Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—N.D. Ohio: Arbitration award finding employer failed to properly rotate prevailing wage assignments affirmed, (Jan 20, 2026)

By Ronald Miller, J.D.

The employer allegedly improperly placed flaggers on assignments because of contractor preference regardless of the rotation.

On cross-motions for summary judgment, a union was entitled to confirmation of an arbitration award finding that an employer failed to properly rotate prevailing wage assignments in accordance with the seniority requirements of a collective bargaining agreement, ruled a federal district court in Ohio. The main thrust of the employer’s argument was that the arbitrator’s award got it wrong. While that maybe so, the sole question for the court was whether the arbitrator arguably interpreted the parties’ contract, not whether he got its meaning right or wrong. Accordingly, the court found that the arbitrator’s award drew its essence from the contract and should be confirmed (AWP, Inc. v. International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 54/Local Lodge 1297, No. 5:24-CV-1995 (N.D. Ohio Jan. 16, 2026)).

The employer provides traffic control equipment and services to support utility, broadband and infrastructure construction work. It employs individuals known as “flaggers” who provide traffic control services at job worksites. The union represents a unit of employees, including flaggers, and the parties signed a collective bargaining agreement (CBA) effective from December 17, 2022 to October 5, 2025.

Prevailing wage jobs. The employer assigns flaggers to jobs as outlined in the CBA. There are two types of jobs a flagger may be assigned to: regular jobs and prevailing wage jobs. The assignment of prevailing wage jobs is the crux of the dispute here. Prevailing wage jobs involve government-funded projects and require employees to be paid a “prevailing wage.” Such wage can be two to three times that of a regular job. The CBA covers the assignment of these jobs and mandates that the employer rotate prevailing wage jobs.

Grievance. On August 3, 2023, the union filed a grievance pursuant to the CBA protesting the employer’s alleged failure to properly rotate prevailing wage assignments. Specifically, the grievance charged that the employer with failing to follow the seniority requirements in the CBA, as well as the rotation provisions of the CBA.

The matter went to an arbitration hearing on March 15, 2024. At the hearing, the employer interpreted the “minimum of twenty (20) hours or one (1) week of prevailing wage work, whichever is greater, before the next eligible party participates” to mean flaggers are entitled to a minimum amount of work. That is, if an employee worked less than 20 hours in a week, the employee could continue the next week at the prevailing wage job because the minimum of 20 hours would be greater than the one week.

In contrast, the union’s position was the language meant prevailing wage job assignments had to last a minimum of 20 hours and a maximum of one week. To the union, after one week in a prevailing wage job, the next flagger in the rotation should be assigned.

Arbitration award. On June 12, 2024, the arbitrator issued his award. First, the arbitrator found most of the language in the disputed provision unambiguous. However, the arbitrator found Section 2 “less than clear, and at first glance, can be read to mean two different things.” The arbitrator recognized the union’s position—that Section 2 could be read to mean a minimum pay of 20 hours and a maximum length of one week—and the employer’s position—that Section 2 could be read to mean only a minimum pay with no cap referenced at all. Finding the terms of Section 2 ambiguous, the arbitrator resorted to “which interpretation best reflects what the parties intended.”

To do so, the arbitrator reviewed past agreements, the parties’ course of conduct, and evidence relating to the negotiation of the CBA. The arbitrator also looked to other provisions in the CBA. The arbitrator sided with the union, and on July 20, 2024, the award went into effect.

Motion to vacate. On October 18, 2024, the employer filed an application and motion to vacate the arbitration award in state court. On November 14, 2024, the union timely removed the case to federal court. On March 31, 2025, the parties filed cross-motions for summary judgment.

The employer argued (1) the arbitrator resolved a dispute the parties did not submit to him; and (2) the arbitrator did not arguably interpret and apply the bargaining agreement. Additionally, the employer argued the award violated public policy and should not enforced.

Arbitrator’s authority. Here, the employer argued the arbitrator exceeded his authority in issuing the award because certain findings involved issues it believed falls outside of the grievance filed by the union. Specifically, the employer took issue with the award’s discussion of the employer’s process of whitelisting. To the union, whitelisting was part of the grievance filed.

The arbitrator’s award merely recounted certain issues before it without making distinct findings, observed the court. In this way, the arbitrator did not “decide” issues outside of the grievance. Last, no evidence taken in during the arbitration was outside of the grievance, and even if so, the award refuted the position that the arbitrator considered this evidence in making a decision.

Whitelisting. The grievance in this case allowed the arbitrator to look at prevailing wage jobs and any pertinent articles or sections in the CBA. The arbitrator examined the employer’s practice of whitelisting as relevant information on whether it violated the CBA. “Whitelisting” is a process whereby contractors identify preferred flaggers for a project. The employer allegedly improperly placed flaggers on these assignments because of contractor preference regardless of the rotation. The arbitrator did not individually decide on the merits of whitelisting but only evaluated it in the context of prevailing wage jobs. As such, the arbitrator did not address an unpresented dispute but considered other practices merely as context for the grievance.

Interpretation of CBA. Next, the employer argued the arbitrator did not engage in the interpretation of the CBA but simply provided an award he thought was just. According to the employer, the arbitrator should not have resorted to any evidence outside of the CBA to make his decision. For its part, the union argued the arbitrator’s decision reflects he properly interpreted the CBA and applied it to the facts of this case.

The court determined that the union had the better argument. The arbitrator began by reciting the principal rule of contract interpretation: “when interpreting contract language, arbitrators base their decisions on what’s termed the ‘plain meaning’ rule, that is, the meaning of contract language should be determined by the plain or usual meaning of the words on their face.” From there, the arbitrator identified the relevant contractual provisions at issue. Then, the arbitrator found Sections 1, 3, and 4 were unambiguous, meaning they were “relatively straightforward.” But the arbitrator found Section 2 ambiguous. Specifically, the arbitrator found “the wording in the second half of that sentence is less than clear, and at first glance, can be read to mean two different things.”

The arbitrator then resorted to other evidence, including the parties’ course of conduct and prior contractual dealings, among other things. In doing so, the arbitrator found the union’s interpretation of the provision reflected the parties’ intent. Because the arbitrator engaged in interpretation of the CBA, that was enough to uphold the award. Accordingly, the court found that the arbitrator’s award drew its essence from the CBA and should be confirmed.

The case is No. 5:24-CV-1995.

Judge: Brennan, B.

Attorneys: Kallen L. Boyer (Krugliak, Wilkins, Griffiths, & Dougherty Co.) for AWP, Inc. Lane C. Hagar (Cloppert, Latanick, Sauter & Washburn) for International Association of Machinists and Aerospace Workers AFL-CIO, District Lodge 54/Local Lodge 1297.

Companies: AWP, Inc.; International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 54/Local Lodge 1297

Cases: Labor Arbitration OhioNews