Toledo Area Regional Transit Auth. v. Kynard , 2016 Ohio 850 ( 2016 )

[Cite as Toledo Area Regional Transit Auth. v. Kynard, 2016-Ohio-850.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Toledo Area Regional Transit Authority Court of Appeals No. L-15-1140
Appellee Trial Court No. CI0201501336
v.
Yvette Kynard, et al. DECISION AND JUDGMENT
Appellants Decided: March 4, 2016
*****
Ronald G. Linville and Samuel E. Endicott, for appellee.
Brian J. Smith, for appellants.
*****
OSOWIK, J.
{¶ 1} This is an appeal from an April 27, 2015 judgment of the Lucas County
Court of Common Pleas, which granted appellee’s motion to partially vacate an
arbitration award. The disputed arbitration ruling was issued following a mandatory
arbitration proceeding conducted pursuant to the governing collective bargaining
agreement (“CBA”) executed between the Toledo Area Regional Transit Authority
(“TARTA”) and the Amalgamated Transit Union, ALF-CIO, Local 697 (“union”). The
trial court subsequently determined that the disputed portion of the arbitrator’s ruling was
in violation of R.C. 2711.10(D). For the reasons set forth below, this court affirms the
judgment of the trial court.
{¶ 2} Appellants set forth the following two assignments of error:
The Lucas County Court of Common Pleas erred in its Opinion and
Order dated April 27, 2015, granting the Motion to Partially Vacate
Arbitration Award filed by the Plaintiff/Appellee Toledo Area Regional
Transit Authority.
The Lucas County Court of Common Pleas erred in its Opinion and
Order dated April 27, 2015, concluding that an arbitrator exceeds his
authority when reviewing discipline imposed for violation of a policy
adopted by an employer if the policy provides a non-arbitrary definitive
sanction.
{¶ 3} The following undisputed facts are relevant to this appeal. TARTA is
metropolitan Toledo’s taxpayer funded mass transit system, responsible for transporting
thousands of residents daily around the region. The union represents TARTA’s bus
operators, including appellant Kynard. The applicable collective bargaining agreement
governing this matter was effective from August 8, 2011 until August 7, 2014. The CBA
required that any disputes between the two parties concerning employee discipline be
2.
submitted to arbitration. Significantly, the CBA expressly provided that “the Arbitrator
shall be limited in his/her discretion to the application and interpretation of the provisions
of the [the CBA] and the Arbitrator shall have no authority to alter, amend, modify, add
to, subtract from or change the terms of [the CBA].” (Emphasis added.)
{¶ 4} Appellant Kynard has been employed by TARTA for many years as a bus
operator. The record reflects that during her term of employment, she has been
disciplined multiple times for violating certain policies set forth in the CBA, including
TARTA’s cell phone policy. The cell phone policy prohibits TARTA bus operators, such
as appellant Kynard, from utilizing their personal cell phones while they are on or
operating a TARTA bus.
{¶ 5} The sole time TARTA bus operators are permitted to use their personal cell
phones is during an official designated layover. At that time, bus operators must exit the
bus if they wish to use their personal cell phone. According to the mutually agreed upon
terms of the policy, as set forth in the CBA, a first violation of the policy results in a two-
day suspension for the violator. Subsequently, a second violation occurring within the
same 542-day period, results in termination. At the conclusion of the contractually
defined time period, previous violations within that period no longer count relative to
future violations committed by an operator in the subsequent time period. In addition,
pursuant to the explicit terms of the policy established in the CBA, TARTA has the right
to terminate employment on a first offense if warranted by the seriousness of a violation.
Appellant has been found to have been in violation of the policy on three occasions.
3.
{¶ 6} On the day of the underlying incident, appellant Kynard was assigned to
work TARTA’s Call-A-Ride Service. This service enables TARTA customers to call
TARTA for a ride beyond the limits of the normally defined bus routes. Riders utilizing
the service are picked up and transported to a stated destination. Accordingly, the Call-
A-Ride drivers are furnished TARTA cell phones to receive calls from TARTA
customers. In addition, the TARTA drivers performing this service are granted extra
time to pick up the customers utilizing the Call-A-Ride service so as to allot the drivers
adequate time to perform all of their job duties.
