Login | October 16, 2018

Arbitrator’s decision stands in Portage Co. BDD contract dispute

TRACEY BLAIR
Legal News Reporter

Published: April 9, 2018

The 11th District Court of Appeals recently affirmed an arbitrator’s award in favor of the Portage County Educators Association for Developmental Disabilities.

Jennifer Conwell worked for the county’s Board of Developmental Disabilities as a registered service specialist and had a history of discipline.

Case summary indicates Conswell signed a Last Chance Employment Agreement with the Board and educators’ union on Sept. 8, 2014.

Conwell was suspended for three days in 2014 for attendance problems. She had three verbal and three written reprimands from 2009 to 2013 for tardiness and “lack of sufficient accrued sick leave.”

The agreement allowed Conwell to keep her job as long as she abided by certain conditions, including clocking in no later than 8:05 a.m. each workday.

She also agreed to have no more than five occurrences of being late or leaving work early without permission during any six-month period and to have no future instances of false documentation.

Conwell was terminated after the Board determined she improperly recorded her hours worked.

The union claimed a violation of the Last Chance Employment Agreement occurred, and a two-day hearing was held before the arbitrator.

Conwell, a 14-year Board employee, testified her attendance stemmed from personal and family problems.

She said the October 2014 incident that led to her firing resulted from her signing in at 8 a.m. – rather than the actual time of 8:11 a.m. -- as a matter of habit. However, she corrected that the next morning once she realized her mistake.

The arbitrator found Conwell’s actions that day did not violate the Last Chance clause banning “false or erroneous documentation.”

The arbitrator ordered she be reinstated to her previous position, with back pay.

In May 2016, the Board filed an application to vacate the arbitration award in Portage County Common Pleas Court.

The Association’s response said the Board failed to establish the arbitrator exceeded his authority.

The court denied the Board’s motion to vacate.

On appeal, the Board claimed the arbitrator exceeded his authority by disregarded the plain language of the Last Chance Agreement.

The arbitrator found the term “erroneous” documentation was unclear and ambiguous, noting there was no prior issue with Conwell erroneously documenting her time.

In addition, the arbitrator noted that mistakes on time sheets were common and that employees were given as long as one week to correct such mistakes.

“… The arbitrator found the Last Chance Agreement required some evidence that appellee was `trying to hide’ the mistake,” 11th District Judge Cynthia Westcott Rice stated in her 2-1 opinion. “Because Conwell corrected her mistake the day after it occurred, the arbitrator found no evidence that appellee was trying to hide the mistake.”

Appellate Judge Colleen Mary O’Toole concurred.

Eleventh District Judge Diane V. Grendell dissented, findng the trial court erred in upholding the arbitrator’s award.

“To decide otherwise is to abdicate this court’s authority to provide the appellant with proper review of its case and diminishes this court’s role to the point where it becomes a court of review in name only,” Judge Grendell stated.

Judge Grendell noted that the Last Chance Agreement was entered into due to Conwell’s “repeated” and “significant” attendance problems.

“… It completely defies logic for the arbitrator to apply the day-to-day rules and practices of employment for timekeeping which applied to other employees,” her dissenting opinion stated. “This is not properly considered given the clear terms of the Last Chance Agreement and is irrelevant since none of the other employees were subject to such an agreement. She was subject to the terms of the agreement due to attendance issues, which do not allow leeway for mistaken entries on the timesheet but, rather, specifically prohibit such mistakes.

Judge Grendell cited Chardon Local School Dist., 3 N.E.3d 1224, 2013-Ohio-4547, which found an arbitrator’s award is properly vacated when the interpretation of the parties’ agreement was not justified or necessary.

“… If we are not to reverse an arbitrator’s decision when he ignores the plain language of a document, overlooks the well-established law regarding unambiguous contract terms and creates his own contract to enforce upon the parties, when would this court ever reverse an arbitrator’s decision?” Grendell wrote. “The legislature would not have provided a statutory right for parties to seek appellate review if this court were to have no authority to reverse blatant errors of law. This distinguished court does not exist merely to rubber-stamp decisions reached.”

The case is cited Portage Cy. Bd. Of Dev. Disabilities v. Portage Cty. Educators Assn. for Dev. Disabilities, 2018-Ohio-1107.


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