[Cite as Trumbull Cty. Bd. of Commrs. v. Gatti, 2017-Ohio-8533.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


BOARD OF TRUMBULL COUNTY                                :          OPINION
COMMISSIONERS, et al.,
                                                        :
                 Plaintiffs-Appellees,                             CASE NO. 2017-T-0027
                                                        :
        - vs -
                                                        :
ROBERT GATTI,
                                                        :
                 Defendant-Appellant.
                                                        :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV
02192.

Judgment: Affirmed.


Matthew J. Blair, Blair & Latell Co., L.P.A., 724 Youngstown Road, Suite 12, Niles, OH
44446 (For Plaintiffs-Appellees).

David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Robert Gatti, appeals from the entry of summary judgment by

the Trumbull County Court of Common Pleas in favor of appellees, Board of Trumbull

County Commissioners, et al. At issue is whether the trial court possessed subject

matter jurisdiction over the underlying complaint and, if so, whether the trial court erred
in concluding there were no genuine issues of material fact for trial and, as such,

appellees were entitled to judgment as a matter of law. We affirm.

      {¶2}   Appellant, an employee of the Trumbull County Engineer’s Office, was

involved in an accident on October 20, 2008, while working for the Engineer’s Office.

Appellant was a member of the AFSCME Local 11/AFL-CIO (“AFSCME”), which is the

representative of the bargaining unit employees of the Engineer’s office.       AFSCME

entered into a Collective Bargaining Agreement (“CBA”) for the period of April 20, 2007

through April 19, 2013, on behalf of the employees of the Engineer’s Office.

      {¶3}   As a result of his accident, appellant was on various leaves from October

2008 through February 14, 2011.        During his leaves, appellant collected workers’

compensation benefits.     The CBA requires unit members to share in the cost of

hospitalization-insurance benefits while on workers’ compensation after the employee

has been receiving workers’-compensation benefits for a certain period of time.

      {¶4}   Consistent with the terms of the CBA, the Engineer’s office continued to

provide hospitalization benefits to appellant during his periods of leave. Pursuant to the

CBA, appellant was required to pay appellees a total of $10,500.64 as his proportionate

share of the advanced hospitalization-insurance premiums.            Appellant made one

payment toward the premiums of $185.05 in 2009.            The outstanding balance of

$10,315.59 remained due. Appellees requested appellant to pay the unpaid balance,

but appellant did not do so.

      {¶5}   On December 15, 2015, appellees filed a complaint against appellant

asserting claims of breach of contract and unjust enrichment. The complaint sought

$10,315.59 reimbursement for appellant’s portion of accrued hospitalization insurance-




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benefit premiums while appellant was on workers’ compensation leave. Appellant filed

an answer and counterclaim against appellee, Randy L. Smith, Trumbull County

Engineer. The counterclaim was ultimately dismissed, after which appellant moved the

trial court for judgment on the pleadings.

       {¶6}   In his motion, appellant claimed the trial court lacked subject-matter

jurisdiction over appellees’ claims relating to the reimbursement of his portion of the

premiums. He maintained the claims fell under the exclusive jurisdiction of the State

Employee Relations Board (“SERB”), pursuant to R.C. Chapter 4117, as they arise from

or are dependent upon rights created by the CBA. In response, appellees argued the

trial court possessed subject-matter jurisdiction over the case because R.C. Chapter

4117 does not provide a procedure for SERB to intervene in a dispute regarding an

employee’s breach of a contractual obligation for contribution under the terms of a CBA;

and, because the claim does not involve or allege an unfair labor practice under the

statute, the court of common pleas possessed jurisdiction to proceed. The trial court

agreed with appellees and denied appellant’s motion.

       {¶7}   On June 27, 2016, appellees served a request for admissions, to be

answered within 28 days, upon appellant and filed a notice of discovery on June 29,

2016. Appellant did not respond to the request for admissions and, on August 5, 2016,

appellees moved to have the requests deemed admitted. Appellant did not respond to

this motion and, on August 24, 2016, the trial court deemed the requests admitted.

