Court Rulings

The trial court erred in sustaining appellee-school district's motion to dismiss under Civ.R. 12(B)(1) for lack of subject matter jurisdiction as to appellant-labor union. The Ohio State Employment Relations Board did not have exclusive jurisdiction over the claims alleged by the union in the complaint, because the allegations arose from the parties' collective bargaining agreement and the claims did not constitute unfair labor practices as set forth in R.C. 4117.11. However, a teacher-employee who was not a party to the collective bargaining agreement could not bring a private lawsuit under R.C. Chapter 4117. Judgment affirmed in part and reversed in part.

The tort of battery exists at common law. A person is civilly liable for offensive-contact battery if he or she (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (2) an offensive contact with the person of the other directly or indirectly results. North Dakota is a notice pleading state. North Dakota's rules do not require plaintiffs to allege every element of their claim. The formal character of a complaint does not strictly determine the cause of action. Whether to abrogate a common law claim is a policy matter for the Legislature to decide. Section 28-01-46, N.D.C.C, which requires plaintiffs to submit an affidavit containing an expert opinion to support a prima facie case of professional medical negligence, does not apply to a claim for the intentional tort of battery.

The tort of battery exists at common law. A person is civilly liable for offensive-contact battery if he or she (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (2) an offensive contact with the person of the other directly or indirectly results. North Dakota is a notice pleading state. North Dakota's rules do not require plaintiffs to allege every element of their claim. The formal character of a complaint does not strictly determine the cause of action. Whether to abrogate a common law claim is a policy matter for the Legislature to decide. Section 28-01-46, N.D.C.C, which requires plaintiffs to submit an affidavit containing an expert opinion to support a prima facie case of professional medical negligence, does not apply to a claim for the intentional tort of battery.

The plaintiff town appealed to the trial court from the decision of the defendant State Board of Labor Relations, which concluded that the town had violated the Municipal Employee Relations Act (§ 7-467 et seq.) by unilaterally changing its past practice of including extra duty pay in calculating pension benefits for members of the named defendant union. The labor board's decision was based on its conclusions that the town had violated the statute (§ 7-470 (a) (4)) requiring municipal employers to bargain in good faith, that there had been a consistent past practice of including extra duty pay in the calculation of pension benefits, and that the union had not waived its right to bargain with respect to changes to the calculation of future retirement benefits. In reaching its decision, the labor board applied its well established stan- dard that a union's waiver of its right to bargain with respect to an otherwise mandatory subject of bargaining must be clear and unmistak- able. During the pendency of the town's administrative appeal to the trial court, however, the National Labor Relations Board (NLRB) issued a decision in MV Transportation, Inc. (368 N.L.R.B. No. 66), in which the NLRB abandoned the clear and unmistakable waiver standard in favor of the contract coverage standard, under which the NLRB initially reviews the plain language of the parties' collective bargaining agreement to determine whether the change made by the employer was within the compass or scope of the contractual language granting the employer the right to act unilaterally. Because the NLRB had held that the contract coverage standard applied retroactively to all pending cases, the trial court remanded the case to the labor board to consider whether to adopt that new federal standard. Subsequently, the labor board declined to adopt the contract coverage standard, and the trial court rendered judgment dismissing the town's administrative appeal, concluding, inter alia, that the town had faile