Ohio Civ. Serv. Emp. Assn., AFSCME, Local 11, AFL-CIO v. Ohio Dept. of Transp., AFL-CI

• Decision Date: 01 June 1995
• Docket Number: A,No. 94APE08-1252,AFL-CI,94APE08-1252
• Parties: , 1995 SERB 4-17 OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, AFSCME, LOCAL 11,ppellant, v. OHIO DEPARTMENT OF TRANSPORTATION et al., Appellees.
• Court: Ohio Court of Appeals

Page 340

104 Ohio App.3d 340

662 N.E.2d 44, 1995 SERB 4-17

OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, AFSCME, LOCAL 11, AFL-CIO, Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION et al., Appellees.

No. 94APE08-1252.

Court of Appeals of Ohio,

Tenth District, Franklin County.

Decided June 1, 1995.

Linda K. Fiely, Carroll, for appellant.

Betty D. Montgomery, Attorney General, Jack W. Decker and Vincent T. Lombardo, Assistant Attorneys General, for appellees.

Lucas, Prendergast, Albright, Gibson & Newman and Rankin M. Gibson; Downes & Hurst and Marc A. Fishel, Columbus; Douglas Duckett, Hamilton; Paul L. Cox, Columbus, for amicus curiae.

PEGGY L. [1995 SERB 4-18] BRYANT, Judge.

Intervenor-appellant, Ohio Civil Service Employees Association, Local 11, AFL-CIO ("OCSEA"), appeals from a judgment of the Franklin County Court of Common Pleas, which affirmed the order of the State Employment Relations Board ("SERB"). The SERB order upheld the decision of the Ohio Department of Transportation ("ODOT") to unilaterally implement a "no-smoking" ¹ policy, finding that the policy is not a mandatory subject of collective bargaining.

On October 27, 1987, OCSEA filed an unfair labor practice charge with SERB, alleging that ODOT'S unilateral implementation of a "no-smoking" policy violated R.C. 4117.11(A)(1) and (A)(5), and asserting that the policy was a mandatory subject of bargaining under R.C. 4117.08(A) and (C). Following an investigation into OCSEA'S charge, SERB, on May 27, 1988, issued a complaint charging ODOT with commission of an unfair labor practice. Following a hearing, a SERB hearing officer issued a proposed order concluding that although ODOT's no-smoking policy was a mandatory subject of bargaining, OCSEA had waived its right to bargain concerning the no-smoking policy under the terms of its collective bargaining agreement with ODOT.

On January 8, 1993, while the parties were still awaiting a final opinion and order from SERB, the Governor of Ohio issued Executive Order 93-01V ("executive order"), which prohibits smoking in most state facilities, including those operated by ODOT. As a result, OCSEA moved to withdraw its unfair labor practice charge and to dismiss SERB's complaint on the grounds that the executive order, which superseded ODOT policy, had rendered the controversy regarding ODOT's no-smoking policy moot. SERB denied OCSEA's motion, finding that the case raised the larger issue of how to identify subjects of mandatory bargaining under R.C. 4117.08.

On April 29, 1993, SERB issued an opinion and order rejecting the hearing officer's recommendations. Instead, SERB set forth a new balancing test for distinguishing between subjects of mandatory and permissive bargaining. Applying the new balancing test, SERB concluded that ODOT's no-smoking policy was the subject of permissive rather than mandatory bargaining, but, nonetheless, ordered ODOT to provide OCSEA with an opportunity to bargain over "the wages, hours or other terms and conditions of employment affected by its decision to implement a no-smoking policy * * *."

OCSEA appealed SERB's order to the Franklin County Court of Common Pleas on May 14, 1993. On August 9, 1994, the court affirmed SERB's order. OCSEA appeals, assigning the following errors:

"I. The court of common pleas erred when it failed to reverse the decision of the State Employment Relations Board (SERB) that was contrary to the Supreme Court's interpretation of R.C. Section 4117.08(A) and (C).

"II. The court of common pleas erred when it refused to reverse the determination of the State Employment Relations Board (SERB) on the basis that the court was obligated to defer to SERB's interpretation because SERB does not possess the independent authority to interpret and define the legal scope of mandatory subjects of bargaining as found in R.C. Sections 4117.08(A) and (C) contrary to the interpretation of those sections of law by the Ohio Supreme Court.

"III. The court of common pleas erred when it upheld an unreasonable construction and application of the statute.

"IV. The court of common pleas erred when it upheld the decision of the State Employment Relations Board (SERB) because the balancing test is contrary to public policy."

Although the parties in their respective briefs did not not address the issue of mootness, the issue arose during oral argument. SERB requested leave to file a supplemental brief on the issue. Granting SERB's request, we invited the other parties to brief the mootness issue. In its response to our invitation, OCSEA submits that SERB's opinion and order of April 29, 1993 should be vacated, as the controversy regarding ODOT's unilateral imposition of a no-smoking policy was rendered moot by the executive order.

"The doctrine of mootness is rooted both in the 'case' or 'controversy' language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint." James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791, 600 N.E.2d 736, 738. Although the Ohio Constitution has no counterpart to Section 2, Article III, Ohio courts have long refused to entertain moot questions. Id. Thus, the " 'duty of * * * every * * * judicial tribunal * * * is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. * * * ' " Miner v. Witt (1910), 82 Ohio St. 237, 238, 92 N.E. 21, 22, quoting Mills v. Green (1895), 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293, 293-294. Where, prior to the rendition of a final decision, an event occurs, without the fault of either [1995 SERB 4-19] party, which renders it impossible for the court to grant effectual relief in a case, the case should be dismissed. Hagerman v. Dayton (1947), 147 Ohio St. 313, 325, 326, 34 O.O. 238, 244, 71 N.E.2d 246, 252.

In the present case, the parties do not dispute that as a result of the executive order which created a "smoke free work place"...