[Cite as Bair v. Ohio Dept. of Mental Health, 2013-Ohio-2589.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


JEFFREY R. BAIR                                       :    JUDGES:
                                                      :
                                                      :    Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellant                            :    Hon. Patricia A. Delaney, J.
                                                      :    Hon. Craig R. Baldwin, J.
-vs-                                                  :
                                                      :    Case No. 2012 AP 08 0053
                                                      :
OHIO DEPARTMENT OF MENTAL                             :
HEALTH, ET AL.                                        :
                                                      :
                                                      :
       Defendants-Appellees                           :    OPINION

CHARACTER OF PROCEEDING:                                   Appeal from the Tuscarawas County
                                                           Court of Common Pleas, Case No.
                                                           2012-CV-01-0023

JUDGMENT:                                                  AFFIRMED IN PART; REVERSED
                                                           AND REMANDED IN PART

DATE OF JUDGMENT ENTRY:                                    June 17, 2013

APPEARANCES:

For Plaintiff-Appellant:                                   For Defendant-Appellee Ohio Dept. of
                                                           Mental Health:
S. DAVID WORHATCH
4920 Darrow Road                                           MICHAEL DEWINE
Stow, OH 44224-1406                                        Ohio Attorney General
                                                           MATTHEW J. KARAM
                                                           JOSEPH N. ROSENTHAL
                                                           30 E. Broad St., 23rd Floor
                                                           Columbus, OH 43215

                                                           For Defendant-Appellee SEIU District
                                                           1199:

                                                           CATHERINE J. HARSHMAN
                                                           3360 Tremont Rd., Suite 230
                                                           Columbus, OH 43221
Tuscarawas County, Case No. 2012 AP 08 0053                                          2

Delaney, J.

       {¶1} Plaintiff-Appellant Jeffrey R. Bair appeals the July 23, 2012 judgment

entry of the Tuscarawas County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Defendant-Appellee Ohio Department of Mental Health (“ODMH”)

employed Plaintiff-Appellant Jeffrey R. Bair as a psychiatric/MR nurse at a Heartland

Behavioral Healthcare facility until ODMH terminated Bair’s employment on November

10, 2010.     During Bair’s employment, Bair was a member of good standing in

Defendant-Appellee Service Employees International Union, District 1199, The Health

Care and Social Service Union, Change to Win, CLC (“the Union”). ODMH and the

Union were governed by a collective bargaining agreement, effective from June 1, 2009

to May 31, 2013 (“CBA”).

       {¶3} Based on events that occurred after Bair’s termination, Bair filed a

complaint in the Tuscarawas County Court of Common Pleas that named the Ohio

Department of Mental Health, the Service Employees International Union, District 1199,

The Health Care and Social Service Union, Change to Win, CLC and Susan Grody

Ruben as Defendants. In the January 10, 2012 complaint and relevant to the within

appeal, Bair alleged the following:

       11. Bair and the Union initiated a grievance on Bair’s behalf by filing the

       same on November 23, 2010, in the manner recognized and followed by

       management and the Union for the perfection of grievances. A copy of

       the standards for adjusting grievances submitted on behalf of collective

       bargaining unit members at HBH [Heartland Behavioral Healthcare] is
Tuscarawas County, Case No. 2012 AP 08 0053                                           3


      found in Article 7 of the Union Contract, a copy of which is reproduced at

      Exhibit C attached to this complaint.

      12. On January 27, 2011, the Union expressly consented to the

      designation of S. David Worhatch, Esq., Bair’s private counsel, as its

      representative for the Step 1 conference under the grievance procedure

      outlined in Section 7.06 of Article 7 of the Union Contract. Mr. Worhatch

      represented the interests of Bair and the Union at such conference.

      13. On February 10, 2011, management communicated the results of the

      Step 1 conference to Bair, the Union, and Bair’s private counsel,

      essentially sustaining the decision of the appointing authority in removing

      Bair from his position with HBH.

