained unchanged in
substance for multiple CBA negotiation cycles. The State’s issuance and use of HR-D-11 were
proper exercise of its management rights HR-D-11 did not impermissibly alter or negate the
express language of the CBA. Nor did the Executive Order change or negate any part of the CBA
Notwithstanding, the Union argues erroneously that the CBA foreclosed the State’s
issuance or reliance on HR-D-11 In its Application, the Union contends that the Award is
deficient because it failed to consider other provisions addressing conflicts between the CBA and
external sources. The Union does not, however, explain how HR-D-11 is in conflict in any way
with the CBA. The Arbitrator gave no credence to this line of reasoning, stating:
Upon carefully reviewing the Executive Order, a key part of such order is paragraph
6 which provides "this proclamation does not require the implementation of the
Department of Administrative Services Directive HR-D-11 Award, page 21
Assuming arguendo that there was any merit to the Union’s argument about HR-D-11, the
import of that directive was only on the analysis of the first ‘prong’ of the two-part test in Article
35. The Arbitrator correctly found that Avo conditions precedent must be met for the emergency
pay provisions to become operative, and neither condition was met. No reference to HR-D-11 was
necessary for the Arbitrator to determine that Article 35.01(B) was not fulfilled, as explained infra.
Arbitrator Miller correctly applied the CBA’s “other than a weather emergency” provision;
the CBA expressly reserves management’s right to promulgate directives such as HR-D-11.
Executive Order 2020-01D expressly stated that the Order did not implement HR-D-11. Therefore,
35.01(B) could not have been activated due to the first requirement not being fulfilled
B. Arbitrator Miller Did Not Exceed His Authority; Section 35.01(B) of the
CBA Contained a Leave Requirement Prior to the Executive Order.
The Union also cannot meet its heavy burden under R.C. 2711.10(D) due to the required
second prong of Article 35.01(B): the administrative leave requirement. The Union’s Application
[17]
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incorrectly alleges that “there is no such prerequisites, limitations, or requirements in the plain
language agreed to by the Parties.” Union’s Application, p.14. The CBA makes clear there are two
distinct requirements to activate Section 35.01(B): “When an emergency, other than a weather
emergency, is declared by the Governor or designee and Administrative leave with pay is granted
for employees not required to work during the declared emergency ” (emphasis added).
The CBA language is in the conjunctive (“and”), and the Arbitrator’s Award properly gave
effect to this two-pronged condition precedent. When analyzing the CBA language, the Arbitrator
found that “when Article 35 is carefully reviewed and considered, it becomes readily apparent that
such provision contemplates some employees reporting for work, and other employees not report
for work.” (Award, p.21). The Abritrator found the second requirement was not met because “there
was no opportunity for employees to refrain from working, and in fact, as established by the jointly
stipulated facts, ‘both essential and non-essential State of Ohio employees were required to work
during the period of the declared emergency.’” See Award, p.20, quoting Stipulation No. 7. The
Union concedes that “the State had the authority, if it so desired, for people to stay home ... if it
would have did that, it would have to provide them with a specific form of administrative leave
The State decided not to provide that, which was also their right under the Agreement.” (Union’s
Application, pg. 14, fn.). There were no layoffs of employees in this bargaining unit. Award, p.18
Arbitrator Miller interpreted and applied the CBA language; he did exactly what the parties
authorized him to do, and did not “exceed” his authority. Even if Arbitrator Miller were incorrect
in a fact determination or in an interpretation of the CBA, this would not constitute a basis for
“vacatur” under R.C. 2711.10(D)’s extraordinarily stringent standard. The Supreme Court has held
that “if the arbitrator interpreted the contract incorrectly, well, that was part of the deal.” Oxford
Health Plans LLC vy. Sutter, 569 U.S. 564, 572-573 (2013). The Court went further to say:
[18]
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“All we say is that convincing a court of an arbitrator's error—even his grave
error—is not enough. So long as the arbitrator was "arguably construing" the
contract * * * a court may not correct his mistakes under [the statute]. The potential
for those mistakes is the price of agreeing to arbitration."
Id. Here, the Award draws its essence from the CBA because Arbitrator Miller was at least
“arguably construing” the CBA, and the Union does not and cannot plausibly contend otherwise.
The Union may disagree with the Arbitrator’s reasoning, but the Union cannot dispute that the
Arbitrator’s analysis drew its essence from the CBA. Arbitrator Miller expressly stated in his
Award that he reviewed and interpreted the CBA. Although the outcome was not favorable
towards the Union, that “is the price of agreeing to arbitration.” Jd.
