[Cite as Couch v. Ohio Civ. Serv. Emps. Assn., 2010-Ohio-6258.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

ARNOLD COUCH, JR., ET AL., 

 PLAINTIFFS-APPELLANTS, CASE NO. 1-10-45 

 v. 

OHIO CIVIL SERVICE EMPLOYEES 

ASSOCIATION, AFSCME LOCAL 11, 

AFL-CIO, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CV 2010 0303 

Judgment Affirmed 

Date of Decision: December 20, 2010 

 

APPEARANCES: 

Michael A. Rumer and Victoria U. Maisch for Appellants 

Rory P. Callahan for Appellee, Ohio Dept. of Rehabilitation and 

 Corrections 

Thomas B. Cochrane, Attorney for Appellee, ACSEA/AFSCME 

 Local 11 
Case No. 1-10-45 

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WILLAMOWSKI, P.J.,

{¶1} Plaintiffs-Appellants, Arnold Couch, Jr. and Shawn Briley (or 

jointly, “Appellants”), appeal the judgment of the Allen County Court of Common 

Pleas dismissing their complaint against Defendants-Appellees, finding that the 

trial court lacked subject matter jurisdiction because their claims were subject to a 

public employees’ collective bargaining agreement. On appeal, Appellants 

maintain that their claims against the Ohio Civil Service Employees Association 

(“the OCSEA”) and the Ohio Department of Rehabilitation and Correction (“the 

ODRC”) (or jointly, “Appellees”) involve separate agreements that are not subject 

to any collective bargaining agreement and the trial court has jurisdiction to hear 

their contract claim. For the reasons set forth below, the judgment is affirmed. 

{¶2} This case involves a dispute between Appellants and their union, the 

OCSEA, and the ODRC regarding the “institutional seniority” to which 

Appellants are entitled under the collective bargaining agreement (“CBA”) 

governing their employment. Appellants were originally employed by the ODRC 

at Allen Correctional Institution (“ACI”) as corrections officers. Briley began 

working at ACI in July 1996, and Couch had been employed at ACI since 

September 1997. In 2004, the state decided to close near-by Lima Correctional 

Institution (“LCI”). As a result of LCI employees “bumping” into positions at 

ACI, both Couch and Briley were displaced in June 2004. Due to this 
Case No. 1-10-45 

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displacement, Appellants were counseled by OCSEA personnel about lay-off 

options and rights. 

{¶3} In lieu of accepting a straight layoff and loss of employment or a 

“transfer” to another northern district facility (without recall rights), both Couch 

and Briley chose an “18.14 Agreement” – known as a “placement” under Article 

18 of the OCSEA’s CBA. Under the terms of the 18.14 Agreements (or, “the 

Agreements”), Appellants would be placed into positions at Warren Correctional 

Institution (“WCI”) in Lebanon, Ohio, receiving a preferential placement over 

other state employees who might have wanted to apply for those positions. The 

provisions of the 18.14 Agreements allowed Appellants to “retain recall and 

reemployment rights pursuant to the provisions of Article 18” of the CBA. 

{¶4} Appellants were eventually recalled to work at ACI. Briley began 

working at ACI in May 2005, and Couch resumed his employment in July 2006. 

Appellants believed that the terms of the 18.14 Agreements entitled them to retain 

their original “institutional seniority”1

 rights dating back to when they began 

working at ACI in 1996 and 1997, respectively. However, in 2010 Appellants 

were informed that their institutional seniority had been reduced as the result of a 

Seniority Tribunal Decision. Pursuant to a March 12, 2010 “Settlement 

 

1

 Institutional seniority affects an employee’s preferential shift assignments, days off, overtime election, 

etc. This decision does not involve Appellants’ “state seniority” dates, which remain as the dates they were 

originally hired and began their employment with the state in 1996 and 1997. 
Case No. 1-10-45 

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Agreement” between the ODRC and the local chapter of the OCSEA 

(OCSEA/AFSCME Local 11), Briley and Couch would be given sixty days within 

which to bid for a new position based upon their recalculated seniority dates, i.e., 

the dates they were rehired at ACI in 2005 and 2006. 