      14. On February 24, 2011, the Union expressly consented to the

      designation of S. David Worhatch, Esq., Bair’s private counsel, as its

      representative for pursuing mediation and/or arbitration of the grievance

      filed on Bair’s behalf. On the same date, both the Union (by way of a

      notice of intent to arbitrate) and Mr. Worhatch (by way of notice of demand

      for arbitration) invoked the remedies at Step 2 of the grievance process

      outlined in Section 7.06 of Article 7 of the Union Contract, electing thereby

      to bypass mediation and proceed directly to arbitration of the grievance

      submitted on Bair’s behalf.

      {¶4} An arbitration hearing was convened on June 15, 2011 before the

arbitrator, Susan Grody Ruben. On October 10, 2011, Ruben issued her Arbitrator’s

Opinion and Award, finding ODMH had just cause to terminate Bair’s employment. In
Tuscarawas County, Case No. 2012 AP 08 0053                                            4


the Arbitrator’s Opinion and Award, Ruben named the Union and the State of Ohio as

the parties. The Arbitrator’s Opinion and Award was attached to Bair’s complaint.

      {¶5} Count One of Bair’s complaint was a declaratory judgment action pursuant

to Chapter 2721 of the Ohio Revised Code. He argued that pursuant to violations by

the arbitrator as to the CBA time guidelines regarding grievances, the arbitrator did not

have jurisdiction over his grievance.       Because his claim was not arbitrable, Bair

asserted he could bring his wrongful termination claim to the court of common pleas.

      {¶6} Count Two of Bair’s complaint alleged a breach of contract of the CBA by

ODMH based on its wrongful termination of Bair’s employment.

      {¶7} Count Three of the complaint was a motion to vacate, modify, or correct

the arbitration award pursuant to Chapter 2711 of the Ohio Revised Code.

      {¶8} On February 10, 2010, in lieu of filing an answer to the complaint, ODMH

filed a motion to dismiss pursuant to Civ.R. 12(B)(1) and 12(B)(6).          The Union

simultaneously filed a motion to dismiss.

      {¶9} Bair filed a Motion for Summary Judgment on Count One of his complaint.

      {¶10} The trial court held an oral hearing on the pending motions to dismiss and

motion for summary judgment. On July 23, 2012, the trial court issued its decision on

both motions. The trial court granted the motion to dismiss as to all three counts of

Bair’s complaint. As to Bair’s declaratory judgment action, the trial court found that

declaratory judgment was the improper vehicle for appealing an arbitration award

pursuant to Chapter 2711 of the Ohio Revised Code. On Count Two of the complaint,

the trial court found that R.C. 4117.10(A) prevented Bair from bringing a breach of

contract action. Finally, the trial court dismissed Count Three of the complaint because
Tuscarawas County, Case No. 2012 AP 08 0053                                                   5


Bair was not a party to the arbitration, Bair could not individually petition the trial court to

vacate the arbitration award. Based on its decision as to Count One in the motion to

dismiss, the trial court denied Bair’s motion for summary judgment as moot.

       {¶11} It is from this decision Bair now appeals.

                                ASSIGNMENTS OF ERROR

       {¶12} Bair raises two Assignments of Error:

       {¶13} “I. BAIR HAS ‘STANDING’ TO PROSECUTE A CHALLENGE TO THE

ARBITRATION AWARD UNDER CHAPTER 2711 OF THE OHIO REVISED CODE.

       {¶14} “II.   THE      COURT      BELOW        ERRED      IN    DISMISSING        BAIR’S

INDEPENDENT CLAIM FOR DECLARATORY RELIEF UNDER CHAPTER 2721 OF

THE OHIO REVISED CODE AS ‘INAPPROPRIATE’ AND DENYING HIS MOTION FOR

SUMMARY JUDGMENT ON THAT CLAIM AS ‘MOOT.’”

       {¶15} On page one of Bair’s appellate brief, under the heading of “Statement of

the Assignments of Error,” Bair lists five additional Assignments of Error that are

different from the above-quoted. In the body of the appellate brief, Bair does not direct

his arguments under the five Assignments of Error but rather under the two

Assignments of Error.      Pursuant to App.R. 16, we consider the two above-quoted

Assignments of Error in our analysis.

                                         ANALYSIS

                                               I.

