Akron Assn. of Classified Personnel v. Akron City School Dist. Bd. of Edn.

[Cite as Akron Assn. of Classified Personnel v. Akron City School Dist. Bd. of Edn., 2022-Ohio-3216.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

AKRON ASSOCIATION OF CLASSIFIED C.A. No. 30098

PERSONNEL, et al.

Appellants

APPEAL FROM JUDGMENT

v. ENTERED IN THE

COURT OF COMMON PLEAS

AKRON CITY SCHOOL DISTRICT COUNTY OF SUMMIT, OHIO

BOARD OF EDUCATION CASE No. CV-2021-01-0337

Appellee

DECISION AND JOURNAL ENTRY

Dated: September 14, 2022

CARR, Judge.

{¶1} Plaintiffs-Appellants Akron Association of Classified Personnel, OEA/NEA

(“AACP”), Rhonda Black, Nancy Fuller, Sharon Jackson, Sherry Johnson, Linda Scott, Linda

Strebler, and Christine Nelson (collectively “Former Employees”) appeal the judgment of the

Summit County Court of Common Pleas dismissing the action for lack of subject matter

jurisdiction. This Court reverses and remands the matter for proceedings consistent with this

decision.

I.

{¶2} According to allegations in the amended complaint, AACP and Defendant-

Appellee Akron City School District Board of Education (“the Board”) entered into a series of

collective bargaining agreements establishing the terms and conditions of employment for

bargaining members. AACP is the duly recognized and certified collective bargaining

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representative for all employees who work for the Board in certain job specialties. The collective

bargaining agreement at issue in the instant matter (“current CBA”) was not ratified until August

2020, but was effective from July 1, 2019 through June 30, 2022. The previous collective

bargaining agreement (“prior CBA”) expired on June 30, 2019. During the period between the

expiration of the prior CBA and the ratification of the current CBA the parties operated under the

prior CBA.

{¶3} The current CBA included a 2.1% wage increase provision that was effective July

1, 2019. The Board did not issue retroactive pay raises to Former Employees, who were employed

after the expiration of the prior CBA but left employment before the current CBA was ratified.

{¶4} On November 9, 2020, AACP brought a grievance on behalf of Former Employees

alleging that they were entitled to payment for the amount of the wage increase for the time they

worked after July 1, 2019 until they left employment. It appears the Board denied the grievance

as AACP and Former Employees alleged in the amended complaint that only non-binding

arbitration was provided for in the CBA, and, thus, AACP was authorized to pursue issues in the

courts prior to the exhaustion of the grievance procedures under the CBA.1 In January 2021,

AACP and Former Employees filed a complaint for breach of contract against the Board. An

amended complaint was filed in May 2021. AACP and Former Employees alleged that the Board

breached the current CBA by failing to issue retroactive pay raises to Former Employees. The

Board filed an answer.

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Any issues related to the exhaustion of the grievance procedure are not before us in this

appeal.

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{¶5} Thereafter, AACP and Former Employees filed a motion for judgment on the

pleadings. The Board then filed a motion to dismiss for lack of subject matter jurisdiction, or, in

the alternative, a motion for judgment on the pleadings.

{¶6} In its motion, inter alia, the Board argued that the State Employment Relations

Board (“SERB”) has exclusive jurisdiction over the claim. AACP and Former Employees opposed

the motion. A reply and surreply were subsequently filed with leave of court. In August 2021,

the trial court concluded that it lacked subject matter jurisdiction over the action as the claim arose

or depended upon collective bargaining rights created by R.C. Chapter 4117 and granted the

motion to dismiss.

{¶7} AACP and Former Employees have appealed, raising a single assignment of error

for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN FINDING THAT IT LACKED SUBJECT

MATTER JURISDICTION TO [] HEAR THIS MATTER AND

SUBSEQUENTLY GRANTING APPELLEE’S MOTION TO DISMISS FOR

LACK OF SUBJECT MATTER JURISDICTION.

{¶8} AACP and Former Employees argue in their sole assignment of error argue that the

trial court erred in concluding that it lacked subject matter jurisdiction over the matter and

dismissing the case.

{¶9} “Civ.R. 12(B)(1) provides a mechanism for a defendant to seek the dismissal of a

complaint for lack of subject matter jurisdiction.” (Internal quotations and citation omitted.)

Lorain Cty. Children Servs. v. Gossick, 9th Dist. Lorain No. 13CA010476, 2014-Ohio-3865, ¶ 10.

“A complaint may only be dismissed under Civ.R. 12(B)(1) when it raises no cause of action that

is cognizable by the forum.” Jones v. Summit Cty. Job & Family Servs., 9th Dist. Summit No.

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27708, 2016-Ohio-4940, ¶ 5. “The rule allows the trial court to consider evidence beyond the

pleadings for purposes of determining whether it possesses subject matter jurisdiction to consider

the claim. When making such a determination in the absence of a hearing, however, the trial court

must view allegations in the pleadings and documentary evidence in the light most favorable to

the non-moving party [and] * * * resolve all reasonable competing inferences in favor of such non-

moving party.” (Internal citations and quotations omitted.) Gossick at ¶ 10. “This Court reviews

a motion to dismiss for lack of subject matter jurisdiction de novo.” Jones at ¶ 5.

{¶10} “The current R.C. Chapter 4117 established a comprehensive framework for the

resolution of public-sector labor disputes by creating a series of new rights and setting forth

specific procedures and remedies for the vindication of those rights.” (Internal quotations and

citation omitted.) State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2010-Ohio-5039, ¶ 16.

