Youngstown State Univ. v. State Emp. Relations Bd.

[Cite as Youngstown State Univ. v. State Emp. Relations Bd., 2016-Ohio-2649.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Youngstown State University, :

Appellant-Appellant, :

No. 15AP-755

Youngstown State University Association : (C.P.C. No. 14CVF10-10929)

of Classified Employees, OSE/NEA, No. 15AP-756

: (C.P.C. No. 14CVF-10-10968)

Appellant-Appellee,

: (REGULAR CALENDAR)

v.

:

State Employment Relations Board,

:

Appellee-Appellee.

:

D E C I S I O N

Rendered on April 21, 2016

On Brief: Zashin & Rich Co., L.P.A., George S. Crisci and

Drew C. Piersall, for appellant Youngstown State University.

Argued: George S. Crisci.

On Brief: Green Haines Sgambati Co., L.P.A. Charles W.

Oldfield and Stanley J. Okusewsky, for appellee Youngstown

State University Association of Classified Employees,

OEA/NEA.

On Brief: Michael DeWine, Attorney General, and Michael

D. Allen, for appellee State Employment Relations Board.

Argued: Lisa M. Critser.

APPEALS from the Franklin County Court of Common Pleas

TYACK, J.

{¶ 1} Appellant, Youngstown State University ("YSU"), appeals the decision of the

Franklin County Court of Common Pleas affirming two adjudication orders issued by the

Nos. 15AP-755 and 15AP-756 2

State Employment Relations Board ("SERB"). Appellant, Youngstown State University

Association of Classified Employees, OEA/NEA ("Union"), also filed briefs and, while they

argue that SERB did make some mistakes, they ask this court to affirm the trial court's

decision and therefore present no assignments of error. For the following reasons, we

affirm the trial court's decision.

{¶ 2} YSU brings two assignments of error for our consideration:

[I.] The Trial Court erred when it ignored controlling case law

and designated the employer's "mission" as the dispositive

factor in its analysis of the "management-level employee"

exception contained in O.R.C. § 4117.01(L).

[II.] The Trial Court erred when it ignored controlling case

law and affirmed the decision of the State Employment

Relations Board that only those employees whose duties "have

a direct impact on the educational programs provided" satisfy

the "management-level employee" exception contained in

O.R.C. § 4117.01(L).

Case History

{¶ 3} On March 22, 2010, YSU filed a "Petition for Amendment of Certification"

with SERB seeking to exclude the position of "Network Services Supervisor 2" and "Data

Security Supervisor 1" from the collective bargaining unit represented by the Union. YSU

asserts that the job duties of these two positions have evolved to the extent that the

employees qualify as "supervisors" and "management level employees" pursuant to

R.C. 4117.01(F) and 4117.01(L) respectively. The Union filed objections to YSU's petition.

{¶ 4} On June 22, 2012, YSU filed another petition for certification that sought to

exclude the manager of employee benefits in YSU's human resources office and the

"Administrative Assistant 4" in YSU's student accounts and university receivables

department from the bargaining unit. The Union filed objections and SERB directed that

both cases be heard together. Over January 23, 25, and 30, 2013, a hearing was

conducted that addressed the certification of the four positions.

{¶ 5} The hearing officer issued two recommendation determinations which

SERB adopted. SERB issued two adjudication orders on October 9, 2014. SERB found

that all four positions qualify as "supervisors" pursuant to R.C. 4117.01(F) while only the

Nos. 15AP-755 and 15AP-756 3

manager of employee benefits in the human resources office was found to be a

"management level employee" pursuant to R.C. 4117.01(L). This removed all four

positions from the collective bargaining unit represented by the Union.

{¶ 6} The Union appealed the decisions to the Franklin County Court of Common

Pleas which consolidated the appeals pursuant to R.C. 119.12. YSU filed a cross appeal,

pursuant to R.C. 119.12 asserting that all four positions should have been determined to

be management level employees, not just the manager of employee benefits.

