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Eastern Ohio Regional Wastewater Authority v. Utility Workers Union of America

Court of Appeals of Ohio, Seventh District, Belmont

December 18, 2017

EASTERN OHIO REGIONAL WASTEWATER AUTHORITY, PLAINTIFF-APPELLANT,
v.
UTILITY WORKERS UNION OF AMERICA, AFL-CIO, LOCAL UNION 436-a, LOUIS E. FISHER, DYLAN GARLOCH, ERIC CANTER AND JAMES E. LEW, DEFENDANTS-APPELLEES.

         Civil Appeal from Court of Common Pleas of Belmont County, Ohio Case No. 16 CV 0382

          For Plaintiff-Appellant Attorney Erik A. Schramm Attorney Kyle W. Bickford.

          For Defendants-Appellees Attorney John R. Canzano Attorney Patrick J. Rorai Attorney James Petroff.

          Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro, Judge.

          OPINION

          DONOFRIO, J.

         {¶1} Plaintiff-appellant, Eastern Ohio Regional Wastewater Authority, appeals the Belmont County Court of Common Pleas' decision to grant defendants-appellees', Utility Workers Union of America AFL-CIO Local Union 436-A ("Union"), Louis Fisher ("Fisher"), Dylan Garloch ("Garloch"), Eric Canter ("Canter"), and James E. Lewis ("Lewis"), motion to dismiss appellant's complaint in its entirety. Union, Fisher, Garloch, Canter, and Lewis are collectively referred to herein as "appellees."

         {¶2} The facts from this case stem from an arbitration proceeding concerning all parties. The facts of the arbitration proceeding at issue are also set forth in this Court's opinion in Utility Workers Union of America Local 436-A v. Eastern Ohio Regional Wastewater Authority, 7th Dist. No. 16 BE 0060, 2017-Ohio-7794. Appellant is an Ohio regional water and sewer district located in Bellaire, Ohio. Appellant is managed by four employees and has an additional nine employees (previously ten employees as explained below). The non-management employees are all represented by Union. Appellant and Union are both parties to a collective bargaining agreement ("CBA").

         {¶3} On October 20, 2014, appellant performed mandatory drug testing on all of its employees. One of appellant's employees, Freddie Hocker ("Hocker"), tested positive for marijuana. Subsequently, Hocker's employment with appellant was terminated on December 3, 2014.

         {¶4} Union, on behalf of Hocker, filed a grievance against appellant on the basis that appellant lacked just cause pursuant to the CBA to terminate Hocker. Union claimed that it never negotiated a drug and alcohol policy ("Policy") with appellant which rendered Hocker's termination without just cause. Pursuant to the CBA, the matter eventually proceeded to arbitration in Belmont County, Ohio before the arbitrator Bruch McIntosh. Lewis, who is the senior national representative for Utility Workers Union of America, represented Union at the arbitration hearing.

         {¶5} Pursuant to the CBA, the parties submitted one specific issue for Arbitrator McIntosh to decide. Appellant and appellees agree that the sole issue before the arbitrator was whether appellant had just cause to terminate Hocker and if not, what was the appropriate remedy. At the arbitration hearing, appellant argued that the Policy was in fact valid and negotiated. Appellant attempted to show that the Policy was valid and negotiated by: presenting testimony that drug testing had been done on its employees since 2003 with Union's knowledge, submitted Acknowledgements of Receipt of the Policy by various Union members, and addressing the fact that Union never filed a grievance regarding the Policy, procedure, testing, or the executed Acknowledgements of Receipt.

         {¶6} Lewis, Canter, and Garloch all testified at the arbitration proceeding. Lewis, as Union's president, testified that he never agreed to the Policy and only first learned about the Policy when appellant conducted the drug testing which resulted in Hocker's termination. Canter and Garloch both testified that while they executed the Acknowledgements of Receipt, they did so because they were informed by appellant's management that failure to do so would result in termination. Additionally, Canter and Garloch both testified that they never received a copy of the Policy. Union also presented evidence that the April 1, 2014 CBA, the one that was in effect at the time of the hearing, was silent regarding the Policy.

