Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2017 CV 00588.
Mirkin, Richard T. Bush, Charles W. Oldfield and Danielle L
Murphy, Green, Haines, (For Petitioner-Appellant).
Christian M. Williams and Jacqueline Walsh Brickman, Pepple
& Waggoner, Ltd, (For Respondent-Appellee).
CYNTHIA WESTCOTT RICE, J.
Appellant, the Streetsboro Education Association
("SEA"), appeals from the judgment of the Portage
County Court of Common Pleas, denying its petition to enforce
its arbitration agreement with appellee, Streetsboro City
School District Board of Education ("the Board").
SEA is the sole and exclusive representative of all
bargaining unit teachers employed by the Board. SEA and the
Board entered a collective bargaining agreement
("CBA"), effective July 1, 2016 through June 30,
2019. In 2016, Gretchen Weaver and Shane Ellsworth were
employed by the Board as music teachers. During their
employment, the teachers were involved in planning and
supervising band camps. On August 1, 2016, two parents of
band members raised issues with the Board relating to alleged
hazing activities occurring at the 2016 band camp.
Superintendent Michael Daulbaugh ("the
Superintendent") initiated an investigation that led to
specifications providing a basis for the Board to consider
terminating the teachers. Accordingly, on December 15, 2017,
the Superintendent provided the teachers with pre-termination
notices setting forth reasons why the Board would be
considering termination; pre-termination hearings were held
and, on January 24, 2017, the Board adopted two resolutions
initiating proceedings to terminate the teachers'
employment contracts, pursuant to Art. 31 of the CBA and in
accordance with R.C. 3319.16, governing the procedures for
terminating a teacher's contract by a board of education.
On January 27, 2017, SEA filed informal grievances, on behalf
of the teachers, pursuant to the CBA. The grievances alleged
the Board violated the progressive disciplinary procedure,
defined in Art. 31, as well as the procedure for handling
"Parental Concerns," set forth in Art. 12. And, on
March 3, 2017, the teachers filed formal grievances relating
to the foregoing issues. On March 13, 2017, the
Superintendent denied the grievances, concluding the Board
did not breach, misapply, or misinterpret the CBA in
initiating the termination proceedings. On April 6, 2017, SEA
challenged the Superintendent's conclusion by filing a
"Level Three" grievance, pursuant to the CBA. On
May 12, 2017, the Superintendent principally concluded the
Level III grievance was filed untimely. Pursuant to Art.
19(D), SEA was required to file the challenge to the initial
decision within five days of the previous decision.
Notwithstanding this conclusion, SEA subsequently notified
the Superintendent of its intention to advance the grievance
to formal arbitration. In response, the Superintendent
advised SEA that the Board would not participate in
arbitration because their grievances were waived for failure
to file a timely appeal of the original grievance. Although
SEA requested a panel of arbitrators from the American
Arbitration Association, the file was closed based upon the
Board's refusal to participate.
On July 5 and July 25, 2017, respectively, SEA filed the
underlying petitions in the trial court on behalf of each
teacher. The petitions alleged the Board violated the CBA by
declining to go forward with binding arbitration of the
teachers' two grievances. The Board, in its answer, noted
the appeal of the grievances was untimely and, as a result,
arbitration was waived. And, the Board asserted that, despite
the CBA's provisions relating to progressive discipline
and parental concerns, the "sole remedy" for
termination proceedings is the statutory appellate process
set forth in R.C. 3319.16. The cases were consolidated and
the issues were briefed.
Meanwhile, in the R.C. 3319.16 proceedings, the teachers
demanded a hearing in relation to the termination of their
teaching contracts. In August and September of 2017, a
referee conducted a hearing to determine whether the
preponderance of the evidence supported the grounds for
termination and, if so, whether termination of the
teachers' employment contracts should be recommended to
the Board. In December 2017, the referee filed his
recommendation. He found the teachers did not permit,
condone, or encourage hazing and they generally protected the
health, safety, and welfare of students. The referee,
however, found that certain actions by the teachers were done
in "bad taste" and were "fairly serious
matters" constituting just cause for discipline.
Ultimately, the referee recommended, however, that the
teachers not be terminated.
On December 28, 2017, the Board rejected the referee's
recommendation based upon its differing interpretation of the
facts and terminated the teachers' employment contracts.
The teachers subsequently filed statutory appeals to the
court of common pleas and then to this court, where the
matter remains pending.
Returning to the instant matter, on July 10, 2018, the trial
court denied SEA's petition, concluding, inter alia, the
plain language of the CBA required the parties to litigate
disputes regarding teacher terminations per the procedures
under R.C. 3319.16. SEA appeals that judgment and assigns
five errors for our review. Its first assignment of error
"The common pleas court erred by denying
petitioner-appellant Streetsboro Education Association's
petition to enforce its arbitration agreement with
respondent-appellee Streetsboro City School District Board of
SEA frames the foregoing assigned error as a "general
assignment of error." The general assignment of error
does not precisely assert an error for review; rather, it
provides an overlay of basic principles of arbitration law.
Given the lack of argumentation, there is no error for this
court to evaluate. This purported assignment of error
therefore lacks merit.
We shall address SEA's next two assignments of error
together. They assert:
"[2.] The lower court erred by disregarding the strong
presumption of arbitrability created by the parties'
broad arbitration agreement and determining that the
agreement precluded ...