Association of Cleveland Fire Fighters, Local 93 v. City of Cleveland

Anne L. Kilbane, Presiding Judge. ¶ 1 This is an appeal and cross-appeal from a judgment entered by Judge Thomas J. Pokorny after a $560,443.02 jury verdict in favor of the appellees and *370 cross-appellants Association of Cleveland Fire Fighters, Local 93 of the International Association Fire Fighters (“union”), Eugene J. Carroll, Michael A. Darnell, David McNeilly, Robert S. Schindler, and Paul A. Stubbs 1 (all plaintiffs collectively, “Asst. Chiefs”), and against the appellant/cross appellee, city of Cleveland. The award reflected back wages owed to assistant fire chiefs who had been improperly excluded from the union’s bargaining unit. The city claims, among other things, that the judge had no subject-matter jurisdiction because the Asst. Chiefs’ claim concerned an issue within the exclusive jurisdiction of the State Employment Relations Board (“SERB”). In its cross-appeal, the Asst. Chiefs claim that the judge erred in failing to amend the current collective bargaining agreement (“CBA”) to include a 32 percent differential between those holding the rank of assistant chief and those holding the next lower rank, battalion chief, and in denying their request for attorney fees. We reverse the judgment and dismiss the complaint. ¶ 2 The union represented the assistant chiefs as part of the CBA bargaining unit until 1987, when an arbitrator ruled that officers of that rank should be excluded. Thereafter, the assistant chiefs were excluded from the CBA with the city from 1989 to 1998. 2 In 1996, however, SERB issued a ruling stating that it would not recognize changes to the bargaining unit that had not been accomplished through SERB’S procedures. In 1998, the union filed a “Petition for Clarification of Bargaining Unit” and, on October 13, 1998, SERB issued a ruling that restored the assistant chiefs to the bargaining unit. In that action, however, the union did not seek back wages or the restoration of a wage differential. ¶ 3 In August 1999, the union and five individual assistant chiefs filed a complaint, and then an amended complaint, for declaratory judgment. In count one, they alleged that the wage differential between assistant chiefs and battalion chiefs had fallen to 12 percent after the assistant chiefs’ wrongful removal from the bargaining unit and sought an order for back wages to restore the 32 percent differential for the time period in which the assistant chiefs had been excluded from the bargaining unit. 3 *371 {¶ 4} Count two was brought as a taxpayer’s action 4 with the same allegations and relief sought as count one, but it also sought attorney fees under R.C. 733.61. The complaint also contained a general plea for “any and all other relief that this Court is empowered to grant * * *." ¶ 5 The city moved to dismiss the complaint and argued that the common pleas judge lacked subject-matter jurisdiction because the action was under SERB’S exclusive jurisdiction. It also contended that the claim for back wages was barred by the doctrine of res judicata because it should have been raised in the initial SERB action to reinstate the assistant chiefs to the bargaining unit. The judge denied the motion and later also denied both the city’s motion for summary judgment and its renewed motion for summary judgment. The case went to trial, and the jury returned a verdict awarding the Asst. Chiefs back wages of $560,443.02. ¶ 6 The request for restoration of the wage differential in the CBA then in effect was not submitted to the jury but was sought through a post-trial motion for directed verdict. 5 The union requested that the judge order that the current CBA be amended to include the 32 percent wage differential between assistant chiefs and battalion chiefs. The judge denied the motion, holding that he had no authority to order such an amendment. He also denied their post-trial motion for attorney fees because, among other things, he found that the action did not provide a substantial benefit to the public. ¶ 7 The city asserts six assignments of error in its appeal of the jury verdict, and the Asst. Chiefs assert four assignments concerning the denial of their post-trial motions, all of which are included in an appendix to this opinion. We find it necessary, however, to address only the issues of subject-matter jurisdiction and standing raised in the city’s first and second assignments of error. SUBJECT-MATTER JURISDICTION ¶ 8 The city contends that the judge had no subject-matter jurisdiction over claims alleging unfair labor practices under R.C. 4117.11, because such claims are within SERB’S exclusive jurisdiction. 