[Cite as W. Branch Local School Dist. Bd. of Edn. v. W. Branch Edn. Assn., 2015-Ohio-2753.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

WEST BRANCH LOCAL SCHOOL ) CASE NO. 14 MA 53

DISTRICT BOARD OF EDUCATION, ) 

) 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) OPINION 

) 

WEST BRANCH EDUCATION ) 

ASSOCIATION, ET AL., ) 

 ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 13CV2393 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Helen S. Carroll 

 Atty. Sarah J. Moore 

Roetzel & Andress, LPA 

222 South Main Street 

Akron, Ohio 44308 

For Defendant-Appellant: Atty. Ira J. Mirkin 

Atty. Stanley J. Okusewsky III 

Atty. Charles W. Oldfield 

Green Haines Sgambati Co., LPA 

City Centre One, Suite 800 

100 Federal Plaza East 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

Dated: June 29, 2015
[Cite as W. Branch Local School Dist. Bd. of Edn. v. W. Branch Edn. Assn., 2015-Ohio-2753.]

ROBB, J. 

{¶1} Defendants-appellants West Branch Education Association and Ohio 

Education Association (collectively referred to as “Association”) appeal the decision 

of the Mahoning County Common Pleas Court granting plaintiff-appellee West 

Branch Local School District Board of Education’s (“Board”) motion for a permanent 

injunction. The issue in this case is whether the trial court erred in granting the 

permanent injunction. Encompassed in that issue is whether the collective 

bargaining agreement (“CBA”) between the Association and the Board provides that 

the grievance filed by the Association is arbitrable. 

{¶2} We hold that the trial court erred in granting the permanent injunction. 

The claim is arbitrable. Therefore, the trial court’s decision is hereby reversed and 

remanded with instructions for the trial court to deny the permanent injunction. 

Statement of the Facts and Case

{¶3} The Board hired Tracie McFerren (“McFerren”) as a teacher in 2008 

and from 2011 to 2013 she was employed under an extended limited contract. That 

contract was set to expire on June 30, 2013. The Board’s only options in terms of 

McFerren’s future employment in 2013 were nonrenewal, or an award of a continuing 

contract/tenure. 

{¶4} The Association and the Board entered into a CBA that ran from July 1, 

2012 to June 30, 2014. This CBA governs McFerren’s contract. In April 2013, the 

Board notified McFerren that it would not renew her limited teaching contract and 

provided her with a statement of the reasons for the decision. The Board held a 

hearing on June 10, 2013 concerning the non-renewal. After hearing the evidence 

the Board announced its final decision and declined to renew McFerren’s contract. 

6/15/13 Letter. 

{¶5} The Association filed a grievance on July 18, 2013 protesting the 

Board’s decision. The Association alleged violations of the CBA between the Board 

and the Association. The Superintendent of West Branch timely provided a written 

response to the Association and denied the grievance. In denying the grievance, the 

Superintendent informed the Association that the grievance was procedurally and 

substantively inarbitrable. 
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{¶6} The Association then submitted its request for arbitration to the Federal 

Mediation and Conciliation Service on August 13, 2013. In response, the Board filed 

the instant action in the Mahoning County Common Pleas Court seeking a temporary 

restraining order, and preliminary and permanent injunctions. 8/26/13 Complaint. In 

the complaint the Board asserted that the grievance is not subject to arbitration. 

{¶7} The trial court granted the temporary restraining order the same day 

that the complaint was filed. Thereafter, the parties agreed to submit the matter to 

the court on the briefs in lieu of a hearing and agreed that the court could decide the 

preliminary and permanent injunctions simultaneously. 

{¶8} After reviewing the parties’ filings, the trial court granted the Board’s 

request for a preliminary and permanent injunction. Thus, the trial court found that 

the grievance was not arbitrable. 

{¶9} The Association appeals that decision. 

Assignment of Error

“The trial court erred when it granted the School Board’s motion for preliminary 

and permanent injunction.” 

