[Cite as Toledo Police Command Officers’ Assn. v. Toledo, 2014-Ohio-4119.]




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

Toledo Police Command Officers'                           Court of Appeals No. L-13-1022
Association
                                                          Trial Court No. CI0201003927
        Appellee

v.

City of Toledo                                            DECISION AND JUDGMENT

        Appellant                                         Decided: September 19, 2014

                                                *****

        Gregory T. Lodge, for appellee.

        Adam Loukz, Director of Law, Michael J. Niedzielski, Chief of Labor,
        and Michael A. Kyser, for appellant.

                                                *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal of judgments of the Lucas County Court of Common Pleas,

journalized on January 17 and 18, 2013, in a labor dispute. The city of Toledo is

appellant. Appellee is the Toledo Police Command Officers’ Association (“TPCOA”).
TPCOA is a labor organization representing approximately 135 police officers employed

by the city in the ranks of Captain, Lieutenant, Sergeant, and Police Secretary.

       {¶ 2} Appellant and appellee are parties to a collective bargaining agreement (“the

agreement” or “CBA”) that contains an arbitration clause. In this action, TPCOA has

sought to compel the city to submit to binding arbitration of grievances brought under the

CBA. The trial court granted TPCOA the relief sought, ordering the city to submit to

binding arbitration of three grievances asserted by TPCOA against the city under the

CBA. The city appeals and argues (1) that the trial court lacked jurisdiction to compel

arbitration, because the dispute falls within the exclusive jurisdiction of the State

Employment Relations Board (“SERB”), and (2) that the arbitration provisions of the

CBA do not apply.

       {¶ 3} It is undisputed that the collective bargaining agreement between the city

and TPCOA was effective from January 1, 2009, to January 1, 2012, and concerned

wages, hours, terms and other conditions of employment of TPCOA employees with the

city. The CBA includes agreements for the city to pick-up and pay each TPCOA

employee’s full pension contribution amount of ten percent (Section 2109.65 of CBA)

and to provide hospitalization-prescriptive drug-dental insurance at monthly premium co-

pays as stated in the CBA (Section 2109.64). The CBA also includes provisions as to

Wage Rates (Section 2109.75).

       {¶ 4} A Letter of Understanding between the city and TPCOA, attached to the

CBA provides, among other things, that the city and TPCOA on August 13, 2009, agreed



2.
to a “me too” provision under which the city agreed to “provide the TPCOA with any

greater economic benefits newly provided to TFF [Toledo Firefighters] Local 92 and/or

TPPA [Toledo Police Patrolmen’s Association], either through settlement or impasse

proceedings, including fact finding and/or conciliation.”

                          Toledo Municipal Ordinance 103-10

       {¶ 5} On March 30, 2010, the Toledo City Council enacted Ordinance 103-10. In

the ordinance, the city declared the existence of “exigent circumstances” based upon a

budgetary shortfall. The ordinance eliminated the ten percent pension pick-up set forth in

the CBA and increased monthly health care contributions by TPCOA employees above

those set in the CBA. The parties agree that the conduct represents a unilateral

modification of the collective bargaining agreement by the city. The ordinance provided

that the changes would start on April 1, 2010.

       {¶ 6} After enactment of the Ordinance 103-10, TPCOA filed a grievance

concerning the city’s announced intent (1) to stop paying the ten percent pension pick-up

required in the CBA and (2) to begin deducting additional amounts for health insurance

on a monthly basis contrary to established premium copays under the CBA. TPCOA

contends in the grievance that the city’s actions in unilaterally modifying the terms of the

CBA violate pension pick-up provisions of Section 2109.65(C) of the CBA and

established premium co-pays under Section 2109.64(A)(4), as well as, the Wage Rates

section of the agreement, Section 2109.75.




3.
                           “Me Too” Letter of Understanding

       {¶ 7} It is undisputed that on March 23, 2010, the city entered into an agreement

with Toledo Firefighters Local 92 under which city agreed to maintain a pension pick-up

at seven percent through the end of 2010 for Local 92 members and that the city refused

to provide the same seven percent pension pick-up to TPCOA members.

       {¶ 8} TPCOA filed a grievance on April 6, 2010, asserting that the city’s actions

violated the “me too” provisions of the Letter of Understanding by failing to offer

TPCOA members the same economic package it had offered Local 92 members.

       {¶ 9} Each individual member of TPCOA filed a third grievance on April 22,

2010, after TPCOA members received paychecks. Each TPCOA member contended that

their paychecks were lesser in amount than required under Section 2109.75 of the CBA.

Section 2109.75 of the CBA deals with wage rates.

                             Unfair Labor Practice Charges

       {¶ 10} TPCOA filed unfair labor practice charges with SERB against the city on

or about April 29 and May 25, 2010. Copies of the charges were submitted by the city,

by affidavit, in support of its motion for summary judgment that it filed in the trial court.

The April 29, 2010 unfair labor practice charge alleged that the city violated the Ohio

Public Employees’ Collective Bargaining Act, R.C. Chapter 4117 and, specifically, R.C.

4117.11(A)(1) and (5) by “unilaterally eliminating its payment of the ten percent pension

pick-up for bargaining unit employees, and also unilaterally increasing bargaining unit

employee contributions for health care benefits.”



4.
       {¶ 11} In the May 25, 2010 unfair labor practice charge TPCOA alleged that the

city committed unfair labor practices under R.C. 4117.11(A)(1) and (A)(5) by making the

unilateral changes to the CBA set forth in the April 29, 2010 charge and maintaining

them despite the city’s rescinding unilateral changes for other bargaining units and also

for its exempt (non-represented) employees. TPCOA asserted in the unfair labor practice

charge “that the only reason that there has been no similar ‘restoration’ for TPCOA-

represented employees is because the TPCOA continues to pursue the above-referenced

unfair labor practice charge [the April 29, 2010 charge] against the City, and that the

charge continues to be under investigation.” TPCOA asserted that the city’s conduct was

retaliatory and discriminatory and violated the rights of TPCOA and its members under

R.C. Chapter 4117.

                                        Complaint

       {¶ 12} TPCOA filed this action in the Lucas County Court of Common Pleas on

May 12, 2010, in a four-count complaint. Counts One, Two, and Three of the complaint

each relate to grievances asserted against the city under the CBA:

              1. Count One of the complaint relates to a grievance filed by

       TPCOA on March 31, 2010, grieving the city’s refusal to perform parts of

       the CBA concerning pension pick-up (Section 2109.65), health insurance

       contribution rates (Section 2109.64) and payment of specified wage rates

       (Section 2109.75).




5.
              2. Count Two, relates to a grievance filed by TPCOA on April 16,

       2010, grieving breach of the “me too” provisions of the Letter of

       Understanding attached to the CBA. Count Two of the complaint asserts

       that the “me too” agreement was breached in that “the City had agreed upon

       more favorable terms with another public safety union on an issue

       involving economic benefits and * * * was refusing to offer those same

       terms to the TPCOA.”

              3. Count Three, relates to a grievance filed by TPCOA on April 26,

       2010, grieving “the City’s refusal to perform part of the * * * [CBA] * * *

       and specifically the wage section under § 2109.75.”

       {¶ 13} In each of the first three counts of the complaint, TPCOA alleged that the

grievances were subject to arbitration under the arbitration clause of the CBA but that the

city stated that it was refusing to either respond to or process the grievances, and would

refuse to arbitrate the grievances.

       {¶ 14} This appeal does not concern Count Four of the complaint. The count

alleged a violation of R.C. 4113.15. The trial court granted the city’s motion to dismiss

that count in the trial court’s judgment of January 18, 2012. TPCOA has not appealed

that dismissal.

       {¶ 15} The city moved to dismiss appellee’s complaint in July 2010. As to Counts

One, Two, and Three of the complaint, the city argued that the trial court lacked subject

matter jurisdiction to consider the grievances at issue in those counts of the complaint.



6.
The city argued that the issues raised in the first three counts of the complaint came

within the exclusive jurisdiction of SERB. In it January 18, 2012 judgment, the trial

court denied the city’s motion to dismiss the first three counts of the complaint. The

court granted the city’s motion to dismiss Count Four on other grounds.

       {¶ 16} On July 13, 2010, TPCOA filed a motion to compel arbitration of the

grievance underlying Count Two of the complaint. On March 12, 2012, TPCOA filed a

motion for summary judgment on Counts One and Three of the complaint. In the motion,

TPCOA sought an order compelling arbitration of the grievances at issue in counts One

and Three of the complaint. On April 13, 2012, the city filed its opposition brief to the

motion for summary judgment and its own cross-motion for summary judgment.

       {¶ 17} The motions proceeded to an oral hearing on January 4, 2013. On January

17, 2013, the trial court granted both TPCOA’s motion to compel arbitration as to Count

Two and the motion for summary judgment as to Counts One and Three. The court

denied the city’s cross-motion for summary judgment. The court ordered the city “to

proceed to arbitration on each of the Grievances underlying Counts One, Two, and Three

of * * * [the] * * * Complaint in accordance with Section 2109.14 of the CBA.”

       {¶ 18} The city asserts five assignments of error on appeal:

                                  Assignments of Error

              1. The trial court erred as a matter of law in denying appellant city

       of Toledo’s motion to dismiss Counts 1, 2, and 3 of appellee’s complaint




7.
      for lack of subject matter jurisdiction, in finding that the court did have

      jurisdiction to compel arbitration of a matter falling within the exclusive

      jurisdiction of the State Employment Relations Board.

             2. The trial court erred as a matter of law in denying the city’s

      motion to dismiss Counts 1, 2, and 3 of appellee’s complaint, in rejecting

      the city’s argument that the State Employment Relations Board has

      exclusive jurisdiction over the issues presented by appellee.

