Bair v. Ohio Dept. of Mental Health , 2013 Ohio 2589 ( 2013 )

[Cite as Bair v. Ohio Dept. of Mental Health, 2013-Ohio-2589.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JEFFREY R. BAIR : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2012 AP 08 0053
:
OHIO DEPARTMENT OF MENTAL :
HEALTH, ET AL. :
:
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2012-CV-01-0023
JUDGMENT: AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
DATE OF JUDGMENT ENTRY: June 17, 2013
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee Ohio Dept. of
Mental Health:
S. DAVID WORHATCH
4920 Darrow Road MICHAEL DEWINE
Stow, OH 44224-1406 Ohio Attorney General
MATTHEW J. KARAM
JOSEPH N. ROSENTHAL
30 E. Broad St., 23rd Floor
Columbus, OH 43215
For Defendant-Appellee SEIU District
1199:
CATHERINE J. HARSHMAN
3360 Tremont Rd., Suite 230
Columbus, OH 43221
Tuscarawas County, Case No. 2012 AP 08 0053 2
Delaney, J.
{¶1} Plaintiff-Appellant Jeffrey R. Bair appeals the July 23, 2012 judgment
entry of the Tuscarawas County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Defendant-Appellee Ohio Department of Mental Health (“ODMH”)
employed Plaintiff-Appellant Jeffrey R. Bair as a psychiatric/MR nurse at a Heartland
Behavioral Healthcare facility until ODMH terminated Bair’s employment on November
10, 2010. During Bair’s employment, Bair was a member of good standing in
Defendant-Appellee Service Employees International Union, District 1199, The Health
Care and Social Service Union, Change to Win, CLC (“the Union”). ODMH and the
Union were governed by a collective bargaining agreement, effective from June 1, 2009
to May 31, 2013 (“CBA”).
{¶3} Based on events that occurred after Bair’s termination, Bair filed a
complaint in the Tuscarawas County Court of Common Pleas that named the Ohio
Department of Mental Health, the Service Employees International Union, District 1199,
The Health Care and Social Service Union, Change to Win, CLC and Susan Grody
Ruben as Defendants. In the January 10, 2012 complaint and relevant to the within
appeal, Bair alleged the following:
11. Bair and the Union initiated a grievance on Bair’s behalf by filing the
same on November 23, 2010, in the manner recognized and followed by
management and the Union for the perfection of grievances. A copy of
the standards for adjusting grievances submitted on behalf of collective
bargaining unit members at HBH [Heartland Behavioral Healthcare] is
Tuscarawas County, Case No. 2012 AP 08 0053 3
found in Article 7 of the Union Contract, a copy of which is reproduced at
Exhibit C attached to this complaint.
12. On January 27, 2011, the Union expressly consented to the
designation of S. David Worhatch, Esq., Bair’s private counsel, as its
representative for the Step 1 conference under the grievance procedure
outlined in Section 7.06 of Article 7 of the Union Contract. Mr. Worhatch
represented the interests of Bair and the Union at such conference.
13. On February 10, 2011, management communicated the results of the
Step 1 conference to Bair, the Union, and Bair’s private counsel,
essentially sustaining the decision of the appointing authority in removing
Bair from his position with HBH.
14. On February 24, 2011, the Union expressly consented to the
designation of S. David Worhatch, Esq., Bair’s private counsel, as its
representative for pursuing mediation and/or arbitration of the grievance
filed on Bair’s behalf. On the same date, both the Union (by way of a
notice of intent to arbitrate) and Mr. Worhatch (by way of notice of demand
for arbitration) invoked the remedies at Step 2 of the grievance process
outlined in Section 7.06 of Article 7 of the Union Contract, electing thereby
to bypass mediation and proceed directly to arbitration of the grievance
submitted on Bair’s behalf.
