[Cite as Lima Pub. Library Bd. of Trustees v. State Emp. Relations Bd., 2011-Ohio-1730.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
LIMA PUBLIC LIBRARY BOARD OF TRUSTEES, CASE NO. 1-10-51 APPELLEE/CROSS-APPELLANT,
v.
STATE EMPLOYMENT RELATIONS BOARD, ET AL., OPINION
APPELLANTS/CROSS-APPELLEES.
Administrative Appeal from Allen County Common Pleas Court Trial Court No. CV 2010 0217
Judgment Affirmed
Date of Decision: April 11, 2011
APPEARANCES:
Katie Tesner for Appellant/Cross-Appellee, State Employment Relations Board
Thomas C. Drabick, Jr. for Appellant/Cross-Appellee, OAPSE
David S. Farkas for Appellee/Cross-Appellant Case No. 1-10-51
PRESTON, J.
{¶1} Appellants/cross-appellees, the State Employment Relations Board
and the Ohio Association of Public School Employees, AFSCME Local 4, AFL-
CIO and its Local 776, appeal the judgment of the Allen County Court of
Common Pleas, which reversed the State Employment Relations Board’s decision
regarding the appellee/cross-appellant’s, the Lima Public Library Board of
Trustees’, violation of R.C. 4117.11(A)(1) and (5). For the reasons that follow,
we affirm.
{¶2} This particular case involves an unfair labor practice (“ULP”) charge
filed by the Ohio Association of Public School Employees, AFSCME Local 4,
AFL-CIO and its Local 776 on February 1, 2007, concerning collective
bargaining, and specifically deals with the question of whether the Lima Public
Library Board of Trustees rejected a tentative agreement, which had been reached
as a result of negotiations between the Library Board and Union representatives.
{¶3} As general background information, this appeal involves the Lima
Public Library Board of Trustees (hereinafter “the Library Board”), which serves
the city of Lima and the surrounding area through its main public library, four
additional branch libraries, an Ohio State University (Lima branch) outlet, and the
roving MediaMobile. In addition, the Library’s bargaining unit employees are
represented in collective bargaining matters by the Ohio Association of Public
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School Employees, AFSCME Local 4, AFL-CIO and its Local 776 (hereinafter
“OAPSE” or “the Union”). Both parties engage in collective bargaining in
accordance with Chapter 4117 et seq., under the oversight of the State
Employment Relations Board (hereinafter “SERB”). Allegations of unfair labor
practices (“ULPs”) are handled first by SERB’s staff investigators and then, if
necessary, by a staff Administrative Law Judge (“ALJ”). Moreover, SERB is
headed by a three-member board, each of whom is appointed by the Governor. If
the matter proceeds to the ALJ, the ALJ will conduct a hearing and will then make
proposed findings of fact and conclusions of law to SERB, which will ultimately
decide to either accept or reject the ALJ’s proposed findings.
{¶4} The general facts are undisputed and are stated as follows. On
November 28 and 29, 2006, the Union and the Library Board, through their
designated representatives, met for the purpose of negotiating a successor
collective bargaining agreement (“CBA”), which was to be implemented
following the expiration of the parties’ then current CBA on December 31, 2006.
The Library’s director, Scott Schafer, at that time was the Library Board’s
“designated representative.” Schafer, along with other library administration
members and Union representatives, engaged in negotiations and eventually
reached a tentative agreement (“TA”), which, pursuant to the collective bargaining
rules, had to be presented to both the Board and the Union for final approval.
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{¶5} Significantly, in particular, the TA reached between the parties
contained a dues deduction provision, or otherwise known as a “fair share”
provision. A fair share provision, in general, requires that dues be paid by
employees who opt not to join the union once a fixed percentage of union
membership has been reached. It is undisputed that the Library Board had
historically opposed fair share clauses, and that the 2001-2003 CBA had not
contained a fair share provision. Nevertheless, in the CBA effective for 2004 until
2006, which was the current CBA in effect at the time of the negotiations, there
was a fair share provision. In particular, this provision stated, “If 90% of
bargaining unit members are members of the Union, employees who are not
members of the Union shall pay to the Union an agency fee as a condition of
employment with the Board. Such agency fee shall begin when the 90%
membership occurs.” While the Library Board opposed fair share clauses, it had
agreed to the 90% membership threshold on the basis that such a figure would
reflect overwhelming support for the Union.
