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Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
OB971 - P58
IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
SERVICE EMPLOYEES 0 CASE NUMBER 14CVF-2360
INTERNATIONAL UNION, IL
(SEIU), DISTRICT 1199 0
Il
APPELLANT 0 JUDGE CAIN
I
vs. 1 = MAGISTRATE MCCARTHY
Il
STATE EMPLOYMENT 0
RELATIONS BOARD, ET AL. IL
Oo
APPELLEES I
DECISION TO AFFIRM
AND
JUDGMENT ENTRY
CAIN, J.
This is an administrative appeal presenting the issue of whether the
requisite evidence exists in the record to support the critical determinations made
below that (1) the parties did not have a MAD and thus were required to follow the
statutory dispute settlement procedures set forth in R.C. 4147.14 and OAC Rules
4117-9-05 and 4117-9-03 and (2) the election process established by appellant
concerning the fact finding outcome was improper and void. Upon consideration
and for the reasons detailed below, the court responds in the affirmative on both
fronts and affirms appellee’s adjudication order findings in this regard.
This appeal is governed by R.C. 119.12 which in pertinent part provides:
Any party adversely affected by any order of an agency issued
pursuant to any other adjudication may appeal to the court of
common pleas of Franklin county. . .Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
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aR
The court may affirm the order of the agency complained of in the
appeal if it finds, upon consideration of the entire record and such
additional evidence as the court has admitted, that the order is
supported by reliable, probative, and substantial evidence and is in
accordance with law. In the absence of such a finding, it may
reverse, vacate, or modify the order or make such other ruling as is
supported by reliable, probative, and substantial evidence and is in
accordance with law.
The evidence required by R.C. 119.12 can be defined as follows: (1)
"Reliable" evidence is dependable; that is, it can be confidently trusted. In order to
be reliable, there must be a reasonable probability that the evidence is true. (2)
"Probative" evidence is evidence that tends to prove the issue in question; it must
be relevant in determining the issue. (3) "Substantial" evidence is evidence with
some weight; it must have importance and value. Our Place, Inc. v. Ohio Liquor
Control Comm. (1992), 63 Ohio St. 3d 570, 571.
The evidence upon which the subject adjudication order is based reveals
that appellant union and the Cleveland Metropolitan School District Board of
Education (Board) were involved in negotiating a successor collective bargaining
agreement. The parties sought the assistance of a “Fact Finder’ who authored his
recommendations on over two dozen disputed issues. Because the parties had
not entered into a proper “mutually agreed upon dispute settlement procedure”
(MAD), the parties were required to follow the statutory dictates of R.C. 4117.14
and administrative directive of OAC 4117.14-9-05 when confronting negotiation
disharmony.
As negotiations continued, the union suggested the utilization of a
recognized Fact Finder from a list of identified as SERB’s roster of neutrals. It wasFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
0B971 - P60
agreed to use Fact Finder Nels Nelson in this connection. Appellant takes
exception to the characterization of Nelson as a Fact Finder, pointing to minor
deviations from the express administrative procedure. As pointed out below, due
deference must be afforded an administrative body's interpretation of its
administrative rules and procedures. The evidence supports the conclusion that
Nelson was the qualified Fact Finder in this case.
On October 31, 2013, Nelson filed his Fact Finder Report. In accordance
with administrative directive, the Board voted to approve the report and timely
submitted its vote certification to SERB. For reasons not fully disclosed, the union
did not timely submit its election results but communicated its position (for the first
time) that it was not bound by the statutory requirement for the timely submission
of vote results to SERB. Nevertheless, the union did file a vote certification with
SERB.
In that certification, the Board noted what appeared to be several
irregularities. Among those alleged to have occurred were discrepancies in the
publication of times and dates of permitted voting and the numbers of eligible
voters. Upon having concern with the union’s manner of holding the election, the
Board filed a motion with SERB to invalidate the election. Upon further inquiry,
additional missteps were found, including the circumstance that the union
reopened the polls after the polls had closed and the votes had been tallied.