{¶4} An arbitration hearing was convened on June 15, 2011 before the
arbitrator, Susan Grody Ruben. On October 10, 2011, Ruben issued her Arbitrator’s
Opinion and Award, finding ODMH had just cause to terminate Bair’s employment. In
Tuscarawas County, Case No. 2012 AP 08 0053 4
the Arbitrator’s Opinion and Award, Ruben named the Union and the State of Ohio as
the parties. The Arbitrator’s Opinion and Award was attached to Bair’s complaint.
{¶5} Count One of Bair’s complaint was a declaratory judgment action pursuant
to Chapter 2721 of the Ohio Revised Code. He argued that pursuant to violations by
the arbitrator as to the CBA time guidelines regarding grievances, the arbitrator did not
have jurisdiction over his grievance. Because his claim was not arbitrable, Bair
asserted he could bring his wrongful termination claim to the court of common pleas.
{¶6} Count Two of Bair’s complaint alleged a breach of contract of the CBA by
ODMH based on its wrongful termination of Bair’s employment.
{¶7} Count Three of the complaint was a motion to vacate, modify, or correct
the arbitration award pursuant to Chapter 2711 of the Ohio Revised Code.
{¶8} On February 10, 2010, in lieu of filing an answer to the complaint, ODMH
filed a motion to dismiss pursuant to Civ.R. 12(B)(1) and 12(B)(6). The Union
simultaneously filed a motion to dismiss.
{¶9} Bair filed a Motion for Summary Judgment on Count One of his complaint.
{¶10} The trial court held an oral hearing on the pending motions to dismiss and
motion for summary judgment. On July 23, 2012, the trial court issued its decision on
both motions. The trial court granted the motion to dismiss as to all three counts of
Bair’s complaint. As to Bair’s declaratory judgment action, the trial court found that
declaratory judgment was the improper vehicle for appealing an arbitration award
pursuant to Chapter 2711 of the Ohio Revised Code. On Count Two of the complaint,
the trial court found that R.C. 4117.10(A) prevented Bair from bringing a breach of
contract action. Finally, the trial court dismissed Count Three of the complaint because
Tuscarawas County, Case No. 2012 AP 08 0053 5
Bair was not a party to the arbitration, Bair could not individually petition the trial court to
vacate the arbitration award. Based on its decision as to Count One in the motion to
dismiss, the trial court denied Bair’s motion for summary judgment as moot.
{¶11} It is from this decision Bair now appeals.
ASSIGNMENTS OF ERROR
{¶12} Bair raises two Assignments of Error:
{¶13} “I. BAIR HAS ‘STANDING’ TO PROSECUTE A CHALLENGE TO THE
ARBITRATION AWARD UNDER CHAPTER 2711 OF THE OHIO REVISED CODE.
{¶14} “II. THE COURT BELOW ERRED IN DISMISSING BAIR’S
INDEPENDENT CLAIM FOR DECLARATORY RELIEF UNDER CHAPTER 2721 OF
THE OHIO REVISED CODE AS ‘INAPPROPRIATE’ AND DENYING HIS MOTION FOR
SUMMARY JUDGMENT ON THAT CLAIM AS ‘MOOT.’”
{¶15} On page one of Bair’s appellate brief, under the heading of “Statement of
the Assignments of Error,” Bair lists five additional Assignments of Error that are
different from the above-quoted. In the body of the appellate brief, Bair does not direct
his arguments under the five Assignments of Error but rather under the two
Assignments of Error. Pursuant to App.R. 16, we consider the two above-quoted
Assignments of Error in our analysis.
ANALYSIS
I.
{¶16} In Bair’s first Assignment of Error, he argues the trial court erred in
dismissing his complaint. We agree in part.