         {¶7} Arbitrator McIntosh eventually sustained the grievance in favor of Union and Hocker. Arbitrator McIntosh held that the Policy was never agreed to by Union which made appellant's termination of Hocker's employment without just cause. Arbitrator McIntosh did not hold that Hocker should be reinstated but did find that Hocker was owed all back pay and benefits from the date of his drug testing to the date of his "voluntary retirement."

         {¶8} Equally relevant to this appeal as the arbitration proceeding is what happened after the arbitration proceeding. Appellant and appellees point to different and specific events following the arbitration hearing. Appellant states that after the arbitration hearing, its operations manager, Michael D. Dobbs, managed to locate the original executed Memorandum of Agreement between appellant and Union regarding the Policy. This particular Memorandum of Agreement was executed in 2003 and purports to have the signatures of appellant's then executive director, Fisher, and Union's then senior national representative, Donald P. Opatka. This Memorandum of Agreement contained the Policy and purportedly showed that Fisher and Opatka agreed to it.

         {¶9} Appellant states that it provided a copy of the Memorandum of Agreement to appellees as part of a supplemental briefing to Arbitrator McIntosh's decision and allowed Fisher and Lewis to inspect the original. However, Union, Fisher, and Lewis continued to assert that it never executed the Memorandum of Agreement or negotiated the Policy.

         {¶10} Appellees point out that Arbitrator McIntosh made his award in favor of Union and Hocker and that Arbitrator McIntosh retained jurisdiction over the matter in order to implement the award. However, after the Memorandum of Agreement was discovered, appellant argued to Arbitrator McIntosh that he lacked jurisdiction to "implement, " specifically to change or modify the award. Arbitrator McIntosh agreed and made no change to the award. Appellant also accused Fisher of fraud.

         {¶11} Furthermore, appellees point out that Union brought an action in the Belmont County Court of Common Pleas in case number 16-CV-111 seeking an order modifying or vacating the arbitration award based on its ambiguity. However, appellant never filed a motion to vacate or modify the award based on Fisher's alleged fraud. Instead, appellant filed a motion in 16-CV-111 to confirm the arbitration award despite its allegations that Fisher and Union committed fraud. Appellees attached a copy of appellant's motion to confirm the award in case number 16-CV-111 to their brief. The trial court in 16-CV-111 denied Union's motion to modify or vacate the award, corrected the ambiguity in the award with regards to the amount of back pay Hocker was entitled to, and granted the remainder of appellant's motion.

         {¶12} Appellant then brought this action seeking a declaratory judgment that the Policy was valid and alleging claims of fraud, tortious interference with a business relationship, tortious interference with a contract, and civil conspiracy against all appellees. The basis of this action was the statements that Fisher, Lewis, Canter, and Garloch made regarding either: not negotiating the Policy, not receiving the Policy, or denying the Policy's existence despite being shown the Memorandum of Agreement. Appellees filed a motion to dismiss alleging multiple grounds including: appellant's claims were barred by R.C. 2711, appellant's claims were barred under the doctrine of arbitral issue preclusion, appellant's claims were barred under the doctrine of witness immunity, appellant was bound by the doctrine of election of remedies, appellant did not show that it relied on any statements made by any of the appellees to its detriment regarding the fraud claim, and appellant's claims were preempted by the exclusive jurisdiction of SERB and the remedies contained in R.C. 4117.

         {¶13} On January 6, 2017, the trial court granted appellees' motion to dismiss. The trial court adopted all of appellees' arguments and stated the following six reasons as to why appellant's complaint was dismissed:

1) This Court lacks subject matter jurisdiction over [Appellant's] claims because R.C. 2711 provides the exclusive statutory means for modifying or otherwise ...

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