{¶ 7} The trial court stated that it did not find any legally significant reason to

discredit the evidence relied upon by the hearing officer and SERB. As a result, the court

found that SERB's orders were supported by reliable, probative, and substantial evidence

and were in accordance with the law. The court therefore affirmed them both. The trial

court stated that both the Union and YSU wanted the trial court to substitute its judgment

for that of the hearing officer and SERB.

{¶ 8} YSU timely appealed the trial court's decision. YSU, the Union, and SERB

all filed briefs in this case, but only YSU submitted any assignments of error. The Union

and SERB asked that the trial court decision be affirmed.

{¶ 9} Pursuant to App.R. 12(A)(1)(b), appellate courts must "[d]etermine [an]

appeal on its merits on the assignments of error set forth in the briefs under App. R. 16."

Thus, we must rule on the actual assignments of error, not upon mere arguments.

Thompson v. Thompson, 196 Ohio App.3d 764, 2011-Ohio-6286, ¶ 65 (10th Dist.). With

only YSU presenting assignments of error, this court is only being asked to overrule the

trial court and require SERB to classify certain positions as management level employees.

{¶ 10} However, the relief prayed for by YSU to remove the four positions from the

collective bargaining unit has already been achieved; the trial court affirmed the SERB

decision that found the positions to be classified as "supervisors" under R.C. 4117.01(F).

What YSU is essentially asking for is an advisory opinion to resolve an additional issue,

that the positions also be classified as "management level employees" pursuant to

R.C. 4117.01(L). The issue before SERB as to membership in the bargaining unit is

already resolved.

{¶ 11} It is well-settled law that this court will not issue advisory opinions. State ex

rel. White v. Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, ¶ 18, citing State ex rel Baldzicki

Nos. 15AP-755 and 15AP-756 4

v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 238, 242 (2000); Egan v. Natl.

Distillers & Chem. Corp., 25 Ohio St.3d 176 (1986), syllabus.

It has been long and well established that it is the duty of

every judicial tribunal to decide actual controversies between

parties legitimately affected by specific facts and to render

judgments which can be carried into effect. It has become

settled judicial responsibility for courts to refrain from giving

opinions on abstract propositions and to avoid the imposition

by judgment of premature declarations or advice upon

potential controversies.

Fortner v. Thomas, 22 Ohio St.2d 13, 14 (1970).

{¶ 12} YSU argues that if the duties of all four of the positions are not found to be

management level in nature then the Union will argue that the work should remain within

the bargaining unit. It is clear that YSU is asking for a ruling to resolve a speculative

future conflict, and we will refrain from giving opinion on such an abstract proposition

and avoid judgment on what amounts to only a potential future controversy.

{¶ 13} We will, however, examine whether SERB's initial decision and the trial

court's affirmation was in accordance with the law as it relates to the two assignments of

error brought by YSU. As noted earlier, this court rules on assignments of error only and

will not address mere arguments unconnected to an assignment of error. Ellinger v. Ho,

10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70; see In re Estate of Taris, 10th Dist. No.

04AP-1264, 2005-Ohio-1516, ¶ 5-6 (refusing to address any "contentions in the argument

section of the brief that do not plainly fall under one of the listed assignments of error").

"This is procedurally necessary, as we are permitted to sustain or overrule only

assignments of error and not mere arguments." In re Estate of Taris, at ¶ 5; see App.R.

12(A)(2).

Standard of Review

{¶ 14} Pursuant to R.C. 119.12, a reviewing trial court must affirm the order of an

administrative agency if it is supported by reliable, probative, and substantial evidence

and is in accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111

(1980). "Reliable" evidence is dependable; that is, it can be confidently trusted. In order

Nos. 15AP-755 and 15AP-756 5

to be reliable, there must be a reasonable probability that the evidence is true. "Probative"

evidence is evidence that tends to prove the issue in question; it must be relevant in

determining the issue. "Substantial" evidence is evidence with some weight; it must have

importance and value. Our Place v. Liquor Control Comm., 63 Ohio St.3d 570, 571

(1992).