Tuscarawas County, Case No. 2012 AP 08 0053 6
Standard of Review
{¶17} The standard of review on a Civil Rule 12(B)(6) motion to dismiss is de
novo. Greely v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d
981 (1990). We need not defer to the trial court's decision in such cases. Estate of
Heath v. Grange Mut. Cas. Co., 5th Dist No. 02CAE05023, 2002-Ohio-5494, ¶ 9. In a
de novo analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber,
57 Ohio St.3d 56, 565 N.E.2d 584 (1991). A motion to dismiss can only be granted
where the party opposing the motion is unable to prove any set of facts that would
entitle the party to the relief requested. Kenty v. Transamerica Premium Ins. Co., 72
Ohio St.3d 415, 418, 650 N.E.2d 863, 865-866 (1995); York v. Ohio State Hwy. Patrol,
60 Ohio St.3d 143, 573 N.E.2d 1063 (1991). A motion for a judgment on the pleadings
presents only questions of law. Greely, supra., citing Peterson v. Teodosia, 34 Ohio
St.2d 161, 165-166, 297 N.E.2d 113 (1973).
Count Three
{¶18} Count Three of Bair’s complaint is a motion to vacate, modify, or correct
the arbitration award. The trial court dismissed Count Three of Bair’s complaint
because it found Bair did not have standing to petition the trial court to vacate the
award. Upon our de novo review, we disagree with the trial court’s conclusion as to
whether Bair can prove no set of facts that would entitle him to relief on his motion to
vacate, modify, or correct the arbitration award.
{¶19} ODMH and the Union argue Bair lacks standing to appeal from a binding
arbitration because the only parties with standing to appeal are the parties to the
Tuscarawas County, Case No. 2012 AP 08 0053 7
arbitration: ODMH and the Union. They base their argument in part on Johnson v.
Metro Health Med. Ctr., 8th Dist. No. 79403, 2001-Ohio-4259. In Johnson, the court
analyzed whether an employee could individually appeal an arbitration award. Pursuant
to the collective bargaining agreement, the employee’s union filed a grievance against
the employer for the employee’s alleged wrongful termination. The arbitrator ruled the
employer wrongfully terminated the employee, but did not award the employee back-
pay. The employee, not the union, appealed to the court of common pleas.
{¶20} The court held the individual employee lacks standing to appeal from
binding arbitration where the employee’s union and the employer are the sole parties.
Id. at *1. The conclusion was supported by recognizing “the distinction between a party
in interest and an interested party. Clearly, [the individual employee] remained
interested in the arbitration decision; however, when she asked for her union’s help, she
called upon the collective power of her fellow members, and ceased to stand alone.
The necessary and just price paid by [the individual employee] was subordination of her
individual rights to those of her fellow union members.” Id. at *2. The court noted an
exception to this rule is found in R.C. 4117.03(A)(5). The statute allows the public
employee to “[p]resent grievances and have them adjusted, without the intervention of
the bargaining representative, as long as the adjustment is not inconsistent with the
terms of the collective bargaining agreement then in effect and as long as the
bargaining representatives have the opportunity to be present at the adjustment.” The
Johnson court interpreted the right to proceed without union representation exists only
at the outset of the grievance proceeding. “Once the employee chooses union
representation, that employee lacks standing on all matters including an appeal.” Id. at
Tuscarawas County, Case No. 2012 AP 08 0053 8
*2. See also Bailey v. Beasley, 10th Dist. No. 09AP-682, 2010-Ohio-1146; Waiters v.
Lavelle, 8th Dist. No. 95270, 2011-Ohio-116.
{¶21} Bair contends the underlying facts of his grievance proceedings are
different from that presented in Johnson and therefore bars this case from dismissal on
the pleadings. Bair argued in his response to the motion to dismiss that from the
inception of his grievance proceedings, Bair chose to “go it alone” pursuant to R.C.
4117.03(A)(5), instead of using union representation. He stated his counsel of record in
the arbitration proceeding was his private counsel and the Union did not participate in
the proceedings.
{¶22} ODMH and the Union also raise Leon v. Boardman Twp., 100 Ohio St.3d
335, 2003-Ohio-6466, 800 N.E.2d 12, in support of its argument that Bair lacks standing
to pursue an appeal of the arbitration decision. In Leon, the public employee was
discharged for violating residency requirements. The employee’s discharge was
arbitrated on his behalf by his union. Once the arbitration decision was rendered, the
union denied the employee’s request for further representation. The employee
instituted proceedings in the court of common pleas to vacate the arbitration award
pursuant to R.C. 2711.10. Id. at ¶ 1.