In a desperate effort to prop up its foundering argument, the Union dialed in its rhetoric to
the extreme by inserting an “alternate” version of Section 35.01 with “tracked changes” (i.e.,
strikeouts of certain language, and underlined/bold additions). The Union misleadingly and
inappropriately portrays this CBA re-write as the finding of the Arbitrator, prefacing it as being
“[a]ccording to the Arbitrator” and indenting it on either side (as if it were a quote). But Arbitrator
Miller did no such thing, and the Union’s attempt to concoct an intriguing visual to support its
flailing argument crosses a line into misrepresenting the Record. Nowhere in the Arbitrator’s
Award did he expressly rewrite a section of the parties’ CBA in this fashion, as the Union
insinuates and falsely portrays that he did. And nowhere in the Award did the Arbitrator implicitly
rewrite the CBA to superimpose new or different terms. The Union is simply dissatisfied that the
Arbitrator agreed with the State’s analysis of the language — i.e., that the Arbitrator considered and
rejected the Union’s myopic approach to defining an “other than weather emergency.”
The Arbitrator’s Award drew its essence from the CBA. The arbitrator analyzed and
interpreted the clear contract language of Section 35.01 B and applied it to the facts presented (and
to a large degree, stipulated by the parties) at an evidentiary hearing. A rational nexus exists
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between the Award and the parties’ CBA, and the Union has failed to show that the Arbitrator
exceeded his authority in any way. The Union’s failure to establish sufficient legal authority in
support of vacating the Award is grounds for rejecting the Union’s Application. See, OCSEA,
AFSCME Local 11 v. Franklin County Dep't of Human Servs., 2001 Ohio App. LEXIS 2587 (10th
Dist. 2001). Accordingly, the State respectfully asks that the Union’s Application be denied
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N2 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO SERVICE EMPLOYEES INTERNATIONAL UNION, DISTRICT 1199, THE HEALTH CARE AND SOCIAL SERVICE UNION, CASE NO. 23 CV 005597 CHANGE TO WIN, CLC Movant, JUDGE JULIE LYNCH VS. STATE OF OHIO, APPLICATION TO CONFIRM ARBITRATION AWARD Respondent. Pursuant to R.C. § 2711.09, Respondent State of Ohio (the “State”), by and through its undersigned counsel, respectfully files its Application to Confirm the May 10, 2023 Arbitration Award of Arbitrator William J. Miller in State of Ohio, Department of Administrative Services and SEIU, Case No. 2020-00848. For the reasons set forth in the attached Memorandum in Opposition to Motion to Vacate Arbitration Award, and in Support of Application to Confirm Arbitration Award, the Movant Service Employees International Union, District 1199, The Health Care and Social Service Union, Change to Win, CLC (“Union”) has failed to meet its heavy burden to establish grounds for vacatur under R.C. § 2711.10. Therefore, the State requests that this Court grant its Application and Motion to Confirm the Arbitration Award. Respectfully Submitted, /s/ Jonathan J. Downes Jonathan J. Downes (0009905) Scott H. DeHart (0095463) Matthew C. Smallwood (100354) ZASHIN & RICH Co., L.P.A. 17 South High Street, Ste. 900 Columbus, Ohio 43215 (614) 224-4411 Fax (614) 224-4433 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N2 Email: jjd@zrlaw.com shd@zrlaw.com mes@zrlaw.com Attorneys for Respondent, State of Ohio [ii] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23CV005597 0G573 - N27 TABLE OF CONTENTS I INTRODUCTION .............. IL. STATEMENT OF FACTS.............. Til. STANDARD OF REVIEW .............. 12 A. Judicial Review of Arbitration Awards is Narrow and Extremely Limited 12 B. Arbitration Awards are Presumed Valid............. 12 C. A Trial Court May Not Evaluate the Actual Merits of an Award ........... 12 IV. ARGUMENT............. 13 A. Arbitrator Miller Did Not Exceed His Authority; He Properly Interpreted and Applied Article 35.01 B, “Other Than Weather Emergency” to Construe the CBA. The Arbitrator Did Not Add Requirements to the CBA. sees 13 B. Arbitrator Miller Did Not Exceed His Authority; Section 35.01(B) of the CBA Contained a Leave Requirement Prior to the Executive Order. . see 17 V. STATE’S APPLICATION TO CONFIRM ............. seers 20 VI CONCLUSION............ seers 20 [iii] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 06573 - N28 TABLE OF AUTHORITIES Cases cf. Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3942 (2014) 12 Dodge v. Dodge, 2017-Ohio-7087 (10" Dist. 2017) 13 Fresh Eggs Manager, LLC v. Ohio Fresh Eggs, 2013-Ohio-3454, P14 (10th Dist. 2013) 15 Goodyear Tire & Rubber Co. v. Local Union No. 220, United Rubber, Cork, Linoleum and Plastic Workers of Am., 42 Ohio St.2d 516 (1975) 14 Internatl. Assn. of Firefighters, Local 67 v. Columbus, 95 Ohio St.3d 101 (2002) 15 Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. IMR Educ. Ass’n., 22 Ohio St.2d 80 (1986). 13 Ohio Civ. Sery. Emples. Ass'n, AFSCME Local 11 v. Franklin County Dep t of Human Servs., 2001 Ohio App. LEXIS 2587 (10th Dist. 2001) 21 Ohio Patrolmen’s Benevolent Ass'n v. City of Findlay, 149 Ohio St.3d 718 (2017). 