164 Ohio App. 3d 408 | Ohio Ct. App. | 2005
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{¶ 1} Defendant-appellant, Queen City Lodge No. 69, Fraternal Order of Police ("FOP"), appeals from the order of the Hamilton County Court of Common Pleas granting the motion of plaintiff-appellee, the city of Cincinnati, to vacate an arbitrator's decision modifying the dismissal of the grievant, Police Officer Patrick Caton, to a 40-hour suspension. The FOP's single assignment of error challenges the trial court's finding that the arbitrator had exceeded her authority when she relied on the city police division's rules and regulations, a document extraneous to the collective-bargaining agreement between the parties. We hold that the arbitrator's award modifying Caton's termination drew its essence from the collective-bargaining agreement and that the trial court committed error by vacating the arbitrator's award under R.C.
{¶ 2} This case arose out of the death of Roger Owensby Jr. during his arrest by Cincinnati police officers on November 7, 2000. Summarizing from the arbitrator's decision, the arrest came about because Officer Caton and his partner, Officer Jorg, on information from Officer Hunter, suspected that Owensby had previously fled from police. They confronted Owensby outside a convenience store. During questioning, Owensby bolted and ran about six feet before Jorg tackled him. Caton assisted Jorg in trying to restrain him. As they struggled on the ground, Caton issued an "officer needs assistance" call on his radio. To avoid being handcuffed, Owensby placed his hands under his body. Caton then straddled Owensby in an attempt to secure his right arm. When he could not gain control of Owensby, Caton struck Owensby on his side and in the back with the base of the palm of his hand. Hunter sprayed Mace on Owensby. After Caton handcuffed Owensby's right wrist, he struck Owensby's right arm two or three times to bring it toward the middle of his back. Officer Hodge, who arrived on the scene with other police officers, used Caton's baton as a "pry tool" to assist in handcuffing Owensby. The officers restrained Owensby face-down on the ground with his hands handcuffed behind his back. They then lifted him to his feet and walked him to a police cruiser. Caton pulled Owensby into the back seat. As the last officer to leave the cruiser, Caton left Owensby alone in an *413 awkward position in the back seat, with the doors locked and the windows closed. Owensby had one leg underneath him and one leg on the floor. The time that elapsed from Caton's radio call for assistance until Owensby was placed in the cruiser was two minutes.
{¶ 3} Because police officers had used Mace on Owensby, Caton called his supervisor, Sergeant Watts, to the scene. Upon his arrival, Watts went to the cruiser to examine Owensby. He observed that Owensby "did not look natural." He was lying with his head down and his face turned to the back seat. His forehead was bruised, and he did not appear to be breathing. He had no pulse and was unresponsive. When Watts moved Owensby, blood and saliva came from his mouth. Officers removed him from the cruiser. On orders from Watts, Caton administered CPR to Owensby, but efforts to revive him were unsuccessful. Thirteen minutes elapsed from the time that Caton called for assistance until Watts ordered Owensby removed from the cruiser.
{¶ 4} The Hamilton County Coroner concluded that "the cause of Mr. Owensby's death was mechanical asphyxia and the manner of death was homicide (police intervention: asphyxiation during restraint attempts)." Caton was indicted for the crime of assault. Jorg was indicted for the crimes of involuntary manslaughter and assault. In October 2001, a jury acquitted Jorg of assault, but was unable to reach an agreement on the count of involuntary manslaughter. In November 2001, a jury acquitted Caton.
{¶ 5} Investigations were conducted by the Cincinnati Police Department's Criminal Investigations Section ("CIS") and Internal Investigations Section ("IIS") and the Office of Municipal Investigation ("OMI"). On September 24, 2002, IIS concluded that Caton had violated five rules of the Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Division ("the Rules Manual"):
{¶ 6} "(1) A failure to provide due care to Mr. Owensby after his arrest in violation of Rule 1.01A by not rinsing Mr. Owensby's face with plenty of clear cool water or exposing him to fresh air;
{¶ 7} "(2) A failure to tend to or seek medical aid for Mr. Owensby's injuries in violation of Rule 1.01C;
{¶ 8} "(3) Leaving Mr. Owensby unattended in the patrol car in violation of Rule 1.01E;
{¶ 9} "(4) Using more force in a situation than is reasonably necessary in violation of Rule 1.23; and
{¶ 10} "(5) A failure to report a use of force in violation of Rule 1.01D by not informing Sergeant Watts of his use of force against Mr. Owensby." *414
{¶ 11} On October 2, 2002, OMI recommended a sixth charge against Caton under Rule 2.12, concluding that he had "failed to exercise due care and safety [precautions regarding] Mr. Owensby, even though [he] was aware that Owensby sustained injuries during his struggle with the police."