{¶23} The Supreme Court of Ohio affirmed the dismissal of the employee’s
appeal by holding:
When an employee’s discharge or grievance is arbitrated between an
employer and a union under the terms of a collective bargaining
agreement, the aggrieved employee does not have standing to petition a
court to vacate the award pursuant to R.C. 2711.10, unless the collective
Tuscarawas County, Case No. 2012 AP 08 0053 9
bargaining agreement expressly gives the employee an independent right
to submit disputes to arbitration.
Id. at syllabus.
{¶24} Bair argues the underlying facts in Leon can be distinguished from those
in the present case. Unlike the employee in Leon who elected to pursue the matter on
his own after the arbitration decision had been rendered, Bair argues he has from the
outset of the grievance procedures proceeded without union representation pursuant to
R.C. 4117.03(A)(5). Because the employee in Leon did not pursue the arbitration
proceedings without union representation from the beginning, Bair argues it was
unnecessary for the Leon Court to consider the application of R.C. 4117.03(A)(5) to the
issue presented.
{¶25} Under our de novo review of a motion to dismiss, we must accept all
factual allegations of the complaint as true and all reasonable inferences must be drawn
in favor of the nonmoving party. The allegations in Bair’s complaint state:
11. Bair and the Union initiated a grievance on Bair’s behalf by filing the
same on November 23, 2010, in the manner recognized and followed by
management and the Union for the perfection of grievances. * * *
12. On January 27, 2011, the Union expressly consented to the
designation of S. David Worhatch, Esq., Bair’s private counsel, as its
representative for the Step 1 conference under the grievance procedure
outlined in Section 7.06 of Article 7 of the Union Contract. Mr. Worhatch
represented the interests of Bair and the Union at such conference.
Tuscarawas County, Case No. 2012 AP 08 0053 10
13. On February 10, 2011, management communicated the results of the
Step 1 conference to Bair, the Union, and Bair’s private counsel,
essentially sustaining the decision of the appointing authority in removing
Bair from his position with HBH.
14. On February 24, 2011, the Union expressly consented to the
designation of S. David Worhatch, Esq., Bair’s private counsel, as its
representative for pursuing mediation and/or arbitration of the grievance
filed on Bair’s behalf. On the same date, both the Union (by way of a
notice of intent to arbitrate) and Mr. Worhatch (by way of notice of demand
for arbitration) invoked the remedies at Step 2 of the grievance process
outlined in Section 7.06 of Article 7 of the Union Contract, electing thereby
to bypass mediation and proceed directly to arbitration of the grievance
submitted on Bair’s behalf.
{¶26} Considering the allegations of the complaint in a light most favorable to
Bair and the impact of R.C. 4117.03(A)(5) on Bair’s ability to pursue an appeal of the
arbitration award, we find the dismissal of Count Three was premature. The trial court
specifically stated in its July 23, 2012 judgment entry that it would not convert the
motion for judgment on the pleadings to a motion for summary judgment; however, as to
Count Three, we find the facts and law raised lend itself for further consideration beyond
the four corners of the pleadings.
Count One and Count Two
{¶27} In Count One of the complaint, Bair brought a declaratory judgment action
pursuant to R.C. Chapter 2721, requesting a declaration that Bair may assert his own
Tuscarawas County, Case No. 2012 AP 08 0053 11
claim in the court of common pleas. In Count Two, Bair alleged a cause of action for
breach of contract, requesting relief under the CBA. The trial court dismissed both
Count One and Count Two. We agree.
{¶28} In City of Galion v. Am. Fed. of State, Cty. and Mun. Emp., 71 Ohio St.3d
620, 646 N.E.2d 813 (1995), the Ohio Supreme Court reviewed the certified question
and the underlying question of “whether a party, when challenging an arbitration award,
has the option of bringing an action for declaratory judgment as an alternative to the
statutory remedy contained in R.C. Chapter 2711.” Id. at 621. The Court held:
R.C. Chapter 2711 provides the exclusive statutory remedy which parties
must use in appealing arbitration awards to the courts of common pleas.