       {¶8}   Appellees filed a motion for summary judgment to which appellant

responded, again asserting his jurisdictional arguments. On February 27, 2017, the trial

court granted appellees’ motion and awarded them judgment in the amount of




                                             3
$10,315.59. Appellant now appeals and assigns two errors for our review. His first

assignment of error provides:

       {¶9}   “The trial court lacked subject matter jurisdiction over this lawsuit.”

       {¶10} Subject-matter jurisdiction is the power conferred upon a court, either by

constitutional provision or by statute, to decide a particular matter or issue on its merits.

State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). SERB is a state agency

created by R.C. Chapter 4117. R.C. 4117.02(A); see also State ex rel. Brecksville Edn.

Assn., OEA/NEA v. State Emp. Relations Bd., 74 Ohio St.3d 665, 666 (1996). As a

state agency and a creation of statute, SERB is limited to the authority and jurisdiction

conferred on it by statute. State ex rel. Ohio Civ. Serv. Emp. Assn. v. State, 146 Ohio

St.3d 315, 2016-Ohio-478, ¶51; see also Penn Cent. Transp. Co. v. Pub. Util. Comm.,

35 Ohio St.2d 97 (1973), paragraph one of the syllabus. “When the General Assembly

intends to vest an administrative agency with exclusive jurisdiction, it does so by

appropriate statutory language.” State ex rel. OCSEA, supra, at ¶52 citing State ex rel.

Banc One Corp. v. Walker, 86 Ohio St.3d 169, 171-172 (1999).

       {¶11} “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 Dept. of Mental Health v.

Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, ¶23; E. Cleveland v. E. Cleveland

Firefighters Local 500, I.A.F.F., 70 Ohio St.3d 125, 127-128 (1994). “Nowhere in R.C.

Chapter 4117 does the General Assembly assign SERB exclusive jurisdiction over all




                                              4
issues touching on that chapter’s provisions. Instead, the General Assembly targeted

specific issues for SERB to address in the first instance.” State ex rel. OCSEA, supra.

Indeed, the Supreme Court has “expressly acknowledged * * * that a plaintiff may raise

in the common pleas courts rights that exist independently of R.C. Chapter 4117, “‘even

though they may touch on the collective bargaining relationships.’” Id. at ¶54 quoting

Franklin Co. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge

No. 9, 59 Ohio St.3d 167, 172 (1991). Accordingly, “if a party asserts rights that are

independent of R.C. Chapter 4117, the party’s complaint may properly be heard in

common pleas court.” Id. at paragraph one of the syllabus. If, however, the party

advances claims that “arise from or depend on the collective bargaining rights created

by R.C. Chapter 4117,” SERB has exclusive, original jurisdiction. Id. at paragraph two of

the syllabus.

       {¶12} Appellant cites State ex rel. Fraternal Order of Police, Ohio Labor Council,

Inc. v. Court of Common Pleas of Franklin County, 76 Ohio St.3d 287 (1996), in support

of his position that SERB has exclusive jurisdiction over appellees’ claims. Appellant

emphasizes the Court’s observation that “any claim which is independent of R.C.

Chapter 4117, such as breach of contract or enforcement, still falls solely within the

jurisdiction of SERB if the asserted claim arises from or is dependent on the collective

bargaining rights created by R.C. Chapter 4117.” State ex rel. FOP/OLC, supra, at 290

citing State ex rel. Cleveland City School Dist. Bd. Of Education v. Pokorny, 105 Ohio

App.3d 108, 110 (8th Dist.1991). The Supreme Court, however, found the court of

common pleas patently and unambiguously lacked jurisdiction to proceed because the




                                           5
basis of the respondent’s claims were premised upon unfair labor practices as set forth

under R.C. 4117.11.

