Cleveland v. Internatl. Bhd. of Elec. Workers Local 38Cleveland v. Internatl. Bhd. of Elec. Workers Local 38
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-659325
ATTORNEYS FOR APPELLANT
Robert J. Triozzi
Director of Law
Theodora M. Monegan
Chief Assistant Director of Law
BY: Steven J. Moody
Assistant Director of Law
City of Cleveland
City Hall - Room 106
601 Lakeside Avenue
Cleveland, OH 44114-1077
ATTORNEYS FOR APPELLEE
Joyce Goldstein
Gina Fraternali
Goldstein Gragel LLC
1040 The Leader Building
526 Superior Avenue, East
Cleveland, OH 44114
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, city of Cleveland, appeals from an order that denied its motion to vacate an arbitrator‘s decision to reinstate the employment of Cheryl Waiters, a member of appellee, Internаtional Brotherhood of Electrical Workers, Local 38. The city terminated Waiters after learning that she left a voicemail with a friend in which she made threatening remarks about two co-workers. The arbitrator upheld the union‘s grievance on grounds that the friend, whom the city relied upon as its primary witness, lacked credibility because, among other things, she refused to turn over thе entire tape recording of her conversation with Waiters. The city raises issues concerning (1) the admission of a tape recording; (2) the arbitrator‘s bias; and (3) the court‘s refusal to issue findings of fact and conclusions of law. We find no error and affirm.
I
{¶ 2} Waiters, a union member whose employment was subject to the terms of a collective bargaining agreement, worked as an electrician at Cleveland Hopkins International Airport. During this time, she was also partners, both professionally and personally, with Carol Westerfield. Their business relationship ended on a bad note, with Waiters suing Westerfield for fraud.
{¶ 4} At the same time, the police began an independent investigation of Westerfield‘s aсcusations. When questioned by the police, Westerfield reiterated the threats made by Waiters, but when asked to give more specific information, she declined, saying that her attorney had told her not to discuss the matter with anyone because of the pending legal proceedings between her and Waiters.
{¶ 5} The city then terminated Waiters, finding her discharge justified in light of her past disciplinary history, the nature of the threats, and verification that Waiters owned a gun. Waiters filed a grievance seeking reinstatement. The city conducted a hearing and denied the grievance. The union demanded arbitration.
{¶ 7} At the arbitration, the city offered testimony to show that Waiters had a poor disciplinary record, and that other workers felt threatened by her. None of the allegedly threatened employees testified at the arbitration. One employee did testify that in 2005, Waiters threatened to “blow up” the airport, but the employee did not take this threat seriously and did not report it to his supervisors.
{¶ 8} Westerfield testified at the arbitration and described the personal and professional relationships she maintained with Waiters. She said that two to three years earlier, she heard Waiters twice make different threats to blow up the airport: one when she believed she had been the object of discrimination; the other when passed over for promotion. Westerfield testified that on the day she received service of the lawsuit filed by Waiters, she spoke by telephone with Waiters. After that call, Westerfield called the airport and asked it to help her because Waiters had a “mental disability” and Westerfield was tired of being the “whipping post here for something that‘s going on out there with you guys.”
{¶ 9} During cross-examination of Westerfield, the union asked her whether she had ever threatened Waiters‘s job. Westerfield denied threatening Waiters. With no objection from the city, the union played a tape recording from part of a telephone conversation between Westerfield and Waiters in which Westerfield said, “[y]ou better answer - You better answer to the City. See what they tell you. What kind of problems you got coming. You keep messing with me.” Westerfield acknowledged that the tape recording was genuine, but claimed to have a complete recording of their conversation that she would make available to the arbitrator. She did not, however, provide that tape recording.
{¶ 10} Waiters testified and denied most of the allegations against her, including the allegation that she threatened airport employees.
{¶ 11} At the close of the hearing, the city asked the arbitrator to leave the hearing open so that it could play a voicemail message that Westerfield said had been contained on a “computer chip in a cell phone that had been received by the City.” The arbitrator asked the city to play thе message, but the city could not because the cell phone needed to be activated. The arbitrator denied the request to keep the evidence open on grounds that the hearing had been closed and there had been no prior claim by the city that it had been in possession of the cell phone.
{¶ 13} The arbitrator went on to state other reasons for finding Westerfield lacked credibility: he found her allegations illogical; noted that she continually
{¶ 14} In the end, the arbitrator found that Westerfield was not credible and that “[t]here is no proof that Waiters is guilty of any conduct for which she may be punished.” He upheld the grievance and ordered her to be reinstated with back pay, subject to any “ordinary and customary Fitness-for-Duty Examination.”
II
{¶ 15} The city first argues that the court erred by refusing to vacate the arbitrator‘s decision because the arbitrator acted in manifest disregard for the law by allowing a tаpe recording into evidence without first requiring a proper foundation for its admission.
