The opinion
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Harrison, Health Commissioner, et al., Appellees, v.
Judge, Mayor, et al, Appellees; Ohio Council 8, American
Federation of State, County and Municipal Employees, AFL-CIO, et
al., Appellants.
[Cite as Harrison v. Judge (1992), Ohio St.3d .]
Municipal corporations -- City health district board -- Board
and city are separate employer entities -- Board and city may enter
into joint negotiations with a union.
(No. 91-1106 -- Submitted April 28, 1992 -- Decided June 10,
1992.)
Appeal from the Court of Appeals for Summit County, Nos.
14751 and 14756.
Blakemore, Meeker, Varian, Looney & Bowler Co., L.P.A., and
Donald S. Varian, Jr., for appellees Joseph R. Harrison, Health
Commissioner of the city of Barberton, et al.
Johnson, Balazs & Angelo and James A. Budzik, for appellees
William Judge, Mayor, and city of Barberton.
Ronald H. Janetzke, for appellants Ohio Council 8,
American Federation of State, County and Municipal Employees, AFL-
CIO, and Local 265, American Federation of State, County and
Municipal Employees, AFL-CIO.
Livingston, Sell, Johnston & Kemmer and A. Melvin Kemmer,
urging affirmance for amicus curiae, Association of Ohio Health
Commissioners and Ohio Association of Boards of Health.
The cause is affirmed on authority of the court of
appeals' opinion below, rendered April 10, 1991, and attached as
an appendix to this entry.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.
APPENDIX
Quillin, Presiding Judge. The city of Barberton
("Barberton") is a charter city. By charter amendment, Barberton
created a board of health ("board").
On May 17, 1987, Joseph Harrison, Health Commissioner of
the city of Barberton, filed a taxpayer's action requesting
declaratory judgment on behalf of the board against Barberton and
various public officials in the city of Barberton. Ohio Council
8, American Federation of State, County and Municipal Employees,
AFL-CIO ("AFSCME"), subsequently intervened in the action as an
interested party. The trial court determined that Section
6.04(a) of the Charter of the city of Barberton was
unconstitutional. This issue was immediately appealed. In
Harrison v. Judge (1989), 49 Ohio App.3d 125, 128, 550 N.E.2d 982,
984, we held that Section 6.04(a) of the Charter of the City of
Barberton was constitutional and remanded the case for further
proceedings.
The remaining issues on remand were submitted to the
trial court on stipulated facts and briefs of counsel. The trial
court found that the board and Barberton are separate
political entities, and the board may choose to negotiate with
employees under its control separate from Barberton, join in the
labor contract previously entered into by Barberton on April 24,
1987, or conduct joint labor negotiations with Barberton. The
trial court, however, refused to void the April 24, 1987
agreement on equitable grounds, as the loss to AFSCME and the
employees would be substantial compared to the benefit gained
through the voiding of the labor contract.
The trial court also determined that AFSCME is the
certified bargaining unit representative of both Barberton
employees and the board employees, and will continue in the
relationship until changed by the State Employment Relations
Board ("SERB"). In addition, the trial court denied attorney
fees to Harrison for legal fees incurred in bringing the
taxpayer's action. Both the board and AFSCME now appeal from the
trial court's order, and Barberton cross-appeals.
AFSCME's Assignments of Error
"I. The lower court erred in concluding the BBH
[Barberton Board of Health] employees are not employees of the
City.
"II. The lower court erred in concluding there are two
(2) units."
The trial court correctly determined that the board and
Barberton are separate entities. In Harrison, supra, we held that
pursuant to R.C. 3709.05, Barberton may create a
board different in structure from the structure set forth in R.C.
3709.05 under its home rule authority in the Ohio Constitution.
Id. at 127-128, 550 N.E.2d at 984. Nevertheless, Barberton's home
rule authority extends only to powers the state legislature
allows. Id. at 127, 550 N.E.2d at 984; see Ohio Assn. of Pub. School
Emp., Chapter No. 471 v. Twinsburg (1988), 36 Ohio St.3d 180, 182, 522
N.E.2d 532, 534-535.
Generally, a health district, and the board of health
formed thereunder, are state agencies. Johnson's Markets, Inc. v.
