holding the general language of the CBA was not intended to by the parties to pre-empt R.C. 3310.081
How later courts described this case
- holding the general language of the CBA was not intended to by the parties to pre-empt R.C. 3310.081
Written by the judges who cited it.
The opinion
Lundberg Stratton, J.,
dissenting. The majority holds that the appellants are entitled to a writ of mandamus to compel the Board to reinstate them as public employees of the state. The majority issues the writ based on the premise that the collective bargaining agreement herein did not evidence an intent to negate rights provided to employees under R.C. 3319.081. Specifically, the majority states: “We do not believe that the collective bargaining agreement herein permitted the Board to lay off public employees by abolishing positions while, in effect, retaining the same positions and hiring nonpublic employees to fill them.” While I do not necessarily disagree with the majority’s conclusion that the Board’s actions may not have been a layoff as that term is used in the collective bargaining agreement, I believe that the issue should have been more properly addressed through arbitration.
The appellants’ jobs were terminated, but the same jobs were subsequently outsourced. The collective bargaining agreement gave the Board the right to lay off employees. A layoff is “[t]he termination of employment at the employer’s instigation; esp., the termination — either temporary or permanent — of a large number of employees- at the same time.” Black’s Law Dictionary (7 Ed.1999) 896. “Layoff’ generally connotes a lack of work or deliberate reduction in work force. Webster’s Third International Dictionary (1986) 1281.
The Board believes that its actions in regard to appellants were “layoffs]” as the term is used in the collective bargaining agreement. While I agree with the majority that a layoff may not contemplate terminating a position and immediately outsourcing the position, I believe the Board’s actions against appellants were sufficiently within the scope of the collective bargaining agreement to be subject to arbitration.
Public policy favors the arbitrability of labor disputes. Davidson v. Bucklew (1992), 90 Ohio App.3d 328, 331 , 629 N.E.2d 456, 457-458 . It is the court that *200 determines whether a specific grievance is arbitrable. AT&T Technologies, Inc. v. Communications Workers of Am. (1986), 475 U.S. 643, 649 , 106 S.Ct. 1415, 1418 , 89 L.Ed.2d 648, 656 . However, in deciding whether a contract creates a duty to arbitrate a certain grievance, “a court is not to rule on the potential merits of the underlying claims.” Id. at 649 , 106 S.Ct. at 1419 , 89 L.Ed.2d at 656 .
•In deciding whether the collective bargaining agreement creates a duty to arbitrate a certain grievance, the court must determine whether the claim is governed by the collective bargaining agreement United Steelworkers of Am. v. Am. Mfg. Co. (1960), 363 U.S. 564, 568 , 80 S.Ct. 1343, 1346 , 4 L.Ed.2d 1403, 1407 . A court should not deny an arbitration clause in a contract unless it may be said with positive assurance that the clause is not susceptible of an interpretation that covers the asserted dispute, with any doubts resolved in favor of arbitration. Gibbons-Grable Co. v. Gilbane Bldg. Co. (1986), 34 Ohio App.3d 170, 173 , 517 N.E.2d 559, 562 . An arbitration clause in a contract gives rise to a presumption that the grievance is arbitrable unless expressly excluded or there exists “the most forceful evidence of a purpose to exclude the claim from arbitration.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 585 , 80 S.Ct. 1347, 1354 , 4 L.Ed.2d 1409, 1419 .
Under this standard, I believe that arbitration should have resolved the issue of the scope of the Board’s layoff authority provided in the collective bargaining agreement. Even the appellants concede that a “layoff’ is allowed by the collective bargaining agreement. The parties differ as to the scope or intent of the layoff provision as it relates to the Board’s actions. Despite this disagreement, clearly the Board’s initial action against appellants was to terminate their jobs. This action fits the definition of the term “layoff’ as I discussed above. I believe that makes the appellants’ grievance arbitable. Whether “layoff’ was intended to include the immediate outsourcing of those job positions is an issue an arbitrator should have decided, not this court.
In the context of employment contracts, where the dispute between labor and management arises from a collective bargaining agreement, the grievance and arbitration procedures provided therein constitute an adequate remedy at law to the exclusion of extraordinary relief in mandamus. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449 , 663 N.E.2d 639, 641 , citing State ex rel. Johnson v. Cleveland Hts./Univ. Hts. School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 189, 192-193 , 652 N.E.2d 750 , 752; State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 34 , 641 N.E.2d 188, 196 .
In addition to my dismay at the majority’s failure to determine that this issue should have been resolved through arbitration, I am equally distressed at the depth of explicit detail that will now be required of drafters of collective bargaining agreements because of the majority’s syllabus. I believe that the *201 majority’s mandate that collective bargaining must be extremely specific in order to bring an issue within its coverage will ultimately do the collective bargaining process a disservice. We should be'encouraging the resolution of employment issues through the arbitration process. With this new, narrow standard, we have opened the door to litigation, and every matter not specifically itemized in a collective bargaining agreement will become an issue for the courts. I believe that the majority’s holding will be as detrimental to the unions as to the employees when they each find themselves on the side appealing an issue that might be implied but was not specified sufficiently in the collective bargaining agreement. I do not believe that the law requires that we interpret collective bargaining agreements as narrowly as the majority dictates.
Therefore, because I believe that the majority’s syllabus will make collective bargaining agreements overly complex and technical, and because I believe that the majority’s issuance of the writ of mandamus was improper because appellants had a remedy in the ordinary course of the law by way of arbitration, I respectfully dissent.
Moyer, C.J., concurs in the foregoing dissenting opinion.