       {¶13} Similarly, appellant cites Franklin Co. Law Enforcement Assn., supra, for

the proposition that a court of common pleas lacks jurisdiction to decide “claims [that]

were dependent on the framework established in R.C. Chapter 4117.” Id. at 171. While

this statement is accurate, the plaintiffs in Franklin Co. Law Enforcement Assn. were

also asserting collective bargaining rights created by R.C. Chapter 4117, including

unfair labor practices under R.C. 4117.11(B); interference with their right to vote, under

R.C. 4117.07; and a third claim that was derivative of R.C. 4117.19(C).

       {¶14} Appellant additionally cites State ex rel. City of Cleveland v. Satula, 127

Ohio St.3d 131 (2010), for the blank proposition that “‘SERB has exclusive jurisdiction

over matters within R.C. Chapter 4117 in its entirety, not simply over unfair labor

practices claims.’” Id. quoting Assn. of Cleveland Fire Fighters, Local 93 of the Internatl.

Assn. of Fire Fighters v. Cleveland, 156 Ohio App.3d 368, 2004-Ohio-994, ¶12 (8th

Dist.) Again, Satula dealt with claims that fell squarely within R.C. Chapter 4117, to wit:

various unfair labor practice claims under R.C. 4117.11(A).

       {¶15} The instant facts are distinguishable from the foregoing cases.          Here,

neither party made an allegation relating to an unfair labor practice; rather, appellees

sought remuneration for appellant’s failure to pay his proportional share of the

hospitalization-insurance premium.     Although appellant’s duty to pay his share and

appellees’ right to reimbursement arise out of the CBA, there is no provision under R.C.

Chapter 4117 that creates such rights or obligations. And appellant does not direct this

court to any provision of R.C. Chapter 4117 under which the instant breach of contract




                                             6
and/or unjust enrichment claims might arguably fall. In our view, therefore, appellees’

right to reimbursement is independent of the rights created by R.C. Chapter 4117 and,

pursuant to, inter alia, State ex rel. OCSEA, supra, the court of common pleas properly

exercised jurisdiction over the case.    See also R.C. 4117.09(B)(1) (“A party to the

agreement may bring suits for violation of agreements or the enforcement of an award

by an arbitrator in the court of common pleas of any county wherein a party resides or

transacts business.”)

       {¶16} Notwithstanding his claim that SERB possesses exclusive jurisdiction,

appellant alternatively argues that, because the CBA contains a binding grievance and

arbitration provision, arbitration is the exclusive means of resolving the underlying

dispute.   Article 8, Section 2 of the CBA, however, makes it clear that “[t]he word

‘grievance’ as used in this Agreement refers to an alleged failure of the Employer to

comply with the provisions of this Agreement or the law.” (Emphasis added.) In this

case, appellee, the employer, is bringing suit for breach of the CBA against an

employee.     Accordingly, by definition, the underlying claims do not constitute a

“grievance” under the CBA.

       {¶17} Appellant’s first assignment of error lacks merit.

       {¶18} Appellant’s second assignment of error provides:

       {¶19} “The evidence in the record now before this honorable court does not

resolve all issues of material fact.”

       {¶20} Summary judgment is a procedural tool that terminates litigation and thus

should be entered with caution. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66

(1993). Summary judgment is proper where (1) there is no genuine issue of material




                                            7
fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law;

and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion

favors the movant. See, e.g., Civ.R. 56(C).

      {¶21} When evaluating a motion for summary judgment, the trial court may not

weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal

Co., 64 Ohio St.2d 116, 121 (1980). Instead, all questions must be resolved in the

nonmoving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359 (1992).

Hence, a trial court must overrule a motion for summary judgment where conflicting

evidence exists and alternative reasonable inferences can be drawn. Pierson v. Norfork

Southern Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, ¶36. In short,

the central issue on summary judgment is, “whether the evidence presents sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252

(1986). An appellate court reviews a trial court’s entry of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

      {¶22} In June of 2016, appellees served various requests for admissions on

appellant.   Among these requests were (a) whether appellant admitted he owed

$10,500.64 in unpaid contributions for health-insurance premiums; (b) whether,

pursuant to his obligation to contribute, appellant made a payment of $185.05 towards

the amount owed; and (c) whether the calculations were true and accurate. Appellant

failed to timely respond and appellees moved that the requests be deemed admitted.




