Dayton City School Dist. Bd. of Edn. v. Dayton Edn. Assn. , 122 N.E.3d 249 ( 2018 )

[Cite as Dayton City School Dist. Bd. of Edn. v. Dayton Edn. Assn., 2018-Ohio-4350.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
DAYTON CITY SCHOOL DISTRICT :
BOARD OF EDUCATION :
: Appellate Case No. 27793
Plaintiff-Appellant :
: Trial Court Case No. 2017-CV-2292
v. :
: (Civil Appeal from
DAYTON EDUCATION : Common Pleas Court)
ASSOCIATION, et al. :
:
Defendants-Appellees
...........
OPINION
Rendered on the 26th day of October, 2018.
...........
BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303 and LAUREN K. EPPERLEY, Atty.
Reg. No. 0082924, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
Attorneys for Plaintiff-Appellant
SUSAN D. JANSEN, Atty. Reg. No. 0089205, 111 West First Street, Suite 1100, Dayton,
Ohio 45402
Attorney for Defendants-Appellees
.............
WELBAUM, P.J.
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{¶ 1} This case is before us on the appeal of Plaintiff-Appellant, Dayton City School
District Board of Education (“Board”) from a judgment affirming an arbitration award in
favor of Defendants-Appellees, Dayton Education Association (“DEA”), and several
Dayton Public School employees. The Board contends that the trial court erred in
refusing to vacate the arbitration award because the award was not rationally derived
from the terms of the collective bargaining agreement.
{¶ 2} We conclude that the trial court did not err in concluding that the arbitration
award had a rational connection to the collective bargaining agreement and was not
arbitrary, capricious, or unlawful. Accordingly, the judgment of the trial court will be
affirmed.
I. Facts and Course of Proceedings
{¶ 3} The issues in this case involve a collective bargaining agreement (the Master
Contract) between the Board and the DEA that was effective from December 21, 2013,
through June 30, 2017. The DEA is a union representing just over 1,000 professional
staff members; in total, the Dayton Public School District (“DPS”) has more than 2,000
employees.
{¶ 4} Among other provisions, the Master Contract includes Article 49, which is
titled “Insurance.” Article 49 contains various subsections pertaining to medical and
dental enrollment, medical and dental benefits, life insurance benefits, premium
payments, flexible spending accounts, and so on.
{¶ 5} DPS has a self-funded insurance plan. Under the 2013-2017 contract, the
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parties switched from a preferred provider organization plan to a high deductible plan that
included health savings accounts. DPS was a client of McGohan Brabender
(“McGohan”), which consults with clients about various issues, including compliance and
healthcare. Carrie Thornton, a McGohan account manager, was in charge of the DPS
account and assisted DPS in transitioning to the high deductible plan. As part of the
transition, McGohan representatives held hundreds of meetings with DPS employees to
educate them about the plan.
{¶ 6} McGohan also worked with DPS senior personnel on strategic plans and
recommended that DPS implement a dependent verification audit. Before the process
began, McGohan reviewed different companies able to assist with such an audit and
recommended ConSova, an out-of-state company. McGohan had previously worked
with ConSova in many different situations involving its largest clients and was very
comfortable with ConSova’s documentation and resources for implementing the
recommended audit. According to Thornton, McGohan particularly liked ConSova’s
assumption that employees were doing the right thing and that ConSova would work with
employees on providing correct documentation.
{¶ 7} Prior to the audit, Thornton was involved in multiple conference calls with
ConSova and DPS leadership. To select the documentation required for the audit,
ConSova followed the guidelines for Section 125 of the Internal Revenue Code, which is
the tax-free vehicle that allows employees to pay for insurance premiums on a pre-tax
basis. The audit documentation itself was tailored to each type of dependent. For
example, the documentation needed for a child would be different from what was required
for a domestic partner, and so forth.
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{¶ 8} During the conference calls, DPS leadership, Thornton, and ConSova
discussed documentation that ConSova had recommended, as well as the reasons why
DPS should use particular types of documents for verification. For example, ConSova
recommended using marriage certificates rather than marriage licenses for verifying
spouses, because marriage licenses are issued before marriage, with no guarantee that
a marriage will actually occur; in contrast, marriage certificates are issued after marriage
and verify that a marriage has taken place. After consulting with ConSova and Thornton,
DPS used the documentation that ConSova had recommended.
{¶ 9} During the planning process, Thornton and DPS met with union leaders,
including David Romick, the DEA president, and discussed the Board’s intentions with
respect to the audit. They also discussed the need for employees to affirmatively
respond to the audit and what the consequences would be for dependents of employees
who failed to affirmatively respond. The unions, including DEA, were told that if
employees failed to respond or failed to respond correctly, their dependents would be
removed retroactively from the plan before inception of the new insurance plan, which
was scheduled to start on January 1, 2016. The audit, itself, had two phases, and
Thornton and DPS met again with the union leaders after the close of the first phase of
the audit.
{¶ 10} The audit began in September 2015, prior to open enrollment for the next
year’s health plan. Open enrollment took place in November 2015, and, as was noted,
the next plan year was to begin on January 1, 2016.
{¶ 11} The first phase of the audit applied to all DPS employees with dependents
enrolled in the current health plan. Anyone who had a currently-enrolled dependent was
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required to go through the audit process.
{¶ 12} After the audit began, people might either have life-changing events (like
the birth of a child or a marriage) in connection with the current plan, or might enroll
dependents for the next year’s plan. This was the second phase of the audit. If
employees had provided dependent verification during the previous phase, they would
not be required to do so again. However, if employees added new dependents to the
plan, they would need to go through the audit process and provide the required
documentation.
{¶ 13} DEA president David Romick testified at the arbitration hearing. Romick
recalled attending a meeting that included the presidents of the 14 DPS bargaining units,
the DPS superintendent, and the DPS treasurer. This was a regularly scheduled
meeting and was held before the DPS treasurer sent an email to all employees notifying
them of the upcoming audit. The email was sent on September 3, 2015.
{¶ 14} At the meeting, the union presidents were told that DPS would be
conducting a dependent audit using an outside agency. DEA did not object to the audit;
in fact, Romick testified that DEA absolutely supported the audit because of cost savings
for the district and for members in terms of what they would pay for their policies.
