Tolles Career & Technical School Bd. of Edn. v. Tolles Edn. Assn. , 2016 Ohio 7835 ( 2016 )

[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
Madison CA2016-01-001
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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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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