[Cite as Washington-Centerville Pub. Library v. Washington-Centerville Pub. Library Staff Assn., 2014-Ohio2074.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Washington-Centerville Public Library, : 

 Appellant-Appellant, : 

 No. 13AP-657 

v. : (C.P.C. No. 12 CV 000178) 

Washington-Centerville Public Library : (REGULAR CALENDAR) 

Staff Association et al., 

 : 

 Appellees-Appellees. 

 

D E C I S I O N 

Rendered on May 15, 2014 

 

Taft Stettinius & Hollister, LLP, and Timothy G. Pepper, for 

appellant. 

Michael DeWine, Attorney General, and Lisa M. Critser, for 

appellee State Employment Relations Board. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} In this R.C. Chapter 119 appeal, appellant Washington-Centerville Public 

Library ("the library"), appeals the judgment of the Franklin County Court of Common 

Pleas affirming an order of appellee State Employment Relations Board ("SERB"). We 

find that the common pleas court did not err in exercising its subject-matter jurisdiction of 

this R.C. 119.12 appeal and we affirm its judgment. 

 I. Facts 

 A. Underlying Facts and Prior R.C. Chapter 119 Appeal 

{¶ 2} In October 2008, the Washington-Centerville Public Library Staff 

Association ("association"), presented to SERB a petition seeking a representation 

election to become the certified representative of certain of the library's employees. The 
No. 13AP-657 2 

library and the association agreed to an election, and, on March 4, 2009, the election was 

held. One unit of the library's employees, identified as the Combined Unit of Professional 

and Non-Professional Unit #1 ("Unit 1"), voted to become unionized. 

{¶ 3} On March 13, 2009, the library filed with SERB objections concerning the 

election, pursuant to Ohio Adm.Code 4117-5-10.1 Only the second objection became the 

subject of further litigation. That objection asserted that the association had produced and 

distributed a campaign flyer that contained false and misleading statements. The library 

contended that the association, in distributing the flyer, had engaged in an unfair labor 

practice, i.e., coercive and restraining conduct in violation of R.C. 4117.11(B)(1), that 

justified the setting aside of the election and the direction of a new election. 

{¶ 4} SERB denied the library's post-election objections on the procedural ground 

that the library should have challenged the campaign flyer by filing an unfair labor practice 

charge, rather than a post-election objection, pursuant to Ohio Adm.Code 4117-5-10. 

Having denied the objections, SERB certified the association as the representative of Unit 

1 in accord with the election results. 

{¶ 5} The library appealed to the common pleas court. In this first R.C. 119.12 

appeal, the common pleas court held that the library could challenge the flyer through a 

post-election objection as an alternative to filing an unfair labor practices charge. The 

court remanded the matter to SERB with instructions that it further investigate the merits 

of the library's post-election objection in accord with Ohio Adm.Code 4117-5-10 . 

{¶ 6} SERB thereafter investigated whether one or more agents of the association 

violated R.C. 4117.11(B)(1) by restraining or coercing employees in the exercise of their 

right to refrain from joining, assisting or participating in an employee organization. The 

violation alleged was that the association provided false information in the flyer regarding 

the nature of the association. SERB allowed both parties to submit position statements 

and evidence in support of their positions. The library submitted no additional evidence 

but, rather, argued its position based solely on the content of the flyer itself. 

 

1 Ohio Adm.Code 4117-5-10 authorizes the filing of post-election objections following representation 

elections, which SERB must then investigate. SERB may thereafter "dismiss the post-election objections or 

challenges, direct the counting of some or all of the challenged ballots, or where warranted, set aside the 

previous election and direct another election." 
No. 13AP-657 3 

{¶ 7} On December 22, 2011, SERB dismissed with prejudice the library's postelection objection asserting that the association had committed an unfair labor practice 

during the election campaign and certified the association as the exclusive representative 

of all employees identified as members of Unit 1. 

 B. Current R.C. Chapter 119 Appeal 

{¶ 8} On January 5, 2012, the library initiated an R.C. 119.12 appeal of SERB's 

December 22, 2011 order by filing a notice of appeal with SERB. It named the association 

as an appellee but did not specifically name SERB as an appellee. It did, however, serve 

SERB with a copy of the notice of appeal. It also filed a copy of the notice of appeal with 

the Franklin County Court of Common Pleas. Counsel for the library certified at the end 

of the notice of appeal that he had served a copy of the notice on both the association and 

SERB by facsimile and regular mail. 

{¶ 9} On February 27, 2012, the association filed a motion to dismiss the R.C. 

119.12 appeal, asserting that the common pleas court lacked subject-matter jurisdiction 

because the library had "fail[ed] to name the SERB as a party-appellee." (Feb. 27, 2012 

Motion, 4.) It argued that SERB should have been, but was not, made a party to the 

appeal and that, because the time for filing a notice of appeal had passed, the common 

pleas court lacked subject-matter jurisdiction, requiring dismissal of the R.C. Chapter 119 

appeal. 

{¶ 10} On December 5, 2012, however, the common pleas court ordered the clerk 

of courts to correct the docket to add SERB as a party. It further ordered that all previous 

filings should be deemed to be captioned to include SERB as an appellee. 

{¶ 11} On July 1, 2013, the common pleas court rendered a decision rejecting the 

library's substantive objection to the representation election and entered judgment 

affirming SERB's order of December 22, 2011. It concluded that the statements in the 

campaign flyer had not unlawfully coerced or restrained the employees who had voted in 

the representation election. The court observed that the "burden of setting aside an 

election is a heavy one and falls upon the party attacking it." (July 1, 2013 Decision, 9, 

citing Paulding Cty. Bd. of Mental Retardation and Dev. Disabilities v. Ohio Assn. of 

Pub. School Emp., 111 Ohio App.3d 545 (10th Dist.1996).) It concluded that the library 

had not met that heavy burden. It observed that the essential facts were undisputed but 
No. 13AP-657 4 

that the legal significance of those facts was in dispute. It found that the SERB's 

certification of the election was lawful and affirmed its order in its entirety. 

{¶ 12} The library timely appealed the trial court's July 1, 2013 decision. 

II. Assignment of Error and Analysis 

{¶ 13} The library asserts a sole assignment of error as follows: 

The Franklin County Court of Common Pleas erred to the 

prejudice of Appellant by affirming the Order of the State 

Employees Relation Board in Case No. 2008-Rep-0171. 

{¶ 14} We first address SERB's argument that this appeal should be dismissed for 

lack of subject-matter jurisdiction. We disagree. 

{¶ 15} SERB cites Haig v. Ohio State Bd. of Edn., 10th Dist. No. 89AP-1251 

(Aug. 9, 1990), for the proposition that, "with respect to R.C. 119.12 appeals, the proper 

appellee must be the party charged with the responsibility for making and enforcing the 

decision from which the aggrieved party appeals." (Feb. 27, 2012 Motion, 5.) SERB 

further observes that the Supreme Court of Ohio affirmed our decision in Haig v. Ohio 

State Bd. of Edn., 62 Ohio St.3d 507 (1992). As additional authority, SERB cites our 

decisions in All Children Matter v. Ohio Secretary of State, 10th Dist. No. 09AP-322, 

2010-Ohio-371, and Kingsley v. Ohio Personnel Bd. of Rev., 10th Dist. No. 10AP-875, 

2011-Ohio-2227. 

{¶ 16} We are, however, bound by precedent established by the Supreme Court of 

Ohio in Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals 

Guild of Ohio, 46 Ohio St.3d 147 (1989). In that case, the Supreme Court recognized that 

SERB may participate as a party in an R.C. 119.12 review of its adjudications. The 

Supreme Court expressly held, however, that "it [SERB] is not a necessary or 

indispensable party to the review proceedings." Id. at 154. In both Hamilton Cty. and the 

instant case, SERB evaluated post-election objections to a certification-election campaign. 

The facts in the Haig cases, All Children Matter, and Kingsley are distinguishable from the 

facts in the case before us in that the former cases did not involve the review of a SERB 

order but, rather, orders of a local board of education, the Ohio Elections Commission, and 

the State Personnel Board of Review, respectively. Because, pursuant to Hamilton Cty., 

SERB was neither a necessary nor an indispensable party in these R.C. 119.12 proceedings, 
No. 13AP-657 5 

failure of the library to formally name SERB as an appellee in the caption of its R.C. 119.12 

notices of appeal did not constitute a defect fatal to the trial court's exercise of R.C. 119.12 

subject-matter jurisdiction. 

{¶ 17} We turn to the library's substantive argument that SERB should have 

sustained its post-election objection asserting that the association committed an unfair 

labor practice by distributing a false and misleading campaign flyer. 