       {¶16} In Bair’s first Assignment of Error, he argues the trial court erred in

dismissing his complaint. We agree in part.
Tuscarawas County, Case No. 2012 AP 08 0053                                            6


                                   Standard of Review

       {¶17} The standard of review on a Civil Rule 12(B)(6) motion to dismiss is de

novo. Greely v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d

981 (1990). We need not defer to the trial court's decision in such cases. Estate of

Heath v. Grange Mut. Cas. Co., 5th Dist No. 02CAE05023, 2002-Ohio-5494, ¶ 9. In a

de novo analysis, we must accept all factual allegations of the complaint as true and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber,

57 Ohio St.3d 56, 565 N.E.2d 584 (1991). A motion to dismiss can only be granted

where the party opposing the motion is unable to prove any set of facts that would

entitle the party to the relief requested. Kenty v. Transamerica Premium Ins. Co., 72

Ohio St.3d 415, 418, 650 N.E.2d 863, 865-866 (1995); York v. Ohio State Hwy. Patrol,

60 Ohio St.3d 143, 573 N.E.2d 1063 (1991). A motion for a judgment on the pleadings

presents only questions of law. Greely, supra., citing Peterson v. Teodosia, 34 Ohio

St.2d 161, 165-166, 297 N.E.2d 113 (1973).

                                       Count Three

       {¶18} Count Three of Bair’s complaint is a motion to vacate, modify, or correct

the arbitration award.    The trial court dismissed Count Three of Bair’s complaint

because it found Bair did not have standing to petition the trial court to vacate the

award. Upon our de novo review, we disagree with the trial court’s conclusion as to

whether Bair can prove no set of facts that would entitle him to relief on his motion to

vacate, modify, or correct the arbitration award.

       {¶19} ODMH and the Union argue Bair lacks standing to appeal from a binding

arbitration because the only parties with standing to appeal are the parties to the
Tuscarawas County, Case No. 2012 AP 08 0053                                            7

arbitration: ODMH and the Union. They base their argument in part on Johnson v.

Metro Health Med. Ctr., 8th Dist. No. 79403, 2001-Ohio-4259. In Johnson, the court

analyzed whether an employee could individually appeal an arbitration award. Pursuant

to the collective bargaining agreement, the employee’s union filed a grievance against

the employer for the employee’s alleged wrongful termination. The arbitrator ruled the

employer wrongfully terminated the employee, but did not award the employee back-

pay. The employee, not the union, appealed to the court of common pleas.

      {¶20} The court held the individual employee lacks standing to appeal from

binding arbitration where the employee’s union and the employer are the sole parties.

Id. at *1. The conclusion was supported by recognizing “the distinction between a party

in interest and an interested party.     Clearly, [the individual employee] remained

interested in the arbitration decision; however, when she asked for her union’s help, she

called upon the collective power of her fellow members, and ceased to stand alone.

The necessary and just price paid by [the individual employee] was subordination of her

individual rights to those of her fellow union members.” Id. at *2. The court noted an

exception to this rule is found in R.C. 4117.03(A)(5). The statute allows the public

employee to “[p]resent grievances and have them adjusted, without the intervention of

the bargaining representative, as long as the adjustment is not inconsistent with the

terms of the collective bargaining agreement then in effect and as long as the

bargaining representatives have the opportunity to be present at the adjustment.” The

Johnson court interpreted the right to proceed without union representation exists only

at the outset of the grievance proceeding. “Once the employee chooses union

representation, that employee lacks standing on all matters including an appeal.” Id. at
Tuscarawas County, Case No. 2012 AP 08 0053                                           8

*2. See also Bailey v. Beasley, 10th Dist. No. 09AP-682, 2010-Ohio-1146; Waiters v.

Lavelle, 8th Dist. No. 95270, 2011-Ohio-116.

      {¶21} Bair contends the underlying facts of his grievance proceedings are

different from that presented in Johnson and therefore bars this case from dismissal on

the pleadings.     Bair argued in his response to the motion to dismiss that from the

inception of his grievance proceedings, Bair chose to “go it alone” pursuant to R.C.

4117.03(A)(5), instead of using union representation. He stated his counsel of record in

the arbitration proceeding was his private counsel and the Union did not participate in

the proceedings.

