Fraternal Order of Police, Ohio Labor Council, Inc., v. Hubbard Twp. Trustees

• Decision Date: 22 October 1990
• Docket Number: No. 89-T-4228,89-T-4228
• Citation: 589 N.E.2d 1386,68 Ohio App.3d 843
• Parties: , 1990 SERB 4-79 FRATERNAL ORDER OF POLICE, Ohio Labor Council, Inc., et al., Appellants, v. HUBBARD TOWNSHIP TRUSTEES, Appellee. *
• Court: Ohio Court of Appeals

Page 843

68 Ohio App.3d 843

589 N.E.2d 1386, 1990 SERB 4-79

FRATERNAL ORDER OF POLICE, Ohio Labor Council, Inc., et al., Appellants, v. HUBBARD TOWNSHIP TRUSTEES, Appellee. ^*

No. 89-T-4228.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Decided Oct. 22, 1990.

Anthony J. Celebrezze, Jr., Atty. Gen., and Wayne Kriynovich, Asst. Atty. Gen., Columbus, for appellant State Employment Relations Bd.

Paul L. Cox, Deborah L. Bukovan and Kay E. Cremeans, Columbus, for appellant Fraternal Order of Police, Ohio Labor Council, Inc.

John B. Juhasz, Youngstown, for appellee Hubbard Township Trustees.

Dennis Haines and Barry Laine, Youngstown, for Christine Resatar.

[1990 SERB 4-80] FORD, Judge.

Christine Resatar had been employed since 1981 as a dispatcher in the Hubbard Township Police Department when she was laid off in September 1985 by the Hubbard Township Trustees, appellee. She subsequently filed an unfair labor practice action on April 14, 1986, before the State Employment Relations Board ("SERB"), alleging that appellee did not recall her because of her union activities.

The SERB investigated the charges and found that probable cause existed for instituting an action. On January 2, 1987, a complaint was issued. It was based upon a retaliation for Resatar's union activities, but it did not challenge appellee's failure to recall Resatar as an unfair labor practice.

Appellee filed an answer, moved to dismiss the complaint, and requested a hearing on the motion to dismiss. The appellee, in its motion, maintained that the complaint was barred because she failed to bring her unlawful layoff charge within ninety days of the action which constituted the unfair labor practice.

The hearing was held on January 28, 1987. The Fraternal Order of Police ("F.O.P."), appellant, which had intervened in the case on Resatar's behalf, at the hearing, moved to amend the complaint to include an allegation that the failure to recall Resatar was an unfair labor practice.

On February 4, 1987, the hearing officer proposed an order recommending that the motion to amend be denied and that the complaint filed by SERB be dismissed. Both the Attorney General representing SERB as the other appellant, and F.O.P., submitted objections to the officer's proposed order. On April 23, 1987, SERB rejected the hearing officer's recommendation, granted the motion to amend the complaint and directed that the cause be heard on the merits.

The matter was presented, on October 21 and 22, 1987, to the hearing officer who concluded that the layoff allegation was time-barred, but opined that appellee had acted unlawfully by failing to recall Resatar. The officer recommended that Resatar be reinstated and receive back pay from September 1986. (Resatar, pursuant to the terms of the collective bargaining agreement, was to be kept on the recall list for one year.)

SERB issued an order adopting the recommendations on October 26, 1988 to reinstate Resatar with back pay. The appellee appealed to the court of common pleas on November 9, 1988. The court reversed SERB's order concluding the board was without jurisdiction over the matter as the complaint was not timely filed. Appellants appealed, raising the following assignments of error:

"1. The court of common pleas erred by finding Resatar's unfair labor practice charge untimely.

"2. The court of common pleas erred by concluding that SERB improperly granted the union's motion to amend the complaint in the unfair labor practice proceeding before SERB to include an allegation that appellee unlawfully failed to recall Resatar from layoff in retaliation for her union activity.

"3. The court of common pleas erred by not affirming the board's order as supported by substantial evidence on the record as a whole and in accordance with law."

Initially, it should be noted that the underlying cause heard by the court of common pleas is governed by the rules codified in R.C. 4117.13. It provides that an aggrieved party may appeal the board's decision to the court of common pleas. Upon appeal to the trial court, [1990 SERB 4-81] "[t]he findings of the board as to the facts, if supported by substantial evidence on the record as a whole, are conclusive." R.C. 4117.13(D). Pursuant to section (A), "[t]he court may * * * make and enter upon the pleadings, evidence, and proceedings set forth in the transcript a decree enforcing, modifying, * * * or setting aside in whole or in part the order of the board."

In Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 58 O.O. 51, 131 N.E.2d 390, the court examined the scope of review of the trial court. The court indicated that the review is based upon:

"All evidence offered before the board and such additional evidence as the court may admit, and must appraise all such evidence as to the credibility of witnesses, the probative character of the evidence and the weight to be given it, and, if from such a consideration, it finds that the board's order is not supported by reliable, probative and substantial evidence and is not in accordance with law, the court is authorized to reverse, vacate, or modify the order of the board." Id. at paragraph one of the syllabus.

Then, in Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 17 O.O.3d 65, 407 N.E.2d 1265, the court examined the trial court's ruling in such a "hybrid" appeal.

" 'The legislative purpose, generally to authorize a Common Pleas Court to weigh the evidence on an appeal from an administrative agency, is indicated by other statutes, as well as by our decisions construing them. Thus, after the holding of this court in Farrand v. State Medical Board (1949), 151 Ohio St. 222 , 85 N.E.2d 113, the General Assembly amended what is now Section 119.12, Revised Code, to provide for such authority. * * * Furthermore, in adopting Section 2506.04, Revised Code, in 1957, the General Assembly even used the words "preponderance of * * * evidence" to emphasive [sic ] this purpose.'

" * * *

"In undertaking this hybrid form of review, the Court of Common Pleas must give due deference to the administrative resolution of evidentiary conflicts. For example, when the evidence before the court consists of conflicting testimony of approximately equal weight, the court should defer to the determination of the administrative body, which, as the factfinder, had the opportunity to observe the demeanor of the witnesses and weigh their credibility. However, the findings of the agency are by no means conclusive." (Citations omitted.) Id. at 111, 17 O.O.3d at 67, 407 N.E.2d at 1267-1268.

Thus, under such a scenario, the common pleas court acts similarly to a reviewing court, and should not substitute its judgment for that of the board as long as the findings of the board are supported by substantial evidence.

In the first assignment, both appellants and amicus curiae challenge the trial court's ruling that the board was without jurisdiction to hear the complaint. R.C. 4117.11 et seq. provides the statutory basis for initiating an unfair labor practice complaint. R.C. 4117.12(B) provides that SERB shall " * * * not issue a notice of hearing based upon any unfair labor practice occurring more than ninety days prior to the filing of the charge with the board, unless the person aggrieved thereby is prevented from filing the charge by reason of service in the armed forces, in which event the ninety-day period shall be computed from the day of his discharge."

As such, the aggrieved must complain to the board within ninety days of the conduct which constitutes the improper conduct.

In this cause, the improper conduct was the appellee's failure to recall Resatar. With a discharge, the date of the allegedly retaliatory conduct is obvious, the date of the firing, and the statute establishes that date as the start of the statutory clock. However, under a scenario as in this cause, the date of an alleged failure to recall may not be as obvious. An employee may bring an unfair labor practice complaint for a number of reasons including retaliatory discharge and failure to recall. These two are not mutually exclusive as the aggrieved party may have multiple bases upon which to...