Public Emp. Council No. 51, Am. Federation of State, County, and Municipal Emp., AFL-CIO v. University of Cincinnati

• Decision Date: 15 August 1973
• Docket Number: No. A-730872,AFL-CIO,A-730872
• Parties: , 87 L.R.R.M. (BNA) 3223, 74 Lab.Cas. P 53,414, 66 O.O.2d 76, 68 O.O.2d 157 PUBLIC EMPLOYEES COUNCIL NO. 51, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES,, v. UNIVERSITY OF CINCINNATI. *
• Court: Ohio Court of Common Pleas

Page 11

39 Ohio Misc. 11

314 N.E.2d 403, 87 L.R.R.M. (BNA) 3223, 74 Lab.Cas. P 53,414,

66 O.O.2d 76, 68 O.O.2d 157

PUBLIC EMPLOYEES COUNCIL NO. 51, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO, v. UNIVERSITY OF CINCINNATI. ^*

No. A-730872.

Court of Common Pleas of Ohio, Hamilton County.

Aug. 15, 1973.

James C. Paradise, Cincinnati, for appellant.

Thomas A. Luebbers, City Sol., and Paul R. Berninger, Cincinnati, for appellee.

NURRE, Judge.

This matter comes before the court on motion to dismiss filed by the University of Cincinnati, appellee, herein.

The facts are as follows. Due to economic circumstances, Holmes Hospital (operated by the University of Cincinnati), acting upon advice of 'efficiency' experts, reduced its full-time work force and added to its complement of part-time employees. Several employees elected to be laid off rather than accept a different schedule.

Public Employees Council No. 51, American Federation of State, County, and Municipal Employees, AFL-CIO, hereinafter referred to as the Union, requested a hearing before the civil service commission on the circumstances surrounding these changes in the work force. A letter was issued by the acting city personnel officer to the Union, through its attorney, indicating that the commission would permit an 'informal' discussion of the matter.

On January 17, 1973, the 'informal' discussion was held. The commission took the position that the procedure at Holmes Hospital in reorganizing its staff was not in violation of the commission's rules and it indicated that any further resolution must be achieved by collective bargaining. The Union has appealed from that decision of the commission dated January 17, 1973. The Union pursuant to Section 2506.01 of the Ohio Revised Code is appealing the commission's order upholding the actions of the University of Cincinnati in changing full-time classified positions in the dietary department of Holmes Hospital to part-time unclassified positions, in employing part-time unclassified employees in said department to perform the work of classified employees, in depriving permanent classified employees in said department of their classified status by changing their positions to part-time positions, and in demoting, laying off and transferring fulltime, classified employees who refused to accept part-time, unclassified status.

A motion of appellant Union to compel filing of transcript was granted in order to complete this record.

The grounds for dismissal as stated by appellee are twofold: First, the informal hearing of January 17, 1973, was not in the nature of a quasi-judicial hearing as contemplated under R.C. 2506.01 et seq.; Second, the Union is not a party entitled to a quasi-judicial hearing before the civil service commission and is therefore not entitled to an appeal from any decision of that commission under R.C. 2506.01 et seq.

The Ohio Constitution, Section 4(B) of Article IV, provides the Court of Common Pleas with the power to review proceedings of administrative officers and agencies, 'as may be provided by law.' Appellee, in its brief, cites the cases of Zangerle v. Evatt (1942), 139 Ohio St. 563, 41 N.E.2d 369; and Fortner v. Thomas (1970), 22 Ohio St.2d 13, 257 N.E.2d 371, as Supreme Court of Ohio authorities limiting this power of freview by Common Pleas Courts to quasi-judicial proceedings only.

In the Zangerle case the Tax Commissioner of Ohio adopted a new rule which was appealed by three county tax officers to the Board of Tax Appeals. Testimony was taken and exhibits introduced and the board upheld the commissioner. Two of these auditors appealed to the Court of Common Pleas. The court ruled 139 Ohio St. on page 571, 41 N.E.2d on page 373:

'The making of rules for the valuation of property by the Department of Taxation is not a quasi-judicial function, and the fact that the Board of Tax Appeals as a branch of the Department of Tax may review any rule adopted and promulgated by the Tax Commissioner, the other branch of the Department of Taxation * * *, does not result in a quasi-judicial proceeding.'

The court went on to say, at pages 571-572, 41 N.E.2d at page 373:

'* * * a court may not take part in their (rules) enactment or promulgation. The function of the court is to decide when such rules are reasonable as applied to the facts of a particular justiciable case.'

The court indicated that appeals were authorized only in quasi-judicial proceedings, and that rule making by administrative officials is not a quasi-judicial function (at page 566, 41 N.E.2d 369). It is this court's opinion that the case at bar is distinguishable from the Zangerle case on that basis. The case at bar does not involve a rule making or quasi-legislative problem.

In the Fortner case the Ohio Liquor Control Commission amended one of its regulations. A holder of liquor permits, although never directly subjected to the application of the amended regulation, appealed to the Common Pleas court. Again, this court feels this case distinguishable on the basis of the nature of the quasi-legislative or rule making ability of the administrative body being in question.

In Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 233 N.E.2d...