{¶10} Although this assignment of error references the trial court’s decision to 

grant both the preliminary injunction and the permanent injunction, it is noted that the 

decision to grant or deny a permanent injunction effectively moots the issue of the 

right to a preliminary injunction. Alan v. Andrews, 7th Dist. No. 06MA151, 2007-Ohio2608, ¶ 51. Thus, our only concern on appeal is whether the trial court’s decision to 

grant the permanent injunction was correct. 

{¶11} The parties disagree about our standard of review. Generally, the 

decision to grant or deny an injunction is a matter within the discretion of the trial 

court, and a reviewing court will not disturb the judgment of the trial court absent an 

abuse of discretion. Garono v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988). 

An abuse of discretion connotes more than an error of law or judgment; it entails a 

decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶12} Based upon that law, the Board asserts that we review the permanent 

injunction for an abuse of discretion. The Association disagrees. It acknowledges 
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the above stated law, but contends that since the determination of whether the 

grievance is arbitrable under the CBA, which is a contract, we review the matter de 

novo. 

{¶13} Our sister district in deciding whether or not a permanent injunction 

should have been granted in a contract case has explained: 

While we review the trial court's granting of the permanent 

injunction pursuant to the above-stated standard, Appellant's argument 

raises the matter of contract construction. If the contract is clear and 

unambiguous, its interpretation is a matter of law, and there is no issue 

of fact to determine. Inland Refuse Transfer Co. v. Browning-Ferris 

Industries of Ohio, Inc. (1984), 15 Ohio St.3d 321, 322, 15 OBR 448, 

474 N.E.2d 271, citing Alexander v. Buckeye Pipe Line Co. (1978), 53 

Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146. However, where the 

contract language is reasonably susceptible of more than one 

interpretation, the meaning of the ambiguous language is a question of 

fact. Ohio Historical Soc. v. Gen. Maint. & Eng. Co. (1989), 65 Ohio 

App.3d 139, 146, 583 N.E.2d 340. 

AultCare Corp. v. Roach, 5th Dist. No. 2008CA00287, 2009-Ohio-6186, ¶ 57. 

{¶14} The specific issue before us is, does the language of the CBA indicate 

that the grievance filed by the Association is arbitrable? Resolution of this issue is a 

matter of contract interpretation, which is a matter of law. Hence, we employ a de 

novo standard of review. 

{¶15} With that standard in mind, we now must decide whether the trial court 

erred in granting the permanent injunction. The test for granting a permanent 

injunction is similar to the test used for granting a preliminary injunction; however, 

there is one distinct difference. The preliminary injunction test requires the moving 

party to prove a substantial likelihood of success on the merits. Chapin v. Nameth, 

7th Dist. No. 08 MA 18, 2009-Ohio-1025, ¶ 16 quoting, Procter & Gamble Co. v. 

Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d 268 (1st Dist.2000) (test for 

preliminary injunction). A permanent injunction test requires a higher standard. It 

requires the party seeking it to demonstrate a right to relief under the applicable 
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substantive law. Village of Ottawa Hills v. Boice, 6th Dist. No. L-12-1301, 2014-Ohio1992, ¶ 14; Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 

N.E.2d 268 (1st Dist.2000). Or in other words, the moving party must prove that he 

has prevailed on the merits. Great Plains Exploration, L.L.C. v. Willoughby, 11th 

Dist. No. 2006–L–022, 2006-Ohio-7009, ¶ 12; AultCare, 2009-Ohio-6186 at ¶ 56; 

State ex rel Dewine v. Ashworth, 4th Dist. No. 11CA16, 2012-Ohio-5632, ¶ 61, Miller 

v. Miller, 11th Dist. No. App. No.2004-T-0150, 2005-Ohio-5120, ¶ 10-11, citing 

Ellinos, Inc. v. Austintown Twp. (N.D.Ohio 2002), 203 F.Supp.2d 875, 886; Edinburg 

Restaurant, Inc. v. Edinburg Twp. (N.D.Ohio 2002), 203 F.Supp.2d 865, 873. 

{¶16} In ruling on the preliminary and permanent injunctions, the trial court did 

not state that the Board prevailed on the merits. Rather, it stated that the Board “is 

likely to prevail on the merits.” 4/9/14 J.E. Although the trial court incorrectly stated 

the test for granting a permanent injunction, the trial court did clearly grant a 

permanent injunction. Its judgment was a determination that the Board prevailed on 

the merits. 

{¶17} The arguments raised in the sole assignment of error concern whether 

the Board prevailed on the merits. The “merits,” in this instance, do not involve 

whether the Board complied with the CBA in evaluating the teacher, or whether the 

teacher is entitled to her job. The merits in this instance are confined to whether the 

grievance is arbitrable. The United State Supreme Court has explained: 

[I]n deciding whether the parties have agreed to submit a 

particular grievance to arbitration, a court is not to rule on the potential 

merits of the underlying claims. Whether “arguable” or not, indeed even 

if it appears to the court to be frivolous, the union's claim that the 

employer has violated the collective-bargaining agreement is to be 

decided, not by the court asked to order arbitration, but as the parties 

have agreed, by the arbitrator. “The courts, therefore, have no business 

weighing the merits of the grievance, considering whether there is 

equity in a particular claim, or determining whether there is particular 

language in the written instrument which will support the claim. The 

agreement is to submit all grievances to arbitration, not merely those 
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which the court will deem meritorious.” American Mfg. Co., 363 U.S., at 

568, 80 S.Ct., at 1346 (footnote omitted). 

AT & T Technologies, Inc., 475 U.S. at 649-50. Thus, the specific and narrow issue 

before us is whether the CBA requires arbitration of the grievance filed against the 

Board. 

{¶18} The CBA contains a Grievance Policy and Procedure. CBA Article III. 

It defines a grievance as, “A claim by a bargaining unit member or the Association 

that there has been a violation, misinterpretation, or misapplication of the terms of 

this Agreement.” CBA Article III, Section B(1). Resolution of a grievance, under this 

CBA, begins with an attempt to resolve it informally. If the matter cannot be resolved, 

then it proceeds through the six procedural levels as defined by the agreement, each 

level becoming more formal than the previous. Ultimately, if the grievance cannot be 

resolved by the less formal five procedural levels, then the grievance proceeds to the 

sixth and final level, which is binding arbitration. CBA Article III, Section C(6). The 

arbitrator’s authority in binding arbitration “shall involve the interpretation, application 

or alleged violation of a specific provision(s) of the contract.” CBA Article III, Section 

C(6)(a). However, the arbitrator has “no power to add to, subtract from, or modify 

any of the terms of the contract or to arbitrate any matter not specifically provided by 

the contract.” CBA, Article III, Section C(6)(a). 

{¶19} The written grievance the Association submitted states: 

Statement of Grievance:

That the West Branch Board of Education and/or its agents violated, 

misinterpreted and/or misapplied the collective bargaining agreement, 

including but not limited to Article V. Rights and Responsibilities, Section 

G. Teacher Evaluation, Section L. Continuing Contracts, and Section Q. 

Fair Dismissal, when Tracie McFerren’s teaching contract was nonrenewed. 

Remedy Sought: 

That the West Branch Board of Education immediately grant a 

continuing contract to Tracie McFerren, lost wages and benefits, 

restoration of seniority, any other rights or privileges allowable under 
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the contract, and any other action or emolument deemed appropriate by 

the arbitrator in order to make the grievant whole. It is further 

requested that the arbitrator retain jurisdiction until compliance with the 

provisions of the award. 

10/26/13 Complaint, Exhibit G. 

{¶20} This grievance specifically references Article V, Rights and 

Responsibilities, Section G, Teacher Evaluations. The stated purpose for the 

evaluations is to assess the bargaining unit member’s work performance and “to 

constitute the basis for personnel decisions including promotions, reassignments, 

continuing contract status, limited contract renewal, or contract non-renewal or 

termination.” CBA Article V, Section G(2). Concerning what the teacher evaluation 

should contain, the CBA states: 

1. In those areas where improvement is needed, the 

observer shall provide written direction for improvement strategies 

and assistance in correcting the deficiencies. The plan shall include 

a reasonable time between observations to allow time for 

improvement in the areas of performance deficiency. 

CBA, Article V, Section G(3)(a)(1). 

{¶21} Despite all the above language that requires a grievance to be 

arbitrated, the Board asserts that the CBA contains no language and no provision 

that allows a teacher to grieve the Board’s ultimate decision to renew or non-renew a 

teacher’s limited contract of employment. It directs this court to R.C. 3319.11 and the 

Fair Dismissal section in the CBA. 

{¶22} The Fair Dismissal section in the CBA states, “All bargaining unit 

members shall have all rights under R.C. 3319.11.” CBA Article V, Section Q. R.C. 

3319.11 is titled Continuing Service Status and Contract; Limited Contract; Failure of 

Board or Superintendent to Act; Reemployment Procedures; Hearing on Denial of 

Reemployment R.C. 3319.11. This statute provides that if there is a recommendation 

from the superintendent that the teacher not be reemployed, and if the evaluation 

procedures in R.C. 3319.111 have not been followed, then the teacher is deemed 
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reemployed under an extended limited contract for at most a one year term at the 

same salary: 

(2) If the superintendent recommends that a teacher eligible for 

continuing service status not be reemployed, the board may declare its 

intention not to reemploy the teacher by giving the teacher written 

notice on or before the first day of June of its intention not to reemploy 

the teacher. If evaluation procedures have not been complied with 

pursuant to section 3319.111 of the Revised Code or the board does 

not give the teacher written notice on or before the first day of June of 

its intention not to reemploy the teacher, the teacher is deemed 

reemployed under an extended limited contract for a term not to exceed 

one year at the same salary plus any increment provided by the salary 

schedule. The teacher is presumed to have accepted employment 

under the extended limited contract for a term not to exceed one year 

unless such teacher notifies the board in writing to the contrary on or 

before the fifteenth day of June, and an extended limited contract for a 

term not to exceed one year shall be executed accordingly. Upon any 

subsequent reemployment of a teacher only a continuing contract may 

be entered into. 

* * * 

(D) A teacher eligible for continuing contract status employed 

under an extended limited contract pursuant to division (B) or (C) of this 

section, is, at the expiration of such extended limited contract, deemed 

reemployed under a continuing contract at the same salary plus any 

increment granted by the salary schedule, unless evaluation 

procedures have been complied with pursuant to section 3319.111 of 

the Revised Code and the employing board, acting on the 

superintendent's recommendation that the teacher not be reemployed, 

gives the teacher written notice on or before the first day of June of its 

intention not to reemploy such teacher. A teacher who does not have 

evaluation procedures applied in compliance with section 3319.111 of 
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the Revised Code or who does not receive notice on or before the first 

day of June of the intention of the board not to reemploy such teacher is 

presumed to have accepted employment under a continuing contract 

unless such teacher notifies the board in writing to the contrary on or 

before the fifteenth day of June, and a continuing contract shall be 

executed accordingly. 

R.C. 3319.11(B)(2), (D). 

{¶23} The statute further provides that a teacher may appeal from an order 

affirming the intention of the board not to reemploy the teacher to the court of 

common pleas within thirty days of the date on which the teacher receives the written 

decision. R.C. 3319.11(G)(7). The court is “limited to the determination of 

procedural errors and to ordering the correction of procedural errors.” R.C. 

3319.11(G)(7). The statute then provides that the trial court has no jurisdiction to 

order a board to reemploy a teacher unless there is non-compliance with the 

evaluation procedures in R.C. 3319.111. 

{¶24} The evaluation procedures set forth in the current version of R.C. 

3319.111 are less onerous than the ones set forth in the CBA. Specifically, the 

current version of R.C. 3319.111 does not contain a requirement to give written 

direction for improvement and assistance in correcting the deficiencies. The version 

of R.C. 3319.111 that was effective from June 9, 2004 through July 28, 2011 had 

such a requirement in section (B)(3) as does the CBA before us. 

