[Cite as Fairland Assn. of Classroom Teachers v. Fairland Local Bd. of Edn., 2017-Ohio-1098.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                  LAWRENCE COUNTY

FAIRLAND ASSOCIATION OF                                 :             Case No. 15CA23
CLASSROOM TEACHERS, OEA/                                :
NEA, ET AL.,                                            :
                                                        :
        Plaintiffs-Appellants,                          :             NUNC PRO TUNC
                                                        :             DECISION AND JUDGMENT
        vs.                                             :             ENTRY1
                                                        :
FAIRLAND LOCAL SCHOOL                                   :
BOARD OF EDUCATION,                                     :
                                                        :
        Defendant-Appellee.                             :             Released: 05/01/17

                                            APPEARANCES:

Susan Hayest Kozlowski, William J. Steele, and Lora A. Molnar, Cloppert,
Latanick, Sauter & Washburn, Columbus, Ohio, for Appellants.

Susan L. Oppenheimer and Sue W. Yount, Bricker & Eckler LLP, Columbus,
Ohio, for Appellee.


McFarland, J.

        {¶1} Fairland Association of Classroom Teachers, OEA/NEA, and John

McClung (McClung), collectively the Appellants, appeal the judgment entry

entered November 9, 2015 in the Lawrence County Court of Common Pleas. In

the first assignment of error, Appellants contend the trial court erred by upholding

the magistrate’s decision that granted Appellee Fairland Local School District
1
  This Nunc Pro Tunc Decision and Judgment Entry is to correct footnote 8 in the original opinion released March
21, 2017, as footnote 8 was incomplete. The subsequent footnotes throughout this opinion are now renumbered to
reflect the addition of this footnote.
Lawrence App. No. 15CA23                                                        2

Board of Education’s motion to dismiss Appellants’ complaint for breach of

contract and declaratory judgment. The magistrate’s decision found that the trial

court did not have subject-matter jurisdiction over Appellants’ claims. In the

second assignment of error, Appellants further contend the trial court erred by

failing to consider objections to the magistrate’s decision when the decision did not

comply with Civil Rule 53. Having reviewed the record, we find no merit to

Appellants’ arguments. Accordingly, we overrule Appellants’ assignments of error

and affirm the judgment of the trial court.

                                       FACTS

      {¶2} Appellants brought suit against Appellee on March 9, 2015, alleging

the Fairland Local School District Board of Education (Board) had breached its

Master Agreement (Agreement) and sought a declaratory judgment declaring the

rights of McClung under the agreement. McClung was employed as a teacher and

athletic director at Fairland High School during 2013-2014. The agreement

governing the parties was in effect from July 1, 2013 through June 30, 2015.

      {¶3} Appellants alleged in the complaint that McClung, who was issued a

supplemental contract for his position as athletic director during 2013 and 2014,

was not timely notified of the Board’s decision to non-renew his supplemental

contract. Article 32, Section 32.1 of the agreement provides:

      “All bargaining unit members granted additional compensation for
      supplemental duties shall be issued a written contract for such duties.
Lawrence App. No. 15CA23                                                       3

      Such supplemental contracts shall be issued in addition to their regular
      contracts. The Board must notify bargaining unit members to April
      30th in the year the supplemental contract is to expire of its intent to
      non-renew such supplemental contract.”

The provision required that McClung be notified by April 30, 2014. McClung was

notified of the nonrenewal on or about May 5, 2014 by a hand-delivered letter from

the board treasurer, Loretta Wirzfield, dated May 5, 2014.

      {¶4} McClung timely filed a grievance with Appellee. A written decision

denying the grievance was prepared and delivered on or about June 13, 2014. In

the complaint, Appellants further allege that Appellee breached the agreement by

failing to follow Article 4, Section 4.05(3)(d), Grievance Procedure-Formal, Level

III, Local Board Hearing, which provides as follows:

      “Within five (5) days of the meeting, the President of the Local Board
      shall provide the aggrieved with a written response, stating the
      position of the Board and suggestion for resolution of the grievance.”

The grievance denial decision was provided to McClung, again, by the treasurer

and not by the board president.

      {¶5} Appellants demanded a finding that Appellee was in breach of the

agreement as well as an order that McClung be awarded the supplemental contract

and be provided with back pay and benefits as necessary to make him whole.

Appellants further demanded a declaration that Appellee must abide by the

referenced articles of the agreement.
Lawrence App. No. 15CA23                                                        4

      {¶6} Appellee filed a motion to dismiss the complaint, pursuant to Civ.R.

12(B)(1), for lack of subject-matter jurisdiction. Appellants filed a response to the

motion to dismiss and Appellee filed a reply memorandum. On June 14, 2015, the

magistrate of the Lawrence County Common Pleas Court granted Appellee’s

motion to dismiss and entered judgment in favor of Appellee.

