Franklin Cty. Bd. of Commrs. v. State Employment Relations Bd.

• Decision Date: 19 September 1989
• Docket Number: AFL-CI,88AP-353,Nos. 88AP-347,A,s. 88AP-347
• Citation: 580 N.E.2d 832,64 Ohio App.3d 113
• Parties: , 1989 SERB 4-116 FRANKLIN COUNTY BOARD OF COMMISSIONERS, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD, Appellant; Ohio Council 8, American Federation of State, County and Municipal Employees,ppellee. FRANKLIN COUNTY BOARD OF COMMISSIONERS, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD, Appellee; Ohio Council 8, American Federation of State, County and Municipal Employees,ppellant.
• Court: Ohio Court of Appeals

Page 113

64 Ohio App.3d 113

580 N.E.2d 832, 1989 SERB 4-116

FRANKLIN COUNTY BOARD OF COMMISSIONERS, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD, Appellant; Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO, Appellee.

FRANKLIN COUNTY BOARD OF COMMISSIONERS, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD, Appellee; Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO, Appellant.

Nos. 88AP-347, 88AP-353.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Sept. 19, 1989.

Schottenstein, Zox & Dunn, Robert D. Weisman and John W. Ferron, Columbus, for Franklin County Bd. of Com'rs.

Anthony J. Celebrezze, Jr., Atty. Gen. and Loren L. Braverman, Columbus, for State Employment Relations Bd.

Ronald H. Janetzke, Columbus, for Ohio Council 8, AFSCME, AFL-CIO.

[1989 SERB 117] BOWMAN, Judge.

In August 1985, a representation election was held by appellant, State Employment Relations Board ("SERB"), among the employees of appellee, Franklin County Commissioners ("commissioners"), with a choice on the ballot of representation by appellant, American Federation of State, County and Municipal Employees ("AFSCME"), or no representation. In all, ninety-nine ballots were cast: forty-eight for AFSCME; forty-seven for no representation; two of the ballots were challenged; and two were found to be void by the SERB employees conducting the election. AFSCME filed an objection to SERB's decision to void two of the ballots and the commissioners responded to that objection.

SERB, after a review of the two ballots earlier found to be void, determined that one should be counted as a "yes" vote for AFSCME resulting in a new vote tally of forty-nine votes for AFSCME, forty-seven votes for no representation and one void ballot. On September 12, 1985, SERB certified the election results and determined AFSCME was the exclusive representative of employees of the commissioners. It is the September 1985 decision of SERB and the procedures followed by SERB in notifying the commissioners of that decision that gave rise to the ensuing litigation; however, issues pertaining to how the disputed votes were counted are not part of this appeal.

Although not served with a copy of the decision by certified mail, the commissioners became aware of it in some manner and filed an appeal with the Franklin County Court of Common Pleas pursuant to R.C. 119.12. The common pleas court affirmed the decision of SERB certifying AFSCME as the exclusive bargaining representative, and the commissioners appealed to this court. In Franklin Cty. Bd. of Commrs. v. State Emp. Relations Bd. (Dec. 15, 1987), No. 87AP-98, unreported, 1987 WL 28454, this court found that, inasmuch as SERB failed to comply with the requirements of R.C. 119.09 and did not send a copy of its decision by certified mail, the appeal of the commissioners was premature and the common pleas court lacked jurisdiction to decide the merit issues. The case was remanded to the common pleas court with instructions to dismiss the appeal. On or about January 14, 1986, the commissioners received, by ordinary mail, a copy of the SERB order certifying AFSCME as the exclusive representative of the employees of the commissioners.

While the litigation was pending as to the certification of AFSCME as the winner of the representation election, the commissioners, in early January 1986 without notice to AFSCME and before receiving the certification notice, changed the hours of some of its employees from thirty-five hours to forty hours a week and eliminated paid breaks for painters. On several occasions, AFSCME filed written notices with appellee to negotiate and to request information as to employees in the bargaining units. Each time appellee responded that it refused to bargain on the basis that it had a good-faith belief that AFSCME was not the exclusive representative, and it was challenging SERB's orders certifying AFSCME as such.

As a result, AFSCME filed two unfair labor practice charges based on alleged violations of R.C. 4117.11(A)(1) and (A)(5). After notice and a hearing, SERB issued an order which found the commissioners guilty of violating those sections. The commissioners appealed to the court of common pleas which, based on the decision in Franklin Cty. Bd. of Commrs., supra, found that the order certifying AFSCME as the exclusive bargaining agent was of no legal effect as it was not served by certified mail as required by R.C. 119.09; therefore, the commissioners were under no obligation to negotiate with AFSCME and there was no basis for SERB's finding that the commissioners had engaged in unfair labor practices. Both AFSCME and SERB have appealed and the appeals were consolidated.

In case No. 88AP-347, SERB sets forth the following assignments of error:

"1. The court of common pleas erred when it reversed the order of the State Employment Relations Board.

"2. The court of common pleas erred when it concluded that a certification directive of the State Employment Relations Board not served in accordance with R.C. 119.09 is invalid and of no effect.

"3. The court of common pleas erred when it failed to find that the order of the State Employment Relations Board was supported by substantial evidence on the record as a whole and in accordance with law."

In case No. 88AP-353, AFSCME sets forth the following assignments of error:

"1. The Lower Court erred in reversing the Opinion and Order of SERB in Case Nos. 86-ULP-03-0093 and 86-ULP-05-0185 on the basis that it is contrary to law.

"2. The Lower Court erred in holding that the FCBCC had no obligation to bargain with OC8.

"3. The Lower Court erred in failing to find that the obligation to bargain with OC8 arose on the date the revised tally of ballots issued and/or the date SERB voted to certify OC8."

Appellants' assignments of error are related and will be considered together.

An employee organization becomes the exclusive representative for public employees in a particular bargaining[1989 SERB 118] unit in one of two ways: either as the result of a voluntary recognition agreement signed by an employer and an employee organization or by receiving the majority of votes cast by employees in a bargaining unit in a representation election conducted by SERB. R.C. 4117.05(A). Here, AFSCME was selected as the exclusive bargaining agent as the result of an election. R.C. 4117.04(B) provides:

"A public employer shall bargain collectively with an exclusive...