{¶ 15} Phase one of the verification process lasted from September 21 to October
25, 2015, and phase two took place between October 26, 2015, and November 22, 2015.
An appeals phase, during which employees could appeal to ConSova after receiving a
“drop letter,” lasted from November 23, 2015 to January 11, 2016. In reality, this
“appeals” phase simply offered employees a further opportunity to submit documentation
without having their dependents removed from the plan.
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{¶ 16} On September 3, 2015, the DPS treasurer, Craig Jones, sent an email to
all DPS employees, notifying them about the dependent verification audit that was going
to take place. Jones told employees that they would soon receive a mailing from
ConSova at their addresses, and he also attached a flyer to the email. The email
stressed that: “You must take action immediately upon receipt of the letter. If you do not
take action your dependent(s) benefits may be cancelled. To cover eligible dependents,
a response is mandatory.” Board Ex. J-175.
{¶ 17} A “robo” call was then made to all DPS employees on September 18, 2015,
reminding them that they would soon be receiving mail from ConSova about the upcoming
verification and must take action immediately to cover eligible dependents.
{¶ 18} On September 23, 2015, DPS sent a letter to all employees. The letter
was addressed individually to each employee at his or her address, explained the audit
process in detail, and notified employees that the deadline for submitting documentation
was October 19, 2015. Employees were again informed that this was not a “passive”
process and that non-response would result in termination of coverage for dependents.
See, e.g., DEA Ex. I-1. The letter included a “frequently asked questions” page as well
as a letter from ConSova dated September 23, 2015. The ConSova letter listed the
dependents that the particular employee was required to verify, again reiterated that the
verification process was not passive, and stressed that “[n]on-response or incomplete
documentation will result in the termination of coverage for these dependents.” Id. at I-
3.
{¶ 19} ConSova’s letter also included a separate sheet listing the specific
dependent documentation that was required. For example, to verify either a “natural” or
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a legally adopted child, employees were required to submit a “State or county issued birth
certificate showing employee’s name or signed court order.” Id. at I-4. The October 19,
2015 deadline for submitting documentation was again stressed.
{¶ 20} When DEA learned that failure to respond would result in termination of
dependent benefits, it sent members an email like the treasurer’s email, indicating that if
members were contacted by ConSova, the contract was legitimate and not a scam. DEA
also encouraged members to attend enrollment meetings and healthcare meetings that
EBC1 and McGohan were sponsoring, so that employees could educate themselves. In
addition, DEA sent its members other several emails, beginning shortly after the
treasurer’s September 3, 2015 email and continuing into October 2015. DEA additionally
assisted members on a case-by-case basis. According to Romick, DEA probably
addressed hundreds of questions daily.
{¶ 21} In October 2015, ConSova sent letters to employees indicating whether or
not their documentation was complete. If complete, no further action was needed; if not,
ConSova indicated how the documentation was incomplete or missing and what was
needed to comply. See, e.g., Board Ex. J-209 (October 8, 2015 letter to DPS employee
Sara Cooley). These letters again stressed the consequences of non-compliance and
stated that documentation must be submitted no later than November 16, 2015.
ConSova also provided the telephone number of its Dependent Eligibility Verification
Center, so that employees could receive assistance. Id.{¶ 22} In October 2015, the Board provided DEA and all other DPS bargaining
1EBC (Enrollment Benefits Concept) is a third-party contractor that handles insurance
enrollment for DPS.
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units with a list of members in their units who had not complied with the audit. Romick
divided DEA’s list based on buildings, because DEA had members in 30 different
buildings. Romick then gave a list to the representative for each building and asked the
representatives to encourage members on their lists to do what was needed.
Subsequently, DEA followed up with building representatives “to make sure that they
were contacting that list of members in their building, having a face-to-face, and urging
them to comply with the audit.” Board Ex. G-79 (p. 431 of the arbitration transcript).
{¶ 23} On November 6, 2015, DPS sent another email to all employees and
attached a sample “disposition” letter. The email noted that reminder calls had been
made that week to all incomplete and non-responder status employees. In addition, the
email stressed the November 16, 2015 post-mark deadline for submission of
documentation.2
{¶ 24} The email further informed employees of the current audit status.
Specifically, 75% of employees had responded, 100 verifications (involving 124
dependents) were incomplete, and 240 employees (involving 514 dependents) had not
yet responded. The email went on to state that:
Our goal is to ensure eligible dependents are properly covered. If
you have not received a Disposition Letter (sample attached), which
confirms “Documents complete” for all eligible dependents you should
immediately contact ConSova at 866-529-9105. Non-response or
incomplete documentation will result in the termination of coverage for the
dependents.
2 Employees could also upload documents through the ConSova website.
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Board Ex. J-176. Due to DPS’s internal email process, DPS was able to tell if employees
had read the email. DPS could also tell the date and time when emails were read.
{¶ 25} In November 2015, open enrollment occurred for coverage that was to
begin on January 1, 2016. As Thornton indicated, during open enrollment, employees
who were enrolling new dependents in the plan were required to provide verification; if
the required documents had already been provided for dependents who were being re-
enrolled (as opposed to being new enrollees), employees would not be required to
resubmit documents.
{¶ 26} In early December 2015, ConSova sent a further letter to DPS employees
notifying them that, as of November 23, 2015, ConSova had not received requested
information to verify eligibility for their listed dependents. The letter stated that if the
information were not received, coverage for the dependents would be terminated effective
December 31, 2015. The letter indicated that to avoid removal of dependents,
employees could send eligibility documentation to ConSova by uploading the documents
at ConSova’s website or by mailing them with a postmark dated on or before January 4,
2016. Finally, the letter again included the list of needed documentation and provided a
phone number for contacting ConSova’s dependent assistance center. See, e.g., Board
Exs. J-212; J-228. This was characterized by ConSova as an “appeals” process, but it
was actually a final opportunity to submit required documentation.