      {¶7} On July 8, 2015, Appellants filed objections to the magistrate’s

decision. The matter came on for a hearing on the objections on October 28, 2015.

On November 9, 2015, the trial court found that the objections were untimely and

further that Appellants had failed to request findings of fact and conclusions of

law. As such, the trial court upheld the magistrate’s decision to dismiss the

complaint for lack of subject-matter jurisdiction and entered judgment in favor of

the Appellee. This timely appeal followed.

                           ASSIGNMENTS OF ERROR

      “I. THE LOWER COURT ERRED AS A MATTER OF LAW AND
      COMMITTED PLAIN ERROR WHEN IT DETERMINED IT DID
      NOT HAVE SUBJECT-MATTER JURISDICTION OVER
      PLAINTIFFS-APPELLANTS’ BREACH OF CONTRACT AND
      DECLARATORY JUDGMENT CLAIM.

      II. THE LOWER COURT ERRED AS A MATTER OF LAW BY
      FAILING TO CONSIDER OBJECTIONS TO THE
      MAGISTRATE’S DECISION WHEN THE DECISION DID NOT
      COMPLY WITH OHIO RULE OF CIVIL PROCEDURE 53.”

                          A. STANDARD OF REVIEW

      {¶8} Because Appellants’ first and second assignments of error are
Lawrence App. No. 15CA23                                                         5

interrelated, we consider them jointly. Subject-matter jurisdiction is defined as a

court's power to hear and decide cases. Robinette v. Bryant, 4th Dist. Lawrence No.

12CA20, 2013-Ohio-2889, ¶10, citing Enz v. Lewis, 4th Dist. Scioto No.

10CA3357, 2011-Ohio-1229, ¶ 10. The legal standard for deciding a motion to

dismiss for lack of subject-matter jurisdiction is “whether any cause of action

cognizable by the forum has been raised in the complaints.” Ohio Multi-Use Trails

Assn. v. Vinton Cty. Commrs., 182 Ohio App.3d 32, 2009-Ohio-2061, 911 N.E.2d

350 (4th Dist.), ¶6, quoting Roll v. Edwards, 156 Ohio App.3d 227, 2004-Ohio-

767, 805 N.E.2d 162, ¶ 15. A motion to dismiss for lack of subject-matter

jurisdiction raises a question of law, which we review de novo. Robinette, supra.

      {¶9} We begin, however, with a brief discussion of Appellants’ second

assignment of error, wherein it is argued that the trial court erred by failing to

consider Appellants’ objections to the magistrate’s decision when the decision did

not comply with Ohio Civ.R. 53. Appellants acknowledge they did not timely file

any objections to the magistrate's decision. Civ.R. 53(D)(3)(b)(iv) provides that “a

party shall not assign as error on appeal the court's adoption of any factual finding

or legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Civ. R. 53(D)(3)(a)(ii), unless the party has objected to

that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Picciano v. Lowers,

4th Dist. Washington No. 08CA38, 2009-Ohio-3780, at ¶15, quoting Hose v.
Lawrence App. No. 15CA23                                                        6

Gatliff, 176 Ohio App.3d 356, 2008-Ohio-2430, 891 N.E.2d 1263, at ¶ 14.

Appellants point out the magistrate's decision did not advise the parties, in

conspicuous language, of this process. See Civ.R. 53(D)(3)(a)(iii); Rocky v.

Rockey, 4th Dist. Highland No. 08CA4, 2008-Ohio-6525, at ¶ 9. Therefore, they

argue, the appeal is not precluded. Appellee maintains that Appellants waived the

right to appeal by the untimeliness of the objections and furthermore, that the case

does not present a question of plain error.

      {¶10} Notwithstanding, subject-matter jurisdiction goes to the power of the

court to adjudicate the merits of a case; it can never be waived and may be

challenged at any time. In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 77, citing

United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781 (2002); State ex rel.

Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). Because of

this principle, the parties’ arguments under the second assignment of error are

rendered moot and we decline to consider them. We proceed to consider whether

the finding that the trial court did not have subject-matter jurisdiction was correct

in the case herein.

                              B. LEGAL ANALYSIS

      {¶11} Appellants’ complaint for breach of contract and declaratory judgment

alleges two breaches of the terms of the agreement governing the parties.
Lawrence App. No. 15CA23                                                       7

R.C. 4117.09(B)(1) provides that a party to a collective bargaining agreement

“may bring suit for violation of agreements * * * in the court of common pleas of

any county wherein a party resides or transacts business.” Appellants also point

out the agreement between the parties does not provide for binding arbitration and,

as such, the complaint which presents solely contractual claims was properly filed

in the common pleas court. However, Appellee argues that the complaint does not

assert any claims independent of the collective bargaining agreement, is dependent

on collective bargaining rights, and that Ohio law clearly provides that the State

Employee Relations Board (SERB) has exclusive jurisdiction over “claims that

arise from or are dependent upon public employment collective bargaining rights

created by R.C. Chapter 4117.” State ex rel. City of Cleveland v. Sutula, 127 Ohio

St.3d 131, 2010-Ohio-5039, 937 N.E.2d 88, ¶ 21.

