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COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
SOUTHWEST OHIO REGIONAL :
TRANSIT AUTHORITY : CASE NO. 12-CV-000039
Appellant/Employer,
JUDGE: David W. Fais
v.
AMALGAMATED TRANSIT UNION
LOCAL 627 : APPELLANT SOUTHWEST OHIO
: REGIONAL TRANSIT AUTHORITY’S
Appellee/Employee Organization, : MOTION FOR STAY AND
MEMORANDUM IN SUPPORT
and
STATE EMPLOYMENT RELATIONS
BOARD
Appellee.
Now comes Appellant Southwest Ohio Regional Transit Authority (“SORTA”), through
counsel, and hereby requests that the State Employment Relations Board’s (“SERB”) December
22, 2011 Directive Granting Certification Pursuant to Request for Recognition and Dismissal of
Petition for Representation Election be stayed pursuant to Ohio Revised Code § 119.12, pending
the outcome of the above-captioned appeal, as set forth in the following Memorandum in
Support.Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039
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MEMORANDUM IN SUPPORT
1 INTRODUCTION
Appellant SORTA requests that this Court stay the execution of the State Employment
Relations Board’s December 22, 2011 Directive Granting Certification Pursuant to Request for
Recognition and Dismissal of Petition for Representation Election in SERB Case No. 2010-REP-
09-0164. As set forth below, that Directive purports to certify the Amalgamated Transit Union,
Local 627 (the “Union”) as the representative of a bargaining unit that consists entirely of
supervisory employees, in direct contravention of the provisions of Ohio Revised Code Section
4117, which expressly prohibits such supervisory employees from being a part of a unionized
bargaining unit. In the absence of a stay of that Directive pending the outcome of the instant
appeal, irreparable injury will result, as SORTA would be forced to recognize and negotiate with
a bargaining unit of supervisory employees who are expressly excluded from coverage under
R.C. 4117 and who would be members of the same union as the very employees they supervise,
and any agreement reached would be subject to abrogation depending on the Court’s decision on
the merits of SORTA’s appeal.
IL. FACTS
In September, 2010, the Union filed a Request for Recognition with respect to a group of
SORTA’s employees that the Union itself described as “Transportation Supervisors.” This
Request was received by SORTA on September 22, 2010, but was not received by SERB (and
therefore, not “filed” with SERB) until September 27, 2010. On October 13, 2010, SORTA sent,
via facsimile, its Objections to the Union’s Request, along with a Petition for Representation
Election, to both SERB and the Union. A hard copy of those Objections and Petition for
Representation Election was received by SERB on October 14, 2010, and was thereforeFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039
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determined to have been “filed” as of that date. At that time, SERB informed SORTA that, since
October 14, 2010 was the twenty-second day after SORTA had received the Union’s Request for
Recognition, SORTA’s filings were not timely. Accordingly, on October 18, 2010, SORTA
filed a position statement with SERB (copying the Union), setting forth its position that SERB
should consider the substance of SORTA’s objections, as the Transportation Supervisors are
clearly supervisory employees not eligible for representation (as exemplified in a 2003 SERB
decision directly on point'), and SERB has both an independent obligation not to certify a
bargaining unit in contravention of R.C. 4117 and the ability to waive technical defects in filing
such as was claimed to have occurred. At that time, the Union raised no objection to SORTA’s
request, nor did SERB dismiss SORTA’s Objections or Petition for Representation Election.
In fact, SERB continued to process this case, (1) directing the matter to a Pre-
Determination Mediation and (2) providing the Union with a copy of the 2003 SERB decision on
point (Central Ohio Transit Authority, SERB ALJ 2003-ALJ-010 (June 20, 2003)) and
requesting the Union’s position in light of that decision. In its April 11, 2011 response to SERB,
the Union still did not raise the issue of the purported untimeliness of SORTA’s Objections.
Rather, the Union expressly requested that an evidentiary hearing be conducted to determine the
status of the Transportation Supervisors.
Accordingly, SERB continued to process Case No. 2010-REP-09-0164: on June 16,
2011, SERB directed the parties to a non-oral hearing, and on July 7, 2011, SERB set a
prehearing conference for July 25, 2011. SERB’s Notice of Prehearing Conference/Procedural
Order specifically advised:
that the parties are required to file their Prehearing Statements at
the prehearing conference. The parties’ Prehearing Statements
must contain all legal issues to be presented for resolution,
* Central Ohio Transit Authority, infra.Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039
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remedies sought, and the legal authority to be relied upon by each
party in their briefs.
Notably, in the Union’s Prehearing Statement, filed with SERB on July 25, 2011, the Union
failed to raise the issue of alleged untimeliness. In fact, the Union did not mention timeliness at
all, and the only legal issue put forward by the Union with respect to the Transportation
Supervisors” was whether they “are public employees under O.R.C. 4117.01.” This case was
ultimately set for a hearing in front of SERB on October 26, 2011.
At the start of that hearing, the Union raised the timeliness issue for the first time, despite
having waited more than one year to do so and not having included any such reference in its July
25, 2011 Prehearing Statement.’ However, even at this time, the Union presented no evidence
regarding the alleged untimeliness or supporting any contention of undue prejudice. SERB
proceeded with the hearing, and both SORTA and the Union presented evidence relative to the
Transportation Supervisors.” On December 22, 2011, SERB mailed its Directive on Case No.
2010-REP-09-0164 to the parties. wherein it declined to address the issue of whether SORTA’s
Transportation Supervisors were supervisory employees (and therefore not public employees
eligible for union representation), instead dismissing SORTA’s Objections and Petition for
Representation Election as untimely. On January 3, 2012, SORTA appealed this Directive to the
Franklin County Court of Common Pleas pursuant to Ohio Revised Code Section 119.12.
TW. ARGUMENT
Under Ohio Revised Code Section 119.12:
If it appears to the court that an unusual hardship to the appellant
will result from the execution of the agency’s order pending
? Also known as “Street Supervisors” or “Street Service Supervisors.”
> SERB heard closing arguments rather than requesting written briefs, so SORTA had no real opportunity to fully
respond to the Union’s belated timeliness concerns.
4 Evidence was also presented concerning SORTA’s Training Specialists and Maintenance Foreman, whose
recognition requests were consolidated with that of the Transportation Supervisors for purposes of hearing, but
whose cases were severed from that of the Transportation Supervisors at the time SERB issued its decisions.OA149
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determination of the appeal, the court may grant a suspension and
fix its terms.