{¶ 27} Subsequently, in early to mid-January 2016, ConSova notified employees
whether their “appeal” had been approved and whether their dependents would stay on
the DPS health plan. See, e.g., Board Ex. J-298 (January 12, 2016 letter from ConSova
to Michelle Jackson, indicating that ConSova had approved her “appeal” for one
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dependent, but had denied her “appeal” for the other dependent because of missing
documentation for that dependent); Board Ex. J-338 (January 6, 2016 letter denying
“appeal” of Mary Roos).3
{¶ 28} On or around January 27, 2016, the Board sent letters to the employees
who had not responded or who had provided incomplete documentation as of January 4,
2016. The letters indicated that coverage for the employees’ enrolled dependents had
terminated effective December 31, 2015, that the dependents would not be eligible for
COBRA, and that the next available opportunity for eligible dependents to be enrolled
would be during DPS’s next open enrollment in November 2016 for the plan year that
would be effective on January 1, 2017. In addition, the Board enclosed information about
an alternate health plan called NextPlan IQ, and indicated that those who lost coverage
would have a special enrollment period for that plan ending on February 29, 2016. See,
e.g., Board Exs. J-231 and J-232.
{¶ 29} After learning of the termination of coverage, some employees contacted
Pam Calvert, the DPS benefits coordinator. These were not considered appeals, but
were treated as requests for an exception due to circumstances like an employee’s failure
to receive letters from ConSova. Calvert’s role was to confirm what ConSova had
received, and to then forward the information to her supervisor, Judith Spurlock, and to
the DPS treasurer. Ultimately, very few exceptions were made. According to Thornton
(the DPS account manager at McGohan), an exception was made for an individual whose
3Based on the evidence submitted, this “appeals” letter would have been sent only to
employees who actually submitted additional documentation after the November 16, 2015
deadline or the December 7, 2015 letter. Some employees did not submit any additional
documents to ConSova between November 16, 2015, and January 4, 2016.
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marriage license arrived at the close of the audit, and there was not sufficient time to
respond and tell her that a marriage certificate was needed.
{¶ 30} On February 11, 2016, DEA filed a “class action” Level II grievance, which
stated that:
Since on or about January 27, 2016[,] and continuing[,] the Dayton
City School District violated Article 49 of the contract between the DEA and
the School Board when it failed and refused to provide dependent coverage
to the grievants’ eligible dependents.4
{¶ 31} A grievance hearing was held on April 7, 2016, during which only one
employee (Jennifer Evans) testified. On April 14, 2016, the hearing officer denied DEA’s
grievance, concluding that DEA failed to prove a contractual violation. DEA then
demanded arbitration, and the matter was heard by an arbitrator on October 24 and 25,
2016. At the hearing, DEA presented testimony from David Romick and from seven DEA
members whose coverage for a dependent or dependents had been terminated. The
Board presented testimony from Pam Calvert and Carrie Thornton.
{¶ 32} After the hearing, the arbitrator issued a decision on February 13, 2017,
concluding that DEA’s grievance was timely. The arbitrator also found that, while the
Board had the right to verify dependent coverage, there were issues concerning whether
it was reasonable to require only the specified documents for verification. In addressing
the individual cases, the arbitrator concluded that six of the seven had merit.
4 The actual grievance is not in the record. However, DEA did not indicate at the trial level
or on appeal that this statement of the grievance was incorrect. The grievance decision
is in the record and indicates essentially the same content concerning the grievance that
DEA filed. See Board Exs.C-22 and C-23; Doc. #14, Board Exs. H-154 and H-155.
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Accordingly, the arbitrator retained jurisdiction to resolve disputes about any claimed
damages.
{¶ 33} On May 12, 2017, the Board filed a motion in the trial court, seeking to
vacate the arbitration opinion and award. In its motion, the Board contended that DEA’s
grievance was untimely and that the audit was a management right not subject to
arbitration. DEA responded and asked the court to affirm the arbitration award. After
the record was filed, the trial court issued a decision on October 10, 2017, confirming the
arbitration decision. The Board then timely appealed from the trial court’s decision.
II. Alleged Error in Confirming the Award
{¶ 34} The Board’s sole assignment of error states that:
The Trial Court Erred When It Confirmed and Refused to Vacate an
Arbitration Award That Was Not Rationally Derived from the Terms of a
Collective Bargaining Agreement.
{¶ 35} Under this assignment of error, the Board contends that the trial court erred
by failing to vacate the award because the arbitrator exceeded his authority under the
collective bargaining agreement (the Master Contract). According to the Board, the
dependent audit was a management right that was not subject to arbitration. The Board
notes the arbitrator’s conclusion that the right to conduct the audit was a management
right and argues that the arbitrator should have concluded his analysis at that point.
However, according to the Board, instead of focusing on the management rights clause
of the contract (Article 67.06) and the contract’s preamble, the arbitrator incorrectly relied
on Article 49 as a basis for jurisdiction. The Board contends that there is no rational
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nexus between Article 49 and the dependent audit.
A. Standards for Review of Arbitration Awards
{¶ 36} Under R.C. 2711.13, any party may file a motion in the common pleas court
to vacate an award that has been made in an arbitration proceeding. R.C. 2711.09 also
allows parties to file motions in the common pleas court for orders confirming arbitration
awards. In either situation, the common pleas court is required to grant the order to
confirm unless the court vacates, modifies, or corrects the award under R.C. 2711.10 or
R.C. 2711.11.
{¶ 37} R.C. 2711.10 is the pertinent provision here, and states, in relevant part,
that:
In any of the following cases, the court of common pleas shall make
an order vacating the award upon the application of any party to the
arbitration if:
***
(D) The arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the subject
matter submitted was not made.
{¶ 38} Recently, the Supreme Court of Ohio settled a conflict between districts
concerning the appropriate standard for reviewing trial court decisions on arbitration
awards. The court rejected an abuse of discretion standard, and held, as a matter of first
impression, that:
When reviewing a decision of a common pleas court confirming, modifying,
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vacating, or correcting an arbitration award, an appellate court should
accept findings of fact that are not clearly erroneous but decide questions
of law de novo.
Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators’ Assn. for Dev. Disabilities,
153 Ohio St.3d 219, 2018-Ohio-1590, 103 N.E.3d 804, syllabus. This is the standard we
have previously used. See, e.g., Kettering Health Network v. CareSource, 2d Dist.
Montgomery No. 27233, 2017-Ohio-1193, ¶ 11.
{¶ 39} Under public policy favoring arbitration, “courts have only limited authority
to vacate an arbitrator's award.” Assn. of Cleveland Fire Fighters, Local 93 of the
Internatl. Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278, 793
N.E.2d 484, ¶ 13. Reviewing courts are restricted to deciding “whether the award draws
its essence from the CBA and whether the award is unlawful, arbitrary, or capricious.”
