         [Cite as Williams v. Metro, 2018-Ohio-2507.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO


THEODORE WILLIAMS,                                :     APPEAL NO. C-170423
                                                        TRIAL NO. A-1603301
        Plaintiff-Appellant,                      :
                                                           O P I N I O N.
  vs.                                             :
METRO, a.k.a. SOUTHWEST OHIO                      :
REGIONAL TRANSIT AUTHORITY
(SORTA),
                                                  :
  and
                                                  :
AMALGAMATED TRANSIT UNION
LOCAL 627,                                        :

     Defendants-Appellees.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: June 27, 2018


William D. Bell, Sr., for Plaintiff-Appellant,

Dinsmore and Shohl,            Allison L. Goico and Susan H. Jackson for Defendant-
Appellee Metro,

Jubelirer, Pass and Intrieri, P.C., and Joseph S. Pass, Jr., for Defendant-Appellee
Amalgamated Transit Union Local 627.
                    OHIO FIRST DISTRICT COURT OF APPEALS



Z AYAS , Judge.
                                  Background

       {¶1}   Plaintiff-appellant Theodore Williams was employed as a mechanic by

the Southwest Ohio Regional Transit Authority (“SORTA”), also known as Metro.

Williams was also a member of the Amalgamated Transit Union Local 627 (“the

union”), which was a party to a collective bargaining agreement (“CBA”) with

SORTA.    Williams had been disciplined at work for engaging in a physical

altercation, and was offered a “Last Chance and Settlement Agreement” (“last chance

agreement”). The last chance agreement was a document signed by SORTA, the

union, and Williams, acknowledging that, in exchange for not being fired for the

current violation of workplace rules, Williams and the union agreed not to challenge

Williams’s discharge for any future infraction. Williams was disciplined again for

“[w]illful misuse of a timecard.” He was put on a second last chance agreement. Two

months later, Williams was seen away from his SORTA workplace while still clocked

in. SORTA terminated his employment.

       {¶2}   Williams and the union filed a grievance to contest Williams’s

discharge pursuant to the CBA. SORTA upheld its decision to terminate Williams.

       {¶3}   Williams wanted to pursue his wrongful-discharge claim by taking the

matter to arbitration under the CBA. Arbitration required a vote by the union

members. They voted not to pursue arbitration.

       {¶4}   Williams filed suit against SORTA and the union. He alleged two

claims against SORTA. The first claim was for wrongful discharge. The second claim

was for discrimination as Williams claimed that two other employees, one of whom

was Hispanic and younger and one of whom was Caucasian, had signed last chance

agreements but were not discharged by SORTA for similar infractions. Williams’s



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                     OHIO FIRST DISTRICT COURT OF APPEALS


third claim was against the union, and alleged that, by refusing to pursue his claim

through arbitration, the union had breached its contractual duty to fairly represent

him.

       {¶5}    The union filed a motion to dismiss the third count of the complaint on

the basis that SORTA is a public employer, and therefore, claims against the union

for unfair labor practices must be filed with the State Employment Relations Board

(“SERB”).

       {¶6}    SORTA filed a motion to dismiss the wrongful-discharge claim on the

ground that it was governed by the CBA and was, therefore, under the exclusive

jurisdiction of SERB.

       {¶7}    The trial court dismissed the complaint. On appeal, Williams presents

two assignments of error. We hold that the trial court erred by dismissing the second

count of the complaint against SORTA, which alleged discrimination, and reverse the

trial court’s judgment as to that claim.

                             Exclusive Jurisdiction of SERB

       {¶8}    Williams’s first assignment of error alleges that the trial court erred by

dismissing his claim against the union, which alleged an unfair labor practice against

the union because it had failed to fairly represent Williams by not pursuing his

grievance through arbitration. Pursuant to R.C. 4117.11(B)(6), which states that “[i]t

is an unfair labor practice for an employee organization, its agents, or representatives

* * * to [f]ail to fairly represent all public employees in a bargaining unit,” this claim

must be addressed by SERB which has exclusive jurisdiction. See E. Cleveland v. E.

