[Cite as United Auto Workers of Am. v. State Emp. Relations Bd., 2013-Ohio-4204.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Fraternal Order of Police, Ohio Labor                 :
Council, Inc.,
                                                      :
                Appellant-Appellee,                                    No. 12AP-660
                                                      :          (C.P.C. No. 12CVF-01-112)
(International Union, United Automobile,
Aerospace & Agricultural Implement                    :
Workers of America,                                             (REGULAR CALENDAR)
                                                      :
                Intervenor-Appellant),
v.                                                    :

State Employment Relations Board,                     :

                Appellee-Appellee.                    :




                                         D E C I S I O N

                                  Rendered on September 26, 2013


                Kay E. Cremeans, and Paul L. Cox, for appellee Fraternal
                Order of Police, Ohio Labor Council, Inc.

                Harris Reny Torzewski LPA, and Joan Torzewski, for
                appellant.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} Appellant, International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America ("UAW"), appeals the judgment of the
Franklin County Court of Common Pleas reversing an order by the State Employment
Relations Board ("SERB"), appellee.
No. 12AP-660                                                                               2


          {¶ 2} In November 2006, UAW was certified by SERB as the exclusive
representative of all full-time Clerk Typists, Clerk I, Clerk II, Dispatch/Clerk III,
Maintenance Workers, Counselors, Process Servers, Deputy Sheriffs, Correction Officers
and Building Security Officers ("the employees") employed by the Lucas County Sheriff's
Office.
          {¶ 3} On September 26, 2011, the Fraternal Order of Police ("FOP") filed a
petition for representation election with SERB seeking to represent the employees. In the
petition, the FOP named the United Automobile, Aerospace and Agricultural Implement
Workers of America Local 3056 ("Local 3056") as the incumbent labor organization. The
FOP sent the petition via certified mail to Matt Leuttke, UAW Local 3056, 1700 Canton
Street, Suite F, Toledo, Ohio 43604. The FOP apparently obtained the name and address
of the incumbent labor organization from a document filed with SERB by the Lucas
County Sheriff's Office. The certified mail receipt was signed for by Jesse Jaquez, who
works for a bail bonds business on the first floor of the same building in which Local 3056
is located.
          {¶ 4} On October 4, 2011, the FOP filed an amended petition and mailed it via
regular mail to Patrick Mangold, UAW Local 3056, 1700 Canton Street, Suite 5, Toledo,
Ohio 43604.
          {¶ 5} On October 5, 2011, the UAW filed a notice of appearance with SERB and
also filed a motion to dismiss the FOP's petition, arguing that the UAW was not served
with the petition and was not named as the incumbent labor organization in the petition.
          {¶ 6} On October 6, 2011, the FOP filed an amended petition with SERB, naming
the UAW as the incumbent labor organization, and the petition was served via certified
mail upon UAW.
          {¶ 7} On November 17, 2011, the UAW submitted a letter to SERB detailing its
position on the matter. The UAW indicated that it was the incumbent organization,
neither Matt Leuttke nor Jesse Jaquez was an officer of Local 3056, and it did not receive
service until after the October 6, 2011 amended petition was filed, which was after the
period permissible for filing such a petition.
          {¶ 8} On December 15, 2011, SERB dismissed the FOP's petition, finding that
service was not complete pursuant to Ohio Adm.Code 4117-1-02(B) for the original filing,
No. 12AP-660                                                                              3


and the October 4, 2011 amended petition was filed one day beyond the time permitted by
R.C. 4117.07(C)(6).
       {¶ 9} The FOP appealed SERB's decision to the Franklin County Court of
Common Pleas. On July 9, 2012, the court issued a final judgment, remanding the matter
to SERB for a full development of the factual record and redetermination of the legal
questions. The trial court indicated that the record did not reveal whether UAW had
provided updated names and addresses for purposes of service of process, whether the
FOP substantially complied with the service requirements based upon any incorrect or
outdated addresses on file with SERB, whether SERB computed the filing deadline based
upon Ohio Adm.Code 4117-1-03, and whether the date of filing for the amended petition
should relate back to the original attempt at service. The UAW has appealed the court's
judgment, asserting the following assignment of error:
              The common pleas court erred when it substituted its
              judgment for that of SERB and relied on argument and
              evidence not presented to SERB or the court.

