Court of Appeals of Ohio, Eleventh District, Lake
UNITED UNION OF ROOFERS, WATERPROOFERS & ALLIED TRADES, LOCAL NO. 44, Petitioner-Appellant,
KALKREUTH ROOFING & SHEET METAL, Respondent-Appellee.
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).
J. Natale, Ann E. Knuth and Steven E Seasly, Hahn, Loeser
& Parks, LLP, (For Respondent-Appellee).
CYNTHIA WESTCOTT RICE, J.
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.
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.
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.
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:
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.
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.
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:
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.
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
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
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:
"[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.
"[2.] The trial court erred in finding the JCB's
arbitration award was not in ...