Communications Workers of America/council of Public Workers v. State Employment Relations Board

• Decision Date: 31 March 1987
• Docket Number: 87-LW-0787,86-J-5
• Parties: COMMUNICATIONS WORKERS OF AMERICA/COUNCIL OF PUBLIC WORKERS, Plaintiff-Appellee, v. STATE EMPLOYMENT RELATIONS BOARD, et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

COMMUNICATIONS WORKERS OF AMERICA/COUNCIL OF PUBLIC WORKERS, Plaintiff-Appellee, v. STATE EMPLOYMENT RELATIONS BOARD, et al Defendants-Appellants.

No. 86-J-5.

87-LW-0787 (7th)

Court of Appeals of Ohio, Seventh District Jefferson

March 31, 1987

Civil Appeal from the Jefferson County Common Pleas Court; Case No 85-CIV-491.

Dennis Morgan, Columbus, for plaintiff-appellee.

Susan C. Hayest, Asst. Attorney General, Columbus, for State Employment Relations Board.

John R Spon, Jr., Asst. Prosecuting Attorney, Steubenville, for Jefferson County Welfare Department.

Before COX, O'NEILL and DONOFRIO, JJ.

OPINION

DONOFRIO Judge.

Appeal from the Court of Common Pleas of Jefferson County, Ohio. The proceedings culminating in this appeal are as follows.

The appellee, Communications Workers of America/Council of Public Workers (hereinafter "appellee"), filed an unfair labor practice charge with the appellant, State Employment Relations Board (hereinafter " "appellant SERB"), on August 2, 1984, alleging that the Jefferson County Welfare Department (hereinafter "welfare department") had violated R.C. 4117.11(A) (1) by distributing campaign literature designed to dissuade employees from voting for appellee in the representation election.

Pursuant to R.C. 4117.12, appellant SERB investigated the charge and on September 26, 1985, determined that the charge was moot. Based upon this determination, appellant SERB declined to issue a complaint and the charge was dismissed.

Thereafter, on November 4, 1985, appellee, pursuant to R.C. Chapter 4117 and R.C. 2506.01 et seq., filed a statutory notice of appeal from the dismissal of the unfair labor practice charge with the Jefferson County common pleas court. On December 13, 1985, the Jefferson County common pleas court issued its journal entry and memorandum opinion reversing the order of appellant SERB. The court held that the order of appellant SERB was not supported by reliable, probative, and substantial evidence and was not in accordance with law.

Appellant SERB sets forth one assignment of error, which states:

I. "The lower court erred in reversing the order of the State Employment Relations Board ("SERB') because the lower court was without jurisdiction to entertain an appeal from a decision by SERB not to issue a complaint on an unfair labor practice charge."

The conduct of the welfare department, which precipitated the appellee's unfair labor practice charge of August 2, 1984, occurred during the appellee's attempt to organize the welfare department employees. Just prior to the appellant SERB's scheduled election to determine the exclusive representation of the welfare department's employees, welfare department supervisory personnel distributed a leaflet to its employees entitled "Jefferson County Welfare Employees Know the Facts." This leaflet was handed to employees and laid on the desks of welfare department employees. Appellee contends that the distribution of, and the statements contained in this leaflet were violative of R.C. Chapter 4117. The appellee was selected by the welfare department's employees as their exclusive collective bargaining representative in the appellant SERB conducted election of August 7, 1984.

On October 24, 1985, appellant SERB dismissed appellee's charges as moot without determining whether there was probable cause to believe that the welfare department had committed an unfair labor practice by its distribution of the above-referenced leaflet. Appellee, contending that appellant SERB had failed to follow the statutory mandate that it determine whether there is probable cause to believe that unfair labor practices alleged in a charge had occurred, appealed the dismissal of the charge to the court of common pleas of Jefferson County. The court, agreeing with appellee that the statute requires appellant SERB to determine whether or not there is probable cause for believing that the unfair labor practices alleged in the charge had occurred, remanded the case to appellant SERB directing it to make such a determination.

Appellant SERB claims the dismissal of the unfair labor practice charge filed by appellee is not appealable for two reasons: first, that said dismissal was not "a final order based upon an adjudication of rights" and was therefore not appealable, and, second, that there is no statutory right for appellee to appeal appellant SERB's decision not to issue a complaint.

It must be noted that the issue as to whether or not there was probable cause to believe that an unfair labor practice had occurred was not reached by the investigator, but rather he decided that such issue was moot since appellee had won the election. Based upon this mootness, appellant SERB entered its dismissal of unfair labor practice charge.

Appellant SERB claims there is no final order and therefore can be no appeal.

R.C. 4117.13(D) provides:

"Any person aggrieved by any final order of the board granting or denying, in whole or in part, the relief sought may appeal to the court of common pleas of any county where the unfair labor practice in question was alleged to have been engaged in, or where the person resides or transacts business, by filing in the court a notice of appeal setting forth the order appealed from and the grounds of appeal. The court shall cause a copy of the notice to be served forthwith upon the board. Within ten days after the court receives a notice of appeal, the board shall file in the court a transcript of the entire record in the proceeding, certified by the board, including the pleading and evidence upon which the order appealed from was entered.

"The court has exclusive jurisdiction to grant the temporary relief or restraining order it considers proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the board. The findings of the board as to the facts, if supported by substantial evidence on the record as a whole, are conclusive."

Appellee correctly states that as R.C. Chapter 4117 does not...