15 Oxford Health Plans LLC y. Sutter, 569 U.S. 564, 572-573 (2013) 20 Piqua v. Fraternal Order of Police, OLC, 185 Ohio App.3d 496, 2009-Ohio-6591 § 26 (2nd Dist. 2009) 1S Professionals Guild of Ohio v. Franklin County Children Servs., 180 Ohio App. 3d 91, 98-99 (10th Dist. 2008) 17 Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108 (2001) 14 State v. Ohio Civ. Serv. Emps. Assn., Local 11 AFSCME AFL-CIO, 2016-Ohio-5899 (10th Dist. 2016) 13 Telle v. Estate of William Soroka, 2008-Ohio-4902 (10th Dist. 2008) 14 liv] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23CV005597 0G573 - N2 Warren Educ. Ass'n v. Warren City Bd. of Educ., 18 Ohio St.3d 170 (1985) cesses 2,22 Woods v. Farmers Ins. of Columbus, Inc., 106 Ohio App.3d 389 (10th Dist. 1995) . 22 Statutes Ohio Revised Code § 2711.09 1,21,22 Ohio Revised Code § 2711.10 1,7, 12, 14, 19, 20,21 Ohio Revised Code § 2711.11 1, 14,21 Ohio Revised Code § 2711.12 22 Iv] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 06573 - N30 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO SERVICE EMPLOYEES INTERNATIONAL UNION, DISTRICT 1199, THE HEALTH CARE AND SOCIAL SERVICE UNION, CASE NO. 23 CV 005597 CHANGE TO WIN, CLC Movant, JUDGE JULIE LYNCH VS. MEMORANDUM IN OPPOSITION TO MOTION TO VACATE ARBITRATION STATE OF OHIO, AWARD AND IN SUPPORT OF APPLICATION TO CONFIRM Respondent. ARBITRATION AWARD I INTRODUCTION The Service Employees International Union, District 1199, The Health Care and Social Service Union, Change to Win, CLC, (the “Union”) initiated the above-captioned action seeking to relitigate an arbitration award denying the Union’s grievance which sought additional payments to Union employees who worked during the pandemic. This issue is before this Court because the Union disagrees with the Arbitrator’s application and interpretation of the parties’ collective bargaining agreement (“the CBA”). The Arbitrator did not exceed the responsibility granted the Arbitrator under the CBA when applying the express terms of the CBA. This Court should not permit the Union to relitigate the arbitration and should deny the Union’s Application to Vacate the Award, and instead, should grant the State of Ohio’s Motion to Confirm the Arbitration Award This case arises from a contract interpretation arbitration between the State of Ohio (the “State”) and the Union regarding an emergency pay provision of the parties’ CBA. The Union asked Arbitrator William J. Miller (the “Arbitrator”) to grant a grievance which claimed that its members were entitled to an additional $8.00 per hour for a period of almost 16 months. After hearing testimony and analyzing both parties’ post-hearing briefs, the Arbitrator issued an Award [6] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 06573 - N31 denying the Union’s grievance in its entirety. The Union initiated the instant civil action on August 8, 2023, to challenge the Award and filed a briefin support of its motion (its “Application”), asking this Court to vacate the Award under R.C. § 2711.10(D) The Union’s Application takes aim at the Arbitrator’s interpretation of the CBA claiming that he “exceeded his authority” by “adding language to the agreement.” The Union improperly requests this Court to substitute its judgment for that of the Arbitrator, who was jointly selected through the Federal Mediation and Conciliation Service. In other words, the Union is asking this Court to reach a different interpretation of the language of the CBA, thereby relitigating the arbitration because they disagree with the result. However, it is well-settled that judicial review under the Ohio Arbitration Act, R.C. Chapter 2711, is “narrow” and “extremely limited.” The parties mutually selected Arbitrator Miller to resolve a dispute over the interpretation of the express contract language; specifically, whether Article 35.01(B) of the CBA required a certain stipend to be paid. The State of Ohio argued, and the Arbitrator agreed, that the express language contains two requirements, while the Union argued that the contract contains only one requirement. Specifically, the Arbitrator found that Section 35.01(B) of the CBA contains two prerequisites to the stipend being paid: (1) that an emergency be declared by the State and (2) that administrative leave be granted to a class of employees. The Arbitrator then correctly held that under the express provisions of this two-part Article 35 test, neither condition was satisfied: no emergency was declared that would make Article 35 operative, and administrative leave was not granted to a class of employees. Arbitration Record (“R”),! Arbitration Award (hereinafter, the 1 The Union filed a Notice of Filing on August 8, 2023, along with a copy of the parties’ CBA, the Award, and the various arbitration exhibits. Throughout this brief, the State will refer to these documents as the Arbitration Record (“R”). The Union’s Notice of Filing did not identify certain exhibits that it filed, including the Arbitration Award itself and the parties’ post-hearing briefs to the Arbitrator, nor are these exhibits plainly numbered or lettered on the docket. The State will refer to these documents by name and/or based on the order in which they were filed on the docket (e.g., the Union’s Fifth filed exhibit). [7] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 06573 - N32 “Award”) pp.20-21 Regarding the first factor of the two-part test the Arbitrator concluded: “The Agreement clearly provides in Article 5, Management Rights, that