      {¶12} SERB is a state agency created by R.C. Chapter 4117. R.C.

4117.02(A); State ex rel. Ohio Civ. Servc. Emp. Assn. v. State, 2016-Ohio-478,

¶ 51; State ex rel. Brecksville Edn. Assn., OEA/NEA v. State Emp. Relations Bd.,

74 Ohio St.3d 665, 666, 660 N.E.2d 1199 (1996). As a state agency and a creature

of statute, SERB is limited to the powers and jurisdiction conferred on it by statute.

See Penn Cent. Transp. Co. v. Pub. Util. Comm., 35 Ohio St.2d 97, 298 N.E.2d

587 (1973), paragraph one of the syllabus; Morgan Cty. Budget Comm. v. Bd. of

Tax Appeals, 175 Ohio St. 225, 193 N.E.2d 145 (1963), paragraph three of the
Lawrence App. No. 15CA23                                                       8

syllabus. State ex rel. OCSEA, supra, at ¶ 52. When the General Assembly intends

to vest an administrative agency with exclusive jurisdiction, it does so by

appropriate statutory language. State ex rel. Banc One Corp. v. Walker, 86 Ohio

St.3d 169, 171-172, 712 N.E.2d 742 (1999).

      {¶13} Consistent with the general rule that agencies created by statute have

such jurisdiction as the General Assembly confers, SERB “has exclusive

jurisdiction to decide matters committed to it pursuant to R.C. Chapter 4117.” State

ex rel. OCSEA, supra, at ¶ 53; quoting Franklin Cty. Law Enforcement Assn., 59

Ohio St.3d 167, 572 N.E.2d 87, at paragraph one of the syllabus. As to matters

involving claims that “arise from or depend on the collective bargaining rights

created by R.C. Chapter 4117,” that chapter's remedies are exclusive. Id. at

paragraph two of the syllabus. Sutula, supra, at ¶ 15. “Exclusive jurisdiction to

resolve unfair labor practice charges is vested in SERB 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. OCSEA, supra, at ¶ 93, quoting Ohio

Dept. of Mental Health v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, 786 N.E.2d

49, ¶ 23; E. Cleveland v. E. Cleveland Firefighters Local 500, I.A.F.F., 70 Ohio

St.3d 125, 127-128, 637 N.E.2d 878 (1994). Therefore, “if a party asserts claims
Lawrence App. No. 15CA23                                                        9

that arise from or depend on the collective bargaining rights created by R.C.

Chapter 4117, the remedies provided in that chapter are exclusive.” Franklin Cty.

Law Enforcement Assn., 59 Ohio St.3d 167, 572 N.E.2d 87 (1991), at paragraph

two of the syllabus.

      {¶14} In Franklin Cty. Law Enforcement Assn., an association and certain

employees filed a complaint alleging three claims that asserted collective

bargaining rights created by R.C. Chapter 4117. Id. at 171. The first claim

depended on the union’s duty under R.C. 4117.11(B)(6) to fairly represent all

employees in the bargaining unit. Id. The second claim depended on the right to

vote on union representation established in R.C. 4117.07. Id. The third claim

expressly relied on R.C. 4117.19(C)(4). Id. The Supreme Court of Ohio analyzed

the union members’ contractual rights, stating:

      “Although union members can have common-law contractual rights
      that exist independently of R.C. Chapter 4117, we note that plaintiffs
      did not specify the FOP constitutional provision that was allegedly
      violated. It appears that they referred to the FOP constitution only to
      the extent that they contended R.C. 4117.19(C)(4) imposed a duty on
      the FOP to provide in its constitution for ‘the right of individual
      members to participate in the affairs of the organization * * *.’ In
      other words, as pleaded, plaintiffs’ claim under the FOP constitution
      was inextricably intertwined with rights purportedly created and
      imposed by R.C. Chapter 4117. Because plaintiffs’ claims were
      dependent on the framework established in R.C. Chapter 4117,
      plaintiffs were limited to the remedies and procedures provided in that
      chapter and the common pleas court was without jurisdiction.” Id. at
      171.
Lawrence App. No. 15CA23                                                           10

      {¶15} Accordingly, the Supreme Court held that the trial court properly

dismissed the plaintiffs’ complaint for lack of jurisdiction because the plaintiffs’

complaint asserted matters falling wholly within that exclusive purview of R.C.

Chapter 4117. Id. at 172.