{¶ 12} On November 18, 2002, Captain Raabe conducted a predisciplinary hearing at which Caton and his attorney were present. Raabe sustained all six charges and the specifications against Caton. He recommended a 10-day/80-hour suspension and forwarded his recommendation to the chief of police. The chief of police forwarded the results of the predisciplinary hearing to the city manager. After reviewing the results of the predisciplinary hearing, the city manager conferred with the chief of police, the law director, and the human-resources director. The human-resources director testified before the arbitrator that all three had recommended Caton's dismissal on grounds of failure of good behavior and neglect of duty. In her letter of February 25, 2003, the city manager informed the chief of police that she was disapproving Raabe's recommendation and ordering Caton to be discharged "[b]ased upon the severity of all of the sustained charges, as well as the cumulative effect ofthe six (6) sustained charges and Officer Caton's prior disciplinary history."1 (Emphasis added.) The FOP filed a grievance on behalf of Caton contesting his dismissal. Pursuant to Section 3, Article III of their collective-bargaining agreement, the parties submitted the grievance to binding arbitration.
{¶ 13} Following a two-day hearing, the arbitrator dismissed charges and specifications I, III, and IV, finding that the evidence was insufficient to sustain them. But she did sustain charges and specifications II and VI, involving a failure to provide medical care, and also sustained charge and specification V, involving a failure to report the use of force to a supervisor. The arbitrator reduced Caton's punishment from termination to a 40-hour suspension. On July 28, 2004, the city appealed the decision of the arbitrator to the common pleas court and moved to vacate the arbitrator's award. On February 17, 2005, the common pleas court, without opinion, vacated the arbitrator's award, stating in its judgment entry, "As the basis for the decision, the Court adopts * * * City of Cincinnati v. QueenCity Lodge No. 69, Fraternal Order of Police, Case No. AO401110," which was subsequently affirmed in 1st Dist. No. C-040454,
{¶ 15} When the parties have agreed in a collective-bargaining agreement to settle their disputes by using a mutually acceptable arbitrator rather than a judge, they have bargained for and agreed to accept the arbitrator's findings of fact and interpretation of the contract. A reviewing court cannot reject an arbitrator's findings of fact or interpretation of the contract simply because it disagrees with them. See SouthwestOhio Regional Transit Auth. at 110,
{¶ 16} "Judicial review of arbitration proceedings is extremely limited, and a court may not set aside an arbitrator's award except in the very limited circumstances set forth in R.C. 2711.10." Princeton City School Dist. Bd. of Edn. v. PrincetonAssn. of Classroom Educators (1999),
{¶ 17} In order to determine whether an arbitrator has exceeded his or her authority under R.C.
{¶ 18} An arbitrator's award draws its essence from the collective-bargaining agreement when there is a rational nexus between the agreement and the award. See Internatl. Assn. ofFirefighters v. Columbus (2002),
{¶ 21} We reject the city's contention that under its retention of managerial rights in Article II, and consistent with R.C.
{¶ 22} Here, the parties' collective-bargaining agreement did not define "just cause" and included no language that restricted the arbitrator's power to review the type of discipline imposed. The only restriction that did appear was in Step Six, Section 3, Article III, which stated that the arbitrator was to have no power "that will add to, subtract from, or alter, change, or modify the terms of this agreement and his/her power shall be limited to interpretation or application
of the express terms of this agreement." (Emphasis added.) Absent explicit instruction from the collective-bargaining agreement, the effect of the parties' agreement was to authorize the arbitrator to review both just cause for the discharge and the appropriateness of the discipline. See Bd. of Trustees of MiamiTwp.,
{¶ 23} The city manager ordered Caton's dismissal for "failure of good behavior and neglect of duty" pursuant to Rule 13.01 of the Rules Manual "[b]ased upon the severity of all of the sustained charges, as well as the cumulative effect of the six (6) sustained charges * * *." Of the three specifications and charges sustained by the arbitrator, two were for failure to "seek medical aid or provide first aid" because Caton knew that Owensby was "bruised and bleeding" and that force had been used against him. The third charge sustained by the arbitrator related to Caton's failure to immediately report the use of force, although the arbitrator found by way of mitigation that Caton was the only officer to call a supervisor due to the use of Mace. The city does not contend, and the arbitrator made no finding that suggested, that Caton's conduct caused or contributed to Owensby's death.