{¶6} With respect to the 2006 TA, while the Union initially asked for a
50% membership threshold, the TA reached in the November 2006 negotiations
contained a fair share provision that reduced the percentage of bargaining unit
members who were required to be members of the Union down to 70% for the
agency fee provision to be triggered. The Library Board’s negotiating team
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warned the Union negotiating team that the Library Board had historically
opposed fair share provisions and that it might well consider the lower threshold in
the TA a “deal breaker.” Despite the warning, the Union negotiating team asked
the Library Board’s director to present the TA containing the 70% fair share
provision to the Library Board.
{¶7} The Union subsequently ratified the TA on December 8, 2006. Soon
after, the TA was submitted to the Library Board at its Board of Trustees’ meeting
on December 19, 2006. The Library Board went into executive session to discuss
the TA. According to the Library Board’s meeting minutes, following the
executive session, Library Board member Dr. Wilfred Ellis made a motion “to
vote to accept the presented contract except for the fair share provision.” (Joint
Ex. 2). This motion was seconded and carried. (Id.). Again according to the
meeting minutes, following the motion, Union President Kathy Stark asked why
the Library Board had opposed the fair share provision and Union Vice President
and negotiating team member Denise Holler asked the Library Board members if
they realized that their position could take everyone back to the table. (Id.). Dr.
Ellis responded that because of the fair share fee provision, the Library Board
could not accept the contract. (Id.).
{¶8} Deputy Clerk Treasurer Jane Pahl’s notes from the December 19,
2006 Library Board meeting reflect: “Collective Bargaining Agreement all okay
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except Dr. Ellis-re’fair share prov” [sic], and that the Library Board’s position
would put them back into negotiations. (Respondent Ex. 5).
{¶9} In addition, the minutes from a December 19, 2006 Department Head
meeting stated that “the Board accepted the collective bargaining unit’s position
except for the fair share clause,” and that “after the first of the year, the Union may
decide to go to a Mediator to help resolve the issue.” (Joint Ex. 3).
{¶10} Thereafter, on December 21, 2006, the Union filed a ULP charge
(Case No. 06-ULP-12-0618) with SERB against the Library Board alleging that
the Library Board violated R.C. 4117.11(A)(1) and (5) by dealing directly with the
employees of the bargaining unit and by rejecting the TA after its bargaining
representatives had committed to it.
{¶11} Subsequently, the Union and the Library Board met with a mediator
in January 2007 and February 2007 in unsuccessful attempts to resolve the issue.
During this time, the Library Board received a fax from a local media outlet
(WLIO-NBC Lima) that consisted of a notice WLIO had received from the Union
indicating, in part, “Fact: The Library Director and their high priced Cleveland
Attorney entered into a tentative agreement which they both agreed to recommend
to the Library Board. The tentative agreement contained a change in the ‘Union
Security Provision’. Fact: The Board rejected the agreement, refusing to follow
the recommendation of the Director and their own Attorney.”
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{¶12} As a result, on February 1, 2007, the Union filed additional ULP
charges (Case No. 07-ULP-02-0048) with SERB alleging a violation of R.C.
4117.11(A)(1) and (5) for the Library Board’s failure to bargain in good faith and
its refusal to sign the parties’ TA as the parties’ collective bargaining agreement.1
Essentially, the Union claimed that the Library Board had only rejected the fair
share clause in the TA, but had not actually rejected the entire TA as a whole. As
a result, pursuant to the language in R.C. 4117.10(B), which states that a
legislative body must either accept or reject a TA as a whole, the Union claimed
that the TA should be deemed “accepted” as a matter of law.
{¶13} On April 12, 2007, SERB dismissed Case Nos. 06-ULP-12-0618 and
07-ULP-02-0048, stating in its directive that it found no probable cause to believe
that the Library Board violated R.C. 4117.11.
{¶14} Consequently, on May 3, 2007, the Union filed a ULP (Case No. 07-
ULP-05-0199) charge against the Library Board again alleging that the Library
Board violated R.C. 4117.11(A)(1) and (5) on the basis that the Library Board had
refused to sign the parties’ TA as the parties’ collective bargaining agreement.
