Lorain City School District Board of Education v. State Employment Relations Board, 87-LW-3938

• Decision Date: 09 September 1987
• Docket Number: 4196,87-LW-3938
• Parties: LORAIN CITY SCHOOL DISTRICT BOARD OF EDUCATION, Plaintiff-Appellant, v. STATE EMPLOYMENT RELATIONS BOARD, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

LORAIN CITY SCHOOL DISTRICT BOARD OF EDUCATION Plaintiff-Appellant, v. STATE EMPLOYMENT RELATIONS BOARD, et al Defendants-Appellees.

No. 4196. Judgment reversed and cause remanded, 40 Ohio St. 3d 257 (1988).

87-LW-3938 (9th)

Court of Appeals of Ohio, Ninth District Lorain

September 9, 1987

Appeal From Judgment Entered in the Common Pleas Court County of Lorain, Ohio, Case No. 96891-86.

Michael J. Loughman and Caryn G. Pass, Lorain, for appellant.

Susan C. Hayest, Columbus, for appellee State Employment Relations Board.

Ron C Macala, Canton, for appellee Lorain Education Association.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

CACIOPPO Judge.

Appellant, Lorain City School District Board of Education (board), appeals the decision of the Common Pleas Court upholding an order of the State Employment Relations Board (SERB). SERB's order required the board to engage in collective bargaining with appellee, Lorain Education Association (LEA), and to cease using non-bargaining unit personnel for the performance of bargaining-unit work.

LEA is the authorized representative and exclusive bargaining agent for certain public employees employed by the board. R.C. Chapter 4117. The board and LEA entered into a negotiated agreement covering the period from January 1, 1983, through August 31, 1986. The terms of this agreement included the ratio of Educational Services Personnel (ESP) to be employed by the board. Under Article 4.11 of the agreement, these include school counselors, librarians, art teachers, and school nurses, among others. The agreed ratio was give ESP per one thousand students. During the 1983-84 school year, the board employed five nurses. At the end of the school year, three of the five nurses retired.

After the board's evaluation of the health services delivery system, and pursuant to recommendations made by a committee, the board hired fourteen "health aides' to perform clerical and lesser important duties which had consumed the time and depleted the efficiency of the school nurses. The health aides were part-time employees not represented under the LEA's collective bargaining agreement with the board. An additional school nurse was also hired.

Upon the hiring of the health aides, the LEA formally requested the board to meet and negotiate with it regarding the modifications made in the school nursing program. The board refused to do so. Thereupon, the LEA filed an unfair labor practice charge with SERB. Finding probable cause to believe that the board had violated R.C. Chapter 4117, SERB issued a complaint against the board.

The complaint was assigned to a SERB hearing officer who conducted a formal hearing. Subsequently, the hearing officer issued a thirteen-page report containing findings of fact, conclusions of law, and a recommendation.

The hearing officer concluded that the board had committed an unfair labor practice in violation of R.C. 4117.11(A)(1)&(5). He recommended that SERB adopt his report and order the board to cease the use of non-bargaining unit personnel (health aides) for the performance of bargaining unit work as assigned to the school nurses prior to the 1984-85 school year and to immediately engage in collective bargaining over the subject. SERB adopted the recommendation in its entirety with one board member dissenting.

The board appealed SERB's decision and order to the Court of Common Pleas pursuant to R.C. 4117.13(D). The court found SERB's decision to be supported by substantial evidence and affirmed it. R.C. 4117.13(B). We reverse.

ASSIGNMENT OF ERROR

"The Court of Common Pleas erred when it upheld the decision by the State Employment Relations Board which was unlawful, unreasonable and against the manifest weight of the evidence as that decision requires the Lorain City School District Board of Education to negotiate a managment policy that governs the standard of service offered by the Lorain City School District Board of Education which has absolutely no effect on the terms or conditions of employment of any bargaining unit member.'

R.C. 4117.08 recites, in pertinent part, that:

"(A) All matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative, except as otherwise specified in this section.

* * *.

(C) Unless a public employer agrees otherwise in a collective bargaining agreement, nothing in Chapter 4117. of the Revised Code impairs the right and responsibility of each public employer to:

(1) Determine matters of inherent managerial policy which include, but are not limited to areas of discretion or policy such as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, and organizational structure ;

(2) Direct, supervise, evaluate, or hire employees;

(3) Maintain and improve the efficiency and effectiveness of governmental operations ;

(4) Determine the overall methods, process, means, or personnel by which governmental operations are to be conducted;

* * *.

(6) Determine the adequacy of the work force ;

* * *.

(8) Effectively manage the work force;

(9) Take actions to carry out the mission of the public employer as a governmental unit.

The employer is not required to bargain on subjects reserved to the managment and direction of the governmental unit except as affect wages, hours, terms and conditions of employment, and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement. A public employee or exclusive representative may raise a legitimate complaint or file a grievance based on the collective bargaining agreement. * * *.' (emphasis added).

R.C. 4117.11 recites in pertinent part that:

"(A) It is an unfair

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