IN THE SUPREME COURT OF OHIO

CHERYL D. WAITERS

Appellant

V.

GREGORY J. LAVIELLE, et al.

Appellee

Case No. 2011-0314

On Appeal from theCuyahoga County Court of Appeals,Eighth Appellate District

Court of AppealsCase No. 95270

APPELLEE, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,LOCAL 38'S MEMORANDUM IN RESPONSE TO APPELLANT'S MEMORANDUM

IN SUPPORT OF JURISDICTION

S. DAVID WORHATCH (0031174)Law Offices of S. David Worhatch4920 Darrow RoadStow, Ohio 44224(330) 650-6000(330) 656-2300Fax: (330) 650-2390sdworhatch(a,nls.net

GOLDSTEIN GRAGEL, LLCBy: Joyce Goldstein (0029467)

Shelley M. Fleming (0081212)1040 The Leader Building526 Superior Avenue E.Cleveland, Ohio 44114(216) 771-6633Fax: (216) 771-7559igoldstein(&ggcounsel.comsflemin¢(a)sgcounsel.com

Counsel for Appellant, Cheryl Waiters Counsel for Appellee, IBEW, Local 38

^U L6

MAR Z8 2011

CLERK OF COURTSUPREME CCIURT OF OHIO

F

1

h1AR 2 U 2011

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................:..............:.............:........::..................3

EXPLANATION OF WHY THIS CASE IS NOT A CASE OF GREAT PUBLICOR GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIALCONSTITUTIONAL QUESTION ......................................................................4

COUNTERSTATEMENT OF THE FACTS AND CASE .......................................... 5

RESPONSE TO PROPOSITIONS OF LAW ......................................................... 7

Proposition of Law No. 1: "Where the object of a civil action brought by a member of acollective bargaining unit is to seek equitable or declaratory relief in aid of his or herexercise of a right guaranteed by law, a common pleas court has jurisdiction over such aclaim even if part of the claim also might constitute an "unfair labor practice" within themeaning of Chapter 4117 of the Revised Code..................................... .:............7

Proposition of Law No. 2: "At any time before a final, appealable decision is renderedthat adjusts all issues presented by a grievance filed by or for a member of a collectivebargaining unit, such member may elect under Section 4117.03 (A)(5) of the RevisedCode to proceed to adjust such grievance without the intervention of the collectivebargaining representative." . : . . . . .. . .. . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 9

CONCLUSION ...........................................................................................12

CERTIFICATE OF SERVICE ........................................................................... 13

2

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co., 415 U.S.36, 58 (1974) .......................................... 5, 11

City of Cleveland v. IBEW, Local 38, Cuyahoga App. No. 92982, 2009-Ohio-6223 .............5, 6

City of East Cleveland v. East Cleveland Firefighters Local 500, 70 Ohio St.3d 125,637 N.E. 2d 878 . ... ...... ..... .........:............ ...... ..................... ........... ....... .. ....... ... 8

Coleman v. Cleveland School District, 142 Ohio App. 3d 690, 693, 756 N.E.2d 690 (2001).....10

District 11, The Health Care & Social Services Union v. SERB, 2002 SERB 4-10 .....:............:.8

District 1199 v. SERB, Franklin App. No. 02AP-391, 2003-Ohio-3436 ................................8

Franklin County Law Enforcement Association v. Fraternal Order of Police (1991),59 Ohio St. 3d 167, 572 N.E. 2d 87 ......................................................................4, 7

Johnson v. Metrohealth Medical Center, Cuyahoga App. No. 79403, 2001-Ohio-4259........5, 10

Johnson v. Metrohealth Medical Center, 95 Ohio St.3d 1465, 2002-Ohio-2354,768 N.E.2d 657 ........ ......................... ... ...... ...... ............... ............... .. .... ...... .......5

State of Ohio, ex rel Waiters v. Szabo, Cuyahoga App. No. 94599, 2010-Ohio-5249 ................5

Stratford v. Greater Cleveland Regional Transit Authority (Dec. 23, 1993),Cuyahoga App. Nos. 63663. 65530 ... ........... ....... ... ...... ... ......... ... ...... ...... ..... ..........10

Waiters v. Lavelle, Cuyahoga App. No. 95270, 201 1-Ohio-1 16 ........................................5

Whitlowv. Ingram (November 7, 1994), Mahoning App. No. 93CA74 ...............................9

Statutes

Ohio Revised Code Chapter 4117 ......................................................................7, 8, 9

Ohio Revised Code Section 4117.03 ...................................................................4, 10

Ohio Revised Code Section 4117.03(A)(5) .........................................................4, 9, 10