The Union again claimed that the Library Board had only rejected the fair share
clause in the TA, but had not actually rejected the entire TA as a whole. As a
1 The Union also filed two other ULP charges against the Library Board on unrelated issues which were consolidated with the aforementioned charge. However, neither one of those other ULP charges are at issue in this appeal.
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result, pursuant to the language in R.C. 4117.10(B), which states that a legislative
body must either accept or reject a TA as a whole, the Union claimed that the TA
should be deemed “accepted” as a matter of law. This time SERB found that
probable cause existed to believe that the Library Board had violated R.C.
4117.11(A)(1) and (5) by failing to sign the successor agreement, thus a complaint
was issued on September 21, 2007 in Case No. 07-ULP-05-0199. Thereafter, on
September 16, 2008, a hearing before an ALJ was held, wherein testimonial and
documentary evidence was presented.
{¶15} On March 10, 2009, the ALJ issued a proposed order which stated
her findings of facts and conclusions of law, and ultimately concluded that the
Library Board had not violated R.C. 4117.11(A)(1) and (5) by failing to sign and
execute the successor agreement.
{¶16} On February 9, 2010, SERB issued its decision disagreeing with the
ALJ’s proposed order as to the Library Board’s violation of R.C. 4117.11(A)(1)
and (5), and found that the Library Board had violated R.C. 4117.11(A)(1) and (5)
by failing to sign and execute the successor agreement and failing to bargain in
good faith.
{¶17} The Library Board appealed SERB’s decision to the Allen County
Court of Common Pleas, and on July 15, 2010, the trial court reversed SERB’s
decision regarding the Library Board’s violation of R.C. 4117.11(A)(1) and (5) for
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failure to sign and execute the successor agreement, but the trial court affirmed
SERB’s decision to deny the Library Board’s request for attorney fees.
{¶18} The Union filed its notice of appeal on August 11, 2010, and SERB
filed its notice of appeal on August 12, 2010. SERB and the Union filed a joint
appellants’ brief and raise one assignment of error for our review. Additionally,
the Library Board filed its notice of cross-appeal on August 20, 2010, and in its
cross-appeal, the Library Board raises one assignment of error for our review.
THE UNION AND SERB’S ASSIGNMENT OF ERROR
THE COMMON PLEAS COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW WHEN IT REVERSED SERB’S DIRECTIVE FINDING THE LIMA PUBLIC LIBRARY BOARD OF TRUSTEES VIOLATED R.C. 4117.11(A)(1) AND (5) FOR FAILING TO SIGN AND EXECUTE THE SUCCESSOR COLLECTIVE BARGAINING AGREEMENT.
{¶19} In their joint assignment of error, SERB and the Union claim that the
trial court abused its discretion and erred as a matter of law when it reversed
SERB’s directive finding that the Library Board had violated R.C. 4117.11(A)(1)
and (5) by failing to sign and execute the successor agreement.
{¶20} As an initial matter, we note that the Union filed an unfair labor
charge against the Library Board claiming that the Library Board had violated
R.C. 4117.11(A)(1) and (5) by failing to sign and execute the successor
agreement. R.C. 4117.11 provides, in pertinent part:
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(A) It is unfair labor practice for a public employer, its agents or representatives to: (1) Interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Chapter 4117 of the Ohio Revised Code or an employee organization in the selection of its representative for the purposes of collective bargaining or the adjustment of grievances; *** (5) Refuse to bargain collectively with the representative of his employees recognized as the exclusive representative or certified pursuant to Chapter 4117. of the Revised Code;
R.C. 4117.11(A)(1) and (5). In particular, the Union claimed below, and
continues to maintain, that the Library Board only rejected the fair share clause in
the TA, but did not actually reject the entire TA as a whole. As a result, pursuant
to the language in R.C. 4117.10(B), which states that a legislative body must
either accept or reject a TA as a whole, the Union argued that the TA should be
deemed “accepted” as a matter of law. R.C. 4117.10(B) provides as follows:
The public employer shall submit a request for funds necessary to implement an agreement and for approval of any other matter requiring the approval of the appropriate legislative body to the legislative body within fourteen days of the date on which the parties finalize the agreement, unless otherwise specified, but if the appropriate legislative body is not in session at the time, then within fourteen days after it convenes. The legislative body must approve or reject the submission as a whole, and the submission is deemed approved if the legislative body fails to act within thirty days after the public employer submits the agreement. The parties may specify that those provisions of the agreement not requiring action by a legislative body are effective and operative in accordance with the terms of the agreement, provided there has been compliance with division (C) of this section. If the legislative body rejects the submission of the
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public employer, either party may reopen all or part of the entire agreement.