{¶25} The CBA specifically states, “The provisions of Section G., Teacher 

Evaluation, are intended to supersede the provisions of R.C. 3319.111.” CBA Article 

V, Section G(1). The Ohio Supreme Court has indicated that R.C. 3319.111 is a 

remedial statute and “unless a collective bargaining agreement specifically provides 

to the contrary, R.C. 3319.111 governs the evaluation of a teacher employed under a 

limited contract.” Naylor v. Cardinal Local School Dist. Bd. Of Edn., 69 Ohio St.3d 

162, 165, 630 N.E.2d 725. The provision in the CBA at hand clearly provides to the 

contrary. Thus, pursuant to the Ohio Supreme Court’s holding the provisions of the 

CBA govern the evaluation procedure. 
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{¶26} Although the Board admits that the evaluation procedure in the CBA 

governs, it contends that the provisions in R.C. 3319.11 also govern. Those 

provisions require the teacher who is not being reemployed to appeal that decision to 

the common pleas court. Consequently, according to it, the matter would not be 

arbitrable. 

{¶27} We disagree based upon the clear language in R.C. 3319.11(G)(7). As 

stated above, the common pleas court is limited to procedural errors and correction 

of those procedural errors. Here, it is clear that the evaluation procedure was 

followed. However, the question at issue is substantive. The CBA indicates that in 

areas where improvement is needed, “written direction for improvement strategies 

and assistance” shall be provided. CBA, Article V, Section G(3)(a)(1). While the 

grievance filed claims, in general, that there was a violation, misinterpretation, and/or 

misapplication of Article V, Section G Teacher Evaluation of the CBA, the additional 

filings by the Association explains its position. The Association disputes that 

McFerren was informed of her deficiencies in the evaluations, provided direction for 

improvement, and granted assistance to correct the deficiencies. “The Board 

violated the terms of the Agreement by failing to provide Ms. McFerren with clear 

notice of areas where improvement was needed or giving her written direction and 

the means for improvement strategies in correcting any alleged ‘deficiencies’.” 

9/19/13 Brief in Opposition, pg. 19. The transcript of the hearing by the Board that 

occurred on June 10, 2013, confirms that is the substance of the grievance. Thus, 

the issue is a substantive issue. Specifically, whether McFerren was provided with 

the tools needed to meet the Board’s expectations. That issue could not properly be 

brought before the common pleas court under R.C. 3319.11; it is not a procedural 

issue concerning the evaluation process. 

{¶28} Furthermore, reading the contract in the manner the Board suggests 

fails to take into account that the CBA clearly provides for arbitration of a grievance. 

As aforementioned, the CBA states that the arbitrator has the authority over any 

alleged violation of a specific provision of the contract. CBA Article III, Section 

C(6)(a). A grievance is a claim that is a violation of the terms of the CBA. CBA 

Article III, Section B(1). By these provisions, the preferred method to resolve any 
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grievance is through the grievance process and arbitration. There is no language in 

the definitions and provisions of the CBA that limits the grievance process to only 

nonterminable issues. The grievance filed in this case alleges that the Board 

“violated, misinterpreted and/or misapplied the collective bargaining agreement, 

including but not limited to Article V. Rights and Responsibilities, Section G. Teacher 

Evaluation, Section L. Continuing Contracts, and Section Q. Fair Dismissal, when 

Tracie McFerren’s teaching contract was non-renewed.” This grievance is an 

arbitrable claim under the definitions and provisions in the CBA. The law in Ohio is 

clear that arbitration is favored and any doubts in the applicability of a given provision 

should be resolved in favor of arbitration. Hayes v. Oakridge Home, 122 Ohio St.3d 

63, 2009–Ohio–2054, 908 N.E.2d 408, ¶ 15; Taylor v. Ernst & Young, L.L.P., 130 

Ohio St.3d 411, 2011-Ohio-5262, 958 N.E.2d 1203, ¶ 20. 

{¶29} The case at hand is similar to a case from our sister district. Antram v. 

Upper Scioto Valley Local Sch. Dist. Bd. of Edn., 3d Dist. No. 6-08-4, 2008-Ohio5824. Antram, a teacher, was evaluated. Following the evaluations, the 

superintendent recommended that the school board not renew his teaching contract. 

