[Cite as Tolles Career & Technical School Bd. of Edn. v. Tolles Edn. Assn., 2016-Ohio-7835.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           MADISON COUNTY




TOLLES CAREER & TECHNICAL                               :
SCHOOL BOARD OF EDUCATION,                                          CASE NO. CA2016-01-001
                                                        :
        Plaintiff-Appellant,                                                OPINION
                                                        :                   11/21/2016
    - vs -
                                                        :
TOLLES EDUCATION ASSOCIATION,
                                                        :
        Defendant-Appellee.
                                                        :



         CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                            Case No. CVH20150102



Bricker & Eckler LLP, Nicole M. Donovsky, Megan Savage Knox, 100 South Third Street,
Columbus, Ohio 43215, for plaintiff-appellant

Cloppert, Latanick, Sauter & Washburn, Robert W. Sauter, Susan Hayest Kozlowski, Lora A.
Molnar, 225 East Broad Street, Columbus, Ohio 43215, for defendant-appellee

Hunter, Carnahan, Shoub, Byard & Harshman, Michael J. Hunter, 3360 Tremont Road, Suite
230, Columbus, Ohio 43221, Amicus Curiae for SEIU, District 1199

Linda Fiely, 225 East Broad Street, Columbus, Ohio 43215, Amicus Curiae for Ohio
Education Association

Ennis Britton Co., LPA, William M. Deters II, Gary T. Stedronsky, Pamela A. Leist, 121 West
Ninth Street, Cincinnati, Ohio 45202, Amicus Curiae for Ohio School Boards Association,
Ohio Association of School Business Officials, and Buckeye Association of School
Administrators
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       RINGLAND, J.

       {¶ 1} Tolles Career & Technical Center School Board of Education ("Board") appeals

from a decision of the Madison County Court of Common Pleas ordering arbitration with

Tolles Education Association ("Association"). For the reasons detailed below, we reverse the

decision of the trial court and remand for further proceedings.

       {¶ 2} This matter arises out of a dispute involving the Collective Bargaining

Agreement ("CBA") negotiated between the Board and the Association, covering the periods

of June 1, 2013 to June 30, 2016.

       {¶ 3} On March 27, 2015, the Association submitted a grievance related to the

inclusion of attendance data in its teacher evaluations. The grievance was filed on behalf of

four teachers evaluated during the 2013-2014 school year and attendance data was included

in their respective evaluations. The Board denied the Association's grievance.

       {¶ 4} On May 1, 2015, the Board filed a complaint for declaratory judgment

requesting a declaration that the determination of criteria and evidence that an evaluator

uses in its teacher evaluations is reserved for management and is not subject to arbitration.

The Board further requested an order that the Association withdraw its request for arbitration

and cease and desist from the filing of similar grievances.

       {¶ 5} On June 4, 2015, the Association filed a petition to enforce arbitration and

moved to dismiss the Board's declaratory judgment action. Following a hearing, the trial

court found in favor of the Association, denying the Board's declaratory judgment action and

granting the Association's petition to enforce arbitration. The Board now appeals the

decision of the trial court, raising two assignments of error for review. For ease of discussion,

we will address the Board's assignments of error together.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-
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APPELLANT BY FAILING TO RECOGNIZE THE EXPRESS LIMITATIONS AGREED BY

THE PARTIES ON ARBITRABILITY.

       {¶ 8} Assignment of Error No. 2:

       {¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT WHEN IT FAILED TO RECOGNIZE THE MANAGEMENT RIGHT AND

RESPONSIBILITY OF THE PUBLIC EMPLOYER TO EVALUATE EMPLOYEES.

       {¶ 10} In its first and second assignments of error, the Board argues the trial court

erred by compelling arbitration because the inclusion of teacher attendance data in teacher

evaluations is not an issue subject to arbitration.

       {¶ 11} Whether an agreement creates a duty for parties to arbitrate is a question of

law, and the standard of review on appeal is de novo. McKenzie v. Cintas Corp., 12th Dist.

Warren No. CA2012-11-110, 2013-Ohio-1310, ¶ 11. Arbitration is favored as a method of

dispute resolution. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471 (1998). The strong

public policy in favor of arbitration is codified in Ohio's Arbitration Act, which permits a court

to compel arbitration if an action involves an issue subject to an arbitration agreement. R.C.