       {¶ 10} The UAW argues in its sole assignment of error that the common pleas
court erred when it substituted its judgment for that of SERB and relied on arguments
and evidence not presented to SERB or the court. In an R.C. 119.12 appeal, the trial court
reviews an administrative order to determine whether it is supported by reliable,
probative, and substantial evidence and is in accordance with law. In applying this
standard, the court must "give due deference to the administrative resolution of
evidentiary conflicts." Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980).
       {¶ 11} On appeal to this court, the standard of review is more limited. Unlike the
court of common pleas, a court of appeals does not determine the weight of the evidence.
See Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio
St.3d 705, 707 (1992), citing Lorain City School Dist. Bd. of Edn. v. State Emp. Relations
Bd., 40 Ohio St.3d 257, 260-61 (1988). In reviewing the trial court's determination that
the board's order was supported by reliable, probative, and substantial evidence, this
court's role is limited to determining whether the trial court abused its discretion. Id. at
261. 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
No. 12AP-660                                                                             4


v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However, with respect to whether the board's
order was in accordance with law, this court exercises plenary review. Univ. Hosp., Univ.
of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343
(1992).
       {¶ 12} In the present case, the trial court remanded the matter to SERB for several
determinations. The trial court first found that the case should not have been dismissed if
the FOP acted reasonably in serving UAW at the 1700 Canton Street address due to the
UAW's failure to file an annual report with SERB, pursuant to R.C. 4117.19(B)(2), which
required the UAW to include in the annual report the name and address of its local agent
for service of process. The court ordered SERB to determine whether the FOP's service of
the paperwork was made in substantial compliance with procedural requirements and
reasonably calculated to give notice to UAW, given some of the materials on file with
SERB might have been out of date or incomplete.
       {¶ 13} The trial court also found the record was unclear whether SERB used the
time computation procedures in Ohio Adm.Code 4117-1-03 in finding that the FOP's
eventual proper service was, in fact, one day late, as SERB concluded. The court further
ordered SERB to reconsider whether the allegedly one-day late service relates back to the
original attempt at service, given the FOP apparently used information from the UAW's
filings with SERB that were inaccurate and outdated.
       {¶ 14} Ohio Adm.Code 4117-1-02(B) provides, in pertinent part:

              [A]ll documents not served electronically shall include proof
              of service to the other parties to the proceeding or their
              representatives. Proof of service shall be signed and shall
              include the address to which the document is delivered, the
              manner of delivery, and the date of mailing or, if service is not
              by mail, the date of actual delivery or an acknowledgment of
              receipt signed by the recipient. Service may be made by mail
              or by personal service including hand delivery or by leaving a
              copy at the principal office or personal residence of the party
              or representative required to be served. Service by mail shall
              be deemed complete upon mailing. Such documents shall not
              be accepted for filing unless they contain proof of service
              signed by the party or the party's representative.
No. 12AP-660                                                                             5


      {¶ 15} R.C. 4117.07(C)(6) provides, in pertinent part:

             Petitions for elections may be filed with the board no sooner
             than one hundred twenty days or later than ninety days before
             the expiration date of any collective bargaining agreement, or
             after the expiration date, until the public employer and
             exclusive representative enter into a new written agreement.

      {¶ 16} R.C. 4117.19 provides, in pertinent part:

             (B) Every employee organization shall file with the board an
             annual report. The report shall be in a form prescribed by the
             board and shall contain the following information:

             (1) The names and addresses of the organization, any parent
             organization or organizations with which it is affiliated, and
             all organizationwide officers;

             (2) The name and address of its local agent for service of
             process.