      {¶22} ODMH and the Union also raise Leon v. Boardman Twp., 100 Ohio St.3d

335, 2003-Ohio-6466, 800 N.E.2d 12, in support of its argument that Bair lacks standing

to pursue an appeal of the arbitration decision. In Leon, the public employee was

discharged for violating residency requirements.      The employee’s discharge was

arbitrated on his behalf by his union. Once the arbitration decision was rendered, the

union denied the employee’s request for further representation.         The employee

instituted proceedings in the court of common pleas to vacate the arbitration award

pursuant to R.C. 2711.10. Id. at ¶ 1.

      {¶23} The Supreme Court of Ohio affirmed the dismissal of the employee’s

appeal by holding:

      When an employee’s discharge or grievance is arbitrated between an

      employer and a union under the terms of a collective bargaining

      agreement, the aggrieved employee does not have standing to petition a

      court to vacate the award pursuant to R.C. 2711.10, unless the collective
Tuscarawas County, Case No. 2012 AP 08 0053                                           9


       bargaining agreement expressly gives the employee an independent right

       to submit disputes to arbitration.

Id. at syllabus.

       {¶24} Bair argues the underlying facts in Leon can be distinguished from those

in the present case. Unlike the employee in Leon who elected to pursue the matter on

his own after the arbitration decision had been rendered, Bair argues he has from the

outset of the grievance procedures proceeded without union representation pursuant to

R.C. 4117.03(A)(5).    Because the employee in Leon did not pursue the arbitration

proceedings without union representation from the beginning, Bair argues it was

unnecessary for the Leon Court to consider the application of R.C. 4117.03(A)(5) to the

issue presented.

       {¶25} Under our de novo review of a motion to dismiss, we must accept all

factual allegations of the complaint as true and all reasonable inferences must be drawn

in favor of the nonmoving party. The allegations in Bair’s complaint state:

       11. Bair and the Union initiated a grievance on Bair’s behalf by filing the

       same on November 23, 2010, in the manner recognized and followed by

       management and the Union for the perfection of grievances. * * *

       12. On January 27, 2011, the Union expressly consented to the

       designation of S. David Worhatch, Esq., Bair’s private counsel, as its

       representative for the Step 1 conference under the grievance procedure

       outlined in Section 7.06 of Article 7 of the Union Contract. Mr. Worhatch

       represented the interests of Bair and the Union at such conference.
Tuscarawas County, Case No. 2012 AP 08 0053                                            10


       13. On February 10, 2011, management communicated the results of the

       Step 1 conference to Bair, the Union, and Bair’s private counsel,

       essentially sustaining the decision of the appointing authority in removing

       Bair from his position with HBH.

       14. On February 24, 2011, the Union expressly consented to the

       designation of S. David Worhatch, Esq., Bair’s private counsel, as its

       representative for pursuing mediation and/or arbitration of the grievance

       filed on Bair’s behalf. On the same date, both the Union (by way of a

       notice of intent to arbitrate) and Mr. Worhatch (by way of notice of demand

       for arbitration) invoked the remedies at Step 2 of the grievance process

       outlined in Section 7.06 of Article 7 of the Union Contract, electing thereby

       to bypass mediation and proceed directly to arbitration of the grievance

       submitted on Bair’s behalf.

       {¶26} Considering the allegations of the complaint in a light most favorable to

Bair and the impact of R.C. 4117.03(A)(5) on Bair’s ability to pursue an appeal of the

arbitration award, we find the dismissal of Count Three was premature. The trial court

specifically stated in its July 23, 2012 judgment entry that it would not convert the

motion for judgment on the pleadings to a motion for summary judgment; however, as to

Count Three, we find the facts and law raised lend itself for further consideration beyond

the four corners of the pleadings.

                               Count One and Count Two

       {¶27} In Count One of the complaint, Bair brought a declaratory judgment action

pursuant to R.C. Chapter 2721, requesting a declaration that Bair may assert his own
Tuscarawas County, Case No. 2012 AP 08 0053                                            11


claim in the court of common pleas. In Count Two, Bair alleged a cause of action for

breach of contract, requesting relief under the CBA. The trial court dismissed both

Count One and Count Two. We agree.