             3. The trial court erred as a matter of law in granting appellee’s

      motion to compel arbitration.

             4. The trial court erred as a matter of law in granting appellee’s

      motion for summary judgment in ordering the city to proceed to arbitration

      pursuant to the Ohio Arbitration Act, Ohio Revised Code Chapter 2711,

      and Section 2109.14 of the collective bargaining agreement between the

      parties.

             5. The trial court erred as a matter of law in denying the city’s

      motion for summary judgment in finding that the grievances underlying the

      appellee’s complaint are subject to arbitration pursuant to Section 2109.14

      of the collective bargaining agreement between the parties.

            Agreement as to Binding Nature of SERB Proceedings
                    On Issue of Exigent Circumstances

      {¶ 19} On appeal, TPCOA now agrees that the outcome of the R.C. 4117.11(A)(1)

and (5) unfair labor practice proceedings will determine whether any viable claim exists


8.
for claimed breach of the CBA as asserted under Counts One and Three of the complaint.

The city’s exigent circumstances defense is the central issue to the R.C. 4117.11(A)(1)

and (5) unfair labor practice charge.

       {¶ 20} While TPCOA argues that the right to binding arbitration under the CBA

continues to exist, it acknowledges on appeal that should SERB (and the courts upon

review of SERB’s decision) ultimately rule that the city was authorized to unilaterally

modify the CBA due to exigent circumstances, then the arbitrator would be obligated to

accept and follow that determination in arbitration proceedings under the CBA.

       {¶ 21} Should SERB proceedings ultimately determine that the city was not

authorized by exigent circumstance to unilaterally modify the CBA, TPCOA contends

that the claims under Counts 1 and 3 of TPCOA’s complaint must proceed to binding

arbitration under the CBA with the arbitrator determining appropriate remedies for

violations of the CBA.

                         Status of Unfair Labor Practice Charges

       {¶ 22} On April 29, 2011, SERB issued its judgment in the unfair labor practice

charge proceeding brought by TPCOA before it. SERB ruled in favor of the city, finding

that the city “did not violate Ohio Revised Code §§ 4117.11(A)(1) and (A)(5) when it

unilaterally increased the health-care premiums for members of the Toledo Police

Command Officers’ Association and rescinded its ten percent payment into the Toledo

Police Command Officers’ Association’s pension fund.” SERB found that immediate




9.
unilateral action by the city “was required due to exigent circumstances that were

unforeseen at the time of negotiations.” SERB dismissed the unfair labor practice charge

with prejudice.

       {¶ 23} TPCOA appealed the judgment to the Lucas County Court of Common

Pleas. On April 22, 2013, the Lucas County Court of Common Pleas issued a final

judgment in the appeal and reversed. Toledo Police Command Officers’ Assn. v. SERB,

Lucas C.P. No. CI11-3235 (Apr. 22, 2013). The court ordered midterm changes to the

CBA rescinded and ordered a “return to the status quo ante, including providing equitable

relief to Toledo Police Command Officer’s Association bargaining-unit members for any

losses sustained as a result of the midterm changes.”

       {¶ 24} The city has appealed the April 22, 2013 judgment to this court. The

appeal is pending for decision of this court.

                               Subject Matter Jurisdiction

       {¶ 25} Under Assignments of Error Nos. 1 and 2, the city argues trial court error

in failing to dismiss Counts One, Two, and Three of the complaint. Under Assignment of

Error No. 1, the city argues the trial court lacked subject matter jurisdiction to compel

arbitration. Under Assignment of Error No. 2, the city argues that dismissal was required

because Counts One, Two, and Three of the complaint came within the exclusive

jurisdiction of SERB. In Assignment of Error No. 3, the city contends that the trial court

erred as a matter of law in compelling arbitration.




10.
       {¶ 26} The city has argued Assignments of Error 1, 2, and 3 together and asserted

one controlling proposition of law on those assignments of error: “Revised Code Chapter

4117 grants exclusive jurisdiction to the State Employment Relations Board over claims

that arise from or depend on rights created by that Chapter.”

       {¶ 27} In State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2010-Ohio-5039,

937 N.E.2d 88, ¶ 16, the Ohio Supreme Court summarized prior decisions of the court

concerning the exclusive jurisdiction of SERB and procedures and remedies to uphold

R.C. Chapter 4117 rights:

              “The current R.C. Chapter 4117 established a comprehensive

       framework for the resolution of public-sector labor disputes by creating a

       series of new rights and setting forth specific procedures and remedies for

       the vindication of those rights.” Id. [Franklin Cty. Law Enforcement Assn.

       v. Fraternal Order of Police, Capital City Lodge No. 9, 59 Ohio St.3d 167,

       169, 572 N.E.2d 87 (1991).] “The State Employment Relations Board has

       exclusive jurisdiction to decide matters committed to it pursuant to R.C.

