Arbitrator Not Free To “Piece Together” Final Offers

In Ohio, public safety collective bargaining culminates with the possibility of binding arbitration, referred to in Ohio law as “binding conciliation.” Arbitration proceeds on an issue-by-issue basis, with the arbitrator required to adopt the final offer of one of the parties on each issue.

In 2005, the City of Cincinnati and the Fraternal Order of Police (FOP) proceeded to arbitration on ten issues. One issue involved the question of shift differential for both supervisors and non-supervisors; a second issue involved the level of medical benefits for both sets of employees. The Arbitrator awarded the City’s position on both of the disputed issues.

The FOP challenged the Arbitrator’s decision in court, contending that the City’s final offers on the two issues were defective. The Ohio Court of Appeals agreed with the FOP, and remanded the matter back to the Arbitrator to award the FOP’s final offers on the shift differential and health insurance issues.

The Court observed that “both parties agreed that the Arbitrator was required to resolve the dispute between the parties by selecting, on an issue-by-issue basis, one of the party’s final settlement offers. Where a party has failed to submit a final offer, the conciliator must adopt the offer of the other party.”

The Court continued that “in this case, the Arbitrator unequivocally stated that she could not find the City’s position on the issue of shift differential for non-supervisors. Although she recognized that her authority was statutorily limited to choosing between final offers, she pieced together several submitted documents and made several inferences to determine the City’s position.”

The Court also noted that the Arbitrator “unequivocally stated” that the City’s offer for medical benefits was incomplete. In that instance, the Arbitrator “assumed that the final page of the AFSMCE labor agreement could be used to complete the offer.” The Court held that both acts by the Arbitrator violated the law. The Court observed that the Arbitrator was not authorized under the statute “to piece together the City’s final settlement offer.”

The City contended that it would elevate “form over substance” to vacate the Arbitrator’s award because the terms of the final settlement offers could be pieced together easily, and because the FOP was fully aware of the City’s position on all the issues. The Court was not convinced, holding that “the City ignores the Arbitrator’s finding that she could not find a complete, final settlement offer from the City on the issues of non-supervisory shift differential and supervisory and non-supervisory medical benefits. To complete the offers, she had to make some inferences. Thus, the substance of the offers was the problem, not the form, and the Arbitrator made this finding. Once she made this finding, she was required to adopt the FOP’s offer on these issues. The City could have easily avoided this problem by submitting a final settlement offer containing the exact contract language for the new contract.”

Fraternal Order of Police, Queen City Lodge #69 v. City of Cincinnati, 2006 WL 2571945 (OhioApp. 2006).

This article appears in the November 2006 issue