Id., citing Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn., 49 Ohio St.3d 129,
551 N.E.2d 186 (1990), paragraph two of the syllabus. As a result, “if there is a rational
nexus between the contract and the arbitrator’s award and the award is not arbitrary,
capricious or unlawful, the arbitrator did not exceed her authority and the award cannot
be vacated pursuant to R.C. 2711.10(D).” Montgomery Cty. Sheriff v. Fraternal Order of
Police, 158 Ohio App.3d 484, 2004-Ohio-4931, 817 N.E.2d 107, ¶ 22 (2d Dist.).
{¶ 40} “An arbitrator’s award departs from the essence of a collective bargaining
agreement when: (1) the award conflicts with the express terms of the agreement, and/or
(2) the award is without rational support or cannot be rationally derived from the terms of
the agreement.” Ohio Office of Collective Bargaining v. Ohio Civ. Serv. Employees
Assn., Local 11, AFSCME, AFL-CIO, 59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus.
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Accord Piqua v. Fraternal Order of Police, 185 Ohio App.3d 496, 2009-Ohio-6591, 924
N.E.2d 876, ¶ 24 (2d Dist.); Ohio Patrolmen's Benevolent Assn. v. Findlay, 149 Ohio St.3d
718, 2017-Ohio-2804, 77 N.E.3d 969, ¶ 16.
{¶ 41} Further, “an arbitrator may not create a contract of his own by imposing
additional requirements not expressly provided for in the agreement.” Internatl. Assn. of
Firefighters, Local 67 v. Columbus, 95 Ohio St.3d 101, 104, 766 N.E.2d 139 (2002), citing
Ohio Office of Collective Bargaining at 183.
{¶ 42} In Portage Cty. Bd. of Dev. Disabilities, the Supreme Court of Ohio also
stated that “ ‘[t]he question whether an arbitrator has exceeded his authority is a question
of law * * *.’ ” Portage Cty. Bd. of Dev. Disabilities, 153 Ohio St.3d 219, 2018-Ohio-1590,
103 N.E.3d 804, at ¶ 25, quoting Green v. Ameritech Corp., 200 F.3d 967, 974 (6th
Cir.2000). Since this is a question of law, we accord no deference to the trial court’s
decision, but decide the issue de novo.
{¶ 43} Before we consider whether the arbitrator exceeded his authority, we note
that the Board has mentioned in passing in its brief that DEA’s grievance was untimely.
See Appellant's Brief, p. 5. However, the Board has not assigned error to this point, nor
has the Board specifically discussed the matter in its brief, as required by App.R. 16(A)(3)
and (7). Under App.R. 12(A)(1)(b), we decide an “appeal on its merits on the
assignments of error set forth in the briefs under App.R. 16, the record on appeal under
App.R. 9, and, unless waived, the oral argument under App.R. 21.” “We ‘sustain or
overrule only assignments of error and not mere arguments.’ ” Dunina v. Stemple, 2d
Dist. Miami No. 2007 CA 9, 2007-Ohio-4719, ¶ 4, quoting State v. Fed. Ins. Co., 10th Dist.
Franklin No. 04AP-1350, 2005-Ohio-6807, ¶ 7. See also Kidd v. Alfano, 2016-Ohio-
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7519, 64 N.E.3d 1052, ¶ 52 (2d Dist.); Discover Bank v. Heinz, 10th Dist. Franklin No.
08AP-1001, 2009-Ohio-2850, ¶ 13 (courts may disregard errors not separately assigned
or argued). In view of our discretion to disregard error that is not separately assigned,
we will not consider any alleged untimeliness of the grievance that DEA filed. We can
consider error in the interests of justice, but decline to do so, since the Board chose not
to elaborate on its assertion that the grievance was untimely.
B. Management Rights
{¶ 44} As was noted, on February 11, 2016, DEA filed its “class-action” grievance,
asserting the following ground:
Since on or about January 27, 2016[,] and continuing[,] the Dayton
City School District violated Article 49 of the contract between the DEA and
the School Board when it failed and refused to provide dependent coverage
to the grievants' eligible dependents.
{¶ 45} At the initial grievance hearing, which was held on April 7, 2016, DEA's
asserted position was that the Board had improperly conducted a dependent audit.
Regarding this contention, the grievance hearing officer stated that:
DEA asserts that the terms for open enrollment, the types of
available coverage, and the requirements for new hires to obtain insurance
are all contained in Article 49 of DEA's CBA. DEA asserts that there is no
language concerning a dependent audit or conditions for maintaining family
coverage in the DEA's CBA. DEA asserts that if Administration wanted to
conduct a dependent audit or to impose conditions for maintaining family
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coverage, then it should have negotiated those things into the DEA CBA.
DEA asserts that since this audit was not negotiated between the parties, it
violates DEA's CBA.
Board Ex. C-22. As was noted, the hearing officer rejected DEA's grievance.
{¶ 46} In his decision, the arbitrator acknowledged that conducting verification of
coverage through an audit was a reasonable exercise of contractual management rights
in the contract. Specifically, the arbitrator stated that:
* * * This management right is governed somewhat by Article 49 that
requires insurance forms to be filed in a timely manner by new staff
members. Failure to file the forms “will result in coverage being delayed
until the first day of the month after they are received.” While this language
applies to new hires, it implies that forms are to be filed by both new and
existing employees in a timely manner.
I find that management was acting within its broad management
authority to verify the existing status of claimed dependents (and spouses)
by instituting an audit. But like all other management rights, they are not
absolute even if not specifically limited by CBA language. For example,
unilaterally imposed changes in work rules, disciplinary rules or material
changes in working conditions must be reasonable on their face, and they
must be applied in a reasonable manner. They can be challenged if they
are arbitrary, capricious, illegal, unconscionable, or clearly unreasonable.
The audit procedures and requirements are not unreasonable on their face.
Sufficient time was provided for compliance with the required submissions.
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It was not unreasonable for ConSova to request the specific documents it
wanted to use for verification. There is an issue, however, as to whether it
was reasonable to require only the specified documents on an exclusive
basis for verification when the failure to meet the specifications resulted in
a total loss of coverage.