{¶ 18} The controlling standards of review in an R.C. 119.12 administrative appeal 

are well-established. The trial court must review the agency's order "to determine whether 

it is supported by reliable, probative, and substantial evidence and is in accordance with 

law." Fletcher v. Ohio Dept. of Transp., 10th Dist. No. 12AP-46, 2012-Ohio-3920, ¶ 8. In 

reviewing the trial court's order, the court of appeals is confined to determining whether 

the court of common pleas abused its discretion. Bryant Health Care Ctr., Inc. v. Ohio 

Dept. of Job & Family Servs., 10th Dist. No. 13AP-263, 2014-Ohio-92, ¶ 23. In determining whether an order was in accordance with law, this court's review is plenary. Id. 

Moreover, in reviewing SERB's orders, "courts must accord due deference to SERB's 

interpretation of R.C. Chapter 4117. Otherwise, there would be no purpose in creating a 

specialized administrative agency, such as SERB, to make determinations." Lorain City 

School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 267 (1988). 

{¶ 19} The information in the flyer was divided into eight sections covering topics 

such as union membership, dues, strikes, picket lines, and rates. It also addressed issues 

concerning the governance of the association and suggested that answers to some 

employee questions concerning the impact of being represented by the association could 

only be determined after the constitution and bylaws of the association had been adopted. 

We quote in full section 8 of the flyer as it is the primary focus of the library's objection: 

8. Governance document?

Because (unlike the library) the staff association will be a 

bottom-up organization, not a top-down, a governance 

document (constitution & bylaws) will be created by the 

members and voted on by the members. This cannot take 

place until after the association is voted in. The document will 

contain what the members want it to contain, and it will say 

what the members want it to say. On March 4, we will only be 

voting on whether we want to be represented by the staff 
No. 13AP-657 6 

association. The constitution will come after the association 

is in place. 

(Emphasis sic.) 

{¶ 20} During the SERB investigation, the library argued that the flyer described 

above contained false and misleading information and, specifically, that it was untrue that 

governing documents for the association could not be created until after the election. It 

argued that the employees were misled into believing that details concerning strikes, 

collective bargaining, and dues and penalties could not be developed until after the 

election. It also argued that the flyer incorrectly represented that "[s]trikes can by law, 

only happen if we have no contract." (May 27, 2011 letter, 2, SERB R. A161-T9.) 

{¶ 21} The library posits three arguments in support of its assignment of error. In 

its first argument, the library claims that the "trial court sought evidence not relevant to 

its inquiry." (Appellant's Brief, 9.) We note that the library does not suggest that the trial 

court solicited or considered evidence outside of the administrative record, contrary to the 

mandate of R.C. 119.12, which requires that a common pleas court confine itself to the 

"record as certified to it by the agency." Rather, the library points to a single clause in the 

court's decision in which the court stated that the record lacked "any proof that any voter 

was in any way 'confused by any campaign assertions' made by the [Association]." 

(Appellant's Brief, 11, quoting July 1, 2013 Decision, 8.) The association implies that this 

statement demonstrates that the trial court affirmed the SERB order based on the fact 

that the library had failed to submit evidence of voter confusion to SERB. 

{¶ 22} We reject the library's premise that the trial court's decision was dependent 

upon the existence of "required" evidence of any specific nature. Rather, we construe the 

trial court's statement as indicating more generally that the library had failed to meet its 

burden of proving that the flyer constituted campaign literature so misleading as to 

warrant invalidation of the election itself. This conclusion is reinforced when the clause 

quoted by the library is placed in the context in which it appears in the court's decision. 

The court first stated that "[t]he Board's decision is lawful." (July 1, 2013 Decision, 8.) It 

then continued: "This is especially so, where the Library relied solely on the submission of 

the flyer without offering any proof that any voter was in any way 'confused by any 

campaign assertions' made by the Employee Organization." (Decision, 8.) In context, we 
No. 13AP-657 7 

construe the court's statement as reflecting its belief that evidence of voter confusion 

arguably would have been relevant to the determinative issue before SERB, that being 

whether voters had been coerced or restrained in exercising their collective bargaining 

right to participate in a representation election. But nothing in the trial court's decision 

warrants the conclusion that the absence of such evidence, in and of itself, was 

determinative of the court's decision that the library had failed to meet its burden. Rather, 

after considering the evidence submitted to SERB, and more specifically the fact that the 

library submitted no evidence of coercion or restraint other than the text of the flyer itself, 

the court found that SERB correctly "determined that the allegedly misleading 

information wasn't an unlawful restraint or coercion of the employees' voting rights under 

R.C. 4117.11(B)(1)." (Decision, 9.) 

{¶ 23} The library's second argument challenges the conclusion of both SERB and 

the court that the flyer circulated by the association did not taint the pre-election 

environment to a degree requiring the setting aside of the election, even assuming, 

arguendo, that the flyer contained inaccuracies. 