An action in declaratory judgment cannot be maintained to circumvent the
clear legislative intent of R.C. Chapter 2711.
Id. at paragraph two of the syllabus.
{¶29} Further, the CBA, attached to Bair’s complaint, provides, “Arbitrators’
decisions under this Agreement shall be final and binding.” (Article 7.07, F. Binding
Decisions). The Ohio Supreme Court stated in State ex rel. Wilkinson v. Reed, 99 Ohio
St.3d 106, 2003-Ohio-2506, 789 N.E.2d 203, ¶ 20: “Furthermore, if a collective
bargaining agreement between a public employer and an exclusive employee
representative ‘provides for a final and binding arbitration of grievances, public
employers, employees, and employee organizations are subject solely to that grievance
procedure * * *.’ (Emphasis added.) R.C. 4117.10(A). Insofar as the union claims that
relators' actions violated the collective bargaining agreement, binding arbitration is its
exclusive remedy.”
Tuscarawas County, Case No. 2012 AP 08 0053 12
{¶30} The Ohio General Assembly and Ohio courts have expressed a strong
public policy favoring arbitration. Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009–
Ohio–2054, 908 N.E.2d 408, ¶ 15 citing R.C. Chapter 2711 and Taylor Bldg. Corp. of
Am. v. Benfield, 117 Ohio St.3d 352, 2008–Ohio–938, 884 N.E.2d 12, ¶ 27. Because of
the strong presumption favoring arbitration, all doubts should be resolved in its favor.
Hayes, supra citing Ignazio v. Clear Channel Broadcasting, Inc. 113 Ohio St.3d 276,
2007–Ohio–1947, 865 N.E.2d 18, ¶ 18.
{¶31} Plaintiff-Appellant Jeffrey R. Bair’s first Assignment of Error is sustained in
part and overruled in part.
II.
{¶32} Bair argues in his second Assignment of Error the trial court erred in
denying his motion for summary judgment on Count One of his complaint. We
disagree.
{¶33} The standard for granting summary judgment is delineated in Dresher v.
Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996): “ * * * a party seeking summary
judgment, on the ground that the nonmoving party cannot prove its case, bears the
initial burden of informing the trial court of the basis for the motion, and identifying those
portions of the record that demonstrate the absence of a genuine issue of material fact
on the essential element(s) of the nonmoving party's claims. The moving party cannot
discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the
nonmoving party has no evidence to prove its case. Rather, the moving party must be
able to specifically point to some evidence of the type listed in Civ.R. 56(C) which
Tuscarawas County, Case No. 2012 AP 08 0053 13
affirmatively demonstrates the nonmoving party has no evidence to support the
nonmoving party's claims. * * * ”
{¶34} Based on our analysis of Bair’s first Assignment of Error as to Count One
of Bair’s complaint, we find no error in the trial court’s determination that Bair’s summary
judgment motion was moot. Reasonable minds can only conclude that Bair is not
entitled to judgment as a matter of law on his claim for declaratory judgment pursuant to
the CBA.
{¶35} Plaintiff-Appellant Jeffrey R. Bair’s second Assignment of Error is
overruled.
Tuscarawas County, Case No. 2012 AP 08 0053 14
CONCLUSION
{¶36} Based on the foregoing, we sustain in part Plaintiff-Appellant Jeffrey R.
Bair’s first Assignment of Error. We vacate only the portion of the July 23, 2012
judgment entry of the Tuscarawas County Court of Common Pleas that dismissed
Count Three of Plaintiff-Appellant Jeffrey R. Bair’s complaint. We remand the matter to
the trial court for further proceedings on Count Three of the complaint.
{¶37} The remainder of Plaintiff-Appellant Jeffrey R. Bair’s Assignments of Error
as to the July 23, 2012 judgment entry are overruled.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. CRAIG R. BALDWIN
PAD:kgb