       {¶28} In City of Galion v. Am. Fed. of State, Cty. and Mun. Emp., 71 Ohio St.3d

620, 646 N.E.2d 813 (1995), the Ohio Supreme Court reviewed the certified question

and the underlying question of “whether a party, when challenging an arbitration award,

has the option of bringing an action for declaratory judgment as an alternative to the

statutory remedy contained in R.C. Chapter 2711.” Id. at 621. The Court held:

       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.

Id. at paragraph two of the syllabus.

       {¶29} Further, the CBA, attached to Bair’s complaint, provides, “Arbitrators’

decisions under this Agreement shall be final and binding.” (Article 7.07, F. Binding

Decisions). The Ohio Supreme Court stated in State ex rel. Wilkinson v. Reed, 99 Ohio

St.3d 106, 2003-Ohio-2506, 789 N.E.2d 203, ¶ 20: “Furthermore, if a collective

bargaining agreement between a public employer and an exclusive employee

representative ‘provides for a final and binding arbitration of grievances, public

employers, employees, and employee organizations are subject solely to that grievance

procedure * * *.’ (Emphasis added.) R.C. 4117.10(A). Insofar as the union claims that

relators' actions violated the collective bargaining agreement, binding arbitration is its

exclusive remedy.”
Tuscarawas County, Case No. 2012 AP 08 0053                                                12


       {¶30} 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 citing R.C. Chapter 2711 and Taylor Bldg. Corp. of

Am. v. Benfield, 117 Ohio St.3d 352, 2008–Ohio–938, 884 N.E.2d 12, ¶ 27. Because of

the strong presumption favoring arbitration, all doubts should be resolved in its favor.

Hayes, supra citing Ignazio v. Clear Channel Broadcasting, Inc. 113 Ohio St.3d 276,

2007–Ohio–1947, 865 N.E.2d 18, ¶ 18.

       {¶31} Plaintiff-Appellant Jeffrey R. Bair’s first Assignment of Error is sustained in

part and overruled in part.

                                             II.

       {¶32} Bair argues in his second Assignment of Error the trial court erred in

denying his motion for summary judgment on Count One of his complaint.                    We

disagree.

       {¶33} The standard for granting summary judgment is delineated in Dresher v.

Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996): “ * * * a party seeking summary

judgment, on the ground that the nonmoving party cannot prove its case, bears the

initial burden of informing the trial court of the basis for the motion, and identifying those

portions of the record that demonstrate the absence of a genuine issue of material fact

on the essential element(s) of the nonmoving party's claims. The moving party cannot

discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving party must be

able to specifically point to some evidence of the type listed in Civ.R. 56(C) which
Tuscarawas County, Case No. 2012 AP 08 0053                                              13


affirmatively demonstrates the nonmoving party has no evidence to support the

nonmoving party's claims. * * * ”

       {¶34} Based on our analysis of Bair’s first Assignment of Error as to Count One

of Bair’s complaint, we find no error in the trial court’s determination that Bair’s summary

judgment motion was moot.       Reasonable minds can only conclude that Bair is not

entitled to judgment as a matter of law on his claim for declaratory judgment pursuant to

the CBA.

       {¶35} Plaintiff-Appellant Jeffrey R. Bair’s second Assignment of Error is

overruled.
Tuscarawas County, Case No. 2012 AP 08 0053                                          14


                                     CONCLUSION

       {¶36} Based on the foregoing, we sustain in part Plaintiff-Appellant Jeffrey R.

Bair’s first Assignment of Error.   We vacate only the portion of the July 23, 2012

judgment entry of the Tuscarawas County Court of Common Pleas that dismissed

Count Three of Plaintiff-Appellant Jeffrey R. Bair’s complaint. We remand the matter to

the trial court for further proceedings on Count Three of the complaint.

       {¶37} The remainder of Plaintiff-Appellant Jeffrey R. Bair’s Assignments of Error

as to the July 23, 2012 judgment entry are overruled.

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.



                                         HON. PATRICIA A. DELANEY




                                         HON. W. SCOTT GWIN



                                         HON. CRAIG R. BALDWIN




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