the Employer maintains the right to operate its work and business in the manner that it deems appropriate under the circumstances. This would not be considered as changing any provision of the Agreement or existing rule or regulation related to wages, hours and conditions of work. When the record is carefully reviewed and considered this is exactly what occurred in this situation. The Governor issued an emergency directive which specified how employees would work during the emergency. In my considered opinion, the Executive Order did not change any provision of the Agreement.” Regarding the second factor the arbitrator held: “State employee's obligations to travel to and from work is not to be limited as a result of this proclamation. In effect, the Employer was not activating its Public Safety Emergency Policy, and in fact employees were being directed to report to work.” the question arises as to whether or not the emergency was the kind which was envisioned by Article 35 of the Agreement. When Article 35 is carefully reviewed and considered, it becomes readily apparent that such provision contemplates some employees reporting for work, and other employees not reporting for work..... and in fact, as established by the jointly stipulated facts "both essential and non-essential State of Ohio employees were required to work during the period of the declared emergency from March 09, 2020 -June 18, 2021." Award, pp. 20-21 Based on these two findings, the Arbitrator concluded that the Union members were not entitled to the stipend. The arguments in the Union’s Application are the same arguments presented to the Arbitrator and that the Arbitrator rejected. See Award, pp.19-20; see also, R., Union’s Fifth filed exhibit (Union’s post-hearing brief). As discussed herein, the Union’s disagreement with the Arbitrator’s interpretation of the CBA is not a basis for vacating the Award. IL. STATEMENT OF FACTS Parties who submit their disputes to arbitration are bound by the arbitrator’s findings of fact — most of which were facts stipulated by the Union and State. See, Award, pp.18-19. The parties cannot “re-litigate” the facts before this Court. Ohio courts categorically reject parties’ [8] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23CV005597 0G573 - N3 claims that an arbitrator “got it wrong” or otherwise erred in making factual determinations. Therefore, for purposes of this Court’s limited review, the established facts are those set forth in Arbitrator Miller’s Award, issued on May 10, 2023, and the Stipulated Facts included therein. In 2006 the parties incorporated Section 35.01 into the CBA and it remained unchanged as of the 2018-2021 CBA. In 2020, Section 35.01(A), “Weather Emergency,” read, in pertinent part: Employees directed not to report to work or sent home due to weather as declared by the Director of the Department of Public Safety, shall be granted leave with pay at regular rate for their scheduled work hours during the duration of the weather emergency. The Director of the Department of Public Safety is the Governor’s designee to declare a weather emergency which affects the obligation to travel to and from work. Employees required to report to work or required to stay at work during such weather emergency shall receive their total rate of pay for hours worked during the weather emergency. In addition, employees who work during a weather emergency declared under this section shall receive a stipend of eight dollars ($8.00) per hour worked. The next provision, Section 35.01(B), titled “Other Than Weather Emergency,” read in its entirety as follows: Employees not designated essential may be required to work during an emergency. When an emergency, other than a weather emergency, is declared by the Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency, such leave is to be incident specific and only used in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected. Payment for hours worked for other than weather emergencies shall be pursuant to Section 35.01(A) above (Award, pg. 15-17). As explicitly stated, for 35.01(B) to be triggered, two events must occur: 1) “other than a weather emergency” must be declared, and 2) Administrative leave with pay must be granted for employees who are not required to work during the declared emergency. Arbitrator Miller found that no public health emergency occurred within the meaning of this CBA provision, and that administrative leave was not granted. (Award, 21). The Arbitrator recognized that State “maintains the right to operate its work and business in the manner that it deems appropriate under the circumstances.” Award, p.21. The Arbitrator 19] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N34 relied on specific provisions of the CBA in rejecting the Union’s proffered interpretation and provided a well-reasoned analysis of the applicable CBA language in Articles 5 and 35 (see Award, pp.21-22). Article 35.01(B) does expressly specifically define the phrase “other than weather emergency.” As such, under Article 1.03, the State has the right to define what constitutes an emergency. (R., Joint Exhibit 1, Collective Bargaining Agreement) Article 5 of the CBA, the management rights section, reserves to the State the power to define the term “Emergency” by expressly stating that the Employer retains the rights to: “5) make