[Cite as Career & Technical Assn. v. Auburn Vocational School Dist. Bd. of Edn., 2022-Ohio-2737.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

CAREER & TECHNICAL 

ASSOCIATION,

Plaintiff-Appellee,

- v -

AUBURN VOCATIONAL

SCHOOL DISTRICT BOARD

OF EDUCATION,

Defendant-Appellant.

CASE NO. 2021-L-113

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2011 CV 003318

O P I N I O N

Decided: August 8, 2022

Judgment: Affirmed

Ira J. Mirkin, Jeffrey J. Geisinger and Charles W. Oldfield, Green, Haines, Sgambati Co., 

LPA, 100 Federal Plaza East, Suite 800, P.O. Box 849, Youngstown, OH 44501 (For 

Plaintiff-Appellee).

Matthew John Markling, Kellie D. Zaccardelli and Kendra L. Barabasch, McGown & 

Markling Co., LPA, 1894 North Cleveland-Massillon Road, Akron, OH 44333 (For 

Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Auburn Vocational School District Board of Education (“the 

Board”), appeals from various judgments of the Lake County Court of Common Pleas, 

the final of which is an entry adopting the magistrate’s decision, after a bench trial, in 

which appellee, Career & Technical Association (“CATA”), was awarded judgment 

relating to back pay to which the court determined certain teachers were entitled under 
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the governing collective bargaining agreement (“CBA”) for working extra class periods. 

We affirm the judgments of the trial court.

{¶2} INTRODUCTION

{¶3} The Board is the governing authority of the Auburn Vocational District and 

Auburn Career Center. The Board is responsible for the operation, management, and 

administration of the public schools within the district, which consist of a vocational high 

school and an adult workforce program. CATA is the bargaining representative for the 

Board’s teaching staff. 

{¶4} The substantive aspects of this appeal center upon the interpretation of a 

previously-determined, ambiguous provision in the operative CBA. That provision, 

referred to as the “Eighth Period Stipend” was formally adopted by both parties into the 

2009 CBA under Section 21.4. It provides:

{¶5} “Teachers who are assigned classroom instruction duties in lieu of a 

planning period shall be compensated at a rate of 10% of the teacher’s annual salary.”

{¶6} At trial, evidence was received on whether the following provision mandated 

compensation for teachers who worked eight periods without a planning period during the 

hours encompassing the students’ classroom instruction day; or, alternatively, whether 

no compensation was required if a teacher had a planning period during the hours which 

encompassed his or her workday, regardless of whether he or she worked eight periods 

during the students’ instruction day.

{¶7} FACTS AND PROCEDURAL HISTORY

{¶8} The district’s superintendent from 1998 through mid-2009 was G. Thomas 

Schultz. According to Mr. Schultz, prior to 2011, the school day at Auburn consisted of 
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eight instructional 45-minute periods and a lunch period. Some teachers had eight 

instructional periods, while others had less. Teachers with less than eight instructional 

periods had one non-instructional planning period at some time during the student class 

day. In contrast, those teachers with eight instructional periods were required to engage 

in these planning activities on their own time. 

{¶9} During that time, the Board would offer compensation for the additional 

classroom instruction; to this end, Mr. Schultz and the Board would enter supplemental 

contracts with the teachers who instructed eight periods. Although the supplemental 

contracts did not formally refer to the compensation as an “Eighth Period Stipend,” they 

did refer to the “8th period.” And the practice of providing such compensation became 

commonly known as the “Eighth Period Stipend.” The stipend was equivalent to 10% of 

the teacher’s annual salary.

{¶10} Between the 2000 and 2008 school years, the bargaining agent for the 

teachers was the Vocational Education Teachers Association (“VETA”). During this time, 

no CBA between VETA and the Board included any reference to the Eighth Period 

Stipend. Still, neither VETA nor Auburn objected to the practice of awarding a stipend. 

{¶11} Approximately 21 teachers received the stipend in the 2010-2011 school 

year; 17 in the 2009-2010 school year; 14 in the 2008-2009 school year; 10 in the 2007-

2008 school year; and seven in the 2006-2007 school year. No formal records were 

presented for prior years.

{¶12} The teacher workday is set by the CBA and is not subject to change during 

the term of the agreement. It is the time a teacher is required to be at the school. The 

2009 CBA, however, did not limit the superintendent’s and/or the Board’s ability to set 
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when the student day began or ended, so long as the number of hours of instruction set 

by statute were met. The hours comprising the school day varied.

{¶13} Prior to 2011, the teacher workday generally began at 7:45 a.m. and ended 

at 3:15 p.m. The student instructional day during this time was generally from 8:00 a.m. 

and ended at 2:30 p.m. After 2:45 p.m., various meetings between teachers and the

superintendent as well as other administrators were often scheduled. Planning periods 

during these abbreviated blocks of time was not possible. And, as a result, planning 

periods did not exist during the student day. 

{¶14} In 2009 CATA became the exclusive bargaining agent for the teachers. 

Throughout negotiations between CATA and the Board, various drafts of a new CBA were 

circulated. In a June 2009 draft, under a provision designated “Supplemental Duties,” 

there was a blank, undefined designation for an “Eighth Period Stipend.” Ultimately, the 

CBA was finalized and, under Section 21.4, the parties formally implement the “Eighth 

Period Stipend.” 

{¶15} The 2010-2011 school year was the first full year under the 2009 CBA. The 

workday for teachers was 7:30 a.m. to 3:00 p.m. and the student instructional day was 

from 8:00 a.m. to approximately 2:30 p.m. Prior to 2011-2012 school year, Margaret 

Lynch, the successor superintendent, discovered that the number of instructional hours 

taught at Auburn exceeded the state minimum requirements. She also learned that 

multiple school districts that bussed students to Auburn could not drop off their students 

by 8:00 a.m. Moreover, a July 2011 audit performed by the State of Ohio’s Auditor’s office 

advised that providing a 40-minute planning period to teachers during the teacher
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workday could greatly reduce the sums being paid under the Eighth Period Stipend 

provision of the CBA.

{¶16} By shortening the classroom-instruction day and starting later, Ms. Lynch 

realized Auburn could provide a uniform planning period at the beginning of the workday, 

allow all districts to have bussed students to school on time, and still meet state teaching 

standards. In the summer prior to the start of the 2011-2012 school year, Ms. Lynch 

advised CATA on several occasions that she wished to provide all teachers with a 

planning period consisting of at least 40 minutes. No supplemental contracts were 

disseminated or offered to the teaching staff.

