[Cite as Amalgamated Transit Union Local 268 v. Greater Cleveland Regional Transit Auth., 2020-Ohio-3120.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

AMALGAMATED TRANSIT UNION 

LOCAL 268, : 

 Plaintiff-Appellant, : 

 No. 108883 

 v. : 

 

GREATER CLEVELAND REGIONAL 

TRANSIT AUTHORITY, : 

 

 Defendant-Appellee. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 28, 2020 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-19-912586 

 

Appearances: 

Brian J. Smith, for appellant. 

Littler Mendelson P.C., Stephen J. Sferra, and Jeffrey 

Seidle, for appellee. 

LARRY A. JONES, SR., J.: 

Plaintiff-appellant, Amalgamated Transit Union, Local 268 (“Local 

268” or “the Union”), appeals from the trial court’s August 2019 judgment granting 

the Civ.R. 12(B)(1) motion to dismiss for lack of subject matter filed by defendant-
appellee, the Greater Cleveland Regional Transit Authority (“GCRTA”). For the 

reasons that follow, we affirm. 

Procedural and Factual Background 

In March 2019, the Union filed this action, requesting the common 

pleas court to compel GCRTA to proceed to “interest arbitration” to resolve a labor 

dispute over a successor agreement to the parties’ 2014 collective bargaining 

agreement (“CBA”). The 2014 CBA expired in July 2017, and at the time Local 268 

filed this action, the parties had not reached an agreement on a successor CBA. 

The record shows that pursuant to section 13(c) of the Urban Mass 

Transportation Act of 1964, transit entities entered into certain protective 

agreements to protect the employees affected by the funds. The “section 13(c) 

agreements” were a condition precedent to transit entities receiving federal funds. 

In 1975, GCRTA’s predecessor, the Cleveland Transit System, and the Union entered 

into such an agreement. Around the same time, Cleveland Transit System also 

entered into such an agreement with national entities, that is, the American Public 

Transit Association and the national Amalgamated Transit Union. Paragraph 9 of 

the section 13(c) Agreement at issue here provides as follows: 

In the event of any labor dispute not otherwise governed by law or labor 

agreement involving the Public Body and the employees covered by 

agreement which cannot be settled within thirty (30) days after such 

dispute first arises, such dispute may be submitted at the written 

request of either the Union or the Public Body to a board of arbitration 

selected in accordance with the existing collective bargaining 

agreement, if any, or if none, as hereinafter provided. 
In 1984, Ohio’s “Public Employees Collective Bargaining Act,” which 

is codified in R.C. Chapter 4117, became effective. As a result of the enactment of 

R.C. Chapter 4117, the State Employment Relations Board (“SERB”) was created. 

The Act sets forth dispute settlement procedures. One of the provisions, set forth in 

R.C. 4117.14(C), provides in relevant part, that: 

[i]n the event the parties are unable to reach an agreement, they may 

submit, at any time prior to 45 days before the expiration date of the 

collective bargaining agreement, the issues in dispute to any mutually 

agreed upon dispute settlement procedure which supersedes the 

procedures contained in this section. The procedures may include any 

other dispute settlement procedure mutually agreed to by the parties. 

A mutually agreed upon dispute settlement procedure is commonly 

referred to as a “MAD,” and as set forth above, usurps the procedures contained in 

R.C. Chapter 4117 and the jurisdiction of SERB. 

As mentioned, the parties’ most recent CBA expired in July 2017, and 

at the time Local 268 filed this action, they had not reached an agreement as to the 

terms of their new CBA. On April 21, 2017, GCRTA sent a “notice to negotiate” to 

SERB, and served it on the Union. The notice stated that the parties had not adopted 

a MAD because R.C. Chapter 4117.14, which governs the “procedure for termination 

or modification of agreement or negotiation of successor agreement,” supplanted 

paragraph 9 of the section 13(c) Agreement under state law governing labor disputes 

and as contemplated under the section 13(c) Agreement. 
On April 25, 2017, Local 268 filed a “notice to negotiate” with SERB, 

and served a copy on GCRTA. The union’s notice claimed that the parties had 

adopted a MAD, which superseded the statutory procedures set forth in R.C. 4117.14. 

SERB sent the parties a letter in June 2017, appointing a mediator 

under R.C. 4117.14 to assist the parties in bargaining. According to the letter, either 

party “may request a fact-finding panel any time after a mediator is appointed, and 

requires [SERB] to appoint a panel within 15 days after receiving such a request.” 

In February 2019, Local 268 sent GCRTA a letter stating it was 

submitting the labor dispute to interest arbitration. GCRTA filed a response in 

March 2019, in which it maintained its position that R.C. 4117.14 controlled the 

parties’ dispute. In its response, GCRTA stated that it would “not agree to submit 

the labor dispute over the terms of a successor contract to interest arbitration or any 

type of arbitration under the terms of the 13(c) Agreement.” 

The Union responded on March 4, 2019, requesting that the parties 

submit the issue of whether there was a right to interest arbitration to the arbitration 

procedures set forth in the section 13(c) Agreement. On March 15, 2019, the Union 

filed this action in the common pleas court under R.C. 2711.03 and 2711.16 to compel 

arbitration under the section 13(c) Agreement’s arbitration provision. The Union 

also sought a declaration that the section 13(c) Agreement is a MAD agreement that 

trumps the procedures of R.C. 4117.14. 
In May 2019, GCRTA filed a Civ.R. 12(B)(1) motion to dismiss for lack 

of subject-matter jurisdiction. The trial court granted the motion in July 2019, and 

this appeal ensues. The Union’s assignment of error reads as follows: 

I. The Cuyahoga County Court of Common Pleas erred in its 

Judgment Entry dated July 17, 2019 dismissing the 

Application/Petition to Compel Enforcement of an Arbitration 

Agreement filed by Plaintiff/Appellant Amalgamated Transit 

Union Local 268 * * *. The Trial Court erred as a matter of law 

in concluding that the action should be dismissed for lack of 

subject matter jurisdiction. 

Law and Analysis 

Standard of Review 

We review a trial court’s decision on a Civ.R. 12(B)(1) motion to 

dismiss under a de novo standard of review. Bank of Am. v. Macho, 8th Dist. 

Cuyahoga No. 96124, 2011-Ohio-5495, ¶ 7, citing Crestmont Cleveland Partnership 

v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th 

Dist.2000). In order to dismiss a complaint under Civ.R. 12(B)(1), the court must 

determine whether a plaintiff has alleged any cause of action that the court has 

authority to decide. Crestmont at id. When determining its subject-matter 

jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss, the trial court is not 

confined to the allegations of the complaint and may consider material pertinent to 

such inquiry. Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 

211, 358 N.E.2d 526 (1976), paragraph one of the syllabus. 
Trial Court’s Judgment 

In its judgment entry granting RTA’s motion to dismiss, the trial court 

found that the Union’s claims “arise from or depend on the collective bargaining 

rights created by R.C. Chapter 4117 and fall within the exclusive jurisdiction of 

[SERB].” In support of its decision, the trial court relied on two cases: (1) State ex 

rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2o1o-Ohio-5o39, 937 N.E.2d 88, and 

(2) State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2o16-ohio478, 56 N.E.3d 913. 

Issue Presented for Review 

In this appeal, we decide: (1) whether Local 268’s claims arise from 

the collective bargaining rights created under R.C. Chapter 4117 and fall within the 

exclusive jurisdiction of SERB, as contended by RTA; (2) or whether common pleas 

courts have jurisdiction because the exceptions set forth under R.C. 4117.10 and 

306.12 take section 13(c) agreements out of the exclusive jurisdiction of SERB under 

R.C. Chapter 4117, as the Union contends. 

Case Law 

State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2o1o-Ohio-5o39, 937 N.E.2d 

88. 

In Sutula, a union certified by SERB as the exclusive representative 

of a bargaining unit consisting of a group of employees from the city of Cleveland 

filed a complaint for injunctive and declaratory relief regarding the city of 

Cleveland’s duty to perform in accordance with its prestrike settlement offer, 
following two years of failed negotiations pursuant to R.C. 4117.14. Cleveland, in 

response, filed a complaint for a writ of prohibition in this court. State ex rel. 

Cleveland v. Sutula, 8th Dist. Cuyahoga No. 94264, 2010-Ohio-914. This court 

dismissed the prohibition action, and the city appealed to the Ohio Supreme Court. 

The Ohio Supreme Court considered whether the trial court patently 

and unambiguously lacked jurisdiction over the union’s action for injunctive and 

declaratory relief. Sutula, 127 Ohio St.3d 131, 2o1o-Ohio-5o39, 937 N.E.2d 88, 

at ¶ 13-14. The court, relying on its previous position in Franklin Cty. Law 

Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9, 59 Ohio 

St.3d 167, 572 N.E.2d 87 (1991), reiterated that SERB “‘has exclusive jurisdiction to 

decide matters committed to it pursuant to R.C. Chapter 4117’” and that the 

dispositive test for determining whether SERB has exclusive, original jurisdiction “is 

whether the claims ‘arise from or depend on the collective bargaining rights created 

by R.C. Chapter 4117.’” Sutula at ¶ 16, 20, quoting Franklin Cty. Law Enforcement 

Assn. at paragraphs one and two of the syllabus. 

