[Cite as Trumbull Cty. Bd. of Commrs. v. Gatti, 2017-Ohio-8533.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
BOARD OF TRUMBULL COUNTY : OPINION
COMMISSIONERS, et al.,
:
Plaintiffs-Appellees, CASE NO. 2017-T-0027
:
- vs -
:
ROBERT GATTI,
:
Defendant-Appellant.
:
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV
02192.
Judgment: Affirmed.
Matthew J. Blair, Blair & Latell Co., L.P.A., 724 Youngstown Road, Suite 12, Niles, OH
44446 (For Plaintiffs-Appellees).
David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Robert Gatti, appeals from the entry of summary judgment by
the Trumbull County Court of Common Pleas in favor of appellees, Board of Trumbull
County Commissioners, et al. At issue is whether the trial court possessed subject
matter jurisdiction over the underlying complaint and, if so, whether the trial court erred
in concluding there were no genuine issues of material fact for trial and, as such,
appellees were entitled to judgment as a matter of law. We affirm.
{¶2} Appellant, an employee of the Trumbull County Engineer’s Office, was
involved in an accident on October 20, 2008, while working for the Engineer’s Office.
Appellant was a member of the AFSCME Local 11/AFL-CIO (“AFSCME”), which is the
representative of the bargaining unit employees of the Engineer’s office. AFSCME
entered into a Collective Bargaining Agreement (“CBA”) for the period of April 20, 2007
through April 19, 2013, on behalf of the employees of the Engineer’s Office.
{¶3} As a result of his accident, appellant was on various leaves from October
2008 through February 14, 2011. During his leaves, appellant collected workers’
compensation benefits. The CBA requires unit members to share in the cost of
hospitalization-insurance benefits while on workers’ compensation after the employee
has been receiving workers’-compensation benefits for a certain period of time.
{¶4} Consistent with the terms of the CBA, the Engineer’s office continued to
provide hospitalization benefits to appellant during his periods of leave. Pursuant to the
CBA, appellant was required to pay appellees a total of $10,500.64 as his proportionate
share of the advanced hospitalization-insurance premiums. Appellant made one
payment toward the premiums of $185.05 in 2009. The outstanding balance of
$10,315.59 remained due. Appellees requested appellant to pay the unpaid balance,
but appellant did not do so.
{¶5} On December 15, 2015, appellees filed a complaint against appellant
asserting claims of breach of contract and unjust enrichment. The complaint sought
$10,315.59 reimbursement for appellant’s portion of accrued hospitalization insurance-
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benefit premiums while appellant was on workers’ compensation leave. Appellant filed
an answer and counterclaim against appellee, Randy L. Smith, Trumbull County
Engineer. The counterclaim was ultimately dismissed, after which appellant moved the
trial court for judgment on the pleadings.
{¶6} In his motion, appellant claimed the trial court lacked subject-matter
jurisdiction over appellees’ claims relating to the reimbursement of his portion of the
premiums. He maintained the claims fell under the exclusive jurisdiction of the State
Employee Relations Board (“SERB”), pursuant to R.C. Chapter 4117, as they arise from
or are dependent upon rights created by the CBA. In response, appellees argued the
trial court possessed subject-matter jurisdiction over the case because R.C. Chapter
4117 does not provide a procedure for SERB to intervene in a dispute regarding an
employee’s breach of a contractual obligation for contribution under the terms of a CBA;
and, because the claim does not involve or allege an unfair labor practice under the
statute, the court of common pleas possessed jurisdiction to proceed. The trial court
agreed with appellees and denied appellant’s motion.
{¶7} On June 27, 2016, appellees served a request for admissions, to be
answered within 28 days, upon appellant and filed a notice of discovery on June 29,
2016. Appellant did not respond to the request for admissions and, on August 5, 2016,
appellees moved to have the requests deemed admitted. Appellant did not respond to
this motion and, on August 24, 2016, the trial court deemed the requests admitted.
{¶8} Appellees filed a motion for summary judgment to which appellant
responded, again asserting his jurisdictional arguments. On February 27, 2017, the trial
court granted appellees’ motion and awarded them judgment in the amount of
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$10,315.59. Appellant now appeals and assigns two errors for our review. His first
assignment of error provides:
{¶9} “The trial court lacked subject matter jurisdiction over this lawsuit.”
{¶10} Subject-matter jurisdiction is the power conferred upon a court, either by
constitutional provision or by statute, to decide a particular matter or issue on its merits.
State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). SERB is a state agency
created by R.C. Chapter 4117. R.C. 4117.02(A); see also State ex rel. Brecksville Edn.
Assn., OEA/NEA v. State Emp. Relations Bd., 74 Ohio St.3d 665, 666 (1996). As a
state agency and a creation of statute, SERB is limited to the authority and jurisdiction
conferred on it by statute. State ex rel. Ohio Civ. Serv. Emp. Assn. v. State, 146 Ohio
St.3d 315, 2016-Ohio-478, ¶51; see also Penn Cent. Transp. Co. v. Pub. Util. Comm.,
35 Ohio St.2d 97 (1973), paragraph one of the syllabus. “When the General Assembly
intends to vest an administrative agency with exclusive jurisdiction, it does so by
appropriate statutory language.” State ex rel. OCSEA, supra, at ¶52 citing State ex rel.
Banc One Corp. v. Walker, 86 Ohio St.3d 169, 171-172 (1999).
{¶11} “Exclusive jurisdiction to resolve unfair labor practice charges is vested in
SERB in two general areas: (1) where one of the parties filed charges with SERB
alleging an unfair labor practice under R.C. 4117.11 and (2) where a complaint brought
before the common pleas court alleges conduct that constitutes an unfair labor practice
specifically enumerated in R.C. 4117.11.” State ex rel. Ohio Dept. of Mental Health v.
Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, ¶23; E. Cleveland v. E. Cleveland
Firefighters Local 500, I.A.F.F., 70 Ohio St.3d 125, 127-128 (1994). “Nowhere in R.C.
Chapter 4117 does the General Assembly assign SERB exclusive jurisdiction over all
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issues touching on that chapter’s provisions. Instead, the General Assembly targeted
specific issues for SERB to address in the first instance.” State ex rel. OCSEA, supra.
Indeed, the Supreme Court has “expressly acknowledged * * * that a plaintiff may raise
in the common pleas courts rights that exist independently of R.C. Chapter 4117, “‘even
though they may touch on the collective bargaining relationships.’” Id. at ¶54 quoting
Franklin Co. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge
No. 9, 59 Ohio St.3d 167, 172 (1991). Accordingly, “if a party asserts rights that are
independent of R.C. Chapter 4117, the party’s complaint may properly be heard in
common pleas court.” Id. at paragraph one of the syllabus. If, however, the party
advances claims that “arise from or depend on the collective bargaining rights created
by R.C. Chapter 4117,” SERB has exclusive, original jurisdiction. Id. at paragraph two of
the syllabus.
{¶12} Appellant cites State ex rel. Fraternal Order of Police, Ohio Labor Council,
Inc. v. Court of Common Pleas of Franklin County, 76 Ohio St.3d 287 (1996), in support
of his position that SERB has exclusive jurisdiction over appellees’ claims. Appellant
emphasizes the Court’s observation that “any claim which is independent of R.C.
Chapter 4117, such as breach of contract or enforcement, still falls solely within the
jurisdiction of SERB if the asserted claim arises from or is dependent on the collective
bargaining rights created by R.C. Chapter 4117.” State ex rel. FOP/OLC, supra, at 290
citing State ex rel. Cleveland City School Dist. Bd. Of Education v. Pokorny, 105 Ohio
App.3d 108, 110 (8th Dist.1991). The Supreme Court, however, found the court of
common pleas patently and unambiguously lacked jurisdiction to proceed because the
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basis of the respondent’s claims were premised upon unfair labor practices as set forth
under R.C. 4117.11.
{¶13} Similarly, appellant cites Franklin Co. Law Enforcement Assn., supra, for
the proposition that a court of common pleas lacks jurisdiction to decide “claims [that]
were dependent on the framework established in R.C. Chapter 4117.” Id. at 171. While
this statement is accurate, the plaintiffs in Franklin Co. Law Enforcement Assn. were
also asserting collective bargaining rights created by R.C. Chapter 4117, including
unfair labor practices under R.C. 4117.11(B); interference with their right to vote, under
R.C. 4117.07; and a third claim that was derivative of R.C. 4117.19(C).
{¶14} Appellant additionally cites State ex rel. City of Cleveland v. Satula, 127
Ohio St.3d 131 (2010), for the blank proposition that “‘SERB has exclusive jurisdiction
over matters within R.C. Chapter 4117 in its entirety, not simply over unfair labor
practices claims.’” Id. quoting Assn. of Cleveland Fire Fighters, Local 93 of the Internatl.
Assn. of Fire Fighters v. Cleveland, 156 Ohio App.3d 368, 2004-Ohio-994, ¶12 (8th
Dist.) Again, Satula dealt with claims that fell squarely within R.C. Chapter 4117, to wit:
various unfair labor practice claims under R.C. 4117.11(A).
{¶15} The instant facts are distinguishable from the foregoing cases. Here,
neither party made an allegation relating to an unfair labor practice; rather, appellees
sought remuneration for appellant’s failure to pay his proportional share of the
hospitalization-insurance premium. Although appellant’s duty to pay his share and
appellees’ right to reimbursement arise out of the CBA, there is no provision under R.C.
Chapter 4117 that creates such rights or obligations. And appellant does not direct this
court to any provision of R.C. Chapter 4117 under which the instant breach of contract
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and/or unjust enrichment claims might arguably fall. In our view, therefore, appellees’
right to reimbursement is independent of the rights created by R.C. Chapter 4117 and,
pursuant to, inter alia, State ex rel. OCSEA, supra, the court of common pleas properly
exercised jurisdiction over the case. See also R.C. 4117.09(B)(1) (“A party to the
agreement may bring suits for violation of agreements or the enforcement of an award
by an arbitrator in the court of common pleas of any county wherein a party resides or
transacts business.”)
{¶16} Notwithstanding his claim that SERB possesses exclusive jurisdiction,
appellant alternatively argues that, because the CBA contains a binding grievance and
arbitration provision, arbitration is the exclusive means of resolving the underlying
dispute. Article 8, Section 2 of the CBA, however, makes it clear that “[t]he word
‘grievance’ as used in this Agreement refers to an alleged failure of the Employer to
comply with the provisions of this Agreement or the law.” (Emphasis added.) In this
case, appellee, the employer, is bringing suit for breach of the CBA against an
employee. Accordingly, by definition, the underlying claims do not constitute a
“grievance” under the CBA.
{¶17} Appellant’s first assignment of error lacks merit.
{¶18} Appellant’s second assignment of error provides:
{¶19} “The evidence in the record now before this honorable court does not
resolve all issues of material fact.”
{¶20} Summary judgment is a procedural tool that terminates litigation and thus
should be entered with caution. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66
(1993). Summary judgment is proper where (1) there is no genuine issue of material
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fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law;
and (3) it appears from the evidence that reasonable minds can come to but one
conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion
favors the movant. See, e.g., Civ.R. 56(C).
{¶21} When evaluating a motion for summary judgment, the trial court may not
weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal
Co., 64 Ohio St.2d 116, 121 (1980). Instead, all questions must be resolved in the
nonmoving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359 (1992).
Hence, a trial court must overrule a motion for summary judgment where conflicting
evidence exists and alternative reasonable inferences can be drawn. Pierson v. Norfork
Southern Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, ¶36. In short,
the central issue on summary judgment is, “whether the evidence presents sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252
(1986). An appellate court reviews a trial court’s entry of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
{¶22} In June of 2016, appellees served various requests for admissions on
appellant. Among these requests were (a) whether appellant admitted he owed
$10,500.64 in unpaid contributions for health-insurance premiums; (b) whether,
pursuant to his obligation to contribute, appellant made a payment of $185.05 towards
the amount owed; and (c) whether the calculations were true and accurate. Appellant
failed to timely respond and appellees moved that the requests be deemed admitted.
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On August 24, 2016, without objection, the trial court deemed the requests admitted
facts of record.
{¶23} Appellees filed their motion for summary judgment and attached the
affidavit of Nicole A. Klingeman, Fiscal Officer at the Trumbull County Engineer’s Office.
Ms. Klingeman’s affidavit recited the background facts in support of the alleged breach
of contract/unjust enrichment claims. Specifically, Ms. Klingeman averred appellant was
absent from employment and receiving applicable sick leave and Workers’
Compensation benefits for a period extending from October 20, 2008 through February
14, 2011; that appellant is a union employee and was provided hospitalization/insurance
benefits pursuant to two CBAs, which were applicable during the period of his absence;
and that, pursuant to the CBAs, appellant was required to pay a proportionate share of
the cost of hospitalization insurance benefits during his absence for a work-related
injury.
{¶24} Ms. Klingeman detailed the relevant portions of the CBAs, and itemized
the proportional amount for which appellant was responsible. She averred the financial
records of the Trumbull County Engineer’s Office indicated appellant failed to pay a total
of $10,315.59 of what he owed, pursuant to the agreement. In effect, the affidavit
substantiated, in greater detail, the facts and figures which were deemed admitted by
the trial court.
{¶25} Appellant maintains that, notwithstanding the foregoing uncontested facts,
there remain material issues of fact to be resolved because they do not address a
precept that appellant designates the “law-of-the-shop” doctrine. According to appellant,
this principle requires an employer to apply provisions of a CBA not simply by the letter
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of the contract, but also in the context of the customs of the plant or office in which the
CBA is being applied. In support, appellant cites United Steelworkers of America v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 579-580 (1960). In that case, the United
States Supreme Court observed:
{¶26} “[I]t is not unqualifiedly true that a collective-bargaining agreement
is simply a document by which the union and employees have
imposed upon management limited, express restrictions of its
otherwise absolute right to manage the enterprise, so that an
employee’s claim must fail unless he can point to a specific contract
provision upon which the claim is founded. There are too many
people, too many problems, too many unforeseeable contingencies
to make the words of the contract the exclusive source of rights and
duties. One cannot reduce all the rules governing a community like
an industrial plant to fifteen or even fifty pages. Within the sphere of
collective bargaining, the institutional characteristics and the
governmental nature of the collective-bargaining process demand a
common law of the shop which implements and furnishes the
context of the agreement. We must assume that intelligent
negotiators acknowledged so plain a need unless they stated a
contrary rule in plain words.” (Citation omitted) Id.
{¶27} Appellant maintains the foregoing, in light of an affidavit he attached to his
memorandum in opposition, which indicated the Engineer’s Office had previously failed
to require a separate employee to pay premiums, creates a genuine issue of material
fact. We do not agree.
{¶28} Preliminarily, appellant did not directly raise the “law-of-the-shop” issue in
his memorandum in opposition. The affidavit of Judene Ainsley, attached to appellant’s
memorandum, averred that the Engineer’s Office did not pursue insurance premium
contribution payments from a separate employee injured on the job. This averment,
however, represents an isolated instance and cannot be viewed as a so-called “law of
the shop.” Because the issue was not directly raised below, appellant has waived the
issue on appeal.
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{¶29} Even if appellant preserved the issue, it would still lack merit. The CBA in
the instant case sets forth in a plain, yet detailed, manner, an employee’s duty to
reimburse the employer for express percentages of advanced health-insurance
premiums during workers’-compensation leave. Even assuming the Engineer’s Office
failed to demand payment from a previous employee, this does not affect appellant’s
duty to pay his premiums in the instant case. The failure to make a demand in an
isolated case does not establish an institutional custom. Moreover, the quoted portion of
the foregoing case suggests the “law-of-the-shop” doctrine applies to a union’s and/or
employees’ ability to place certain restraints upon employers, not simply by recourse to
a CBA, but by reference to the context and customs of the occupational institution. This
does not imply an employee can avoid his or her obligations, to which he or she agreed,
under an unambiguous provision of a CBA.
{¶30} Appellees established appellant owed them $10,315.59 in unpaid
hospitalization insurance premiums. Appellant failed to create a genuine issue of
material fact relating to his obligation to pay this amount. We therefore hold appellees
were entitled to judgment on their claim of breach of contract as a matter of law.
{¶31} Appellant’s second assignment of error lacks merit.
{¶32} For the reasons discussed in this opinion, the judgment of the Trumbull
County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
______________________
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DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶33} I respectfully dissent and would reverse the trial court, recognizing the
SERB’s exclusive jurisdiction over the Commissioners’ claims that Gatti has violated the
Collective Bargaining Agreement. Contrary to the majority’s position, the SERB’s
exclusive jurisdiction has been interpreted by the Ohio Supreme Court to encompass
more than concrete violations of R.C. Chapter 4117. Rather, that jurisdiction extends to
“matters within R.C. Chapter 4117 in its entirety, not simply over unfair labor practice
claims.” (Citation omitted.) State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2010-
Ohio-5039, 937 N.E.2d 88, ¶ 20.
{¶34} The Ohio Supreme Court re-affirmed its position in State ex rel. Ohio Civ.
Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, stating
that, “if a party asserts claims that arise from or depend on the collective bargaining
rights created by R.C. Chapter 4117, the remedies provided in that chapter are
exclusive.” (Citation omitted.) Id. at ¶ 63; State ex rel. Fraternal Order of Police v.
Franklin Cty. Court of Common Pleas, 76 Ohio St.3d 287, 290, 667 N.E.2d 929 (1996)
(“[a]ny claim which is independent of R.C. Chapter 4117, such as a breach of contract
or enforcement, still falls solely within the jurisdiction of SERB if the asserted claim
arises from or is dependent on the collective bargaining rights created by R.C. Chapter
4117”).
{¶35} The Commissioners’ claims in the present case arise from Article 12,
Section 12 of the Collective Bargaining Agreement, captioned Hospitalization and
Workers’ Compensation Leave of Absence. Pursuant to R.C. 4117.08(A), benefits such
as hospitalization are mandatory subjects of collective bargaining: “All matters
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pertaining to wages, hours, or terms and other conditions of employment * * * are
subject to collective bargaining between the public employer and the exclusive
representative * * *.”1 See also R.C. 4117.10(A) (“[a]n agreement between a public
employer and an exclusive representative entered into pursuant to this chapter governs
the wages, hours, and terms and conditions of public employment covered by the
agreement”).
{¶36} Since the Commissioners’ claims concern the wages and terms of Gatti’s
employment necessarily subject to the Collective Bargaining Agreement, the SERB has
exclusive jurisdiction of the claims. Couch v. Ohio Civ. Serv. Emps. Assn., 3d Dist.
Allen No. 1-10-45, 2010-Ohio-6258, ¶ 25 (“[t]he trial court correctly recognized that
Appellants’ claims are a seniority dispute governed by the terms and conditions of
employment established in a CBA between the parties, and that it did not have subject
matter jurisdiction pursuant to R.C. 4117”); Carter v. Trotwood-Madison City Bd. of
Edn., 181 Ohio App.3d 764, 2009-Ohio-1769, 910 N.E.2d 1088, ¶ 65 (2d Dist.)
(“[b]ecause the matters alleged in the present case [denial of requests for retirement
incentives] arise from, or depend upon, the collective bargaining agreement, we
conclude that SERB has exclusive jurisdiction over Carter and Toney’s claims”); State
ex rel. Cleveland City School Dist. Bd. of Edn. v. Pokorny, 105 Ohio App.3d 108, 111,
663 N.E.2d 719 (8th Dist.1995) (“[t]he ability of Taylor to receive assault leave benefits
is related directly to the past and present collective bargaining agreements and as such
must be addressed through the remedies provided by R.C. Chapter 4117”).
1. Admittedly, appellant’s counsel did not “direct this court to any provision of R.C. Chapter 4117 under
which the instant breach of contract action and/or unjust enrichment claims might arguably fall.” Supra at
¶ 15. A court’s subject matter jurisdiction, however, is not determined by the arguments put forth by the
litigants. Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19.
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{¶37} For the foregoing reasons, I respectfully dissent and would reverse the
decision of the trial court.
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