{¶17} In light of the foregoing, the student instructional day was changed; it would 

start at 8:18 a.m. and conclude at 2:28 p.m. Each teacher would now have a 45-minute

planning block at the start of their workday, from 7:30 a.m. to 8:15 a.m. Ms. Lynch and 

Auburn’s principal made concerted efforts to avoid meeting with teachers during this preinstructional planning period. The implementation of the mandatory planning period had 

the practical effect of negating the Eighth Period Stipend. In the Board’s view, the stipend 

was no longer required because it was designed to compensate teachers who had no 

planning period during their workday. CATA disagreed. It maintained the stipend was 

designed to compensate teachers who work eight full periods during the classroominstructional day, irrespective of whether a teacher had a planning period during his or 

her workday. In light of this interpretational difference, CATA filed a grievance.

{¶18} After considering the parties’ positions, the Board denied the grievance. 

CATA subsequently filed the underlying complaint in the trial court alleging a breach of 

Section 21.4 of the CBA. CATA alleged that, since the beginning of the 2011-2012 school 
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year, the Board breached Section 21.4 by refusing to pay the stipend to its teachers who 

were assigned eight periods of classroom instruction. After discovery, dispositive motions 

for summary judgment were filed by both parties. The trial court denied CATA’s motion 

and granted summary judgment to the Board. CATA appealed and, in Career & Technical

Assn. v. Auburn Vocational School Dist. Bd. of Edn., 11th Dist. Lake No. 2013-L-010, 

2014-Ohio-1572, this court found Section 21.4 was susceptible to more than one 

reasonable interpretation and was thus ambiguous. Career & Technical Assn., supra, at 

¶36. This court also found the title, “Eighth Period Stipend,” ambiguous because it is a 

technical term which is neither defined at law nor within the 2009 CBA. Id. Concluding 

there were genuine issues of material fact for trial, this court reversed and remanded the 

matter for further proceedings.

{¶19} Prior to trial, the parties had entered various joint stipulations. Significantly, 

the stipulations specifically set forth the damages each teacher would be entitled to if 

CATA prevailed. The matter was tried to the magistrate in 2016. After taking evidence, 

the magistrate issued his decision on September 30, 2019. In resolving the ambiguities 

identified by this court, the magistrate recommended, in light of testimony and evidence 

of past practices, that the trial court adopt CATA’s interpretation of the CBA and thereby 

award damages. The Board filed objections to the magistrate’s decision that CATA duly 

opposed. 

{¶20} While the objections were pending, the Board moved to withdraw its joint 

stipulations; it further sought to dismiss the matter for lack of subject-matter jurisdiction. 

The trial court denied both motions. On October 16, 2020, the trial court adopted the 

magistrate’s substantive recommendations. Later, after considering several additional 
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issues which were not disposed of in the previous entry, the trial court, on October 14, 

2021, awarded damages to CATA, based upon the jointly stipulated amounts, in the sum 

of $1,486,045.78. The Board now appeals assigning seven errors.

{¶21} SUBJECT- MATTER JURISDICTION

{¶22} For its first assignment of error, the Board asserts:

{¶23} “The trial court erred in denying the Board’s motion to dismiss for lack of 

subject matter jurisdiction because the State Employment Relations Board has exclusive 

jurisdiction over this matter.”

{¶24} The Board argues that the claims raised by CATA in its complaint arise from 

and are dependent upon collective bargaining rights under R.C. Chapter 4117. As such, 

it maintains the claims fall under the exclusive jurisdiction of the State Employment 

Relations Board (“SERB”).

{¶25} Subject-matter jurisdiction is the power conferred upon a court, either by 

constitutional provision or by statute, to decide a particular matter or issue on its 

merits. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). SERB is a state agency 

created by R.C. Chapter 4117. R.C. 4117.02(A); see also State ex rel. Brecksville Edn.

Assn., OEA/NEA v. State Emp. Relations Bd., 74 Ohio St.3d 665, 666 (1996). As a state 

agency and a creation of statute, SERB is limited to the authority and jurisdiction 

conferred on it by statute. State ex rel. Ohio Civ. Serv. Emp. Assn. v. State, 146 Ohio

St.3d 315, 2016-Ohio-478, ¶51. “When the General Assembly intends to vest an 

administrative agency with exclusive jurisdiction, it does so by appropriate statutory 

language.” State ex rel. OCSEA, supra, at ¶52 citing State ex rel. Banc One Corp. v.

Walker, 86 Ohio St.3d 169, 171-172 (1999).
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{¶26} “Exclusive jurisdiction to resolve unfair labor practice charges is vested in 

SERB in two general areas: (1) where one of the parties filed charges with SERB alleging 

an unfair labor practice under R.C. 4117.11 and (2) where a complaint brought before the 

common pleas court alleges conduct that constitutes an unfair labor practice specifically 

enumerated in R.C. 4117.11.” State ex rel. Ohio Dept. of Mental Health v. Nadel, 98 Ohio

St.3d 405, 2003-Ohio-1632, ¶23. “Nowhere in R.C. Chapter 4117 does the General 

Assembly assign SERB exclusive jurisdiction over all issues touching on that chapter’s 

provisions. Instead, the General Assembly targeted specific issues for SERB to address 

in the first instance.” State ex rel. OCSEA, supra. Indeed, the Supreme Court has 

“expressly acknowledged * * * that a plaintiff may raise in the common pleas courts rights 

that exist independently of R.C. Chapter 4117, ‘even though they may touch on the 

collective bargaining relationships.’” Id. at ¶54 quoting Franklin Co. Law Enforcement

Assn. v. Fraternal Order of Police, Capital City Lodge No. 9, 59 Ohio St.3d 167, 172

(1991). Accordingly, “if a party asserts rights that are independent of R.C. Chapter 4117, 

the party’s complaint may properly be heard in common pleas court.” Id. at paragraph two

of the syllabus. If, however, the party advances claims that “arise from or depend on the 

collective bargaining rights created by R.C. Chapter 4117,” SERB has exclusive, original 

jurisdiction. Id. at paragraph two of the syllabus.

{¶27} In this matter, the Board attempted to eliminate the Eighth Period Stipend 

by changing the start of student classes from 8:00 a.m. to 8:20 a.m. And, because 

teachers started their workday at 7:30 a.m., the Board subsequently required all teachers 

to attend a planning period between 7:30 a.m. to 8:15 a.m. The Board, in enacting the 

above changes, concluded the “Eighth Period Stipend” did not require compensation for 
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an eighth period worked. Rather, according to the Board, the implementation of a 

mandatory planning period removed the necessity of the stipend because all teachers, 

whether they worked eight periods or not, had the benefit of a planning period during their 

workday. Essentially, the Board’s construction of Section 21.4 was premised upon its 

position that, to the extent a planning period occurred during the teacher’s workday (not 

the classroom instruction day), the stipend was unnecessary.

{¶28} The Board initially argues that the substance of the complaint asserts 

specific unfair labor practices under R.C. 4117.11(A) and thus SERB possesses exclusive 

jurisdiction to resolve CATA’s allegations. The Board first claims the substance of the 

allegations relate to an unfair labor practice under R.C. 4117.11(A)(1). That statute 

provides that it is an unfair labor practice for a public employer to “[i]nterfere with, restrain, 

or coerce employees in the exercise of the rights guaranteed in Chapter 4117 of the 

Revised Code or an employee organization in the selection of its representative for the 

purposes of collective bargaining or the adjustment of grievances[.]” Id. The Board 

contends the act of requiring all teachers to engage in a planning period before the 

classroom instruction day commences interfered with employees’ rights under R.C. 

Chapter 4117. We do not agree.

{¶29} First of all, we must point out that the “right” in question is the Eighth Period 

Stipend. An Eighth Period Stipend is not a right guaranteed under R.C. Chapter 4117. 

See Bd. of Trumbull Co. Cmmrs. v. Gatti, 11th Dist. Trumbull No. 2017-T-0027, 2017-

Ohio-8533, ¶15. (Appellee’s sought remuneration for appellant’s failure to pay his 

proportional share of hospitalization premium; although appellant’s duty to pay and 

appellee’s right to reimbursement arose out of the collective bargaining agreement, this 
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court held SERB did not have exclusive jurisdiction because “there is no provision under 

R.C. Chapter 4117 that creates such rights or obligations.”) Even though the Eighth 

Period Stipend arises out of the CBA, like the duty and right in Gatti, there is nothing in 

R.C. 4117.11(A)(1) that creates this interplay of rights and obligations between teachers 

and the Board.

{¶30} That said, CATA’s allegations in its complaint involve a dispute over the 

interpretation of Section 21.4. As noted above, that section provides: “Teachers who 

are assigned classroom instruction duties in lieu of a planning period shall be 

compensated at a rate of 10% of the teacher’s annual salary.” In reversing and remanding 

the trial court’s original entry of summary judgment in the Board’s favor, this court noted 

that the provision at issue is reasonably susceptible to more than one interpretation. To 

wit, this court observed:

{¶31} The phrase, “teachers who are assigned to classroom instructional 

duties in lieu of a planning period,” can be taken to mean that a 

teacher is entitled to the stipend if the teacher has classroom 

instructional duties during all instructional periods without a planning 

period at some time during the eight instructional periods (as [CATA]

argues). Under this interpretation, the planning period created by the 

board between 7:30 a.m. and 8:15 a.m. for the 2011–2012 school 

year does not qualify as a planning period because teachers are not 

assigned instructional duties in that time slot. Alternatively, this 

section can be taken to mean that, as long as teachers are given a 

planning period at any time of the day, even prior to the start of class, 

they are not entitled to the stipend (as the [Board] argues). For this 

reason alone, Section 21.4 is ambiguous.

{¶32} Further, the term, “eighth period stipend,” is not defined in the CBA 

or Ohio law in terms of when the planning period must occur. Thus, 

it is unclear from the CBA whether the planning period must take 

place during one of the instructional periods or whether it can occur 

when the students are not at school. For this additional reason, this 

section is ambiguous. Career & Technical Assn., supra, at ¶23-24.
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{¶33} In light of the ambiguity identified by this court, the only dispute set forth in 

the complaint relates to the meaning of Section 21.4. This issue, or the issues attendant 

to resolving the interpretational question does not “interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in Chapter 4117.” R.C. 4117.11(A)(1).

Thus, the issue does not involve an unfair labor practice as set forth under R.C. 

4117.11(A)(1).

{¶34} Next, the Board asserts the allegations relate to an unfair labor practice 

under R.C. 4117.11(A)(5), which provides that it is an unfair labor practice to “[r]efuse to 

bargain collectively with the representative of his employees recognized as the exclusive 

representative or certified pursuant to Chapter 4117. of the Revised Code[.]” Id. The 

Board asserts its alleged conduct can be construed as or is equivalent to a refusal to 

collectively bargain with CATA or the teachers’ representative. We again disagree.

{¶35} While the Board ostensibly implemented the planning period without 

“bargaining” with CATA or any representative, we cannot construe this act as a refusal to 

collectively bargain. Indeed, the implementation merely required the teachers to engage 

in a planning period before the class day, regardless of whether they taught eight (or less) 

periods during their workday. We therefore discern no unfair labor practice alleged under 

subsection (A)(5). 

{¶36} Given the foregoing, we hold that CATA’s complaint did not allege any 

conduct that constitutes an unfair labor practice specifically enumerated in R.C. 4117.11. 

In this respect, the matter is not within the exclusive jurisdiction of SERB. See State ex 

rel. Ohio Dept. of Mental Health v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, ¶23,

(pointing out exclusive jurisdiction is vested in SERB in two general areas: (1) where 
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charges alleging an unfair labor practice under R.C. 4117.11 is filed with SERB and (2) 

where a complaint brought before the court of common pleas alleges conduct constituting 

an unfair labor practice under the statute.) 

{¶37} Notwithstanding the foregoing, the Board asserts CATA’s claims arise from 

or depend upon the collective bargaining rights under R.C. Chapter 4117 because they 

implicate a refusal to pay the stipend. According to the Board, this point necessarily 

triggers R.C. 4117.08(A), which is captioned “Subjects of bargaining; exclusions,” and 

provides: “All matters pertaining to wages, hours, or terms and other conditions of 

employment and the continuation, modification, or deletion of an existing provision of a 

collective bargaining agreement are subject to collective bargaining between the public 

employer and the exclusive representative, except as otherwise specified in this section 

and division (E) of section 4117.03 of the Revised Code.”

{¶38} According to the Board, even though the statute is not directly connected 

with the specifically enumerated unfair labor practices under R.C. 4117.11, the Board’s 

conduct, viewed in relation to this provision, arguably implicates such a practice. 

Specifically, the Board contends its act of implementing the planning period functioned to 

“modify” or “delete” Section 21.4, which is a matter “pertaining to wages, hours, or terms 

and other conditions of employment.” Thus, it claims, the underlying matter was within 

the exclusive jurisdiction of SERB. We do not agree.

{¶39} Initially, there is no dispute that Section 21.4 was a “subject” of the relevant 

collective bargaining agreement. And, although the implementation of the planning period 

affected the wages of the Eighth Period Stipend participants, this does not imply the 

participants’ alleged “right” to the stipend, which flowed from the provision, places the 
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dispute within the exclusive jurisdiction of SERB. To the contrary, as discussed above, 

the principal basis for CATA filing the complaint and the matter proceeding to trial is a 

difference in each parties’ interpretation of Section 21.4. The section was included in the 

collective bargaining agreement (consistent with R.C. 4117.08(A)) and it was neither 

modified nor deleted (also consistent with R.C. 4117.08(A)). Indeed, Section 21.4 

remained intact within the collective bargaining agreement at all relevant times. The issue 

for trial arose, therefore, not because the provision was excluded from the agreement or 

otherwise modified, but because the provision was assigned competing, reasonable 

interpretations by each party. Resolution of this issue does not implicate an unfair labor 

practice under R.C. Chapter 4117 and thus R.C. 4117.08(A) cannot be viewed as a 

vehicle for conferring exclusive jurisdiction upon SERB.

{¶40} The preceding analysis is intertwined with the Board’s next assertion, i.e., 

that its actions affected teachers’ rights under R.C. 4117.03. That section is entitled 

“Rights of public employees; restrictions on public employers.” The Board invokes R.C. 

4117.03(A)(4) in support of its position, which states that public employees have the right 

to: “[b]argain collectively with their public employers to determine wages, hours, terms 

and other conditions of employment and the continuation, modification, or deletion of an 

existing provision of a collective bargaining agreement, and enter into collective 

bargaining agreements[.]” Id. The Board contends that its unilateral modification or 

termination of the stipend fundamentally violated the teachers’ right to collectively bargain 

with their employer relating to “wages, hours, terms and other conditions of employment.” 

We do not agree.
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{¶41} R.C. 4117.03(A)(4) merely affords employees the right to collectively 

bargain with employers regarding wages, hours, etc. Section 21.4 relates to wages and 

was included in the collective bargaining agreement. Moreover, as noted above, the 

Board’s actions did not modify or terminate Section 21.4; the provision remained in the 

collective bargaining agreement unaltered. The Board, by implementing the preclassroom instruction day planning period, did not change the language of the section nor 

was it an attempt to remove or “terminate” the section from the collective bargaining 

agreement. The Board’s action may have had the practical effect of abrogating the impact 

Section 21.4 had on teachers prior to the implementation of the pre-class instruction 

planning period. As this court previously concluded, the Board’s action was supported by 

a reasonable interpretation of the provision. At issue is the validity of the Board’s 

interpretation. This interpretation did not function to abrogate the teachers’ right to 

collectively bargain with the Board on the issue of their wages. It simply limited or negated 

the previous effect of the Eighth Period Stipend. 

{¶42} We consequently conclude that even though R.C. 4117.03(A)(4) grants 

employees the right to collectively bargain on matters relating to, inter alia, wages, this 

right was not compromised by the Board’s actions. Rather, the issue at the heart of 

CATA’s complaint is whether the Board’s interpretation of Section 21.4 was contrary to 

CATA’s interpretation of the section. We therefore hold that R.C. 4117.03(A)(4) does not 

confer exclusive jurisdiction on SERB under the circumstances. 

{¶43} With the foregoing in mind, R.C. 4117.09(B)(1) expressly allows for suits 

alleging violations of collective bargaining agreements to be brought in the courts of 

common pleas. Young v. Ohio State University Hospitals, 10th Dist. Franklin No. 16AP-
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527, 2017-Ohio-2673, ¶13, citing Moore v. Youngstown State Univ., 63 Ohio App.3d 238, 

242 (10th Dist.1989). Under R.C. 4117.09(B)(1), collective bargaining agreements 

subject to R.C. Chapter 4117 must provide “a grievance procedure which may culminate 

with final and binding arbitration of unresolved grievances.” (Emphasis added). This 

section further provides that “[a] party to the agreement may bring suits for violation of 

agreements or the enforcement of an award by an arbitrator in the court of common pleas 

of any county wherein a party resides or transacts business.”

{¶44} In light of the foregoing, R.C. 4117.09(B)(1) “‘requires that any collective 

bargaining agreement contain a two-step procedure - a grievance procedure with 

arbitration first, and ultimately the right [of a party] to file in common pleas court.’” (Citation 

omitted.) Young, supra, quoting State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106,

2003-Ohio-2506, ¶19. Accordingly,“[i]t is clear [based on the language of R.C.

4117.09(B)(1) ] that the intent of the General Assembly in establishing this limited 

jurisdiction within the common pleas court is limited to those instances where it is claimed 

that there has been a violation of a collective bargaining agreement or for the enforcement 

of an arbitrator’s award.” Franklin Cty. Sheriff’s Dept. v. Fraternal Order of Police, Capital

City Lodge No. 9, 64 Ohio App.3d 684, 689 (10th Dist.1991).

{¶45} Here, after the Board’s action of implementing the planning period, a 

grievance was filed. Although the grievance procedure did not provide for, and therefore 

did not culminate in, a final binding arbitration, R.C. 4117.09(B)(1) does not require this 

eventuality for a matter to proceed to the court of common pleas. The underlying 

complaint was filed alleging, inter alia, a breach of the collective bargaining agreement. 

As just discussed, this allegation, in light of the surrounding circumstances, does not 
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implicate an unfair labor practice as defined by R.C. 4117.11(A) or otherwise relate to an 

arguable unfair labor practice governed by R.C. Chapter 4117. We accordingly conclude 

that the underlying matter involves issues independent of the rights created by R.C. 

Chapter 4117, and thus, the court of common pleas properly exercised jurisdiction over 

the case pursuant to R.C. 4117.09(B)(1) 

{¶46} The Board’s first assignment of error lacks merit. 

{¶47} ISSUE REGARDING WITHDRAWAL OF JOINT STIPULATIONS

{¶48} For ease of discussion, we shall next address the Board’s sixth assignment 

of error. It provides:

{¶49} “The trial court erred in denying the Board’s motion to withdraw any and all 

joint stipulations as to damages because the Board never stipulated to damages.”

{¶50} Under this assignment of error, the Board maintains the trial court abused 

its discretion in denying its motion to withdraw the joint stipulation of damages into which 

it entered with CATA relating to the eighth period stipends from the 2011-2012 school 

year through the 2017-2018 school year. The Board blankly asserts it never stipulated to 

damages. We disagree.

{¶51} “A party who has agreed to a stipulation cannot unilaterally retract or 

withdraw from it.” Julian v. Creekside Health Ctr., 7th Dist. Mahoning No. 03MA21, 2004-

Ohio-3197, ¶54. “Once the parties have entered into and filed stipulations, one party may 

not, without consent to the other, be permitted to withdraw from the stipulations without 

leave of court upon good cause show.” Albertson v. Ryder, 11th Dist. Lake No. 91-L-103, 

1992 WL 192454 (June 30, 1992), *5. A stipulation of fact removes the issue from the 

litigation and renders proof unnecessary. McLeod v. McLeod, 11th Dist. Ashtabula No.
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2012-A-0030, 2013-Ohio-4546, ¶32. When parties mutually agree to facts or evidence in 

the case and enter into stipulations, such stipulations are regarded as “‘expressing the 

result of proof made by both parties, and so belonging to both parties, that neither party 

could withdraw the same.’” Garrett v. Hanshue, 53 Ohio St. 482, 495 (1895), quoting Ish

v. Crane, 13 Ohio St. 574, 580 (1862). Therefore, a stipulation functions the same as the 

factual determination rendered, in this case, by a court, upon conflicting evidence. State

v. F.O.E. Aerie 2295, 38 Ohio St.3d. 53, 54 (1988). 

{¶52} With this in mind, the record reflects that each party jointly stipulated that 

the collective bargaining agreement in which the eighth period stipend appears, which 

was effective through 2012, remained in effect during the pendency of the proceedings. 

The joint stipulation specifically provided: “C.A.T.A. and the Defendant Board are parties 

to a collective bargaining agreement effective from July 1, 2009 to Jun 30, 2012. Joint 

Exhibit 1 is a true and accurate copy of the collective bargaining agreement between 

Plaintiff and Defendant effective from July 1, 2009 to June 30, 2012. The parties are 

currently in negotiations over a successor agreement, and therefore the terms and 

conditions of the collective bargaining agreement (Joint Exhibit 1) have remained in effect 

since June 30, 2012.” In light of this joint stipulation, if CATA prevailed on the merits, 

then the Board would have an ongoing breach of the Eighth Period Stipend provision with 

damages continuing to accrue.

{¶53} Prior to trial, the parties entered into three separate joint stipulations. Each 

of the stipulations followed the same pattern and, in effect, stated, if CATA prevailed on 

the merits of the suit, the affected teachers would be entitled to specific sums certain due 

to the Board’s decision not to pay the eighth period stipend. After trial concluded in 2016, 
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some three years passed before the magistrate issue a decision. In the meantime, the 

parties entered into two additional joint stipulations each of which followed the same 

pattern as the previous three. Each of the newly entered joint stipulations calculated 

damages for the successive school years that accrued while the underlying matter was 

pending. 

{¶54} After trial to the magistrate, which culminated in a September 2019 decision

recommending that damages be awarded to CATA from the 2011-2012 school year 

through the 2017-2018 school year, the Board filed a “motion to withdraw joint stipulations 

of damages.” That motion was filed nine days after the magistrate issued his decision.

{¶55} With these points in mind, we note that, after the trial court denied the 

Board’s motion to withdraw its joint stipulations on October 16, 2020, the Board, on March 

March 22, 2021, entered into its sixth and final joint stipulation of damages. In that joint 

stipulation, the parties agreed that damages calculations would end with the 2020-2021 

school year. Because the Board entered this final joint stipulation after its motion to 

withdraw was denied, it stands to reasons that the Board conceded the issue of damages. 

{¶56} That said, there is nothing to indicate the Board somehow entered into the 

joint stipulations without knowledge of their import. Each of the ultimately six joint 

stipulations specify “[t]o the extent this Honorable Court enters final judgment awarding 

CATA’s current and former members damages for each year from the 2011-2012 school 

year” through each successive year the matter is pending “the Parties agree that Exhibit 

A[,referencing each employee over each of the school years relevant to the suit,] contains 

the total amount of damages that the Board owes to each member for those years * * *.” 

The Board, a sophisticated party, voluntarily and repeatedly entered into the joint 
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stipulation for damages, with an additional joint stipulation occurring after its motion to 

withdraw was denied. To permit withdrawal of the joint stipulations would require 

additional evidence of damages, a burden that was relieved from CATA via the various 

jointly stipulated damages calculations. This is not only unreasonable, but unjust and 

senseless. The trial court did not abuse its discretion in overruling the Board’s motion.

{¶57} The Board’s sixth assignment of error is without merit.

{¶58} WAS AMENDMENT TO COMPLAINT REQUIRED?

{¶59} For its second assignment of error, the Board asserts:

{¶60} “The trial court erred in awarding damages to the Association for the Board’s 

alleged breach of the collective bargaining agreement from the 2012-2013 school year 

through the 2020-2021 school year because the Association never amended the original 

compliant to invoke the relation back provisions of Civ.R. 15.” 

{¶61} Under this assigned error, the Board asserts CATA was required to amend 

its original complaint to relate back claims for damages beyond the 2011-2012 school 

year. By failing to amend the complaint to include damages after the 2011-2012 school 

year, the trial court erred by permitting CATA’s claims to relate back to the original date 

of the complaint. In the Board’s view, this is problematic because the parties presented 

evidence on the meaning of Section 21.4, but the CBA in which that section was included 

expired the following year. By permitting CATA to claim damages for back pay beyond 

the expiration of the CBA without an effective amendment of the complaint, the Board 

asserts the trial court essentially endorsed the idea that a party can claim damages that 

have not yet occurred. We do not agree.
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{¶62} Although the Board argues at great length that the original complaint was 

insufficient to envelop continuing damages from the time of the complaint (2011-2012 

school year) up through the 2020-2021 school year, CATA’s complaint made the following 

demand: “That the Court award C.A.T.A.’s bargaining unit members all wages and 

benefits lost by reason of Defendant Board’s breach of its collective bargaining agreement 

with C.A.T.A., in an amount to be determined at trial.” The language “all wages * * * lost 

by reason of Defendant Board’s breach” is sufficient to place the Board on notice that the 

damages sought would transcend merely those incurred merely for the 2011-2012 school 

year. This is particularly true where, as discussed above, the Board entered into a total 

of six temporally progressive joint stipulations as to damages the participating teachers 

suffered if CATA prevailed on the merits. The first joint stipulation was entered in January 

2013 and the final entered in March 2021.

{¶63} While each joint stipulation covers additional school years for which each 

party agreed to specific damages, the final joint stipulation covers the entirety of the 

damages timeline contemplated by both parties. That joint stipulation provides:

{¶64} To the extent this Honorable Court enters final judgment awarding 

CATA’s current and former members damages for each year from 

the 2011-2012 school year to the 2020-2021 school year, the 

Parties agree that Exhibit A contains the total amount of damages 

that the Board owes to each member for those years and the total 

amounts that are to be remitted to the State Teachers Retirement 

System of Ohio (“STRS”) on behalf of each member for those years 

with the exception that any damages owed by the Board shall 

continue to accrue through the date of final judgment and 

accordingly, payment of the 2020-2021 school year amounts shall 

be pro-rated through the date of final judgment including amounts 

due to STRS. (Emphasis sic.)

{¶65} Exhibit A proceeds to list the damage amounts to which all specific teachers 

would be entitled if CATA prevailed. And, as noted above, the joint stipulation covers 
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school years 2011-2012 through 2020-2021. These stipulations are clear and 

unequivocal. As such, the Board’s statement that the trial court erred in allowing the 

damages calculation to go beyond the 2011-2012 year is without merit. 

{¶66} Civ.R. 15(B) allows amendments of the pleadings to conform them to the 

evidence and provides that “[w]hen issues not raised by the pleadings are tried by express 

or implied consent of the parties, they shall be treated in all respects as if they had been 

raised in the pleadings.” The purpose of the rule is to ensure that cases are “decided on 

the issues actually litigated at trial,” and the rule therefore applies only when the unpleaded issue was “tried by either the ‘express or implied consent of the parties.’” State

ex rel. Evans v. Bainbridge Twp. Trustees, 5 Ohio St.3d 41, 44 (1983), quoting Civ.R. 

15(B). Even if the complaint were insufficiently pleaded (an issue we need not reach), 

the Board clearly and expressly consented, by evidence of the joint stipulations, the final 

of which was entered in March 2021, some 18 months after the magistrate rendered his 

decision in CATA’s favor, to allow damages through the 2020-2021 school year by 

consent. The trial court, therefore, did not err in awarding damages.

{¶67} The Board’s second assignment of error lacks merit. 

{¶68} ISSUES SURROUNDING CIV.R. 53

{¶69} The Board’s third, fourth, and fifth assignments of error shall be addressed 

together. They state:

{¶70} “[3.] The trial court erred in denying the Board’s motion to set aside the 

magistrate’s order that the Board pay damages because this matter was not properly 

referred to the magistrate pursuant to Civ.R. 53(D)(1)(a).
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{¶71} “[4.] The trial court erred in denying the Board’s motion to set aside the 

magistrate’s order that the Board pay damages because the magistrate had no authority 

to order the Board to pay damages pursuant to Civ.R. 53(D)(2)(a)(i).

{¶72} “[5.] The trial court erred in adopting the magistrate’s findings of fact and 

conclusions of law because the procedural requirements of Civ.R. 53 were not followed.”

{¶73} The Board first asserts the trial court erred in denying its motion to set aside 

the September 30, 2019 magistrate’s decision (the decision on the merits of the case) 

because it failed to comply with the mandates of Civ.R. 53(D)(2)(a)(ii). The Board 

contends the magistrate’s “order” is identified as a magistrate’s “decision,” in violation of 

the rule; moreover, it contends that, even if it is a decision, the same purports to include 

a “hidden order” to pay damages found in the magistrate’s recommendation to the trial 

court. We do not agree.

{¶74} Initially, the magistrate’s decision is not an “order” governed by Civ.R. 

53(D)(2)(a). A primary feature of a magistrate’s order is it will take effect without judicial 

approval. Civ.R. 53(D)(2)(a)(i). Alternatively, “a magistrate’s decision is not effective 

unless adopted by the court.” Civ.R. 53(D)(4)(a). The trial on the merits eventuated in 

the September 30, 2019 magistrate’s decision to which the Board filed objections 

pursuant to Civ.R. 53(D)(3)(b). The court considered the objections and, ultimately, 

adopted the great balance of the magistrate’s decision. This judicial approval rendered 

the magistrate’s decision on the approved findings and conclusions “effective.” And it is 

from this judgment that a final order on the merits proceeded on appeal. Therefore, the 

September 2019 filing was a magistrate’s decision and not an order.
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{¶75} Further, there are no “hidden orders” to pay damages or otherwise in the 

September 2019 decision. The Board asserts the following magistrate’s recommendation

is an improper “order”: “An order should issue requiring the Auburn board to pay those 

teachers named in Exhibit A in the amount or amounts due less required governmental 

withholding and other amounts required under the CBA (such as STRS contributions to 

name one).” (Emphasis added). The term “should” is not a mandate to the trial court. 

Indeed, given the nature of a magistrate’s decision, any such directive would be contrary 

to rule. Instead, it is merely a proposal to the trial court from the magistrate in light of the 

latter’s view of the evidence received, facts found, and surrounding conclusions rendered.

{¶76} Next, the Board argues the trial court erred in denying its motion to set aside 

the magistrate’s order because the matter was never properly referred to the magistrate. 

This assertion lacks merit.

{¶77} “‘Civ.R. 53 do[es] not specify the form of the reference order nor do[es] [it] 

require the court to journalize an individual order of reference for each issue submitted.’” 

State ex rel. Nalls v. Russo, 96 Ohio St.3d 410, 2002-Ohio-4907, ¶21, quoting In re

Morales, 8th Dist. Cuyahoga No. 78271, 2001 WL 370637 (Apr. 12, 2001), *7. The record

demonstrates that, on May 21, 1999, the trial court entered the following judgment: 

“Pursuant to the authority of the statute and of Civ.R. 53(C)(1), the within continuing order

of reference shall enable Kenneth R. Roll [the magistrate in the underlying matter], a full

time magistrate for the Lake County Common Pleas Court, to hear all cases, motions and

issues encompassed by Civ.R. 53.” Civ.R. 53(C)(1)(b) provides: “To assist courts of 

record and pursuant to reference under Civ. R. 53(D)(1), magistrates are authorized, 

subject to the terms of the relevant reference, to do any of the following: * * * Conduct the 
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trial of any case that will not be tried to a jury[.]” Civ.R. 53(D)(1). Civ.R. 53(D)(1)(a)

provides: “A court of record may, for one or more of the purposes described in Civ.R. 

53(C)(1), refer a particular case or matter or a category of cases or matters to a magistrate 

by a specific or general order of reference or by rule.” 

{¶78} Civ.R. 53 requires a trial court to refer a magistrate to preside over or 

address matters. See, generally, Civ.R. 53(A), (C), and (D). There is no specific formal 

requirement on the manner the court enters the reference. See Morales, supra. Here, 

the trial court filed a continuing, general order of reference that empowered the magistrate 

in this case to “hear all cases, motions and issues encompassed by Civ.R. 53.” We 

discern no procedural irregularities that compromised the magistrate’s authority to hear 

the underlying matter.

{¶79} Finally, the Board redundantly claims the trial court lacked authority to 

“order” the Board to pay damages under Civ.R. 53(D)(2)(a)(i). As previously emphasized, 

the magistrate’s decision is not an order and therefore, Civ.R. 53(D)(2) is inapplicable to 

this case.

{¶80} The Board’s third, fourth, and fifth assignments of error lack merit.

{¶81} CHALLENGE TO THE MERITS

{¶82} The Board’s seventh assignment of error provides:

{¶83} “The trial court erred in interpreting Section 21.4 to only apply to the student 

day versus the teacher workday.”