“The State Employment Relations Board has exclusive jurisdiction to decide matters committed

to it pursuant to R.C. Chapter 4117.” Sutula at ¶ 16, quoting Franklin Cty. Law Enforcement Assn.

v. Fraternal Order of Police, Capital City Lodge No. 9, 59 Ohio St.3d 167 (1991), paragraph one

of the syllabus. “The issue of SERB’s exclusive jurisdiction does not depend on the existence or

exhaustion of a grievance procedure.” Carter v. Trotwood-Madison City Bd. of Edn., 181 Ohio

App.3d 764, 2009-Ohio-1769, ¶ 47 (2d Dist.).

{¶11} “[T]he dispositive test is whether the claims arise from or depend on the collective

bargaining rights created by R.C. Chapter 4117.” (Internal quotations and citations omitted.)

Sutula at ¶ 20. “Therefore, SERB has exclusive jurisdiction over matters within R.C. Chapter

4117 in its entirety, not simply over unfair labor practices claims.” (Internal quotations and

citations omitted.) Id. “[E]xclusive jurisdiction to resolve charges of unfair labor practices is

vested in SERB in two general areas: (1) where one of the parties files charges with SERB alleging

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an unfair labor practice under R.C. 4117.11; or (2) a complaint brought before the court of

common pleas alleges conduct that constitutes an unfair labor practice specifically enumerated in

R.C. 4117.11, and the trial court therefore dismisses the complaint for lack of subject-matter

jurisdiction.” E. Cleveland v. E. Cleveland Firefighters Local 500, I.A.F.F., 70 Ohio St.3d 125,

127-128 (1994).

{¶12} However, “[w]hen a party has asserted claims that are independent of R.C. Chapter

4117, [the Supreme Court has] recognized that jurisdiction lies with a common pleas court, not

SERB.” State ex rel. the City of Cleveland v. Russo, 156 Ohio St.3d 449, 2019-Ohio-1595, ¶ 17.

Nonetheless, “[a]ny claim which is independent of R.C. Chapter 4117, such as a breach of contract

or enforcement, still falls solely within the jurisdiction of SERB if the asserted claim arises from

or is dependent on the collective bargaining rights created by R.C. Chapter 4117.” (Internal

quotations and citations omitted.) Sutula at ¶ 23. Again, the determining factor is whether the

claim arises from or depends upon the collective bargaining rights created by R.C. Chapter 4117.

Sutula at ¶ 20; Russo at ¶ 14.

{¶13} Here, AACP and Former Employees allege that the current CBA was violated when

the Board failed to issue retroactive pay raises to Former Employees. Thus, a central issue to this

dispute is whether the retroactive wage increase provision of the current CBA, which was only

ratified after Former Employees left employment with the Board but was effective while Former

Employees were still employed, applies to Former Employees.

{¶14} Here, we conclude that this matter is comparable to the situation in Bd. of Trumbull

Cty. Commrs. v. Gatti, 11th Dist. Trumbull No. 2017-T-0027, 2017-Ohio-8533. That matter

involved a union employee who was injured while working for the county engineer’s office. Id.

at ¶ 2. Under the CBA, the employee was required to “share in the cost of hospitalization-insurance

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benefits while on workers’ compensation after the employee has been receiving workers’-

compensation benefits for a certain period of time.” Id. at ¶ 3. When the employee failed to pay

his share, a complaint was filed against him alleging breach of contract and unjust enrichment. Id.

¶ 3-4. The employee claimed that the trial court lacked subject matter jurisdiction because SERB

had jurisdiction as the claims arose from or depended upon rights created by the CBA. Id. at ¶ 6.

The trial court denied the motion to dismiss. Id.

{¶15} On appeal, the court affirmed that the trial court possessed subject matter

jurisdiction. Id. at ¶ 15. In so doing, the court stated that “neither party made an allegation relating

to an unfair labor practice; rather, appellees sought remuneration for appellant’s failure to pay his

proportional share of the hospitalization-insurance premium. Although appellant’s duty to pay his

share and appellees’ right to reimbursement arise out of the CBA, there is no provision under R.C.

Chapter 4117 that creates such rights or obligations.” Id. at ¶ 15. In the court’s view, “appellees’

right to reimbursement [was] independent of the rights created by R.C. Chapter 4117 * * *.” Id.

{¶16} Likewise, despite the Board’s arguments to the contrary, we cannot say that the

claim here involves an unfair labor practice. Instead, Former Employees seek a retroactive pay

raise. Although Former Employees alleged right to a retroactive pay raise arose out of the current

CBA, we disagree that R.C. Chapter 4117 creates any such right or obligation. Again, “the

dispositive test is whether the claims arise from or depend on the collective bargaining rights

created by R.C. Chapter 4117[,]” not the collective bargaining agreement. (Internal quotations

and citations omitted. Emphasis added.) Sutula at ¶ 20. AACP’s and Former Employees’

assignment of error is sustained.

III.

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{¶17} The assignment of error is sustained. The judgment of the Summit County Court

of Common Pleas is reversed, and the matter is remanded for proceedings consistent with this

decision.

Judgment reversed,

and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR

FOR THE COURT

HENSAL, P. J.

SUTTON, J.

CONCUR.

APPEARANCES:

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RACHEL M. REIGHT and BRAD M. ZEBEDIS, Attorneys at Law, for Appellants.

CHRISTIAN M. WILLIAMS and MILKO CECEZ, Attorneys at Law, for Appellee.