{¶ 7} On November 11, 2013, appellant Kynard was operating a Call-A-Ride bus
in Maumee, Ohio. Appellant Kynard received a phone call on her TARTA mobile phone
from a TARTA customer who requested to be picked up at a location just one and
one-half miles from her location. Appellant Kynard advised the customer that she would
not be picking him up. Appellant Kynard did so even though the customer was in close
proximity to her and despite having ample time available before her next obligation.
Nevertheless, she told the customer that he would have to wait for over one hour for the
next available driver.
{¶ 8} The record reflects that after refusing to perform her assigned job duty,
appellant Kynard drove her TARTA bus to a nearby shopping center, parked the bus, and
then utilized her personal cell phone for nearly 20 minutes without exiting the bus. The
record shows that appellant Kynard made multiple personal calls and texts during the
time that the customer could have been picked up and transported.
4.
{¶ 9} Following this incident, the customer called TARTA and reported the event.
Accordingly, an investigation was launched by TARTA’s Superintendent of
Transportation to ascertain what had occurred, particularly in connection to appellant
Kynard’s CBA obligations.
{¶ 10} The investigation revealed that appellant Kynard, who has a history of cell
phone violations, had again violated TARTA’s cell phone policy. Appellant Kynard
refused to perform her job duties and instead parked her TARTA bus and commenced
personal cell phone use in violation of the CBA.
{¶ 11} A disciplinary hearing was held. Appellant Kynard was found to have
violated the policy. A two-day suspension for violating the policy was imposed, as
mandated by the CBA. In response, the union filed a grievance on her behalf,
challenging the suspension. Pursuant to the CBA, the dispute was then submitted to
arbitration.
{¶ 12} On November 10, 2014, the arbitrator found that although appellant
Kynard had violated the cell phone policy, “[I]n a literal sense,” she should receive an
award of a discipline modification to a written warning, along with a one-day suspension.
This outcome runs contrary to the fixed sanction of a two-day suspension set forth in the
mutually agreed upon terms of the CBA. The award further opined that appellant Kynard
should have been subjected to a progressive discipline policy, but the CBA cell phone
policy provisions do not establish a progressive discipline policy such as that suggested
by the arbitrator. As such, TARTA filed a motion to vacate this portion of the award.
5.
The trial court found that the arbitrator had violated R.C. 2711.10(D). TARTA’s motion
was granted. This appeal ensued.
{¶ 13} We note that both assignments of error are rooted in the same underlying
premise that the trial court’s modification of the arbitrator’s discipline was improper. In
the first assignment of error, appellants contend that the trial court erred when it granted
TARTA’s motion to partially vacate the arbitration award. Similarly, in the second
assignment of error, appellants argue that the trial court erred when it ruled that the
arbitrator had exceeded his authority. We do not concur.
{¶ 14} Under Ohio law, the appellate court reviews the trial court’s decision to
vacate an arbitration award on a de novo basis. Piqua v. Fraternal Order of Police, 185
Ohio App.3d 496, 2009-Ohio-6591, 924 N.E.2d 876, ¶ 15 (2d Dist.). The appellate court
reviews the judgment “independently and without deference to the trial court’s
determination.” Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d
1153 (4th Dist.1993).
{¶ 15} R.C. 2711.10(D) sets forth the relevant considerations the trial court must
take into account when vacating an arbitration award:
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) The arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the subject
matter submitted was not made.
6.
{¶ 16} In determining the proper boundaries of an arbitration award, “The
arbitrator is confined to the interpretation and application of the collective bargaining
agreement * * * he is without authority to disregard or modify plain and unambiguous
provisions.” AFSCME, Ohio Council 8, Local 3536 v. Clermont County Dept. of Human
Servs., 112 Ohio App.3d 401, 404, 678 N.E.2d 998 (12th Dist.1996). In addition, the
arbitrator must, “[C]onstrue the terms used in the agreement according to their plain and
ordinary meaning.” Int’l Ass’n of Firefighters, Local 67 v. Columbus, 95 Ohio St.3d 101,
103, 766 N.E.2d 139 (2002).
{¶ 17} The record reflects that the arbitrator improperly went outside the bounds
of the terms and conditions of the mutually agreed upon CBA. The trial court correctly
found this to be improper. Wherefore, based upon the forgoing, we find appellants’ first
and second assignments of error to be not well-taken.
{¶ 18} Accordingly, the judgment of the Lucas County Court of Common Pleas is
hereby affirmed. Appellants are ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
7.
Toledo Area Regional Transit
Auth. v. Kynard
C.A. No. L-15-1140
Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
8.