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United Union of Roofers v. Kalkreuth Roofing & Sheet Metal

Court of Appeals of Ohio, Eleventh District, Lake

July 8, 2019

UNITED UNION OF ROOFERS, WATERPROOFERS & ALLIED TRADES, LOCAL NO. 44, Petitioner-Appellant,
v.
KALKREUTH ROOFING & SHEET METAL, Respondent-Appellee.

          Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CV 000633. Judgment: Reversed and remanded.

          Marilyn L Widman and Diana Robinson, Widman & Franklin, LLC, (For Petitioner-Appellant).

          Andrew J. Natale, Ann E. Knuth and Steven E Seasly, Hahn, Loeser & Parks, LLP, (For Respondent-Appellee).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} Appellant, United Union of Roofers, Waterproofers & Allied Trades, Local No. 44, appeals from the judgment of the Lake County Court of Common Pleas denying its motion to confirm arbitration award and dismissing the matter. For the reasons discussed in this opinion, we reverse and remand the case for further proceedings.

         {¶2} Appellant and appellee, Kalkreuth Roofing & Sheet Metal, are parties to a collective bargaining agreement ("CBA"). The agreement includes a binding arbitration process for grievances filed by either appellant or appellee. The CBA provides for the creation of a Joint Conference Board ("JCB"), which is authorized to resolve disputes arising out of the terms of the CBA. The JCB consists of not more than six members of the employer, appellee, and not more than six members of the union, appellant. Pursuant to the CBA, when a dispute arises that is unsettled after 24 hours, it shall be submitted to the JCB, after which the matter shall be resolved promptly, and the JCB "shall have the authority to fashion an award deemed appropriate to remedy the dispute or disagreement before it." All decisions of the JCB require the concurrence of a majority of the representatives of each of the parties.

         {¶3} After a dispute arose relating to appellee's use of a non-signatory subcontractor to perform work, in alleged violation of the agreement, appellant filed a grievance that was submitted to the JCB. On November 7, 2017, the JCB convened and held a hearing with representatives from both parties. The JCB subsequently determined, by unanimous vote, that appellee violated the CBA. The JCB ordered appellee to cease and desist from continuing the subcontracted work and pay appellant restitution for work completed. On December 8, 2017, the JCB ultimately ordered appellee to pay appellant $87, 000 in restitution within seven calendar days of the decision. The order was signed by the Chairman and Secretary for the JCB.

         {¶4} Appellee did not remit payment of the restitution order to appellant; it also, however, did not file a motion to vacate or modify the award. Accordingly, on April 19, 2018, appellant filed an "Application to Confirm Arbitration Award Pursuant to R.C. 2711.09 and to Enter Judgment in Conformity therewith Pursuant to O.R.C 2711.12." In support of its application, appellant directed the trial court to R.C. 2711.09, which provides:

         {¶5} At any time within one year after an award in an arbitration proceeding is made, any party to the arbitration may apply to the court of common pleas for an order confirming the award. Thereupon the court shall grant such an order and enter judgment thereon, unless the award is vacated, modified, or corrected as prescribed in sections 2711.10 and 2711.11 of the Revised Code. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof.

         {¶6} Appellant pointed out appellee did not move to vacate, modify, or correct the award; as such, appellant argued the trial court was required to confirm the award.

         {¶7} In June 2018, appellee opposed the application. In its supporting memorandum, appellee argued the award was not enforceable because it failed to comply with R.C. 2711.08, which states an arbitration award "must be signed by a majority of the arbitrators." Id. Because only two members of the JCB signed the award, appellee asserted, the arbitration order failed to comply with the mandates of the statute and could not be confirmed. Moreover, appellee argued, that the trial court lacked jurisdiction to consider the matter, pursuant to R.C. 2711.16, which governs the "jurisdiction" of the court of common pleas to confirm an award. It provides:

         {¶8} Jurisdiction of judicial proceedings provided for by sections 2711.01 to 2711.14, inclusive, of the Revised Code, is generally in the courts of common pleas, and actions and proceedings brought under such sections shall be brought either in the court of common pleas of the county designated by the parties to the arbitration agreement as provided in section 2711.08 of the Revised Code, which designation is an irrevocable consent of the parties thereto to such jurisdiction, or, whether or not such designation has been made, in the court of common pleas of any county in which a party in interest resides or may be summoned, or if any party in interest is a corporation, in any county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president chairman or president of the board of directors or trustees or other chief officer.

         {¶9} Appellee emphasized it is a West Virginia corporation, whose principal office is located in West Virginia. And, while it maintains an office in Delaware County, Ohio, it does not maintain an office in Lake County. As a result, appellee noted, its president, chairman or president of the board, and other officers are not located in Lake County for service of a summons. Accordingly, appellee argued, the application to confirm was improperly filed in the Lake County Court of Common Pleas.

         {¶10} Appellant filed a reply brief to appellee's memorandum in which it argued the trial court need not consider appellee's arguments because it failed to file a timely motion to vacate or modify the award. Appellant argued appellee was required, pursuant to R.C. 2711.13, to file such a pleading within three months of the issuance of the award. As such, appellee's objections were improper. Further, appellant maintained that the JCB's order was compliant with the CBA and appellee acknowledged the order's unanimity; hence, appellant concluded, the court was required to enforce and confirm the order. Appellant also argued the application was properly filed in the Lake County Court of Common Pleas. Appellant asserted the subject of the grievance originated in Lake County and, as a result, appellee had sufficient contacts with the county to render the action foreseeable.

         {¶11} After considering the parties' arguments, the trial court denied appellant's application and dismissed the matter. The court agreed that the JCB's failure to have a majority of the arbitrator's sign the award order was contrary to the mandate in R.C. 2711.08. It therefore determined there was no valid order it could confirm. The court was silent on the jurisdictional/venue argument advanced by appellee and opposed by appellant. Appellant subsequently appealed that final judgment assigning two errors. They respectively assert:

         {¶12} "[1.] The trial court erred when it denied Local 44's application to enforce even though Kalkreuth had not filed a motion to vacate or modify the award.

         {¶13} "[2.] The trial court erred in finding the JCB's arbitration award was not in ...


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