R.C. 4117.10(B) (emphasis added). Again, the Union’s position was that because
the Library Board voted to “accept the presented contract except for the fair share
provision,” it neither accepted nor rejected the TA as a whole, and as a result,
failed to act within thirty days, and consequently the TA then was deemed
approved as a matter of law.
{¶21} The parties presented their witnesses and documentary evidence to
an ALJ. After reviewing all of the evidence, the ALJ made her findings of fact
and proposed conclusions, one of which was that the Library Board had not
violated R.C. 4117.11(A)(1) and (5) by failing to sign and execute the successor
agreement. (ALJ’s Proposed Order). While SERB agreed with the ALJ’s findings
of fact, it disagreed with the ALJ’s proposed conclusion and ultimately found that
the Library Board had committed an unfair labor practice. (SERB Decision). In
particular, SERB stated that according to the Library Board’s meeting minutes, the
Library Board’s “motion to accept the presented contract, except for the fair share
provision,” had not been sufficient to constitute an acceptance or rejection “as a
whole”; therefore, such action did not meet the statutory requirements of R.C.
4117.10(B), and as a result pursuant to R.C. 4117.10(B), the TA was deemed
accepted as a matter of law. (Id.). Because the Library Board had refused to sign
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the successor agreement, SERB found that it had violated R.C. 4117.11(A)(1) and
(5) and had committed an unfair labor practice. (Id.).
{¶22} On appeal to the Allen County Court of Common Pleas, after having
considered all of the evidence in the record, the trial court reversed SERB’s
directive finding that SERB’s decision had not been supported by substantial
evidence since it had only relied on the “isolated ‘accepted except for’ language
found on the non-verbatim transcript of the December 19, 2006 meeting.” (July
15, 2010 JE at 5).
{¶23} Now on appeal, SERB and the Union claim that the trial court abused
its discretion by utilizing facts not in the record and disregarding the evidence
SERB relied upon in finding that the Library Board failed to accept or reject the
TA as a whole under R.C. 4117.10(B). We disagree.
{¶24} R.C. 4117.13(D) governs appeals of SERB’s orders to courts of
common pleas, and provides, in pertinent part, as follows:
Any person aggrieved by any final order of the board granting or denying, in whole or in part, the relief sought may appeal to the court of common pleas of any county where the unfair labor practice in question was alleged to have been engaged in, or where the person resides or transacts business, by filing in the court a notice of appeal setting forth the order appealed from and the grounds of appeal. * * * The court has exclusive jurisdiction to grant the temporary relief or restraining order it considers proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the board. The
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findings of the board as to the facts, if supported by substantial evidence on the record as a whole, are conclusive.
R.C. 4117.14(D) (emphasis added).
{¶25} Additionally, pursuant to R.C. 119.12, when a trial court reviews an
order of the administrative agency, the trial court must consider the entire record
to determine whether the agency’s order is supported by reliable, probative, and
substantial evidence and is in accordance with the law. Cincinnati v. State Emp.
Relations Bd., 10th Dist. No. 09AP-261, 2009-Ohio-5782, ¶7, citing Univ. of
Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-11, 407 N.E.2d 1265. See,
also, University Hospital, Univ. of Cincinnati College of Medicine v. State Emp.
Relations Bd. (1992), 63 Ohio St.3d 339, 343-44, 587 N.E.2d 835, fn.3. As such,
it has been explained that a trial court’s “review of the administrative record is
neither a trial de novo nor an appeal on questions of law only, but a hybrid in
which the court ‘must appraise all the evidence as to the credibility of the
witnesses, the probative character of the evidence, and the weight thereof.’”
Provisions Plus, Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 03AP-670,
2004-Ohio-592, ¶7, quoting Lies v. Veterinary Med. Bd. (1981), 2 Ohio App.3d
204, 207, 441 N.E.2d 584.