{¶ 16} We begin our discussion of this appeal by noting that voluntary termination of legal disputes by binding arbitration is favored by the law. Kelm v. Kelm (1993), 68 Ohio St.3d 26, 27. For this reason, courts have very limited authority to review arbitration awards. Warren Edn. Assn. v. Warren City Bd. of Edn. (1985), 18 Ohio St.3d 170; Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129.
{¶ 17} Thе city urges us to employ a non-statutory, judicially created standard of review known as the “manifest disregard of the law” standard. The United States Court of Appeals for the Sixth Circuit explained this standard in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker (C.A.2, 1986), 808 F.2d 930.
{¶ 18} “‘Manifest disregard of the law by arbitrators is a judicially-created ground for vacating their arbitration award, which was introduced by the Supreme Court in Wilko v. Swan, 346 U.S. 427, 436-37, 74 S.Ct. 182, 187-88, 98 L.Ed. 168 (1953). It is not to be found in the federal arbitration law.
{¶ 19} We mentioned the manifest disregard of the law standard in Cuyahoga Metro. Hous. Auth. v. SEIU Local 47, Cuyahoga App. No. 88893, 2007-Ohio-4292 and Suttle v. DeCesare (July 5, 2001), Cuyahoga App. No. 77753. In both cases, the arguments offered under that standard were summarily rejected. On neither occasion, however, did we engage in any discussion as to whether the manifest disregard of the law standard is a viable means for vacating an arbitration award.
{¶ 20} In Warren Edn. Assn., the supreme court stated: “[T]he vacation, modification or correction of an award may only be made on the grounds listed in
{¶ 22} “As with appellant‘s assertions regarding a violation of ‘рublic policy’ and consistent with the law of this state, this court will not expand the scope of our review of the arbitration award to include a separate and independent ‘manifest error’ standard. Again, our review is strictly limited to those certain prescribed circumstances set forth in
{¶ 23} Consistent with Warren Edn. Assoc. and earlier precedent from this court, we continue to adhere to the proposition that
III
{¶ 25}
{¶ 26} In his opinion, the arbitrator noted that the parties stipulated that the grievance was arbitrable and also stipulated the issue presented to the arbitrator: “Did the City have just cause to discharge the Grievant and, if not, what should be the remedy?” The arbitrator found that the city did not have just cause to dismiss Waiters and as a remedy ordered her reinstatement. This decision fully resolved those issues presented to the arbitrator, so he did not imperfectly execute his powers.
{¶ 27} The city‘s argument concerning the arbitrator‘s reliance on the tape recording after first claiming that it was “immaterial” appears to be nothing
IV
{¶ 28} In its third assignment of error, the city complains that the court should have vacated the arbitration award because the arbitrator showed bias against the city. It claims that bias is shown by the arbitrator‘s “attacks” on Westerfield‘s testimony and his refusal to give weight to any of the testimony offered by the city‘s other witnesses.
{¶ 29} The arbitrator considered the testimony of witnesses other than Westerfield in his decision, as shown by its detailed statement of facts that summarized the testimony of each witness.
{¶ 31} The arbitrator likely did not give consideration to the city‘s other witnesses bеcause they had no personal knowledge of the threats allegedly made by Waiters. Westerfield alone heard those alleged threats and she alone communicated those threats to airport management. None of the city‘s other witnesses had firsthand knowledge of the threats, so their testimony on the issue of just cause had no evidentiary value. Moreover, testimony by the city‘s other witnesses concerning Waiters‘s past conduct and disciplinary history was irrelevant to the issue of whether the city had just cause to terminate Waiters for these particular threats. Had the arbitrator relied on testimony from these other employees, he would have based his decision on conduct that was not the basis of dismissal.
{¶ 32} We understand that the city acted to respond to what it perceived to be an imminent threat of danger to its employees. The arbitrator acknowledged this same point, concluding that the city conducted an adequate investigation of the matter and had “good cause to do ‘something’ to make sure that no threats were carried out at the Airport.” But the arbitrator also found that the lack of proof that Waiters actually made any threats did not mean that the city‘s cause to do “something” included the right to discharge. There could be no just cause
V
{¶ 33} Finally, the city argues that the сourt erred by failing to issue findings of fact and conclusions of law when ruling on the motion to vacate the arbitration award.
{¶ 34} We summarily overrule this assignment. When parties voluntarily agree to submit their dispute to binding arbitration, they agree to accept the result, regardless of its legal or factual accuracy. Cleveland v. Fraternal Order of Police, Lodge No. 8 (1991), 76 Ohio App.3d 755, 758; Ford Hull-Mar Nursing Home, Inc. v. Marr Knapp Crawfis & Assoc., Inc. (2000), 138 Ohio App.3d 174, 179. Findings of fact and conclusions of law under
Judgment affirmed.
It is оrdered that appellee recover of appellant its costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR