Court of Appeals of Ohio, Eighth District, Cuyahoga
LABORER'S INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 860, PLAINTIFF-APPELLEE,
CUYAHOGA COUNTY COMMON PLEAS COURT, JUVENILE DIVISION, DEFENDANT-APPELLANT.
from Cuyahoga County Common Pleas Court Trial Court No. CV18
Michael C. O'Malley and Matthew D. Greenwell for
J. Guarino, III for Appellee
Defendant-appellant, Cuyahoga County Court of Common Pleas,
Juvenile Division (hereinafter, the "Juvenile
Court"), appeals the December 12, 2018 judgment entry
issued by the Cuyahoga County Court of Common
Pleasgranting the complaint and motion to compel
arbitration filed by plaintiff-appellee, Laborers'
International Union of North America, Local Union No. 860,
(hereinafter the "Union"), and overruling the
Juvenile Court's motion for summary judgment. For the
following reasons, we affirm the trial court's judgment.
On March 19, 2018, the Union filed a "Complaint for
Order Compelling Arbitration and Selection of Arbitrator in a
Reasonable Timely Manner" pursuant to R.C. 2711.03, and
a request for a declaratory judgment under R.C. 2721.02. In
this complaint, the Union alleged that the Juvenile Court
refused to arbitrate a grievance regarding mileage
reimbursement under the process set forth in the parties'
Collective Bargaining Agreement (hereinafter the
"CBA"). The Juvenile Court timely filed an Answer
arguing that mileage reimbursement policy changes were
discretionary management decisions and not subject to
arbitration under the CBA. The Juvenile further requested
that the Union's complaint be dismissed.
On April 20, 2018, the Union filed an amended complaint
elaborating upon the mileage reimbursement issue specifically
stating that the Juvenile Court had "failed and refused
to process a grievance regarding the [Juvenile] Court's
past practice of reimbursing employees for mileage at IRS
rates, and [failed] to provide the Union with fourteen (14)
days advance notice prior to making unilateral changes in
policies which affect a mandatory term and condition of
employment." (Doc. No. 5 at ¶ 12).
The Union also alleged that the Juvenile Court had refused to
follow the grievance procedure set forth in the parties'
CBA regarding grievances filed by the Union based upon claims
that the Juvenile Court suspended and terminated several
employees without just cause. In particular, the Union
maintained that the CBA required the Juvenile Court to hold
"Step 2 grievance meetings" within ten working days
of the receipt of the Union's grievances, which the
Juvenile Court failed to do. (Id.). The Union
requested an order compelling the Juvenile Court to submit
these grievances to arbitration.
The Juvenile Court subsequently filed an Answer to the
Amended Complaint reiterating its position that mileage
reimbursement rates are the prerogative of the employer in
addition to not being specifically addressed in the CBA. With
respect to the Union's claim that it failed to comply
with the CBA's grievance procedure, the Juvenile Court
argued that "[t]he collective bargaining agreement
requires that the dates for hearings on grievances be
scheduled within 10 days and not that hearings be held within
10 days." (Doc. No. 12, ¶ 28, 30).
The trial court held a pre-trial hearing and issued the
following entry. "Pre-trial held. Parties shall file
cross motions on issues involving mileage and scheduling.
Telephone conference set for 12/14/18 @ 11:45 p.m. To be
initiated by [Plaintiffs] counsel." (Doc. No. 13).
On November 1, 2018, the Juvenile Court filed a Motion for
Summary Judgment. On the same day, the Union filed a
"Brief In Support of Action Compelling Arbitration, and
Selection of Arbitrators for Pending Discipline Grievances in
a Reasonable Timely Manner," with several accompanying
On December 12, 2018, the trial court issued a decision on
the matter granting the Union's "Complaint for an
Order Compelling Arbitration and Selection of Arbitrator in a
Reasonable Timely Manner," and overruling the Juvenile
Court's Motion for Summary Judgment. Specifically, the
trial court determined that both the mileage and meeting
scheduling issues involved the parties' disputes
regarding the interpretation and application of the CBA which
ultimately be should be resolved by an arbitrator.
Accordingly, the trial court issued an order compelling the
Juvenile Court to submit the Union's grievances to
arbitration and ordered the Juvenile Court to select the
arbitrator for the pending grievances in a timely manner.
The Juvenile Court filed this appeal, asserting the following
assignments of error.
OF ERROR NO. 1
TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
APPELLANT'S MOTION FOR SUMMARY JUDGMENT.
OF ERROR NO. 2
TRIAL COURT COMMITTED REVERSIBLE ERROR BY SUA SPONTE GRANTING
SUMMARY JUDGMENT TO APPELLEE, WHEN THE TRIAL COURT FAILED TO
GIVE NOTICE TO APPELLANT THAT IT WAS TREATING A BRIEF FILED
BY APPELLEE AS A MOTION FOR SUMMARY JUDGMENT AND FAILED TO
GIVE APPELLANT ANY OPPORTUNITY TO RESPOND TO THE ERRONEOUS
LEGALLY AND FACTUALLY UNSUPPORTED CLAIMS MADE BY
OF ERROR NO. 3
TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY
CONSIDERING AND RELYING UPON EVIDENCE IN SUPPORT OF SUMMARY
JUDGMENT THAT WAS NOT SWORN, CERTIFIED, OR AUTHENTICATED BY
AFFIDAVIT IN VIOLATION OF CIV.R. 56(C).
Assignment of Error
In its first assignment of error, the Juvenile Court claims
that the trial court erred when it overruled its motion for
summary judgment and determined that the mileage and
grievance procedure issues raised by the Union in its amended
complaint were arbitrable under the parties' CBA.
We apply a de novo standard of review to determine
whether a controversy is arbitrable under an arbitration
provision of a contract. Pantages v. Becker, 8th
Dist. Cuyahoga No. 106407, 2018-Ohio-3170, ¶ 7. Although
there is a presumption in Ohio favoring arbitration, parties
cannot be compelled to arbitrate a dispute they have not
agreed to submit to arbitration. Natale v. Frantz Ward,
L.L.P., 8th Dist. Cuyahoga No. 106299, 2018-Ohio-1412,
The Supreme Court of Ohio consistently has held as follows:
"[A]rbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which
[it] has not agreed so to submit." * * * This axiom
recognizes the fact that arbitrators derive their authority
to resolve disputes only because the parties have agreed to
submit such grievances to arbitration.'" Council
of Smaller Ents. v. Gates, McDonald & Co. (1998), 80
Ohio St.3d 661, 665, 1998 Ohio 172, 687 N.E.2d 1352, quoting
AT & T Technologies, Inc. v. Communications Workers
of Am. (1986), 475 U.S. 643, 648-649, 106 S.Ct. 1415, 89
L.Ed.2d 648, quoting United Steel Workers of Am. v.
Warrior & Gulf Navigation Co. (1960), 363 U.S. 574,
582, 80 S.Ct. 1347, 4 L.Ed.2d 1409. Accordingly, when
deciding motions to compel arbitration, the proper focus is
whether the parties actually agreed to arbitrate the issue,
i.e., the scope of the arbitration clause, not the general
policies of the arbitration statutes. [Equal Emp.
Opportunity Comm. v. Waffle House (2002), 534 U.S. 279,
294, 122 S.Ct. 754, 151 L.Ed.2d 755.] It follows that
although any ambiguities in the language of a contract
containing an arbitration provision should be resolved in
favor of arbitration, the courts must not "override the
clear intent of the parties, or reach a result inconsistent
with the plain text of the contract, simply because the
policy favoring arbitration is implicated." Id.
Taylor v. Ernst & Young, L.L.P., 130 Ohio St.3d
411, 2011-Ohio-5262, 958 N.E.2d 1203, ¶ 20.
The question of whether a controversy is arbitrable under the
provisions of a contract is a question for a court to decide
upon examination of the contract. Gibbons-Grable Co. v.
Gilbane Bldg. Co., 34 Ohio App.3d 170, 171, 517 N.E.2d
559 (8th Dist.1986). "When confronted with an issue of
contract interpretation, the role of the court is to give
effect to the intent of the parties to that agreement. The
court examines the contract as a whole and presumes that the
intent of the parties is reflected in the language used in
the agreement." Martin Marietta Magnesia
Specialties, LLC v. PUC of Ohio, 129 Ohio St.3d 485,
2011-Ohio-4189, 954 N.E.2d 104, ¶ 22, citing
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. Further,
"[i]n interpreting a provision in a written contract,
the words used should be read in context and given their
usual and ordinary meaning." Carroll Weir Funeral
Home v. Miller, 2 Ohio St.2d 189, 192, 207 N.E.2d 747
in the CBA
At issue in this case are grievances filed by the Union
regarding two nonrelated matters. First, whether the Juvenile
Court failed to comply with the grievance procedure set forth
in the CBA regarding the termination and suspension of
employees. Second, whether the Juvenile Court's decision
to change its mileage reimbursement policy was an action
covered by the CBA, and if so, whether the Juvenile Court
failed to adhere to the procedure set forth the in the CBA
when it unilaterally implemented that change. We shall
address each matter in turn.
Scheduling a Step 2 Meeting under the CBA
This first matter is related to the disciplinary action taken
by the Juvenile Court which resulted in the termination and
suspension of multiple employees. The record indicates that
the terminations and suspensions arose out of the
investigation of an incident involving several employees and