       Chapter 4117.” Id. at paragraph one of the syllabus. “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



11.
       Dept. of Mental Health v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, 786

       N.E.2d 49, ¶ 23; E. Cleveland v. E. Cleveland Firefighters Local 500,

       I.A.F.F. (1994), 70 Ohio St.3d 125, 127–128, 637 N.E.2d 878. Therefore,

       “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.” Franklin Cty. Law Enforcement Assn., 59 Ohio

       St.3d 167, 572 N.E.2d 87, at paragraph two of the syllabus.

       {¶ 28} R.C. Chapter 2711 is Ohio’s Arbitration Act. The act predates enactment

of the Public Employees’ Collective Bargaining Act (R.C. Chapter 4117). “Both the

Ohio General Assembly and Ohio courts have expressed a strong public policy favoring

arbitration.” Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d

408, ¶ 15.

       {¶ 29} Binding arbitration of grievances under collective bargaining agreements

with respect to wages, hours, and terms and conditions of public employment is one

remedy established under R.C. Chapter 4117. Under R.C. 4117.10(A), public employers

and unions, as the exclusive representatives of public employees, can agree to binding

arbitration as the exclusive procedure for resolution of grievances under a CBA. R.C.

4117.10(A). R.C. 4117.10(A) provides:

              (A) An 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



12.
       agreement. If the agreement provides for a final and binding arbitration of

       grievances, public employers, employees, and employee organizations are

       subject solely to that grievance procedure * * *.

       {¶ 30} The CBA between the parties provides for binding arbitration of

grievances.

       {¶ 31} The Ohio Supreme Court in E. Cleveland v. E. Cleveland Firefighters

Local 500, I.A.F.F., 70 Ohio St.3d 125, 637 N.E.2d 878 (1994), citing R.C. 4117.10(A),

held that the vesting of SERB with exclusive jurisdiction over unfair labor practices was

not meant to foreclose binding arbitration of grievances in labor disputes:

              The General Assembly's vesting of SERB with exclusive jurisdiction

       to determine unfair labor practices defined in R.C. 4117.11 was never

       meant to foreclose parties to a collective bargaining agreement from

       settling differences in interpreting provisions of their agreement through the

       process of binding arbitration, especially given the clear language of R.C.

       4117.10(A) set forth above. Id. at 128.

       {¶ 32} TPCOA argues that under Chapter 4117 it was presented with two

available remedies under Chapter 4117 to vindicate employee rights under the collective

bargaining agreement, and that it pursued both. It brought this action to compel

mandatory arbitration of grievances under the collective bargaining agreement. It also

filed Unfair Labor Practice Charges with SERB.




13.
       {¶ 33} This court has recognized that there may be circumstances where both

remedies may be pursued. See Intl. Assn. of Firefighters, Local 92 v. Toledo, 136 Ohio

App.3d 56, 735 N.E.2d 960 (6th Dist.1999); Toledo Police Patrolman’s Assn., Local10

IUPA v. Toledo, 127 Ohio App.3d 450, 713 N.E.2d 78 (6th Dist.1998). Citing the Ohio

Supreme Court’s decision in East Cleveland Firefighters and this court’s decision in the

Intl. Assn. of Firefighters, Local 92 case, the Eighth District Court of Appeals held that

binding arbitration under the collective bargaining agreement remained an available

remedy despite the filing of an Unfair Labor Practice Charge. N. Olmsted v. Internatl.

Assn. of Firefighters, Local 1267, 8th Dist. Cuyahoga Nos. 91300, 91301, and 91724,

2009-Ohio-960, ¶ 39-40.

       {¶ 34} It is undisputed that the city refused to comply with the terms and

conditions of the collective bargaining agreement and refused to submit to binding

arbitration of grievances filed under the CBA with respect to the failure. By ordinance,

the city claimed exigent circumstances authorized its refusal to honor specific obligations

under the collective bargaining agreement.

       {¶ 35} The city, citing the decision of State Employment Relations Board in SERB

v. Toledo City Dist. Bd. Edn., SERB No. 2001-05 (October 1, 2001), contends that

unilateral modification of the CBA was permitted due to the existence of exigent

circumstances that were unforeseen at the time of negotiations,.

       {¶ 36} The city contends that the issue of whether exigent circumstances exist to

permit unilateral modification of the CBA comes within the exclusive jurisdiction of



14.
SERB. TPCOA agrees that only SERB can make that determination and that the issue is

beyond the authority of the arbitrator to determine in binding arbitration under Counts

One and Three of the complaint to decide.

       {¶ 37} As a practical matter, TPCOA’s filing of the R.C. 4117.11(A)(1) and (5)

unfair labor practice charge was necessary as a procedure to secure a determination by

SERB of the validity of the exigent circumstances defense. The parties agree that the

outcome of the R.C. 4117.11(A)(1) and (5) unfair labor practice proceedings will

determine whether any viable claim exists for claimed breach of the CBA as asserted

under Counts One and Three of the complaint. The city’s exigent circumstances defense

is the central issue to the R.C. 4117.11(A)(1) and (5) unfair labor practice charge.