{¶5} On March 24, 2010, Appellants filed a verified complaint against 

Appellees. Appellants were seeking a temporary and permanent injunction 

enjoining the ODRC and the OCSEA from further adjustment of their seniority 

dates; a declaratory judgment as to their rights under the 18.14 Agreements; and 

compensatory and punitive damages. 

{¶6} On April 16, 2010, the ODRC and the OCSEA each filed Civ.R. 

12(B) motions to dismiss, contending that the trial court lacked subject matter 

jurisdiction because Appellants’ claims were completely preempted by Ohio’s 

public employment collective bargaining statute, R.C. 4117, and could only be 

brought before the State Employment Relations Board (“SERB”). Appellees 

maintained that Appellants’ complaints were subject to the exclusive jurisdiction 

of SERB because: (1) the union’s only duty to Appellants arose out of its status as 

their collective bargaining representative; (2) Appellants’ complaint was actually 

an unfair labor practice charge; and (3) the trial court could not decide the case 

without interpreting the CBA. Basically, Appellees argued that Couch and Briley 

filed a lawsuit over a seniority dispute that was governed by a collective 
Case No. 1-10-45 

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bargaining agreement and the court of common pleas was without jurisdiction to 

hear the dispute under Ohio law. 

{¶7} Appellants opposed the motion to dismiss, asserting that the 18.14 

Agreements took precedence over the CBA and, therefore, they were asserting 

rights that were independent of R.C. 4117. Furthermore, they stated that their 

claims did not deal with the CBA presently in existence (from April 15, 2009 

through February 29, 2012), but that their claims dealt with the determination of 

rights pursuant to the CBA that was applicable from March 1, 2003 to February 

28, 2006, and which was no longer in effect. They argued that this was basically a 

“contract law case” concerning the breach of the 18.14 Agreements which 

materially altered their institutional seniority and that the common pleas court had 

jurisdiction to hear their claims. 

{¶8} On May 28, 2010, the trial court issued its Order granting Appellees’ 

motion to dismiss on the basis that it lacked subject matter jurisdiction. The trial 

court held that: 

issues dealing with Plaintiffs’ “institutional seniority” are 

subject to the Collective Bargaining Agreement; that ORC 

4117.10(A) deprives the Court of Common Pleas of jurisdiction 

herein in that Plaintiffs have a grievance procedure through 

binding arbitration and if Plaintiffs believe they have been 

treated unfairly by their union’s discretionary decisions 

regarding their interests or that the terms of the Collective 

Bargaining Agreement are not correctly applied and prosecuted 

by the union, they are free to file Unfair Labor Practices charges 
Case No. 1-10-45 

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against the union with the State Employees Relation Board 

(SERB) pursuant to ORC 4117.11(B)(6). 

{¶9} Appellants timely appeal, raising the following assignments of error 

and issues for our review. 

First Assignment of Error

The trial court erred in finding that Appellants’ claims for 

breach of the “18-14 Agreements” by Appellees were subject to 

grievances and binding arbitration pursuant to the collective 

bargaining agreement. 

Second Assignment of Error 

The trial court erred in finding that it lacked subject matter 

jurisdiction when it determined that R.C. 4117.10(A) was 

applicable to issues addressing Appellants’ institutional seniority 

rights arising from “18.14 Agreements” which, in fact, relate 

back to an expired collective bargaining agreement. 

{¶10} The lack of subject matter jurisdiction is a question of law and 

addresses whether the plaintiff has alleged any cause of action over which the 

court has authority to decide. McHenry v. Indus. Comm. of Ohio (1990), 68 Ohio 

App.3d 56, 62, 587 N.E.2d 414. An appellate court reviews a trial court's 

dismissal for lack of subject matter jurisdiction under Civ.R. 12(B)(1) de novo. 