Ohio Revised Code Section 4117.11(B)(6) .................................................................8

3

EXPLANATION OF WHY THIS CASE IS NOT A CASE OF GREAT PUBLIC ORGENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL

CONSTITUTIONAL OUESTION

This appeal originates from a decision by the Eighth District Court of Appeals which

affirmed the trial court's decision dismissing Waiters' complaint against International

Brotherhood of Electrical Workers, Local 38 ("Union"), Gregory Lavelle ("Lavelle") (the

arbitrator presiding over the underlying grievance), and the City of Cleveland ("City"). Waiters

sought injunctive relief to stay the nearly completed arbitration process. Waiters also sought a

declaratory judgment to direct that, under R.C. 4117.03, she had the right to terminate the

Union's involvement in her grievance and to separately complete the arbitration process with her

own counsel.

This case does not merit this Court's review. This case neither involves any substantial

constitutional issue, nor is of public or great general interest. Waiters' first proposition of law

addresses SERB's exclusive jurisdiction over cases in which at least part of the action constitutes

an unfair labor practice. This Court has already addressed this exact issue in Franklin County

Law EnforcementAssociation v. Fraternal Order ofPolice (1991), 59 Ohio St. 3d 167, 572 N.E.

2d 87, where the Court concluded that SERB had exclusive jurisdiction under similar facts.

Waiters' second proposition of law asks this Court to hold that a public employee may

elect to terminate her union representation and individually pursue the grievance on her own at

any time during the arbitration process. Pursuant to R.C. 4117.03(A)(5) public employees may

elect to pursue their grievance using either Union representation or representation of their own

choice. However, the statute does not provide that an employee may change her election at any

time. In this case, the Union represented Waiters for several years before she made any attempt

to proceed independently pursuant to R.C. 4117.03(A)(5).

4

As explained below, Waiters' second proposition of law has been squarely rejected in

Ohio in conformity with the standards approved by the United States Supreme Court. In

Johnson v. MetroHealth Medical Center, Cuyahoga App. No. 79403, 2001-Ohio-4259, the

Eighth District Court of Appeals held that once a public employee elects union representation

they no longer have rights to the claim. This Court denied review of the Eighth District's

decision in Johnson. See Johnson v. Metrohealth Medical Center, 95 Ohio St.3d 1465, 2002-

Ohio-2354, 768 N.E.2d 657. The holding in Johnson is consistent with the United States

Supreme Court decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) where the

Court confirmed that the rights of individuals may be subordinate to the rights of the union

during collectively bargained arbitration proceedings. Accordingly, once Waiters elected and

utilized Union representation, she waived any rights to elect to pursue the claim independently.

Consequently, neither of Waiters' propositions of law warrant review by this Court.

COUNTERSTATEMENT OF THE FACTS AND CASE

This matter has an extensive procedural history consisting of three arbitration phases and

three appellate decisions, all stemming from Waiters' termination. See State of Ohio, ex rel

Waiters v. Szabo, Cuyahoga App. No. 94599, 2010-Ohio-5249; City of Cleveland v. IBEW Local

38, Cuyahoga App. No. 92982, 2009-Ohio-6223; Waiters v. Lavelle, Cuyahoga App. No. 95270,

2011-Ohio-116.

In June 2008, Waiters, a bargaining unit employee for the City of Cleveland, was fired

for allegedly threatening her coworkers. The Union filed a grievance on Waiters' behalf seeking

Waiters' reinstatement and back pay. The City denied the grievance and the matter proceeded to

arbitration as negotiated by the collective bargaining agreement.

5

The Union represented Waiters throughout the arbitration proceedings. On March 8,

2008, the arbitrator issued a decision upholding Waiters' grievance and ordering that she be

reinstated to her position with the City. On May 12, 2008, the City filed an action in the

Cuyahoga County Court of Common Pleas to vacate the arbitration reward. The Union

responded with an application to confirni the award.

On June 5, 2008, the arbitration process resumed to determine if Waiters was entitled to

back pay from June of 2008 when she was terminated, to June 5, 2008, when the hearing was

held. On July 28, 2008, the arbitrator issued his decision and concluded that Waiters failed to

mitigate her damages; therefore, she was not entitled to an award of back pay. The Union then

included this subsequent award in support of its application to confirm the arbitration award

which was still pending with the trial court.

On February 11, 2009, the trial court denied the City's application to vacate the

arbitration award and granted the Union's application to confirm the award. The Eighth District

Court of Appeals affirmed.' See Cleveland v. International Brotherhood of Electrical Workers,

Local 38, supra.

