JANE P. WISEMAN, Judge.
¶ 1 Fraternal Order of Police, Lodge 93 (FOP) and Kendra Miller appeal from the trial court's order vacating the July 30, 2012, arbitration decision. Based on our review of the facts and applicable law, we conclude the trial court's decision should be affirmed.
¶ 2 In May 2004, Kendra Miller was hired as a police officer for the Tulsa Police Department (TPD). In October 2006, the Federal Bureau of Investigation began investigating Miller in connection with her romantic involvement with Julio Lujan. Lujan, a club manager, was suspected of drug trafficking and later arrested, convicted of weapons possession, and deported. The FBI investigation also included reports that Miller was warning bar owners and/or managers about future bar raids and Fire Marshall inspections. In July 2009, the FBI notified Chief Ronald Palmer of the TPD "that after conducting an extensive joint investigation with the TPD," it was ending its investigation because the U.S. Attorney's office determined it did not have enough evidence to prosecute Miller. Based on the information from the FBI, Chief Palmer requested Internal Affairs to begin an investigation.
¶ 3 Miller was notified about the investigation and received notification of a pre-termination hearing to take place on December 10, 2009. On December 11, 2009, Miller was terminated for violating seven TPD Rules and Regulations. Miller filed a grievance contesting her termination pursuant to the Collective Bargaining Agreement between the City of Tulsa and Lodge # 93 Fraternal Order of Police. The arbitration hearing regarding the grievance took place on September 12-15, 2011. In his 35-page "Opinion and Award" issued on July 30, 2012, the arbitrator concluded:
¶ 4 Following this Opinion and Award, the City of Tulsa filed a petition to vacate the arbitrator's decision in the trial court. FOP and Miller filed an "Answer and Counterclaim to Enforce Decision of Arbitrator." FOP and Miller also filed a motion for partial summary judgment to enforce the arbitration award. The City of Tulsa filed a response to the motion for partial summary judgment and filed a cross-motion for summary judgment. After considering the briefs, supplemental briefs, and oral argument, the trial court denied FOP and Miller's motion for partial summary judgment and granted the City's cross-motion for summary judgment. The trial court ordered the arbitration award to be vacated finding:
¶ 5 FOP and Miller appeal.
¶ 6 "In reviewing an arbitrator's decision, the district court must afford the arbitrator great deference, and cannot review the merits of the award, including any of the factual or legal findings." Fraternal Order of Police, Lodge 142 v. City of Perkins, 2006 OK CIV APP 122, ¶ 4, 146 P.3d 829 (citing City of Yukon v. International Ass'n of Firefighters, Local 2055, 1990 OK 48, ¶ 8, 792 P.2d 1176). "Because the parties bargain for the arbitrator's construction of the contract, a reviewing court cannot overturn that decision merely because it disagrees with the arbitrator's interpretation of the contract." Id. "An arbitration award is only legitimate if it `draws its essence from the collective bargaining agreement.'" Id. (quoting United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)). "Where there is a valid arbitration agreement, the courts will submit the dispute to arbitration; and where the arbitrator's award is within the submission and the authority established by the arbitration agreement, the courts will enforce the award." Sooner Builders & Invs., Inc. v. Nolan Hatcher Constr. Servs., L.L.C., 2007 OK 50, ¶ 13, 164 P.3d 1063. However, "[i]f the arbitrator's words manifest an infidelity to this duty, the reviewing court has no choice but to refuse to enforce the award." Perkins, 2006 OK CIV APP 122, ¶ 4, 146 P.3d 829.
¶ 7 "The OUAA [Oklahoma Uniform Arbitration Act, 12 O.S.2011 1851-1881] authorizes the district courts to vacate or modify an arbitrator's award on specific grounds." Sooner, 2007 OK 50, ¶ 23, 164 P.3d 1063. A trial court may vacate an arbitrator's award if it finds:
12 O.S.2011 1874(A) (footnotes omitted).
¶ 8 "The parties' agreement is the source of the arbitrator's power." Sooner, 2007 OK 50, ¶ 24, 164 P.3d 1063. "The parties' agreement may give the arbitrator broad power, and it may confine and limit the arbitrator's power." Id. "The arbitrator serves as the proctor of the parties' agreement and has the obligation to effectuate the intent of the parties' agreement." Id. "Hence, this Court may only consider whether the arbitrator's decision `draws its essence from the collective bargaining agreement.'" City of Yukon v. International Ass'n of Firefighters, Local 2055, 1990 OK 48, ¶ 8, 792 P.2d 1176 (quoting United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)). "When the arbitrator's award manifests an infidelity to the parties' agreement, the courts must refuse to enforce the award." Sooner, 2007 OK 50, ¶ 24, 164 P.3d 1063.
¶ 9 An arbitrator's decision or "award does not draw its essence from the CBA when it" does any of the following:
Perkins, 2006 OK CIV APP 122, ¶ 4, 146 P.3d 829.