      {¶16} Several other Ohio Supreme Court and appellate court decisions

provide guidance. In State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2010-

Ohio-5039, 937 N.E.2d 88, a union certified by SERB as the exclusive

representative of a bargaining unit composed of a group of city employees filed a

complaint for injunctive and declaratory relief regarding the city of Cleveland's

duty to perform in accordance with its prestrike settlement offer, following two

years of failed negotiations pursuant to R.C. 4117.14. Id. at 55. In response, the

city filed a complaint for a writ of prohibition in the Eighth District Court of

Appeals. The controversy reached the Supreme Court of Ohio on a direct appeal

from the Eighth District's dismissal of the prohibition action.

       {¶17} The central question in Sutula was whether the trial court patently

and unambiguously lacked jurisdiction over the union's action for injunctive and

declaratory relief. Id. at ¶ 13-14. The Supreme Court of Ohio began by setting

forth the dispositive test, “whether the claims ‘arise from or depend on the

collective bargaining rights created by R.C. Chapter 4117.’ ” Sutula at 21, quoting

Franklin Cty. Law Enforcement Assn., 59 Ohio St.3d 167, 572 N.E.2d 87, at
Lawrence App. No. 15CA23                                                                                      11

paragraph two of the syllabus; State ex rel. Fraternal Order of Police, Ohio Labor

Council, Inc. v. Franklin Cty. Court of Common Pleas, 76 Ohio St.3d 287, 289,

667 N.E.2d 929 (1996). The Sutula court went on to state: “Therefore, ‘SERB has

exclusive jurisdiction over matters within R.C. Chapter 4117 in its entirety, not

simply over unfair labor practices claims.’ ” Id. quoting Assn. of Cleveland Fire

Fighters, Local 93 of the Internatl. Assn. of Fire Fighters v. Cleveland, 156 Ohio

App.3d 368, 2004-Ohio-994, 806 N.E.2d 170, ¶ 12; Carter v. Trotwood–Madison

City Bd. of Edn., 181 Ohio App.3d 764, 2009-Ohio-1769, 910 N.E.2d 1088, ¶ 64.

         {¶18} The Supreme Court also pointed out the union's common pleas court

case alleged conduct that constituted unfair labor practices under R.C.

4117.11(A)(1)2 and (5).3 Sutula at ¶ 21. The Court noted that if—as the union

alleged—Cleveland had failed to comply with R.C. Chapter 4117 by ignoring a

valid collective-bargaining agreement, the city would be interfering with its

employees' statutory collective-bargaining rights and would be refusing to bargain

collectively. The record showed the union had previously filed unfair-labor-

practice charges against Cleveland with SERB in 2004 under comparable

circumstances.




2
  (Prohibiting a public employer from interfering with, restraining, or coercing employees in the exercise of rights
guaranteed in R.C. Chapter 4117).
3
  (Prohibiting a public employer from refusing to bargain collectively with a certified, exclusive bargaining
representative of its employees).
Lawrence App. No. 15CA23                                                         12

      {¶19} The Supreme Court of Ohio also noted that the union's claims in

Sutula were premised on its allegation that there was a collective-bargaining

agreement but that the city had failed to comply with R.C. Chapter 4117 by failing

to execute and implement it. Sutula at ¶ 22. The dispositive issue, again, was

whether the union's claims arose from or were dependent upon R.C. Chapter 4117

collective-bargaining rights.

      {¶20} Lastly, the Sutula opinion held the common pleas court's basic

statutory jurisdiction over actions for declaratory judgment, specific performance,

injunction, and damages did not vest that court with jurisdiction over the union's

R.C. Chapter 4117-related claims. Id. at 23. SERB's exclusive jurisdiction over the

union's claims prevented judicial intervention before SERB was given the

opportunity to act. See Consolo v. Cleveland, 103 Ohio St.3d 362, 2004-Ohio-

5389, 815 N.E.2d 1114, ¶ 12 (questions committed to SERB pursuant to R.C.

Chapter 4117 must first be addressed by SERB); see also State ex rel. Ohio

Democratic Party v. Blackwell, 111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d

1188, ¶ 37, quoting Fletcher v. Coney Island, Inc., 165 Ohio St. 150, 155, 134

N.E.2d 371(1956). “[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.” Sutula, supra, at ¶ 23, quoting Fraternal
Lawrence App. No. 15CA23                                                                                   13

Order of Police, 76 Ohio St.3d at 290, 667 N.E.2d 929, citing State ex rel.