The Sutula court concluded that the trial court lacked jurisdiction 

because the union claimed that the city failed to abide by an agreement reached 

through collective-bargaining negotiations under R.C. Chapter 4117. Id. at ¶ 17, ¶ 25. 

State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2o16-Ohio478, 56 N.E.3d 913 
In Ohio Civ. Serv. Emps. Assn., the Ohio Supreme Court considered 

whether individuals employed at a correctional facility in Ohio that was subject to 

the prison-privatization provisions in H.B. 153 were “public employees” under R.C. 

4117.01(C) because of the collective-bargaining rights created by R.C. Chapter 4117. 

The court found that the collective-bargaining rights under R.C. Chapter 4117 

applied: 

The determination whether employees working at [the facility] are 

public employees, as defined in R.C. 4117.01(C), and are therefore 

entitled to the benefits and protections afforded to bargaining-unit 

members under the [collective bargaining agreement], depends 

“entirely on the provisions of R.C. Chapter 4117, over which SERB has 

exclusive original jurisdiction.” 

Id. at ¶ 62, quoting Ohio Historical Soc. v. State Emps. Relations Bd., 66 Ohio St.3d 

466, 469, 613 N.E.2d 591 (1993). The Ohio Civ. Serv. Emps. Assn. court cautioned, 

however, that its opinion was not meant to “suggest that SERB has exclusive, 

original jurisdiction over every claim touching upon R.C. Chapter 4117.” Id. at ¶ 63. 

The court explained that its decision did not “undertake to define the circumstances 

in which a common pleas court might have jurisdiction over claims touching upon 

R.C. Chapter 4117.” Id. The court reiterated its position from Franklin Cty. Law 

Enforcement Assn. at paragraph two 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.” 
Amalgamated Transit Union v. Toledo Area Regional Transit Auth., 6th Dist. 

Lucas No. L-12-1260, 2013-Ohio-4412.1

The Union cites Amalgamated Transit Union in support of its 

position that the common pleas court has jurisdiction in this case. In Amalgamated 

Transit Union, the union filed an application to compel enforcement of arbitration. 

In response to the union’s petition, Toledo Area Regional Transit Authority 

(“TARTA”) filed a motion to dismiss for lack of subject-matter jurisdiction. The trial 

court summarily granted TARTA’s motion and dismissed the action in its entirety 

for lack of subject-matter jurisdiction. The union appealed the dismissal. 

The facts of Amalgamated Transit Union are like the facts of this 

case. In 1975, TARTA and the union became parties to an agreement executed by 

the American Public Transit Association, the Amalgamated Transit Union, AFLCIO, and the Transport Workers Union of America, AFL-CIO. Also in 1975, TARTA 

and the union executed a section 13(c) agreement, under which TARTA was required 

to make arrangements to preserve certain employee and collective bargaining rights 

as a condition precedent to receiving its federal funding. Paragraph 9 of the section 

13(c) agreement provided in relevant part as follows: 

In the event of any labor dispute involving the Authority and the 

employees covered by this Agreement which cannot be settled within 

thirty (30) days after such dispute first arises, such dispute may be 

submitted at the written request of either the Union or the Authority to 

a board of arbitration selected in accordance with the existing collective 

bargaining agreement, if any, or if none, as hereinafter provided. * * * 

 

1Appeal not accepted, Amalgamated Transit Union, AFL-CIO, Local 697 v. Toledo Area 

Regional Transit Auth., 138 Ohio St.3d 1417, 2014-Ohio-566, 3 N.E.3d 1218. 
Id. at ¶ 5. 

Thereafter, the Union and TARTA entered into a CBA. The CBA 

established the terms and conditions of employment for all of TARTA’s paratransit 

service drivers. The CBA was effective October 1, 2009, through November 30, 

2010, and was extended twice while the parties attempted to negotiate a new labor 

agreement. The parties were not able to come to an agreement on the terms, 

however, and the CBA expired on May 31, 2011. 

In June 2011, the union sent a letter notifying TARTA that it was 

submitting the dispute over the terms and conditions of a new labor agreement to 

binding arbitration pursuant to paragraph 9 of the section 13(c) agreement. TARTA 

did not appoint a member to the board of arbitration or comply with any of the 

requirements of the agreement relative to the union’s demand for interest 

arbitration; TARTA later confirmed to the union that it was refusing to participate 

in interest arbitration as demanded by the union. 

