[Cite as Mun. Constr. Equip. Operators' Labor Council v. Cleveland, 197 Ohio App.3d 1, 2011-Ohio-5834.]




                     Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96673


          MUNICIPAL CONSTRUCTION EQUIPMENT
             OPERATORS’ LABOR COUNCIL,
                                                 APPELLANT,

                                                    v.


                               CITY OF CLEVELAND,
                                                 APPELLEE.



                                          JUDGMENT:
                                           AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-739944

        BEFORE: KILBANE, A.J., ROCCO, J., and E. GALLAGHER, J.

        RELEASED AND JOURNALIZED:                     November 10, 2011
ATTORNEYS:

Climaco, Wilcox, Peca, Tarantino & Gar and Stewart D. Roll, for appellant.

Zashin & Rich Co., L.P.A., and Jon M. Dileno, for appellee.
         MARY EILEEN KILBANE, Administrative Judge.

         {¶ 1} Plaintiff-appellant, Municipal Construction Equipment Operators’ Labor Council,

appeals from the orders of the trial court that struck its motion to vacate and modify an

arbitration award entered in favor of defendant-appellee, the city of Cleveland, confirmed that

award, and denied the union’s complaint for declaratory judgment. For the reasons set forth

below, we affirm.

         {¶ 2} In 2007, following an election conducted pursuant to R.C. 4117.07(C), the State

Employment Relations Board (“SERB”) certified the union as the exclusive representative of a

bargaining       unit    composed         of    a    group     of    employees         in   Cleveland’s        water      and

property-management divisions.                 State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131,

2010-Ohio-5039, 937 N.E.2d 88. The parties entered into a collective-bargaining agreement on

February 5, 2007.

         {¶ 3} Under the parties’ collective-bargaining agreement (“CBA”), a four-step procedure

is in place to deal with individual and group grievances.1                      The grievance must be reduced to

writing within ten working days of the event, but it may be amended at any time prior to the start

of Step 3 proceedings. If the grievance procedure has not resolved the parties’ dispute, the

parties may submit the matter to final and binding arbitration.




         1
            A grievance is defined as “a dispute or difference between the city and employee(s) or the city and the union
concerning the interpretation and/or application of and/or compliance with any provision(s) of this Contract, including any and
all disciplinary actions.”
         {¶ 4} The undisputed facts indicate that on December 7, 2009, the city sent a letter to the

union requesting various wage and benefit concessions in order to help balance the city’s budget

and avert layoffs.     This was followed by a counterproposal to the union membership for

ratification. The union rejected the counterproposal on December 22, 2009, and later that day,

the city announced the layoff of five water-plant operators. The union’s counsel then inquired

whether the city would rescind the layoffs in exchange for other concessions proposed by the

union.

         {¶ 5} On December 23, 2009, the union filed a grievance, alleging that the layoffs were

not due to lack of work or lack of funds. On January 4, 2010, prior to the completion of Step 1

of the grievance, the union voted to accept wage and benefit concessions and signed a

memorandum of understanding that amended the collective-bargaining agreement.

         {¶ 6} The city maintained that the union’s grievance had become moot, but the union

maintained that it had entered into the memorandum of understanding by duress in order to avoid

the announced layoffs.

         {¶ 7} The grievance proceeded to Step 2, then to Step 3, where the union repeated its

position that the layoffs were not the result of lack of work or lack of funds and that the

memorandum of understanding was obtained by duress. The city again denied the grievance.

         {¶ 8} On April 16, 2010, the union demanded arbitration and sought reinstatement of the

workers and restoration of all lost wages and benefits. The city maintained that the request for

arbitration had become moot and that by adding the issue of duress, the union had materially

altered the grievance. The issue of arbitrability was separated from the remaining issues, and,
after considering the parties’ briefs and exhibits, the arbitrator issued an opinion finding that the

matter was not arbitrable. The arbitrator wrote:

               [N]o layoffs occurred; the city rescinded the layoffs on January 8, 2010.
               Consequently, the union’s grievance of the matter is moot, because the
               union seeks a judgment and remedy on a controversy that no longer exists.
               ***

                      The union argues that the original grievance was amended to
               include the issue of duress, which remains to be decided. Article 38,
               Paragraph 106 [of the collective bargaining agreement] allows the union to
               amend a grievance at any time up to the start of the Step 3 meeting and the
               union amended the grievance prior to the city’s Step 3 response.

                       The Arbitrator agrees that once the layoffs did not occur, the
               original grievance was moot. There was no longer a controversy
               regarding proposed layoffs. If the union believed that it had entered into
               the [memorandum of understanding] on January 4, 2010, under duress, the
               union had 10 working days to file a grievance on the matter. However,
               the union did not reduce the issue of duress to writing until March 19,
               2010, when it attempted to amend the moot grievance. Even if the
               amendment is viewed as a new grievance addressing a viable controversy,
               the grievance was filed approximately two months too late.