New Carlisle Dept. of Health (1991), 58 Ohio St.3d 28, 33, 567 N.E.2d
1018,
1023-1024; Bd. of Health of St. Bernard v. St. Bernard (1969), 19 Ohio
St.2d 49, 48 O.O.2d 57, 249 N.E.2d 888, paragraph two of the
syllabus. As employees of state agencies, the employees of the
health district and board of health formed thereunder are
governed by state law. State, ex rel. Mowrer, v. Underwood (1940),
137 Ohio St. 1, 17 O.O. 298,
27 N.E.2d 773.
We have previously held that R.C. 3709.05 allows
Barberton to create the board pursuant to Barberton's home rule
powers. However, in regard to negotiations with employees of the
board, there is no legislative authority which allows Barberton
to control the employees of the board. Therefore, the board is a
separate entity from Barberton and the board's
employees are subject to state law. See, e.g., R.C. 4117.10(D).
Accordingly, the trial court did not err in determining that the
board and Barberton are separate employer entities. AFSCME's
first and second assignments of error are overruled.
AFSCME's Assignments of Error
"III. The lower court erred in concluding there are two
(2) deemed certified unit [sic].
"IV. The lower court erred in concluding that AFSCME
has represented two (2) units in the past.
"V. The lower court erred by allowing the BBH to
determine whether it wished to negotiate separately or jointly
with the City.
"VI. The lower court erred by allowing the City to
determine whether it wished to negotiate separately or jointly
with the BBH.
"VIII. The lower
court erred in not dismissing paragraph[s] 21, 22, 23, 24, 26 and
27-35 of the complaint for failure to state a claim upon which
relief may be granted."
Board of Health's Assignments of Error
"I. The trial court erred to the prejudice of
plaintiffs-appellants in holding that the Barberton Board of
Health, as an employer, does not have the right or the obligation
to negotiate an agreement with its employees without interference
from a second employer, the city of Barberton.
"A. This decision by the trial court violates the
mandate of the legislature and public policy, as evidenced by
Chapter 3709 of the Ohio Revised Code.
"B. This decision by the trial court creates a
conflict of interest in violation of R.C. 4117.20.
"III. The trial court erred in ordering the board to
choose from the three options outlined."
Barberton's Cross-Assignment of Error
"The trial court erred to the prejudice of defendants-
cross-appellants William Judge and the city of Barberton by
ordering the Barberton Board of Health, not a party to this
action, to choose from the options stated in the judgment. All
successor negotiations should take place in accordance with the
practice of the City and Ohio Council 8, AFSCME and consistent
with the City Charter's administration of the Barberton Board of
Health. In all other respects, the trial court's judgment should
be affirmed."
The trial court determined that the board has the option
of (1) negotiating a new labor contract with its employees without
participation from Barberton, (2) joining in the April 24, 1987
labor contract already negotiated by Barberton, or (3) entering
into joint labor negotiations with Barberton. The board,
Barberton and AFSCME assert that the trial court's order allowing
a choice of these three options is in error.
At the time of the filing of this action, the employees
of both the board and Barberton were members of a single
bargaining unit. In addition, AFSCME was the certified exclusive
employee representative of this combined employee bargaining unit.
AFSCME negotiated with Barberton without participation from the
board and entered into the April 24, 1987 agreement.
R.C. 4117.06(A)provides:
"The state employment relations board shall decide in
each case the unit appropriate for the purposes of collective
bargaining. The determination is final and conclusive and not
appealable to the court."
There are two methods in which the appropriate employee
bargaining unit may be established. First, a petition for
election or request for recognition may be filed with SERB by
either the proposed exclusive employee representative or the
employee unit which seeks to be represented. R.C. 4117.05;
4117.07. In such petition or request for recognition, the
composition of the bargaining unit seeking representation must be
set forth. Id. SERB must then determine if the proposed
bargaining unit is the appropriate bargaining unit for that
particular group of employees. R.C. 4117.06. Having determined
that the proposed bargaining unit is appropriate, SERB then
certifies the proposed employee representative for that
particular bargaining unit. R.C. 4117.05; 4117.07.
In the absence of a question of majority representation,
such as here, a petition for clarification of an existing
bargaining unit or a petition for amendment of certification may
be filed by the exclusive employee representative or by the
employer. Ohio Adm.Code 4117-5-01(E).