      {¶ 17} In the present case, SERB dismissed both the September 26, 2011 petition
for representation election and the October 4, 2011 amended petition. With regard to the
September 26, 2011 petition, SERB dismissed it because service was not complete
pursuant to Ohio Adm.Code 4117-1-02(B). SERB found that the FOP failed to serve the
petition on UAW's appropriate representative. SERB noted that the proof of service
provided by the FOP indicated that the certified mail receipt was signed by Jesse Jaquez,
who was not an employee of the UAW but an employee of a bail bonds business on a
different floor in the same building as Local 3056, and the UAW has never authorized
Jaquez or any other employee of the bail bonds business to accept any mail.
      {¶ 18} With regard to the October 4, 2011 amended petition, SERB dismissed it
because it was filed outside the 120-day to 90-day window period provided in R.C.
4117.07(C)(6). SERB found that the current collective bargaining agreement expired on
December 31, 2011; thus, October 3, 2011 would have been the last day the FOP could
have filed the amended petition for representation election. Having filed the amended
petition on October 4, 2011, SERB found, the FOP filed the amended petition untimely.
      {¶ 19} The issues before this court are issues of law. Therefore, our review of the
trial court's order is plenary. After a review of the record and the determinations by SERB
No. 12AP-660                                                                                 6


and the trial court, we find the trial court erred when it vacated the SERB decision and
remanded the case. With respect to the September 26, 2011 petition, the trial court
concluded that the case should not have been dismissed if the UAW failed to file an
annual report with SERB, pursuant to R.C. 4117.19(B)(2), and the FOP acted reasonably
in serving UAW at the 1700 Canton Street address. The court ordered SERB to determine
whether the FOP's service of the paperwork was made in substantial compliance with
procedural requirements and reasonably calculated to give notice to UAW, given some of
the materials on file with SERB might have been out of date or incomplete.
       {¶ 20} However, there is no statutory or administrative authority to support the
trial court's determinations, and they are contrary to law. None of the Ohio Revised Code
or Ohio Administrative Code sections cited by the trial court contemplate that service is
proper if the party acts reasonably in attempting to effectuate service, if the party's actions
were in substantial compliance with the procedural requirements, or if the party's
attempted service was reasonably calculated to give notice. Also, none of the various
sections mention that the failure to file a recent annual report with SERB or the filing with
SERB of any incomplete or out-of-date documents excuses a party's service upon another
party. Ohio Adm.Code 4117-1-02(B) requires documents to be served upon parties to the
proceedings or their representatives, which the FOP failed to do here in a timely manner.
As with any party in any legal proceeding, it is that party's responsibility to effectuate and
prove proper service. See Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63 (1st
Dist.1997) (the plaintiff bears the burden of obtaining proper service on a defendant).
Therefore, under a faithful reading of the relevant statutory and administrative language,
SERB's dismissal of the FOP's petition was proper.
       {¶ 21} Notwithstanding, there is some case law authority to support the notion
that substantial compliance with administrative regulations is all that is required, and
form should not be raised over substance. See Millington v. Morrow Cty. Bd. of Commrs.,
5th Dist. No. 2009-CA-0007, 2009-Ohio-4315, ¶ 30-31. However, the application of
substantial compliance is not without limitations. The court in Millington cited Adams v.
Crawford Cty. Bd. of Commrs., 3d Dist. No. 3-07-19, 2007-Ohio-6966, and we believe it
is helpful to our analysis in the present case. In Adams, an employee, Adams, was
removed from her position for testing positive for drugs. The sheriff's office attempted to
No. 12AP-660                                                                               7


