Opinion
Nos. 83-217, 83-268, 83-452 and 83-899
Decided February 8, 1984.
Public employees — Labor relations — Contracts — Arbitration — Mediation provision of collective bargaining agreement not subject to confirmation procedure set forth in R.C. Chapter 2711 — "Arbitration" and "mediation," contrasted.
CERTIFIED by the Courts of Appeals for Pickaway, Montgomery, Stark and Lucas Counties.
These four cases arise as a result of contractual grievances filed by Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO, and several of its members (hereinafter "Ohio Council 8"), against the Ohio Department of Mental Retardation and Developmental Disabilities, the Ohio Department of Mental Health, the Northwest Ohio Developmental Center and the directors of those departmental agencies. There is no factual dispute in any of the four cases.
The aforementioned departmental agencies (hereinafter "state agencies") entered into contractual agreements with Ohio Council 8, containing identical provisions to the effect that unresolved labor grievances be submitted to an independent third party for mediation. Four members of Ohio Council 8 individually invoked these provisions, seeking mediation of labor grievances. In all four cases the mediators upheld the employees' grievances. Likewise, in each case, the departmental director rejected the mediator's determination, either in whole or in part, in accordance with a provision of the labor agreement authorizing rejection of the mediator's recommendation.
For purposes of these appeals, the pertinent portion of Article XXI of the labor agreement entered into by the parties provides:
"Step Four — Mediation. Any unresolved grievances which relate to the interpretation, application or enforcement of * * * this Agreement * * * may be submitted to mediation in strict accordance with the following:
"(A) Mediation shall be invoked by written notice to the other party of intention to mediate.
"* * *
"(C) The function of the mediator shall be of a consultive rather than a legislative nature. He shall not have power to add to, to ignore or to modify any of the terms and conditions of this Agreement. His advisory report shall not go beyond what is necessary for the interpretation and application of this Agreement * * *.
"* * *
"(G) The Mediator shall submit to the parties, in writing, the findings of fact and the advisory report. The Director shall have fourteen (14) calendar days following receipt of the advisory report to adopt or reject the advisory report. Such decision shall be in writing and communicated to the Union and the grievant not more than seventeen (17) calendar days after receipt of the advisory report. The Director hereby agrees to adopt the jointly solicited, neutral advice of the mediator unless he concludes the advisory report is contrary to the public interest or is unlawful, or the Director concludes the mediator is guilty of malfeasance, misfeasance, nonfeasance, or fraud. The Union hereby agrees to adopt the jointly solicited, neutral advice of the mediator unless the Ohio Council 8 Director concludes the mediator is guilty of malfeasance, misfeasance, nonfeasance or fraud.
"* * *
"(I) The Employer and the Union may mutually agree to modify the recommendations of the advisory report if the Director has communicated his written decision to reject an advisory report pursuant to provisions (G) and (H), above. Such modification(s) must be concluded, in writing, within forty-five (45) calendar days after receipt of the advisory report. Such modification(s) shall be submitted to the Director and considered an original advisory report." (Emphasis added.)
Ohio Council 8 then instituted separate proceedings in four counties seeking enforcement of the mediators' recommendations under R.C. Chapter 2711. In case Nos. 83-268 and 83-899 the Courts of Common Pleas of Montgomery and Lucas Counties dismissed the complaints for lack of subject matter jurisdiction, concluding that the arbitration review procedure set forth in R.C. Chapter 2711 does not encompass mediation proceedings. These judgments were subsequently upheld by the Courts of Appeals for Montgomery and Lucas Counties.
In case No. 83-452, the Court of Common Pleas of Stark County assumed jurisdiction of the action brought by Ohio Council 8 and ordered the Ohio Department of Mental Health to comply with the terms of the mediator's recommendation. On appeal, the court of appeals reversed, concluding that the trial court was without subject matter jurisdiction to entertain the action.
In case No. 83-217, the Court of Common Pleas of Pickaway County assumed jurisdiction over the proceeding brought by Ohio Council 8 and ordered the Ohio Department of Mental Retardation and Developmental Disabilities to comply with the mediator's award. This judgment was subsequently affirmed by the court of appeals which concluded that the mediation procedure contained in the agreement was enforceable under R.C. Chapter 2711.
The Court of Appeals for Pickaway County then certified its judgment as in conflict with the judgment of the Court of Appeals for Montgomery County. Thereafter, the Courts of Appeals for Montgomery, Stark and Lucas Counties each certified their respective judgments as conflicting with the judgment of the Court of Appeals for Pickaway County.
The causes are now consolidated before this court for review and final determination.
Ms. Sandra Mendel, for appellees, in case No. 83-217, and for appellants in case Nos. 83-268, 83-452 and 83-899.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. B. Douglas Anderson, for appellants in case No. 83-217, and for appellees in case Nos. 83-268, 83-452 and 83-899.
The issue presented for review is whether the mediation provisions of the collective bargaining agreements between Ohio Council 8 and the state agencies are subject to the arbitration confirmation procedure set forth in R.C. Chapter 2711.