In our case, the employee bargaining unit and the
certified exclusive employee representative have already been
established. The bargaining unit consists of employees from both
the board and Barberton, and the certified exclusive employee
representative of this unit is AFSCME. SERB is the exclusive
channel through which the existing employee bargaining unit may
be changed. R.C. 4117.05; 4117.06; 4117.07.
The trial court properly determined that the board and
Barberton are separate political entities. However, the trial
court did not have the power to alter the existing employee
bargaining unit, as the structure of a bargaining unit may be
altered only by SERB. We cannot find, nor are we directed to,
any authority which prohibits the board and Barberton from
entering into joint negotiations with AFSCME and the existing
bargaining unit. The trial court erred in determining that the
board may engage in exclusive negotiations with its employees.
Until the board, Barberton, AFSCME, or the employees in the
existing bargaining unit request that SERB change the structure
of the present bargaining unit and/or the exclusive
representative, the board and Barberton must jointly observe
the status quo with regard to the existing employee bargaining
unit with AFSCME as the exclusive representative of such unit.
The board alleges that joint negotiations on behalf of
Barberton and the board would be a prohibited conflict of
interest pursuant to R.C. 4117.20. However, R.C. 4117.20
prohibits persons from being involved with the organizations on
both sides of the bargaining table. There is no legal conflict
between those negotiating on the same side for the benefit of
both the board and Barberton against the certified exclusive
employee representative. We hold that the trial court erred in
granting the board options from which to choose its method of
negotiation, because one of those options included allowing the
board to negotiate separately with its employees. The board's
first assignment of error is overruled. The board's third
assignment of error, AFSCME's third, fourth, fifth and sixth
assignments of error, and Barberton's cross-assignment of error
are sustained.
Board of Health's Assignment of Error II
"The trial court erred in failing to render the existing
collective bargaining agreement void as it pertains to the board."
All parties agree that this question has become moot.
The board's second assignment of error is overruled.
AFSCME's Assignment of Error VII
"The lower court erred in not dismissing the complaint
for failure to exhaust administrative remedies (before SERB) and
under the doctrine of primary jurisdiction."
AFSCME asserts that the trial court erred in failing to
dismiss the board's action under the doctrine of primary
jurisdiction and for failure to exhaust administrative remedies
prior to filing the action. Harrison, on behalf of the board,
filed an action for declaratory judgment, and the trial court
properly found that the board and Barberton are separate
political entities. Although some of the board's claims were
within the exclusive jurisdiction of SERB, this particular claim
was not within the jurisdiction of SERB. Therefore, the trial
court did not err in failing to dismiss the action. AFSCME's
seventh assignment of error is overruled.
Board of Health's Assignment of Error IV
"The trial court abused its discretion in not granting
attorney fees to plaintiffs-appellants."
The board contends that the trial court erred in failing
to grant Harrison attorney fees. R.C. 733.61 provides:
"If the court hearing a case under section 733.59 of the
Revised Code is satisfied that the taxpayer had good cause to
believe that his allegations were well founded, or if they are
sufficient in law, it shall make such order as the equity of the
case demands. In such case, the taxpayer shall be allowed his
costs, and, if judgment is finally ordered in his favor, he may
be allowed, as part of the costs, a reasonable
compensation for his attorney."
The allowance of attorney fees in a taxpayer's action is
entirely within the sound discretion of the trial court.
Billington v. Cotner (1974), 37 Ohio St.2d 17, 18, 66 O.O.2d 9, 10,
305 N.E.2d 805, 807.
Attorney fees may be proper when benefit is bestowed upon the
public, either tangible or intangible, such as the prevention of
illegal government activity. Id. at paragraph one of the
syllabus.
In the case sub judice, Harrison prevailed in determining
that the board is a separate political entity from Barberton. The
trial court denied attorney fees, stating that Harrison's action
has brought little, if any, benefit to the community. We cannot
say the court was wrong. The board's fourth assignment of error
is overruled.
The judgment of the trial court is affirmed in part and
reversed in part.
Judgment affirmed in part
and reversed in part.
Cacioppo and Cook, JJ., concur.