SERB held a hearing on the issue of whether the union properly rejected
the Fact Finder Report. Following the presentation of a sizable quantum of
evidence, the hearing officer found, in fact, that the parties did not agree to a MADFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
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(therefore statutory provisions controlled the process) and that the union had not
followed the statutory dictates, resulting in the finding that the union’s vote
rejecting the Fact Finding Report was invalid. The hearing officer consequently
found that the Fact Finding Report was effectively to be considered agreed upon
by the parties in recognition of OAC 4117-9-05.
A central issue in this action is whether a MAD existed (if so, statutory and
regulatory procedures did not have to be followed). As mentioned herein, the
evidence points to the lack of a MAD inasmuch as a written agreement is not in
existence as required by law. In other words, MADs must exist in written form. On
this issue, the OAC provides (in relevant part):
4117-9-03. Mutually agreed-upon dispute settlement procedure.
(A) The parties may, at any time, agree to submit any or all issues in
dispute to any mutually agreed-upon dispute settlement procedure
authorized by section 4117.14 of the Revised Code, which procedure
shall supersede the procedures set forth in rules 4117-9-04, 4117-9-
05, and 4117-9-06 of the Administrative Code, and in divisions (C)(2)
to (C)(6), (D), and (G) of section 4117.14 of the Revised Code.
(B) A mutually agreed-upon dispute settlement procedure shall be,
filed via electronic mail with the board within five days of its
execution. Where a mutually agreed-upon dispute settlement
procedure is a provision in an existing collective bargaining
agreement, a copy of the provision shall be filed with the notice to
negotiate, and the notice shall contain a citation to the pertinent
provision of the collective bargaining agreement.
kee
In considering this matter on appeal, this court is limited to determining
whether the board's decision is supported by sufficient evidence in the record and
is in accordance with law. This court may not substitute its judgment for that of the
board; it may not reverse simply because it interprets the evidence differently thanFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
OB971 - P62
did the administrative adjudicator. Angelkovski v. Buckeye Potato Chips Co.
(1983), 11 Ohio App. 3d 159, 161-162. Due deference must be accorded to the
decisions of an administrative agency. VFW Post 8586 v. Ohio Liquor Control
Comm. (1998), 83 Ohio St. 3d 79.
It has been noted that "an administrative agency's construction of a statute
that the agency is empowered to enforce must be accorded due deference."
Ciriello v. Bd. of Embalmers and Funeral Directors of Ohio, 105 Ohio App. 3d 213,
218, citing Leon v. Bd. of Psychology (1992), 63 Ohio St. 3d 683 and Chaney v.
Clark Cty. Agr. Soc., Inc. (1993), 90 Ohio App. 3d 421. However, the findings of
the agency are not conclusive. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d
108, 110-111.
In State Emp. Relations Bd. v. Miami Univ. (1994), 71 Ohio St. 3d 351, 353,
the Ohio Supreme Court held:
In assessing SERB's policy, this court must afford deference to
SERB's interpretation of R.C. Chapter 4117. Lorain City School Dist.
Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St. 3d 257,
533 N.E.2d 264, paragraph two of the syllabus. The General
Assembly has entrusted SERB with the responsibility of
administering the statute, and has bestowed upon it the special
function of applying the statute's provisions to the complexities of
Ohio's industrial life. In so doing, it has delegated to SERB the
authority to make certain policy decisions. Our review is limited to
whether SERB's policy is unreasonable or in conflict with the explicit
language of R.C. Chapter 4117. Id. at 260, 533 N.E.2d at 266; State
Emp. Relations Bd. v. Adena Local Schoo! Dist. Bd. of Edn. (1993),
66 Ohio St. 3d 485, 496-499, 613 N.E.2d 605, 613-615. See, also,
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
(1984), 467 U.S. 837, 865-866, 104 S. Ct. 2778, 2793, 81 L. Ed. 2d
694, 717.