serve Adams with the county board of commissioners' removal notice at various times,
but was unable to serve Adams prior to the effective date of her removal, which Ohio
Adm.Code 124-03-01(A) requires. The sheriff's office served the notice three days after the
effective date of removal. The State Personnel Board of Review ("SPBR") rejected the
commissioners' substantial compliance argument and disaffirmed the order of removal.
On appeal, the common pleas court affirmed the SPBR's decision. Upon further appeal,
the court of appeals indicated that, in the right case, substantial compliance might apply
to service under Ohio Adm.Code 124-03-01(A), particularly where an employee obstructs
proper service of the notice or has suffered no prejudice by an untimely service because
actual timely notice of the termination can be demonstrated in the record via other
means. However, the court stated that "given the record in the present case, we are unable
to determine that either circumstance exists here. Despite numerous allegations of
substantial compliance in the brief, the record is devoid of almost any actual evidence in
support of those allegations." Id. at ¶ 22. The court found the record was insufficient to
show that Adams herself was responsible for the failure of timely service or that Adams
had actual notice of the termination via other means. The court concluded that the record
before it was limited so it could not determine whether substantial compliance had
occurred; thus, the trial court did not abuse its discretion when it affirmed the SPBR.
       {¶ 22} In the present case, the record is insufficient to demonstrate that UAW was
responsible for the failure of timely service. Although the FOP argues that UAW was
responsible for the failure of service because of deficiencies in its SERB filings, the trial
court admitted that the record before it was unclear as to whether UAW filed an annual
report, whether the material on file about the UAW at SERB was out of date or
incomplete, and whether the FOP could have obtained more accurate names and
addresses from the SERB file. In finding so, the trial court concedes that the factual record
before it was without evidence to support the FOP's arguments on appeal. Any fault for
the lack of a factual record falls upon the FOP. It was the duty of the FOP to develop the
factual record at the administrative level to support any arguments it wished to raise upon
appeal. The FOP had ample opportunity to develop the record before SERB but failed to
do so. However, the record from SERB was clear that UAW contended it had no actual
notice of the petition via other means until after the expiration of the window period, and
No. 12AP-660                                                                               8


such has never been refuted. Therefore, under such circumstances, the trial court should
have affirmed SERB's dismissal of the FOP's petition.
       {¶ 23} Also, with regard to the trial court's order that SERB determine whether the
FOP's service of the paperwork was reasonably calculated to give notice to UAW, service
of process must be made in a manner reasonably calculated to apprise interested parties
of the action and to afford them an opportunity to respond. Akron-Canton Regional
Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406 (1980). There are inherently greater
risks involved with attempting service at a business address "by virtue of the oftentimes
numerous intermediate, and frequently uninterested, parties participating in the chain of
delivery." Id. However, even if the service was reasonably calculated to give notice to
UAW, this may be rebutted if nonservice is shown. See Money Tree Loan Co. v. Williams,
169 Ohio App.3d 336, 2006-Ohio-5568, ¶ 10 (8th Dist.). Thus, even if it could be said that
the address and party to which the FOP mailed the original petition was the correct
address and the correct party, UAW asserted that it never received notice of the petition
until after the expiration of the window period, which was supported by the certified mail
receipt submitted by the FOP showing that an employee of an unrelated business located
on a different floor than UAW signed the certified mail receipt. There is no evidence as to
what happened to the petition after the unrelated employee signed for it, and there is no
evidence in the record that UAW ever received it timely. Therefore, for this reason too, the
trial court should have affirmed SERB's dismissal of the FOP's petition.
       {¶ 24} The court further ordered SERB to reconsider whether the allegedly one-
day late service relates back to the original attempt at service, given the FOP apparently
used information from the UAW's filings with SERB that was inaccurate and outdated.
The trial court fails to cite any authority for its basis that a petition for representation
election served untimely may relate back to a previous and timely petition that was never
served upon the correct party. Ohio Adm.Code 4117-1-02(B) does not mention a relation-
back exception to service, and R.C. 4117.07(C)(6) plainly requires petitions for elections to
be filed no later than 90 days before the expiration date of any collective bargaining
agreement.
       {¶ 25} The relation-back principle derives from Civ.R. 15(C), which provides, in
pertinent part:
No. 12AP-660                                                                                  9


              Whenever the claim or defense asserted in the amended
              pleading arose out of the conduct, transaction, or occurrence
              set forth or attempted to be set forth in the original pleading,
              the amendment relates back to the date of the original
              pleading. An amendment changing the party against whom a
              claim is asserted relates back if the foregoing provision is
              satisfied and, within the period provided by law for
              commencing the action against him, the party to be brought in
              by amendment (1) has received such notice of the institution
              of the action that he will not be prejudiced in maintaining his
              defense on the merits, and (2) knew or should have known
              that, but for a mistake concerning the identity of the proper
              party, the action would have been brought against him.