                       ***

                       The issue of duress does not involve the interpretation and/or
               application and/or compliance with the provisions of this Contract. The
               issue of duress is an issue of law and the parties agreed the arbitrator has
               no jurisdiction over issues of law.

       {¶ 9} On October 26, 2010, the union filed a complaint with the court of common pleas

in which it sought an order vacating the arbitrator’s award pursuant to R.C. 2711.10 and

resolution of the duress claim by declaratory-judgment.          The clerk of courts served the

complaint on the city on November 2, 2010, but it was not served on outside counsel retained by

the city in this matter, as required by R.C. 2711.13.
         {¶ 10} On November 24, 2010, the union filed a notice of filing of a motion and a

memorandum to vacate and modify the arbitration award, in which it again sought vacation of the

award under the provisions of R.C. 2711.10, and argued that it had acted within the three-month

time period of R.C. 2711.13, since the arbitration award was not mailed or personally delivered

to it as required by Rule 40 of the American Arbitration Association (“AAA”).

         {¶ 11} Also on November 24, 2010, the city filed a motion to confirm the arbitration

award and/or strike the union’s motion to vacate the arbitration award, claiming that the union

had not filed a motion to vacate the award and that the union’s challenge to the arbitration award

was not filed and served upon the city’s counsel within the three-month time period established

in R.C. 2711.13.2          The city additionally filed a motion to dismiss the declaratory-judgment

claim for lack of subject-matter jurisdiction, arguing that such claims are within the exclusive

jurisdiction of SERB. On December 13, 2010, the city filed a motion to strike the union’s

motion and memorandum to vacate the award of the arbitrator as untimely.

         {¶ 12} On March 9, 2011, the trial court granted the city’s motion to confirm the

arbitration award and to strike the union’s motion and memorandum to vacate and modify the

arbitration award as untimely. On March 14, 2011, the trial court granted the city’s motion to

dismiss the declaratory-judgment claim for lack of subject-matter jurisdiction. The union now

appeals and assigns three errors for our review.

         {¶ 13} The first assignment of error states:




         2
          The city maintained that the arbitrator e-mailed the decision on August 20, 2010, the AAA e-mailed it on August 23,
2010, and that the union filed its motion one day past the statutory deadline (November 24, 2010) and served it two days past the
deadline (November 25, 2010).
                     The trial court erred by granting Defendant/Appellee’s March 10,
               2011 Civ.R. 12(F) motion to strike Plaintiff/Appellant’s motion and
               memorandum to modify and strike the arbitration award.

       {¶ 14} Within this assignment of error, the union asserts that the city improperly invoked

Civ.R. 12(F) to dismiss its complaint.   The union additionally claims that the trial court erred by

failing to treat its complaint as a “motion to vacate the arbitration award” within the meaning of

R.C. 2711.13 and in determining that its motion and memorandum to vacate were untimely.

       {¶ 15} As to the applicability of Civ.R. 12(F), proceedings involving the confirmation or

vacation of an arbitration award are special statutory proceedings. MBNA Am. Bank, N.A. v.

Anthony, Tuscarawas App. No. 05AP090059, 2006-Ohio-2032, 2006 WL 1063752.                    Civ.R.

1(C) provides that the civil rules are by definition not to apply to procedural matters in special

statutory proceedings “to the extent that they would by their nature be clearly inapplicable.” Id.;

Buyer’s First Realty v. Cleveland Area Bd. of Realtors (2000), 139 Ohio App.3d 772, 745

N.E.2d 1069.

       {¶ 16} Under Civ.R. 12(F),

               [u]pon motion * * * the court may order stricken from any pleading any
               insufficient claim or defense * * *.

       {¶ 17} Pursuant to R.C. 2711.09, when a motion is made to confirm an arbitration award,

the court shall grant the motion if it is made within one year of the award, unless a timely motion

for modification or vacation has been made and cause to modify or vacate is shown. The

motion to modify or vacate must be made within three months of the award, pursuant to R.C.

2711.13.

       {¶ 18} Applying the foregoing, we conclude that in general, proceedings to confirm or

vacate an arbitration award involve neither pleadings nor insufficient claims in pleadings. Thus,
Civ.R. 12(F) is generally not germane to such proceedings. Nonetheless, the union filed a

complaint in this matter, and the city, though citing Civ.R. 12(F), also invoked R.C. 2711.10 and

2711.13 in support of its motion to strike.     In this particular matter, therefore, in light of the

unique procedural history, we cannot conclude that the city’s brief citation of Civ.R. 12(F) was

prejudicial or erroneous.