On April 14, 2010, Waiters filed an action against the Union, Lavelle, and the City

seeking an order staying the pending arbitration proceedings and perlliitting Waiters to proceed

for the remainder of the arbitration with her own counsel. On May 12, 2010, the trial court

dismissed Waiters' action in its entirety.

1In addition, on January 29, 2010, Waiters filed a writ of mandamus in the Eighth District Court of Appeals to

compel the City to reinstate Waiters to her position. The appellate court ultimately dismissed the writ as mootbecause the City reinstated Waiters, pursuant to the confirmed arbitration award, while the writ was pending. Thedismissal of the writ is currently before this Court on a separate appeal. See Case No. 2011-0314.

6

On June 18, 2010, Waiters was reinstated to her position with the City. On August 27,

2010, arbitration commenced to determine whether Waiters was entitled to back pay for the

period of June 5, 2008 through her reinstatement.

All of Waiters' rights arose under the collective bargaining agreement between the Union

and the City. These rights were fully and effectively asserted by the Union in the arbitration,

leading to Waiters' reinstatement. Waiters' recent decision to create an independent right to

switch midstream to individual representation does not involve a substantial constitutional

question because:

• There is no issue of law not addressed and settled by the decisions of this Court;

• There is no conflict among the courts of appeals regarding any issue; and

• There are no novel issues which would be of interest to parties outside this case.

For these reasons, this Court should decline to exercise jurisdiction to review this case.

Response to Proposition of Law No. 1

"Where the object of a civil action brought by a member of a collective bargaining unit isto seek equitable or declaratory relief in aid of his or her exercise of a right guaranteed bylaw, a common pleas court has jurisdiction over such a claim even if part of the claimalso might constitute an "unfair labor practice" within the meaning of Chapter 4117 ofthe Revised Code."

This is not a novel issue; rather it was specifically addressed by this Court in Franklin

County, supra. Therefore, it is not a case of public or great general interest. Further, while

Waiters represents this case to be a new issue pertaining to a public employee's rights pursuant

to Chapter 4117, this case involves only the issue of whether the Union must relitigate issues in

arbitration which were the subject of an already confirmed arbitration award.

In Franklin County, this Court noted that Chapter 4117 is to be broadly interpreted to

give SERB exclusive jurisdiction over claims which stem from collective bargaining rights.

7

Waiters argues that the trial court had jurisdiction to grant her relief because her claims fell

outside Chapter 4117. However, the Eighth District properly determined that Waiters' claims

against the Union directly stemmed from her collective bargaining rights as outlined in Chapter

4117. Each of Waiters' allegations in her verified complaint specifically referred to the

collective bargaining agreement and the arbitration process which was provided for in the

collective bargaining agreement.

It is well established that SERB maintains exclusive jurisdiction over unfair labor

practice charges. City ofEast Cleveland v. East Cleveland Firefighters Local 500, 70 Ohio St.3d

125, 637 N.E. 2d 878 (1994). Waiters relies on the language in East Cleveland, supra, which

states that SERB is not vested with exclusive jurisdiction over every claim which is arguably an

unfair labor practice. Id. at 127-126? However, Waiters' complaint squarely and exclusively

presented an unfair labor practice claim within SERB's exclusive jurisdiction.

As the appellate court noted, Waiters stated that the Union "might not fairly and

thoroughly represent her interests." These allegations did not merely present an arguably unfair

labor practice; rather, they are specifically identified as such by statute. Revised Code

4117.11(B)(6) specifically defines the conduct that Waiters complains about as an unfair labor

practice, stating that a union's failure to fairly represent an employee constitutes an unfair labor

practice. Waiters contends that she did not allege the elements of an unfair labor practice claim,

including that the Union acted arbitrarily or in bad faith. These elements are not necessary to

state a complaint under R.C. 4117.11 (13)(6).

The crux of Waiters' dissatisfaction with the Union's presentation of her claim is that the

Union does not intend to relitigate the arbitrator's July 28, 2008 decision in which he concluded

2 It should be noted that in Waiters' discussion of SERB cases, Waiters cites to District 11; The Health Care & SocialServices Union v. SERB, 2002 SERB 4-10. This decision was reversed by District 1199 v. SERB, Franklin App. No.02AP-391, 2003-Ohio-3436.

8

that Waiters failed to mitigate her damages and, thus, was ineligible to receive back pay from the

City. There is no legal basis for the Union to relitigate this issue. The arbitrator.heard testimony

from both parties on the issue of mitigation at the June 5, 2008 arbitration hearing. The

arbitrator subsequently issued a sixteen page decision in which he detailed the specific reasons

that prevented an award of back pay. This decision was subsequently confirmed as part of the

application to confirm the underlying reinstatement award.