{¶ 24} In its December 22, 2011 certification order, SERB, in describing its 

evaluation of the campaign flyer, stated as follows: 

[In re Montgomery County Bd. of Mental Retardation and 

Developmental Disabilities, SERB 88-012 (9-15-88)] tells us 

that when evaluating literature, the Board considers [that] 

voters possess basic intelligence and the ability to recognize 

and understand campaign literature for what it is. It further 

states the Board bears in mind that campaign literature does 

not exist in a vacuum. 

Most voters are aware of the positions of the parties and 

evaluate campaign materials accordingly. * * * The syllabus 

of [Montgomery County] * * * [provides] that when deciding 

whether literature distributed during a representation 

election campaign is misleading and warrants setting the 

election results aside, the Board assumes voting employees 

have the native intelligence to accept campaign literature for 

what it is. * * * [The] Board will not assume that voters 

examine such literature mindlessly and without discernment, nor will it set aside an election simply because of the 

possibility an unusually unsophisticated voter might 

momentarily be confused by certain campaign assertions. 
No. 13AP-657 8 

{¶ 25} In In re Montgomery Cty. Bd. of Mental Retardation and Dev. Disabilities, 

SERB 88-012 (9-15-88), SERB further observed that, in view of the guarantee of free 

speech provided by the First Amendment to the United States Constitution, extreme 

caution must be exercised in any case that raises the possibility of restricting or penalizing 

dissemination of information for and against representation. SERB concluded that a 

"slight misrepresentation" present in a union campaign communication did not warrant 

the setting aside of an election. Id. at 7. 

{¶ 26} SERB's order in this case is consistent not only with its order in 

Montgomery Cty. but also with other SERB orders concerning allegedly misleading 

campaign publications. See In re Stark Cty. Engineer, SERB 85-012 (4-4-85) (union letter 

containing allegedly misleading information and referencing "threats" by the employer, 

unfair treatment, unfair promotion and unfair wages, did not have a restraining or 

coercive effect); In re S. Community, Inc., SERB 85-012 (12-6-85) (mailings by union 

implying that SERB had endorsed the union as the exclusive representative justified 

setting aside of the election; preservation of SERB's integrity and neutrality is essential to 

implementation of R.C. Chapter 4117 and mailing interfered with the employees' free 

choice). Although not binding on our interpretation of Ohio's Collective Bargaining Act, 

R.C. Chapter 4117, we further note that the Sixth Circuit, in interpreting the federal 

National Labor Relations Act, 29 U.S.C. 158, has established as the standard in reviewing 

alleged campaign falsehoods, whether "misrepresentation was so artful in its manner and 

so pervasive in its effect that it affected the employee's free and fair choice to such an 

extent as to necessitate setting aside the election." N.L.R.B. v. Hub Plastics, Inc., 52 F.3d 

608, 612 (1995). SERB's finding that the flyer at issue herein did not require the direction 

of a new election is consistent with the standard employed by the Sixth Circuit in 

interpreting federal collective bargaining law. 

{¶ 27} In summary, we concur with SERB and the common pleas court that the 

allegedly misleading statements in the campaign flyer at issue in this case, which 

concerned the unions' internal corporate structure and the timing of adoption of its 

constitution and bylaws, were not statements likely to have influenced the library 

employees who voted in the representation election by instilling fear or otherwise 
No. 13AP-657 9 

restraining or coercing them concerning their vote. Accordingly, SERB did not act 

unlawfully in overruling the library's post-election objection and certifying the results of 

the election. 

{¶ 28} The library's final argument posits that SERB applied a double standard by 

not invalidating the election based on the existence of the campaign flyer. It suggests that, 

had it, as management, provided during the representation election campaign "similar 

false information," as that contained in the campaign flyer, SERB "would order that a 

rerun election be conducted." (Appellant's Brief, 18, 20.) Initially, we note the 

hypothetical nature of this argument. Neither this court, nor the parties, are able to 

predict SERB's disposition of an allegation of restraint or coercion based on unknown, 

hypothetical facts. Moreover, in S. Community, Inc., SERB did order a new election on 

the basis of misleading union campaign action. 

{¶ 29} As discussed above, the trial court found that SERB's determination that 

the representation election was not fatally tainted by the flyer at issue was supported by 

reliable, probative, and substantial evidence and was in accordance with law. The trial 

court did not abuse its discretion in affirming that SERB finding. 

III. Conclusion 

{¶ 30} For the foregoing reasons, we overrule the library's assignment of error and 

affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

BROWN and O'GRADY, JJ., concur. 

______________