Cleveland City School Dist. Bd. of Edn. v. Pokorny, 105 Ohio App.3d 108, 110,

663 N.E.2d 719 (1995). The Sutula court opined that the union's attempt to recast

its common pleas court case as a simple contract action was unavailing. The High

Court concluded that the trial court lacked jurisdiction because the union claimed

that the city failed to abide by an agreement reached through collective-bargaining

negotiations under R.C. Chapter 4117. Sutula at ¶ 17, 25.4

           {¶21} More recently, in State ex rel. OCSEA, supra, a union representing

Ohio’s public employees filed an action against multiple governmental defendants.

The union also asserted an alternative declaratory judgment claim to determine

whether employees at a correctional institution were public employees and entitled

to corresponding public-employee benefits. The dispositive question in OCSEA

was whether the claim that individuals employed at North Central Correctional

Complex were “public employees” under R.C. 4117.01(C) arose from or depended

upon on collective-bargaining rights created by R.C. Chapter 4117. Id. at 58. In

OCSEA, the state respondents argued that SERB had exclusive jurisdiction over

R.C. Chapter 4117 matters, and pointed to a single sentence in Sutula, which stated

that SERB's jurisdiction goes beyond unfair labor practices and includes “ ‘matters

within R.C. Chapter 4117 in its entirety.’ ” OCSAEA at ¶ 57, quoting Sutula at


4
    The Sutula court also recognized its holding was consistent with Franklin Cty. Law Enforcement Assn.
Lawrence App. No. 15CA23                                                                                    14

¶ 20, quoting Assn. of Cleveland Fire Fighters, 156 Ohio App.3d 368, 2004-Ohio-

994, 806 N.E.2d 170, at ¶ 12.5

         {¶22} However, OCSEA emphasized that the Sutula decision does not

expand the scope of SERB's jurisdiction beyond the matters conferred on it by R.C.

Chapter 4117. OCSEA at ¶ 57. The Court in OCSEA concluded at ¶ 63:

         “To be clear, we do not suggest that SERB has exclusive, original
         jurisdiction over every claim touching upon R.C. Chapter 4117. Nor
         do we undertake to define the circumstances in which a common pleas
         court might have jurisdiction over claims touching upon R.C. Chapter
         4117. Those questions are beyond the scope of OCSEA's claim, as
         pled in its amended complaint, and they simply are not before us at
         this time. We merely reiterate that “if a party asserts claims that arise
         from or depend on the collective bargaining rights created by R.C.
         Chapter 4117, the remedies provided in that chapter are exclusive.”
         Franklin Cty. Law Enforcement Assn. at paragraph two of the
         syllabus. Applying that rule here, we conclude that jurisdiction over
         OCSEA's claim regarding R.C. 4117.01(C) lies exclusively with
         SERB.”

         {¶23} In this case, both parties have directed our attention to Carter v.

Trotwood–Madison City Bd. of Edn., 181 Ohio App. 3d 764, 2009-Ohio-1769, 910

N.E.2d 1088 (2nd Dist.). In Carter, retired teachers Carter and Toney sued the city

education board for breach of contract, challenging denial of their requests for

retirement incentives pursuant to collective bargaining agreement (CBA). The

5
  The OCSEA opinion commented at ¶ 57 that in Assn. of Cleveland Fire Fighters, the Eighth District extrapolated
the above view from Franklin Cty. Law Enforcement Assn., at paragraph one of the syllabus, which states that
SERB “has exclusive jurisdiction to decide matters committed to it pursuant to R.C. Chapter 4117.” (Emphasis
added.) The claim in Assn. of Cleveland Fire Fighters arose directly out of rights created by R.C. Chapter 4117; it
involved an allegation that the city had unfairly eliminated assistant chiefs from the bargaining unit under R.C.
4117.06. Assn. of Cleveland Fire Fighters at ¶ 14 (“the improper removal of employees from a bargaining unit is
enforceable against the employer as an unfair labor practice under R.C. 4117.11(A)(8) and 4117.11(B)(6)”).
Lawrence App. No. 15CA23                                                                                     15

Court of Common Pleas granted board's motion to dismiss. The retired teachers

appealed, asserting various assignments of error including:

         “Under Ohio law, are the breach of contract claims preempted by R.C.
         Chapter 4117 when Carter and Toney did not satisfy the statutory
         definition of ‘public employees’ at the time that their cause of action
         accrued?” Id. at 49.

         {¶24} Carter and Toney argued that they did not satisfy the statutory

definition of “public employee” when their causes of action accrued. Accordingly,

they contended that the trial court erred in concluding that R.C. Chapter 4117

preempted their claims. The court of appeals affirmed the trial court’s decision,

holding that SERB had exclusive jurisdiction over the issue of whether the board

committed unfair labor practice by unilaterally refusing to comply with CBA. The

court held: “SERB [also] has exclusive jurisdiction over the issue of whether the

board may have committed an unfair labor practice by unilaterally refusing to

comply with the CBA.” Id. at 61.

         {¶25} The Carter opinion went on to recognize that in E. Cleveland v. E.