                                              8
On August 24, 2016, without objection, the trial court deemed the requests admitted

facts of record.

          {¶23} Appellees filed their motion for summary judgment and attached the

affidavit of Nicole A. Klingeman, Fiscal Officer at the Trumbull County Engineer’s Office.

Ms. Klingeman’s affidavit recited the background facts in support of the alleged breach

of contract/unjust enrichment claims. Specifically, Ms. Klingeman averred appellant was

absent from employment and receiving applicable sick leave and Workers’

Compensation benefits for a period extending from October 20, 2008 through February

14, 2011; that appellant is a union employee and was provided hospitalization/insurance

benefits pursuant to two CBAs, which were applicable during the period of his absence;

and that, pursuant to the CBAs, appellant was required to pay a proportionate share of

the cost of hospitalization insurance benefits during his absence for a work-related

injury.

          {¶24} Ms. Klingeman detailed the relevant portions of the CBAs, and itemized

the proportional amount for which appellant was responsible. She averred the financial

records of the Trumbull County Engineer’s Office indicated appellant failed to pay a total

of $10,315.59 of what he owed, pursuant to the agreement. In effect, the affidavit

substantiated, in greater detail, the facts and figures which were deemed admitted by

the trial court.

          {¶25} Appellant maintains that, notwithstanding the foregoing uncontested facts,

there remain material issues of fact to be resolved because they do not address a

precept that appellant designates the “law-of-the-shop” doctrine. According to appellant,

this principle requires an employer to apply provisions of a CBA not simply by the letter




                                              9
of the contract, but also in the context of the customs of the plant or office in which the

CBA is being applied. In support, appellant cites United Steelworkers of America v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 579-580 (1960). In that case, the United

States Supreme Court observed:

      {¶26} “[I]t is not unqualifiedly true that a collective-bargaining agreement
            is simply a document by which the union and employees have
            imposed upon management limited, express restrictions of its
            otherwise absolute right to manage the enterprise, so that an
            employee’s claim must fail unless he can point to a specific contract
            provision upon which the claim is founded. There are too many
            people, too many problems, too many unforeseeable contingencies
            to make the words of the contract the exclusive source of rights and
            duties. One cannot reduce all the rules governing a community like
            an industrial plant to fifteen or even fifty pages. Within the sphere of
            collective bargaining, the institutional characteristics and the
            governmental nature of the collective-bargaining process demand a
            common law of the shop which implements and furnishes the
            context of the agreement. We must assume that intelligent
            negotiators acknowledged so plain a need unless they stated a
            contrary rule in plain words.” (Citation omitted) Id.

      {¶27} Appellant maintains the foregoing, in light of an affidavit he attached to his

memorandum in opposition, which indicated the Engineer’s Office had previously failed

to require a separate employee to pay premiums, creates a genuine issue of material

fact. We do not agree.

      {¶28} Preliminarily, appellant did not directly raise the “law-of-the-shop” issue in

his memorandum in opposition. The affidavit of Judene Ainsley, attached to appellant’s

memorandum, averred that the Engineer’s Office did not pursue insurance premium

contribution payments from a separate employee injured on the job. This averment,

however, represents an isolated instance and cannot be viewed as a so-called “law of

the shop.” Because the issue was not directly raised below, appellant has waived the

issue on appeal.



                                            10
      {¶29} Even if appellant preserved the issue, it would still lack merit. The CBA in

the instant case sets forth in a plain, yet detailed, manner, an employee’s duty to

reimburse the employer for express percentages of advanced health-insurance

premiums during workers’-compensation leave. Even assuming the Engineer’s Office

failed to demand payment from a previous employee, this does not affect appellant’s

duty to pay his premiums in the instant case. The failure to make a demand in an

isolated case does not establish an institutional custom. Moreover, the quoted portion of

the foregoing case suggests the “law-of-the-shop” doctrine applies to a union’s and/or

employees’ ability to place certain restraints upon employers, not simply by recourse to

a CBA, but by reference to the context and customs of the occupational institution. This

does not imply an employee can avoid his or her obligations, to which he or she agreed,

under an unambiguous provision of a CBA.

