COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73585 CLEVELAND BOARD OF EDUCATION : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION STATE EMPLOYMENT RELATIONS BOARD : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-318205 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: KENNETH B. STARK JON M. DiLENO BARRY Y. FREEMAN Duvin, Cahn & Hutton 20th Floor Erieview Tower 1301 East Ninth street Cleveland, Ohio 44114 MICHAEL J. ANGELO GINA A. KUHLMAN Johnson & Angelo 3600 Terminal Tower Cleveland, Ohio 44113 For Defendant-Appellee: ANDREA F. ROCCO Assistant Attorney General State Office Building - 12th Floor 615 West Superior Avenue Cleveland, Ohio 44113-1899 -2- JUDGE TERRENCE O'DONNELL: The Cleveland Board of Education appeals from an order of the common pleas court affirming a decision of the State Employment Relations Board, which found the Board of Education had committed an unfair labor practice by transferring the job responsibilities of a steamfitter foreman to a plumber foreman in violation of R.C. 4117.08. For the reasons which follow, we affirm the order of the trial court. This case arose when Pipefitters Local 120, the union which represents steamfitters and steamfitter foremen who are employed by the Cleveland Board of Education, filed a charge with SERB alleging the Board of Education committed an unfair labor practice when it unilaterally eliminated the steamfitter foreman position and transferred its oversight responsibilities to a plumber foreman. SERB made a determination of probable cause regarding the unfair labor practice and issued a complaint. The parties then, in lieu of a formal hearing before the SERB hearing officer, filed the transcript and exhibits from a prior grievance proceeding before an arbitrator, and stipulated that the hearing officer could take judicial notice of the credibility findings of the arbitrator, but that he would reserve the right to make his own credibility findings. The hearing officer thereafter issued a proposed order and SERB adopted it, finding that the Board of Education committed an unfair labor practice when it unilaterally eliminated the steamfitter foreman position and transferred those duties outside -3- the unit, and therefore ordered back pay, and ordered the Board of Education to bargain with Pipefitters Local 120 before continuing to implement the changes. The Board of Education then appealed the SERB order to common pleas court; upon review, the court determined SERB's decision to be supported by substantial evidence and thus, affirmed it. The Board of Education now appeals from that common pleas court determination and presents the following three assignments of error for our review: I. THE TRIAL COURT'S DETERMINATION THAT SERB'S DECISION WAS BASED ON SUBSTANTIAL EVIDENCE IS CLEARLY ERRONEOUS AND NOT SUPPORTED BY THE RECORD. II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO GIVE DEFERENCE TO THE ARBITRATOR'S INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT. III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO GIVE DEFERENCE TO THE ARBITRATOR'S DETERMINATION THAT THE UNIONS WAIVED THEIR RIGHT TO CHALLENGE ABOLITION OF THE STEAMFITTER FOREMAN POSITION. The Cleveland Board of Education contends that the trial court erred in affirming the SERB order because it is not supported by substantial evidence in the record, and also that the court should have given deference to the arbitrator's findings. SERB argues that its order is supported by substantial evidence in the record, and the court should not defer to the arbitrator's findings because the parties stipulated to the use of the arbitrator's decision only for the purpose of taking judicial notice of its credibility -4- findings, and that SERB has exclusive jurisdiction for deciding a claim of unfair labor practices pursuant to R.C. Chapter 4117. The issue, then, concerns whether the court abused its discretion in affirming the decision of the State Employment Relations Board which determined that Pipefitters Local 120 is the deemed certified bargaining representative of the bargaining unit of steamfitters and steamfitter foremen and that the Cleveland Board of Education committed an unfair labor practice by unilaterally transferring work outside the unit. We note at the outset, that our standard of review is different from that of a trial court examining a SERB order. In Lorain City Board of Education v. SERB (1988), 40 Ohio St.3d 257, the court explained the standard of review when an appellate court reviews the decision of an administrative agency, and stated at 260-61: In reviewing an order of an administrative agency, an appellate court's role is more limited than that of a trial court reviewing the same order. It is incumbent on the trial court to examine the evidence. Such is not the charge of the appellate court. The appellate court is to determine only if the trial court has abused its discretion. Further, the court stated in its syllabus in that case that a trial court should afford due deference to SERB's interpretations of R.C. Chapter 4117, and should affirm such a decision as long as it is supported by substantial evidence in the record. This is obviously different from a trial court's review of an arbitrator's decision interpreting terms of a collective bargaining agreement, where the court must defer to the arbitrator's decision. Such is -5- not the case, however, where a trial court or an appellate court reviews a decision of the State Employment Relations Board. In State ex rel. Brecksville Education Association v. SERB (1996), 74 Ohio St.3d 665, the court recognized at 666: * * * a deemed certified collective bargaining agent is the employee representative who bargained with the employer on behalf of public employees in a collective bargaining relationship that predated the passage of the Ohio Collective Bargaining Act. In Ohio Council 8 v. City of Cincinnati (1994), 69 Ohio St.3d 677, the court clarified that deemed certified status extends to the unit as well as the representative and stated at 682: It is clear * * * that the legislature intended that those bargaining units in existence [prior to the effective date of the act] would remain intact. (emphasis in original). Finally, in addressing the reassignment of work to persons outside a bargaining unit, the court stated in paragraph three of its syllabus in Lorain City Board of Education, supra: The reassignment of work previously performed by members of a bargaining unit to persons outside the unit is a mandatory subject for collective bargaining under R.C. 4117.08(A) and (C). In this case, the parties agree that Pipefitters Local 120 has served as the employee representative of the steamfitters and steamfitter foremen since 1913, and has been bargaining with the Cleveland Board of Education on their behalf since prior to enactment of the Ohio Collective Bargaining Act. Thus, SERB's finding that Pipefitters Local 120 is the deemed certified representative of the deemed certified unit of steamfitters and -6- steamfitter foremen is supported by substantial evidence contained in this record. Further, in this case the Cleveland Board of Education unilaterally reassigned the work previously performed by the steamfitter foreman to the plumber foreman, a person outside the unit. Hence, this reassignment is a mandatory subject for collective bargaining under R.C. 4117.08(A) and (C), and SERB's finding that the Cleveland Board of Education committed an unfair labor practice is also supported by substantial evidence in this record. Additionally,because in this case the trial court reviewed a decision of SERB interpreting R.C. chapter 4117, not the decision of the arbitrator, it had no duty to defer to the arbitrator's decision. Accordingly, the trial court did not abuse its discretion when it found the SERB decision supported by substantial evidence in the record, and the court did not err in failing to give deference to the arbitrator's decision. Therefore, the decision of the common pleas court is affirmed. Judgment affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., TIMOTHY E. McMONAGLE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .