State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, Local 4, AFL-CIO v. Batavia
Local School Dist. Bd. of Edn., 89 Ohio St.3d 191, 2000-Ohio-130.]

THE STATE EX REL. OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES/AFSCME,
LOCAL 4, AFL-CIO, ET AL., APPELLANTS, v. BATAVIA LOCAL SCHOOL DISTRICT
BOARD OF EDUCATION ET AL., APPELLEES.
[Cite as State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, Local 4, AFL-CIO
v. Batavia Local School Dist. Bd. of Edn. (2000), 89 Ohio St.3d 191.]
Public employment -- In order to negate statutory rights of public employees, a
collective bargaining agreement must use language with such specificity as
to explicitly demonstrate that the intent of the parties was to preempt
statutory rights.
In order to negate statutory rights of public employees, a collective bargaining
agreement must use language with such specificity as to explicitly
demonstrate that the intent of the parties was to preempt statutory rights.
(No. 99-963 -- Submitted February 22, 2000 -- Decided June 21, 2000.)
APPEAL from the Court of Appeals for Clermont County, No. CA98-08-068.

Appellants in this matter are the Ohio Association of Public School
Employees/AFSCME, Local 4, AFL-CIO ("OAPSE"), OAPSE Local 738 ("Local
738"), and certain nonteaching public school employees of the Batavia Local
School District. Appellees are the Batavia Local School District Board of

Education ("Board"), James Fite, Superintendent, Terry W. Stephens, Treasurer,
and Candace Koch, President.

OAPSE and its Local 738 are the deemed-certified exclusive bargaining
representative1 for most of the nonteaching personnel employed by the Board. As
such, Local 738 and the Board entered into a series of collective bargaining
agreements covering a bargaining unit that included bus drivers, cooks, custodians,
mechanics, aides, and maintenance employees.

The collective bargaining agreement in effect when this action was initiated
was entered into by Local 738 and the Board on February 12, 1996. Its term ran
from March 1, 1996 to February 28, 1999. Article 11 of the collective bargaining
agreement set forth the management rights of the Board. Article 11 authorized the
Board to "[d]etermine matters of inherent managerial policy," "[m]aintain and
improve the efficiency and effectiveness of governmental operations,"
"[d]etermine the overall methods * * * or personnel by which governmental
operations are to be conducted," "[d]etermine the adequacy of the work force," and
"[e]ffectively manage the work force." Article 11 of the collective bargaining
agreement also gave the Board the ability to "[s]uspend, discipline, demote,
discharge for just cause, lay off, non-renew, transfer, assign, schedule, promote, or
retain employees."

2

Article 13 of the collective bargaining agreement set forth the procedures for
layoffs and recalls. Article 13 provided:

"When layoff becomes necessary in a job classification due to the
abolishment of positions, lack of funds or lack of work, the following procedures
shall govern such layoff:

" * * *

"D. The Board shall determine in which classifications the layoff shall
occur and the number of employees to be laid off."

The terms "abolishment" and "layoff" were not defined by the collective
bargaining agreement.

Following the conclusion of the 1997-1998 academic school year, the Board
employed thirteen school bus drivers and one school bus mechanic. Pursuant to
R.C. 3319.081, these employees had continuing or limited contracts of
employment. The employment contract system set forth in R.C. 3319.081 provides
nonteaching school district employees with certain protections and rights regarding
salary, demotion, suspension, and termination. R.C. 3319.081(B) and (C).

In June 1998, the Board considered entering into a contract with a private
company, Laidlaw Transit, Inc. ("Laidlaw"), to provide bus transportation for the
Batavia Local School District. The Board adopted a resolution directing
Superintendent Fite and the Board's legal counsel to negotiate a contract with

3

Laidlaw. On June 22, 1998, the Board executed a contract with Laidlaw whereby
Laidlaw would furnish all student transportation services for the Batavia School
District.

As a result of the contract with Laidlaw, on July 20, 1998, the Board passed
a resolution to abolish the positions of bus driver and mechanic and to lay off the
fourteen employees who held those positions. Thereafter, pursuant to Article 13 of
the collective bargaining agreement, the Board notified the bus drivers and
mechanic that they were being laid off due to the abolishment of their positions.
The laid-off employees subsequently accepted employment with Laidlaw to
perform transportation services for the school district.

After the Board's resolution to abolish the positions of bus driver and
mechanic, some of the affected employees filed a grievance in accordance with
Article 8 of the collective bargaining agreement. The grievance alleged that the
Board had violated the collective bargaining agreement by contracting out the
district's school bus transportation work to a private company. After
Superintendent Fite denied the grievance, the parties submitted the matter to
arbitration, the final step of the grievance procedure.

In a letter dated August 20, 1998, OAPSE demanded, on behalf of the
bargaining unit employees, that the Board members "honor their continuing and
limited statutory employment contracts previously issued by the Board and still in

4

effect." Receiving no satisfactory response, appellants sought to enforce their
statutory rights in court.

On August 24, 1998, appellants initiated this cause by filing a complaint for
a writ of mandamus in the Court of Appeals for Clermont County. In their
complaint, appellants sought to compel appellees to reinstate the laid-off
employees to their positions as public employee bus drivers and bus mechanic.
Appellants also requested that the court of appeals award the laid-off employees all
back pay and lost fringe benefits and that the Board be required to recognize the
employees' continuing statutory employment contracts and honor the contracts in
the future. Finally, appellants requested a writ ordering appellees to return all
transportation work to the deemed-certified bargaining unit and to maintain the
status quo.

Both parties filed motions for summary judgment. In an opinion and
judgment entry dated May 10, 1999, the court of appeals granted appellees' motion
for summary judgment, denied appellants' motion for summary judgment, and
denied the requested writ of mandamus. The court of appeals held that, pursuant to
R.C. 4117.10(A), the terms of the collective bargaining agreement prevailed over
the nonteaching school employees' statutory rights set forth in R.C. 3319.081.
Thus, the court of appeals determined that the Board's actions were proper
according to the terms of the collective bargaining agreement and upheld the

5

Board's decision to abolish the bus driver and mechanic positions and lay off the
individual appellants.

In May 1999, appellants appealed the decision of the court of appeals to this
court. We granted appellants' request for oral argument, and oral argument was
held on February 22, 2000.

The cause is now before the court upon an appeal as of right.
__________________

Buckley, King & Bluso and James E. Melle, for appellants.

Ennis, Roberts & Fischer, C. Bronston McCord III and George E. Roberts
III, for appellees.
__________________

DOUGLAS, J. Appellants initially contend that the court of appeals erred in
determining that the collective bargaining agreement prevailed over the statutory
rights for nonteaching employees in R.C. 3319.081. Specifically, appellants
contend that the layoff provision of the collective bargaining agreement does not
expressly preempt the bargaining unit employees' statutory employment contracts
and other rights guaranteed by R.C. 3319.081. In contrast, appellees argue that
pursuant to R.C. 4117.10(A), the employment relationship between the parties is
governed by the collective bargaining agreement. Appellees point out that since
the agreement granted the Board the ability to abolish positions and lay off

6

employees, the Board was acting within its authority when it abolished the
positions of school bus driver and mechanic and laid off the individual appellants
herein.
I
R.C.
4117.10(A)2 provides:

"An agreement between a public employer and an exclusive representative
entered into pursuant to this chapter governs the wages, hours, and terms and
conditions of public employment covered by the agreement. * * * Where no
agreement exists or where an agreement makes no specification about a matter, the
public employer and public employees are subject to all applicable state or local
laws or ordinances pertaining to wages, hours, and terms and conditions of
employment for public employees. * * * [T]his chapter prevails over any and all
other conflicting laws, resolutions, provisions, present or future, except as
otherwise specified in this chapter or as otherwise specified by the general
assembly."

R.C. 4117.10(A) outlines the relationship between a collective bargaining
agreement and all applicable state and local laws. Appellants concede that the
collective bargaining agreement authorized the Board to abolish positions and lay
off school bus drivers and mechanics. Nevertheless, appellants assert that the
Board, notwithstanding R.C. 4117.10(A), was not authorized to contract with a

7

private company to perform the same work previously performed by the laid off
employees. We agree.

R.C. 3319.081 requires local school district boards of education to enter into
written contracts of employment with nonteaching public school employees.
Newly hired, regular nonteaching school employees enter into employment
contracts with the school board for a period of not more than one year. If they are
rehired, the school board is required to offer a written, two-year contract with those
employees. R.C. 3319.081(A). If a nonteaching employee is retained at the end of
a two-year contract, the school board must offer the employee a continuing
contract of employment. R.C. 3319.081(B).

It is axiomatic that R.C. 3319.081 was intended to provide certain
protections to those employees covered by the statute. "R.C. 3319.081 gives
statutory job security to nonteaching local school district employees, in that it
provides for termination of employment contracts only for the express enumerated
reasons set forth in R.C. 3319.081(C), or for `any other acts of misfeasance,
malfeasance, or nonfeasance.' " (Emphasis sic.) State ex rel. Boggs v. Springfield
Local School Dist. Bd. of Edn. (1998), 82 Ohio St.3d 222, 226, 694 N.E.2d 1346,
1350. See, also, Ohio Assn. of Pub. School Emp. v. Twin Valley Local School Dist.
Bd. of Edn. (1983), 6 Ohio St.3d 178, 182, 6 OBR 235, 238, 451 N.E.2d 1211,

8

1214 (noting that the purpose of R.C. 3319.081 is to provide employment security
to regular nonteaching school employees).

Moreover, nothing in R.C. 3319.081 or any other statutory provision
authorizes layoffs of nonteaching local school district personnel. Therefore, in the
absence of a collective bargaining agreement, R.C. 3319.081 prohibits a school
district's board of education from abolishing positions and laying off nonteaching
personnel. Boggs, 82 Ohio St.3d at 226-227, 694 N.E.2d at 1350.

In the case at bar, the collective bargaining agreement, as previously
indicated, authorized the Board to abolish positions and lay off employees.
Nevertheless, given the protections afforded by R.C. 3319.081, as well as prior
pronouncements of this court, we do not believe that the collective bargaining
agreement herein permitted the Board to lay off public employees by abolishing
positions while, in effect, retaining the same positions and hiring nonpublic
employees to fill them.
In
State ex rel. Clark v. Greater Cleveland Regional Transit Auth. (1990), 48
Ohio St.3d 19, 548 N.E.2d 940, the court addressed the interplay between public
employees' statutory rights and provisions of a collective bargaining agreement
that purport to preempt those statutory rights pursuant to R.C. 4117.10(A). The
issue before the court in Clark was whether certain public employees of the
Greater Cleveland Regional Transit Authority were entitled to previously earned

9

vacation credit pursuant to R.C. 9.44 when those employees were covered by a
collective bargaining agreement that included a vacation-eligibility provision. We
held that "R.C. 9.44 imposes a mandatory duty on any political subdivision of the
state of Ohio to credit employees with prior service vacation credit, absent a
collective bargaining agreement entered into pursuant to R.C. Chapter 4117 which
specifically excludes rights accrued under R.C. 9.44. (R.C. 4117.10[A],
construed.)" Id. at syllabus. In construing R.C. 4117.10(A), we noted that "when
the agreement makes no specification about a matter pertaining to wages, hours
and terms and conditions of employment, the parties are governed by all state or
local laws or ordinances addressing such terms and conditions of employment."
(Emphasis sic.) Id. at 22, 548 N.E.2d at 943. In determining that the employees
were entitled to their previously earned vacation credit pursuant to R.C. 9.44, we
reasoned that despite a provision in the collective bargaining agreement addressing
the computation of vacation leave, the provision did not specifically address the
question of prior service vacation credit. Id.
In
Naylor v. Cardinal Local School Dist. Bd. of Edn. (1994), 69 Ohio St.3d
162, 630 N.E.2d 725, the court again addressed the applicability of R.C.
4117.10(A) in relation to public employees' statutory rights. Under consideration
in Naylor were the statutory evaluation procedures for schoolteachers set forth in
R.C. 3319.11 and 3319.111 and whether contract-renewal and teacher-evaluation
10

provisions in the parties' collective bargaining agreement prevailed over those
procedures outlined in R.C. 3319.111. We held that "[u]nless a collective
bargaining agreement specifically provides to the contrary, R.C. 3319.111 governs
the evaluation of a teacher employed under a limited contract." Id. at paragraph
two of the syllabus. Because the collective bargaining agreement in Naylor was
entered into before the effective date of R.C. 3319.111, the court concluded that it
could not have specifically excluded or negated the rights contained in the statute.
Id. at 165, 630 N.E.2d at 728.

As our decisions in Clark and Naylor demonstrate, "a collective bargaining
agreement must specifically exclude statutory rights in order to negate the
application of those rights." (Emphasis added.) Naylor, 69 Ohio St.3d at 165, 630
N.E.2d at 728. In the case at bar, appellees contend that the collective bargaining
agreement controls the rights and duties of the parties and, therefore, the individual
appellants' statutory employment rights are not implicated. We respectfully
disagree. Article 13 of the parties' collective bargaining agreement is merely a
general layoff and recall provision, and says nothing about employees' statutory
rights guaranteed by R.C. 3319.081. Appellees would have us conclude that the
layoff provision in this collective bargaining agreement is meant to nullify the job
security protections afforded by R.C. 3319.081. However, we are not persuaded
that by the use of such general language, the parties intended to preempt R.C.
11

3319.081. Had there been a mutual intent to preempt the job security protections
in R.C. 3319.081, the parties could have easily specified that intent in the
collective bargaining agreement.

Furthermore, our decision in Clark also turned on the fact that no conflict
existed between the statute at issue and the provisions of the collective bargaining
agreement. See, also, Streetsboro Edn. Assn. v. Streetsboro City School Dist. Bd.
of Edn. (1994), 68 Ohio St.3d 288, 291, 626 N.E.2d 110, 113 ("if a collective
bargaining agreement makes no specification about a matter [i.e., if there is no
conflict between a law and the agreement], then R.C. 4117.10[A] further provides
that state and local laws generally apply to a public employer and its public
employees regarding `wages, hours and terms and conditions' of employment").
(Emphasis added and bracketed material sic.) In Clark, we noted that if there is no
clear conflict between the agreement and the statutory provision, "R.C. 4117.10(A)
clearly requires that the parties be subject to all laws pertaining to wages, hours
and terms and conditions of employment * * *." Clark, 48 Ohio St.3d at 23, 548
N.E.2d at 943-944.

Here, because the collective bargaining agreement failed to specifically
exclude the employees' statutory rights, no clear conflict exists between the
agreement and the statute. Effect can be given to both R.C. 3319.081 and the
layoff provision. For instance, the individual appellants could be laid off, and
12

subject to the recall provisions of the agreement, while their statutory rights
remained in effect. However, the manner in which the Board invoked the layoff
provision was clearly not sanctioned by the terms of the agreement. Although the
collective bargaining agreement provided generally for job abolishment and
personnel layoffs, the Board went beyond the language set forth in the layoff
provision when it discharged its employees and contracted with a private company
to perform identical services.

Moreover, we must construe the language of the parties' agreement to avoid
a "manifest absurdity." Shifrin v. Forest City Ent., Inc. (1992), 64 Ohio St.3d 635,
638, 597 N.E.2d 499, 501. The result reached herein is consistent with that duty.
The parties could not have intended that the Board's general authority to abolish
positions and lay off employees gave the Board blanket authority to transfer duties
performed by public employees to private companies. If the Board had such
overriding authority, the job security of nonteaching public school employees
guaranteed by R.C. 3319.081 would be a nullity. Furthermore, if that were the
case, then nothing would prevent the Board from outsourcing all of the bargaining
unit work even though the agreement lacked specific, express authorization to that
effect. As there is nothing in the collective bargaining agreement that would
specifically permit the abolition of jobs and layoffs of these employees when their
13

duties are merely transferred to a private company, we will not infer that that was
the intent of the parties.

Accordingly, we hold that, in order to negate statutory rights of public
employees, a collective bargaining agreement must use language with such
specificity as to explicitly demonstrate that the intent of the parties was to preempt
statutory rights. Because the parties' collective bargaining agreement did not
specifically permit the Board's actions herein, the individual appellants' rights
pursuant to R.C. 3319.081 prevail.
II

The final issue that we must decide is whether appellants are entitled to the
requested writ of mandamus. In order for a writ of mandamus to issue, it must be
shown that there is a clear legal right to the relief prayed for, that there is a clear
legal duty upon respondent to perform the requested action, and that the relator has
no adequate remedy at law. State ex rel. Natl. City Bank v. Cleveland City School
Dist. Bd. of Edn. (1977), 52 Ohio St.2d 81, 84, 6 O.O.3d 288, 290, 369 N.E.2d
1200, 1202.

Appellants had a clear legal right, pursuant to R.C. 3319.081, to retain their
positions as public employees with the Batavia Local School District. Further,
because the collective bargaining agreement did not specifically preempt
individual appellants' statutory rights, appellees had a clear legal duty to recognize
14

those rights. We also find that appellants had no adequate remedy at law. While
the parties' collective bargaining agreement did contain a grievance and arbitration
procedure, appellants are seeking the enforcement of their statutory employment
rights pursuant to R.C. 3319.081 and are not seeking the enforcement of any
specific provision of the collective bargaining agreement. Therefore, we conclude
that the grievance and arbitration procedure would not provide an adequate
remedy, since the individual appellants' rights to continued employment with the
Board arise from statutory authority rather than the collective bargaining
agreement. See State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467,
472, 692 N.E.2d 198, 203. See, also, State ex rel. Ms. Parsons Constr., Inc. v.
Moyer (1995), 72 Ohio St.3d 404, 406-407, 650 N.E.2d 472, 474.

Accordingly, we reverse the judgment of the court of appeals, grant the
requested writ of mandamus compelling the reinstatement of the individual
appellants to public employment with the Board, and remand this matter to the
court of appeals for a determination of an award of back pay and lost fringe
benefits.
Judgment reversed,
writ granted,
and cause remanded.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
15

MOYER, C.J., and LUNDBERG STRATTON, J., dissent.

COOK, J., dissents.
FOOTNOTES:

1.
Section 4(A) of Am.Sub.S.B. No. 133, effective October 6, 1983,
provides:

"Exclusive recognition through a written contract, agreement, or
memorandum of understanding by a public employer to an employee organization
whether specifically stated or through tradition, custom, practice, election, or
negotiation [that] the employees organization has been the only employee
organization representing all employees in the unit is protected subject to the time
restriction in division (B) of section 4117.05 of the Revised Code.

Notwithstanding any other provision of this act, an employee organization
recognized as the exclusive representative shall be deemed certified until
challenged by another employee organization under the provisions of this act and
the State Employment Relations Board has certified an exclusive representative."
140 Ohio Laws, Part I, 336, 367.

2. R.C. 4117.10(A) has subsequently been amended by 1998
Am.Sub.H.B. No. 348, effective March 22, 1999. The amendment has no bearing
on the case at bar.
__________________
16

COOK, J., dissenting. I would affirm the judgment of the court of appeals.
__________________

LUNDBERG STRATTON, J., dissenting. The majority holds that the
appellants are entitled to a writ of mandamus to compel the Board to reinstate them
as public employees of the state. The majority issues the writ based on the premise
that the collective bargaining agreement herein did not evidence an intent to negate
rights provided to employees under R.C. 3319.081. Specifically, the majority
states: "We do not believe that the collective bargaining agreement herein
permitted the Board to lay off public employees by abolishing positions while, in
effect, retaining the same positions and hiring nonpublic employees to fill them."
While I do not necessarily disagree with the majority's conclusion that the Board's
actions may not have been a layoff as that term is used in the collective bargaining
agreement, I believe that the issue should have been more properly addressed
through arbitration.

The appellants' jobs were terminated, but the same jobs were subsequently
outsourced. The collective bargaining agreement gave the Board the right to lay
off employees. A layoff is "[t]he termination of employment at the employer's
instigation; esp., the termination--either temporary or permanent--of a large
number of employees at the same time." Black's Law Dictionary (7 Ed.1999) 896.
17

"Layoff" generally connotes a lack of work or deliberate reduction in work force.
Webster's Third International Dictionary (1986) 1281.