any and all rules and regulations.” The State promulgated a statewide policy, HR-D-11 to clarify the ambiguity of “emergency” under Article 35.01(B) by defining “Public Safety Emergency” as a declaration that would activate the first prerequisite of the required language of Article 35.01(B) R., Joint Ex. 16. Arbitrator Miller appropriately recognized management’s right to define “emergency” in his Award, explaining, “[t]he agreement clearly provides in Article 5, Management Rights, that the Employer maintains the right to operate its work and business in a manner that it deems appropriate under the circumstances.” He continued by finding that “the Governor issued an emergency directive which specified how employees would work during the emergency. In my considered opinion, the Executive Order did not change any provision of the Agreement.” Award, p.21. The Arbitrator further explained that “the Employer was not activating its Public Safety Emergency Policy, and in fact employees were being directed to report to work.” Id., p.20 (emphasis provided). Arbitrator Miller affirmed the State’s right under the CBA to utilize existing, known policies which defined “emergency”, which was accomplished through the Department of Administrative Services Directive HR-D-11, (R. Joint Exhibit 16), originally issued in 2011. The Arbitrator recognized that HR-D-11 distinguishes between an “ordinary” emergency and a “public [10] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N3 safety emergency.” A public safety emergency limits state employees’ obligation to travel to and from work while an ordinary emergency does not always have that effect. (Joint Exhibit 16). This directive was further revised in January 2018. (Award, p.11). The Union accepted these promulgated standards which existed since 2011 and through several iterations, a period of several negotiated CBAs between the parties. Collective bargaining agreements between the parties last up to 3 years. See R., Joint Exhibits 5 to 12. The COVID-19 pandemic began to impact Ohioans in early 2020. On March 9, 2020, Governor DeWine signed Executive Order 2020-01D (“Executive Order”), declaring a state of emergency. (Award, pg. 2). The Executive Order did not, however, declare an emergency for purposes of Section 35.01(B) of the parties’ CBA. (Award, pg. 20). Instead, the Executive Order explicitly excluded the implementation of HR-D-11, and obligations to travel to and from work were not to be limited as a result of the proclamation. (Award, pg. 21). According to the Arbitrator, the evidence showed that no employee received administrative leave as a result of the Executive Order being issued. (Award, p.21). The Union filed a grievance on behalf of thousands of State employees, seeking an additional $8.00/hour stipend from Section 35.01(B) of the CBA for all hours worked from March 8, 2020 through June 18, 2021. (Award, pg. 8). The State denied the grievance at each ‘step’ o the parties’ grievance process, and the parties proceeded to arbitration where the Union, as the moving party for contractual interpretation, had the burden of proof. The Arbitrator correctly found that the State properly applied the terms of the CBA. The Arbitrator issued an Award in which he agreed with the State’s interpretation of the contract language, and he denied the Union’s grievance. (Award, p.21). The Union then filed its Application seeking to vacate the Award. [11] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N3 Til. STANDARD OF REVIEW A. Judicial Review of Arbitration Awards is Narrow and Extremely Limited Under the Ohio Arbitration Act, “[t]he jurisdiction of the courts to review arbitration awards is . Statutorily restricted; it is narrow and it is limited.” Warren Edn. Assn. v. Warren City Bd. of Edn., 18 Ohio St.3d 170, 173 (1985) (emphasis added); cf Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3942, § 5 (the authority to vacate an arbitration award is “extremely limited’) (emphasis added). Ohio Revised Code § 2711.10 delineates the very rare circumstances in which a court may vacate an arbitration award. Section 10(D) of the statute provides for vacatur when an arbitrator “exceeded [his powers].” The Union cannot establish that Arbitrator Miller exceeded his powers or that his Award departs from the essence of the CBA. Therefore, the Court must deny the Union’s Application. B. Arbitration Awards are Presumed Valid “Ohio has a strong and well-established public policy favoring arbitration.” State v. OCSEA., Local 1] AFSCME AFL-CIO, 10th Dist. Franklin No. 14AP-906, 2016-Ohio-5899, citing Schaefer y. Allstate Ins. Co., 63 Ohio St.3d 708, 711 (1992). Accordingly, Ohio courts give deference to arbitration awards; they are “presumed valid, and a reviewing court may not merely substitute its judgment for that of the arbitrator.” Dodge v. Dodge, 10th Dist. No. 16AP-166, 2017- Ohio-7087, § 13 (10 Dist. 2017). “It is the policy of the law to favor and encourage arbitration and every reasonable intendment will be indulged to give effect to such proceedings and to favor the regularity and integrity of the arbitrator’s acts.” Mahoning Cty. Bd. of M.R. v. Mahoning Cty. TMR Educ. Ass’n., 22 Ohio St.2d 80, 84 (1986) (observing that “[t]he whole purpose of arbitration would be undermined if courts had broad authority to vacate an arbitrator’s award”). Cc A