       {¶ 26} However, by their own terms, the Ohio Civil Rules apply only to " 'all courts
of this state in the exercise of civil jurisdiction at law or in equity.' " Meadows Dev., L.L.C.
v. Champaign Cty. Bd. of Revision, 124 Ohio St.3d 349, 2010-Ohio-249, ¶ 14, quoting
Civ.R. 1(A). Therefore, the proceedings in this case, being administrative in nature, do not
as a general matter fall within the ambit of the civil rules. See Ohio Dept. of Alcohol &
Drug Addiction Servs. v. Morris, 161 Ohio App.3d 602, 2005-Ohio-3053, ¶ 16 (5th Dist.)
(the Ohio Civil Rules are not applicable in administrative proceedings, and administrative
agencies are not bound thereby); State ex rel. Galbraith v. Indus. Comm., 10th Dist. No.
02AP-1214, 2003-Ohio-7025, ¶ 9 (in general, the civil rules apply to the courts of the state
and, absent statutory authority, administrative agencies are not bound by strict adherence
to civil rules), citing Vaughn v. State Med. Bd., 10th Dist. No. 90AP-1160 (Aug. 6, 1991)
(observing that Ohio Rules of Civil Procedure are not binding in adjudicatory proceedings
before administrative agencies). Therefore, SERB was not bound by the relation-back
doctrine in Civ.R. 15(C) and was not required to consider the application of the rule.
       {¶ 27} In addition, even if the relation-back doctrine could be somehow adapted to
and utilized in the present circumstances, and even if it were assumed that the amended
petition was directed to the proper party and address, as the FOP contends, the doctrine
would be inapplicable because the requirements for an amended pleading to relate back
to a prior pleading were not satisfied. The FOP maintains that the only difference between
the original petition and the amended petition was the name of the UAW individual being
served and the method of service. Although the present case satisfies the Civ.R. 15(C)
No. 12AP-660                                                                             10


requirement that the claims in the petition relate to the same subject matter, the other
requirements of the rule were not met. UAW did not have notice of the petition prior to
the expiration of the period. UAW maintained that it had no notice of the petition until
after October 3, 2011. Also, UAW had no reason to know that it was the proper party to
the lawsuit prior to the expiration of the period. Therefore, the relation-back doctrine has
no applicability.
       {¶ 28} The trial court also found the record was unclear whether SERB used the
time computation procedures in Ohio Adm.Code 4117-1-03 in finding that the FOP's
eventual proper service was, in fact, one day late, as SERB concluded. Ohio Adm.Code
4117-1-03(A) provides:
              In computing any time period prescribed by or allowed by
              Chapter 4117. of the Revised Code and Chapters 4117-1 to
              4117-25 of the Administrative Code, or by order or directive of
              the board or individual conducting a proceeding, such period
              shall begin to run on the day following the day of the act,
              event, or occurrence. The last day of the period so computed is
              to be included, unless it is a Saturday, Sunday, legal holiday,
              or a day or part of a day on which the board office in
              Columbus is closed, in which event the period shall run until
              the end of the next day which is not a Saturday, Sunday, legal
              holiday, or a day or part of a day on which the board office in
              Columbus is closed.

       {¶ 29} SERB explained how it calculated the 90-day period provided in R.C.
4117.07(C)(6). SERB noted that the current collective bargaining agreement expired on
December 31, 2011; thus, October 3, 2011 would have been the last day the FOP could
have filed the amended petition for representation election. October 3, 2011 was not a
Saturday, Sunday, or legal holiday, and there is no evidence in the record that the
Columbus board office was closed or partially closed that day. The FOP also concedes in
its trial court brief that the October 4, 2011 amended petition would be untimely if the
relation-back principle does not apply. As we have found SERB was not bound by the
relation-back principle, the amended complaint would be untimely based upon the time
computation procedures in Ohio Adm.Code 4117-1-03. Additionally, even if the relation-
back doctrine did apply, the requirements for relation back were not met. Therefore, we
No. 12AP-660                                                                              11


find SERB's order, in this respect, was in accordance with the law. For all of the foregoing
reasons, UAW's assignment of error is sustained.
       {¶ 30} Accordingly, UAW's assignment of error is sustained, and the judgment of
the Franklin County Court of Common Pleas is reversed.
                                                                       Judgment reversed.

                            TYACK and CONNOR, JJ., concur.

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