The following factors are to be considered when determining whether an administrative order
should be stayed pending judicial review:
(1) whether appellant has shown a strong or substantial likelihood
or probability of success on the merits; (2) whether appellant has
shown that it will suffer irreparable injury; (3) whether the
issuance of a stay will cause harm to others; and (4) whether the
public interest would be served by granting a stay.
Krihwan Pontiac-GMC Truck, Inc. v. General Motors Corp., 141 Ohio App. 3d 777 do" Dist.
2001). Ohio courts routinely grant such stays with respect to appeals of SERB decisions. See
Shawnee Education Association v. State of Ohio, 139 Ohio App. 3d 381 (10" Dist. 2000)(stay of
SERB decision granted by trial court). Here, SERB’s December 22, 2011 Directive should be
stayed pending the outcome of the instant appeal because (1) there is a strong likelihood SORTA
will prevail on the merits of its appeal, (2) SORTA will suffer irreparable injury if a stay does
not issue, (3) the issuance of a stay will cause no harm to others, and (4) a stay would promote
the public interest in this case.
A. SORTA Is Likely To Succeed On The Merits Of Its Case.
SORTA appealed SERB’s Directive because it is not supported by reliable, probative,
and substantial evidence and is not in accordance with law. Among other things: (1) the
Directive improperly dismissed Respondent’s Objections and Petition for Representation
Election as untimely although they were timely filed within twenty-one (21) days after the
filing of the request for recognition, as required under Ohio Revised Code § 4117.05(A)(2); (2)
the bargaining unit certified by the Directive consists entirely of supervisory individuals who are
not “public employees” within the meaning of Ohio Revised Code § 4117.01(C); (3) the State
Employment Relations Board abused its discretion by failing to waive the alleged proceduralFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039
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defect in the filing that it received by facsimile; (4) the State Employment Relations Board failed
to comply with the requirement, set forth in Ohio Revised Code §§ 4117.06(A)&(B),
4117.07(A)(2), 4117.22, and Ohio Administrative Code §§ 4117-3-02(D), 4117-5-04(A), that it
independently investigate the appropriateness of a potential bargaining unit, without regard to
whether objections or a petition for election has been filed; and (5) the Employee Organization
waived the issue of timeliness in this case. As SORTA is likely to prevail on the merits of these
claims, a stay of SERB’s decision is appropriate
1. SORTA is likely to prevail, as its Objections were timely filed.
Initially, SORTA is likely to prevail on the merits of its appeal because, despite SERB’s
ruling, SORTA’s Objections and Petition for Representation Election were timely filed. Ohio
Revised Code Section 4117.05 specifically provides that, to prevent certification of a unit that
has requested representation, either an election petition or substantial evidence that the proposed
unit is inappropriate must be filed with SERB “by the twenty-first day following the filing of a
request for recognition” R.C. 4117.05(A)(2). Documents are “filed” with SERB when they are
received by SERB. O.A.C. 4117-1-02(A). Accordingly, as the Union’s Recognition Request
concerning the Transportation Supervisors was stamped received by with SERB (and thus,
“filed”) on September 27, 2010, SORTA had 21 days from that date (until October 18, 2010) to
timely file its Objections and Petition for Representation Election. SORTA faxed those
documents to SERB and the Union on October 13, 2010, and it is undisputed that SERB received
ahard copy of those documents sufficient for filing on October 14, 2010, well within the 21-day
period provided by the express provisions of R.C. 4117.05. Accordingly, the undisputed
evidence and clear statutory language demonstrate that SORTA’s Objects and Petition forFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039
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Representation Election were timely filed, and therefore that SERB’s dismissal of the same was
incorrect.
However, instead of referring to the express language of R.C. 4117.05, SERB based its
decision on the provisions of its administratively-issued regulation, O.A.C. 4117-3-01(A), which
provides that the employer must file an election petition or substantial evidence that the proposed
unit is inappropriate by the twenty-first day “following the employer’s receipt of the request for
recognition.” However, an administrative agency is not permitted to abrogate the legislature’s
statutory enactments through issuance of regulations that contradict those statutory provisions:
“If an administrative rule exceeds the statutory authority
established by the General Assembly, the agency has usurped the
legislative function, thereby violating the separation of powers
established in the Ohio Constitution.”
McFee v. Nursing Care Mgmt. of Am., Inc., 126 Ohio St. 3d 183. 2010-Ohio-2744, 931 N.E. 2d
1069; Burger Brewing Co. v. Thomas, 42 Ohio St. 2d 377, 329 N.E. 2d 693 (1975).
Accordingly. the express terms of R.C. 4117.05, providing 21 days from the filing of a Request
for Recognition, cannot be overruled by an administrative code provision purporting to provide
less time than statutorily required. To hold otherwise would be to allow SERB to exceed its
statutory authorization and usurp the legislative function. Therefore, it is clear that SORTA is
likely to prevail on this issue.
2. SORTA is likely to prevail as SERB inappropriately refused to
consider the evidence before it and improperly certified a bargaining
unit consisting of statutory supervisors who are not public employees
eligible for union representation.
SORTA is similarly likely to prevail on issues (2)-(4) set forth above, as SERB abused its
discretion by certifying a bargaining unit consisting of statutory supervisors, failing to waive the
alleged technical defect in SORTA’s Objections, and failing to exercise its independent authorityOA149
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to investigate and review the evidence demonstrating that the proposed bargaining unit was
statutorily inappropriate.
Revised Code Section 4117.01(C)(10) specifically excludes “supervisors” from the
definition of “public employees,” and Section 4117.03(A)(1) provides that only “public
employees have the right to form, join, assist or participate in ... any employee organization.”
Simply put, “[P]ersons who are not public employees are not subject to the provisions of R.C.
Chapter 4117,” and therefore statutory supervisors under R.C. 4117.01(C)(10) are not eligible for
union representation. Doctors’ Professional Association v. SERB, co" Dist. No. 03AP-760)
2004-Ohio-5839.