{¶ 24} In its brief, the city does not contest the arbitrator's finding that the evidence failed to clearly and convincingly demonstrate that Caton's conduct violated the rules cited in the specifications in charges II, III, and IV. The city contends, however, that the arbitrator went beyond the collective-bargaining agreement when as "arbitral precedent" she relied on "the Matrix," the table of *418 discipline in Section 15 of the Rules Manual, in determining that charges II, V, and VI did not amount to just cause for discharge.
{¶ 26} The city's reliance on Internatl. Assn. ofFirefighters is misplaced. In that case, the arbitrator was charged with interpreting a contract provision relating to paid injury leave and the meaning of the term "disabilities." The arbitrator interpreted "disabilities" in a manner that was contrary both to the ordinary definition of that term and to the definition provided in another section of the agreement. See
{¶ 27} Here the city contends that this holding, reached in a contract-interpretation case, applies equally to disciplinary-review cases. It urges us to conclude, as we did in the Officer Spellen decision, that an arbitrator exceeds his or her authority if the arbitrator "relie[s] on a source outside the agreement."
{¶ 28} The no-extraneous-source rule would lead to ludicrous results in disciplinary-arbitration cases because an arbitrator could never compare the severity of discipline in similar offenses. This result would also conflict with the Supreme Court's analysis in Bd. of Trustees of Miami Twp.,
{¶ 29} We note that in light of the Miami Twp. standard, the city's argument that the arbitrator could not employ the Matrix seems disingenuous, since the city maintains that the arbitrator should have deferred to the grounds for dismissal unilaterally selected by the city — from Section 13.01 of the Rules Manual. Moreover, at the arbitration hearing the city itself moved the Rules Manual into evidence as its exhibit 13, thus placing the manual before the arbitrator.
{¶ 30} We thus distinguish this case from the Officer Spellen decision, which we limit to its own unique facts and to the issue of whether a police officer's perjured in-court testimony constituted just cause.
{¶ 31} In the Officer Spellen decision, the arbitrator also stated that the award was based solely on the table of punishments in the Matrix, to the exclusion of other factors.
{¶ 32} Although the remedy the arbitrator selected was not explicitly mentioned in the collective-bargaining agreement, absent an express restriction, the parties, by the terms of their agreement, gave the arbitrator power to modify the dismissal and to bring Caton's discipline in line with the 24- to 40-hour suspensions for the same charges received respectively by Officers Lawson, Brazile, Hunter, and Sellers. See Bd. ofTrustees of Miami Twp.,
{¶ 34} We hold that the arbitrator's award in this case drew its essence from the collective-bargaining agreement and that there was a rational nexus between the agreement and the award because (1) the arbitrator determined that three charges against Caton were not sustained by the evidence when the city manager's stated reason for dismissal was based on the "cumulative effect of all six (6) sustained charges," (2) the arbitrator referred to "arbitral consistency" by considering the discipline administered in other arbitrations and citing the suspensions of five other officers ranging from 24 to 40 hours for the same or similar charges related to Owensby's in-custody death, and (3) the arbitrator found that the failure of the specifications to cite Rule 13.01 as the basis for the Caton's dismissal had deprived him of the opportunity to discuss or to defend against the charges at the predisciplinary hearing in which Raabe had recommended a suspension.
{¶ 35} Because the arbitrator's award modifying Caton's dismissal drew its essence from the collective-bargaining agreement and was not unlawful, arbitrary, or capricious, we reverse the judgment of the common pleas court and order that the arbitrator's award be reinstated.
Judgment accordingly.
DOAN, P.J., and HILDEBRANDT, J., concur.