       {¶ 38} The city contends that the filing of the unfair labor practice charge alone

acted to place exclusive jurisdiction over the dispute with SERB and preempts the

remedy of binding arbitration of grievances under the CBA, even were it ultimately

determined that exigent circumstances claim is without merit. Under this argument, an

unproven claim of exigent circumstances alone would act to prevent binding arbitration

to enforce the terms of a collective bargaining agreement.

       {¶ 39} R.C. 4117.11 governs unfair labor practices. R.C. 4117.11 (A) concerns

unfair labor practices by public employers. R.C. 4117.11(B) concerns unfair labor

practices by employee organizations. R.C. 4117.11(C) provides where it is determined




15.
that violations of R.C. 4117.11(A) and (B) have occurred, “nothing in this division

prevents any party to a collective bargaining agreement from seeking enforcement or

damages for a violation thereof against the other party to the agreement.”

       {¶ 40} Accordingly, we conclude that should SERB (and the courts upon review

of SERB’s decision) ultimately rule that the city was not justified in unilaterally

modifying the CBA under “exigent circumstances,” TPCOA can pursue enforcement of

the CBA by binding arbitration of the grievances as sought under Counts One and Three

of the complaint.

       {¶ 41} With respect to the claims asserted in Counts One and Three of TPCOA’s

complaint, we conclude that Assignments of Error Nos. 1, 2, and 3 are well-taken in part.

The court reverses the trial court judgments in part and will remand this action with

instructions for the trial court to modify its judgment ordering arbitration to include

instructions on the limitations on the arbitrator’s authority as stated in this judgment.

       {¶ 42} In all other respects, we find Assignments of Error Nos. 1, 2, and 3 not

well-taken. as to the claims asserted in Counts One and Three of TPCOA’s complaint.

                       Claims Under Count Two of the Complaint

       {¶ 43} Appellant contends that each of the first three counts of the complaint fall

into one of the enumerated areas in which SERB exercises exclusive jurisdiction. With

respect to the claim for binding arbitration of the “me too” grievance under Count II of

the complaint, we disagree.




16.
       {¶ 44} Count II of the complaint seeks binding arbitration of a grievance over the

alleged failure of the city to comply with the “me too’ provisions of a Letter of

Understanding attached to and allegedly included as a part of the CBA. The dispute

under Count Two concerns an economic offer the city extended to firefighters but failed

to extend to TPCOA. Count Two of the complaint alleges that under the “me too”

provisions of the Letter of Understanding, the city was required to make the same offer to

TPCOA. Binding arbitration under Count Two of the complaint is sought on the claimed

basis of an alleged breach of the “me too” provisions of the letter of understanding alone.

       {¶ 45} The claim asserted under Count II is not the subject of any unfair labor

practice charge before SERB. Ordinance 103-10 declaring exigent circumstances and

unilateral modification of the CBA, did not declare any unilateral modification of the “me

too” provisions of the letter of understanding. The claimed breach of the “me too”

agreement is not asserted as a basis for relief in TPCOA’s R.C. 4117.11(A)(1) and (5)

unfair labor practice charge. TPCOA’s retaliation unfair labor practice charge is also not

based on any claimed breach of the CBA.

       {¶ 46} We agree with TPCOA that in resolving the “me too” grievance an

arbitrator need not determine whether there were exigent circumstances or whether the

city was justified in unilaterally changing the CBA on the basis of exigent circumstances.

The “me too” grievance does not challenge the city’s unilateral changes as a breach of the

CBA. Rather, the grievance involves the issue of whether the city should have offered

the same economic offer to TPCOA that it offered to Toledo Firefighters Local 92.



17.
       {¶ 47} Accordingly, we conclude that there is no jurisdictional bar to the trial

court’s judgment compelling arbitration under Count II of the complaint. The claim

seeks binding arbitration of the terms of the CBA as authorized by R.C. 4117.10(A).

       {¶ 48} To the extent Assignments of Error Nos. 1, 2, and 3 relate to Count Two of

the complaint, we find them not well-taken.

                                       Arbitrability

       {¶ 49} Under Assignment of Error No. 4 the city argues that the trial court erred in

granting TPCOA’s motion for summary judgment and ordering the city to proceed to

arbitration. In Assignment of Error No. 5, the city argues that the trial court erred in

denying the city’s motion for summary judgment in finding that the grievances in

appellant’s complaint are subject to arbitration under the terms of the CBA.

       {¶ 50} Under Assignment of Error No. 4, the city argues error with respect to the

trial court’s judgment compelling arbitration on Counts One, Two, and Three of the

complaint. TPCOA’s motion for summary judgment, however, was limited to grievances

under counts one and three of the complaint. TPCOA filed a separate “Motion to Compel

Arbitration of Count Two of the Complaint.” The trial court treated both motions as

motions for summary judgment. We will treat the city’s Assignment of Error No. 4 as

extending to claimed error in the trial court’s rulings in both motions by TPCOA and

extending to rulings on all three grievances.

