Toledo City School Dist. Bd. of Edn. v. Toledo Fedn. of Teachers, AFT Local 250

[Cite as Toledo City School Dist. Bd. of Edn. v. Toledo Fedn. of Teachers, AFT Local 250, 2016-Ohio-7807.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

Board of Education of Toledo Court of Appeals No. L-15-1285
City School District
Trial Court No. CI0201501869
Appellee

v.

Toledo Federation of Teachers,
AFT Local 250 DECISION AND JUDGMENT

Appellant Decided: November 18, 2016

*****

Margaret J. Lockhart and Amy M. Natyshak, for appellee.

John M. Roca, for appellant.

****

SINGER, J.

{¶ 1} Appellant, the Toledo Federation of Teachers (hereinafter the “Union”),

appeals from the October 1, 2015 judgment of the Lucas County Court of Common Pleas

denying the motion of the Union for summary judgment and granting the motion for
summary judgment filed by the Board of Education of Toledo City School District

(hereinafter the “Board”). For the reasons which follow, we affirm.

{¶ 2} On appeal, the Union asserts the following assignments of error:

1. THE COURT OF COMMON PLEAS ERRONEOUSLY

SUBSTITUTED ITS JUDGMENT FOR THAT OF THE ARBITRATOR.

2. THE COURT OF COMMON PLEAS ERRONEOUSLY

DETERMINED THAT THE BOARD HAD NOT WAIVED ITS

CHALLENGE TO THE AWARD.

3. THE COURT OF COMMON PLEAS ERRONEOUSLY

DETERMINED THAT THE AWARD WAS CONTRARY TO LAW.

{¶ 3} The Board and Union are parties to a collective bargaining agreement

effective from July 1, 2013 through June 30, 2016. The parties participated in collective

bargaining negotiations for this agreement in March 2013. Each party had lead

negotiators, but they delegated some issues to subcommittees for recommendations.

These subcommittees had no authority to impose financial obligations on the school

district. Any recommendations by the subcommittees had to be returned to the main

negotiation table for approval.

{¶ 4} At issue in this case are the negotiation issues related to special education

teachers. The Union president testified that, similar to prior negotiations in 2011, these

issues were not part of the general subcommittee process. Because the parties knew the

issues would end up in fact-finding, which could potentially interfere with the delivery of

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special education services at the start of the new school year, these issues were negotiated

separately from the main table. He further testified that the Union appointed Beth

Harrison to negotiate on behalf of the Union and the only limitation placed on her

authority to negotiate was that she could not negotiate salary schedules. The Board

appointed Karla Spangler, who was not a member of the Board’s lead negotiating team.

James Gault, Chief Academic Officer and a main table negotiator, testified that Spangler

did not have authority to sign off on any contract language and that any recommendations

brought to the main table had to be cost neutral in order for the Board to have sufficient

funds available for salary increases.

{¶ 5} The Union president further testified that he discussed with Superintendent

Pecko that any agreement reached by the two appointed negotiators would not have to

return to the main table for approval so that the special education staffing could be in

place at the start of the school year. Pecko did not testify at the arbitration hearing.

{¶ 6} Harrison testified that she understood she had full authority to negotiate the

special education issues, except for salaries, on behalf of the union and that she was never

told that Spangler did not have the same authority on behalf of the Board. Spangler

testified that she knew that she did not have any authority to sign off on contract language

on behalf of the Board and did not believe Harrison had such authority either.

{¶ 7} Harrison and Spangler met on June 24, 2013, to discuss the special

education issues. The language of the collective bargaining agreement effective at that

time provided for one hour per pupil of release time for elementary teachers and thirty

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minutes for secondary teachers preparing Individualized Education Plans (“IEPs”). The

two negotiators agreed to increase the time to two hours for both elementary and

secondary teachers. The negotiators also agree that special education teachers should be

paid $100 for preparing initial IEPS. They jointly recommended an increase in

compensation and release time for special education teachers preparing IEPs. Some of

the other proposals reflected practices that had changed under the prior agreement

because of the changes in special education law.

{¶ 8} Gault testified the recommendations of the special education subcommittee

were never presented at the main table or approved by the lead negotiators and the Board.

He further testified the recommendations regarding the compensation and release time for

IEP preparation would have resulted in an additional $190,000 cost to the Board for each

year of the three-year collective bargaining agreement. These issues were also never

submitted to the fact-finder.