6 The Asst. Chiefs counter that their claims are not expressly covered by the provisions of R.C. 4117.11 and that SERB does *372 not have exclusive jurisdiction over claims that are only “arguably” covered by R.C. 4117.11. 7 They contend that their claims for back wages and restoration of the wage differential are based on a right stated in R.C. 4117.06, because the city violated R.C. 4117.06 when it removed them from the bargaining unit without SERB’s approval. They also claim, however, that because R.C. 4117.11 does not expressly include such a violation within its definitions of unfair labor practices, SERB does not have exclusive jurisdiction. We disagree. ¶ 9 In East Cleveland v. East Cleveland Firefighters Local 500, supra, the Ohio Supreme Court limited SERB’s exclusive jurisdiction in a case where the parties had reached an impasse in negotiating a new CBA and, under the terms of the CBA then in effect, had submitted their dispute to an arbitrator. 8 The court ruled that, despite the fact that the city’s conduct arguably could be described as a “refusal to bargain” prohibited under R.C. 4117.11(A)(5), the dispute was not within the SERB’s exclusive jurisdiction. It stated: ¶ 10 “[Ejxclusive jurisdiction to resolve charges of unfair labor practices is vested in SERB in two general areas: (1) where one of the parties files charges with SERB alleging an unfair labor practice under R.C. 4117.11; or (2) a complaint brought before the court of common pleas alleges conduct that constitutes an unfair labor practice specifically enumerated in R.C. 4117.11, and the trial court therefore dismisses the complaint for lack of subject matter jurisdiction.” 9 ¶ 11 The court placed special emphasis on the fact that the case involved an arbitration proceeding contemplated by the CBA and undertaken according to its terms, and it also noted that such arbitration provisions were expressly approved in R.C. 4117.10(A). 10 Because allowing SERB to exercise jurisdiction over the dispute would effectively eliminate arbitration of disputes from CBA negotiations, it concluded that SERB’s exclusive jurisdiction was not intended to be extended to include the “arguable” claim at issue. 11 ¶ 12 This case does not involve CBA negotiations covered by another statutory provision but involves an allegation that the city unfairly eliminated the assistant chiefs from the CBA bargaining unit under R.C. 4117.06. The decision in East Cleveland Firefighters, Local 500 must be considered and placed in *373 perspective in light of its particular facts and in light of other eases concerning the scope of SERB’S jurisdiction. In Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9, supra, the Ohio Supreme Court held that SERB has exclusive jurisdiction over matters within R.C. Chapter 4117 in its entirety, not simply over unfair labor practices claims. 12 That court also held 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.” 13 ¶ 13 The decision in East Cleveland Firefighters, Local 500, does not suggest that a common pleas judge should be allowed to exercise jurisdiction in any case in which the complaint does not specifically allege an unfair labor practice, and we do not read the latter opinion to include such a holding. Instead, the focus of the jurisdictional question should be on whether the complaint, properly interpreted, alleges a claim within SERB’S exclusive jurisdiction. 14 Even though SERB does not have jurisdiction over any claim that is only “arguably” cast as an unfair labor practice, it should have jurisdiction over any complaint in which it can be shown that, even under the liberal pleading standards of Civ.R. 8(F), relief can be obtained only by proving a violation of a right protected under R.C. Chapter 4117. 15 ¶ 14 Although the Asst. Chiefs argue that their claims are based on an independent right stated in' R.C. 4117.06, this argument does not escape the exclusive jurisdiction stated in Franklin Cty. Law Enforcement Assn., because the claimed right is within R.C. Chapter 4117. Moreover, R.C. 4117.06 does not appear to provide an independent cause of action; 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). Because the complaint does not allege a right to recover independent of R.C. Chapter 4117, the Asst. Chiefs’ claims are within SERB’S exclusive jurisdiction. Therefore, it was error to fail to dismiss the complaint for lack of subject-matter jurisdiction. The city’s first assignment of error is sustained. TAXPAYER’S ACTION ¶ 15 The Asst. Chiefs also claim to have standing to pursue their complaint as a taxpayer’s action under R.C. 733.59. Athough a taxpayer’s action *374 is not prohibited merely because its proponent asserts rights that would confer a private, as well as a public, benefit, the claim may not go forward if it asserts rights that confer solely private benefits. 