       {¶ 19} As to whether a party may file a complaint in order to challenge an arbitration

award, R.C. 2711.13 provides for “[n]otice of a motion to vacate, modify, or correct an award

[which] must be served upon the adverse party or his attorney within three months after the

award is delivered to the parties in interest, as prescribed by law for service of notice of a motion

in an action.”

       {¶ 20} There is authority that permits the challenge to an arbitration award by

“complaint,” Bailey v. Ohio Dept. of Transp., Franklin App. No. 07AP-849, 2008-Ohio-1513,

2008 WL 852616, but in a word of caution that court noted, “While a trial court may have some

flexibility with procedural rules, it lacks that flexibility when a party raises the expiration of the

applicable statute of limitations as a defense.” See also Gonda & Assoc. v. Flynn, Cuyahoga

App. No. 93566, 2010-Ohio-679 (stating, without criticism, that a complaint had been used to

challenge the arbitration award).

       {¶ 21} Nonetheless, unlike a complaint, the motion filed under R.C. 2711.13 does not

require that the clerk of courts issue summons and perfect service. Instead, service must be

perfected by service on the attorneys for the parties prior to filing the application.   Cleveland v.

Laborers Internatl. Union Local 1099, Cuyahoga App. No. 92983, 2009-Ohio-6313, 2009 WL

4406081. Thus, the motion must “be ‘served upon the adverse party or his attorney within three
months after the award.’ ” Id.; Thomas v. Franklin Cty. Sheriff’s Office (1998), 130 Ohio

App.3d 153, 156, 719 N.E.2d 977. Galion v. Am. Fedn. of State, Cty. & Mun. Emp. (1995), 71

Ohio St.3d 620, 646 N.E.2d 813.

        {¶ 22} As to the start of the three-month period, the union insists that the award must be

mailed by traditional mail under Rule 40 of the Labor Arbitration Rules. We recognize that

under the traditional view, the postmark date was deemed controlling.       See Citibank S. Dakota,

N.A. v. Wood, 169 Ohio App.3d 269, 2006-Ohio-5755, 862 N.E.2d 576, citing Girard v.

AFSCME Ohio Council 8, Local Union 3356, Trumbull App. No. 2003-T-0098,

2004-Ohio-7230, 2004 WL 30901889. However, subsequent to July 1, 2005, pursuant to Rule

36 and Rule 37 of the Labor Arbitration Rules, an award is rendered when it is transmitted by

e-mail to the parties:

                         36. Serving of Notice

                         Each party to a submission or other agreement that provides for
                arbitration under these rules shall be deemed to have consented and shall
                consent that any papers, notices, or process necessary or proper for the
                initiation or continuation of an arbitration under these rules; for any court
                action in connection therewith, or for the entry of judgment on an award
                made thereunder may be served upon the party by mail addressed to the
                party, or its representative at the last known address or by personal service,
                in or outside the state where the arbitration is to be held. The AAA and
                the parties may also use facsimile transmission, telex, telegram, or other
                written forms of electronic communication to give the notices required by
                these rules.

                         37. Time of the Award

                        The award shall be rendered promptly by the arbitrator and, unless
                otherwise agreed by the parties or specified by law, no later than 30 days
                from the date of closing the hearings as provided in Section 31, with five
                additional days for mailing if briefs are to be filed or other documents are
                to be transmitted pursuant to Section 28.
                        If oral hearings have been waived, the award shall be rendered no
                later than 30 days from the date of transmitting the final statements and
                proofs to the arbitrator.

                       The award shall be deemed to be “rendered” on the date it is
                postmarked or otherwise transmitted to the AAA by the arbitrator, whether
                by regular mail, electronically, or by telephone facsimile.

                        If an award is transmitted electronically or by facsimile, the
                arbitrator shall promptly deliver an original copy to the AAA.



        {¶ 23} Moreover, Rule 40 states:

                Parties shall accept as legal delivery of the award the placing of the award

                or a true copy thereof in the mail by the AAA, addressed to the party at its

                last known address or to its representative; personal service of the award;

                or the filing of the award in any other manner that is permitted by law.

        {¶ 24} Thus, we conclude that the decision was rendered when it was transmitted by the

arbitrator by e-mail on August 20, 2010.         Accord Laborers Internatl. Union Local 1099.

Accordingly, the three-month period was triggered at the latest as of August 23, 2010, the date on

which the AAA e-mailed it to the parties. Here, the motion to vacate the arbitrator’s award was

not filed and served upon counsel for the city until November 24, 2010. Thus, because the

union failed to file and serve within the three-month time period, the trial court properly granted

the city’s motion to strike.

        {¶ 25} The first assignment of error is without merit.

