Lorain City School Dist. Bd. of Educ. v. State Employment Relations Bd., 87-1859

• Decision Date: 30 December 1988
• Docket Number: No. 87-1859,87-1859
• Citation: 40 Ohio St.3d 257,533 N.E.2d 264
• Parties: , 134 L.R.R.M. (BNA) 3272, 51 Ed. Law Rep. 591, 1989 SERB 4-2 LORAIN CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellants.
• Court: Ohio Supreme Court

Page 257

40 Ohio St.3d 257

533 N.E.2d 264, 134 L.R.R.M. (BNA) 3272, 51 Ed. Law Rep. 591,

1989 SERB 4-2

LORAIN CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellants.

No. 87-1859.

Supreme Court of Ohio.

Submitted Oct. 18, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. The standard of review of a decision of the State Employment Relations Board on an unfair labor practice charge is whether there is substantial evidence to support that decision.

2. Courts must afford due deference to the State Employment Relations Board's interpretation of R.C. Chapter 4117.

3. The reassignment of work previously performed by members of a bargaining unit to persons outside the unit is a mandatory subject for collective bargaining under R.C. 4117.08(A) and (C).

On August 14, 1984, appellant Lorain Education Association ("LEA") filed an unfair labor practice charge with appellant State Employment Relations Board ("SERB"). The charge was filed by LEA against appellee, Lorain City School District Board of Education.

LEA is the exclusive bargaining representative for certain public employees employed by appellee. As such, LEA represents, with a few exceptions not pertinent here, all of appellee's regular full-time and regular part-time professional employees who work fifteen hours or more per week. School nurses are included in the bargaining unit represented by LEA, and for a number of years, LEA has negotiated the nurses' salaries, fringe benefits and working conditions. School nurses are required to be certificated and licensed.

Pursuant to their collective bargaining relationship, LEA and appellee entered into an agreement covering the period from January 1, 1983 through August 31, 1986. During the 1983-1984 school year, appellee employed five full-time registered nurses. At the conclusion of that school year, three of the five nurses retired from employment, for which appellee hired only one replacement. In the interim, the superintendent of schools had requested a study of the health services provided to students by appellee. Subsequently, the superintendent presented a plan to appellee which proposed a restructuring of the health services program. Appellee adopted the restructuring program without, at any time, consulting with LEA despite the continued objections of LEA to its exclusion from the process.

The plan approved by appellee called for the retention of only three full-time nurses and the hiring of part-time health aides for the 1984-1985 school year. The health aides were to be outside the bargaining unit and were to perform clerical work and lesser health care duties which the nurses had previously performed. Fourteen such aides were employed by appellee during the 1984-1985 school year. Upon the continued refusal of appellee to negotiate with LEA concerning these changes, LEA filed an unfair labor practice charge with SERB.

After investigation, SERB determined that there was probable cause to believe that appellee had committed an unfair labor practice. SERB directed that a complaint be issued. A hearing was held before a SERB-appointed hearing officer who, on January 30, 1986, issued a proposed order finding that appellee had committed an unfair labor practice. On May 15, 1986, SERB issued its order and opinion finding that appellee had violated R.C. 4117.11(A)(1) and (5) and ordering that the unfair labor practice be remedied. In so ordering, SERB determined that the reassignment of work previously performed by bargaining unit nurses to non-bargaining unit health aides was a mandatory subject of collective bargaining pursuant to R.C. 4117.08. Thus, SERB ordered appellee to negotiate with LEA over the new health care policy.

[1989 SERB 4-3] Appellee appealed SERB's order to the Court of Common Pleas of Lorain County. The common pleas court affirmed SERB's order and directed appellee to comply therewith. Appellee then appealed to the court of appeals, which reversed the judgment of the trial court, finding that the reassignment of work previously performed by bargaining unit nurses to nonbargaining unit health aides was not a mandatory subject of collective bargaining under R.C. 4117.08(A). The court of appeals determined that appellee's decision was within the scope of management rights set forth in R.C. 4117.08(C) and, therefore, appellee was only required to bargain with LEA regarding the effects of appellee's decision.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Warhola, O'Toole, Loughman, Fetterman & Alderman, Michael J. Loughman and Caryn G. Pass, Lorain, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., and Vincent T. Lombardo, for appellant SERB.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Youngstown, Ronald G. Macala and A. Randall Vehar, Canton, for appellant Lorain Educ. Ass'n.