16 The Asst. Chiefs argue that they are vindicating public rights and conferring a public benefit by restoring the wage differential between them and battalion chiefs. This wage differential, they maintain, is necessary to provide an incentive for qualified candidates to seek the position of assistant chief. ¶ 16 We do not find the claimed public benefit sufficient to maintain a taxpayer’s suit because the Asst. Chiefs’ “incentive” argument is not significant, especially when viewed in light of the private benefit sought. When a union or its members seek to vindicate their rights or the rights of other union members, the benefit sought to be conferred is private, and a taxpayer’s suit will not be recognized. 17 Without a more significant public interest at stake, 18 the attempt to gain standing under R.C. 788.59 appears to be a pretext for the assertion of a private cause of action. ¶ 17 The enforcement of private rights often confers a public benefit, but the ability to contemplate a public benefit does not translate every private action against a municipality into a taxpayer’s suit under R.C. 733.59. The city has no duty to maintain a wage differential between different ranks of safety officers in order to create an incentive for qualified individuals to seek a higher rank; therefore, an individual could not seek imposition of a wage differential in order to provide such an incentive. 19 The city’s duty with respect to the wage differential must arise from the CBA and the rules governing collective bargaining, which are private rights enforceable by the union members. 20 ¶ 18 Although there may be circumstances in which enforcement of collective bargaining duties rises to the level of a public right, those circumstances are not present here. There is no showing of a right enforceable outside the mechanisms of R.C. Chapter 4117 and, therefore, we find that the Asst. Chiefs have no *375 standing to assert an action under R.C. 733.59. The city’s second assignment of error is sustained. ¶ 19 Because the judge had no subject-matter jurisdiction over the unfair labor practice claims and the Asst. Chiefs have no independent standing to bring a taxpayer’s suit, the complaint should have been dismissed. The city’s remaining assignments of error are moot, 21 and the assignments of error in the plaintiffs’ cross-appeal are overruled. ¶ 20 The judgment is reversed, and the complaint is dismissed. Judgment reversed and complaint dismissed. Colleen Conway Cooney, J., concurs. James J. Sweeney, J., dissents. Footnotes [1] The plaintiffs also moved to name additional individuals as party plaintiffs but, despite a docket notation stating that the motion was granted, there is no journal entry granting it. Therefore, we do not consider those individuals to be parties. [2] The city did not recognize the assistant chiefs in the unit until sometime in 1999, but the recognition was made retroactive to the effective date of the 1998-2001 CBA. [3] Although the appellees claim that count one sought a restoration of the wage differential in the current CBA, it actually states only that the city owes back wages in the amount of the differential. [4] R.C. 733.59. [5] The city has not raised the issue, however, and for purposes of this opinion we assume that the claim for restoration of the differential is sufficiently requested in the general plea for relief. [6] Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 572 N.E.2d 87, paragraph one of the syllabus. [7] E. Cleveland v. E. Cleveland Firefighters Local 500, I.A.F.F. (1994), 70 Ohio St.3d 125, 127, 637 N.E.2d 878. [8] Id. [9] Id., 70 Ohio St.3d at 127-128, 637 N.E.2d 878. [10] Id., 70 Ohio St.3d at 128, 637 N.E.2d 878. [11] Id. [12] Franklin Cty. Law Enforcement Assn., paragraph one of the syllabus. [13] Id., paragraph two of the syllabus. [14] Civ.R. 8(F); Crosby v. Beam (1989), 47 Ohio St.3d 105, 110, 548 N.E.2d 217. [15] Franklin Cty. Law Enforcement Assn., supra. [16] Cleveland, ex rel. O’Malley v. White, 148 Ohio App.3d 564, 2002-Ohio-3633, 774 N.E.2d 337, at ¶ 45-46. [17] Id. at ¶ 46; State ex rel. Caspar v. Dayton (1990), 53 Ohio St.3d 16, 20, 558 N.E.2d 49. [18] Cf. Cincinnati ex rel. Simons v. Cincinnati (1993), 86 Ohio App.3d 258, 265, 620 N.E.2d 940 (complaint brought by unsuccessful civil service applicants "benefited the city as a whole by protecting the integrity of the civil service system and ensuring its fairness"). Despite the plaintiffs’ argument, we do not find the preservation of a wage differential central to the integrity of the civil service system. [19] O’Malley at ¶ 42. [20] Caspar, supra. [21] App.R. 12(A)(1)(C).