In fact, Revised Code Section 4117.05, setting forth the procedures for certification after
a request for recognition, expressly pre-conditions such certification on the “employee
organization becom[ing] the exclusive representative of all_the public_employees in an
appropriate unit.” Moreover, as explained by the Tenth Appellate District Court:
[flor purposes of recognition requests under R.C. 4117.05(A), an
initial inquiry must be whether the persons that the organization
seeks to represent are public employees, because if persons are not
‘public employees,’ as defined by R.C. 4117.01(C), then the
persons are not subject to the provisions of R-C. Chapter 4117.
Hence, an organization cannot seek R.C. 4117.05 recognition as
the exclusive representative of persons, if the persons it seeks to
represent are not public employees.
Id. In this case, the Union filed a recognition request for a group of individuals that it labeled as
“Transportation Supervisors.” a group that had previously been stipulated to constitute
supervisory employees.* In addition, the joint stipulations submitted by SORTA and the Union
in this case, as well as the evidence presented at the October 26, 2011 SERB hearing, establish
5 In 1986, the Union attempted to organize a number of SORTA’s salaried employees, but supervisors in the
transportation department were stipulated to be excluded from the election that was ultimately held, due to their
supervisory status.OA149
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that these Transportation Supervisors are statutory supervisors pursuant to R.C. 4117.01(C)(10),
and therefore that they are not eligible for representation. Accordingly, as these supervisory
employees are, on their face, not “public employees,” R.C. 4117.01 et seg. expressly prohibits
SERB from certifying a bargaining unit in which they are included.
Furthermore, even if SORTA’s Objections and Petition for Representation Election had
not been timely filed (which they were, as set forth above) SERB has been provided, by both the
statute and its regulations, with the authority to excuse any such technical defect, to ensure that
the purposes of R.C. 4117.01 ef seg. are accomplished. Specifically, R-C. 4117.22 provides that:
“Chapter 4117 of the Revised Code shall be construed liberally for
the accomplishment of the purpose of promoting orderly and
constructive relationships between all public employers and their
employees.”
In Hudson Township Board of Trustees v. SERB, Summit C.P. No. CV 86-3-903 (Sept. 4. 1987),
Case No. CV 86-3-903 (reversed on unrelated grounds)(attached as Exh. A), this provision was
held to mean that SERB abused its discretion in refusing to consider an employer’s substantive
objections to a proposed bargaining unit, despite SERB’s determination that those objections
(which it received prior to issuing its ruling) were not timely filed. The court specifically found
that “SERB’s refusal to decide the issue on the merits,” despite having received notice of the
employer’s objections prior to issuing its decision, did “not promote an orderly and constructive
relationship between the parties” and was therefore improper. Id.
In fact, SERB’s own regulations specifically provide that it may waive technical filing
defects (including untimeliness) in the absence of undue prejudice, that it can address the
substance of a case:
“The State Employment Relations Board has discretion to waive
technical defects in any document filed with the board if no undue
prejudice would result.”Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039
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“Except as otherwise provided in Chapter 4117 of the Revised
Code, the board, board member or administrative law judge may,
upon its own motion or upon the motion of any party ... extend the
time to file any document.”
O.A.C. 4117-1-02(E); O.A.C. 4117-1-05(A). Here, even if SORTA’s filings had been untimely
under the statute (which they were not), it is clear that no undue prejudice resulted. Both SERB
and the Union received SORTA’s Objections on October 13, 2010 via facsimile,® and SERB
continued to process the case for the next year, during which time the Union did not raise any
concerns regarding timeliness. Moreover, during the pendency of the case, SERB was provided
with extensive evidence of the supervisory nature of the Transportation Supervisor position at
issue. Both SORTA and the Union were subsequently able to fully present their evidence both
via joint stipulation and at the October 26, 2011 hearing in this matter. As such, there can be no
good faith argument that the alleged untimeliness of SORTA’s Objections caused any prejudice
to any party (much less “undue” prejudice). Therefore, SERB abused its discretion by failing to
consider the substance of SORTA’s objections and the evidence presented to at the hearing in
this matter, despite any allegations of untimeliness.
Moreover, the relevant statutory and regulatory code provisions make it clear that SERB
has an independent obligation to determine the appropriateness of a proposed unit, to ensure that
the statutory dictates are not violated:
“The state employment relations board shall decide in each case
the unit appropriate for the purposes of collective bargaining.”
* * #
§ It should also be mentioned that, later in 2010, SERB moved almost entirely to a system of electronic filing
(instead of hard copy). Accordingly, SERB cannot contend that anyone was prejudiced by SORTA’s October 13,
2010 facsimile provision of its Objections, instead of hard copy.
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“The board shall determine the appropriateness of each bargaining
unit.”
“In the event the employer does not file a petition for
representation election pursuant to sections 4117.05 and 4117.07
of the Revised Code, the board shall determine whether or not the
employee organization is entitled to certification pursuant to
section 4117.05 of the Revised Code and Chapter 4117-3 of the
Administrative Code.”
Subsequent to the filing of a petition for a representation or
decertification election, the board shall conduct an investigation to
determine if there is reasonable cause to believe that a question of
representation exists.
R.C. 4117.06(A); R.C. 4117.06(B); O.A.C. 4117-3-02(D); O.A.C. 4117-5-04(A). This is
especially true. given the mandate set forth in R.C. 4117.22 to construe the provisions of
Revised Code Section 4117 liberally to accomplish the purposes of the statute. As the relevant
statutory provisions provide that (1) only “public employees” (and therefore not supervisors) are
eligible for representation, (2) SERB is responsible for investigating and determining whether a
particular unit is appropriate for recognition, and (3) the statute should be construed liberally to
accomplish its purposes, it is clear that it was inappropriate for SERB to dismiss SORTA’s
Objections out of hand. This is particularly true in that SERB had been presented with ample
evidence, in the form of the title “Transportation Supervisor,” the parties’ joint stipulations, and
the October 26, 2011 hearing evidence, of the supervisory status of the individuals at issue.
3. The Union waived any timeliness argument.
Even if (1) SORTA’s filings had been untimely (they were not) and (2) SERB had not
abused its discretion by failing to consider the evidence before it on the supervisory status of the
Transportation Supervisors before certifying their bargaining unit, SORTA is still likely to
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prevail on the merits of its appeal, as SERB’s Directive should be overturned due to the fact that
the Union implicitly and explicitly waived any argument based on any alleged untimely filing.