Cleveland Firefighters Local 500, I.A.F.F., 70 Ohio St.3d 125, 637 N.E.2d 878

(1994), the Ohio Supreme Court cautioned against applying the concept of an

“arguable” unfair labor practice too broadly. Id. at 127-128, 637 N.E.2d 878.

Carter at ¶ 62.6 Furthermore, the Carter opinion observed that the decision in E.

6
  In E. Cleveland Firefighters, supra, the court was concerned about possible evisceration of arbitration
requirements under R.C. 4117.10(A), “since almost any conduct alleged in a grievance raised by aggrieved parties
could arguably be categorized as an unfair labor practice.” Id. at 128, 637 N.E.2d 878. The court stressed that “[t]he
Lawrence App. No. 15CA23                                                                                     16

Cleveland Firefighters Local 500 “must be considered and placed in perspective in

light of its particular facts and in light of other cases concerning the scope of

SERB's jurisdiction. Carter, at ¶ 64.

         {¶26} The Carter court reasoned that “[t]he rights being asserted would not

exist without the CBA and R.C. Chapter 4117.” The Carter court further

concluded that to find that R.C. Chapter 4117 did not apply would contradict the

wording and policy expressed in R.C. Chapter 4117. For example, R.C.

4117.08(A) states: “All matters pertaining to wages, hours, or terms and other

conditions of employment and the continuation, modification, or deletion of an

existing provision of a collective bargaining agreement are subject to collective

bargaining between the public employer and the exclusive representative, except as

otherwise specified in this section and division (E) of section 4117.03 of the

Revised Code.” Carter at ¶ 66. See also, e.g., State ex rel. Fraternal Order of

Police, Ohio Labor Council, Inc. v. Franklin Cty. Court of Common Pleas, 76

Ohio St.3d 287, 290, 667 N.E.2d 929 (1996).7 Carter ultimately held that because

the trial court correctly found that SERB had exclusive jurisdiction in the matter,




General Assembly's vesting of SERB with exclusive jurisdiction to determine unfair labor practices defined in R.C.
4117.11 was never meant to foreclose parties to a collective-bargaining agreement from settling differences in
interpreting provisions of their agreement through the process of binding arbitration * * *.” Id.
7
  (“[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”).
Lawrence App. No. 15CA23                                                        17

the judgment of the trial court dismissing this cause of action for lack of subject-

matter jurisdiction would be affirmed. Id. at ¶ 72.

      {¶27} Considering the above case law, we find that SERB had exclusive

jurisdiction over the claims raised in Appellants’ complaint. We find the reasoning

set forth by the Second District in Carter, although not controlling, to be

persuasive. It is true that the OCSEA decision emphasized at ¶ 54 that the

principles announced in Franklin Cty. Law Enforcement Assn. are “not so broad as

to place all claims that touch on R.C. Chapter 4117 within SERB's exclusive

jurisdiction,” and OCSEA acknowledged Franklin Cty.’s statement that “a plaintiff

may raise in the common pleas courts rights that exist independently of R.C.

Chapter 4117, ‘even though they may touch on the collective bargaining

relationships.’ ” Id. at 172, 572 N.E.2d 87. See also E. Cleveland v. E. Cleveland

Firefighters Local 500, I.A.F.F., 70 Ohio St.3d 125, 128-129, 637 N.E.2d 878

(1994). And, while we recognize that other districts have acknowledged a

common pleas court’s jurisdiction over claims regarding breach of a collective

bargaining agreement, these cases are easily distinguishable from the facts

presented herein.

      {¶28} For example, in E. Cleveland Firefighters, the city filed an application

with the court of common pleas to vacate or modify the arbitration award, but the

trial court denied the application and upheld the arbitrator's decision. In the E.
Lawrence App. No. 15CA23                                                        18

Cleveland decision, the court at the appellate level found that the trial court and

thus, the arbitrator, lacked subject-matter jurisdiction to settle the grievance. The

Eighth District Court of Appeals relied on several cases, Gunn v. Euclid City

School Dist. Bd. of Edn., 51 Ohio App.3d 41, 554 N.E.2d 130 (8th Dist. 1988), and

State ex rel. Ramsdell v. Washington Local School Bd., 52 Ohio App.3d 4, 556

N.E.2d 197 (1982), for the proposition that SERB has exclusive jurisdiction to hear

and decide not only any unfair labor practice charge brought before it, but any

conduct or grievance which arguably constitutes an unfair labor practice.