2711.03(A). "This presumption in favor of arbitration is strengthened when an arbitration

clause is broad in scope as 'only the most forceful evidence of a purpose to exclude the claim

from arbitration will remove the dispute from consideration by the arbitrators.'" Hepperly v.

Sickles, 12th Dist. Warren No. CA2014-12-147, 2015-Ohio-2223, ¶ 8, quoting Composite

Concepts Co., Inc. v. Berkenhoff, 12th Dist. Warren No. CA2009-11-149, 2010-Ohio-2713, ¶

26.

       {¶ 12} Despite the strong policy in favor of arbitration, a matter that does not fall

within the ambit of an arbitration agreement should not be submitted to mandatory arbitration.

Council of Smaller Enterprises v. Gates, McDonald & Co., 80 Ohio St.3d 661, 665 (1998).

"[A]rbitration is a matter of contract and, in spite of the strong policy in its favor, a party
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cannot be compelled to arbitrate any dispute which he has not agreed to submit [to

arbitration]." Northland Ins. Co. v. Palm Harbor Homes, Inc., 12th Dist. Clinton No. CA2006-

07-021, 2007-Ohio-1655, ¶ 9.

       {¶ 13} The issue in the present case is whether the inclusion of teacher attendance

data in a teacher evaluation is a subject amenable to arbitration pursuant to the terms of the

negotiated agreement. The trial court determined that the matter was subject to arbitration,

finding the terms of the agreement did not clearly state whether the inclusion of attendance

data was subject to arbitration and, noting the presumption in favor of arbitration, found in

favor of the Association.

       {¶ 14} R.C. 4117.08 governs subjects appropriate for collective bargaining with public

employees. The relevant provisions state:

              (C) Unless a public employer agrees otherwise in a collective
              bargaining agreement, nothing in Chapter 4117. of the Revised
              Code impairs the right and responsibility of each public employer
              to:

              ***

              (2) Direct, supervise, evaluate, or hire employees;

       {¶ 15} As can be seen, R.C. 4117.08(C)(2) clearly vests a public employer with the

right to evaluate its employees absent an agreement otherwise. Jurcisin v. Cuyahoga Cty.

Bd. of Elections, 35 Ohio St.3d 137, 143 (1988). The issue here is whether the Board limited

its ability to evaluate its employees in the negotiated agreement.

       {¶ 16} Both the Board and the Association agree that the agreement makes no

provision for the inclusion of attendance percentage data in a teacher evaluation.

Nevertheless, the Board argues that the inclusion of attendance data is a matter of

professional judgment not subject to arbitration based on the language of the negotiated

agreement.


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        {¶ 17} Article IV of the agreement outlines the grievance procedure. According to the

definitions listed therein, a "'[G]rievance' shall mean a claim by an employee(s) that there has

been a violation, misinterpretation, or misapplication of the language in this Contract." The

procedure for the resolution of grievances is a four step process, concluding with the

submission of the grievance for arbitration. Pursuant to Article IV, Section E, "[b]inding

arbitration shall be the sole and exclusive remedy for an alleged violation of this Agreement."

        {¶ 18} The Board cites two key provisions in the agreement to support their position.

In a section titled "Personnel Files," the agreement states:

                No grievance or aspect of any grievance that concerns an
                administrator's exercise of his/her professional judgment in
                matters such as evaluation and observation may be taken to
                Step Four.1 Moreover, an arbitrator is specifically prohibited from
                substituting his/her judgment for that of an administrator in
                matters of professional judgment.

Related to the more specific issue involving evaluations, the agreement states:

                The evaluation procedure established in this agreement
                conforms to the framework for the evaluation of teachers
                developed pursuant to section 3319.112 of the Ohio Revised
                Code. Each completed evaluation will result in the assignment of
                a teacher performance rating. The teacher effectiveness rating
                shall be derived from a summative evaluation where fifty (50)
                percent of the overall evaluation is based on student growth
                measures and fifty (50) percent of the overall evaluation is based
                on a teacher's performance rating as provided for in this
                agreement.

                ***

                No later than July 1, 2013, the Tolles Board of Education shall
                adopt a standards-based teacher evaluation policy that conforms
                to the evaluation of teachers developed under Section 3319.112
                of the Ohio Revised Code, and as endorsed by the Tolles
                Education Association. Scheduling, timelines, evaluator training,
                and procedures for bargaining unit member evaluations shall
                align to this adopted policy and are attached to this document.