Trial Court May Not Evaluate the Actual Merits of an Award [12] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N37 The Union’s Application is a thinly veiled request for this Court to substitute its own judgment impermissibly for that of Arbitrator Miller. The role of the reviewing Court is very narrow: “[a] trial court may not evaluate the actual merits of an award and must limit its review to determining whether the appealing party has established that the award is defective within the confines of R.C. Chapter 2711.” Telle v. Estate of William Soroka, 2008-Ohio-4902, 4 9 (10th Dist. 2008). “The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” Goodyear Tire & Rubber Co. v. Local Union No. 220, United Rubber, Cork, Linoleum and Plastic Workers of Am., 42 Ohio St.2d 516 (1975), quoting United Steelworkers of America v. Enterprise Corp., 363 U.S. 593, 597 (1960). As the Ohio Supreme Court has similarly explained Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and the meaning of the contract that they have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts To resolve disputes about the application of a collective bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them. The same is true of the arbitrator’s interpretation of the contract S.O.R.T.A. v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108 (2001), citing United Paperworkers Internatl. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37-38 (1987) Iv. ARGUMENT The Union has failed to satisfy its heavy burden under R.C. §2711.10 to show that the Arbitrator exceeded his powers, and there is no basis for vacating or reversing his Award Arbitrator Miller properly based his decision on the clear language of the parties’ CBA. A. Arbitrator Miller Did Not Exceed His Authority; He Properly Interpreted nd Applied Article 35.01 B, “Other Than Weather Emergency” to Constru the CBA. The Arbitrator Did Not Add Requirements to the CBA. [13] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 06573 - N38 Judicial review of arbitration awards is narrowly limited by R.C. 2711.10 and 2711.11 Fresh Eggs Manager, LLC v. Ohio Fresh Eggs, 2013-Ohio-3454, P14 (10 Dist. 2013) “Arbitrators act within their authority to craft an award so long as the award draws its essence from the contract — that is, when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious, or unlawful.” Ohio Patrolmen’s Benevolent Ass'n v. City of Findlay, 149 Ohio St.3d 718 (2017). A “rational nexus” between the agreement and the award exists where the arbitration award is “rationally supported” by the agreement or can be "rationally derived" from the agreement. Piqua v. Fraternal Order of Police, OLC, 185 Ohio App.3d 496, 2009-Ohio-6591 § 26 (2nd Dist. 2009). In its attempts to persuade this Court that Arbitrator Miller somehow exceeded his authority, Plaintiff incorrectly applies /nternatl. Assn. of Firefighters, Local 67 v. Columbus, 95 Ohio St.3d 101, 104 (2002). In AFF Local 67, the Supreme Court of Ohio found that the arbitrator had improperly defined a term not expressly defined in the CBA, “disability,” by using a definition that was used by the employer but which did not comport with the ordinary definition, for which the Court consulted Black's Law Dictionary (7th Ed.1999). “In those particular circumstances,” the Court concluded that the arbitrator's decision had exceeded his powers. (emphasis added) Summit County Children Servs. Bd., 113 Ohio St. 3d 291, 294 (referencing JAFF, Local 67) Summit County Children Sers. Bd. more closely resembles the facts of this case than /AFF, Local 67. In Summit County Children Sers. Bd., the CBA at issue did not define "good cause," and accordingly the arbitrator was required to give that term its plain and ordinary meaning. /d, at 294 The Supreme Court distinguished its IAFF decision, holding that “by focusing myopically on our use of Black's Law Dictionary in JAFF, Local 67, the court of appeals in this case erroneously found that the arbitrator was constrained to use the ordinary definition of "good cause," as in [14] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N3 Black's Law Dictionary, without considering the context of this case, similar claims that had been arbitrated, and our prior decisions.” Id, at 294-295. The arbitrator was allowed to look elsewhere from the dictionary definition for the plain meaning ofan undefined CBA term. /d. The Supreme Court further stated that if the parties do not expressly prohibit its use in the CBA and if they leave the term undefined, they run the risk of the arbitrator looking outside the CBA for guidance in defining, interpreting, and applying that phrase. /d, at 296. The in the instant case used a reasonable, long-established known policy in analyzing and applying Section 35.01B. Here, the CBA in question did not define “other than a weather emergency.” To interpret the undefined term, Arbitrator Miller looked to the four corners of the contract for guidance, as well as the accompanying Executive Order. Under CBA Articles 1 and 5, as stated above, the State has the right to define “other that weather emergency.” The Executive Order specifically cited HR- D-11, and that there would be no impact on an employee’s obligation to travel to and from work HR-D-11 states that public safety emergency limits state employees’ obligation to travel to and from work. The