Thereafter, the union filed a complaint in the common pleas court 

requesting an order directing the parties to promptly proceed to binding interest 

arbitration in accordance with paragraph 9 of the section 13(c) agreement. TARTA 

filed a motion to dismiss for lack of subject-matter jurisdiction, contending that the 

union’s claim fell within the exclusive jurisdiction of SERB. TARTA maintained that 

the parties’ section 13(c) agreement was inapplicable to their negotiations for a 

successor CBA and that the dispute should instead be resolved pursuant to the 
procedures set forth under R.C. Chapter 4117 and under the exclusive jurisdiction of 

SERB. 

The trial court found that SERB had exclusive jurisdiction, dismissed 

the union’s complaint, and the union appealed. The Sixth Appellate District 

reversed, finding that the common pleas court had jurisdiction. See id. at ¶ 25. The 

Sixth District recognized that the section 13(c) agreement was not intended to 

replace state labor law, but it also found SERB’s jurisdiction to enforce the Public 

Employees Collective Bargaining Act did not authorize TARTA to disregard the 

promises it made in the section 13(c) agreement as a condition of receiving federal 

funds. Id. 

Jackson Transit Auth. v. Local Div. 1285, Amalgamated Transit Union, AFL-CIOCLC, 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982) 

In Jackson Transit Auth., the United States Supreme Court 

addressed section 13(c) agreements. Although the issue in the case was whether 

Congress intended to create federal causes of action for breaches of section 13(c) 

agreements and collective bargaining contracts, the case is nonetheless instructive. 

The Supreme Court discussed the reason for the existence of section 

13(c) agreements: that is, to protect the conditions of private transit workers whose 

companies were being taken over by the public sector. As mentioned, the 

agreements were the condition precedent to the transit entities receiving federal 

funds. The goal was to prevent any worsening conditions for transit workers whose 

transit entities were transitioning from the private sector to the public sector. 
Jackson Transit Auth. makes clear that section 13(c) agreements 

were not intended to usurp state labor law, stating the following: 

Section 13(c) would not supersede state law, it would leave intact the 

exclusion of local government employers from the National Labor 

Relations Act, and state courts would retain jurisdiction to determine 

the application of state policy to local government transit labor 

relations. Congress intended that § 13(c) would be an important tool 

to protect the collective-bargaining rights of transit workers, by 

ensuring that state law preserved their rights before federal aid could 

be used to convert private companies into public entities. 

Id. at 27-28. 

Analysis 

After de novo review, and careful consideration of the case law, we 

find that the trial court did not err in dismissing Local 268’s complaint. We 

recognize the Sixth Appellate District’s decision in Amalgamated Transit Union, 

6th Dist. Lucas No. L-12-1260, 2013-Ohio-4412, but decline to follow it. 

We turn to the language of the section 13(c) Agreement in this case 

that provides arbitration is appropriate “[i]n the event of any labor dispute not 

otherwise governed by law or labor agreement * * *.” (Emphasis added.) Here, 

there is governing statutory state law, R.C. Chapter 4117. We are not persuaded by 

the Union’s contention that the section 13(c) Agreement constitutes a MAD subject 

to arbitration. Specifically, at the time the section 13(c) Agreement was entered into 

in 1975, the Union and RTA could not have known that they were agreeing to a MAD 

under R.C. 4117.14(C) because R.C. Chapter 4117 had not yet been created. 
We are also not persuaded by the Union’s contention that the section 

13(c) Agreement controls because RTA has repeatedly received federal funds. As 

mentioned, the purpose of section 13(c) agreements is to ensure fairness and equity. 

They are reviewed by the Department of Labor for renewal certifications; in this 

case, the parties received renewal certifications on June 8 and July 11, 2018. These 

renewals would presumably not have occurred if there were violations of the 

Agreement. 

Local 268 contends that R.C. 4117.10 and 306.12 provide exceptions 

to the general exclusive jurisdiction in these cases of SERB. R.C. 4117.10 governs 

agreements between a public employer and an exclusive representative entered into 

under chapter R.C. 4117, and provides in relevant part that, 

[e]xcept for sections 306.08, 306.12, 306.35, and 4981.22 of the 

Revised Code and arrangements entered into thereunder, and section 

4981.21 of the Revised Code as necessary to comply with section 13(c) 

of the “Urban Mass Transportation Act of 1964,” * * * and 

arrangements entered into thereunder, this chapter prevails over any 

and all other conflicting laws, resolutions, provisions, present or future, 

except as otherwise specified in this chapter or as otherwise specified 

by the general assembly. 

