Lorain City School District Board of Education v. State Employment Relations Board

Moyer, C. J.,

dissenting. Because I agree with the well-reasoned dissent of then-chairman Day to SERB’S majority opinion, which was found persuasive by the court of appeals, I respectfully dissent from the majority opinion herein.

The 1983-1986 collective bargaining agreement between the education association and the school board required that at least five full-time equivalent educational service personnel per one thousand students be maintained by the board of education. Among this number may.be those employees holding a teaching certificate in the following specialties: (1) school nurse, (2) educational media specialist/librarian, (3) school counselor, (4) visiting teacher, (5) art, (6) music, and (7) physical education. No specific provision was negotiated for the number of school nurses to be employed. Rather, school nurses were included in the total ratio of educational service personnel.

The plain language of R.C. 4117.08(C)(1), (3), (4), (5), (6) and (8) gives management the authority to determine the adequacy and nature of the work force within the bounds of a bargaining agreement, as well as the prerogative of determining standards of service and organizational structure. The school board’s decision to replace school nurses, who voluntarily departed employment, with health aides was within the scope of managerial discretion in determining how best to accomplish the health care needs of the population served by the school district.

The majority’s reliance on State Emp. Relations Bd. v. Bedford Hts. (1987), 41 Ohio App. 3d 21, 534 N.E. 2d 115, and Matter of Piscataway Bd. of Edn. & Piscataway Twp. Edn. Assn. (N.J. Pub. Emp. Rel. Comm., June 30,1978), Public Employee Bargaining (CCH), Paragraph 40, 677, is therefore misplaced as the facts are clearly distinguishable. In das Bedford Heights case, the city unilaterally changed the hours worked by fire fighters. This was a direct violation of R.C. 4117.08(A) which imposes a duty to bargain before making changes to wages, hours, and terms or conditions of employment. In Piseataway, supra, another unilateral decision was made in violation of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4, when the board of education decided not to replace two nurses who were on leave — thus effectively terminating two bargaining unit employees. _ „

A close reading of R.C. 4117.08(C) and the bargaining agreement executed by the board of education and the education association leads to the *264conclusion that they are consistent. The bargaining agreement recognizes the authority given the board pursuant to R.C. 4117.08(C)(4) in particular, which permits management to “[determine the overall methods, process, means, or personnel by which governmental operations are to be conducted.” As Chairman Day observed, the action taken by the school board was well within the limits of the statute. However, the statutory provisions do not give to the board an unlimited right to engage in unilateral action. The apparent conflict between the last full paragraph of R.C. 4117.08(C) and the other paragraphs of the statute is resolved by requiring management to bargain on the effects of its actions if such actions affect wages, hours, terms and conditions of employment.

The case before us presents an excellent example for such a logical application of the statute. The board of education has the authority to determine the specific personnel that should be employed to meet its contractual obligation to provide five full-time equivalent educational service personnel per one thousand students. The education association has expressly agreed that such personnel may be a school nurse, an educational media specialist/librarian, a school counselor, a visiting teacher, or a person with art, music, or physical education certification.

The agreement required a certain ratio of educational service personnel, but left to the discretion of the employer how best to serve the public by employing any number of these specialties included in the agreement, with no one specialty designated preferentially. Since the board maintained more than the required number of educational service personnel per thousand, the board was not required to replace any of the retiring nurses. It is only after management decisions have been made with regard to these personnel that the school district must negotiate with the education association on the effect of such changes on the collective bargaining unit as a whole.

Appellants argue that the hiring of non-nurses has affected the terms and conditions of the employment of the nurses who remain. That issue is bargainable and the board should be ordered to bargain on those matters. Such an application of the statute gives effect to the plain meaning of the words used therein, preserves the rights of management to determine the means or personnel by which its obligations under the collective bargaining agreement are to be achieved, and protects the bargaining rights of the bargaining unit members.

The effect of the majority opinion is to require that every time a public employer intends to perform any of its responsibilities pursuant to R.C. 4117.08(C)(1), (3), (4), (5), (6) and (8), it must first bargain with the representative of the bargaining units even though neither the statute nor the bargaining agreement imposes such a constraint.

I would affirm the judgment of the court of appeals.

Holmes and Wright, JJ., concur in the foregoing dissenting opinion.