{¶26} Furthermore, while we acknowledge that a trial court must give due
deference to the administrative agency’s resolution of evidentiary conflicts, the
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agency’s findings are not conclusive. Cincinnati v. State Emp. Relations Bd.,
2009-Ohio-5782, at ¶8, citing Conrad, 63 Ohio St.3d at 110-11. See, also,
Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d
1096, ¶37 (noting that while an agency’s findings of fact are not conclusive, they
are presumed correct and “must be deferred to by a reviewing court unless that
court determines that the agency’s findings are internally inconsistent, impeached
by evidence of a prior inconsistent statement, rest upon improper inferences, or are
otherwise unsupportable.”) The trial court may reverse, vacate, or modify the
administrative order if, after reviewing the evidence, it determines that “‘there
exist legally significant reasons for discrediting certain evidence relied upon by
the administrative body.’” Bartchy, 2008-Ohio-4826, ¶37, quoting Ohio
Historical Soc. v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 466, 470-71,
613 N.E.2d 591, quoting Conrad, 63 Ohio St.2d at 111.
{¶27} Moreover, we note that our review as an appellate court is more
limited and centers on whether the trial court abused its discretion. Provisions
Plus, Inc., 2004-Ohio-592, at ¶8, citing Pons v. Ohio State Med. Bd. (1993), 66
Ohio St.3d 619, 614 N.E.2d 748. An abuse of discretion implies that the court’s
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. While SERB and the Union
claim that the trial court abused its discretion by utilizing facts not in the record
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and by disregarding the evidence SERB relied upon in finding that the Library
Board failed to accept or reject the TA as a whole under R.C. 4117.10(B), we find
that the trial court did not abuse its discretion in finding that SERB’s decision was
not supported by substantial evidence.
{¶28} After reviewing the record, despite SERB and the Union’s arguments
to the contrary, we find that all of the facts relied on by the trial court were
contained within the record. While SERB’s findings should be afforded
deference, its findings are not conclusive, and pursuant to statutory authority, the
trial court was required to review the entire record. Here, all of the facts that the
trial court relied upon had been gathered at the hearing before the ALJ, and in fact,
had been presented to SERB for its review. Thus, we cannot say that the trial
court relied on facts outside the record.
{¶29} Furthermore, the trial court’s judgment entry clearly indicates that it
did not disregard the evidence SERB relied upon in rendering its decision. The
trial court did consider the statement regarding the vote contained within the
Library Board’s meeting minutes from December 19, 2006, but correctly
recognized that the meeting minutes were only general summaries of the actions
taken at the meeting, not a verbatim transcript. So while the trial court did
consider the meeting minutes, unlike SERB, the trial court did not solely consider
that isolated statement in the meeting minutes, but rather looked at the entire
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record in making its determination. For example, in addition to the isolated
“accept except for” language in the Library Board’s meeting minutes, the trial
court found that there had been evidence of a subsequent statement made by Dr.
Ellis whereby he had explained that while the Board was satisfied with the
remaining provisions in the TA, the fair share provision was so unacceptable that
the Library Board could not accept the contract. The trial court also considered a
statement made by a Union member at the December 19, 2006 meeting in which
she asked the Library Board if they knew that their action would send them back
to the bargaining tables. Finally, the trial court noted that the Union had even
acknowledged in its first ULP charge filed with SERB, and in a fax from a local
media outlet, WLIO-NBC Lima, following the Library Board meeting, that the TA
had been rejected by the Library Board. Ultimately, after considering all of the
evidence, the trial court found that “under the circumstances, the decision by the
Board to reject the tentative agreement cannot be characterized as acceptance
except for – as a substantial weight of the evidence of the record as a whole fails
to reflect this finding. Rather, the evidence reflects that the Board was so
dissatisfied with the inclusion of the fair share provision that they refused to
accept the contract. In doing so, the Board rejected the contract because of the
unsatisfactory provision and OAPSE acknowledged this rejection by its
subsequent actions.” (July 15, 2010 JE at 6-7) (emphasis in original).
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{¶30} Consequently, we do not find that the trial court abused its discretion.