{¶ 15} In reviewing an order of an administrative agency, an appellate court's role

is more limited than that of a common pleas court reviewing the same order. It is

incumbent on the common pleas court to examine the evidence. Such is not the charge of

the appellate court. The appellate court is to determine only if the common pleas court

has abused its discretion. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations

Bd., 40 Ohio St.3d 257, 261 (1988). "The term 'abuse of discretion' connotes more than

an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary

or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 16} As to questions of law, "this court must make its own independent

determination of the law to be applied to the facts found by the agency and held by the

common pleas court to be supported by reliable, probative and substantial evidence."

Franklin Cty. Bd. of Commrs. v. State Employment Relations Bd., 92 Ohio App.3d 585,

588 (10th Dist.1993). In reviewing the decision of an administrative agency, considerable

deference should be accorded to an agency's interpretation of rules the agency is required

to administer. State ex rel. Celebrezze v. Natl. Lime & Stone Co., 68 Ohio St.3d 377, 382

(1994).

SERB's Interpretation of R.C. Chapter 4117 and Application of Facts

{¶ 17} This appeal turns on SERB's interpretation of both R.C. 4117.01(F) and

4117.01(L), and how SERB applied those interpretations to four YSU employees. The

definitions in R.C. 4117.01 states in part:

(F) "Supervisor" means any individual who has authority, in

the interest of the public employer, to hire, transfer, suspend,

lay off, recall, promote, discharge, assign, reward, or

discipline other public employees; to responsibly direct them;

to adjust their grievances; or to effectively recommend such

action, if the exercise of that authority is not of a merely

Nos. 15AP-755 and 15AP-756 6

routine or clerical nature, but requires the use of independent

judgment.

***

(L) "Management level employee" means an individual who

formulates policy on behalf of the public employer, who

responsibly directs the implementation of policy, or who may

reasonably be required on behalf of the public employer to

assist in the preparation for the conduct of collective

negotiations, administer collectively negotiated agreements,

or have a major role in personnel administration.

{¶ 18} The Ohio General Assembly clearly intended to vest SERB with broad

authority to administer and enforce R.C. Chapter 4117. Lorain at 260. "This authority

must necessarily include the power to interpret the Act to achieve its purposes.

Accordingly, due deference must be afforded SERB's determination[s]." Id.

The General Assembly has entrusted SERB with the

responsibility of administering [R.C. 4117], and has bestowed

upon it the special function of applying the statute's

provisions to the complexities of Ohio's industrial life. In so

doing, it has delegated to SERB the authority to make certain

policy decisions. Our review is limited to whether SERB's

policy is unreasonable or in conflict with the explicit language

of R.C. Chapter 4117.

State Emp. Relations Bd. v. Miami Univ., 71 Ohio St.3d 351, 353 (1994). Therefore, since

this appeal focuses on the interpretation and application of R.C. 4117.01, we give due

deference to SERB's policy and limit our review to its reasonableness in order to ensure it

does not conflict with the explicit language of the Ohio Revised Code.

SERB did not Make the Employer's Mission or Direct Impact on Education

Programs the Dispositive Factor in Determining the Exception

{¶ 19} The first assignment of error argues that the trial court ignored controlling

case law and designated the employer's mission as the dispositive factor in its analysis of

the management-level employee exception when it affirmed SERB's decisions. The

second assignment of error argues that the trial court ignored controlling case law and

Nos. 15AP-755 and 15AP-756 7

erred in finding that only those employees whose duties have a direct impact on the

educational programs provided satisfy the management-level employee exception.