I find that the Board provided sufficient time to comply with the audit
requests and that its notice attempts were reasonable, as shown by the high
compliance rates. Again, however, the question must be asked as to
whether the coverage removal penalty for delay in responding and
complying in each case was unreasonably excessive.
Board Exs. M-14 and 15.
{¶ 47} Ultimately, the arbitrator found that removal of coverage for the dependents
of six of the seven individual employees was arbitrary and unreasonable. In reviewing
the arbitrator's decision, the trial court concluded that a rational nexus existed between
the contract and the award because the arbitrator was “applying the Board's obligation to
provide the [health insurance] benefits, limited only by reasonable limitations and
conditions.” Doc. #17, Decision and Entry Confirming Arbitration Decision, p. 3.
{¶ 48} As was indicated, the Board argues that the verification audit fell within the
exercise of management rights, which were preserved under the Master Contract and are
not subject to arbitration. The preamble of the Master Contract states that:
B. Except to the extent specifically modified by the terms of this
CONTRACT, the Dayton Board of Education (hereinafter referred to as
BOARD) has all powers, rights, and reserve duties conferred it under the
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provisions of the Revised Code of Ohio.
Board Ex. H-5.
{¶ 49} Article 67, Section 67.06, further provides as follows:
67.06 Management’s Rights
All rights and powers heretofore possessed by the BOARD, except
as otherwise specifically modified by the express provisions of this
CONTRACT, shall be retained solely and exclusively by the BOARD.
Board Ex. H-143.
{¶ 50} In this regard, the Board notes that under R.C. 4117.08, it has various
statutory rights, including the right to decide matters of inherent managerial authority,
which encompasses maintaining and improving the effectiveness and efficiency of
governmental operations and deciding overall methods of conducting governmental
operations. Therefore, according to the Board, nothing in the Master Contract modified
or removed these rights, and the Board should be allowed to conduct an audit “without
being second-guessed by an arbitrator.” Appellant’s Brief at p. 16.
{¶ 51} R.C. 4117.08(A) provides that:
All matters pertaining to wages, hours, or terms and other conditions
of employment and the continuation, modification, or deletion of an existing
provision of a collective bargaining agreement are subject to collective
bargaining between the public employer and the exclusive representative,
except as otherwise specified in this section and division (E) of section
4117.03 of the Revised Code.5
5 R.C. 4117.03 sets forth the rights of public employees, and states in subsection (E) that
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{¶ 52} As pertinent here, R.C. 4117.08(C) further provides that:
Unless a public employer agrees otherwise in a collective bargaining
agreement, nothing in Chapter 4117 of the Revised Code impairs the right
and responsibility of each public employer to:
(1) Determine matters of inherent managerial policy which include,
but are not limited to areas of discretion or policy such as the functions and
programs of the public employer, standards of services, its overall budget,
utilization of technology, and organizational structure;
***
(3) Maintain and improve the efficiency and effectiveness of
governmental operations;
***
The employer is not required to bargain on subjects reserved to the
management and direction of the governmental unit except as affect wages,
hours, terms and conditions of employment, and the continuation,
modification, or deletion of an existing provision of a collective bargaining
agreement. A public employee or exclusive representative may raise a
legitimate complaint or file a grievance based on the collective bargaining
agreement.
{¶ 53} The arbitrator and the DEA relied on Article 49 of the contract, which deals
with "Insurance." Section 49.01 provides that:
A Medical Insurance Program shall be available in accordance with
“[e]mployees of public schools may bargain collectively for health care benefits.”
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the provisions of this article for all Professional Staff Members covered by
this CONTRACT who complete the required applications for insurance and
transmit such applications to the Treasurer of the BOARD during the
required enrollment period. Insurance coverage is not automatic.
Appropriate information and application forms will be provided to all
new Professional Staff Members at the time of employment. If the date of
employment is later than the open enrollment period, required insurance
forms shall be filed with the office of the Treasurer within five (5) work days
of receipt. Forms that are not returned in five (5) work days will result in
coverage being delayed until the first day of the month after they are
received. This penalty for delay will be clearly noted to the new employee.
Forms not filed within thirty (30) days of commencement of employment
coverage will not be available until the next enrollment period.
Board Exs. H-93 and H-94.
{¶ 54} DEA contends that the arbitrator’s decision did not exceed his authority
because he was interpreting the agreement. According to the DEA, in addition to the
above provisions relating to penalties for delay in filing forms, Article 49 contains an
agreement for provision of health insurance coverage, which includes the Board's
payment of 85% of premiums as well as financial contributions toward the health savings
accounts of employees with single or family coverage. DEA also points out that in
Section 67.02.1 of the contract, the Board agreed that “it will not, during the period of this
CONTRACT, officially adopt or implement any condition of employment affecting
Professional Staff Members that is not contained within this CONTRACT until such term
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or condition has been a subject of negotiations between the parties.” Board Ex. H-142.
DEA, consequently, contends that the Board could not properly take action removing
dependents from an employee’s health care coverage when this condition had not been
negotiated.
{¶ 55} While the issue of a dependent verification is not specifically addressed in
the contract, R.C. 4117.08(A) refers broadly to the fact that “[a]ll matters pertaining to
wages, hours, or terms and other conditions of employment” are subject to negotiation.
Furthermore, although R.C. 4117.08(C) does exempt employers from bargaining “on
subjects reserved to the management and direction of the governmental unit,” that right
is qualified by exceptions, i.e., the exemption from bargaining does not extend to subjects
that “affect wages, hours, terms and conditions of employment, and the continuation,
modification, or deletion of an existing provision of a collective bargaining agreement.”
{¶ 56} The Supreme Court of Ohio has said that “[t]he word ‘affect’ in R.C.
4117.08(C) suggests that management rights which ‘act upon’ or ‘produce a material
influence upon’ working conditions are bargainable. * * * Thus, a reasonable interpretation
of R.C. 4117.08(C) is that where the exercise of a management right causes a change in
or ‘affects’ working conditions or terms of a contract, then the decision to exercise that
right is a mandatory subject for bargaining.” Lorain City School Dist. Bd. of Educ. v. State
Emp. Relations Bd., 40 Ohio St.3d 257, 262, 533 N.E.2d 264 (1988).