       {¶ 51} In these assignments of error, the city argues that Counts One, Two, and

Three of the complaint are not subject to arbitration under the terms of the CBA. The



18.
city summarizes its arguments under the assignments of error under one proposition of

law: “The arbitration provisions contained in the CBA are inapplicable because the CBA

does not include a mechanism to resolve disputes constituting unfair labor practices that

do not involve the interpretation or application of a contract provision.”

       {¶ 52} Arbitrability concerns “whether a[n] * * * agreement creates a duty for the

parties to arbitrate the particular grievance.” Council of Smaller Ents. v. Gates,

McDonald & Co., 80 Ohio St.3d 661, 666, 687 N.E.2d 1352 (1988), quoting AT & T

Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 106 S.Ct. 1415, 89

L.Ed.2d 648 (1986). The Ohio Supreme Court has looked to federal decisions

concerning interpretation of arbitration clauses in collective bargaining agreements for

general principles to be applied when considering the reach of an arbitration clause. Id.

at 665; Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185,

2006-Ohio-657, 842 N.E.2d 488, ¶ 5.

       {¶ 53} In Council of Smaller Ents v. Gates, McDonald & Co., the Ohio Supreme

Court identified four general principles from a series of United States Supreme Court

decisions to guide the analysis:

              In AT & T Technologies, Inc. v. Communications Workers of Am.

       (1986), 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648, the United States

       Supreme Court summarized four general principles, developed in prior

       decisions of that court, to be applied when considering the reach of an

       arbitration clause. The essence of these general principles, set out primarily



19.
      in the “Steelworkers Trilogy” ( Steelworkers v. Am. Mfg. Co. [1960], 363

      U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; Steelworkers v. Warrior & Gulf

      Navigation Co. [1960], 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409;

      Steelworkers v. Enterprise Wheel & Car Corp. [1960], 363 U.S. 593, 80

      S.Ct. 1358, 4 L.Ed.2d 1424) is pertinent to our review, and provides a

      framework for our inquiry.FN1

             FN1. The Steelworkers Trilogy of cases, John Wiley & Sons, and AT

      & T Technologies all involved interpretation of arbitration clauses in

      collective bargaining agreements. Although the case sub judice does not

      arise in the collective bargaining context, it is now clear that the general

      principles discussed reach beyond labor arbitration cases. See

      PaineWebber Inc. v. Elahi (C.A.1, 1996), 87 F.3d 589, 594, fn. 6

      (recognizing that labor arbitration precedents can apply in a nonlabor

      arbitration setting).

             The first principle is that “‘arbitration is a matter of contract and a

      party cannot be required to submit to arbitration any dispute which he has

      not agreed so to submit.’ * * * This axiom recognizes the fact that

      arbitrators derive their authority to resolve disputes only because the parties

      have agreed to submit such grievances to arbitration.” AT & T




20.
      Technologies, 475 U.S. at 648-649, 106 S.Ct. at 1418, 89 L.Ed.2d at 655,

      quoting Warrior & Gulf, supra, 363 U.S. at 582, 80 S.Ct. at 1353, 4

      L.Ed.2d at 1417.

             The second principle is that “the question of arbitrability-whether

      a[n] * * * agreement creates a duty for the parties to arbitrate the particular

      grievance-is undeniably* * * an issue for judicial determination. Unless the

      parties clearly and unmistakably provide otherwise, the question of whether

      the parties agreed to arbitrate is to be decided by the court, not the

      arbitrator.” Id., 475 U.S. at 649, 106 S.Ct. at 1418, 89 L.Ed.2d at 656.

             The third rule is, “in deciding whether the parties have agreed to

      submit a particular grievance to arbitration, a court is not to rule on the

      potential merits of the underlying claims.” Id., 475 U.S. at 649, 106 S.Ct. at

      1419, 89 L.Ed.2d at 656.

             The fourth principle is that “where the contract contains an

      arbitration clause, there is a presumption of arbitrability in the sense that

      ‘[a]n 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., 475 U.S. at 650, 106 S.Ct. at




21.
       1419, 89 L.Ed.2d at 656, quoting Warrior & Gulf, supra, 363 U.S. at 582-

       588, 80 S.Ct. at 1353, 4 L.Ed.2d at 1417. Council of Smaller Enterprises v.

       Gates, McDonald & Co., at 665-666.

                        Arbitrability of the “Me Too” Grievance

       {¶ 54} With respect to the “me too” provision concerned in Count Two of the

complaint, the city argues first, that the Letter of Understanding is not part of the CBA

and therefore not subject to CBA grievance procedures. The first of the four general

principles that guide our analysis recognizes that “arbitration is a matter of contract and a

party cannot be required to submit to arbitration any dispute which he has not agreed so

to submit.”

