Univ. of Toledo v. Ohio State Emp't Relations Bd.
| Decision Date | 29 May 2012 |
| Docket Number | No. 11AP–834.,11AP–834. |
| Citation | 2012 -Ohio- 2364,282 Ed. Law Rep. 554,971 N.E.2d 448 |
| Parties | The UNIVERSITY OF TOLEDO, Appellant–Appellant, v. OHIO STATE EMPLOYMENT RELATIONS BOARD et al., Appellees–Appellees. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Fisher & Phillips LLP, and R. Scot Harvey, Cleveland, for appellant.
Michael DeWine, Attorney General, Angela Phelps–White and Michael D. Allen for appellee State Employment Relations Board.
Allotta, Farley & Widman Co. LPA, Marilyn L. Widman, Amy L. Zawacki, Toledo, and Elijah D. Baccus, for appellee The American Association of University Professors, University of Toledo Chapter.
{¶ 1} Appellant-appellant, The University of Toledo, appeals from a judgment of the Franklin County Court of Common Pleas granting the Civ.R. 12(B)(1) motion to dismiss of appellees-appellees, State Employment Relations Board (“SERB”) and The American Association of University Professors, University of Toledo Chapter (“AAUP–UT”). Appellant assigns a single error:
THE TRIAL COURT ERRED IN GRANTING THE MOTIONS OF THE OHIO STATE EMPLOYMENT RELATIONS BOARD AND THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, UNIVERSITY OF TOLEDO CHAPTER (DEFENDANT–APPELLEES) TO DISMISS THE ADMINISTRATIVE APPEAL OF THE UNIVERSITY OF TOLEDO (PLAINTIFF–APPELLANT) PURSUANT TO OHIO CIV. R. 12(B)(1), BECAUSE THE TRIAL COURT HAD SUBJECT MATTER JURISDICTION OVER THE UNIVERSITY'S APPEAL PURSUANT TO O.R.C. § 119.12 AND WAS NOT DIVESTED OF THIS JURISDICTION BY O.R.C. § 4117.06(A).
Because R.C. 4117.06(A) does not divest the common pleas court of jurisdiction of appellant's appeal from a SERB order clarifying, but not altering or amending, the bargaining unit, we reverse.
{¶ 2} Since 1992, AAUP–UT has been the exclusive representative of the SERB-certified bargaining unit, described to include “tenure and tenure-track faculty,” at the University of Toledo. On July 1, 2006, the Medical University of Ohio merged with the University of Toledo. The former Medical University site is now the University of Toledo's Health Science Campus, where the University of Toledo's College of Nursing is now located. As a result of the merger, the College of Nursing includes (1) faculty members that the University of Toledo previously employed who are members of AAUP–UT, and (2) former Medical University faculty, not members of AAUP–UT or any other labor organization.
{¶ 3} In February 2007, AAUP–UT filed a petition for representation election to allow the faculty on the Health Science Campus to elect whether they wanted AAUP–UT's representation. When AAUP–UT learned appellant hired a consulting firm to help it defeat AAUP–UT in the election, AAUP–UT withdrew its petition for representation election. Instead, on December 29, 2008, AAUP–UT filed with SERB a petition for clarification of bargaining unit, pursuant to Ohio Adm.Code 4117–5–01(E)(2). The petition requested that SERB determine whether the seven unrepresented College of Nursing full-time faculty members belonged in the bargaining unit.
{¶ 4} Appellant filed a motion to dismiss the petition for clarification on February 13, 2009, alleging a question about majority representation precluded AAUP–UT's using the clarification process. After the parties fully briefed the motion and an attempt at mediation failed, SERB's Labor Relations Administrator issued a memorandum on September 3, 2009 recommending that SERB deny appellant's motion to dismiss and grant AAUP–UT's petition for clarification.
{¶ 5} Addressing the motion to dismiss, the administrator determined that because the College of Nursing faculty did not have an exclusive representative, the motion for clarification did not present a representation issue. Resolving the petition for clarification, the administrator noted two significant points: SERB certified the bargaining unit to consist of “all regular, full-time faculty,” and the “parties [did] not dispute that the employees in question [were] performing bargaining unit work.” (CR.13.) Accordingly, the administrator concluded that clarifying the unit to include the College of Nursing faculty would “not alter the status quo, but rather maintains it.” (CR.13.) Consistent with the administrator's recommendation, SERB on September 8, 2009 denied the motion to dismiss and granted the petition for clarification, clarifying the bargaining unit to include the seven College of Nursing professors.
{¶ 6} Appellant appealed SERB's decision to the Franklin County Court of Common Pleas on September 23, 2009. SERB responded with a Civ.R. 12(B)(1) motion to dismiss the case for lack of jurisdiction. It contended its determination was not appealable in view of the restrictive language of R.C. 4117.06(A), which states that SERB's decisions on the appropriate bargaining unit are final and not appealable. After the common pleas court granted AAUP–UT's motion to intervene in the case, AAUP–UT filed a similar motion to dismiss the case premised on the provisions of R.C. 4117.06(A). Relying on Shawnee Edn. Assn. v. State Emp. Relations Bd., 139 Ohio App.3d 381, 743 N.E.2d 991 (10th Dist.2000), appellant responded that the jurisdictional bar in R.C. 4117.06(A) did not apply to SERB's directive clarifying the unit.