R.C. 2711.01 provides in pertinent part:
" A provision in any written contract * * * to settle by arbitration a controversy thereafter arising out of such contract * * * or any agreement in writing between two or more persons to submit to arbitration any controversy * * * shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (Emphasis added.)
R.C. 2711.09 provides, in part, as follows:
"At any time within one year after an award in an arbitration proceeding is made, any party to the arbitration may apply to the court of common pleas for an order confirming the award. * * *" (Emphasis added.)
The state agencies collectively contend that a court of common pleas does not have subject matter jurisdiction to review or confirm a third party's recommendation for resolution of a labor grievance under the subject agreement, since the agreement refers to "mediation" and an "advisory report," whereas R.C. 2711.01 et seq. only provides for review of awards made in arbitration.
Conversely, Ohio Council 8 maintains there is no legal distinction between the term "mediation," as referenced in the aforementioned contractual provisions, and "arbitration" as contained in R.C. Chapter 2711. As such, Ohio Council 8 labels the state agencies' argument semantical and contends that the agreement is enforceable under R.C. Chapter 2711. We disagree and conclude, based upon an examination of various definitions, case law and treatises on commercial arbitration, that mediation and arbitration represent separate and distinct means of attempting to resolve grievances.
For example, Webster's Third New International Dictionary (1966) defines "arbitration" as the "* * * hearing and determining of a case between parties in controversy by a person or persons chosen by the parties * * * instead of by a judicial tribunal * * *." (Emphasis added.) On the other hand, "mediation" is defined therein as "* * * intervention between conflicting parties or viewpoints to promote reconciliation, settlement, compromise, or understanding * * *." (Emphasis added.)
This distinction, between submission of a controversy for determination and submission of a controversy to promote reconciliation, was recognized over a century ago by the United States Supreme Court in Gordon v. United States (1868), 74 U.S. (7 Wall.) 188. Therein, the court stated that "[i]n order to clothe a person with the authority of an arbitrator, the parties must mutually agree to be bound by the decision of the person chosen to determine the matter in controversy." Id. at 194. Accord Matter of Riverdale Fabrics Corp. (Tillinghast-Stiles Co.) (1954), 306 N.Y. 288, 118 N.E.2d 104.
Additionally, in District of Columbia v. Bailey (1898), 171 U.S. 161, 171, the court, quoting from the Supreme Court of New Hampshire in Whitcher v. Whitcher (1870), 49 N.H. 176, 180, stated:
"`A submission [to arbitration] is a contract between two or more parties, whereby they agree to refer the subject in dispute to others and to be bound by their award, and the submission itself implies an agreement to abide the result, even if no such agreement were expressed.'"
Finally, in his treatise on commercial arbitration, Professor Martin Domke discusses the terms "mediation" and "arbitration," as follows:
Domke, The Law and Practice of Commercial Arbitration (1968), Section 1.02, at page 3.
"Arbitration differs from mediation and conciliation. These are processes mostly used in the settlement of labor-management grievances where the parties in dispute resort to the services of a third person to help them reach a compromise or to offer a recommendation for a settlement. This recommendation is not binding upon the parties and is not enforceable by court action. Arbitration, however, is based on a voluntary agreement of the parties, made before the arbitration process is instituted, to submit a dispute for the binding decision of the arbitrator. As it was said: `Mediation is an advisory, arbitration a judicial, function. Mediation recommends, arbitration decides.'" (Citing Moore, 7 Digest of International Law [1906] 25.)
Notwithstanding the argument advanced by Ohio Council 8, it is clear that the terms "mediation" and "arbitration" are not functionally equivalent, but represent different methods with which to attempt to resolve grievances. R.C. Chapter 2711 only vests jurisdiction in the courts of common pleas to confirm awards made in arbitration proceedings. However, the proceedings which Ohio Council 8 and its members seek to enforce do not stem from arbitration. Instead, the proceedings can best be described as mediatory. An examination of the pertinent provisions of the aforementioned agreement demonstrates that the third party was not only labeled as a "mediator," but was to function in an "advisory" capacity. In addition, either side could reject the advisory opinion for a variety of reasons specifically set forth within the agreement.
Contrary to the decision of the Court of Appeals for Pickaway County, the parties did not agree to be bound by the decision of a third party. In fact, the agreement expressly provides otherwise. Without this critical element, there was no arbitration and, therefore, the provisions of R.C. Chapter 2711 are not available to confirm the mediators' recommendations concerning the grievances filed by Ohio Council 8 and its members.
For the foregoing reasons, the judgments of the Courts of Appeals for Montgomery, Stark and Lucas Counties are affirmed, and the judgment of the Court of Appeals for Pickaway County is reversed.
Alternatively, the state agencies contend that the lower courts lacked jurisdiction to confirm the mediators' recommendations on the basis of sovereign immunity. In view of our holding, this contention need not be addressed.
Judgment in case No. 83-217 reversed.
Judgments in case Nos. 83-268, 83-452 and 83-899 affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.