It is further noted that an agency's findings of fact will be presumed to be
correct and deferred to by the reviewing court unless the court determines thatFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
OB971 - P63
"the agency's findings are internally inconsistent, impeached by evidence of a prior
inconsistent statement, rest upon improper inferences, or are otherwise
unsupportable." Ohio Historical Society v. State Employment Relations Bd. (1993),
66 Ohio St.3d 466, 471, 1993 Ohio 182. In other words, when undertaking a
review of decision of an administrative agency, a court of common pleas acts in a
limited or restricted appellate capacity. University Hospitals, University of
Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St. 3d
339, 343, citing Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 279-
280.
Appellant additionally complains that the result obtained below “breaks with
decades of precedent without explanation or even the acknowledgement that it
has changed its position.” This court is confined to the record before it. Although
the Ohio Supreme Court has encouraged administrative bodies to respect their
own precedents in their decisions to assure the predictability,’ the record before
this court is insufficient to conclude the Board did not sufficiently adhere to its
precedents.
Upon a full review of the record, it is found that the requisite quantum,
quality and nature of evidence exist sufficient to support the administrative
determination of the Board. It is thus found the Board’s adjudication order is
supported by reliable, probative, and substantial evidence and is in accordance
with law.
' in re Columbus Southern Power Co., 128 Ohio St. 3d §12, 2011 Ohio 1788, 2041 Ohio LEXIS
987 (2011).Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
OB971 - P64
Accordingly, judgment is entered in favor of appellees and against
appellant. Costs to be paid by appellant.
Copies to:
Lori J. Weisman, Esq.
Counsel for Appellant
Cathrine J. Harshman, Esq.
Counsel for Appellee SERBFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
O0B971 - P65
Franklin County Court of Common Pleas
Date: 07-28-2014
Case Title: SERVICE EMPLOYEES INTL UNION DISTRICT 11 -VS- STATE
EMPLOYMENT RELATIONS BOARD ET AL
Case Number: 14CV002360
Type: DECISION/ENTRY
It Is So Ordered.
/s/ Judge David E. Cain
Electronically signed on 2014-Jul-28 page 8 of 8Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360
OB971 - P66
Court Disposition
Case Number: 14CV002360
Case Style: SERVICE EMPLOYEES INTL UNION DISTRICT 11 -VS-
STATE EMPLOYMENT RELATIONS BOARD ET AL
Case Terminated: 18 - Other Terminations
Final Appealable Order: Yes
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 OB971 - P58 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO CIVIL DIVISION SERVICE EMPLOYEES 0 CASE NUMBER 14CVF-2360 INTERNATIONAL UNION, IL (SEIU), DISTRICT 1199 0 Il APPELLANT 0 JUDGE CAIN I vs. 1 = MAGISTRATE MCCARTHY Il STATE EMPLOYMENT 0 RELATIONS BOARD, ET AL. IL Oo APPELLEES I DECISION TO AFFIRM AND JUDGMENT ENTRY CAIN, J. This is an administrative appeal presenting the issue of whether the requisite evidence exists in the record to support the critical determinations made below that (1) the parties did not have a MAD and thus were required to follow the statutory dispute settlement procedures set forth in R.C. 4147.14 and OAC Rules 4117-9-05 and 4117-9-03 and (2) the election process established by appellant concerning the fact finding outcome was improper and void. Upon consideration and for the reasons detailed below, the court responds in the affirmative on both fronts and affirms appellee’s adjudication order findings in this regard. This appeal is governed by R.C. 119.12 which in pertinent part provides: Any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the court of common pleas of Franklin county. . .Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 OB971 - P59 aR The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The evidence required by R.C. 119.12 can be defined as follows: (1) "Reliable" evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) "Probative" evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) "Substantial" evidence is evidence with some weight; it must have importance and value. Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St. 3d 570, 571. The evidence upon which the subject adjudication order is based reveals that appellant union and the Cleveland Metropolitan School District Board of Education (Board) were involved in negotiating a successor collective bargaining agreement. The parties sought the assistance of a “Fact Finder’ who authored his recommendations on over two dozen disputed issues. Because the parties had not entered into a proper “mutually agreed upon dispute settlement procedure” (MAD), the parties were required to follow the statutory dictates of R.C. 4117.14 and administrative directive of OAC 4117.14-9-05 when confronting negotiation disharmony. As negotiations continued, the union suggested the utilization of a recognized Fact Finder from a list of identified as SERB’s roster of neutrals. It wasFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 0B971 - P60 agreed to use Fact Finder Nels Nelson in this connection. Appellant takes exception to the characterization of Nelson as a Fact Finder, pointing to minor deviations from the express administrative procedure. As pointed out below, due deference must be afforded an administrative body's interpretation of its administrative rules and procedures. The evidence supports the conclusion that Nelson was the qualified Fact Finder in this case. On October 31, 2013, Nelson filed his Fact Finder Report. In accordance with administrative directive, the Board voted to approve the report and timely submitted its vote certification to SERB. For reasons not fully disclosed, the union did not timely submit its election results but communicated its position (for the first time) that it was not bound by the statutory requirement for the timely submission of vote results to SERB. Nevertheless, the union did file a vote certification with SERB. In that certification, the Board noted what appeared to be several irregularities. Among those alleged to have occurred were discrepancies in the publication of times and dates of permitted voting and the numbers of eligible voters. Upon having concern with the union’s manner of holding the election, the Board filed a motion with SERB to invalidate the election. Upon further inquiry, additional missteps were found, including the circumstance that the union reopened the polls after the polls had closed and the votes had been tallied. SERB held a hearing on the issue of whether the union properly rejected the Fact Finder Report. Following the presentation of a sizable quantum of evidence, the hearing officer found, in fact, that the parties did not agree to a MADFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 OB971 - P61 (therefore statutory provisions controlled the process) and that the union had not followed the statutory dictates, resulting in the finding that the union’s vote rejecting the Fact Finding Report was invalid. The hearing officer consequently found that the Fact Finding Report was effectively to be considered agreed upon by the parties in recognition of OAC 4117-9-05. A central issue in this action is whether a MAD existed (if so, statutory and regulatory procedures did not have to be followed). As mentioned herein, the evidence points to the lack of a MAD inasmuch as a written agreement is not in existence as required by law. In other words, MADs must exist in written form. On this issue, the OAC provides (in relevant part): 4117-9-03. Mutually agreed-upon dispute settlement procedure. (A) The parties may, at any time, agree to submit any or all issues in dispute to any mutually agreed-upon dispute settlement procedure authorized by section 4117.14 of the Revised Code, which procedure shall supersede the procedures set forth in rules 4117-9-04, 4117-9- 05, and 4117-9-06 of the Administrative Code, and in divisions (C)(2) to (C)(6), (D), and (G) of section 4117.14 of the Revised Code. (B) A mutually agreed-upon dispute settlement procedure shall be, filed via electronic mail with the board within five days of its execution. Where a mutually agreed-upon dispute settlement procedure is a provision in an existing collective bargaining agreement, a copy of the provision shall be filed with the notice to negotiate, and the notice shall contain a citation to the pertinent provision of the collective bargaining agreement. kee In considering this matter on appeal, this court is limited to determining whether the board's decision is supported by sufficient evidence in the record and is in accordance with law. This court may not substitute its judgment for that of the board; it may not reverse simply because it interprets the evidence differently thanFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 OB971 - P62 did the administrative adjudicator. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159, 161-162. Due deference must be accorded to the decisions of an administrative agency. VFW Post 8586 v. Ohio Liquor Control Comm. (1998), 83 Ohio St. 3d 79. It has been noted that "an administrative agency's construction of a statute that the agency is empowered to enforce must be accorded due deference." Ciriello v. Bd. of Embalmers and Funeral Directors of Ohio, 105 Ohio App. 3d 213, 218, citing Leon v. Bd. of Psychology (1992), 63 Ohio St. 3d 683 and Chaney v. Clark Cty. Agr. Soc., Inc. (1993), 90 Ohio App. 3d 421. However, the findings of the agency are not conclusive. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111. In State Emp. Relations Bd. v. Miami Univ. (1994), 71 Ohio St. 3d 351, 353, the Ohio Supreme Court held: In assessing SERB's policy, this court must afford deference to SERB's interpretation of R.C. Chapter 4117. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St. 3d 257, 533 N.E.2d 264, paragraph two of the syllabus. The General Assembly has entrusted SERB with the responsibility of administering the statute, and has bestowed upon it the special function of applying the statute's provisions to the complexities of Ohio's industrial life. In so doing, it has delegated to SERB the authority to make certain policy decisions. Our review is limited to whether SERB's policy is unreasonable or in conflict with the explicit language of R.C. Chapter 4117. Id. at 260, 533 N.E.2d at 266; State Emp. Relations Bd. v. Adena Local Schoo! Dist. Bd. of Edn. (1993), 66 Ohio St. 3d 485, 496-499, 613 N.E.2d 605, 613-615. See, also, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), 467 U.S. 837, 865-866, 104 S. Ct. 2778, 2793, 81 L. Ed. 2d 694, 717. It is further noted that an agency's findings of fact will be presumed to be correct and deferred to by the reviewing court unless the court determines thatFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 OB971 - P63 "the agency's findings are internally inconsistent, impeached by evidence of a prior inconsistent statement, rest upon improper inferences, or are otherwise unsupportable." Ohio Historical Society v. State Employment Relations Bd. (1993), 66 Ohio St.3d 466, 471, 1993 Ohio 182. In other words, when undertaking a review of decision of an administrative agency, a court of common pleas acts in a limited or restricted appellate capacity. University Hospitals, University of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St. 3d 339, 343, citing Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 279- 280. Appellant additionally complains that the result obtained below “breaks with decades of precedent without explanation or even the acknowledgement that it has changed its position.” This court is confined to the record before it. Although the Ohio Supreme Court has encouraged administrative bodies to respect their own precedents in their decisions to assure the predictability,’ the record before this court is insufficient to conclude the Board did not sufficiently adhere to its precedents. Upon a full review of the record, it is found that the requisite quantum, quality and nature of evidence exist sufficient to support the administrative determination of the Board. It is thus found the Board’s adjudication order is supported by reliable, probative, and substantial evidence and is in accordance with law. ' in re Columbus Southern Power Co., 128 Ohio St. 3d §12, 2011 Ohio 1788, 2041 Ohio LEXIS 987 (2011).Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 OB971 - P64 Accordingly, judgment is entered in favor of appellees and against appellant. Costs to be paid by appellant. Copies to: Lori J. Weisman, Esq. Counsel for Appellant Cathrine J. Harshman, Esq. Counsel for Appellee SERBFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 O0B971 - P65 Franklin County Court of Common Pleas Date: 07-28-2014 Case Title: SERVICE EMPLOYEES INTL UNION DISTRICT 11 -VS- STATE EMPLOYMENT RELATIONS BOARD ET AL Case Number: 14CV002360 Type: DECISION/ENTRY It Is So Ordered. /s/ Judge David E. Cain Electronically signed on 2014-Jul-28 page 8 of 8Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Jul 28 1:06 PM-14CV002360 OB971 - P66 Court Disposition Case Number: 14CV002360 Case Style: SERVICE EMPLOYEES INTL UNION DISTRICT 11 -VS- STATE EMPLOYMENT RELATIONS BOARD ET AL Case Terminated: 18 - Other Terminations Final Appealable Order: Yes