As indicated above, the Union failed to raise the untimeliness issue for more than one year after
SORTA filed its Objections and Petition for Representation Election. The Union did not object
at the time of SORTA’s filing. when the parties were directed to mediation, or in its April 11,
2011 response to SERB’s request for the Union’s position in light of the Central Ohio Transit
Authority case (which held that almost identical employees were “supervisors” and therefore
ineligible for representation). Instead, the Union consistently requested solely that an evidentiary
hearing be conducted on the issue of the Transportation Supervisors’ supervisory status.
Additionally, on July 7, 2011, the parties were ordered to file Prehearing Statements in
this case by July 25, 2011. The parties were instructed that those Prehearing Statements “must
contain all legal issues to be presented for resolution.” Moreover, SERB’s regulations
specifically provide:
The board, a board member, or an administrative law judge will
conduct a hearing to determine whether a question of
representation exists. In_a written prehearing statement, each
party shall state all issues to be raised _at the hearing. Parties
failing to submit_a prehearing statement may be denied the
opportunity to present evidence at the hearing.
O.A.C. 4117-5-05(B). The Union’s Prehearing statement did not present timeliness as a legal
issue in need of resolution. To the contrary, the only legal issue presented by the Union
concerning the Transportation Supervisors was that regarding their status as supervisory
employees. Accordingly, the Union expressly waived the ability to raise the purported
timeliness issue by failing to raise that issue in its Prehearing Statement as required and
implicitly waived the timeliness issue by failing to raise that issue for more than one year.
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B. SORTA Will Suffer Irreparable Injury If A Stay Is Not Granted.
In addition to the fact that SORTA is likely to succeed on the merits of its appeal, a stay
should be granted in this case because SORTA would suffer irreparable injury if SERB’s
Directive is not stayed pending the outcome of this appeal. As an initial matter, Ohio courts
routinely grant such stays with respect to appeals of SERB decisions. See Shawnee Education
Association v. State of Ohio, 139 Ohio App. 3d 381 (10" Dist. 2000)(stay of SERB decision
granted by trial court)
The irreparable injury that will be suffered by SORTA if SERB’s Directive is not stayed
arises from the fact that that Directive inappropriately certifies a bargaining unit that consists of
supervisory employees that are expressly excluded from R.C. 4117.01’s definition of “public
employee” and are therefore ineligible for union representation. In fact, SERB’s Directive,
unless it is stayed, would cause SORTA’s Transportation Supervisors to be a part of the very
same Union that represents the employees that they supervise (SORTA’s coach operators),
creating a direct conflict of interest for those supervisory employees. R.C. 4117.01 excludes
supervisors from union representation for this very reason. As just one example of this conflict,
SORTA’s Transportation Supervisors are expected to effectively supervise SORTA’s coach
operators, and this includes citing them for violations of SORTA’s policies and thus initiating the
discipline process. The conflict that arises when one union member is responsible for initiating
discipline (or deciding not to do so) against another member of the same union is readily
apparent. Unless SERB’s Directive is stayed pending the outcome of the instant appeal,
SORTA’s operations (providing mass transit services for the Greater Cincinnati and Hamilton
County area) will be hamstrung and SORTA will lose the ability to effectively manage its coach
operators, which are the backbone of its transit operations.
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Cc. The Issuance Of A Stay Will Cause No Harm To Others.
Moreover, while the issuance of a stay is necessary to avoid causing irreparable injury to
SORTA, such a stay would not cause any harm to come to anyone else. In fact, staying the
execution of a SERB Directive that is in direct contravention of R.C. 4117.01 et seq., and which
is the subject of the instant appeal for that very reason, cannot reasonably be said to cause harm
to anyone. SORTA’s Transportation Supervisors, as statutory supervisors, are not eligible for
union representation pursuant to R.C. 4117, and therefore a stay of SERB’s directive would not
deprive them of anything to which they are otherwise entitled. Moreover, the granting of a stay
would work in the best interests of those Transportation Supervisors, as it would save them from
expending time and effort toward negotiating a collective bargaining agreement in the uncertain
atmosphere where the instant appeal is still pending and where the Court’s decision on SORTA’s
appeal could very well abrogate any agreement that might be reached.
D. The Public Interest Would Be Served By Granting A Stay.
As set forth above, Ohio Revised Code Section 4117 explicitly provides that statutory
supervisors are not public employees, and they are therefore not entitled to union representation.
This legislative determination is crucial for ensuring the efficient and effective operation of the
public services that would be jeopardized if supervisors and those supervised are both
represented by a union (and, especially, the same union). R.C. 4117.22 specifically provides that
the statutory provisions are to be liberally construed to accomplish those purposes. As the
granting of a stay in this case would prevent the certification of a bargaining unit consisting
solely of individuals properly classified as supervisors under R.C. 4117.01(C)(10), an express
violation of R.C. 4117.01 et seq., the granting of such a stay would serve the public interest by
promoting compliance with the express terms of the statute.
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IV. CONCLUSION
For the reasons set forth above, SORTA respectfully requests that the Court stay
execution of the State Employment Relations Board’s December 22, 2011 Directive Granting
Certification Pursuant to Request for Recognition and Dismissal of Petition for Representation
Election, pending the outcome of SORTA’s Appeal.
15
Respectfully submitted,
/s/ Trevor E, Gillette
Charles M. Roesch (0013307)
Trevor E. Gillette (0082608)
Dinsmore & Shohl LLP
Suite 1900
255 East Fifth Street
Cincinnati, Ohio 45202
Phone: (513) 977-8200
Fax: (513) 977-8141
Email: chuck.roesch @dinsmore.com
trevor.gillette@dinsmore.com
Attorneys for Southwest Ohio Regional
Transit AuthorityFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039
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CERTIFICATE OF SERVICE
The foregoing Notice of Appeal has been filed electronically with the Court of Common
Pleas of Franklin County, Ohio, 345 South High Street, Columbus, Ohio 43215 on the 6th day of
January, 2012, which will cause an electronic copy to be sent to:
Jennifer Cleary, Esq.
Assistant Attorney General
Labor Relations Section
30 East Broad Street, 16" Floor
Columbus, Ohio 43215
jennifer.cleary @ ohicattorneygeneral.gov
Attorney for State Employment Relations Board
A copy of the foregoing has also been served via e-mail, this 6th day of January, 2012,
upon the following:
Joseph S. Pass, Esq.