Ohio courts have routinely held that an arbitrator's decision with respect to issues of both

fact and law are barred from future attack by res judicata, as the parties had the opportunity to

present their cases to the tribunal of their choosing. See Whitlow v. Ingram (November 7, 1994),

Mahoning App. No. 93CA74. Therefore, there is no basis to relitigate this issue before the

arbitrator.

Accordingly, the real issue in this case is not the application of Chapter 4117 as presented

by Waiters, but rather, whether the Union has an obligation to seek damages on Waiters' behalf

for which there is no legal or contractual authority to do so. Therefore, this case presents a

narrow issue arising from the extensive prior history involving the arbitration proceedings

asserted by the Union to enforce Waiters' collective bargaining rights. Further appeal of this

case would have no application to parties outside of this action.

Response to Proposition of Law No. 2

"At any time before a final, appealable decision is rendered that adjusts all issuespresented by a grievance filed by or for a member of a collective bargaining unit, suchmember may elect under Section 4117.03(A)(5) of the Revised Code to proceed to adjustsuch grievance without the intervention of the collective bargaining representative."

Waiters argues that she should be allowed to elect, at any time prior to the completion of

the arbitration process, to terminate union representation and proceed with her grievance on her

9

own. This position is unsupported by any case law and the statute expressly provides that the

election must be made prior to adjudication.

Pursuant to R.C. 4117.03(B)(5), public employees hold a right to present their own

grievances. However, they must exercise this right prior to electing and utilizing union

representation. Waiters claim for reinstatement has already been arbitrated and confirmed,

throughout which Waiters elected and utilized the representation provided by the Union. Waiters

now attempts to rewrite the plain language of the statute to alter her election and proceed

independently pursue the final phase of her back pay claims, which are nearly completed by the

arbitrator. The Eighth District Court of Appeals properly relied on Johnson, supra, in affirming

the dismissal of Waiters' complaint, under these circumstances.

In Johnson, the court acknowledged that an employee has the right to pursue their own

grievance pursuant to R.C. 4117.03. However, such right exists only until the grievant invokes

union representation. Once the grievant does so, the claim becomes the claim of the union and

the grievant lacks standing to pursue the claim independently. The right to independently elect

and pursue the grievance is extinguished.

This same rationale has been the basis for the longstanding precedent which holds that,

when an individual elects union representation to pursue a grievance, the individual employee

has no right to later challenge the ensuing arbitration award in court because the individual

employee is no longer the party in interest. Coleman v. Cleveland School District, 142 Ohio

App. 3d 690, 693, 756 N.E.2d 690 (2001); Stratford v. Greater Cleveland Regional Transit

Authority (Dec. 23, 1993), Cuyahoga App. Nos. 63663. 65530. In Coleman, supra, the court

recognized that reaching a different result would undermine the entire collective bargaining

process. Id. at 693.

10

Johnson applied the specific policy considerations that mandated restricting an

individual's right to switch between union and individual arbitration of grievances, stating,

"[t]his conclusion recognized the necessity of subordinating the individual interests of a

complainant to the collective good of a greater body." In Alexander, supra, the United States

Supreme Court recognized that in both the collective bargaining and arbitration processes, the

rights of an individual employee may become subordinate to that of the bargaining unit. Waiters

relinquished her right to individually pursue her claim in June of 2007 when she requested and

received the representation of the Union. As such, Waiters is no longer an individual party in

interest.

This Court has already denied review of the Eighth District decision in Johnson. This

area of law is well settled. There is no conflicting appellate case law. Therefore, this proposition

of law does not merit review by this Court.

11

CONCLUSION

The two propositions of law advanced by Waiters have either already been addressed by

this Court, or have been addressed by appellate courts without conflict. Further, because of the

specific facts of this case, a decision in this action is limited to the interest of the parties and the

decision would not affect parties not involved in this action.

Respectfully submitted,

GOLDSTEIN GRAGEL LLC

Joyce Goldstern, Esq. (#002940jgoldstein@ggcounsel.com

Shelley Fleming, Esq. (#0081212)sfleming@ggcounsel. com

1040 The Leader Building526 Superior Avenue E.Cleveland, Ohio 44114(216)771-.6633(216) 771-7559 (fax)

Counsel for Respondent Union

12

CERTIFICATE OF SERVICE

I certify that the foregoing was sent via regular U.S. mail this 25th day of March, 2011

upon the following:

S. David Worhatch4920 Darrow RoadStow, Ohio 44224

Steven J. MoodyCity of ClevelandDepartment of Law601 Lakeside Avenue Room 106Cleveland, Ohio 44114

Gregory Lavelle27346 Edgepark Blvd.North Olmsted, Ohio 44070

13