      {¶29} In E. Cleveland, the Supreme Court of Ohio, citing Franklin Cty. Law

Enforcement Assn, supra, recognized SERB’s exclusive jurisdiction to determine

the validity, or lack thereof, of unfair labor practices. However, the High Court

pointed out that to find only SERB has jurisdiction to hear or determine anything

that “arguably” constitutes an unfair labor practice is neither a complete nor totally

correct statement of the law set forth in R.C. Chapter 4117 nor the decisions of this

court. The Supreme Court emphasized that none of the cases relied on by the city

or court of appeals involved an arbitration proceeding undertaken pursuant to the

terms of a valid collective-bargaining agreement entered into by the parties. The

Supreme Court cited the clear language of former R.C. 4117.10(A):

      “An agreement between a public employer and an exclusive
      representative entered into pursuant to Chapter 4117 of the Revised
      Code governs the wages, hours, and terms and conditions of public
      employment covered by the agreement. If the agreement provides for
Lawrence App. No. 15CA23                                                        19

      a final and binding arbitration of grievances, public employers,
      employees, and employee organizations are subject solely to that
      grievance procedure * * *.”

      {¶30} The Supreme Court explained:

      “Carrying the appellate court's decision to its logical extreme, every
      grievance filed by an aggrieved party to a collective bargaining
      agreement could, as mentioned before, arguably be characterized as
      an unfair labor practice. Under such a standard, SERB would be
      forced to decide every grievance arising out of disputes related to the
      interpretation of terms to a collective bargaining agreement, no matter
      how innocuous they may be, and notwithstanding any binding
      arbitration process established in the agreement entered into by the
      parties thereto. (Emphasis added.) Since the court of appeals
      misconstrued the law in this context, its decision cannot stand.”

Our case is easily distinguished from the facts presented in E. Cleveland

Firefighters, where it appears appellants attempted to circumvent a binding

arbitration process made part of the collective bargaining agreement.

      {¶31} Likewise, in Fischer v. Kent State Univ., 2015-Ohio-3569, 41 N.E.3d

840 (10th Dist.), ¶ 20, the language that “Additionally, pursuant to R.C.

4117.09(B)(1), jurisdiction over suits alleging violations of collective bargaining

agreements lie with the courts of common pleas alone” stemmed from the appellate

court’s ruling that the Ohio Court of Claims lacked jurisdiction over Fischer’s

statutory claims pursuant to R.C. 4117. Fischer, a university professor subject to a

collective-bargaining agreement, filed multiple unsuccessful lawsuits against Kent

State in the Portage County Common Pleas Court, the Ohio Court of Claims, and

the United States District Court. The Court of Claims had granted the university’s
Lawrence App. No. 15CA23                                                                                   20

motion for summary judgment. Regarding the jurisdictional question, the Tenth

District’s precise holding was:

        “Construing the evidence most strongly in favor of Fischer, his claims
        are predicated on allegedly wrongful conduct that is directly related to
        the terms and conditions of his employment, and such claims are
        dependent on an analysis or interpretation of the CBA. Accordingly,
        those claims are preempted by the CBA, and the trial court was
        without jurisdiction. Even if Fischer had asserted rights that were
        independent of R.C. 4117, jurisdiction would not be proper in the
        Court of Claims.”

        {¶32} Our case is also distinguishable from Fischer in that the appellate

court in Fischer was not called to rule upon the validity of Fischer’s claims, nor

does the case herein present the situation in which Appellants have filed in the

Ohio Court of Claims. And, State ex rel. Union Twp. v. Union Twp. Professional

Firefighters, IAFF Loc. 3412, 12th Dist. Clermont No. CA2012-09-067, 2013-

Ohio-1611, also cited as supporting the subject-matter jurisdiction of the common

pleas court, is inapposite. The only issue before the trial court was whether Union

Township was entitled to mandamus to compel IAFF Local 3412 to sign a

collective-bargaining agreement as a result of the conciliation process. There,

pursuant to R.C. 4117.14(F)8, Union Township brought suit in the court of

common pleas for mandamus for the enforcement of the conciliator's award.9

8
  “Nothing in this section shall be construed to prohibit a party from seeking enforcement of a collective bargaining
agreement or a conciliator's award.”
9
  More recently, in Northwest State Comm. v. Northwest State Comm. Edn. Assn. OEA/NEA, 3rd Dist. Henry No. 7-
16-11, 2016-Ohio-8393, the appellate court also held that SERB did not have exclusive jurisdiction in the matter.
However, the Northwest case involved an appeal to the trial court of an arbitration award, decided pursuant to the
arbitration provision of the parties’ collective-bargaining agreement.
Lawrence App. No. 15CA23                                                         21

      {¶33} The reasoning set forth in Carter is similar to that set forth by the

appellate court in Bringheli v. Parma City School Dist. Bd. of Edn., 8th Dist.

Cuyahoga No. 91064, 2009-Ohio- 3077. In Bringheli, the appellants, permanent

part-time school bus drivers, appealed, challenging the trial court's decision to

dismiss their complaint against the appellee school board. Both school bus drivers

were subject to a negotiated agreement between the Parma City School District and

the Ohio Association of Public School Employees.

