holding that state trial court, in deciding plaintiff’s summary judgment motion in suit to compel arbitration, properly considered a transcript from her separate federal Title VII action against the same defendants because the “transcribed testimony meets the criterion of reliability as it is sworn testimony in a courtroom hearing at which the [defendants] were represented by counsel”
How later courts described this case
- holding that state trial court, in deciding plaintiff’s summary judgment motion in suit to compel arbitration, properly considered a transcript from her separate federal Title VII action against the same defendants because the “transcribed testimony meets the criterion of reliability as it is sworn testimony in a courtroom hearing at which the [defendants] were represented by counsel”
Written by the judges who cited it.
The opinion
Patton, J.,
dissenting. I respectfully dissent from the result reached by the majority in this case. In my view, R.C. 2711.03 requires the trial court to make a factual determination as to whether plaintiff was let go because of a reduction in force, pursuant to Article 11 of the collective bargaining agreement, or because of a statutory nonrenewal, pursuant to R.C. 3319.11 and Article 9 of the collective bargaining agreement. The trial court did not make that factual determination, but instead directed that this matter be submitted to arbitration to have the arbitrators determine whether she was let go due to a reduction in force or due •to a statutory nonrenewal. Because I believe that the court’s order was contrary to law, I respectfully dissent.
The parties’ collective bargaining agreement in this case established arbitration as the third step of their grievance procedure. This grievance procedure was available in the event of a reduction in force under Article 11, but a statutory nonrenewal under Article 9 and R.C. 3319.11 was not subject to the grievance procedure. It follows that a reduction in force would provide plaintiff with an arbitrable grievance, but a statutory nonrenewal would not. The basic issue presented in this case is whether plaintiff has an arbitrable grievance.
It is settled law that, in the absence of an agreement to the contrary, the arbitrability of a dispute is to be determined by the court and not by the arbitrator. See
Vulcan-Cincinnati, Inc.
v.
United Steelworkers of America
(1960), 113 Ohio App. 360 , 17 O.O. 2d 386, 173 N.E. 2d 709 . Accord
AT&T Technologies, Inc.
v.
Communications Workers of America
(1986), 475 U.S. 643 . R.C. 2711.03 provides that if a dispute arises between parties to a written arbitration agreement as to whether one party has failed to perform, the court must proceed summarily to the trial thereof. If the court (or jury) finds that there has been no
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default under the arbitration agreement, then the proceeding shall be dismissed. But if the court (or jury) finds that there has been a default under the arbitration agreement, then the court must make an order summarily directing the parties to proceed with the arbitration in accordance with their agreements.
In the instant case, the trial court did not make a factual finding that plaintiff was let go as a result of a reduction in force such that she was entitled to proceed to arbitration under the grievance procedure. The trial court’s journal entry concedes that there was a question of fact as to whether plaintiff was let go due to a reduction in force or due to a statutory nonrenewal. Rather than resolve this question of fact, the court summarily directed that the arbitrability of plaintiff’s grievance be decided by the arbitrators. In my opinion, the trial court failed to determine whether plaintiffs nonrenewal was subject to the grievance procedure so that she could compel arbitration pursuant to R.C. 2711.03.
Accordingly, I would sustain the appellants’ third assignment of error and would remand this matter to the trial court to make a determination as to whether plaintiff’s removal was subject to the grievance procedure and arbitration.