[Cite as State ex rel. Union Twp. v. Union Twp. Professional Firefighters, IAFF Loc. 3412, 2013-Ohio-1611.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE EX REL. UNION TOWNSHIP,                           :
CLERMONT COUNTY, OHIO and Union
Township Board of Trustees,                             :           CASE NO.         CA2012-09-067

        Relators-Appellants,                            :                   OPINION
                                                                             4/22/2013
   - vs -                                               :

UNION TOWNSHIP PROFESSIONAL                             :
FIREFIGHTERS, IAFF LOC. 3412,
                                                        :
        Respondent-Appellee.
                                                        :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2012-CVH-0693



Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, 5300 Socialville-Foster
Road, Suite 200, Mason, Ohio 45040, for relators-appellants

Livorno and Arnett Co. LPA, Henry A. Arnett, 1335 Dublin Road, Suite 108-B, Columbus,
Ohio 43215, for respondent-appellee



        PIPER, J.

        {¶ 1} Relators-appellants, Union Township and the Union Township Board of

Trustees (Union Township), appeal a decision of the Clermont County Court of Common

Pleas finding that it did not have jurisdiction to order respondent-appellee, Union Township
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Professional Firefighters, IAFF Local 3412 (IAFF Local 3412), to sign a collective bargaining

agreement.

       {¶ 2} Union Township and IAFF Local 3412 entered into a collective bargaining

process, whereby the parties hoped to reach a contract governing the terms of the

employment relationship between Union Township and its firefighters, lieutenants, and

captains. However, the parties were not able to reach an agreement. According to R.C.

4117.14, the parties submitted their dispute to a conciliator appointed by the State

Employment Relations Board (SERB).

       {¶ 3} The conciliator held a hearing on October 11, 2011, during which both parties

were represented and offered evidence in support of their respective last and final offers.

The conciliator then filed a report and recommendation, ordering that IAFF Local 3412's final

offers be accepted regarding wages, sick leave, and staffing, and that Union Township's final

offers be accepted regarding safety and hours of work/overtime.

       {¶ 4} Union Township filed a motion to vacate the conciliator's orders, but such was

denied by the trial court. Union Township then prepared a collective bargaining agreement

(Agreement) that reflected the conciliator's orders, and was willing to execute the Agreement.

However, IAFF Local 3412 refused to sign the Agreement. In response, Union Township

filed an unfair labor practice claim against IAFF Local 3412 with SERB, and later filed a

complaint for a writ of mandamus with the trial court asking the trial court to command IAFF

Local 3412 to sign the Agreement.

       {¶ 5} IAFF Local 3412 moved to dismiss Union Township's complaint, claiming that

the trial court lacked jurisdiction, that it was not subject to mandamus as a private entity, and

that Union Township had an adequate remedy at law. The trial court denied IAFF Local

3412's motion finding that Union Township could prove its claims based upon the facts it

asserted in the complaint for mandamus. IAFF Local 3412 then answered, and filed a
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motion for judgment on the pleadings, which included evidence that Union Township filed an

unfair labor practice complaint with SERB. The trial court then dismissed Union Township's

mandamus complaint, finding that it lacked jurisdiction because SERB had exclusive

jurisdiction over the matter. Union Township now appeals the trial court's decision, raising

the following assignment of error.

       {¶ 6} THE TRIAL COURT ERRED IN DENYING RELATORS' MOTION FOR

JUDGMENT ON THE PLEADINGS AND IN DISMISSING THE CASE FOR WANT OF

SUBJECT MATTER JURISDICTION.

       {¶ 7} Union Township argues in its assignment of error that the trial court erred in

determining that it lacked jurisdiction over the case.

       {¶ 8} Before the enactment of R.C. Chapter 4117, "Ohio had no legal framework

governing public-sector labor relations" and Ohio public employees had no statutory right to

bargain collectively. State ex. rel. Dayton Fraternal Order of Police Lodge No. 44 v. State

Emp. Relations Bd., 22 Ohio St.3d 1, 5 (1986).           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." Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City

Lodge No. 9, 59 Ohio St.3d 167, 169 (1991).

       {¶ 9} According to R.C. Chapter 4117 and relevant case law, there are instances

where SERB has exclusive jurisdiction to determine matters, and there are specific instances

were a trial court has jurisdiction to hear a case. SERB has exclusive jurisdiction to resolve

unfair labor practices in two general areas "(1) where one of the parties filed charges with

SERB alleging an unfair labor practice under R.C. 4117.11 and (2) where a complaint

brought before the common pleas court alleges conduct that constitutes an unfair labor

practice specifically enumerated in R.C. 4117.11." State ex rel. Ohio Dept. of Mental Health
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v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, ¶ 23. Otherwise, R.C. 4117.14 sets forth the

conciliation process and states that trial courts have the ability to enforce a conciliation

award. Specifically, R.C. 4117.17(F) states, "nothing in this section shall be construed to

prohibit a party from seeking enforcement of a collective bargaining agreement or a

conciliator's award as specified in division (B) of section 4117.09 of the Revised Code." R.C.