        {¶ 26} The second assignment of error states:

                       The trial court erred in its dismissal of Counts I and II of the
                Complaint, which respectively sought vacation of an arbitration award,
                and sought declaratory relief, for lack of subject-matter jurisdiction.
       {¶ 27} In this assignment of error, the union maintains that the trial court had

subject-matter jurisdiction to address both its claim to vacate the arbitrator’s award under R.C.

2711.10, and its claim that the wage concessions were obtained by duress.

       {¶ 28} The three-month deadline set forth in R.C. 2711.13 for filing and serving a motion

to vacate an arbitration award is mandatory and jurisdictional. Galion v. Am. Fedn. of State,

Cty. & Mun. Emp., Ohio Council 8, AFL-CIO, Local 2243, 71 Ohio St.3d at 622, 646 N.E.2d

813. As we noted previously, this mandatory and jurisdictional deadline was not met herein.

Therefore, this claim for relief was properly dismissed.

       {¶ 29} With regard to the claim for declaratory judgment on the issue of whether the

wage concessions were obtained by duress, we note, with regard to procedure, that the Galion

court additionally held, at paragraph two of the syllabus:

                        R.C. Chapter 2711 provides the exclusive statutory remedy which
                parties must use in appealing arbitration awards to the courts of common
                pleas. An action in declaratory judgment cannot be maintained to
                circumvent the clear legislative intent of R.C. Chapter 2711.

       {¶ 30} The court explained:

                        If we were to sanction the use of declaratory relief in this case, then
                parties challenging arbitration awards would be able to bypass the
                stringent requirements that are needed to overturn, modify, or correct an
                arbitration award.

       {¶ 31} Moreover, with regard to the substantive nature of the claim, SERB has exclusive

jurisdiction where the claims “arise from or depend on the collective bargaining rights created by

R.C. Chapter 4117.” Id. This includes conduct that constitutes unfair labor practices under

R.C. 4117.11.    Id.   Changes in compensation that are alleged to have occurred outside of the

collective-bargaining process set forth a violation of R.C. 4117.11 that prohibits the restraint or
coercion of employees in the exercise of their collective-bargaining rights.3                               See Consolo v.

Cleveland, 103 Ohio St.3d 362, 2004-Ohio-5389, 815 N.E.2d 1114.

          {¶ 32} In accordance with the foregoing, we are compelled to conclude that the second

claim for relief, the declaratory judgment asserting that the city obtained wage concessions from

the union through duress, was properly dismissed. The declaratory-judgment action was not the

proper procedure in which to raise that challenge.                          Further, the claim is dependent upon

collective-bargaining rights created by R.C. Chapter 4117 and essentially asserts that the city

engaged in an unfair labor practice by determining wages outside of the collective-bargaining

process, by coercion, in violation of R.C. 4117.11(B).

          {¶ 33} The second assignment of error is therefore without merit.

          {¶ 34} The third assignment of error states:

                            The trial court erred in its March [14, 2011] journal entry granting
                   Defendant/Appellee’s motion to confirm the arbitration award without
                   first holding a hearing.

         {¶ 35} The union next asserts that pursuant to R.C. 2711.09, the trial court was required

to hold a hearing before confirming the arbitration award and that the court should have held a

hearing to probe the issues of the arbitrator’s failure to hold a hearing, and the arbitrator’s

determination that it could not decide the issue of duress.

          {¶ 36} R.C. 2711.09 governs orders to confirm an arbitration award and provide for a

hearing. CACV of Colorado, L.L.C. v. Hillman, Union App. No. 14-09-18, 2009-Ohio-6235,

2009 WL 4263330. Nonetheless, where the party challenging the arbitration award has failed to

          3
           R.C. 4117.11(B) provides: “It is an unfair labor practice for an employee organization, its agents, or representatives,
or public employees to:
          (1) Restrain or coerce employees in the exercise of the rights guaranteed in Chapter 4117. * * *
          (2) Cause or attempt to cause an employer to [commit an unfair labor practice].”
comply with the statutory time limits, no hearing is necessary because the “trial court’s authority

is limited to granting or denying the application to confirm the arbitration award.” Id.

       {¶ 37} In this matter, because the union did not file its challenge within the three-month

limitations period, the trial court’s authority was limited to denying the application to confirm the

arbitration award, so the failure to hold a hearing does not constitute prejudicial error. CACV of

Colorado, L.L.C.;    Brookdale Senior Living v. Johnson-Wylie, Cuyahoga App. No. 95129,

2011-Ohio-1243, 2011 WL 917386 (where a party is provided ample opportunity to be heard

through the pleadings process and pretrial conferences, a hearing is not required by R.C.

2711.09).

       {¶ 38} The third assignment of error is without merit.



                                                                                Judgment affirmed.



       ROCCO and GALLAGHER, JJ., concur.

                                       _______________________