       {¶ 55} The court considered TPCOA’s motion to compel arbitration of count two,

TPCOA’ motion for summary judgment on counts one and three, and the city’s cross-

motion for summary judgment together. The court treated the motion to compel

arbitration under count two of the complaint as a motion for summary judgment. On

appeal, we do the same.

       {¶ 56} TPCOA filed the affidavit of Terry Stewart in support of its motion to

compel arbitration of the Me Too grievance under Count Two of the complaint. In the

affidavit Stewart identified himself as a Sergeant in the Toledo Police Department and as

the current President of the TPCOA. Sergeant Stewart also stated that copies of the CBA

and the Letter of Understanding were attached to TPCOA’s complaint and that the parties

reached agreement on the Letter of Understanding at the conclusion of bargaining for the



22.
current CBA. Sergeant Stewart testified in his affidavit that “[t]he parties have

traditionally included letters of understanding reached during negotiations as part of

collective bargaining agreements.”

       {¶ 57} According to Stewart, the TPCOA filed a grievance over the violation of

the “me too” agreement arising from the city’s negotiated agreement of March 23, 2010,

with Fire Fighters Local 92.

       {¶ 58} The standard of review on motions for summary judgment is de novo; that

is, an appellate court applies the same standard in determining whether summary

judgment should be granted as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56, to prevail on a motion for summary

judgment the moving party must demonstrate:

               (1) that there is no genuine issue as to any material fact; (2) that the

       moving party is entitled to judgment as a matter of law; and (3) that

       reasonable minds can come to but one conclusion, and that conclusion is

       adverse to the party against whom the motion for summary judgment is

       made, who is entitled to have the evidence construed most strongly in his

       favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375

       N.E.2d 46 (1978).

       {¶ 59} Summary judgment procedure is limited to circumstances where there is no

dispute of material fact for trial:




23.
                Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed

       in the action, show that there is no genuine issue as to any material fact and

       that the moving party is entitled to judgment as a matter of law. Civ.R.

       56(C).

       {¶ 60} Where a properly supported motion for summary judgment is made, an

adverse party must respond with specific facts to establish the existence of a material

issue of fact for trial. Suder-Benore Co., Ltd v. Motorists Mut. Ins. Co., 6th Dist. No. L-

12-1351, 2013-Ohio-3959, 995 N.E.2d 1279, ¶ 12; Civ. R. 56(E).

       {¶ 61} In our view, appellant supported its motion with sufficient evidentiary

materials to establish that the Letter of Understanding was treated by the parties as a part

of the collective bargaining agreement and that it became appellee's burden to submit a

response to the motion for summary judgment by affidavit or as otherwise setting forth

“specific facts showing that there is a genuine issue for trial” on the issue. Civ.R. 56(E).

Under the rule, “[i]f the party does not so respond, summary judgment, if appropriate,

shall be entered against the party.” Id.

       {¶ 62} The city has not directed the court to any evidence in the record creating a

dispute of material fact over the facts stated in the Stewart affidavit including the fact that

the agreement for the Letter of Understanding was reached at the conclusion of




24.
bargaining on the CBA and that the parties have traditionally included letters of

understanding reached during negotiations as part of the collective bargaining agreement.

We have found none.

       {¶ 63} We find that there was no dispute of material fact on the issue of whether

the letter of understanding was to be treated as a part of the CBA and conclude that the

trial court did not err in treating the “me too” agreement contained in the letter of

understanding as a part of the collective bargaining agreement.

       {¶ 64} The city next argues that the “me too” grievance is not arbitrable. The “me

too” provision of the Letter of Understanding provides:

              8. On August 13, 2009, the parties agreed to a “me too” provision

       under which the City agreed to provide the TPCOA with any greater

       economic benefits newly provided to TFF Local 92 and/or TPPA either

       through settlement or impasse proceedings, including fact finding and/or

       conciliation.

       {¶ 65} Section 2109.14 of the CBA provides for a four step grievance procedure.

Binding arbitration is the last step. In its discussion of the fourth step, Section 2109.14

provides:

              Arbitration shall be limited to matters concerning the interpretation

       of the code or application of the provisions of this Title of the Code.

       However, by mutual agreement of the City and the Association, the

       grievance procedure set forth above may be used in other matters.



25.
       {¶ 66} The city contends that the “me too” grievance is not arbitrable because the

offer to Local 92 was not an offer of “greater economic benefits newly provided,” due to

concessions agreed to by Local 92 under its agreement. Next, the city argues that Local

92 agreement was made without the benefit of “settlement or impasse proceedings,

including fact finding and/or conciliation” as provided under the “me too” provision.

       {¶ 67} TPCOA states that the package offered by the city to Local 92 allowed its

members to avoid “forced economic sanctions” but the same economic opportunity was

never offered to the TPCOA. It also asserts that the city’s arguments go to the merits of

the grievance and not to its arbitrability.