Pursuant to statutory authority, the trial court was required to consider the entire
record in determining whether SERB’s order was supported by substantial
evidence and was in accordance with the law. As the trial court noted, SERB only
relied on one isolated statement contained within a single piece of documentary
evidence, but the trial court found that after looking at the entire record, there were
additional pieces of evidence which, when considered, demonstrated that SERB’s
decision was not supported by substantial evidence. Given the amount of
evidence in the record, we cannot say that the trial court’s decision was
unreasonable, arbitrary, or unconscionable.
{¶31} Nevertheless, SERB and the Union also argue that the trial court
erred as a matter of law when it ignored the qualifying phrase “as a whole” from
its interpretation of R.C. 4117.10(B), and failed to defer to SERB’s prior
interpretation of R.C. 4117.10(B), which they claim was affirmed by the Seventh
District Court of Appeals in State Employment Relations Board v. City of Martins
Ferry (June 6, 1991), 7th Dist. No. 90-B-37.
{¶32} In Martins Ferry, after receiving a tentative agreement reached
between the union and the city, the city council considered the tentative agreement
in executive session, and allegedly rejected the TA and made a counter proposal to
the union. 7th Dist. No. 90-B-37, at *1. The union filed a similar ULP charge
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against the city with SERB claiming that the city had failed to sign or execute the
successor agreement on the basis that the city had failed to accept or reject the TA
as a whole. Id.
{¶33} A SERB hearing officer found, based on the facts of the case, that the
city had timely and properly rejected the TA and recommended no violation of
R.C. 4117.11(A)(1) and (5). Id. However, SERB disagreed and found that the
city council had failed to reject the TA in accordance with R.C. 4117.10(B), thus
the agreement had been approved by operation of law and, as a result, ordered the
city to put the TA into retroactive effect. Id. at *1-2. On appeal to the Court of
Common Pleas of Belmont County, the trial court reversed SERB’s directive and
set aside the order. In its decision, the trial court stated that the record was
“without such evidence as a reasonable mind could rely upon to conclude council
did not entirely reject the agreement, [thus] this court is compelled to reverse the
decision of SERB.” Id. at *2.
{¶34} Thereafter, on further appeal to the appellate court, the Seventh
District Court of Appeals reversed the trial court’s decision and reinstated SERB’s
order because based upon the record before SERB, it could not be determined
what formal action the city council had taken the day the TA had been presented
to it. Id. at *2-5. Specifically, the Seventh District stated:
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The evidence clearly established that there was no vote ever taken relative to acceptance, rejection or counterproposal during the “executive session.” Upon the record, as it was made before the State Employment Relations Board, there can be no determination whether a quorum of council and, as was previously testified to, a quorum calls for five members, ever voted to approve, reject or counterpropose the tentative agreement submitted. * * * The foregoing reasoning leads us to the conclusion that, pursuant to R.C. 4117.10, when a tentative agreement is submitted to a legislative body, the legislative body may do one of two things. It may only approve or reject the tentative proposal within 30 days of submission. Failure to so act by the legislative body shall trigger a deemed approval of the tentative agreement.
Id. at *5.
{¶35} While SERB and the Union cite to Martins Ferry for support of their
position that the trial court erred as a matter of law, we find Martins Ferry
distinguishable from the case sub judice. The problem in Martins Ferry was that
it could not be determined from the record before SERB whether the legislative
body had ever voted to approve, reject, or counter propose the tentative agreement
submitted. In fact, the evidence indicated that the council had considered the TA
in executive session but had failed to take a formal public vote, and instead made a
final offer in response, which was taken back to the lieutenants and patrolman as a
counter proposal. Because the evidence indicated that the city council had failed
to take a formal vote when the TA had been presented, the Seventh District
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concluded that the council’s failure to act resulted in the approval of the TA by
operation of R.C. 4117.10(B).
{¶36} Here, the Library Board clearly acted. Not only was there evidence
of a formal vote from the Library Board’s meeting minutes on December 19,
2006, but several witnesses testified that a vote had taken place that night. Thus,
we find Martins Ferry not dispositive, and given our discussion above, we cannot
say that the trial court’s decision to overrule SERB’s directive was an error of law
or an abuse of discretion.
{¶37} SERB and the Union’s joint assignment of error is, therefore,
overruled.