Antram v. Upper Scioto Valley Local School Dist. Bd. of Edn., 3d Dist. No. 6-08-

4, 2008-Ohio-5824, ¶6. 

{¶11} R.C. Chapter 4117, titled “Public Employees’ Collective 

Bargaining,” contains a comprehensive framework for the resolution of public-
Case No. 1-10-45 

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sector labor disputes by creating a series of rights and setting forth specific 

procedures and remedies for the vindication of those rights. Franklin County Law 

Enforcement Ass'n v. Fraternal Order of Police, Capital City (1991), 59 Ohio 

St.3d 167, 169, 572 N.E.2d 87. The State Employment Relations Board has 

exclusive jurisdiction to decide matters committed to it pursuant to R.C. Chapter 

4117. Id. at paragraph one of the syllabus. “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.” (Emphasis added.) Id. at 

paragraph two of the syllabus. 

{¶12} R.C. 4119.08(A) provides that “[a]ll 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.” (Emphasis added.) Further, 

R.C. 4119.10(A) provides that “[a]n agreement between a public employer and an 

exclusive representative entered into pursuant to this chapter governs the wages, 

hours, and terms and conditions of public employment covered by the agreement.” 

(Emphasis added.) 
Case No. 1-10-45 

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{¶13} Appellants acknowledge that R.C. 4117 applies to disputes 

concerning public employees and matters involving their union and collective 

bargaining agreements. However, they contend that their dispute with Appellees 

involves independent rights arising from a separate agreement which is not 

governed by any current CBA. Appellants’ assignments of error assert the 

following issues: 

1. Their claims arise out of the independent 18.14 Agreements, 

not a CBA, and are not controlled by R.C. 4117; 

2. Any relation their 18.14 Agreements have to a CBA relates 

back to the old CBA, which expired in 2006 and is no longer in 

existence. Therefore, common law contract principals apply because 

there are no grievance or bargaining rights under an expired 

contract; and, 

3. The trial court’s decision deprives Appellants of their state and 

federal constitutional rights to contract. 

 

{¶14} Appellants assert that their issues involve 18.14 Agreements, which 

are based on Article 18 of the CBA concerning procedures and guidelines 

pertaining to “Layoffs.” Section 18.14 of the CBA in existence in June 2004 

stated: 

18.14 – Placement 

Notwithstanding any other provisions of Article 17,2

 the Union 

and the agency or agencies may agree, in writing, to place an 

employee to be laid off in an existing vacancy which may not be 

otherwise available. Such agreement shall take precedence over 

any other Section/Article of this Agreement. However, such 

placement shall not result in the promotion of the affected 

 

2

 Article 17 of the CBA sets forth rights, guidelines and procedures concerning “Promotions, Transfers, 

Demotions and Relocations.” 
Case No. 1-10-45 

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employee. All employees placed into existing vacancies under 

this Section shall retain recall and reemployment rights 

pursuant to the provisions of this Article. 

We note that Section 18.14 of the current CBA (2009-2012) has the exact same 

wording as the CBA (2003-2006) that was in existence at the time of Appellants’ 

18.14 placements in 2004. 

{¶15} The actual Article 18.14 Agreements involved in this case were 

short, less than one-page documents titled “Article 18.14 Agreement -- Ohio 

Department of Rehabilitation and Corrections And OCSEA/AFSCME Local 11.” 

The first paragraph stated that, in the face of the potential layoff of correction 

officers due to the closing of LCI, “the [ODRC] and OCSEA agree to place the 

following employee into the position as indicated below” on the effective date. 

Then, the documents listed the employee’s name, classification, number, and the 

new location for the placement as “WCI.” The final paragraph contained wording 

reflecting the terms of Section 18.14 of the CBA, as stated above. Each agreement 

was signed by a representative of the OCSEA, by the ODRC, and by the 

employee. 