{¶ 57} We have found very little case law relating to dependent verification, as
most of the employer/employee disputes center on disciplinary measures taken against
employees or other individual personnel issues. See, e.g., Fraternal Order of Police, 185
Ohio App.3d 496, 2009-Ohio-6591, 924 N.E.2d 876, at ¶ 1 (discipline); Dayton v. Internatl.
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Assn. of Firefighters, Local 136, 2d Dist. Montgomery No. 27600, 2018-Ohio-2746, ¶ 16
(overtime); Dayton v. Fraternal Order of Police, 2d Dist. Montgomery No. 20863, 2006-
Ohio-1129, ¶ 5 (transfers of officers to different districts).
{¶ 58} However, in Dayton v. Fraternal Order of Police, 76 Ohio App.3d 591, 602
N.E.2d 743 (2d Dist.1991), we considered whether the trial court had properly vacated an
arbitration decision concerning the City of Dayton’s payment of health insurance benefits
for members of the police union. Id. at 593. The dispute in that case involved the
amount of “cap” that would be applied to the city’s share of insurance premiums and the
date when the new cap would be effective. Id. at 595. While the contract in that case
did provide for re-opening of health care coverage negotiations, of note are two
observations we made: (1) that “the contracts evidence a mutual intention that throughout
each three-year period the city will provide health care coverage to appellant's members”;
and (2) that “the issue to be determined does not concern a matter of ‘management rights’
but, instead, an employee benefit.” Id. at 599.
{¶ 59} We also noted in Internatl. Assn. of Firefighters, Local 136 (an overtime
case), that the collective bargaining agreement did not “address the precise issue
presented to the arbitrator, making an interpretation necessary”, and that “[s]ince a
contractual interpretation was required, the arbitrator, whether the decision is correct or
not, did not exceed his authority.” Internatl. Assn. of Firefighters, Local 136 at ¶ 16.
{¶ 60} Moreover, the Fourth District Court of Appeals has stated that “[s]ince
payment for sick leave affects wages and terms and conditions of employment, it was
required to be bargained for, and the reservation of management rights in R.C.
4117.08(C), which the [employer] retained, does not include the right to impose additional
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sick leave requirements not included in the collectively bargained provision.” Deeds v.
City of Ironton, 48 Ohio App.3d 7, 11, 548 N.E.2d 254 (4th Dist.1988).6
{¶ 61} Our research has disclosed one out-of-state case that involves a fact
situation similar to the case before us. In City of San Antonio v. Internatl. Assn. of Fire
Fighters, Local 624, Tex. App. Nos. 04-12-00783-CV, 04-13-00109-CV, 2013 WL
5508408 (Oct. 2, 2013), a firefighter’s union brought suit against the city of San Antonio.
The union contended that the city had violated provisions of the local government code
related to collective bargaining by: (1) unilaterally requiring firefighters to be actively
enrolled to receive health-care benefits; and (2) “threatening termination of coverage for
currently covered dependents unless the firefighters provide additional information.” Id.
at *1.
{¶ 62} In response to the suit, the city filed a motion to abate the case for
arbitration, arguing that the lawsuit concerned application or interpretation of the collective
bargaining agreement. Id. After the trial court denied the city’s motion, the city
appealed. The city also filed a petition for a writ of mandamus in the court of appeals,
seeking to compel the union to engage in arbitration, as mandamus was the appropriate
common law remedy in that situation. Id. at *2. The court of appeals denied the petition
for writ of mandamus, finding that the Federal Arbitration Act, rather than the common
law, applied. Id. at *2-3.
{¶ 63} With respect to the appeal, the union argued that the matter should not be
sent to arbitration because the union was pursuing statutory claims for violation of
6 Arbitration was not involved in Deeds because the bargaining agreement allowed
appeals to be taken to court after the grievance proceeding concluded. Deeds at 9.
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bargaining rights rather than a contractual violation. However, after reviewing the
complaint, the court of appeals disagreed. The court stated that:
Although the Union's petition contains repeated references to the
terms of the CBA and the Master Contract Document, including multiple
citations to and quotes from both contracts, the Union insists that the
petition asks the trial court to determine the meaning of provisions of
Chapter 174 [statutes pertaining to collective bargaining] and to declare a
violation of those provisions. We do not agree. The Union seeks a judicial
declaration that the City has, without authority, changed health-care benefit
eligibility without bargaining collectively. A court cannot make such a
declaration without first interpreting the current CBA provisions regarding
health-care benefits, and then determining whether the information or action
required by the City alters or changes the CBA's current provisions.
Therefore, we conclude this claim is within the scope of the arbitration
agreement.
Id. at *6.
{¶ 64} This is consistent with our reasoning in Internatl. Assn. of Firefighters, Local
136, which indicated that arbitration is required even if a contract does not specifically
address the issues presented to the arbitrator, because interpretation of the contract is
required. Internatl. Assn. of Firefighters, Local 136, 2d Dist. Montgomery No. 27600,
2018-Ohio-2746, at ¶ 16.
{¶ 65} In arguing that the trial court erred in refusing to vacate the arbitrator’s
award, the Board relies heavily on Stow Firefighters, IAFF Local 1662 v. Stow, 193 Ohio
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App.3d 148, 2011-Ohio-1559, 951 N.E.2d 152 (9th Dist.). In Stow, the court of appeals
held that an arbitrator’s decision that a grievance was arbitrable failed to draw its essence
from the collective-bargaining agreement. Id. at ¶ 4. Stow involved a grievance that
claimed, among other things, that the city had violated the bargaining agreement by
requiring a firefighter to submit to a fitness-for-duty evaluation. Id. at ¶ 2.
{¶ 66} The trial court found that the arbitrator did not exceed his authority by
addressing the city’s order, which had required the firefighter to submit to a fitness-for-
duty evaluation. Id. at ¶ 4. On appeal, the city contended that the trial court should
have vacated the arbitration award. The city asserted that the grievance was not
arbitrable because the parties “did not bargain for any limitations on the city's otherwise
unrestricted right to evaluate its employees' fitness for duty.” Id. at ¶ 21.
{¶ 67} The arbitrator had found the grievance arbitrable based on the fact that the
grievance language challenged management’s exercise of rights under the management
responsibilities section of the agreement. The court of appeals commented, however,
that the arbitrator failed to point to any term or provision in that section which affected the
employer’s right to conduct fitness-for-duty evaluations. Id. at ¶ 30.