1. Step Four of the grievance procedure outlines the requirements for requesting the Association to submit the
grievance for arbitration.
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       {¶ 19} Relying on these provisions, the Board argues that the decision to include

attendance data is a matter of professional judgment and, absent language barring the

inclusion of such data, is permissible and within its rights. On the other hand, the Association

argues that because attendance data was not referenced in the negotiated agreement, the

inclusion of such data in an evaluation is a procedural violation of the CBA. In other words,

the Association argues that the inclusion of this additional factor (i.e., teacher attendance

data) violates the procedures adopted by the Board.

       {¶ 20} Based on our review of the record, we agree with the Board and find that in the

absence of any agreement to the contrary, the inclusion of the teacher attendance data was

a matter of professional judgment in its evaluation procedures. We do not find that the

inclusion of attendance percentage is a procedural or legal violation based on the terms of

the negotiated agreement.

       {¶ 21} While the agreement and accompanying appendices provide some general

guidance on the process for teacher evaluations, there is no provision in the negotiated

agreement that impairs the Board's ability to consider attendance data within the context of

its evaluations, which is consistent with R.C. 4117.08. A review of the agreement reveals

that the parties did not set forth a rigid set of factors that could or could not be considered in

evaluating employee performance. Instead, the evaluation procedures provided that 50

percent of the evaluation was to be based on "student growth measures" and 50 percent

based on the "teacher's performance rating." Attached as part of the addendum are seven

factors for teacher performance as provided for in the "Ohio Standards for the Teaching

Profession." Those factors are:

              Standard 1:

              Students

              Teachers understand student learning and development and
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             respect the diversity of the students they teach.

             Standard 2:

             Content

             Teachers know and understand the content area for which they
             have instructional responsibility.

             Standard 3:

             Assessment

             Teachers understand and use varied assessments to inform
             instruction, evaluate and ensure student learning.

             Standard 4:

             Instruction

             Teachers plan and deliver effective instruction that advances the
             learning of each individual student.

             Standard 5:

             Learning Environment

             Teachers create learning environments that promote high levels
             of learning and achievement for all students.

             Standard 6:

             Collaboration and Communication

             Teachers collaborate and communicate with students, parents,
             other educators, administrators and the community to support
             student learning.

             Standard 7:

             Professional Responsibility and Growth

             Teachers assume responsibility for professional growth,
             performance and involvement as an individual and as a member
             of the learning community.

      {¶ 22} Having reviewed the negotiated agreement and accompanying documents, we

agree that the Board has the right to evaluate its employees and consider what factors may
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be considered, absent any limiting provision in a negotiated agreement. Though the parties

agreed to general provisions for teacher evaluations, the agreement did not prohibit the

Board from considering attendance in its teacher evaluations.                         Furthermore, the

consideration of attendance data would be consistent with the evaluation standards outlined

in Standard 7 regarding responsibility and professionalism. Absent any additional term, or

agreement, we cannot conclude that the Board gave away its right to evaluate its employees

and consider attendance data. The inclusion of teacher attendance data, in this case, was

purely a matter of professional discretion.

        {¶ 23} In so finding, we pause to address the Association's concern that the inclusion

of attendance data will impact an employee's decision to utilize contractually negotiated days

off of work. There are no facts before this court that any employee has been adversely

affected by the inclusion of attendance data. In fact, the four named parties in this suit have

attendance data of 93 percent or greater and are highly rated as either "Skilled" or

"Accomplished".2 While the Association may speculate that the inclusion of attendance data

may be used to dissuade eligible teachers from utilizing contractually bargained-for sick and

leave days, we decline to address their concerns in the abstract. If the evidence showed that

eligible teachers were adversely affected in their reviews based on permissible use of sick or

leave time, the individual teacher would have due process remedies as provided for in the

negotiated agreement at Article VII Section 11(C).

        {¶ 24} Accordingly, we find the trial court erred by ordering the parties to arbitrate the

issue of whether attendance data may be considered in the evaluation of employees, as the

procedure for evaluation is retained by the Board and subject to the exceptions contained in

the negotiated agreement. No provision in the negotiated agreement alters that right.



2. Teachers are rated on a progressive scale: Ineffective, Developing, Skilled, or Accomplished.
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                                                               Madison CA2016-01-001

Therefore, we sustain the Board's assignments of error and remand the cause to the trial

court for further proceedings.

      {¶ 25} Judgment reversed and remanded.


      PIPER, P.J., and S. POWELL, J., concur.




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