{¶ 7} After allowing the parties full briefing, the common pleas court issued a decision on August 19, 2011 granting the motions to dismiss. The court relied on Ohio Council 8, AFSCME v. Mahoning Cty. Dept. of Human Servs., 10th Dist. No. 93AP–551, 1994 WL 158910 (Apr. 26, 1994) and Ohio Council 8, AFSCME v. Cincinnati, 10th Dist. No. 92AP–782, 1993 WL 34608 (Feb. 9, 1993) to conclude that R.C. 4117.06(A) applied to the case and divested the court of jurisdiction over the appeal. The court further determined appellant's reliance on Shawnee was misplaced, as that case involved a “deemed-certified” bargaining unit, while the bargaining unit at issue was SERB-certified. The court journalized its decision with a judgment entry filed September 2, 2011, ordering the case dismissed with prejudice. Appellant timely appealed.
{¶ 8} Appellant's single assignment of error asserts the common pleas court erred in dismissing appellant's appeal for lack of jurisdiction. The standard for determining a Civ.R. 12(B)(1) motion to dismiss for lack of subject matter jurisdiction is whether the complaint states any cause of action cognizable in the forum. Crable v. Ohio Dept. of Youth Servs., 10th Dist. No. 09AP–191, 2010-Ohio-788, 2010 WL 740141, ¶ 8, citing State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 537 N.E.2d 641 (1989). An appellate court reviews de novo a common pleas court's dismissal for lack of subject matter jurisdiction. Id. at ¶ 8, citing Meccon, Inc. v. Univ. of Akron, 182 Ohio App.3d 85, 2009-Ohio-1700, 911 N.E.2d 933 (10th Dist.).
{¶ 9} A court of common pleas has power to review proceedings of administrative agencies and officers only to the extent the law so grants. Abt v. Ohio Expositions Comm., 110 Ohio App.3d 696, 699, 675 N.E.2d 43 (10th Dist.1996), citing Ohio Constitution, Article IV, Section 4. “ ‘[T]he general provisions of R.C. 119.12 govern the appealability of an adjudication order issued by SERB,’ except where R.C. Chapter 4117 provides for specific procedures to initiate an appeal from a particular adjudication order, or where R.C. Chapter 4117 specifically prohibits an appeal from an adjudication order issued by SERB.” (Emphasis sic.) Groveport–Madison Local Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 62 Ohio St.3d 501, 504, 584 N.E.2d 700 (1992), quoting Ohio Historical Soc. v. State Emp. Relations Bd., 48 Ohio St.3d 45, 46, 549 N.E.2d 157 (1990). See alsoR.C. 4117.02(P).
{¶ 10} R.C. 4117.06(A) provides that SERB Through the provisions of R.C. 4117.06(A), “the legislature has deemed SERB to be the appropriate final authority to determine from among a number of competing bargaining units which one is appropriate.” S. Community, Inc. v. State Emp. Relations Bd., 38 Ohio St.3d 224, 227, 527 N.E.2d 864 (1988).
{¶ 11} In applying R.C. 4117.06(A), the common pleas court's analysis turned on whether the bargaining unit subject of the motion was deemed-certified or SERB-certified. A deemed-certified bargaining unit “is an employee organization that bargained with an employer on behalf of public employees in a collective bargaining relationship” prior to April 1, 1984, the effective date of the Ohio Public Employees' Collective Bargaining Act (“Act”). Union of State, Cty. and Municipal Workers of Ohio v. Ohio Council 8, AFSCME, AFL–CIO, Local 1746, 136 Ohio App.3d 147, 149, 736 N.E.2d 55 (10th Dist.1999). “Thus, rather than being certified by SERB according to the normal certification procedure provided for under the Act, such units were deemed certified by the grandfather clause of Section 4(A) of Am.Sub.S.B. No. 133.” Id. As the terminology suggests, a SERB-certified unit is one SERB recognized through the procedures provided in the Act after the Act's effective date.
{¶ 12} The parties tacitly agree that resolution of this appeal hinges on whether the distinction between a deemed-certified bargaining unit and a SERB-certified bargaining unit is significant. Appellant contends the distinction between deemed-certified and SERB-certified bargaining units is a distinction “without a difference and is without legal support.” (Appellant's brief, 10.) Appellant thus submits that R.C. 4117.06(A)'s prohibition does not apply to a SERB order clarifying a bargaining unit, whether the bargaining unit is SERB-certified or deemed-certified. SERB and AAUP–UT contend the distinction between deemed-certified and SERB-certified...
To continue reading
Request your trial