Cleveland Firefighters Local 500, I.A.F.F., 70 Ohio St.3d 125, 127, 637 N.E.2d 878

(1994); State ex rel. Dept. of Mental Health v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-

1632, 786 N.E.2d 49, ¶ 23. William’s first assignment of error is overruled.



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                    OHIO FIRST DISTRICT COURT OF APPEALS


       {¶9}   Williams’s second assignment of error alleges that the trial court erred

by dismissing his claims against SORTA. The first count of William’s complaint was

for wrongful termination. Williams’s employment with SORTA was covered by the

CBA between SORTA and the union. Section 3 of the CBA is titled “Disciplinary

Action and Grievances.” Section 3(b) states that “[t]here shall be no discharge,

suspension or other disciplinary action without sufficient cause or without

notification to [the] employee of [the] reason, in writing.” The CBA then outlines the

procedure to be followed to pursue a grievance. “With limited exception, the Ohio

Revised Code bestows exclusive jurisdiction on SERB for the resolution of disputes

between public employers and employees where those disputes arise from the

employment relationship.” Mun. Constr. Equip. Operators’ Labor Council v.

Cleveland, 2016-Ohio-5934, 71 N.E.3d 655 ¶ 14 (8th Dist.). Whether Williams’s

termination was appropriate under the CBA is a determination that SERB has

exclusive jurisdiction to make. See Carter v. Trotwood-Madison City Bd. of Edn.,

181 Ohio App.3d 764, 2009-Ohio-1769, 910 N.E.2d 1088, ¶ 65-72 (2d Dist.); Brown

v. Cincinnati Pub. Schools, 1st Dist. Hamilton No. C-150345, 2016-Ohio-4675, ¶ 14.

                                 Discrimination Claim

       {¶10} The second count of Williams’s complaint, however, alleges a

discrimination claim. Specifically, Williams alleges disparate treatment in that he

was treated differently than younger and non-African-American employees. This

court has held that a statutory discrimination claim can be brought separately from

contractual employment claims that are covered by a CBA. Thomas v. General Elec.

Co., 131 Ohio App.3d 825, 830, 723 N.E.2d 1139 (1st Dist.1999); see Haynes v. Ohio

Turnpike Comm., 177 Ohio App.3d 1, 2008-Ohio-133, 893 N.E.2d 850 (8th Dist.)

(statutory discrimination rights are distinct from contractual rights and are



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                     OHIO FIRST DISTRICT COURT OF APPEALS


independent of the arbitration process). The dispositive test is whether the claims

arise from or depend on collective-bargaining rights created by R.C. Chapter 4117.

State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2016-Ohio-

478, 56 N.E.3d 913, ¶ 57; State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2010-

Ohio-5039, 937 N.E.2d 88, ¶ 22; Franklin Cty. Law Enforcement Assn. v. Fraternal

Order of Police, 59 Ohio St.3d 167, 572 N.E.2d 87 (1991), paragraph two of the

syllabus; Cheveney v. Greater Cleveland Regional Transit Auth., 2013-Ohio-1902,

992 N.E.2d 461, ¶ 17-18 (8th Dist.). Williams’s discrimination claim does not arise

from, nor is it dependent upon, the CBA, and therefore, R.C. Chapter 4117 does not

provide the exclusive remedy.      We hold that it was error for the court to have

dismissed it. The second assignment of error is sustained as to the discrimination

claim and overruled as to the wrongful-termination claim.

                                         Conclusion

       {¶11} Accordingly, we reverse the trial court’s judgment dismissing William’s

discrimination claim and remand this cause to the trial court for further proceedings

on that claim. The trial court’s judgment is affirmed in all other respects.

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


MOCK, P.J., and DETERS, J., concur.



Please note:

       This court has recorded its own entry on the date of the release of this opinion.




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