definition of public safety emergency was used in 2010 to define the same topic and the same contract and provision at issue here between the State of Ohio and SEIU when the Governor issued an order to not implement DAS Directive 08-03. (Award, pg. 12) Here, as in Summit County Children Sers. Bd., Arbitrator Miller found the plain meaning from “similar claims that had been arbitrated” and not by focusing myopically on the Ohio Supreme Court’s use of Black's Law Dictionary in /AFF, Local 67. The Arbitrator referenced 2010 Award of another arbitrator stating, “Arbitrator Washington's decision covers the same topic and involves the same contract and provision at issue here.” R., Union Exhibit 8. The Tenth District Court of Appeals has also weighed in on the issue. "When a provision in a collective bargaining agreement is subject to more than one reasonable interpretation and the [15] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N40 parties to the contract have agreed to submit their contract interpretation disputes to final and binding arbitration, the arbitrator's interpretation of the contract, and not the interpretation of a reviewing court, governs the rights of the parties thereto. Professionals Guild of Ohio v. Franklin County Children Servs., 180 Ohio App. 3d 91, 98-99 (10" Dist. 2008) The Arbitrator reasonably interpreted “other than a weather emergency” by analyzing the express terms of the contract, and by properly referring to Governor DeWine’s Executive Order and HR-D-11 for the analysis of a term not otherwise defined in Article 35 itself. The Arbitrator’s well-reasoned Award did not consider one Article of the CBA in isolation, but multiple provisions including Article 1, Purpose and Intent of the Agreement, section 1.03, Total Agreement; and Article 5, Management Rights. Once the Arbitrator applied the CBA he concluded that the Executive Order did not enact the “other than emergency” requirement of Section 35.01. HR-D- 11 was clearly excluded: “This Proclamation does not require the implementation of the Department of Administrative Services Directive HR-D-11.” Award, pp.20-21 The Arbitrator found that the CBA provides the Employer the right to manage operations. While the parties and the Arbitrator agree that the Governor cannot change agreed upon language or negate the requirements of an existing contract by an Executive Order the Arbitrator clearly articulated how the Executive Order did not “negate” provisions of the CBA. The Arbitrator found that the use of the known policy did not “change” any of the language of the contract, stating: “T agree with the Union that Executive Orders cannot change agreed upon contractual provisions of the Agreement. However, this does not preclude an Executive Order being issued which may have an effect on an Agreement provision, by the way the order is issued. The Agreement clearly provides in Article 5, Management Rights, that the Employer maintains the right to operate its work and business in the manner that it deems appropriate under the circumstances. This would not be considered as changing any provision of the Agreement or existing rule or regulation related to wages, hours, and conditions of work.” Award, pp.19-20 (emphasis added). HR-D-11 had been promulgated and was known to both [16] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23CV005597 0G573 - N41 parties for nearly a decade before the COVID-19 pandemic and had remained unchanged in substance for multiple CBA negotiation cycles. The State’s issuance and use of HR-D-11 were proper exercise of its management rights HR-D-11 did not impermissibly alter or negate the express language of the CBA. Nor did the Executive Order change or negate any part of the CBA Notwithstanding, the Union argues erroneously that the CBA foreclosed the State’s issuance or reliance on HR-D-11 In its Application, the Union contends that the Award is deficient because it failed to consider other provisions addressing conflicts between the CBA and external sources. The Union does not, however, explain how HR-D-11 is in conflict in any way with the CBA. The Arbitrator gave no credence to this line of reasoning, stating: Upon carefully reviewing the Executive Order, a key part of such order is paragraph 6 which provides "this proclamation does not require the implementation of the Department of Administrative Services Directive HR-D-11 Award, page 21 Assuming arguendo that there was any merit to the Union’s argument about HR-D-11, the import of that directive was only on the analysis of the first ‘prong’ of the two-part test in Article 35. The Arbitrator correctly found that Avo conditions precedent must be met for the emergency pay provisions to become operative, and neither condition was met. No reference to HR-D-11 was necessary for the Arbitrator to determine that Article 35.01(B) was not fulfilled, as explained infra. Arbitrator Miller correctly applied the CBA’s “other than a weather emergency” provision; the CBA expressly reserves management’s right to promulgate directives such as HR-D-11. Executive Order 2020-01D expressly stated that the Order did not implement HR-D-11. Therefore, 35.01(B) could not have been activated due to the first requirement not being fulfilled B. Arbitrator Miller Did Not Exceed His Authority; Section 35.01(B) of the CBA Contained a Leave Requirement Prior