THE LIBRARY BOARD’S CROSS ASSIGMENT OF ERROR
THE TRIAL COURT FAILED TO ORDER A HEARING TO DETERMINE THE FEES AND COSTS RECOVERABLE BY THE PUBLIC LIBRARY FROM LOCAL 4, WHEN LOCAL 4 KNOWINGLY FILED FALSE CHARGES AGAINST THE LIBRARY.
{¶38} In its cross-appeal, the Library Board argues that the trial court erred
when it affirmed SERB’s decision as to the denial of its request for attorney fees
and costs without holding a hearing on the matter.
{¶39} The Ohio Supreme Court has consistently held that “Ohio has long
adhered to the ‘American Rule’ with respect to recovery of attorney fees: a
prevailing party in a civil action may not recover attorney fees as a part of the
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costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-
306, 906 N.E.2d 396, ¶7. Nevertheless, there are certain exceptions to this rule.
For example, “[a]ttorney fees may be awarded when a statute or an enforceable
contract specifically provides for the losing part to pay the prevailing party’s
attorney fees, * * * or when the prevailing party demonstrates bad faith on the part
of the unsuccessful litigant * * * .” Id. Overall, an award of attorney fees lies
within the sound discretion of the trial court, and will not be disturbed absent an
abuse of discretion. Fahey Banking Co. v. Rees Ents., Inc., 3d Dist. No. 9-09-40,
2010-Ohio-4172, ¶26, citing Bittner v. TriCounty Toyota, Inc. (1991), 58 Ohio
St.3d 143, 146, 569 N.E.2d 464. Again, an abuse of discretion implies that the
court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore, 5
Ohio St.3d at 219.
{¶40} In this particular case, the Library Board requested attorney fees
from the beginning of the ULP charge proceedings. The ALJ specifically found
that “[a]lthough attorney fees may be requested in certain administrative
proceedings pursuant to ORC 119.092(B)(1), attorney fees in adjudication
hearings conducted by the State Employment Relations Board under Chapter 4117
are specifically precluded pursuant to ORC 119.092(F)(3) [sic]. The Library
Board’s request for attorney fees should be denied.” (ALJ’s Proposed Order).
Consequently, SERB “agree[d] with the Findings of Fact and Conclusions of Law
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set forth in the ALJ’s Proposed Order with respect to the issue regarding the
Library Board’s request for attorney fees,” and as a result, it denied the Library
Board’s request. (SERB Decision). Finally, on appeal to the common pleas court,
the Library Board argued that SERB had erred in denying its request for attorney
fees; nevertheless, the trial court ultimately affirmed SERB’s decision denying the
Library Board’s request for attorney fees. (July 15, 2010 JE).
{¶41} Now on appeal, the Library Board argues that the trial court erred in
affirming SERB’s decision to deny its request for attorney fees without holding an
evidentiary hearing. In support of its position, the Library Board cites to a number
of statutory provisions, civil rules, and general propositions of law. However,
while the Library Board cites to other statutory provisions, as the ALJ noted in its
Proposed Order, R.C. 119.092 specifically addresses the issue of attorney fees by
certain prevailing parties in administrative proceedings, and in pertinent part
states:
(B)(1) Except as provided in divisions (B)(2) and (F) of this section, if an agency conducts an adjudication hearing under this chapter, the prevailing eligible party is entitled, upon filing a motion in accordance with this division, to compensation for fees incurred by that party in connection with the hearing. A prevailing eligible party that desires an award of compensation for fees shall file a motion requesting the award with the agency within thirty days after the date that the order of the agency is entered in its journal. * * * (F) The provisions of this section do not apply when any of the following circumstances are involved:
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(4) An adjudication hearing was conducted by the state personnel board of review pursuant to authority conferred by section 124.03 of the Revised Code, or by the state employment relations board pursuant to authority conferred by Chapter 4117. of the Revised Code.
R.C. 119.092(B)(1), (F)(4) (emphasis added). Here, there is a statutory provision
governing the award of attorney fees involving SERB proceedings, and pursuant
to R.C. 119.092(F)(4) those fees could not be provided. See Carruthers v.
O’Connor (1997), 121 Ohio App.3d 39, 43, 698 N.E.2d 1033. Thus, we find that
the trial court did not err in affirming SERB’s decision denying its request for
attorney fees without holding an evidentiary hearing.