{¶ 68} The court of appeals then reviewed two sections of the contract that
reserved management rights. The first section generally retained all rights conferred by
Ohio laws, the Ohio Constitution, and the city’s charter. The second, more specific
section listed various rights, including the city’s right to “direct, supervise, evaluate, or hire
and select employees.” Id. at ¶ 31. The union had also agreed in the contract that “ ‘all
of the functions, rights, powers, responsibilities and authority of the Employer in regard to
the operation of its work and business and the direction of its workforce which the
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Employer has not specifically abridged, deleted, granted or modified by the express and
specific written provisions of this Agreement are, and shall remain, exclusively those of
the Employer.’ ” Id., quoting Section 4.05 of the agreement.
{¶ 69} The court of appeals concluded that “[t]he plain language of the agreement
seems to indicate that the city has reserved for itself the right to evaluate its employees’
fitness for duty.” Id. at ¶ 31. The court then noted that the union had failed to point to
any provision in the agreement modifying the city’s reserved right to order employees to
submit to such an evaluation. Id. at ¶ 32. After making these observations, the court of
appeals stated that:
Under R.C. 4117.08(C)(2), a public employer retains the right to
“evaluate” employees “[u]nless [it] agrees otherwise in a collective
bargaining agreement.” In State ex rel. Bardo v. Lyndhurst (1988), 37 Ohio
St.3d 106, 524 N.E.2d 447, the Ohio Supreme Court explained that R.C.
4117.08(C) removes the itemized reserved powers from the scope of a
collective-bargaining agreement “unless the parties affirmatively address
that subject in their negotiations.” Id. at 113, 524 N.E.2d 447, fn. 5. The
arbitrator in this case agreed with the parties that this collective-bargaining
agreement did not include terms or provisions dealing with fitness-for-duty
evaluations. Under Bardo, the city's right to evaluate its employees did not
become a “term or provision” of the contract, subject to arbitration, simply
by being included in the listing of reserved rights in the management-
responsibilities provision. Both the plain language of R.C. 4117.08(C) and
the Supreme Court's decision in Bardo run directly contrary to the union's
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position that “[i]f an employer seeks to prohibit management right terms
from being subject to arbitration, it must negotiate terms into the labor
agreement excluding such from arbitration.”
Id. at ¶ 33.
{¶ 70} The Board contends that, like the employer in Stow, its decision to conduct
the dependent audit was not arbitrable because the Board retained management rights
under R.C. 4117.08(C)(1) and (3), and no specific provision in the Master Contract
modified these reserved rights. However, Stow is distinguishable from the case before
us.
{¶ 71} Unlike the agreement in Stow, where the city retained the right to “evaluate”
employees, the Master Contract did not list any specific rights that were reserved, other
than those that the Board “heretofore possessed” (Section 67.06), or those “conferred on
it under the provisions of the Revised Code of Ohio.” (Preamble, Section B). These are
very non-specific references.
{¶ 72} Even if we included the inherent management rights mentioned in R.C.
4117.08(C) (which we have previously discussed), the matters listed in R.C 4117.08(C)(1)
and (3) are much more general than evaluating employees. For example, R.C.
4117.08(C)(1) refers generally to items like “overall budget,” “organizational structure,”
and use of “technology.” The last part of R.C. 4117.08(C) also states that “[t]he employer
is not required to bargain on subjects reserved to the management and direction of the
governmental unit except as affect wages, hours, terms and conditions of employment,
and the continuation, modification, or deletion of an existing provision of a collective
bargaining agreement.” (Emphasis added.) As was previously noted, health care, as
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an employee benefit, fits within the categories of items that are included within conditions
of employment. In fact, R.C. 4117.03(E) specifically includes the ability to “bargain
collectively for health care benefits” within the rights of public school employees.
{¶ 73} Accordingly, we conclude that the arbitration award was rationally derived
from the terms of the parties’ collective bargaining agreement. Even though the Board
claimed to have reserved certain management rights pursuant to statute, health care
benefits were a bargainable subject, and whether the Board could impose additional
requirements required resort to contract interpretation. The Board’s sole assignment of
error, therefore, is overruled.
{¶ 74} As a final matter, we decline to consider the DEA’s contention that the Board
should pay attorney fees under App.R. 23. Courts have refused to consider such
requests where the party seeking fees fails to file a motion, but instead simply inserts the
matter in its brief. See Carrollton Exempted Village School Dist. Bd. of Educ. v. Ohio
Assn. of Pub. School Emps., 7th Dist. Carroll No. 03CA795, 2004-Ohio-1385, ¶ 28. Even
if we considered the issue, we would conclude that the appeal is not frivolous, as the
Board presented a reasonable question for review. See, e.g., Moshos v. Moshos, 2d
Dist. Greene No. 03CA83, 2004-Ohio-4932, ¶ 9.
III. Conclusion
{¶ 75} The Board’s sole assignment of error having been overruled, the judgment
of the trial court is affirmed.
.............
TUCKER, J., concurring:
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{¶ 76} I concur in the well-reasoned, comprehensive majority opinion. I write
separately to explain my thoughts concerning why the arbitrator’s decision, though, in my
opinion, flawed, involves a necessary CBA interpretation, with this conclusion leading to
the ultimate conclusion that the arbitrator did not exceed his authority.
{¶ 77} This determination is difficult because the arbitrator concluded, and, on
appeal, the DEA agrees, that the Board’s conduction of the dependent verification audit
was, under R.C. 4117.08(C) and the CBA, a reserved right. The Board, from this, asserts
that the audit’s conduction is outside the scope of the CBA’s grievance process. This,
quite frankly, is a logical, reasonable contractual interpretation, and if the arbitrator had
reached this conclusion, any attempt by the DEA to vacate such a determination would
have been futile. This is so because the suggested result would have involved an
interpretation of the CBA, the parties have agreed to submit contractual interpretation
issues to binding arbitration, and the suggested arbitration decision, “whether * * * correct
or not,” would have been within the arbitrator’s authority. Internatl. Assn. of Firefighters,
Local 136, 2d Dist. Montgomery No. 27600, 2018-Ohio-2746, ¶ 16.
{¶ 78} The question, therefore, is whether the arbitrator’s actual, contrary
determination involved a required interpretation of the CBA. If it did, the arbitrator,
irrespective of the merits of the decision, did not exceed his authority and the arbitration
award is not subject to vacation under R.C. 2711.10(D).
