[Cite as Lima Pub. Library Bd. of Trustees v. State Emp. Relations Bd.,

.]

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,

, ¶7, citing Univ. of

Cincinnati v. Conrad (1980),

,

. See,

also, University Hospital, Univ. of Cincinnati College of Medicine v. State Emp.

Relations Bd. (1992),

,

. 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,

, quoting Lies v. Veterinary Med. Bd. (1981),

,

.

{¶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.,

, at ¶8, citing Conrad,

. See, also,

Bartchy v. State Bd. of Edn.,

,

,

(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,

, ¶37, quoting Ohio

Historical Soc. v. State Emp. Relations Bd. (1993),

,

, quoting Conrad,

.

{¶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.,

, citing Pons v. Ohio State Med. Bd. (1993),

,

. An abuse of discretion implies that the court’s

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore

(1983),

,

. 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.

{¶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).

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.,

, 2009-Ohio-

306,

. 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 * * * .”

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,

, citing Bittner v. TriCounty Toyota, Inc. (1991),

,

. Again, an abuse of discretion implies that the

court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore,

.

{¶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),

,

. 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,

. 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.

Judgment Affirmed

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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