Jubelirer, Pass & Intrieri, PC
219 Fort Pitt Boulevard
Pittsburgh, PA 15222-1576
jsp@jpilaw.com
Attorney for Amalgamated Transit Union, Local 627
/s/ Trevor E. Gillette
Trevor E. Gillette
2053186v1
16
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J21 COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO SOUTHWEST OHIO REGIONAL : TRANSIT AUTHORITY : CASE NO. 12-CV-000039 Appellant/Employer, JUDGE: David W. Fais v. AMALGAMATED TRANSIT UNION LOCAL 627 : APPELLANT SOUTHWEST OHIO : REGIONAL TRANSIT AUTHORITY’S Appellee/Employee Organization, : MOTION FOR STAY AND MEMORANDUM IN SUPPORT and STATE EMPLOYMENT RELATIONS BOARD Appellee. Now comes Appellant Southwest Ohio Regional Transit Authority (“SORTA”), through counsel, and hereby requests that the State Employment Relations Board’s (“SERB”) December 22, 2011 Directive Granting Certification Pursuant to Request for Recognition and Dismissal of Petition for Representation Election be stayed pursuant to Ohio Revised Code § 119.12, pending the outcome of the above-captioned appeal, as set forth in the following Memorandum in Support.Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J22 MEMORANDUM IN SUPPORT 1 INTRODUCTION Appellant SORTA requests that this Court stay the execution of the State Employment Relations Board’s December 22, 2011 Directive Granting Certification Pursuant to Request for Recognition and Dismissal of Petition for Representation Election in SERB Case No. 2010-REP- 09-0164. As set forth below, that Directive purports to certify the Amalgamated Transit Union, Local 627 (the “Union”) as the representative of a bargaining unit that consists entirely of supervisory employees, in direct contravention of the provisions of Ohio Revised Code Section 4117, which expressly prohibits such supervisory employees from being a part of a unionized bargaining unit. In the absence of a stay of that Directive pending the outcome of the instant appeal, irreparable injury will result, as SORTA would be forced to recognize and negotiate with a bargaining unit of supervisory employees who are expressly excluded from coverage under R.C. 4117 and who would be members of the same union as the very employees they supervise, and any agreement reached would be subject to abrogation depending on the Court’s decision on the merits of SORTA’s appeal. IL. FACTS In September, 2010, the Union filed a Request for Recognition with respect to a group of SORTA’s employees that the Union itself described as “Transportation Supervisors.” This Request was received by SORTA on September 22, 2010, but was not received by SERB (and therefore, not “filed” with SERB) until September 27, 2010. On October 13, 2010, SORTA sent, via facsimile, its Objections to the Union’s Request, along with a Petition for Representation Election, to both SERB and the Union. A hard copy of those Objections and Petition for Representation Election was received by SERB on October 14, 2010, and was thereforeFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 0A149 - J23 determined to have been “filed” as of that date. At that time, SERB informed SORTA that, since October 14, 2010 was the twenty-second day after SORTA had received the Union’s Request for Recognition, SORTA’s filings were not timely. Accordingly, on October 18, 2010, SORTA filed a position statement with SERB (copying the Union), setting forth its position that SERB should consider the substance of SORTA’s objections, as the Transportation Supervisors are clearly supervisory employees not eligible for representation (as exemplified in a 2003 SERB decision directly on point'), and SERB has both an independent obligation not to certify a bargaining unit in contravention of R.C. 4117 and the ability to waive technical defects in filing such as was claimed to have occurred. At that time, the Union raised no objection to SORTA’s request, nor did SERB dismiss SORTA’s Objections or Petition for Representation Election. In fact, SERB continued to process this case, (1) directing the matter to a Pre- Determination Mediation and (2) providing the Union with a copy of the 2003 SERB decision on point (Central Ohio Transit Authority, SERB ALJ 2003-ALJ-010 (June 20, 2003)) and requesting the Union’s position in light of that decision. In its April 11, 2011 response to SERB, the Union still did not raise the issue of the purported untimeliness of SORTA’s Objections. Rather, the Union expressly requested that an evidentiary hearing be conducted to determine the status of the Transportation Supervisors. Accordingly, SERB continued to process Case No. 2010-REP-09-0164: on June 16, 2011, SERB directed the parties to a non-oral hearing, and on July 7, 2011, SERB set a prehearing conference for July 25, 2011. SERB’s Notice of Prehearing Conference/Procedural Order specifically advised: that the parties are required to file their Prehearing Statements at the prehearing conference. The parties’ Prehearing Statements must contain all legal issues to be presented for resolution, * Central Ohio Transit Authority, infra.Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J24 remedies sought, and the legal authority to be relied upon by each party in their briefs. Notably, in the Union’s Prehearing Statement, filed with SERB on July 25, 2011, the Union failed to raise the issue of alleged untimeliness. In fact, the Union did not mention timeliness at all, and the only legal issue put forward by the Union with respect to the Transportation Supervisors” was whether they “are public employees under O.R.C. 4117.01.” This case was ultimately set for a hearing in front of SERB on October 26, 2011. At the start of that hearing, the Union raised the timeliness issue for the first time, despite having waited more than one year to do so and not having included any such reference in its July 25, 2011 Prehearing Statement.’ However, even at this time, the Union presented no evidence regarding the alleged untimeliness or supporting any contention of undue prejudice. SERB proceeded with the hearing, and both SORTA and the Union presented evidence relative to the Transportation Supervisors.” On December 22, 2011, SERB mailed its Directive on Case No. 2010-REP-09-0164 to the parties. wherein it declined to address the issue of whether SORTA’s Transportation Supervisors were supervisory employees (and therefore not public employees eligible for union representation), instead dismissing SORTA’s Objections and Petition for Representation Election as untimely. On January 3, 2012, SORTA appealed this Directive to the Franklin County Court of Common Pleas pursuant to Ohio Revised Code Section 119.12. TW. ARGUMENT Under Ohio Revised Code Section 119.12: If it appears to the court that an unusual hardship to the appellant will result from the execution of the agency’s order pending ? Also known as “Street Supervisors” or “Street Service Supervisors.” > SERB heard closing arguments rather than requesting written briefs, so SORTA had no real opportunity to fully respond to the Union’s belated timeliness concerns. 