Ohio Supreme Court Finds Arbitration Clause Did Not Clearly Cover Intentional Tort Claim Without Specific Reference

Last week, the Ohio Supreme Court affirmed the denial of a motion to compel arbitration of an employee’s intentional tort workplace injury claim based on the arbitration clause of a collective bargaining agreement which did not specifically mention intentional tort claims or the intentional tort statute in the list of employment statutory claims which were covered.   Sinley v. Safety Controls Technology, Inc., Slip Opinion No. 2022-Ohio-4153.  The Court concluded that “while arbitration is generally favored in most contracts, there is no presumption of arbitrability of an individual employee’s claims under an arbitration clause contained in a collective-bargaining agreement.”  It also held that “[t]o compel arbitration against a union employee, the claim at issue must have been clearly and unmistakably waived in the arbitration provisions in the collective-bargaining agreement governing the parties” and to “be clear and unmistakable, the claim must be included either by statute or specific cause of action in the arbitration provision of the collective-bargaining agreement.”  It was insufficient that the clause explicitly applied “to any alleged violation of laws or statutes by the  . . . Company, as alleged by an employee, including without limitation” a list of particular statutes when the intentional tort statute was not one of those listed.

According to the Court’s opinion, the plaintiff employee claimed to have been intentionally injured with the removal of certain safety precautions and his supervisor’s testing the equipment while he was working on it.  When he filed suit against the employer, manufacturer, safety consultant and others, the employer moved to compel arbitration based on the applicable collective bargaining agreement whose arbitration clause covered a number of individual statutory claims, including employment discrimination and workers compensation retaliation, etc.  However, the clause did not specifically mention general torts or the intentional tort statute.

The Court agreed that such claims could be arbitrable if they were covered by the relevant arbitration clause.  While it would be better to cite the specific statute, it is sufficient to describe the types of claims which are covered.

In this case, the arbitration clause explicitly provided that it would apply to all statutory claims against the employer, “including without limitation” a list of various employment-related statutes.  However, the Court’s majority rejected that this could be interpreted to include intentional tort claims:

[I]f the parties intended for the nonexhaustive list to be taken to include all statutory causes of actions generally, then the provision becomes just that, a general clause requiring arbitration of all possible violations of laws or statutes. . . . .

We do not find that an arbitration provision in a collective[1]bargaining agreement must cover every possible, conceivable federal and state law claim in order for the language to constitute a clear and unmistakable waiver. But the body of case law presented by the parties and amici curiae on both sides demonstrates that some specific reference to the claim at issue is required. And while expressly including the specific statute when a right or claim is created by one leaves no question as to whether the parties intended to waive such a claim, doing so may not always be practical or necessary. But for a waiver to be clear and unmistakable, it must identify the claim either by statute or cause of action. Having no reference whatsoever to intentional-tort claims, the CBA here cannot be used to compel Sinley to arbitrate such claims.

The dissent focused on an earlier party of the arbitration clause which further clarified that the scope was to cover all employment-related claims, except for workers’ compensation: ““any employment-related controversy or dispute arising between the parties to [the] Agreement, or between an employee and the parties to [the] Agreement as to the interpretation or application of the terms and provisions of [the] Agreement, or as to the violation of any employment-related laws or statutes (except workers’ compensation matters).”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Butler County Court of Appeals Holds that Continuous Violation Doctrine Does Not Extend CBA Deadline for Filing Grievances.

Earlier this month, the Butler County Court of Appeals overruled an arbitration decision in favor of the union which had ordered the city employer to fill two vacant positions with bargaining unit members. City of Fairfield v. AFSCME, Ohio Council 8, 2008-Ohio-3891 (8/4/08). In that case, the collective bargaining agreement provided that grievances must be filed within 3 days of the event giving rise to the grievance. However, a grievance was not filed until almost a month after the issue came to the attention of the union. Nonetheless, the arbitrator ruled that the grievance was timely because it was a continuing violation for the City to continue to staff the duties of the two jobs at issue with non-union employees. The Court held that it was beyond the arbitrator’s authority to ignore the clear and unambiguous language in the CBA. In fact, the arbitrator lacked jurisdiction to even consider the grievance under the circumstances.

As stated by the court, “[t]he arbitrator was not authorized to ignore or modify plain and unambiguous provisions of the CBA. . . . Rather, the arbitrator was restricted to the interpretation and application of the CBA. . . . The CBA's three-day time limitation upon the filing of grievances was plain and unambiguous. The arbitrator's "continuing violation" determination did not comport with, and in fact defeated, the plain and unambiguous three-day time limitation upon grievances. This amounted to an impermissible extension of the arbitrator's powers. . . . The arbitrator cannot vest jurisdiction in himself. Holding that the arbitrator's assumption of jurisdiction is not subject to judicial review would permit the arbitrator unfettered discretion in assuming jurisdiction over a matter, even where none exists. Where an arbitrator's assumption of jurisdiction is unlawful, it is not an unassailable finding of fact or legal interpretation immune from the purview of a reviewing court. . . . Were it so, the arbitrator's determination of jurisdiction would be infallible even where contrary to the bargain contemplated by the terms of the CBA.” (citations omitted).

The Court “conclude[d] that the arbitrator's assumption of jurisdiction over the grievance was unlawful. Id. The award departed from the essence of the CBA in that it conflicted with an express, unambiguous term of the agreement. . . . The arbitrator thus exceeded his powers as contemplated by R.C. 2711.10(D) when he exercised jurisdiction over the grievance.” (citation omitted).

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/12/2008/2008-ohio-3891.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.