{¶16} Appellees maintain that these were two-party agreements between 

the ODRC and the OCSEA, as reflected in the title of the document and the 

language of the first paragraph, and that the employees’ signatures were only for 

purposes of acknowledgment as to placement. Appellants contend that this was a 
Case No. 1-10-45 

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three-party contract, as evidenced by the requirement of their signature in order to 

effectuate the placements. Although the wording of these Agreements is certainly 

not a model of clarity, our decision in this case is not dependent upon who were 

the actual parties to the 18.14 Agreements. 

{¶17} Appellants now argue that “[t]he purpose of the independent ‘18.14 

Agreements,’ is to continue the employee’s seniority and recall rights outside the 

then existing CBA in force and effect beyond the CBA life cycle.” (Appellants’ 

Brief, p. 10.) However, nowhere on the face of the Agreements is there any 

statement concerning seniority rights. Nor is there any statement that would 

indicate the Agreements were “outside the existing CBA in force” or as to their 

existence relative to the existing CBA. Although they claim that the Agreements 

were somehow “independent” of the CBA, the terms of the Agreements echo 

section 18.14 of the CBA and even the name of the Agreements comes from the 

relevant section of the CBA. 

{¶18} Appellees maintain that the sole purpose of the 18.14 Agreement 

was to provide a one-time placement for employees who were about to be laid off, 

allowing them to move to another ODRC placement and precluding any other 

ODRC employees who might have wanted to apply for that position from filing a 

grievance over the placement. We find that this is all that is within the plain 

language of the 18.14 Agreements. Although the Agreements allowed Appellants 
Case No. 1-10-45 

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to retain “recall and reemployment rights,” there is no language concerning 

“seniority” within the 18.14 Agreements or even anywhere within Article 18 of 

the CBA. In their Reply Brief, Appellants argue that “reemployment rights 

include institutional seniority, which are earned rights through longevity of 

employment ***.” Again, we do not find that language, or any reference to 

seniority, in the 18.14 Agreements or Article 18 of the CBA. Furthermore, 

determining the meaning of “reemployment rights” would involve an 

interpretation of the CBA, which is a matter subject to the procedures in R.C. 

4117, not a matter for the courts. 

{¶19} The 18.14 Agreements permitted Appellants to be “placed” at WCI, 

and then allowed for their subsequent recall and reemployment at ACI. There is 

no evidence or support for the proposition that these Agreements were intended to 

be applicable to a completely separate employment decision that was made in 

2010 concerning Appellants’ seniority. In any case, this would still involve the 

interpretation of a CBA, which places the dispute clearly within the purview of 

R.C. 4117. The language of the statute is unambiguous in that R.C. 4117 controls 

“[a]ll matters pertaining to wages, hours, or terms and other conditions of 

employment.” (Emphasis added.) R.C. 4117.08(A). Institutional seniority rights 

are definitely matters pertaining to the terms and conditions of employment. 
Case No. 1-10-45 

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{¶20} Appellants also represented in their brief and verified complaint that, 

until March 16, 2010, they had institutional seniority dates that coincided with 

their original employment dates at ACI in 1996 and 1997. Appellants stated that 

on March 16th, the OCSEA and the ODRC notified them that they had entered 

into a “Settlement Agreement” adjusting their seniority. They contend that this 

“Settlement Agreement,” six years after the original 18.14 Agreements, was a 

breach of those placement Agreements. However, the facts in the record do not 

support Appellants’ representations. The March 2010 Settlement Agreement 

between the union and the ODRC was merely an agreement deciding on the 

method that would be utilized to allow Appellants to bid on new positions as a 

result of the fact that their seniority had previously been reduced by a Seniority 

Tribunal earlier in the year. The Settlement Agreement was simply a means of 

resolving their bid position situation. 