DOUGLAS, Justice.

There are two questions presented by this appeal. One involves the scope of appellate review and the other, a more fundamental merit issue, concerns the question of "mandatory" collective bargaining under the Ohio Public Employees' Collective Bargaining Act ("Act"). Notwithstanding that this case could easily be disposed of on the basis of the standard for appellate review of decisions of the administrative agency SERB, because it is a matter of first impression for this court under the Act, the very substantial merit issue will also be determined. On either count, we find the judgment of the court of appeals to be in error and, therefore, reverse that judgment.

I

R.C. 4117.13(D) provides that in an appeal to the court of common pleas of a final order of SERB involving an unfair labor practice, " * * * [t]he findings of the board as to the facts, if supported by substantial evidence on the record as a whole, are conclusive." Further, R.C. 4117.08(C) states, in part, that an " * * * employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of employment * * *." Thus, the question is: Was there substantial evidence to support SERB's finding that appellee's unilateral changes "affect[ed]" the nurses' conditions of employment and, therefore, provisions of the collective bargaining agreement?

The SERB hearing officer made twenty-six separate findings of fact. Finding number fifteen stated that " * * * [n]urses acquired the new responsibility for assisting the health aides by answering their questions and providing them guidance when requested." Finding number twenty-five provided that "[a]s far as students [sic ] health and nursing requirements, the health aides perform the same responsibilities as school nurses previously performed and in most instances presently perform." The hearing officer recommended that

" * * * the act of removing bargaining unit work from unit employees and transferring such to non-unit employees with the resultant affect [sic ] of a change in the bargaining unit employees' 'conditions' of employment" should be found to be subjects for mandatory collective bargaining.

SERB approved the findings of its hearing officer. Further, SERB found that

" * * * by custom and practice the regular unit work was performed by nurses only and thus is encompassed in the collective bargaining agreement. Pursuant to [R.C.] 4117.08(A), any modification of a collective bargaining agreement becomes a mandatory subject of bargaining." While appellee continued to have the same work performed by employees of appellee, that work was being performed by nonbargaining unit employees who had fewer qualifications than the nurses and were being paid less in wages and fringe benefits.

The common pleas court, in affirming the order of SERB, reviewed the record and concluded that " * * * SERB's findings were supported by substantial evidence. * * * " In utilizing this standard of review, the trial judge complied with the dictates of R.C. 4117.13(D). Pursuant to that statute, the standard of review of a SERB decision on an unfair labor practice charge is whether there is substantial evidence to support that decision.

Further, a determination of whether a public employer's unilateral action "affect[s] wages, hours, terms and conditions of employment" within the meaning of R.C. 4117.08(C) is generally a factual question which will vary depending upon the employer, employees and the circumstances of the case. Such disputes are properly determined by SERB, which was designated by the General Assembly to facilitate an amicable, comprehensive, effective labor-management relationship between public employees and employers. State, ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Emp. Relations Bd. (1986), 22 Ohio St.3d 1, 5, 22 OBR 1, 4, 488 N.E.2d 181, 184-185. As long as SERB's decision on such matters is supported by substantial evidence, it must be affirmed. Courts should not be required to intervene in every factual dispute between contesting parties.

Pursuant to R.C. Chapter 4117, unfair labor practice charges are first aired before SERB, one of its members, or a hearing officer. R.C. 4117.12(B)(1). The board member or hearing officer makes findings of fact and conclusions of law and then formulates a recommendation to SERB. R.C. 4117.12(B)(2). SERB then reviews the matter and issues its decision and order. R.C. 4117.12(B)(3). If SERB finds that an unfair labor practice has occurred (and it must be remembered that such charges may be brought by either employees or employer--R.C. 4117.11[A] and [B] ), then SERB may use its considerable expertise in labor-management relations to resolve the matter. Upon the issuance of a final order, any aggrieved party may pursue an appeal to the court of common pleas. R.C. 4117.13(D). In reviewing the order, courts must accord due deference to SERB's interpretation of R.C. Chapter 4117. Otherwise, there would be no purpose...