{¶84} Under its final assignment of error, appellant contends the trial court abused 

its discretion in adopting the magistrate’s decision on the merits of CATA’s breach of 

contract claim and awarding damages. 
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{¶85} We review a trial court’s adoption of a magistrate’s decision for an abuse of 

discretion. Reamsnyder v. Marino, 11th Dist. Trumbull No. 2018-T-0039, 2018-Ohio5336, ¶7. “A court abuses its discretion when its judgment neither comports with reason, 

nor the record.” Warren Concrete & Supply, Inc. v. Strohmeyer Contracting, Inc., 11th

Dist. Trumbull No. 2010-T-0004, 2010-Ohio-5395, ¶17.

{¶86} In reviewing a trial court’s weighing of competing evidence and credibility 

determinations, we are guided by a presumption that the trial court's factual findings are 

correct. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶24. In considering 

whether a civil judgment is against the manifest weight of the evidence, an appellate court 

must apply the same standard as is used in reviewing a criminal judgment. Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶17. Under that standard, an appellate 

court “‘weighs the evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the evidence, the [finder of 

fact] clearly lost its way and created such a manifest miscarriage of justice that the 

[judgment] must be reversed and a new trial ordered.’” Tewarson v. Simon, 141 Ohio

App.3d 103, 115, (9th Dist.2001), quoting State v. Thompkins, 78 Ohio St.3d 380, 387

(1997). In Eastley, the Supreme Court of Ohio quoted Tewarson with favor. Eastley, 

supra, at ¶20. 

{¶87} The Board first asserts that the trial court erred in interpreting Section 21.4 

to only apply to the student day versus the teacher workday because the parties never 

reached a meeting of the minds with respect to the eighth period stipend’s meaning. The 

Board’s position is premised upon its conclusion that there was never a meeting of the 

minds when the section was included in the CBA.
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{¶88} Clear and unambiguous contractual language is applied without 

consideration of extrinsic evidence, and such plain language is reviewed de novo. Shifrin

v. Forest City Ent., Inc., 64 Ohio St.3d 635, 638 (1992). If a contract is reasonably 

susceptible to more than one meaning, then it is ambiguous and extrinsic evidence of

reasonableness or intent can be employed. Id. Words and phrases are given their 

common and ordinary meanings absent specific contractual definitions. See, e.g., King

v. Nationwide Ins. Co., 35 Ohio St.3d 208, 212 (1988) (unless manifest absurdity would 

result or an alternative meaning is clearly demonstrated in the contract).

{¶89} An ambiguity in a collective bargaining agreement “cannot be resolved 

against any one particular party, which further makes the arbitrator’s[, or in this case the 

fact finder’s] interpretation of the contract provision worthy of deference by a reviewing 

court * * *.” Cleveland Police Patrolmen’s Assn. v. Cleveland, 99 Ohio App.3d 63, 66-67

(8th Dist.1994). See also Dayton v. Fraternal Order of Police, 76 Ohio App.3d 591, 598

(2d Dist.1991) This point is likely premised upon the generally equal and sophisticated 

bargaining positions each party possesses during the negotiating process. Hence, “ʻ[i]n 

determining the mutual intent of the parties concerning any ambiguity the arbitrator [or, in 

this case, the fact finder] may look to the entire agreement, the history of the dealings 

between the parties, and industry practice.’” Greater Dayton Regional Transit Auth. v. 

Amalgamated Transit Union AFL-CIO Local 1385, 2d Dist. Montgomery No. 28155, 2019-

Ohio-392, ¶48, quoting Dayton, supra.

{¶90} In reversing the trial court’s earlier award of summary judgment to the 

Board, this court concluded there was an ambiguity in the language of Section 21.4. 

Hence, at trial, the magistrate was required to resolve the ambiguity at issue.
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{¶91} Thomas Schultz was the Superintendent of Auburn Career Center from 

1998 until April 1, 2009. As superintendent, Mr. Schultz was involved in establishing the 

Eighth Period Stipend. Mr. Schultz testified the Eighth Period Stipend was implemented 

because certain teachers were working eight instructional periods per day, while others 

were not. Because these teachers were working an extra period beyond others, he stated 

these teachers were entitled to more compensation.

{¶92} Rodney Kozar became a teacher at Auburn in 2004. Ultimately, he became 

the lead negotiator for CATA during negotiations over the CBA at issue. Mr. Kozar 

testified that he was aware of and had received the Eighth Period Stipend, which he 

characterized as “a ten percent stipend on your base pay that you would receive if you 

were in direct supervision of students during every available instructional period, 

essentially.” Although Mr. Kozar was not employed with Auburn when the Eighth-PeriodStipend policy was initiated and it was not an aspect of the CBA when he joined the 

faculty, he asserted that he was aware of it and “[i]t was a common understanding.” He 

additionally testified that Section 21.4 was intended to simply memorialize the parties’ 

past practices of affording an Eighth Period Stipend for those teachers who taught eight 

periods during a school day.

{¶93} Moreover, Robert Hill, a longtime teacher for Auburn, became president of 

CATA in June 2011. He testified that if he was teaching eight periods per day, four in the 

morning and four in the afternoon, he received the Eighth Period Stipend. Furthermore, 

CATA introduced multiple supplemental contracts into which both parties entered to 

permit compensation for “one period of work,” most of which refer to compensation for 

“8th period” or “8

th period duties.” These contracts predate the CBA at issue and go back 
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as early as the school year for 2000-2001. The supplemental contracts demonstrate that 

the parties understood the additional “8th period” would be compensated in addition to the 

teacher’s base salary for an additional instruction period taught.

{¶94} Further, a review of the history of the CBA at issue demonstrates, during its 

drafting, a section was reserved for an “Eighth Period Stipend.” Although it first appeared 

in a June 8, 2009 draft and was blank, this section, upon the CBA’s finalization,

culminated in Section 21.4 of the CBA. In light of the supplemental agreements entered 

into evidence, as well as the evidence of past practices to which Mr. Schultz, Mr. Kozar, 

and Mr. Hill testified, a reasonable inference can be drawn that the stipend at issue 

applied to teachers who taught eight full periods during the course of students’

instructional class day. We therefore conclude that there was competent, credible 

evidence to support the magistrate’s conclusion that the parties inserted Section 21.4 to 

memorialize the past practice of paying teachers an additional sum for teaching eight 

periods during a class day.

{¶95} The Board, however, contends the magistrate failed to construe the CBA as 

written; ignored Ohio law on planning periods set forth in O.A.C. 3301-35-05(A)(8); 

disregarded the authority of public employers to regulate work schedules under R.C. 

4117.08(C); and disregarded Art. 6 of the CBA, which afforded the Board and 

superintendent the right to manage teachers’ work schedules.