4 Evidence was also presented concerning SORTA’s Training Specialists and Maintenance Foreman, whose recognition requests were consolidated with that of the Transportation Supervisors for purposes of hearing, but whose cases were severed from that of the Transportation Supervisors at the time SERB issued its decisions.OA149 Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 - J25 determination of the appeal, the court may grant a suspension and fix its terms. The following factors are to be considered when determining whether an administrative order should be stayed pending judicial review: (1) whether appellant has shown a strong or substantial likelihood or probability of success on the merits; (2) whether appellant has shown that it will suffer irreparable injury; (3) whether the issuance of a stay will cause harm to others; and (4) whether the public interest would be served by granting a stay. Krihwan Pontiac-GMC Truck, Inc. v. General Motors Corp., 141 Ohio App. 3d 777 do" Dist. 2001). Ohio courts routinely grant such stays with respect to appeals of SERB decisions. See Shawnee Education Association v. State of Ohio, 139 Ohio App. 3d 381 (10" Dist. 2000)(stay of SERB decision granted by trial court). Here, SERB’s December 22, 2011 Directive should be stayed pending the outcome of the instant appeal because (1) there is a strong likelihood SORTA will prevail on the merits of its appeal, (2) SORTA will suffer irreparable injury if a stay does not issue, (3) the issuance of a stay will cause no harm to others, and (4) a stay would promote the public interest in this case. A. SORTA Is Likely To Succeed On The Merits Of Its Case. SORTA appealed SERB’s Directive because it is not supported by reliable, probative, and substantial evidence and is not in accordance with law. Among other things: (1) the Directive improperly dismissed Respondent’s Objections and Petition for Representation Election as untimely although they were timely filed within twenty-one (21) days after the filing of the request for recognition, as required under Ohio Revised Code § 4117.05(A)(2); (2) the bargaining unit certified by the Directive consists entirely of supervisory individuals who are not “public employees” within the meaning of Ohio Revised Code § 4117.01(C); (3) the State Employment Relations Board abused its discretion by failing to waive the alleged proceduralFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J26 defect in the filing that it received by facsimile; (4) the State Employment Relations Board failed to comply with the requirement, set forth in Ohio Revised Code §§ 4117.06(A)&(B), 4117.07(A)(2), 4117.22, and Ohio Administrative Code §§ 4117-3-02(D), 4117-5-04(A), that it independently investigate the appropriateness of a potential bargaining unit, without regard to whether objections or a petition for election has been filed; and (5) the Employee Organization waived the issue of timeliness in this case. As SORTA is likely to prevail on the merits of these claims, a stay of SERB’s decision is appropriate 1. SORTA is likely to prevail, as its Objections were timely filed. Initially, SORTA is likely to prevail on the merits of its appeal because, despite SERB’s ruling, SORTA’s Objections and Petition for Representation Election were timely filed. Ohio Revised Code Section 4117.05 specifically provides that, to prevent certification of a unit that has requested representation, either an election petition or substantial evidence that the proposed unit is inappropriate must be filed with SERB “by the twenty-first day following the filing of a request for recognition” R.C. 4117.05(A)(2). Documents are “filed” with SERB when they are received by SERB. O.A.C. 4117-1-02(A). Accordingly, as the Union’s Recognition Request concerning the Transportation Supervisors was stamped received by with SERB (and thus, “filed”) on September 27, 2010, SORTA had 21 days from that date (until October 18, 2010) to timely file its Objections and Petition for Representation Election. SORTA faxed those documents to SERB and the Union on October 13, 2010, and it is undisputed that SERB received ahard copy of those documents sufficient for filing on October 14, 2010, well within the 21-day period provided by the express provisions of R.C. 4117.05. Accordingly, the undisputed evidence and clear statutory language demonstrate that SORTA’s Objects and Petition forFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J27 Representation Election were timely filed, and therefore that SERB’s dismissal of the same was incorrect. However, instead of referring to the express language of R.C. 4117.05, SERB based its decision on the provisions of its administratively-issued regulation, O.A.C. 4117-3-01(A), which provides that the employer must file an election petition or substantial evidence that the proposed unit is inappropriate by the twenty-first day “following the employer’s receipt of the request for recognition.” However, an administrative agency is not permitted to abrogate the legislature’s statutory enactments through issuance of regulations that contradict those statutory provisions: “If an administrative rule exceeds the statutory authority established by the General Assembly, the agency has usurped the legislative function, thereby violating the separation of powers established in the Ohio Constitution.” McFee v. Nursing Care Mgmt. of Am., Inc., 126 Ohio St. 3d 183. 2010-Ohio-2744, 931 N.E. 2d 1069; Burger Brewing Co. v. Thomas, 42 Ohio St. 2d 377, 329 N.E. 2d 693 (1975). Accordingly. the express terms of R.C. 4117.05, providing 21 days from the filing of a Request for Recognition, cannot be overruled by an administrative code provision purporting to provide less time than statutorily required. To hold otherwise would be to allow SERB to exceed its statutory authorization and usurp the legislative function. Therefore, it is clear that SORTA is likely to prevail on this issue. 2. SORTA is likely to prevail as SERB inappropriately refused to consider the evidence before it and improperly certified a bargaining unit consisting of statutory supervisors who are not public employees eligible for union representation. SORTA is similarly likely to prevail on issues (2)-(4) set forth above, as SERB abused its discretion by certifying a bargaining unit consisting of statutory supervisors, failing to waive the alleged technical defect in SORTA’s Objections, and failing to exercise its independent authorityOA149 Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 - J28 to investigate and review the evidence demonstrating that the proposed bargaining unit was statutorily inappropriate. Revised Code Section 4117.01(C)(10) specifically excludes “supervisors” from the definition of “public employees,” and Section 4117.03(A)(1) provides that only “public employees have the right to form, join, assist or participate in ... any employee organization.” Simply put, “[P]ersons who are not public employees are not subject to the provisions of R.C. Chapter 4117,” and therefore statutory supervisors under R.C. 4117.01(C)(10) are not eligible for union representation. Doctors’ Professional Association v. SERB, co" Dist. No. 03AP-760) 2004-Ohio-5839. In fact, Revised Code Section 4117.05, setting forth the procedures for certification after a request for recognition, expressly pre-conditions such certification on the “employee organization becom[ing] the exclusive representative of all_the public_employees in an appropriate unit.” Moreover, as explained by the Tenth Appellate District Court: [flor purposes of recognition requests under R.C. 4117.05(A), an initial inquiry must be whether the persons that the organization seeks to represent are public employees, because if persons are not ‘public employees,’ as defined by R.C. 4117.01(C), then the persons are not subject to the provisions of R-C. Chapter 4117. Hence, an organization cannot seek R.C. 4117.05 recognition as the exclusive representative of persons, if the persons it seeks to represent are not public employees. Id. In this case, the Union filed a recognition request for a group of individuals that it labeled as “Transportation Supervisors.” a group that had previously been stipulated to constitute supervisory employees.