{¶ 79} The first question addressed is whether the arbitrator’s decision represents
a contractual interpretation as opposed to the arbitrator, out of whole cloth, simply
imposing his own “brand of industrial justice.” Ohio Office of Collective Bargaining v.
Ohio Civ. Serv. Emps. Assn., Local 11, AFSCME, 59 Ohio St.3d 177, 180, 572 N.E.2d 71-31-
(1991). A review of the arbitrator’s decision indicates that he engaged in an
interpretation of the CBA. The arbitration decision states that the Board’s management
right to conduct the audit “is governed somewhat by Article 49.” The arbitrator, from this,
concluded that Article 49 acted as a governor on the Board’s right to conduct the audit so
that the audit could not be conducted in an “arbitrary, capricious, discriminatory,
unconscionable, or clearly unreasonable” fashion.
{¶ 80} The arbitrator, in short, interpreted the intersection between the Board’s
right to conduct the audit and the Article 49 bargained-for health insurance benefits. The
arbitrator’s interpretation may be strained, with it being particularly distressing that the
arbitrator, after finding that the audit’s “procedures and requirements [were] not
unreasonable on their face[,]” conducted an examination of the individual claims. The
arbitrator, nonetheless, did conduct an interpretation of the CBA.
{¶ 81} The next, and final, question is whether the arbitrator’s CBA interpretation
was required. The Board argues that since the audit was within its reserved rights, no
CBA interpretation was necessary. This argument, however, ignores the fact that the
DEA’s grievance required the arbitrator to determine how, if at all, Article 49 affected the
Board’s management right to conduct the audit.
{¶ 82} Since the arbitrator, in order to resolve the DEA’s grievance, had to interpret
the interplay between the Board’s right to conduct the audit and the bargained-for health
insurance benefits, the arbitrator necessarily engaged in an interpretation of the CBA.
Thus, the arbitrator, irrespective of the merits of his decision, did not exceed the authority
the CBA granted to him, making vacation of the decision under R.C. 2711.10(D)
inappropriate.
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HALL, J., dissenting:
{¶ 83} In my opinion, the arbitrator strayed from the bargaining agreement and
improperly applied his own general sense of “fairness” to limit a management right that
was not subject to arbitration. In doing so, “[t]he arbitrator[ ] exceeded [his] powers, or so
imperfectly executed them that a mutual, final, and definite award upon the subject matter
submitted was not made.” R.C. 2711.10(D). Therefore, I dissent.
{¶ 84} As indicated in the majority opinion “whether an arbitrator has exceeded his
authority is a question of law * * *.’ ” Portage Cty. Bd. of Dev. Disabilities, 153 Ohio St.3d
219, 2018-Ohio-1590, 103 N.E.3d 804, at ¶ 25, quoting Green, 200 F.3d 967, 974 (6th
Cir.2000). Here, the arbitrator determined that the conducting of an audit of eligibility for
health care coverage was a management right. The audit began in September 2015. The
DEA was an active participant in the audit and throughout the process did not complain
that the audit, or the manner of implementation, was not a management right. They did
not file their “class action” grievance until February 11, 2016. On its face then, the
grievance was not timely. A grievance must be filed within 30 days after the staff member
knew or should have known of the event or condition upon which the grievance is based.
The DEA knew for months of the specific requirements of the documentation needed for
the audit. If the DEA desired to contest the nature and extent of the third-party audit, it
should have done so when it became aware of the audit process, rather than actively
participating in it. Moreover, the audit emphatically demonstrated that exploitation of the
benefits provided by the Board was rampant. “ConSova audited 2,531 enrolled
dependents. (Doc. No. 5, Record, Board J-187) As a result of the audit, DPS dropped
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coverage for 571 dependents (i.e. 381 children, 12 domestic partners, and 178 spouses).”
Appellant’s brief at 8. More than one out of every five enrolled dependents was ineligible.
{¶ 85} With this backdrop, when the arbitrator determined that the audit was a
management right, his involvement was concluded. Under the CBA and state statute,
reserved management rights are not subject to arbitration, and the arbitrator was without
jurisdiction to apply his own sense of reasonableness, because that was no longer
supported by any nexus with the contract. The Board reserved exclusive authority to
exercise its management rights. “67.06 Management’s Rights. All rights and powers
heretofore possessed by the BOARD, except as otherwise specifically modified by the
express provisions of this CONTRACT, shall be retained solely and exclusively by the
BOARD.” (Emphasis added). Article 67, Section 67.06, Board Ex. H-143. Management
rights are also specifically preserved to management by R.C. 4117.08. In my opinion, the
only logical conclusion is that, once the arbitrator determined that the audit was a
management right, the inquiry was over and not subject to arbitration.
{¶ 86} The arbitrator’s errant wandering is evident from his opinion and award. The
arbitrator concluded that “management was within its broad management authority to
verify the existing status of claimed dependents (and spouses) by initiating an audit. * * *
The audit procedures and requirements are not unreasonable on their face. Sufficient
time was provided for compliance with the required submissions. It was not unreasonable
for ConSova to request the specific documents it wanted to use for verification.” Board
Ex. M-14. The arbitrator then went on to opine, without reference to any citation,
precedent or standard, that he should determine “whether it was reasonable to require
only the specified documents on an exclusive basis for verification when the failure to
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meet the specifications resulted in total loss of medical insurance coverage.” Id. Not only
was this diametrically opposed to the arbitrator’s prior conclusion, but if an unfettered
sense of “reasonableness” applied, then none of the 571 ineligible dependents should
have had their insurance denied, because that was too harsh a penalty. That’s absurd,
unsupported by reason or logic, and not drawn from the contract. In my opinion, the
arbitrator’s conclusion was created out of whole cloth. It amounts to no more than second-
guessing preserved management rights and, if affirmed, results in no management rights
at all.
{¶ 87} I would conclude that the arbitrator exceeded his powers and imperfectly
executed those powers by allowing an untimely grievance and by applying his own
general sense of “fairness” to the grievants who did not comply with the objectively
generous terms of the audit. I would vacate the award, and therefore dissent.
Copies mailed to:
Brian L. Wildermuth
Lauren K. Epperley
Susan D. Jansen
Hon. Richard Skelton