{¶96} The Board’s arguments conflate its (as well as the superintendent’s) ability 

to schedule a planning period outside the student instructional day with its duty to 

compensate teachers pursuant to Section 21.4. Even assuming the Board has the ability 

and authority to manage teachers’ schedules and schedule planning periods at any time 
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during teachers’ workday, this court, in reversing the trial court’s original grant of summary 

judgment, held that “Section 21.4 is ambiguous and that a fact issue exists as to the 

parties’ intent concerning the meaning of this provision.” Career & Technical Assn., 

supra, at ¶36. 

{¶97} This court’s remand order directed the trial court to take evidence from both 

parties regarding the meaning of the Eighth Period Stipend provision. While it was the 

Board’s action of mandating a pre-class planning period which, in effect, prompted the 

dispute, the Board’s actions of mandating the planning period or regulating work hours is 

irrelevant to the meaning of Section 21.4. In fact, the evidence received on the issue of 

the section’s meaning and the trial court’s interpretation of the section do not affect the 

Board’s authority to mandate a planning period or regulate teachers’ work hours. 

{¶98} As discussed throughout this case, CATA advanced an interpretation of the 

Eighth Period Stipend that would entitle a teacher to the stipend if the teacher has 

classroom instructional duties during all eight instructional periods without a planning 

period at some point during the eight instructional periods. Under this interpretation, the 

mandated pre-instructional planning period (which the Board had authority to implement 

or at least CATA does not challenge any such authority) does not qualify as a planning 

period because no instructional duties are assigned to teachers during this time. 

Alternatively, the Board contends, at least in part, the section should be construed that, 

as long as teachers are afforded a planning period at any time during their workday, even 

prior to the classroom instructional periods, they are not entitled to the stipend. This court 

concluded that the section is reasonably susceptible to each of these interpretations and 

therefore a trial was required to resolve the ambiguity. 
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{¶99} To aid in resolving this factual issue, this court pointed out an additional 

ambiguity required attention; namely, the meaning of the phrase “Eighth Period Stipend.” 

Id. at ¶25-26. In addressing this point, this court noted that parol evidence would be 

admissible to assist in defining the meaning of the phrase which would involve introducing 

evidence of the parties’ past practices prior to the inclusion of the eighth period stipend in 

the CBA. Id. at ¶30-31.

{¶100}In concluding the ambiguity should be resolved in favor of CATA’s 

interpretation, the trial court relied upon the past practices of the parties relating to the 

application of the Eighth Period Stipend. “‘The law is clear that where the language of 

the contract is ambiguous, the court can look to such extrinsic evidence as the parties’ 

conduct, the statements of its representatives, and past practice to aid in interpretation.’” 

Westgate Ford Truck Sales v. Ford Motor Co., 8th Dist. Cuyahoga Nos. 101136 and 

101073, 2014-Ohio-5429, ¶19, quoting Klapp v. United Ins. Group Agency, Inc., 468

Mich. 459, 470 (2003); see, also, Dayton, supra, (in determining the mutual intent of the 

parties concerning ambiguities, various points may be considered, including the history 

of the dealings of the parties and industry practice.) Also, “ʻ[a]n employer’s past practice 

can become an implied term of a CBA.’” Laborer’s Int’l Union of N. America, Local Union 

No. 860 v. Cuyahoga Cty. Common Pleas Court, Juvenile Div., 8th Dist. Cuyahoga No. 

CA-19-108096, 2019-Ohio-3190, ¶26, quoting Bonnell/Tredegar Industries, Inc. v. Natl. 

Labor Relations Bd., 46 F.3d 339, 344 (C.A.4, 1995).

{¶101} When interpreting technical terms, which this court concluded the phrase 

“eighth period stipend” was, “past practice is commonly used to explain technical or 

ambiguous terms in a contract.” Career & Technical Assn, supra, ¶30. “To be binding 
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on parties to a collective bargaining agreement, a past practice must be (1) unequivocal, 

(2) clearly enunciated, and (3) followed for a reasonable period of time as a fixed and 

established practice accepted by both parties.” Assn. of Cleveland Fire Fighters, Local 

93 of the Intl. Ass. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278, 

syllabus. 

{¶102} CATA presented evidence from its teachers who received the Eighth Period 

Stipend prior to its memorialization in the CBA. Indeed, CATA submitted exhibits 

depicting copies of supplemental contracts (nearly all of which provided the designation 

“8th period” evincing an intent that the contracts were entered for the teachers’ eighth 

period instruction) which demonstrated that the Board and the teachers had an 

established, formal practice of compensating teachers for “8th period” duties. The 

reasonable conclusion one draws from this evidence is that, prior to the eighth period 

stipend formally appearing in the CBA, the Board and teachers had an unequivocal, 

clearly enunciated past practice followed by each for multiple years. 

{¶103} Moreover, CATA presented testimony of Auburn’s former superintendent, 

Mr. Schultz, who testified:

{¶104}“[W]hen I was in the role of superintendent, we put in place the eighth 

period stipend. It meant that the four periods, a three-hour time block 

in the morning and in the afternoon, was taught by the teachers. 

Most teachers had assignments, instructional assignments, for 

seven periods, or assignment teaching and a duty assignment for 

seven periods. So, if a teacher had students, and they’ve had them 

in the instructional setting for four periods in the morning, four periods 

in the afternoon, they qualified for the eighth period stipend.”

{¶105} Mr. Schultz clarified that “instruction” meant the teachers were in an 

assigned class period with students for the purpose of instruction or teaching.
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{¶106} Mr. Schultz testified, in his estimation, the Eighth Period Stipend 

commenced between 2000 and 2002, between seven and nine years prior to its 

memorialization in the CBA. And he further clarified that he, in conjunction with the union, 

implemented the stipend because some teachers were teaching students eight periods 

per day and others were not. In effect, Mr. Schultz confirmed that the stipend was offered 

because certain teachers “working an extra period above the rest of the group.”

{¶107}In light of the foregoing, we conclude the magistrate weighed each party’s 

interpretation of Section 21.4 and, in light of the ambiguity previously identified by this 

court, considered the parties’ past practices. In doing so, the magistrate determined that 

the Eighth Period Stipend was intended to compensate teachers who taught all eight 

periods of the day. The evidence submitted by CATA supports this conclusion. Thus, we 

hold that the magistrate did not err in ruling that CATA’s interpretation was the intended 

meaning of Section 21.4 and that meaning is binding on the parties. Accordingly, the trial 

court did not abuse its discretion in adopting the magistrate’s ultimate conclusion.

{¶108} The Board’s seventh assignment of error lacks merit. 

{¶109} For the reasons discussed in this opinion, the judgments of the Lake County 

Court of Common Pleas are affirmed. 

THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.