to the Executive Order. The Union also cannot meet its heavy burden under R.C. 2711.10(D) due to the required second prong of Article 35.01(B): the administrative leave requirement. The Union’s Application [17] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N42 incorrectly alleges that “there is no such prerequisites, limitations, or requirements in the plain language agreed to by the Parties.” Union’s Application, p.14. The CBA makes clear there are two distinct requirements to activate Section 35.01(B): “When an emergency, other than a weather emergency, is declared by the Governor or designee and Administrative leave with pay is granted for employees not required to work during the declared emergency ” (emphasis added). The CBA language is in the conjunctive (“and”), and the Arbitrator’s Award properly gave effect to this two-pronged condition precedent. When analyzing the CBA language, the Arbitrator found that “when Article 35 is carefully reviewed and considered, it becomes readily apparent that such provision contemplates some employees reporting for work, and other employees not report for work.” (Award, p.21). The Abritrator found the second requirement was not met because “there was no opportunity for employees to refrain from working, and in fact, as established by the jointly stipulated facts, ‘both essential and non-essential State of Ohio employees were required to work during the period of the declared emergency.’” See Award, p.20, quoting Stipulation No. 7. The Union concedes that “the State had the authority, if it so desired, for people to stay home ... if it would have did that, it would have to provide them with a specific form of administrative leave The State decided not to provide that, which was also their right under the Agreement.” (Union’s Application, pg. 14, fn.). There were no layoffs of employees in this bargaining unit. Award, p.18 Arbitrator Miller interpreted and applied the CBA language; he did exactly what the parties authorized him to do, and did not “exceed” his authority. Even if Arbitrator Miller were incorrect in a fact determination or in an interpretation of the CBA, this would not constitute a basis for “vacatur” under R.C. 2711.10(D)’s extraordinarily stringent standard. The Supreme Court has held that “if the arbitrator interpreted the contract incorrectly, well, that was part of the deal.” Oxford Health Plans LLC vy. Sutter, 569 U.S. 564, 572-573 (2013). The Court went further to say: [18] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23C 005597 0G573 - N4 “All we say is that convincing a court of an arbitrator's error—even his grave error—is not enough. So long as the arbitrator was "arguably construing" the contract * * * a court may not correct his mistakes under [the statute]. The potential for those mistakes is the price of agreeing to arbitration." Id. Here, the Award draws its essence from the CBA because Arbitrator Miller was at least “arguably construing” the CBA, and the Union does not and cannot plausibly contend otherwise. The Union may disagree with the Arbitrator’s reasoning, but the Union cannot dispute that the Arbitrator’s analysis drew its essence from the CBA. Arbitrator Miller expressly stated in his Award that he reviewed and interpreted the CBA. Although the outcome was not favorable towards the Union, that “is the price of agreeing to arbitration.” Jd. In a desperate effort to prop up its foundering argument, the Union dialed in its rhetoric to the extreme by inserting an “alternate” version of Section 35.01 with “tracked changes” (i.e., strikeouts of certain language, and underlined/bold additions). The Union misleadingly and inappropriately portrays this CBA re-write as the finding of the Arbitrator, prefacing it as being “[a]ccording to the Arbitrator” and indenting it on either side (as if it were a quote). But Arbitrator Miller did no such thing, and the Union’s attempt to concoct an intriguing visual to support its flailing argument crosses a line into misrepresenting the Record. Nowhere in the Arbitrator’s Award did he expressly rewrite a section of the parties’ CBA in this fashion, as the Union insinuates and falsely portrays that he did. And nowhere in the Award did the Arbitrator implicitly rewrite the CBA to superimpose new or different terms. The Union is simply dissatisfied that the Arbitrator agreed with the State’s analysis of the language — i.e., that the Arbitrator considered and rejected the Union’s myopic approach to defining an “other than weather emergency.” The Arbitrator’s Award drew its essence from the CBA. The arbitrator analyzed and interpreted the clear contract language of Section 35.01 B and applied it to the facts presented (and to a large degree, stipulated by the parties) at an evidentiary hearing. A rational nexus exists [19] Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 06 4:27 PM-23CV005597 0G573 - N44 between the Award and the parties’ CBA, and the Union has failed to show that the Arbitrator exceeded his authority in any way. The Union’s failure to establish sufficient legal authority in support of vacating the Award is grounds for rejecting the Union’s Application. See, OCSEA, AFSCME Local 11 v. Franklin County Dep't of Human Servs., 2001 Ohio App. LEXIS 2587 (10th Dist. 2001). Accordingly, the State respectfully asks that the Union’s Application be denied