{¶ 9} A Union special education negotiator from the 2011 negotiations confirmed

that that the special education issues were negotiated separately that year, and that she

had full authority to bind the Union. She and the Board negotiator reached an agreement

which was never presented to the main negotiation table and was subsequently

implemented by the Board. In 2008, the same negotiator testified she was advised that

any money issues had to be approved at the main table. The Board argued the 2010

subcommittee on special education did not make any proposals that would cost the

district money and the subcommittee reviewed its proposals at the main table.

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 {¶ 10} Following the fact-finder’s report in September 2013, the Board prepared a

summary of the tentative agreements reached by the parties and forwarded a copy of the

approved proposals to the Union president. The Union never questioned the summary,

which did not include the recommended IEP provisions. The Union president testified he

did not question the exclusion of the special education agreements because he assumed

that they had already been implemented at the beginning of the school year as had other

special education issues. The Board approved the proposals approved by the lead

negotiators and the fact-finder. The Union also prepared a summary of the tentative

agreements, which included the special education agreements reached by Harrison and

Spangler, and its proposals and the fact-finder’s report were approved by the Union’s

membership.

{¶ 11} After ratification of the collective bargaining agreement, some special

education teachers requested payment for preparing IEPs. The school board treasurer

denied payment. The Union learned the Toledo Public Schools was implementing only

parts of the special education agreements and not the IEP proposals agreed to by the

special education negotiators. The assistant superintendent at that time first learned of

the IEP proposals when special education teachers began to submit their forms for

additional pay.

{¶ 12} The Union filed two grievances alleging the special education teachers

were being denied payment for initial IEPs as well as two hours per pupil of release time

to prepare IEPs in violation of the collective bargaining agreement (Art. XLVIII, Sec. F-4

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and F-7). At the Level II grievance procedure, the hearing officer denied the grievances

on the ground the IEP proposals were not part of the Collective Bargaining Agreement

ratified by the Board in September 2013. The matter was submitted to arbitration. An

evidentiary hearing was held on August 13 and September 20, 2014.

{¶ 13} The arbitrator issued his opinion and award on February 2, 2015. He

determined that the first question in this case was whether the Board was bound by the

agreements reached by the two negotiators in the special education subcommittee. The

arbitrator found that even though Spangler was not a member of the Board’s lead

negotiating team, the lead negotiators never saw or agreed to the IEP proposal, and the

Board never considered or approved the IEP proposal, the proposals nevertheless became

part of the collective bargaining agreement because Spangler had “ostensible or

apparent” authority to bind the Board through the actions of Superintendent Pecko. The

arbitrator found significant the facts that Pecko agreed to Spangler’s authority, Spangler

never informed Harrison that Spangler lacked final authority over the special education

issues, Spangler never presented the committee agreement to the main table, and the

school district implemented every change except the IEP proposal. Second, the arbitrator

found that the Board was not complying with the amended IEP provisions of the

collective bargaining agreement. The arbitrator determined the appropriate remedy

would be to impose the IEP requirements beginning in January 2015.

{¶ 14} The Board filed a complaint in the Lucas County Court of Common Pleas

on March 17, 2015, pursuant to R.C. 2711.10, seeking to have the arbitrator’s award

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vacated. Therefore, the Board argued the arbitrator exceeded his authority by adding to

or modifying the terms of the collective bargaining agreement. The Union asserted

affirmative defenses of lack of jurisdiction, statute of limitations, and waiver. The Union

also filed a counterclaim against the Board alleging a breach of the collective bargaining

agreement and seeking to have the court confirm the arbitrator’s award and issue a

preliminary and permanent injunction to compel the Board to comply with the award.

Both parties moved for summary judgment.

{¶ 15} On October 1, 2015, the trial court granted the Board’s motion for

summary judgment and denied the Union’s motion for summary judgment. The court

found the arbitrator exceeded his authority under the collective bargaining agreement by

modifying the terms of the agreement to include the IEP proposals. The arbitrator

acknowledged the Board never saw nor approved the IEPs proposal. Therefore, the court

found that the arbitrator did more than determine if the Board was violating the collective

bargaining agreement by determining whether the IEP proposal was included in the

collective bargaining agreement. The trial court found the arbitrator’s action was

contrary to statute (R.C. 3313.33; R.C. 121.22; and R.C. 4117.10(C)) and violated public

policy. The union appealed.

{¶ 16} In a judgment entry dated December 11, 2015, we remanded this case to

the Lucas County Court of Common Pleas so the trial court could enter a final judgment.

We held the judgment appealed was not a final order and noted two deficiencies in the

trial court’s purported final judgment of October 1, 2015. On remand, the trial court, in a

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judgment dated December 23, 2015, granted summary judgment to the Toledo Board of

Education of Toledo School District and vacated the February 2, 2015 arbitration award

issued by arbitrator. The trial court also found that the counterclaims of the Union were

foreclosed by the granting of summary judgment, there were no remaining claims at issue

in this case, and denied the Union’s motion for summary judgment. The appeal was then

reinstated.

Appellant’s First Assignment of Error

{¶ 17} On appeal, the Union argues in its first assignment of error the trial court

erred when it granted summary judgment to the Board and denied summary judgment to

the Union. The Union argues that the trial court exceed its authority by vacating the

arbitrator’s award because the arbitrator only construed the agreement of the

subcommittee approved by Spangler, who had authority to bind the Board. Furthermore,

the Union argues the trial court did not have authority under R.C. 2711.10 to determine

what provisions were included in the collective bargaining agreement, which had not

been reduced to writing at the time of the arbitration hearing.

{¶ 18} The parties in this case agreed in the collective bargaining agreement to

arbitrate grievance disputes. The arbitrator was appointed pursuant to Article

XLVIII(F)(4) and (7) of the collective bargaining agreement to resolve the grievance of

whether the special education teachers were entitled to an increase in pay or release time

for the time needed to prepare IEPs. The grievance procedure set forth in Article II(C)(4)

provides:

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 The arbitrator shall hear only one grievance in each case provided

however that all concerns arising from or out of a single occurrence or

series of related occurrences shall be consolidated as a single grievance. He

shall be found by, and must comply with, all the terms of these policies,

unless the same is in direct conflict with an existing statute. He shall have

no power to add to, delete from, or modify in any way any of the provisions

of these policies.

{¶ 19} Generally, an arbitration award is deemed final because the purpose of

arbitration is to end the controversy and avoid future litigation. Youghiogheny & Ohio

Coal Co. v. Oszust, 23 Ohio St.3d 39, 41, 491 N.E.2d 298 (1986). The parties agree to

accept the results of arbitration “regardless of its legal or factual accuracy.” Cleveland v.

Fraternal Order of Police, Lodge No. 8, 76 Ohio App.3d 755, 758, 603 N.E.2d 351 (8th

Dist.1991).

{¶ 20} However, the trial court may vacate award for corruption, fraud, undue

means, evident partiality, misconduct, an imperfect award, or where the arbitrator

exceeded his authority granted by the arbitration agreement. R.C. 2711.10; Goodyear

Tire & Rubber Co. v. Local Union No. 220, United Rubber, Cork, Linoleum & Plastic

Workers of Am., 42 Ohio St.2d 516, 522, 330 N.E.2d 703 (1975).

{¶ 21} An arbitrator’s award will not be vacated on the ground that the arbitrator

exceeded his authority if the award “draws its essence from the collective bargaining

agreement and is not unlawful, arbitrary or capricious.” Bd. of Edn. of Findlay City

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School Dist. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 132-133, 551 N.E.2d 186 (1990),

superseded on other grounds by R.C. 4117.10(A), which defines specific laws which

prevail over a collective bargaining agreement, as stated in Cincinnati v. Ohio Council 8,

AFSCME, 61 Ohio St.3d 658, 662, 576 N.E.2d 745 (1991). In ruling on the motion for

summary judgment, the trial court determined the factual issues were undisputed and that

the arbitrator exceeded his authority as a matter of law. Therefore, we apply a de novo

standard of review. Findlay Edn. Assn.; Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738

N.E.2d 1243 (2000), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996); Kaminsky v. New Horizons Computer Learning Ctr. of Cleveland, 8th

Dist. Cuyahoga No. 103416, 2016-Ohio-1468, ¶ 12.

{¶ 22} On appeal, the Union argues that the arbitrator had authority to determine

whether the Board was bound by the Harrison/Spangler negotiations. We disagree. The

arbitrator is limited to interpreting and applying the collective bargaining agreement.

Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 7.

The arbitrator cannot add to the collective bargaining agreement. Martins Ferry City

Sch. Dist. Bd. of Edn. v. Ohio Assn. of Pub. School Emps., 7th Dist. Belmont No.

12 BE 15, 2013-Ohio-2954, ¶ 38; Kelly v. FOP Ohio Labor Counsel, 2d Dist. Clark No.

94-CA-53, 1995 Ohio App. LEXIS 558, *21 (Jan. 17, 1995).

{¶ 23} In the case before us, the central issue was not whether the provisions of

the contract supported the grievance, but whether a provision of the collective bargaining

agreement had been modified by the parties. Under the 2013-2016 collective bargaining

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agreement approved by the Board, the grievance fails. It is only under the allegedly

“modified” agreement that the grievance is supported.

{¶ 24} We agree with the trial court that while R.C. Chapter 4117 governs the

collective bargaining agreement process, it does not usurp the statutory limitations placed

upon boards of education regarding their contractual authority. No contract is binding

upon a board of education unless it acts as a body to make or authorize a contract at a

regular or special meeting. R.C. 3313.33 and 121.22(H); Wolf v. Cuyahoga Falls City

Sch. Dist. Bd. of Educ., 52 Ohio St.3d 222, 224, 556 N.E.2d 511 (1990) (school boards,

as creations of statute, only have the authority granted by statute). Compare Allen Cty.

Sheriff v. FOP, Ohio Labor Council, Inc., 3d Dist. Allen No. 1-11-55, 2012-Ohio-3122,

¶ 14 (sheriff and union could not agree to provide for an optional health insurance carrier

because that agreement would supersede the duty of the board of county commissioners

to negotiate and enter into all health insurance contracts for all county employees).

{¶ 25} In this case, the board of education alone has the authority to bind the board

to a collective bargaining agreement. R.C. 3313.33(B). No other school employee can

bind the board to a contract. Wolf; Walker v. Lockland City School Dist. Bd. of Edn., 69

Ohio App.2d 27, 29, 429 N.E.2d 1179 (5th Dist.1980). Since the Board never considered

nor approved the recommendations of the special education committee regarding the IEP

compensation or release time, those recommendations did not become part of the

collective bargaining agreement. We find appellant’s first assignment of error not well-

taken.

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 Second Assignment of Error

{¶ 26} In its second assignment of error, the Union argues that the trial court erred

by not finding that the Board waived its right to challenge the arbitrator’s award when it

submitted the grievances to the arbitrator. The Union argues the Board should have

objected to the scope of the issues or sought an injunction prior to arbitration to prevent

the arbitrator from determining whether they had agreed to the IEPs proposal.

{¶ 27} Generally, if a party has agreed to arbitrate a grievance but failed to object

to the scope of the arbitration, that party waives the right to contest the scope of the

arbitration on appeal. City of Fostoria v. Ohio Patrolmen’s Benevolent Assn., 106 Ohio

St.3d 194, 2005-Ohio-4558, 833 N.E.2d 720, ¶ 28. However, we disagree with the Union

that the Board agreed to arbitrate the issue of whether a contract issue was agreed upon

by the parties. The Board properly submitted the grievances to arbitration. Had the

arbitrator determined the grievances based on the language of the collective bargaining

agreement approved by the Board, there would have been no error. The problem in this

case is that the arbitrator exceeded his authority and determined that the special education

negotiations led to binding contractual provisions. Appellant’s second assignment of

error is not well-taken.

Third Assignment of Error

{¶ 28} In its third assignment of error, the Union argues that the trial court erred in

determining that the award was made contrary to law (R.C. 3313.33) because R.C.

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4117.10(A) controls and the “contrary to law” basis for vacating the arbitration award has

been eliminated.

{¶ 29} R.C. 4117.10(A) provides that collective bargaining agreements preempt

state or local laws regarding employment issues, except for the laws specifically

exempted by the statute. In the case before us, however, the issue is not a matter of

preemption. The issue here is the legal authority of a board of education and other school

officials to enter into a collective bargaining agreement. Therefore, we find the trial court

had jurisdiction to determine whether the IEP provisions were properly authorized by the

Board and became a part of the collective bargaining agreement. Appellant’s third

assignment of error is not well-taken.

{¶ 30} Having found the trial court did not commit error prejudicial to appellant

and that substantial justice has been done, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

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 Bd. of Edn. of Toledo City School
Dist. v. Toledo Fedn. of Teachers,
AFT Local 250
C.A. No. L-15-1285

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE

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