      {¶30} Appellees established appellant owed them $10,315.59 in unpaid

hospitalization insurance premiums.     Appellant failed to create a genuine issue of

material fact relating to his obligation to pay this amount. We therefore hold appellees

were entitled to judgment on their claim of breach of contract as a matter of law.

      {¶31} Appellant’s second assignment of error lacks merit.

      {¶32} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

                               ______________________




                                            11
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

      {¶33} I respectfully dissent and would reverse the trial court, recognizing the

SERB’s exclusive jurisdiction over the Commissioners’ claims that Gatti has violated the

Collective Bargaining Agreement.     Contrary to the majority’s position, the SERB’s

exclusive jurisdiction has been interpreted by the Ohio Supreme Court to encompass

more than concrete violations of R.C. Chapter 4117. Rather, that jurisdiction extends to

“matters within R.C. Chapter 4117 in its entirety, not simply over unfair labor practice

claims.” (Citation omitted.) State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2010-

Ohio-5039, 937 N.E.2d 88, ¶ 20.

      {¶34} The Ohio Supreme Court re-affirmed its position in State ex rel. Ohio Civ.

Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, stating

that, “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.” (Citation omitted.) Id. at ¶ 63; State ex rel. Fraternal Order of Police v.

Franklin Cty. Court of Common Pleas, 76 Ohio St.3d 287, 290, 667 N.E.2d 929 (1996)

(“[a]ny claim which is independent of R.C. Chapter 4117, such as a breach of contract

or enforcement, still falls solely within the jurisdiction of SERB if the asserted claim

arises from or is dependent on the collective bargaining rights created by R.C. Chapter

4117”).

      {¶35} The Commissioners’ claims in the present case arise from Article 12,

Section 12 of the Collective Bargaining Agreement, captioned Hospitalization and

Workers’ Compensation Leave of Absence. Pursuant to R.C. 4117.08(A), benefits such

as hospitalization are mandatory subjects of collective bargaining: “All matters




                                           12
pertaining to wages, hours, or terms and other conditions of employment * * * are

subject to collective bargaining between the public employer and the exclusive

representative * * *.”1 See also R.C. 4117.10(A) (“[a]n 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

agreement”).

        {¶36} Since the Commissioners’ claims concern the wages and terms of Gatti’s

employment necessarily subject to the Collective Bargaining Agreement, the SERB has

exclusive jurisdiction of the claims. Couch v. Ohio Civ. Serv. Emps. Assn., 3d Dist.

Allen No. 1-10-45, 2010-Ohio-6258, ¶ 25 (“[t]he trial court correctly recognized that

Appellants’ claims are a seniority dispute governed by the terms and conditions of

employment established in a CBA between the parties, and that it did not have subject

matter jurisdiction pursuant to R.C. 4117”); Carter v. Trotwood-Madison City Bd. of

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

(“[b]ecause the matters alleged in the present case [denial of requests for retirement

incentives] arise from, or depend upon, the collective bargaining agreement, we

conclude that SERB has exclusive jurisdiction over Carter and Toney’s claims”); State

ex rel. Cleveland City School Dist. Bd. of Edn. v. Pokorny, 105 Ohio App.3d 108, 111,

663 N.E.2d 719 (8th Dist.1995) (“[t]he ability of Taylor to receive assault leave benefits

is related directly to the past and present collective bargaining agreements and as such

must be addressed through the remedies provided by R.C. Chapter 4117”).



1. Admittedly, appellant’s counsel did not “direct this court to any provision of R.C. Chapter 4117 under
which the instant breach of contract action and/or unjust enrichment claims might arguably fall.” Supra at
¶ 15. A court’s subject matter jurisdiction, however, is not determined by the arguments put forth by the
litigants. Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19.


                                                   13
       {¶37} For the foregoing reasons, I respectfully dissent and would reverse the

decision of the trial court.




                                         14