The school board followed that recommendation. Antram then requested a written 

statement of circumstances outlining the decision to not renew, which was provided 

to him. Thereafter, Antram requested and received a hearing. The board still chose 

to not renew his contract which resulted in him filing an appeal in the common pleas 

court. Id. at ¶ 2. 

{¶30} After hearing the case, the trial court concluded that it did not have 

jurisdiction; it found that the collective bargaining agreement bound the parties to 

arbitration for dispute resolution. Id. at ¶ 3. In arguing that the trial court’s decision 

was incorrect, Antram admitted that the collective bargaining agreement set forth a 

teacher evaluation process and also indicated the provision superseded R.C. 

3319.111. Id. at ¶ 10. The focus of his argument was on the fact that the collective 

bargaining agreement did not contain language that the agreement superseded R.C. 

3319.11. Id. In finding no merit with that argument, the appellate court provided the 

following reasoning: 
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In the case before us, Article 19 of the CBA sets forth the 

teacher evaluation process and specifically provides that “[t]his plan 

shall supersede O.R.C. § 3319.111.” Additionally, Article 9 of the CBA 

describes the grievance procedure. “Grievance” is defined as “a claim 

by the Association or by one or more teachers that there has been a 

violation, misinterpretation or misapplication of a provision of the 

Agreement, or a violation, misapplication or misinterpretation of Board 

Policy.” The CBA then describes four levels of formal grievance 

procedure, culminating in the aggrieved party submitting his grievance 

to binding arbitration. Further, the CBA provides that the procedures 

contained in Article 9 “constitute the sole and exclusive method of 

considering the redressing of grievances[,] * * * ” and that, “it is 

expressly understood and agreed that neither the Association nor any 

teacher shall engage in actions which are not expressly provided for in 

the grievance procedure such as litigation or charges * * * in connection 

with any dispute which is or could have been a matter presented as a 

grievance and which has or could have been taken to arbitration Level 

Four within this grievance procedure.” Thus, in summary, the CBA 

provides for binding arbitration for grievances arising under provisions 

of the CBA. 

We agree with the trial court's finding that the teacher evaluation 

process set forth in the CBA explicitly supersedes the statutory 

evaluation process in R.C. 3319.111. Thus, disputes concerning 

teacher evaluation arise under a “provision” of the CBA as defined by 

Article 9 of the CBA. The grievance procedure described by Article 9 

provides for binding arbitration as the exclusive method for resolution of 

grievances arising under provisions of the CBA. Here, the substance of 

Antram's dispute with USV was that it did not follow the teacher 

evaluation process set forth in the CBA. Accordingly, Antram's sole 

means of redress is the grievance procedure set forth in Article 9 of the 
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CBA, including arbitration, and the trial court was correct in concluding 

that it did not have jurisdiction to entertain his appeal. 

Id. at ¶ 11-12. 

{¶31} Given the similarities between the cases, the Antram decision supports 

our reasoning that the grievance filed is arbitrable. In reaching this conclusion, we 

acknowledge that the language in the collective bargaining agreement in Antram

contained strong language that arbitration was the sole means of redress. Id. at ¶ 

11. In the instance case, we do not have that exact language. However, the CBA 

does clearly indicate that arbitration shall be binding. CBA Article III, Section C(6)(a). 

Courts have concluded that when a collective bargaining agreement “provides for 

binding arbitration[,] * * * arbitration is the exclusive remedy for violations of 

employees' rights arising from the collective bargaining agreement.” (Emphasis sic.) 

Brannen v. Kings Local School Dist. Bd. of Edn., 144 Ohio App.3d 620, 628, 761 

N.E.2d 84 (12th Dist.2001). Therefore, even though the agreement does not contain 

strong language that arbitration is the only means of redress, the fact that it calls for 

binding arbitration of an alleged violation is sufficient. 

{¶32} For all of the reasons expressed above, this assignment of error has 

merit. 

Conclusion

{¶33} In conclusion, the sole assignment of error has merit. The grievance 

filed by the Association is arbitrable under the terms of the CBA. The trial court’s 

decision is hereby reversed and the matter is remanded with instructions for the trial 

court to deny the motion for a permanent injunction. 

Waite, J., concurs. 

DeGenaro, J. concurs.