Association of Cleveland Fire Fighters, Local 93 of the International Ass'n of Fire Fighters v. City of Cleveland

O’Connor, J. ¶ 1 This case arises from a grievance filed by the Association of Cleveland Fire Fighters, Local 93 of the International Association of Fire Fighters. The union seeks to end the city of Cleveland’s practice of temporarily rescheduling fire fighters’ work shifts, a practice that has become known as “arrowing.” Facts and Procedural History ¶ 2 Under the collective bargaining agreement (“CBA”) between the union and the city, the union fire fighters annually select one of three 24-hour shifts, designated as A, B, and C, followed by 48 hours off work. The fire fighters also have an additional 24-hour shift off every third week, and an extra 24-hour shift off every ninth week. The result of the additional days off makes their average time worked 45.33 hours per week over a nine-week period. ¶ 3 Arrowing began in the 1960s, before the city and the fire fighters had a collective bargaining agreement. Arrowing was purportedly introduced to balance manpower across various shifts. The term derived from drawing an arrow on the company’s schedule from one shift to a different shift to show the shift change for a given day. Arrowing a shift changes the usual 48 hours off before and after a fire fighter’s shift. Instead, the fire fighter receives only 24 hours off before the arrowed shift and 72 hours off after the arrowed shift, or, vice versa, 72 hours off before and only 24 hours off after. The fire fighters receive regular pay for arrowed shifts. ¶ 4 The first CBA between the parties was executed in 1977 and was silent as to arrowing. The CBA has been renegotiated every three years. Although arrowing has never explicitly been addressed in a CBA between the parties, in response to language added to the CBA by the city in 1989 that may have been 478 construed to permit arrowing, the union attempted to negotiate the prohibition of arrowing in the 1992,1995, and 1998 agreements. ¶ 5 The dispute culminated with the union filing a grievance in 1999, protesting the city’s practice of arrowing. The arbitrator determined that the CBA permitted arrowing and that arrowing was a binding past practice of the parties. ¶ 6 The Cuyahoga County Court of Common Pleas vacated the arbitrator’s decision in a judgment entry without opinion, ordering that arrowing was to immediately cease. The court also scheduled a hearing regarding the union’s request for compensation. ¶ 7 The Eighth District Court of Appeals affirmed in part and reversed in part. The court upheld the common pleas court’s vacation of the arbitrator’s decision, but also reversed that part of the decision ordering the city to cease arrowing and scheduling a hearing regarding compensation for the affected fire fighters. The court reasoned that the common pleas court erred because it was limited to vacating the arbitrator’s award and restoring the parties to their positions prior to the vacated order. The court held that the terms of the CBA did not authorize arrowing, but significantly, the court did not hold that the CBA actually prohibits arrowing. ¶ 8 Determining that the appellate court’s opinion still left open the possibility of future arbitration and litigation of the issue and that an arbitrator could later find that the CBA did not prohibit arrowing, the union brought this appeal. The city cross-appealed, asking that the arbitrator’s decision be reinstated. Analysis ¶ 9 The union argues that arrowing violates the express terms of the CBA. We agree. Given the confused procedural posture of this case, we conclude that the proper disposition is a vacation of the arbitrator’s award, which in effect affirms in part and reverses in part the appellate court’s decision. We examine parts of both the arbitrator’s and appellate court’s decisions below. ¶ 10 The arbitrator focused primarily on two sections of the CBA in deciding that the CBA permitted arrowing. The arbitrator determined that Article VIII, entitled “Hours of Duty,” standing alone would prohibit arrowing. That section of the CBA states that “the normal work week shall consist of one (1) twenty-four (24) consecutive hour shift, followed by forty-eight (48) consecutive hours off work with an additional twenty-four (24) consecutive hours off work once every three (3) weeks so that no person shall average more than forty-eight (48) hours per week within said three (3) week period.” ¶ 11 However, the arbitrator went on to find that when Article VIII is read in conjunction with Article V, “Seniority,” arrowing is actually authorized by the 479 CBA. Article V reads in part, “A shift selection within the Union [sic, ‘Unit’?] or Battalion may be changed by a Company, Unit Commander or Battalion Commander where a discipline or morale problem must be solved, or for efficient operation of the Unit or Battalion.” The arbitrator interpreted Article V to allow the changing of a single day’s shift, rather than simply allowing management to permanently change a fire fighter’s annual shift selection. The arbitrator concluded that the two articles read in conjunction allowed arrowing. ¶ 12 R.C. 2711.10 provides, “In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if * * * (D) [t]he arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” ¶ 13 The public policy favoring arbitration requires that courts have only limited authority to vacate an arbitrator’s award. Mahoning Cty. Bd. of Mental Retardation & Developmental Disabilities v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St.3d 80, 84, 22 OBR 95, 488 N.E.2d 872. Accordingly, we have held that a reviewing court is limited to determining whether the award draws its essence from the CBA and whether the award is unlawful, arbitrary, or capricious. Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, 551 N.E.2d 186, paragraph two of the syllabus. “An arbitrator’s award draws its essence from a collective bargaining agreement when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious or unlawful.” Mahoning, supra, paragraph one of the syllabus. ¶ 14 The union argues that the arbitrator’s decision does not draw its essence from the CBA. The city points to the phrase “for efficient operation of the Unit or Battalion” in Article V to argue that the CBA permits arrowing. However, we are persuaded by the appellate court’s conclusion that the language in Article V refers to changes in the overall shift selection for the year, imposed after employees have selected one of the A, B, or C shifts on a seniority basis. The article is entitled “Seniority” and obviously does not refer to the temporary day-by-day changing of shifts to balance manpower levels. The plain language of the CBA clearly does not allow arrowing. Accordingly, the common pleas court and appellate court did not err in finding that the arbitrator exceeded his powers, because his award did not draw its essence from the CBA. ¶ 15 The arbitrator also concluded that arrowing is a binding past practice, “established and recognized by both parties * * * practiced openly and notoriously for more than 30 years.” However, arrowing cannot be interpreted as a binding past practice because of the union’s continuing vehement fight against its use. 480 ¶ 16 Other states have contemplated the factors required for a past practice to be binding. The predominant definition, and the one used by both the arbitrator and the union, requires that to be binding on parties to a collective bargaining agreement, a past practice must be (1) unequivocal, (2) clearly enunciated, and (3) followed for a reasonable period of time as a fixed and established practice accepted by both parties. Celanese Corp. of Am. (1954), 24 Labor Arb. Reports 168,172.1 We think this a sound and logical test, and hereby adopt it. ¶ 17 Under this newly adopted test, it is clear that arrowing cannot be considered a binding past practice, because the union did not accept the practice. The facts in the record are inadequate to properly examine the first two prongs of the test. The arbitrator merely summarily stated that the practice was “unequivocal and clearly enunciated and acted upon.” The arbitrator’s opinion provides no further assessment of those issues. ¶ 18 An examination of the first two prongs of the test is unnecessary, however, because there is ample evidence to adequately address the third prong. The third prong of the test requires that the practice be followed for a reasonable period of time as a fixed and established practice accepted by both parties. The city argues that the union in effect agreed to the practice because it failed to file a grievance for over 20 years. Nevertheless, filing a grievance is not the only vehicle for disagreement for the union. The union repeatedly attempted to negotiate language into CBAs to prohibit the practice or remove language that may have been construed to support the practice, so that the CBA would clearly and indisputably prohibit the further use of arrowing by the city. The history of the negotiations on this issue sufficiently demonstrates the union’s complete lack of acceptance of arrowing. ¶ 19 The union also asks us to close the loophole created by the appellate court’s caveat that “[t]his is not, however, a determination that the CBA prohibits arrowing” and to hold that the CBA expressly prohibits arrowing. Given our discussion above, we conclude that arrowing expressly violates the CBA. There is no question that arrowing violates the Article VIII requirement that fire fighters’ hours of duty follow a 24-hour-on and 48-hour-off schedule because it results in fire fighters having only 24 hours off between work days. Because we have also 481 examined and rejected the theory that arrowing is a binding past practice, we see no other avenue by which an argument may be made that arrowing is permissible. Therefore, we hold that arrowing violates the CBA. ¶ 20 Finally, the union asserts that the appellate court erred in determining that the trial court exceeded its authority in granting a cease-and-desist order and scheduling a hearing for determination of compensation for affected fire fighters. The appellate court correctly examined the judge’s statutory authority to vacate and modify an arbitrator’s award pursuant to R.C. 2711.10 and 2711.11. R.C. 2711.10 limits a common pleas judge’s authority to vacate an arbitrator’s award to certain specified circumstances.2 R.C. 2711.11 allows for modification or correction of an award under different circumstances that do not apply to this case.3 We therefore affirm the appellate court’s decision on this issue. The parties may continue arbitration on the issue of compensation for affected fire fighters. Judgment affirmed in part and reversed in part. Moyer, C.J., Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Grendell and Lundberg Stratton, JJ., concur in part and dissent in part. Diane V. Grendell, J., of the Eleventh Appellate District, J., sitting for Cook, J. Footnotes [1] See, also, Riverside Sheriff's Assn. v. Cty. of Riverside (2003), 106 Cal.App.4th 1285, 1291, 131 Cal.Rptr.2d 454; Mass. Corr. Officers Federated Union v. Sheriff of Bristol Cty. (2002), 55 Mass.App.Ct. 285, 291, 770 N.E.2d 528, citing Elkouri & Elkouri, How Arbitration Works (5th Ed.1997) 632; Reno v. Reno Fire Dept. (1995), 111 Nev. 1004, 1009-1010, 899 P.2d 1115; Seton Co. v. Unemployment Comp. Bd. of Review (Pa.Commw.1995), 663 A.2d 296, 299; Oshkosh Paraprofessional Edn. Assn. v. Oshkosh Area School Dist. (1995), 198 Wis.2d 388, 542 N.W.2d 238 (unpublished disposition; opinion at 1995 WL 702403). [2] R.C. 2711.10 reads, “In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if * * * (D) [t]he arbitrators exceeded their powers * * [3] {¶ a} R.C. 2711.11 reads: {¶ b} “In any of the following cases, the court of common pleas in the county wherein an award was made in an arbitration proceeding shall make an order modifying or correcting the award upon the application of any party to the arbitration if: {¶ c} “(A) There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award; {¶ d} “(B) The arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted; {¶ e} “(C) The award is imperfect in matter of form not affecting the merits of the controversy. {¶ f} “The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”