      {¶34} In 2006, the bus drivers traveled to Las Vegas, Nevada, for a bicycle

conference but reported to their employer that some or all of their time off was for

sick leave. Both drivers were criminally charged with theft in office. Ultimately,

both pleaded guilty and no contest to falsification of records charges. One

appellant was terminated and the other resigned.

      {¶35} The drivers filed a complaint against the school board for abuse of

process, negligent supervision, invasion of privacy, intentional tort, and a Public

Records Act violation. The school board filed a motion to dismiss arguing lack of

subject-matter jurisdiction, failure to state a claim upon which relief could be

granted, and governmental immunity. Even though the bus drivers opposed the

appellee's motion, in their brief in opposition the drivers clearly stated several

times that the facts of their complaint revolved around the issues of “wages, hours,

terms and conditions of employment.” The appellants made the additional
Lawrence App. No. 15CA23                                                        22

argument that they had previously filed a grievance under the CBA, but withdrew

it after their union withdrew its representation. The trial court granted the

appellee's motion on the grounds that the court lacked subject-matter jurisdiction.

      {¶36} In the sole assignment of error, the bus drivers argued that the causes

of action in their complaint against the school board were not governed by the

CBA; therefore, the trial court should not have granted the appellee's motion to

dismiss for lack of subject-matter jurisdiction. The appellate court disagreed,

holding:

      “The CBA by which these parties are governed sets forth the policies
      and procedures for the regulation of absences and pay as well as for
      discipline. Subsections 9.1 through 9.6 of the CBA cover sick leave
      generally, acceptable use of sick leave, documentation of sick leave,
      and accumulation of sick leave; subsection 6.9 covers disciplinary
      procedures. Id. at 14. Prior to filing the underlying action in the
      common pleas court, appellants filed a grievance, and the union
      agreed to represent them. Once the union learned that appellants had
      entered pleas to falsification of records * * * the union withdrew its
      representation. Appellants then withdrew their grievance. By filing a
      grievance originally, however, they acknowledged that the terms of
      the CBA govern their issues with appellee regarding their sick leave
      pay and terminations. Id. at 15.”

      {¶37} While it is true the agreement herein does not provide for final and

binding arbitration, and Provision 13 of the agreement contains language which

does not limit the ability of the association members to raise a claim of breach of

the agreement under R.C. 4117.09(B)(1), the dispositive issue remains whether the
Lawrence App. No. 15CA23                                                        23

Appellants’ claims arise from or are dependent upon the R.C. Chapter 4117

collective-bargaining rights. The alleged breaches are:

      1) Failure to notify McClung of the non-renewal of his supplemental
      contract by April 30th, as required by Art. 32, Sec. 32.1 of the
      agreement; and,

      2) Provision of notice to McClung of the grievance decision by the
      board treasurer and not by board president, as required by Art. 4, Sec.
      405(3)(d) of the agreement.

      {¶38} Here, as in Bringheli, the parties are governed by the policies

and procedures set forth in the agreement. Article 32 covers supplemental

contracts and the procedure for notification of non-renewal. Article 4 covers

procedures for the grievance process, including notification of the grievance

decision. All matters pertaining to wages, hours, or terms and other

conditions of employment are subject to collective bargaining. R.C.

4117.08(A). The provisions of the agreement at issue between the parties

here concern notification, terms of McClung’s employment and right to the

grievance process. These terms of employment were collectively bargained

for and made part of the agreement.

      {¶39} Furthermore, McClung sought resolution through the grievance

process, thereby acknowledging the terms of the agreement governed the

issues with Appellee. As in Bringheli, we do not find merely because the

Appellants filed a civil complaint in the common pleas court that they have
Lawrence App. No. 15CA23                                                        24

somehow taken the matter outside the scope of the agreement. And,

Appellants’ allegations that Appellee has failed to comply with the notice

provisions of the agreement may be construed, as in Carter, as an unfair

labor practice. As previously cited, SERB has exclusive jurisdiction over

whether a party has committed an unfair labor practice by unilateral failure

to comply. Carter, supra, at ¶ 61. Accordingly, we find jurisdiction of

Appellants’ claims lies exclusively with SERB.

      {¶40} For the foregoing reasons, we find the trial court did not err by

upholding the magistrate’s decision which granted Appellee’s motion to

dismiss for lack of subject-matter jurisdiction. As such, we overrule both of

the assignments of error and affirm the judgment of the trial court.

                                              JUDGMENT AFFIRMED.
Lawrence App. No. 15CA23                                                       25

                              JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellants any costs herein.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date
of this entry.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents.

                                       For the Court,


                                BY: _______________________________
                                    Matthew W. McFarland, Judge




                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