R.C. 4117.10(A)(4). 

R.C. 306.12 governs “employee rights after acquisition of existing 

system,” and provides, in part, that, 

Any board of county commissioners operating a transit system or any 

county transit board shall, if it acquires any existing transit system, 

assume all the employer’s obligations under any existing labor contract 

between the employees and management of the system. The board 

shall, if it acquires, constructs, controls, or operates any such facilities, 
negotiate arrangements to protect the interests of employees affected 

by such acquisition, construction, control, or operation. 

The statute provides a nonexclusive list of such arrangements, and 

provides that “[s]uch arrangements may include provisions for the submission of 

labor disputes to final and binding arbitration.” Id.

 We are not persuaded by Local 268’s contention that these statutory 

provisions take this case out of the control of R.C. Chapter 4117. R.C. 4117.10(A)(4) 

provides that it applies “as necessary to comply with section 13(c) of the ‘Urban 

Mass Transportation Act of 1964 * * *.’” (Emphasis added.) The statute further 

provides that R.C. Chapter 4117 “prevails over any and all other conflicting laws, 

resolutions, provisions, present or future * * *.” Id. Further, R.C. 306.12 provides 

that the arrangements discussed under that statute “may include provisions for the 

submission of labor disputes to final and binding arbitration.” (Emphasis added.) 

Thus, R.C. 4117.10 and 306.12 do not provide that compliance with 

the arbitration provisions under section 13(c) agreements is mandatory. And when 

we read the statutes in conjunction with the section 13(c) Agreement at issue here, 

which provides that it applies if the labor dispute is “not otherwise governed by law,” 

we agree with GCRTA that R.C. Chapter 4117 is the governing law. We believe the 

dissent in Toledo Area Regional Transit Auth., 6th Dist. Lucas No. L-12-1260, 2013-

Ohio-4412, properly framed the issue, stating the following: 

Section 13(c) agreements were designed “merely to maintain the status 

quo by preserving existing rights of public employees upon acquisition 

of a transit system and not to create any new rights or enhance prior 

rights under pre-acquisition labor agreements.” Finocchi v. Greater 
Cleveland Regional Transit Auth., 85 Ohio App.3d 572, 580, 620 

N.E.2d 872 (8th Dist.1993). * * * In other words, they did not create 

collective bargaining rights that did not already exist. United Transp. 

Union, AFL-CIO v. Brock, 815 F.2d 1562, 1565, 259 U.S. App. D.C. 361 

(D.C.Cir.1987). But the Ohio legislature has since enacted Chapter 4117 

(effective Apr. 1, 1984), which requires public employers to collectively 

bargain with its employees, and created [SERB]. SERB has exclusive 

jurisdiction over claims arising from or depending on the collective 

bargaining rights created by Chapter 4117. R.C. 4117.02; State ex rel. 

Williams v. Belpre City School Dist. Bd. of Educ., 41 Ohio App.3d 1, 6, 

534 N.E.2d 96 (4th Dist.1987); State ex rel. Cleveland v. Sutula, 127 

Ohio St.3d 131, 2010-Ohio-5039, 937 N.E.2d 88, ¶ 20. Thus, after 

TARTA and the unions entered into the 13(c) protective agreement, 

Ohio adopted a statutory scheme providing protections that went 

above and beyond what the federal government sought to guarantee in 

enacting section 13(c). Moreover, Ohio essentially codified 13(c) 

assurances in Chapter 306 of the Revised Code, which further protects 

transit system employees should the legislature eliminate public 

employees collective bargaining rights * * *. 

Id. at ¶ 31-32 (Jensen, J., dissenting). 

 So while 13(c) protective agreements may have played an important 

role in assuring private transit company employees that they would not lose 

bargained-for rights upon being publicly acquired, the Ohio legislature now offers 

those employees two additional layers of protection. See Local Div. 589, 

Amalgamated Transit Union, AFL-CIO, CLC v. Commonwealth of Massachusetts, 

666 F.2d 618, 634 (1st Cir.1981)(recognizing that state law may modify section 13(c) 

assurances without bringing about an unfair or inequitable result.) 

 

Based on the reasons discussed in this opinion, we agree with the 

dissent in Toledo Area Regional Transit Auth., and thus find that the trial court 
properly dismissed this case for lack of subject-matter jurisdiction. Local 268’s sole 

assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

_____________________________ 

LARRY A. JONES, SR., JUDGE 

ANITA LASTER MAYS, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR