Ohio Council 8, AFSCME, AFL-CIO v. Lakewood

[Cite as Ohio Council 8, AFSCME, AFL-CIO v. Lakewood, 2025-Ohio-4369.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

OHIO COUNCIL 8, AFSCME,

AFL-CIO, ET AL., :

Plaintiffs-Appellees, :

No. 112456

v. :

CITY OF LAKEWOOD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: September 18, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-22-962000

Appearances:

Ohio Council 8, AFSCME, AFL-CIO, Kimm A. Massengill-

Bernardin, General Counsel, and Linda K. Fiely, Associate

General Counsel, for appellees.

Zashin & Rich Co., L.P.A., David P. Frantz, Stephen S.

Zashin, and Sarah J. Moore, for appellant.

MARY J. BOYLE, J.:

This case is before this court on remand from the Ohio Supreme Court

in Ohio Council 8, AFSCME, AFL-CIO v. Lakewood, 2025-Ohio-2052 (“Lakewood

II”), for further review of our decision in Ohio Council 8, AFSCME, AFL-CIO v.

Lakewood, 2023-Ohio-4212 (8th Dist.) (“Lakewood I”). The Ohio Supreme Court

has remanded the matter to this court for consideration of the second assignment of

error raised by defendant-appellant, the City of Lakewood (the “City”). For the

reasons set forth below, we affirm.

I. Lakewood I and Lakewood II

In Lakewood I, the City appealed the trial court’s judgment denying

its motion to dismiss and granting the motion to compel arbitration filed by

plaintiffs-appellees, Ohio Council 8, American Federation of State, County, and

Municipal Employees, AFLCIO and Local 1043, American Federation of State,

County, and Municipal Employees, AFLCIO (collectively referred to as the “Union”),

seeking to arbitrate a grievance regarding Michael Satink (“Satink”), a City employee

who was also a Union member.

On appeal, the City raised two assignments of error for review. In its

first assignment of error, the City argued that the trial court lacked subject-matter

jurisdiction under Civ.R. 12(B)(1). The majority opinion of this court agreed, finding

that while the Union’s application and motion to compel arbitration did not

explicitly allege violations of R.C. Ch. 4117, substantively its claims alleged that the

City had interfered with the employee’s collective-bargaining rights by refusing to

arbitrate the grievance under the collective bargaining agreement (“CBA”).

Lakewood I at ¶ 15, 20. Therefore, we found that the Union’s claims were entirely

dependent on and fell directly within the scope of the collective-bargaining rights

created by R.C. Ch. 4117 and, as a result, were under the exclusive jurisdiction of the

State Employment Relations Board (“SERB”). Id. at ¶ 15, 20. Finding that the

Union’s attempt to recast its common pleas court case as an arbitration action was

unavailing, we reversed the trial court’s judgment on the first assignment of error

and remanded the case to the trial court with instructions to grant the City’s motion

to dismiss for lack of subject-matter jurisdiction. Id. at ¶ 17, 18, 21.

Because of our disposition of the first assignment of error, we did not

address the City’s second assignment of error — the trial court erred by granting the

Union’s application and motion to compel arbitration because under the plain

language of the Last Chance Agreement (“LCA”), the Union and the employee

waived recourse to the grievance or arbitration provisions of the collective

bargaining agreement (“CBA”) — finding that it was moot. Id. at ¶ 19.

In Lakewood II, the Ohio Supreme Court reversed our decision,

holding that the trial court properly exercised its jurisdiction and SERB does not

have exclusive jurisdiction over the underlying matter because the Union did not

allege in its application and motion to compel arbitration that the City engaged in

an unfair labor practice or conduct that constituted an unfair labor practice. Id. at

¶ 31. Additionally, the Ohio Supreme Court noted that R.C. 4117.09(B)(1) expressly

provides that a party to a collective-bargaining agreement ‘“may bring suits for

violation of agreements . . . in the court of common pleas[,]”’ which is what happened

in the case below. Id., quoting R.C. 4117.09(B)(1). Therefore, the Lakewood II Court

reversed our decision and remanded the case for us to consider the City’s

“assignment of error that was not reached below.” Id. at ¶ 31.

II. The Union’s Application and Motion to Compel Arbitration

Prior to addressing the City’s second assignment of error, we set forth

the underlying facts and procedural history of this case as previously stated in

Lakewood I:

Both the City . . . and the Union . . . were parties to a [CBA] from

January 1, 2020, through December 31, 2022.1 The Union is the

exclusive representative of a group of employees in the City’s

Department of Public Works, which included [Satink]. The CBA

contains a grievance and arbitration procedure, which defines

“grievance” as a “dispute or difference between the City and the Union,

or between the City and an employee, concerning the interpretation

and/or application of and/or compliance with any provision of this

Agreement, including disciplinary actions * * *.” (CBA, Article 10,

Section 10.02). The CBA further provides that the grievance procedure

“shall be the exclusive method of reviewing and settling disputes

between the City and the Union and/or between the City and

employee(s)” and “[a]ll decisions of arbitrators and all pre-arbitration

grievance settlements reached by the Union and the City shall be final,

conclusive and binding on the City, the Union and employee(s).” (CBA,

Article 10, Section 10.04).

On November 4, 2020, the City terminated Satink for what it deemed

to be insubordinate, disruptive, and intimidating actions in the

workplace. On November 5, 2020, the Union submitted a grievance

challenging Satink’s termination. The grievance process, however, did

not resolve the dispute, and the Union moved the grievance to

arbitration, which was scheduled for a hearing on March 11, 2021. Prior

to this hearing, and after much negotiation, the City and the Union

entered into a [LCA] on March 8, 2021, where the parties agreed to

dismiss the grievance arbitration hearing and agreed that Satink would

return to work under certain terms and conditions, including that “[i]f,

during the terms of this Agreement, Satink violates any City work rule

or policy pertaining to professional, respectful, and workplace

appropriate behavior when performing assigned work responsibilities,

he shall be subject to immediate termination without recourse to the

grievance or arbitration provisions of the [CBA].” (LCA, [P]aragraph

7.)

On October 20, 2021, Satink engaged in conduct that resulted in

disciplinary charges. The City terminated Satink on November 4, 2021,

for violating the terms of the LCA, following the conclusion of the

predisciplinary hearing on the matter held earlier that day. On

November 10, 2021, the Union submitted another grievance, this time

regarding Satink’s second termination. On November 17, 2021, the City

rejected any obligation to process the grievance, advising that the

grievance was not arbitrable under the LCA. On January 19, 2022, the

Union notified the City of its intent to arbitrate Satink’s 2021

termination grievance. The City replied to the Union the next day again

rejecting the Union’s intent to arbitrate and noting that the Union and

Satink relinquished their rights to arbitrate in the LCA in exchange for

Satink’s return to work.

Then on April 13, 2022, the Union filed an application and motion to

compel arbitration under R.C. 2711.03, seeking to obtain an order

compelling the parties to arbitration, which was the remedy the parties

had bargained for in their collective bargaining agreement. On July 21,

2022, the City filed its answer, in which it asserted that the Union’s

“claims are barred by this Court’s lack of jurisdiction over union claims

arising from or dependent upon bargaining rights created by and

subject solely to remedies available under Ohio Revised Code Chapter

4117.” Four days later, the City filed a motion to dismiss for lack of

subject-matter jurisdiction under Civ.R. 12(B)(1) and a brief in

opposition to the Union’s application and motion.

On August 12, 2022, the Union filed a brief in opposition to the City’s

motion to dismiss and a reply brief in support of its application and

motion. The City filed its reply brief on August 19, 2022. On August

31, 2022, the Union filed a motion to amend its application and motion

to compel arbitration, which the trial court granted. The Union sought

to add the LCA as an exhibit because the document was inadvertently

not attached to the initial motion. On January 30, 2023, the trial court

issued a judgment denying the City’s motion to dismiss and granting

the Union’s motion to compel arbitration.

1 The factual history was obtained from the pleadings filed in the trial court .

Id. at ¶ 2-6.

With regard to the Union’s motion and application to compel

arbitration, the Union argued that the parties agreed to a grievance and arbitration

procedure in the CBA, which covered just cause and discipline, thus rendering the

instant grievance arbitrable. The Union further argued that the LCA did not waive

arbitrability on whether the City had just cause to discipline Satink in the first place,

nor did it waive the arbitrator’s authority to make that just cause determination. As

a result, the Union sought an order compelling the City to proceed with arbitration

on the grievance. In opposition, the City argued that under the terms of the LCA,

specifically Paragraph 7, the Union expressly waived any right to arbitrate Satink’s

termination.

A. Standard of Review

When addressing a trial court’s ruling on a motion to stay and compel

arbitration, the appropriate standard of review depends on “the type of questions

raised challenging the applicability of the arbitration provision.” McCaskey v.

Sanford-Brown College, 2012-Ohio-1543, ¶ 7 (8th Dist.). Generally, an abuse of

discretion standard applies in limited circumstances, such as a determination that a

party has waived its right to arbitrate a given dispute. Id., citing Milling Away,

L.L.C. v. UGP Properties, L.L.C., 2011-Ohio-1103, ¶ 8 (8th Dist.). However, when

the issue is whether a party has agreed to submit to arbitration or when the

unconscionability of an arbitration clause is raised, we apply a de novo standard of

review. McCaskey at ¶ 7-8, citing Shumaker v. Saks, Inc., 2005-Ohio-4391 (8th

Dist.), citing Vanyo v. Clear Channel Worldwide, 2004-Ohio-1793 (8th Dist.);

Taylor Bldg. Corp. of Am. v. Benfield, 2008-Ohio-938. “Under a de novo standard

of review, we give no deference to a trial court’s decision.” Brownlee v. Cleveland

Clinic Found., 2012-Ohio-2212, ¶ 9 (8th Dist.), citing Akron v. Frazier, 142 Ohio

App.3d 718, 721 (9th Dist. 2001). In this case, we apply a de novo standard of review

because the issue is whether a party has agreed to submit to arbitration.

B. The LCA and the CBA

Here, the relevant portions of the LCA provide:

7. If, during the term of this Agreement, Satink violates any City work

rule or policy pertaining to professional, respectful, and workplace

appropriate behavior when performing assigned work

responsibilities, he shall be subject to immediate termination without

recourse to the grievance or arbitration provisions of the Collective

Bargaining Agreement.

...

10. This Agreement is entered into on a non-precedent setting basis

and does not alter the Parties respective contractual rights or

obligations except as expressly set forth herein.

(Emphasis added.) (LCA, Paragraph 7, 10.)

The CBA defines a “grievance” as a dispute or difference concerning

“the interpretation and/or application of and/or compliance with any provision of

[the CBA], including disciplinary actions[.]” (CBA, Article 10, Section 10.02.)

Section 10.02 further provides that when a grievance arises, the City and the Union

shall follow a four-step grievance procedure, which culminates with arbitration in

Step IV. In addition, “[a]ll decisions of arbitrators and all pre-arbitration grievance

settlements reached by the Union and the City shall be final, conclusive and binding

on the City, the Union and employee(s).” (CBA, Article 10, Section 10.04.) Notably,

under CBA, Article 5, Section 5.01, “the City has the right and responsibility to . . .

suspend, discipline or discharge [an employee] for just cause[.]”

C. Presumption of Arbitrability

Our analysis is guided by the basic principles set forth by the United

States Supreme Court in in AT&T Technologies, Inc. v Communications Workers of

Am., 475 U.S. 643 (1986), where the Court stated that when a “contract contains an

arbitration clause, there is a presumption of arbitrability in the sense that ‘[an] order

to arbitrate the particular grievance should not be denied unless it may be said with

positive assurance that the arbitration clause is not susceptible of an interpretation

that covers the asserted dispute. Doubts should be resolved in favor of coverage.’”

Id. at 650, quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 582-583 (1960). The Court went on to state that this presumption can

be overcome only by an agreement between the parties that contains an “‘express

provision excluding a particular grievance from arbitration,’” or, in the absence of

such a provision, “‘forceful evidence of purpose to exclude [the grievance] from

arbitration.’” Id., quoting Warrior & Gulf at 584-585.

In the matter before us, the City argues that the trial court erred when

it granted the Union’s motion to compel arbitration because the court ignored the

controlling language of the LCA. The City contends that “[u]nder the clear and

unambiguous language of the LCA, it is not required to arbitrate its decision to

terminate Satink because the Union and Satink waived “recourse to the grievance or

arbitration provisions of the [CBA].” (LCA, Paragraph 7.) The Union counters that

“[u]nless the agreement provides that the Employer has full discretion to determine

whether an infraction occurs, the charges of misconduct can be challenged through

the grievance process.” (The Union’s Appellate Brief, p. 14.) The Union further

counters that the LCA did not waive arbitrability on whether the City had just cause

to discipline Satink in the first place, nor did it waive the arbitrator’s authority to

make that just cause determination. According to the Union, the LCA only waived

the type of discipline Satink would be subject to if he was determined to have

violated the work behavior policy.

When reading Paragraph 7 of the LCA in conjunction with the CBA,

we cannot say “‘with positive assurance that the arbitration clause is not susceptible

of an interpretation that covers the asserted dispute. Doubts should be resolved in

favor of coverage.’” AT&T at 650, quoting Warrior & Gulf at 582-583. The language

of the LCA is unclear as to who determines whether Satink violated the work

behavior policy. What is clear is that the parties agreed to a grievance and

arbitration procedure in their CBA that covers just cause and discipline, thereby

rendering the instant grievance arbitrable. See CBA, Articles 5 and 10.

Because the LCA in the matter before us is susceptible to more than

one reasonable interpretation and the CBA contains a broad grievance and

arbitration procedure, we must resolve the ambiguity in favor of arbitrability.

AT&T, 475 U.S. at 650; see also United Steelworkers of Am., AFL-CIO-CLC v.

Lukens Steel Co., Div. of Lukens, Inc., 969 F.2d 1468, 1471 (3d Cir. 1992), citing

Warrior & Gulf, 363 U.S. at 582-583, and Morristown Daily Record, Inc. v Graphic

Communications Union, Local 8N, 832 F.2d 31, 34-35 (3d Cir. 1987).

D. Overcoming the Presumption

Having determined that the presumption in favor of arbitrability

applies, we must now consider whether that presumption has been overcome. We

find Lukens instructive on this issue. In Lukens, the Third Circuit Court Appeals

reviewed whether the parties’ LCA barred arbitration of the employees’ grievances.

Id. at 1470. The Lukens Court concluded that it did not bar arbitration. Id. at 1478.

The relevant portion of the LCA provided that if the employee were suspended for

violating a condition of the [LCA],

he will be afforded an opportunity to plead his case before the

Disciplinary Committee. The disposition of the Disciplinary

Committee shall be final. Neither [the employee] nor the Union

shall have recourse through the arbitration/grievance procedure

to protest the suspension or disposition invoked by the

Disciplinary Committee.

Id. at 1473.

The Lukens Court first held that because the parties’ CBA contained

a broad grievance and arbitration clause, there was a presumption of arbitrability.

Id. at 1475. This presumption could only be overcome if there was an express

exclusion from arbitration in the LCA or if there was “strong and forceful” evidence

of an intention to exclude the matter from arbitration. Id. The Court declined to

find that the LCA expressly excluded the dispute from arbitration because the LCA

failed to specify who was to determine whether a violation has occurred. Id. at 1477.

The Court further found that there was no “strong and forceful” evidence of an

intention to exclude the grievances from arbitration because the employer could not

demonstrate a meeting of the minds by the employees and the employer on this

issue. Id. at 1478.

In reaching its decision, the Lukens Court noted that LCAs “between

parties to a collective bargaining agreement containing a broad arbitration clause

are arbitrable when the underlying disputes are arbitrable, except when the parties

expressly exclude the settlement agreements from arbitration.” Id., 969 F.2d at

1475, citing Niro v Fearn Internatl., Inc., 827 F.2d 173, 175 (7th Cir. 1987). However,

when there is no express exclusion, “‘only the most forceful evidence of purpose to

exclude [a grievance] from arbitration can prevail.’” AT&T, 475 U.S.at 650, quoting

Warrior & Gulf, 363 U.S. at 584-585. “The party contesting the presumption of

arbitrability bears the burden of producing ‘strong and forceful’ evidence of an

intention to exclude the matter from arbitration.” Lukens at 1475, citing

Morristown Daily Record, 832 F.2d at 35. Thus, in order to overcome the

presumption of arbitrability, the City must demonstrate that (1) the LCA expressly

excludes the grievance from arbitration, or (2) in the absence of such a provision,

the existence of “strong and forceful” evidence of an intention to exclude it from

arbitration. We find that the City has failed to satisfy either of these tests.

1. Express Exclusion

The City contends that it is not required to arbitrate its decision to

terminate Satink because under the LCA, the Union and Satink waived “recourse to

the grievance or arbitration provisions of the [CBA].” (LCA, Paragraph 7.) As the

Union observes, however, the LCA does not specifically state who is to decide the

threshold question of whether Satink in fact violated the work behavior policy. The

Union contends that under the LCA, the parties still have to arbitrate whether Satink

violated the City’s rules and if the arbitrator finds that Satink did violate the City’s

rules, then the arbitrator does not have the authority to alter the City-imposed

discipline of termination by virtue of the LCA. However, if the arbitrator finds that

Satink did not violate the City’s rules, then he would not be disciplined.

To accept the City’s interpretation, we would have to assume that no

“recourse to the grievance or arbitration provisions of the [CBA]” encompassed the

threshold issue of ascertaining whether Satink violated the City’s work behavior

policy in the first instance. As the Lukens Court stated, “Agreements that require us

to assume that an issue has been excluded from arbitration cannot be said to

expressly exclude that issue.” Id. at 1476. And “‘in uncertain situations, the

presumption should favor arbitrability[.]”’ Id. at 1477, quoting Niro at 175. “[W]hen

a settlement agreement bars arbitration of the penalty for violating it, yet fails to

specify who is to determine whether a violation has occurred, we decline to infer that

the parties intended to exclude this threshold question from arbitration.” Id. Thus,

based on the foregoing, we decline to find that LCA expressly excludes the grievance

from arbitration.

2. “Strong and Forceful” Evidence of an Intention to Exclude From

Arbitration

The City contends that the LCA expressly excludes arbitration and the

Union’s interpretation of the word “if” at the beginning of Paragraph 7 of the LCA

defies logic and is a vain attempt to unilaterally rewrite the LCA. The Union counters

that the LCA only waives the appropriateness of the punishment if guilt or just cause

for the discipline is found by the arbitrator. In the absence of the parties’ LCA, the

CBA provides that the arbitrator would first determine whether Satink violated the

City’s rules and then decide whether the penalty imposed was appropriate. In that

situation, the arbitrator could find that Satink violated the City’s policy, yet also

decide that the penalty of termination was too severe under the circumstances. By

vesting the City with complete authority to determine the appropriate penalty, the

Union argues, the LCA forecloses the possibility that the arbitrator might order a

lesser penalty for Satink’s violation.

The divergent interpretations of the LCA is an indication that the

parties’ minds never met on the issue. Lukens, 969 F.2d at 1478, citing E.M.

Diagnostic Systems, Inc. v. Local 169, Internatl. Brotherhood of Teamsters,

Chauffeurs, Warehousemen & Helpers of America, 812 F.2d 91, 97 (3d Cir. 1987)

(where the Third Circuit Court of Appeals found that evidence that one party viewed

the CBA a certain way does not indicate a meeting of the minds). Having presented

no “strong and forceful” evidence of an intention to exclude the grievance from

arbitration, the City has failed to meet its burden of overcoming the presumption of

arbitrability. Therefore, we find that the trial court properly granted the Union’s

application and motion to compel arbitration.

The second assignment of error is overruled.

Accordingly, judgment is affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_______________________

MARY J. BOYLE, JUDGE

LISA B. FORBES, P.J., and

EMANUELLA D. GROVES, J., CONCUR