4117.09(B)(1) states in relevant part that, "a party to the agreement may bring suits for

violation of agreements or the enforcement of an award by an arbitrator in the court of

common pleas of any county wherein a party resides or transacts business."

       {¶ 10} The record is clear that Union Township filed an Unfair Labor Practice Charge

with SERB. Within the charge, Union Township alleged that IAFF Local 3412 engaged in an

unfair labor practice by not singing the Agreement. In support of their claim, Union Township

cited the unfair labor practices prohibited by R.C. 4117.11(B)(1),(3), and (5). Therefore,

Union Township chose to specifically submit itself to the exclusive jurisdiction of SERB the

moment it filed charges with SERB alleging an unfair labor practice pursuant to R.C. 4117.11.

As such, SERB has exclusive jurisdiction to determine whether IAFF Local 3412's failure to

sign the Agreement constitutes an unfair labor practice.

       {¶ 11} While SERB has exclusive jurisdiction to address Union Township's unfair labor

practice charge, Union Township asked the trial court to enforce the Agreement because of a

statutory right to pursue enforcement of a conciliator's award in the common pleas court.

Therefore, and because Union Township was asking the trial court to do something other

than address whether IAFF Local 3412 committed an unfair labor practice, the trial court had

jurisdiction as conferred in R.C. 4117.14.

       {¶ 12} By filing its mandamus claim with the common pleas court, Union Township

asked the trial court to compel IAFF Local 3412 to sign the Agreement, which was a



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completely separate and distinct request from asking SERB to declare IAFF Local 3412's

refusal to sign an unfair labor practice.

       {¶ 13} The only issue before the trial court was whether Union Township was entitled

to mandamus to compel IAFF Local 3412 to sign the Agreement as a result of the conciliation

process. Again, R.C. 4117.14(F), states, "nothing in this section shall be construed to

prohibit a party from seeking enforcement of a collective bargaining agreement or a

conciliator's award," including bringing a suit for the enforcement of the conciliator's award in

the court of common pleas.

       {¶ 14} While Union Township chose to invoke SERB's exclusive jurisdiction by filing its

unfair labor practice charge as to that issue, it chose to bring the enforcement of the

conciliation award before the trial court, as was its right to do according to R.C. 4117.14.

Within its SERB charge, Union Township specifically states that the basis for its unfair labor

practice claim was R.C. 4117.11(B)(1),(3), and (5). The factual basis, as stated by Union

Township, was that "the Employee Union has refused to execute a Collective Bargaining

Agreement based on a Conciliator's Award unless the Employer agrees to a supplemental

memorandum of understanding and agrees to an unbargained for Article on Duration."

       {¶ 15} Conversely, in its complaint for a writ of mandamus, the township alleged that

the conciliator's report is binding on the parties, and that both parties therefore have a clear

legal duty to sign the Agreement. The township also alleged that it was willing to sign the

new agreement and that IAFF Local 3412 failed and refused to sign the Agreement

"incorporating the Conciliator's Award in spite of its clear legal duty to do so." Union

Township then asked the trial court to grant a "Writ of Mandamus commanding Respondent

to immediately sign the Collective Bargaining Agreement * * * in accordance with their clear

legal duty pursuant to Ohio Revised Code §4117.14 and Ohio law * * *." Therefore, Union

Township was requesting a specific finding and determination from SERB and a different
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specific finding and determination from the trial court. These two different remedies are not

interdependent upon one another, nor do they depend upon a preliminary finding by either

SERB or the trial court. In fact, it is all together possible that SERB could conclude that IAFF

Local 3412 did not commit an unfair labor practice by not signing, while the trial court could

determine that IAFF Local 3412 must execute the Agreement as determined by the

conciliation process.

       {¶ 16} R.C. 4117.14(I), also states, "the issuance of a final offer settlement award

constitutes a binding mandate to the public employer and the exclusive representative to take

whatever actions are necessary to implement the award." Therefore, Union Township is also

taking "whatever actions are necessary to implement the award" as handed down by the

conciliator by filing its mandamus claim with the trial court as was its right within R.C.

4117.14(F).

       {¶ 17} Beyond claiming that the trial court properly dismissed the cause for lack of

subject matter jurisdiction, IAFF Local 3412 also argues in its brief that the trial court properly

dismissed the cause because mandamus will not lie against a private entity and because

Union Township has an adequate remedy at law. However, these two issues are not before

this court on appeal. IAFF Local 3412 did not choose to appeal the trial court's denial of its

motion to dismiss, and did not raise any cross-assignments of error regarding mandamus

against a private entity or Union Township having an adequate remedy at law.

       {¶ 18} Having found that the trial court has the jurisdiction to determine whether Union

Township is entitled to a writ of mandamus, we reverse the decision of the trial court and

remand for further proceedings. Our decision today does not in any way speak to the merits

of Union Township's mandamus claim, and IAFF Local 3412 is free to argue that Union

Township is not entitled to mandamus. However, those are issues for the trial court to

determine, as it has the jurisdiction to do so.
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{¶ 19} Judgment reversed and cause remanded.


HENDRICKSON, P.J., and S. POWELL, J., concur.




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