The Board believes that its actions in regard to appellants were "layoff[s]" as
the term is used in the collective bargaining agreement. While I agree with the
majority that a layoff may not contemplate terminating a position and immediately
outsourcing the position, I believe the Board's actions against appellants were
sufficiently within the scope of the collective bargaining agreement to be subject to
arbitration.

Public policy favors the arbitrability of labor disputes. Davidson v. Bucklew
(1992), 90 Ohio App.3d 328, 331, 629 N.E.2d 456, 457-458. It is the court that
determines whether a specific grievance is arbitrable. AT&T Technologies, Inc. v.
Communications Workers of Am. (1986), 475 U.S. 643, 649, 106 S.Ct. 1415, 1418,
89 L.Ed.2d 648, 656. However, in deciding whether a contract creates a duty to
arbitrate a certain grievance, "a court is not to rule on the potential merits of the
underlying claims." Id. at 649, 106 S.Ct. at 1419, 89 L.Ed.2d at 656.

In deciding whether the collective bargaining agreement creates a duty to
arbitrate a certain grievance, the court must determine whether the claim is
governed by the collective bargaining agreement. United Steelworkers of Am. v.
Am. Mfg. Co. (1960), 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403,
1407. A court should not deny an arbitration clause in a contract unless it may be
18

said with positive assurance that the clause is not susceptible of an interpretation
that covers the asserted dispute, with any doubts resolved in favor of arbitration.
Gibbons-Grable Co. v. Gilbane Bldg. Co. (1986), 34 Ohio App.3d 170, 173, 517
N.E.2d 559, 562. An arbitration clause in a contract gives rise to a presumption
that the grievance is arbitrable unless expressly excluded or there exists "the most
forceful evidence of a purpose to exclude the claim from arbitration." United
Steelworkers of Am. v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 585,
80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409, 1419.

Under this standard, I believe that arbitration should have resolved the issue
of the scope of the Board's layoff authority provided in the collective bargaining
agreement. Even the appellants concede that a "layoff" is allowed by the
collective bargaining agreement. The parties differ as to the scope or intent of the
layoff provision as it relates to the Board's actions. Despite this disagreement,
clearly the Board's initial action against appellants was to terminate their jobs.
This action fits the definition of the term "layoff" as I discussed above. I believe
that makes the appellants' grievance arbitable. Whether "layoff" was intended to
include the immediate outsourcing of those job positions is an issue an arbitrator
should have decided, not this court.

In the context of employment contracts, where the dispute between labor and
management arises from a collective bargaining agreement, the grievance and
19

arbitration procedures provided therein constitute an adequate remedy at law to the
exclusion of extraordinary relief in mandamus. State ex rel. Zimmerman v.
Tompkins (1996), 75 Ohio St.3d 447, 449, 663 N.E.2d 639, 641, citing State ex rel.
Johnson v. Cleveland Hts./Univ. Hts. School Dist. Bd. of Edn. (1995), 73 Ohio
St.3d 189, 192-193, 652 N.E.2d 750, 752; State ex rel. Chavis v. Sycamore City
School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 34, 641 N.E.2d 188, 196.

In addition to my dismay at the majority's failure to determine that this issue
should have been resolved through arbitration, I am equally distressed at the depth
of explicit detail that will now be required of drafters of collective bargaining
agreements because of the majority's syllabus. I believe that the majority's
mandate that collective bargaining must be extremely specific in order to bring an
issue within its coverage will ultimately do the collective bargaining process a
disservice. We should be encouraging the resolution of employment issues
through the arbitration process. With this new, narrow standard, we have opened
the door to litigation, and every matter not specifically itemized in a collective
bargaining agreement will become an issue for the courts. I believe that the
majority's holding will be as detrimental to the unions as to the employees when
they each find themselves on the side appealing an issue that might be implied but
was not specified sufficiently in the collective bargaining agreement. I do not
20

believe that the law requires that we interpret collective bargaining agreements as
narrowly as the majority dictates.

Therefore, because I believe that the majority's syllabus will make collective
bargaining agreements overly complex and technical, and because I believe that
the majority's issuance of the writ of mandamus was improper because appellants
had a remedy in the ordinary course of the law by way of arbitration, I respectfully
dissent.

MOYER, C.J., concurs in the foregoing dissenting opinion.
21