* In addition, the joint stipulations submitted by SORTA and the Union in this case, as well as the evidence presented at the October 26, 2011 SERB hearing, establish 5 In 1986, the Union attempted to organize a number of SORTA’s salaried employees, but supervisors in the transportation department were stipulated to be excluded from the election that was ultimately held, due to their supervisory status.OA149 Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 - J29 that these Transportation Supervisors are statutory supervisors pursuant to R.C. 4117.01(C)(10), and therefore that they are not eligible for representation. Accordingly, as these supervisory employees are, on their face, not “public employees,” R.C. 4117.01 et seg. expressly prohibits SERB from certifying a bargaining unit in which they are included. Furthermore, even if SORTA’s Objections and Petition for Representation Election had not been timely filed (which they were, as set forth above) SERB has been provided, by both the statute and its regulations, with the authority to excuse any such technical defect, to ensure that the purposes of R.C. 4117.01 ef seg. are accomplished. Specifically, R-C. 4117.22 provides that: “Chapter 4117 of the Revised Code shall be construed liberally for the accomplishment of the purpose of promoting orderly and constructive relationships between all public employers and their employees.” In Hudson Township Board of Trustees v. SERB, Summit C.P. No. CV 86-3-903 (Sept. 4. 1987), Case No. CV 86-3-903 (reversed on unrelated grounds)(attached as Exh. A), this provision was held to mean that SERB abused its discretion in refusing to consider an employer’s substantive objections to a proposed bargaining unit, despite SERB’s determination that those objections (which it received prior to issuing its ruling) were not timely filed. The court specifically found that “SERB’s refusal to decide the issue on the merits,” despite having received notice of the employer’s objections prior to issuing its decision, did “not promote an orderly and constructive relationship between the parties” and was therefore improper. Id. In fact, SERB’s own regulations specifically provide that it may waive technical filing defects (including untimeliness) in the absence of undue prejudice, that it can address the substance of a case: “The State Employment Relations Board has discretion to waive technical defects in any document filed with the board if no undue prejudice would result.”Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 0A149 - J30 “Except as otherwise provided in Chapter 4117 of the Revised Code, the board, board member or administrative law judge may, upon its own motion or upon the motion of any party ... extend the time to file any document.” O.A.C. 4117-1-02(E); O.A.C. 4117-1-05(A). Here, even if SORTA’s filings had been untimely under the statute (which they were not), it is clear that no undue prejudice resulted. Both SERB and the Union received SORTA’s Objections on October 13, 2010 via facsimile,® and SERB continued to process the case for the next year, during which time the Union did not raise any concerns regarding timeliness. Moreover, during the pendency of the case, SERB was provided with extensive evidence of the supervisory nature of the Transportation Supervisor position at issue. Both SORTA and the Union were subsequently able to fully present their evidence both via joint stipulation and at the October 26, 2011 hearing in this matter. As such, there can be no good faith argument that the alleged untimeliness of SORTA’s Objections caused any prejudice to any party (much less “undue” prejudice). Therefore, SERB abused its discretion by failing to consider the substance of SORTA’s objections and the evidence presented to at the hearing in this matter, despite any allegations of untimeliness. Moreover, the relevant statutory and regulatory code provisions make it clear that SERB has an independent obligation to determine the appropriateness of a proposed unit, to ensure that the statutory dictates are not violated: “The state employment relations board shall decide in each case the unit appropriate for the purposes of collective bargaining.” * * # § It should also be mentioned that, later in 2010, SERB moved almost entirely to a system of electronic filing (instead of hard copy). Accordingly, SERB cannot contend that anyone was prejudiced by SORTA’s October 13, 2010 facsimile provision of its Objections, instead of hard copy. 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J31 “The board shall determine the appropriateness of each bargaining unit.” “In the event the employer does not file a petition for representation election pursuant to sections 4117.05 and 4117.07 of the Revised Code, the board shall determine whether or not the employee organization is entitled to certification pursuant to section 4117.05 of the Revised Code and Chapter 4117-3 of the Administrative Code.” Subsequent to the filing of a petition for a representation or decertification election, the board shall conduct an investigation to determine if there is reasonable cause to believe that a question of representation exists. R.C. 4117.06(A); R.C. 4117.06(B); O.A.C. 4117-3-02(D); O.A.C. 4117-5-04(A). This is especially true. given the mandate set forth in R.C. 4117.22 to construe the provisions of Revised Code Section 4117 liberally to accomplish the purposes of the statute. As the relevant statutory provisions provide that (1) only “public employees” (and therefore not supervisors) are eligible for representation, (2) SERB is responsible for investigating and determining whether a particular unit is appropriate for recognition, and (3) the statute should be construed liberally to accomplish its purposes, it is clear that it was inappropriate for SERB to dismiss SORTA’s Objections out of hand. This is particularly true in that SERB had been presented with ample evidence, in the form of the title “Transportation Supervisor,” the parties’ joint stipulations, and the October 26, 2011 hearing evidence, of the supervisory status of the individuals at issue. 3. The Union waived any timeliness argument. Even if (1) SORTA’s filings had been untimely (they were not) and (2) SERB had not abused its discretion by failing to consider the evidence before it on the supervisory status of the Transportation Supervisors before certifying their bargaining unit, SORTA is still likely to 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J32 prevail on the merits of its appeal, as SERB’s Directive should be overturned due to the fact that the Union implicitly and explicitly waived any argument based on any alleged untimely filing. As indicated above, the Union failed to raise the untimeliness issue for more than one year after SORTA filed its Objections and Petition for Representation Election. The Union did not object at the time of SORTA’s filing. when the parties were directed to mediation, or in its April 11, 2011 response to SERB’s request for the Union’s position in light of the Central Ohio Transit Authority case (which held that almost identical employees were “supervisors” and therefore ineligible for representation). Instead, the Union consistently requested solely that an evidentiary hearing be conducted on the issue of the Transportation Supervisors’ supervisory status. Additionally, on July 7, 2011, the parties were ordered to file Prehearing Statements in this case by July 25, 2011. The parties were instructed that those Prehearing Statements “must contain all legal issues to be presented for resolution.” Moreover, SERB’s regulations specifically provide: The board, a board member, or an administrative law judge will conduct a hearing to determine whether a question of representation exists. In_a written prehearing statement, each party shall state all issues to be raised _at the hearing. Parties failing to submit_a prehearing statement may be denied the opportunity to present evidence at the hearing. O.A.C. 4117-5-05(B). The Union’s Prehearing statement did not present timeliness as a legal issue in need of resolution. To the contrary, the only legal issue presented by the Union concerning the Transportation Supervisors was that regarding their status as supervisory employees. Accordingly, the Union expressly waived the ability to raise the purported timeliness issue by failing to raise that issue in its Prehearing Statement as required and implicitly waived the timeliness issue by failing to raise that issue for more than one year. 12OA149 Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 - J33 B. SORTA Will Suffer Irreparable Injury If A Stay Is Not Granted. In addition to the fact that SORTA is likely to succeed on the merits of its appeal, a stay should be granted in this case because SORTA would suffer irreparable injury if SERB’s Directive is not stayed pending the outcome of this appeal. As an initial matter, Ohio courts routinely grant such stays with respect to appeals of SERB decisions. See Shawnee Education Association v. State of Ohio, 139 Ohio App. 3d 381 (10" Dist. 2000)(stay of SERB decision granted by trial court) The irreparable injury that will be suffered by SORTA if SERB’s Directive is not stayed arises from the fact that that Directive inappropriately certifies a bargaining unit that consists of supervisory employees that are expressly excluded from R.C. 4117.01’s definition of “public employee” and are therefore ineligible for union representation. In fact, SERB’s Directive, unless it is stayed, would cause SORTA’s Transportation Supervisors to be a part of the very same Union that represents the employees that they supervise (SORTA’s coach operators), creating a direct conflict of interest for those supervisory employees. R.C. 4117.01 excludes supervisors from union representation for this very reason. As just one example of this conflict, SORTA’s Transportation Supervisors are expected to effectively supervise SORTA’s coach operators, and this includes citing them for violations of SORTA’s policies and thus initiating the discipline process. The conflict that arises when one union member is responsible for initiating discipline (or deciding not to do so) against another member of the same union is readily apparent. Unless SERB’s Directive is stayed pending the outcome of the instant appeal, SORTA’s operations (providing mass transit services for the Greater Cincinnati and Hamilton County area) will be hamstrung and SORTA will lose the ability to effectively manage its coach operators, which are the backbone of its transit operations. 13Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J34 Cc. The Issuance Of A Stay Will Cause No Harm To Others. Moreover, while the issuance of a stay is necessary to avoid causing irreparable injury to SORTA, such a stay would not cause any harm to come to anyone else. In fact, staying the execution of a SERB Directive that is in direct contravention of R.C. 4117.01 et seq., and which is the subject of the instant appeal for that very reason, cannot reasonably be said to cause harm to anyone. SORTA’s Transportation Supervisors, as statutory supervisors, are not eligible for union representation pursuant to R.C. 4117, and therefore a stay of SERB’s directive would not deprive them of anything to which they are otherwise entitled. Moreover, the granting of a stay would work in the best interests of those Transportation Supervisors, as it would save them from expending time and effort toward negotiating a collective bargaining agreement in the uncertain atmosphere where the instant appeal is still pending and where the Court’s decision on SORTA’s appeal could very well abrogate any agreement that might be reached. D. The Public Interest Would Be Served By Granting A Stay. As set forth above, Ohio Revised Code Section 4117 explicitly provides that statutory supervisors are not public employees, and they are therefore not entitled to union representation. This legislative determination is crucial for ensuring the efficient and effective operation of the public services that would be jeopardized if supervisors and those supervised are both represented by a union (and, especially, the same union). R.C. 4117.22 specifically provides that the statutory provisions are to be liberally construed to accomplish those purposes. As the granting of a stay in this case would prevent the certification of a bargaining unit consisting solely of individuals properly classified as supervisors under R.C. 4117.01(C)(10), an express violation of R.C. 4117.01 et seq., the granting of such a stay would serve the public interest by promoting compliance with the express terms of the statute. 14Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 0A149 - J35 IV. CONCLUSION For the reasons set forth above, SORTA respectfully requests that the Court stay execution of the State Employment Relations Board’s December 22, 2011 Directive Granting Certification Pursuant to Request for Recognition and Dismissal of Petition for Representation Election, pending the outcome of SORTA’s Appeal. 15 Respectfully submitted, /s/ Trevor E, Gillette Charles M. Roesch (0013307) Trevor E. Gillette (0082608) Dinsmore & Shohl LLP Suite 1900 255 East Fifth Street Cincinnati, Ohio 45202 Phone: (513) 977-8200 Fax: (513) 977-8141 Email: chuck.roesch @dinsmore.com trevor.gillette@dinsmore.com Attorneys for Southwest Ohio Regional Transit AuthorityFranklin County Ohio Clerk of Courts of the Common Pleas- 2012 Jan 06 12:55 PM-12CV000039 OA149 - J36 CERTIFICATE OF SERVICE The foregoing Notice of Appeal has been filed electronically with the Court of Common Pleas of Franklin County, Ohio, 345 South High Street, Columbus, Ohio 43215 on the 6th day of January, 2012, which will cause an electronic copy to be sent to: Jennifer Cleary, Esq. Assistant Attorney General Labor Relations Section 30 East Broad Street, 16" Floor Columbus, Ohio 43215 jennifer.cleary @ ohicattorneygeneral.gov Attorney for State Employment Relations Board A copy of the foregoing has also been served via e-mail, this 6th day of January, 2012, upon the following: Joseph S. Pass, Esq. Jubelirer, Pass & Intrieri, PC 219 Fort Pitt Boulevard Pittsburgh, PA 15222-1576 jsp@jpilaw.com Attorney for Amalgamated Transit Union, Local 627 /s/ Trevor E. Gillette Trevor E. Gillette 2053186v1 16