{¶42} Nevertheless, the Library Board still argues that it should have been
awarded attorney fees because the Union acted in bad faith when it knowingly
filed the ULP charge against the Library Board for failing to sign and execute the
successor agreement despite the fact that it had known the TA had been rejected
back at the December 19, 2006 meeting. Even if the trial court could have granted
the award on the basis that the Union acted in bad faith, we do not believe that the
trial court abused its discretion in denying the Library Board’s request for attorney
fees. While the Library Board cites to several pieces of evidence that it claims
clearly indicate that the TA had been rejected and that the Union had known that
the TA had been rejected, as the Library Board acknowledges in its cross-
appellant’s brief, bad faith is defined, in part, as maintaining an action with “a
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dishonest purpose, moral obliquity, conscious wrongdoing.” Grine ex rel. Grine v.
Sylvania Schs. Bd. Of Educ., 6th Dist. No. L-06-1314, 2008-Ohio-1562, ¶29. After
reviewing the record, we fail to see how the Union’s actions constituted bad faith.
Even though we affirmed the trial court’s decision above, we acknowledge that
there was certainly a viable legal question as to whether the TA had been rejected
by the Library Board, and therefore, whether the Library Board committed an
unfair labor practice by failing to sign and execute the successor agreement.
Furthermore, we note that SERB’s decision finding that the Library Board had
committed an unfair labor practice when it denied union members access to a
meeting room at the library was not appealed by the Library Board to the trial
court, and thus, that ULP finding remains in force. Consequently, we cannot say
that the Union’s filing of the ULP against the Library Board was committed in bad
faith, or that the trial court abused its discretion in affirming SERB’s decision that
denied the Library Board’s request for fees and costs.
{¶43} The Library Board’s assignment of error is, therefore, overruled.
{¶44} Having found no error prejudicial to the appellants or cross-appellant
herein in the particulars assigned and argued, we affirm the judgment of the trial
court.
FRENCH, J., concurs.
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** Honorable Judge Judith L. French sitting by assignment from the Tenth Appellate District.
/jlr
ROGERS, P.J., DISSENTS:
{¶45} I concur with the resolution of the cross-appeal filed by the Library
Board. However, I dissent from the majority’s logic and conclusion on the
assignment of error filed by the State Employment Relations Board and OAPSE
and would reverse the judgment of the trial court.
{¶46} At the December 19, 2006 meeting of the Library Board a motion
was offered to “accept the presented contract except for the fair share provision.”
(Joint Ex. 2). The motion carried as made without amendment. Further, the
minutes of the meeting reflected that “the Board accepted the collective bargaining
unit’s position except for the fair share clause.” (Joint Ex. 3). The majority takes
great pains to relate facts subsequent to the vote of the Library Board and
concludes that the trial court did not abuse its discretion in considering those facts
and finding that “the Board rejected the contract because of the unsatisfactory
provision and OAPSE acknowledged this rejection by its subsequent actions.”
(July 15, 2010 JE at 6-7) (emphasis in original).
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{¶47} I would first note that the facts material to this appeal are the acts of
the Library Board and its action on the proposed contract. While there may be
many other facts contained within the record, most are subsequent to the Library
Board’s action, and most by the Union. Secondly, neither the Union nor the trial
court has the authority to change the language of the motion acted upon by the
Library Board, and a later comment by the movant has no effect on the motion as
passed. Clearly the trial court has chosen to rewrite the motion passed by the
Library Board and has replaced the words except for with the words because of in
order to reach the desired result of a rejection of the entire contract.
{¶48} It is my opinion that the Library Board is bound by its motion and
the official minutes of its meeting. The Library Board voted to “accept the
presented contract except for the fair share provision.” (Joint Ex. 2). The minutes
reflecting this language were subsequently approved without amendment or
correction and stand as the only action taken by the Library Board on the proposed
contract. The statute is clear and unambiguous and requires that “the legislative
body must approve or reject the submission as a whole * * *,” which it obviously
failed to do. R. C. 4117.10(B). I would, therefore, find that the trial court abused
its discretion in altering the Library Board’s approved language to reach a result
different from that which was approved by the Library Board and I would reverse
the judgment of the trial court on this issue.
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