City of Kettering v. State Employment Relations Board

Douglas, J.,

concurring. While much is made in the brief of appellant concerning home rule and the right of local legislative bodies to lawfully regulate and restrict the rights of police and fire command officers to organize and bargain collectively seeking their legitimate goals, that is only a silent front for what this case really involves. The real issue in this case is whether or not the legislation providing a comprehensive, statewide system of collective bargaining for public employees, as codified in R.C. Chapter 4117, is constitutional and thus applicable to municipal employers and employees.

To say or imply that this case is anything but a frontal attack on Ohio’s new Public Employees Collective Bargaining Act (“Act”) is to misstate the case and is intended only to lull those who accept the proposition into a state of false security. To be so deluded can be frightening at best and disastrous at worst.

*57In State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St. 3d 1, we fully set forth the background, reasons and need for the new Act. There is no need to repeat that discussion herein except to say that the passage of the Act provided a badly needed framework for governing the labor relations of public employers and their employees.

We also held in Dayton that the collective bargaining law is a law of a general nature having a uniform operation throughout the state of Ohio and thus complies with the mandate of Section 26, Article II of the Ohio Constitution. In so holding, we found that the Act “* * * affects persons in every county of the state.” Id. at 5. It is a mystery then as to the origin of this eleventh hour constitutional challenge to a provision of the Act that clearly has uniform operation throughout the state and is of a general nature.

It is pertinent to note matters of historical importance, other constitutional provisions and precedent pertinent to a resolution of the matter before us. Section 3, Article XVIII of the Ohio Constitution, the so-called Home Rule Amendment, was drafted and recommended for adoption at the Ohio Constitutional Convention of 1912. However, that is not all that was forthcoming from that convention. A number of measures, dealing with the welfare and rights of employees, also emerged. Among those provisions was Section 33, Article II, dealing with mechanics’ liens; Section 35, Article II, authorizing a workers’ compensation system; Section 37, Article II, providing for an eight-hour day for employees engaged in public works; and Section 41, Article II, setting forth restraints upon the exploitation of prison labor for competitive advantage.

Probably the most comprehensive of the provisions was Section 34, Article II, which manifested the broad purpose of proclaiming and securing to the General Assembly the power to enact legislation establishing employee rights and protections. Section 34, Article II of the Ohio Constitution provides:

“Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power. ” (Emphasis added.)

Again, it should be emphasized that the foregoing section was adopted at the same time as was the home-rule section. It should be obvious that the drafters of the various sections consciously included, in Section 34, Article II, a broad grant of authority to pass laws “for the comfort, health, safety and general welfare of all employes” and then provided further that no other provision of the Constitution shall limit the power to enact legislation for the welfare of employees. If this section is read in the way in which it is written, there is no conflict on this subject between state legislative authority and the power granted local governments under home rule.

*58Pursuant to its constitutonal and general legislative authority, the General Assembly enacted Am. Sub. S.B. No. 133 in an effort to bring some order to the many problems existing in public employee labor relations. In enacting a uniform system, the legislature made the conscious decision to include all police officers and fire fighters, excepting only chiefs of the departments and those authorized to act for the chiefs. R.C. 4117.01(F)(2). This decision recognized that such persons have, in the past, been organized and represented by the Fraternal Order of Police, the International Association of Professional Fire Fighters and/or other command officers’ associations. Thus, the General Assembly simply codified the past practice of most Ohio cities in granting bargaining rights to police and fire sergeants, lieutenants and captains.

In addition, the majority decision is supported by clear precedent on the question now before us. In State, ex rel. Bd. of Trustees of Pension Fund, v. Bd. of Trustees of Relief Fund (1967), 12 Ohio St. 2d 105 [41 O.O.2d 410], this court answered the very same issue presented to us in this case. In Bd. of Trustees, this court was called upon to interpret Section 34, Article II of the Ohio Constitution. The issue in that case was the validity of the state-controlled and -administered disability and pension fund for police and fire fighters. As a member of the Toledo City Council in 1967, I was the council’s representative and member of the Toledo police local municipal pension fund board. The General Assembly enacted a law abolishing local municipal pension funds and provided that all of the assets in such local pension funds be transferred to the state-administered fund. This law was challenged as being in violation of home rule.

A unanimous Supreme Court, in interpreting Section 34, Article II, wasted no time in disposing of the home-rule argument. The court said, at 107, that “[t]here can be no question that the adopters, the people, intended this section of the Constitution to apply both to local government and state employees. The cities and towns and other political subdivisions of the state of Ohio constitute en masse one of the largest of the employers in the state. It is our conclusion that the firemen and police of various localities of Ohio are employees within the scope of this provision. It appears in clear, certain and unambiguous language that no other provision of the Constitution may impair the intent, purpose and provisions of the above section of Article II.” (Emphasis added.)

Giving a literal reading to the constitutional provision and Bd. of Trustees, it would seem to follow that any municipal ordinance, such as the one enacted by appellant Kettering, which conflicts with R.C. Chapter 4117 is invalid despite the municipalities’ power of local self-government. It is hard for me to conceive what could be more of a subject of the general welfare of employees than to have the right to collectively bargain concerning wages and other conditions of employment.

Two more points need to be made. First, appellant takes great pains to assure us that we are being called upon to deal only with a single subsec*59tion of the collective bargaining Act set forth in R.C. Chapter 4117, and specifically that we are not passing upon any other section than the one before us. This is clearly the wolf in sheep’s clothing. If appellant’s arguments are accepted to deprive certain fire and police officers of their rights conferred pursuant to R.C. Chapter 4117, then can anyone seriously believe that the argument will not soon be made that employees working in, and in charge of, the municipal water plant, refuse collection, snow removal and salting the roads, and other employees who engage in authorized concerted action, will not also be affecting the life, liberty and property of persons within the territory of the municipal corporation, when the concerted activity occurs under conditions construed to be an emergency? This is especially so since under the Act such employees are given the right to strike, subject to the provisions of R.C. 4117.16, and the fire and police employees are specifically prohibited from doing so. See R.C. 4117.14(D)(1) and (2); 4117.15; and 4117.23.

Secondly, there is a practical problem with accepting appellant’s position. If we were to hold unconstitutional R.C. 4117.01(F)(2), part of the definitional section of the Act, we would in fact be saying that all of the command officers in every police and fire department in this state are “supervisors.” Pursuant to R.C. 4117.01(C)(10), supervisors are not public employees under the Act. Thus, while such a holding would strip the police and fire command officers of the benefits and the protections of the Act, it follows that they also would be relieved of the duties, obligations and proscriptions of the Act. With the Ferguson Act having been mercifully repealed, such a decision would leave the officers in question in a position to engage in a strike without penalty, except that which might lawfully be meted out by administrators pursuant to civil service regulations. While this is highly unlikely to occur, given the professionalism and dedication of fire and police personnel, such a result would insure our return to the days when chaos was the order of the day.

It is my judgment that to rule in favor of appellant would be taking one giant step backward in the evolving relationship in Ohio between public employers and their employees. The practical effect of such a decision would be to once again relegate certain of Ohio’s municipal employees to second-class citizenship. History, the Ohio Constitution, statutes, precedent and just plain fundamental fairness would seem to militate against such a result.

The legislature of this state has given us a workable solution to a difficult problem. We should not disturb that legislative wisdom which has provided for this state a sensible approach to public employment labor relations.

I join with the majority in affirming the judgment of the court of appeals.