{¶21} The actual decision that resulted in the reduction/recalculation of 

Appellants’ institutional seniority was the result of a Seniority Tribunal 

assessment made months earlier. Appellants were notified of this reduction in 

their institutional seniority on January 18, 2010, when the OCSEA Seniority 

Tribunal sent letters to both Crouch and Briley informing them of the tribunal’s 

actions. However, Appellants never mentioned this critical decision in their 
Case No. 1-10-45 

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complaint or their appeal, nor did they address its implications as to their claims. 

The letters that were sent to Appellants in January 2010 stated:3

Your institutional seniority date was challenged by a member of 

your chapter. The Tribunal reviewed your Employee History 

*** and determined that you did not return to work until after 

your recall/reemployment rights had expired. In other words 

these rights only last for 24 months and you did not return to the 

institution until after your right to unbroken institutional 

seniority had expired. *** 

If you disagree with the Seniority Tribunal’s finding, and you 

have new information which the Seniority Tribunal has not 

previously received, then you may send an appeal letter within 

ten (10) days ***. 

{¶22} It was this decision in 2010 by the OCSEA Seniority Tribunal that 

modified Appellants’ seniority. This is clearly a matter that is applicable to 

Appellants’ rights under the current CBA and is a matter that is subject to the 

procedures set forth in R.C. 4117 for resolving employment issues dealing with 

collective bargaining union issues. If Appellants believe that the Seniority 

Tribunal’s decisions were erroneous because of reemployment and seniority rights 

they believe they were entitled to have, then this is a matter that should have been 

appealed to the Seniority Tribunal.4

 

 

3

 This excerpt is from the letter sent to Couch. Briley’s letter was essentially the same, although the finding 

in a few sentences was slightly different stating, “The Seniority Tribunal reviewed your Employee History 

*** and determined that your *** institutional seniority began anew when you transferred back in from 

Warren Correctional Institution. It appears that you were incorrectly granted unbroken institutional 

seniority when you originally transferred back in. ***" 

4

 Appellants have not provided any information as to whether or not they availed themselves of the appeal 

process specified in the January 28, 2010 letters. 
Case No. 1-10-45 

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{¶23} The 18.14 Agreements pertained to Appellants’ placements at WCI, 

which occurred in 2004. They were since recalled to ACI. Appellants’ terms and 

conditions of employment at ACI, and their seniority rights, are governed by the 

same, current CBA that governs the terms and conditions of the employment of all 

of the other corrections officers at ACI and 35,000 other civil service employees 

throughout the state. If Appellants were still convinced that their union did not 

properly represent their interests and treat them fairly, then their options were to 

follow the procedures set forth in the CBA and R.C. 4117 as to filing grievances 

and unfair labor practices charges. 

{¶24} Furthermore, there is no merit to Appellants’ claims that their rights 

to contract have been unfairly curtailed. An employee who joins a representative 

bargaining unit “will generally be deemed to have relinquished his or her right to 

act independently of the union in all matters related to or arising from the contract, 

except to the limited extent that the agreement explicitly provides to the contrary.” 

Leon v. Boardman Twp., 100 Ohio St.3d 335, 2003-Ohio 6466, 800 N.E.2d 12, 

¶17. “Sound labor policy disfavors an individualized right of action because it 

tends to vitiate the exclusivity of union representation, disrupt industrial harmony, 

and, in particular, impede the efforts of the employer and union to establish a 

uniform method for the orderly administration of employee grievances.” Id. 
Case No. 1-10-45 

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{¶25} The trial court correctly recognized that Appellants’ claims are a 

seniority dispute governed by the terms and conditions of employment established 

in a CBA between the parties, and that it did not have subject matter jurisdiction 

pursuant to R.C. 4117. While it may well be true that Appellants were not treated 

fairly by their union and their employer, it is not a matter that can be remedied in 

the court system. Based upon our findings above, Appellants’ first and second 

assignments of error are overruled. 

{¶26} Having found no error prejudicial to the appellants herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS and PRESTON, J.J., concur. 

/jlr