       {¶ 68} TPCOA argues that the merits of a grievance are not considered in

determining arbitrability and that the city’s arguments demonstrate that the dispute really

concerns interpretation of the “me too” provision and presents a classic issue of contract

interpretation for an arbitrator.

       {¶ 69} Citing United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 568-69,

80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the trial court held that the city was seeking the

court to weigh the merits of the “me too” grievance and that to do so would usurp the

function of the arbitrator:

              [T]he proper inquiry for the Court here is whether Section 2109.14

       of the CBA applies to the April 6, 2010, Grievance, so as to render that

       grievance subject to arbitration, not whether the CBA provision underlying

       that grievance, the “Me Too” Provision, actually applies to the



26.
       circumstances involved here. The latter inquiry would improperly entangle

       the Court in weighing the merits of the grievance, thereby usurping the very

       function entrusted to the arbitration tribunal.” (Footnote with supporting

       authorities omitted.)

       {¶ 70} We agree. Rule three of the guiding principles approved by the Ohio

Supreme Court in Council of Smaller Ents. v. Gates, McDonald & Co. fully supports the

trial court’s analysis.

       {¶ 71} We also agree with the trial court’s conclusion that the city’s arguments

over what constitutes “greater economic benefits newly provided” and “settlement or

impasse proceedings, including fact finding and/or conciliation” raise questions of

interpretation and application of the “me too” provision that are dedicated to the

arbitrator to determine.

       {¶ 72} We are guided by the principle that there is a presumption of arbitrability in

this case:

               “[W]here the contract contains an arbitration clause, there is a

       presumption of arbitrability in the sense that ‘[a]n 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.’” Council of Smaller Ents. v. Gates, McDonald & Co.,

       80 Ohio St.3d at 666, quoting AT & T Technologies, Inc. v.



27.
       Communications Workers of Am., 475 U.S. at 650, quoting United

       Steelworkers of Am. v. Warrior & Gulf Navigation Co., 475 U.S. at 582.

       {¶ 73} We cannot state with positive assurance that the arbitration clause in this

case is not susceptible of an interpretation covering the “me too” grievance dispute.

       {¶ 74} As discussed earlier in this opinion, the “me too” grievance does not

involve the issue of whether the unilateral modification of the CBA by the city on the

basis of claimed economic exigent circumstances was valid. The “me too” grievance is

unaffected by any determination of whether there were exigent circumstances or whether

the city was justified in unilaterally changing the CBA. Accordingly, we conclude that

objections to arbitrability arising from jurisdictional issues relating to the unilateral

modification of the CBA for claimed exigent circumstances do not pertain to arbitration

of the “me too” grievance.

       {¶ 75} We conclude that the trial court did not err in determining that the “me too”

grievance is arbitrable under the grievance procedure of the CBA.

               Arbitrability of Counts One and Three of the Complaint

       {¶ 76} With respect to Counts One and Three, the city argues that while the

grievance procedure does contain broad language that encompasses complaints between

the parties over interpretation and application of the CBA, the grievance procedure does

not contain language with respect to arbitrability of unilateral mid-term concessions




28.
imposed on the basis of exigent circumstances. The city argues that compelling

arbitration of a grievance for unilateral modifications of the CBA due to claimed exigent

circumstances would usurp SERB’s authority over unfair labor practice charges.

       {¶ 77} As addressed earlier in this opinion, the parties are agreed that only

proceedings before SERB can make the determination of whether exigent circumstances

exist to permit unilateral modification of the CBA by the city. In arbitration, the

arbitrator will apply the determination made on the issue in unfair labor practice

proceedings before SERB, including appeals.

       {¶ 78} Proceeding in this manner acts to limit binding arbitration of grievances

under Counts One and Three of the complaint to matters clearly arbitrable under the CBA

grievance procedure: disputes with respect to pension pick up (Section 2109.65 of CBA),

health insurance contribution rates (Section 2109.64), and payment of specified wage

rates (Section 2109.75).

       {¶ 79} We find the city’s arguments against arbitrability of the grievances under

Counts One and Three of the complaint are without merit.

       {¶ 80} We find Assignments of Error Nos. 4 and 5 not well-taken.

       {¶ 81} We reverse the trial court judgments in part and affirm in part. We remand

this cause to the Lucas County Court of Common Pleas with instructions for the court to

modify its judgment ordering the city to proceed with arbitration of grievances in this

case. The court shall modify the judgment to include instructions to the arbitrator setting




29.
forth the limitations to the arbitrator’s authority as stated in this decision and judgment.

In all other respects, we affirm. The parties are ordered to pay equal one-half shares of

the costs of this appeal pursuant to App.R. 24.



                                                                 Judgment affirmed, in part,
                                                                 and reversed, in part.




       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.
                                                  _______________________________
Stephen A. Yarbrough, P.J.                                    JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




30.
