Court of Appeals of Ohio, Seventh District, Belmont
EASTERN OHIO REGIONAL WASTEWATER AUTHORITY, PLAINTIFF-APPELLANT,
UTILITY WORKERS UNION OF AMERICA, AFL-CIO, LOCAL UNION 436-a, LOUIS E. FISHER, DYLAN GARLOCH, ERIC CANTER AND JAMES E. LEW, DEFENDANTS-APPELLEES.
Appeal from Court of Common Pleas of Belmont County, Ohio
Case No. 16 CV 0382
Plaintiff-Appellant Attorney Erik A. Schramm Attorney Kyle W.
Defendants-Appellees Attorney John R. Canzano Attorney
Patrick J. Rorai Attorney James Petroff.
Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro, Judge.
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."
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").
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.
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
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
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.
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."
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.
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.
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
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.
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.
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