{¶ 20} YSU's argument that the hearing officer's recommended determination

makes the employer's mission dispositive in the analysis of management-level employees

is without merit. The hearing officer, based on prior case law and SERB precedent, stated

that the SERB "must consider an employer's mission and its organizational structure in

order to ascertain the scope and nature of the policy formulation or policy implantation

attributed to a particular employee". (Hearing Officer Recommended Determination, at

15.) The hearing officer cites a previous SERB decision to inform it as to how its analysis

of what is policy formulation and what is the direction of implementation of policy:

"(1) the nature of the policy and formulating process for the policy; (2) whether the policy

significantly affects the mission of the employer; (3) whether the policy, by its nature,

identifies its author as a member of the management team; and (4) whether the policy in

question has an employer-wide application." (Hearing Officer Recommended

Determination, at 14.)

{¶ 21} It is clear that the hearing officer only used the mission statement, which it

found to be the very broad "to provide high level educational opportunities to its students

through programs established in its various colleges," as one factor in determining what

amounts to policy formation and policy implementation. (Hearing Officer Recommended

Determination, at 15.)

{¶ 22} Further the hearing officer offers an example of a policy that would effect

the mission of YSU, "the types of policies that would affect YSU's mission would be those

that have a direct impact on the educational programs provided, such as a policy to add

another two-year degree program, or a policy that changes requirements of an existing

program, or a policy that merges colleges." (Hearing Officer Recommended

Determination, at 15.) The hearing officer and SERB in its affirmation are not limiting

what constitutes a policy to simply the employer's mission or whether those policies have

a direct impact on that mission. As cited by the hearing officer and applied in previous

SERB decisions, whether the policy significantly affects the mission of the employer, is

simply one factor to consider and not the dispositive factor.

Nos. 15AP-755 and 15AP-756 8

{¶ 23} We give due deference to SERB's determination in defining what is a

significant policy for the R.C. 4117.01(L) exception, and do not find it unreasonable that

the mission statement of an employer can be used as a factor to help determine the scope

and nature of policy formulation or policy implementation attributable to a particular

employee. SERB did not place an over-reliance on the mission of YSU in its

determinations. SERB was not limited to only considering policies and duties that had a

direct impact on programs provided. SERB's decision is in accordance with the law.

{¶ 24} The first and second assignments of error are overruled.

{¶ 25} The decision of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BROWN, J., concurs.

LUPER SCHUSTER, J., dissents.

LUPER SCHUSTER, J., dissenting.

{¶ 1} I respectfully dissent because I believe we should dismiss the appeal rather

than address the assignments of error presented. I agree with the majority that "the relief

prayed for by YSU to remove the four positions from the collective bargaining unit has

already been achieved;" and "the issue before SERB as to membership in the bargaining

unit is already resolved." (Majority Decision, ¶ 10.) However, in my view, these facts

require us to dismiss the appeal because any decision would only be advisory. See, e.g.,

Cincinnati Gas & Elec. Co. v. Pub. Util. Comm., 103 Ohio St.3d 398, 2004-Ohio-5466, ¶

17 (dismissing appeal where "[i]n the absence of the possibility of an effective remedy,

[the] appeal constitute[d] only a request for an advisory ruling from the court").

{¶ 2} This matter began with YSU seeking to exclude four positions from the

collective bargaining unit. SERB granted the request, finding that the employees in all

four positions qualify as "supervisors" pursuant to R.C. 4117.01(F), and that one was also a

"management level employee" pursuant to R.C. 4117.01(L). YSU's assignments of error

only challenge SERB's determination that three of the YSU positions do not fall within the

management level exception. In this appeal, no party is challenging SERB's decision

excluding all four positions from the collective bargaining unit. Rather, YSU seeks an

advisory opinion related to whether three of the employees should also be classified as

Nos. 15AP-755 and 15AP-756 9

"management level employees." Such an advisory opinion would have no direct or

immediate impact on the parties. Therefore, this appeal should be dismissed.