¶ 10 On appeal, FOP and Miller argue the arbitrator's decision drew its essence from the Collective Bargaining Agreement. The parties jointly submitted the following for the arbitrator to decide: "Was Kendra Miller's employment with the City of Tulsa, Oklahoma, terminated for just cause? If not, what shall be the remedy?" FOP and Miller contend the arbitrator "interpreted a difference between just cause to discharge and just cause for lesser discipline." FOP and Miller contend the arbitrator "properly exercised his authority by interpreting and applying the contractual `just cause' provision to resolve the dispute submitted to him by the parties."
¶ 11 The relevant contractual "just cause" provision interpreted and applied by the arbitrator provides:
¶ 12 The December 11, 2009, termination letter sent to Miller sets forth seven violations of the Tulsa Police Department's Rules
(Emphasis partially omitted.)
¶ 13 In determining the penalty to impose on Miller, the arbitrator stated the following in its decision:
¶ 14 The arbitrator was to determine the following: "Was Kendra Miller's employment with the City of Tulsa, Oklahoma, terminated for just cause? If not, what shall be the remedy?" The arbitrator concluded it "upheld the City with respect to the Second Reason and the Sixth Reason" finding there
¶ 15 We find persuasive the reasoning found in a recent Eighth Circuit decision, Northern States Power Company, Minnesota v. International Brotherhood of Electrical Workers Local 160, 711 F.3d 900 (8th Cir. 2013), which addresses identical issues. The issue for the arbitrator in Northern States Power was identical to the instant case: "Was the Grievant, Curtis Snow, terminated for just cause? If not, what shall the appropriate remedy be?" Id. at 901. After employer conducted a routine background check, it learned Snow had pled guilty to possession of a pornographic work involving a minor and was sentenced to a term of probation. Id. One of the terms of his probation was that he could not have any "`contact with a minor until approved.'" Id. After learning of Snow's probation and its terms, employer "determined that it could not guarantee that Snow would have no contact with a minor while performing his job duties" and terminated him. Id.
¶ 16 After the arbitration hearing to determine the cited issue, the arbitrator ruled:
Id. The arbitrator then directed employer to allow grievant to return to work, without back pay at his "former position or a position with near or equal pay and benefits." Id. Employer filed a motion to vacate the arbitration decision arguing the arbitrator exceeded his authority under the collective bargaining agreement when ordering employer to reinstate grievant. Id. The district court granted employer's motion to vacate and the Eighth Circuit affirmed. Id.
¶ 17 The provision of the CBA in the Northern States Power case provided "that `[i]n the matter of suspension, demotion, or discharge, if after hearing witnesses, the charges are not sustained . . . the arbitration board may rule that the employee shall or shall not receive full or partial wages from the Company.'" Id. at 902.
¶ 18 The Eighth Circuit examined the two-part issue presented to the arbitrator and found:
Id. at 902-03 (citations omitted).
¶ 19 After reviewing the record and applicable law, we affirm the trial court's order vacating the arbitrator's decision. As to the Second Reason for termination, the arbitrator found "[t]he evidence is clear and convincing that Miller . . . associated with and had a personal off-duty relationship with Lujan from about May 2005 until May 2007." He further stated, "I find that Miller suspected that Murillo and Lujan were engaged in criminal activity." (Emphasis omitted.) The arbitrator also found:
(Emphasis omitted.) The arbitrator concluded in his decision that although he "upheld the City with respect to the Second Reason and the Sixth Reason," and agreed the Second Reason constitutes "serious misconduct," he took "into account her superior performance evaluations" and the fact that he "did not uphold the City with respect to the First, Third, Fourth, Fifth and Seventh Reasons" to conclude "discharge was too severe" and instead "a 30-day suspension is appropriate."
¶ 20 In doing so, the arbitrator's award did not draw its essence from the CBA. As the City of Tulsa argues, the arbitrator went outside the CBA in finding "the Chief had just cause, but then lessened Miller's punishment for two reasons: because of good performance evaluations and because City did not sufficiently prove its other allegations." The City of Tulsa contends "[t]his is where the [a]rbitrator went outside the CBA, as the trial court found." The City further argued, "The CBA does not provide that an officer committing just cause for termination can be excused if she does not commit other violations to the [a]rbitrator's satisfaction." Furthermore, the City asserts that the arbitrator's finding that it would be "unfair to terminate Miller because of her good reviews" does not draw its essence from the CBA.
¶ 21 We agree with the trial court's conclusion that because the arbitrator answered the first question in the affirmative, he exceeded his authority by addressing the second question and then applying a different remedy. The arbitrator's decision, applying concepts of fairness and equity, does not draw its essence from the CBA. We affirm the trial court's order to vacate the arbitration decision.
¶ 22 We therefore affirm the trial court's order vacating the July 30, 2012, arbitration decision. Because this issue is dispositive, we do not address the remaining issues raised on appeal.
¶ 23
FISCHER, P.J., concurs, and GOODMAN, V.C.J., concurs specially.
GOODMAN, V.C.J., concurring specially.
¶ 1 But for the limitations contained in the parties' submission to the arbitrator, the arbitrator would have had the power to fashion a remedy in this case. See City of Owasso v. Fraternal Order of Police, 2014 OK CIV APP 75, 336 P.3d 1023. Accordingly, because the arbitrator decided an issue not submitted for his determination, I agree with the trial court's order vacating the arbitration award.