South Community, Inc. v. State Employment Relations Board

Holmes, J.

R.C. 119.12 provides generally for appeals of adjudication orders issued by an “agency.” “Agency” is defined in R.C. 119.01(A), which states, in pertinent part:

“ ‘Agency’ means * * * the functions of an administrative or executive officer, department, division, bureau, board, or commission of the government of the state specifically made subject to sections 119.01 to 119.13 of the Revised Code * *

R.C. 4117.02(M) specifically makes SERB subject to R.C. 119.01 to 119.13:

“Except as otherwise specifically *226provided in this section, the board [SERB] is subject to Chapter 119. oí the Revised Code, including the procedure for submission of proposed rules to the general assembly for legislative review under division (H) of section 119.03 of the Revised Code.” (Emphasis added.)

Thus, it appears that SERB is an agency subject generally to R.C. Chapter 119. However, appellants urge this court to limit R.C. Chapter 119’s application solely to rulemaking provisions, and thereby exempt SERB’S adjudications from that chapter’s appeal procedures. To achieve appellants’ desired interpretation, however, one must ignore the express language of R.C. 4117.02(M), and the intention of the General Assembly as revealed therein. The legislature’s choice of the word “including” in R.C. 4117.02(M) indicates a clear intention not to limit, but merely to describe or illustrate. The word “including” obviously is one of enlargement, and not limitation. See, e.g., R.C; 1707.01(P).

Additionally, if the General Assembly had intended R.C. Chapter 119 to be applied only to SERB’S rule-making, it could have so stated as it has often done with other agencies. As an example, R.C. 119.01(A) makes it clear that R.C. Chapter 119 applies to the Bureau of Employment Services only to a limited extent:

“* * * Sections 119.01 to 119.13 of the Revised Code do not apply to actions of the bureau of employment services except those relating to the adoption, amendment, or rescission of rules, and those relating to the issuance, suspension, revocation, or cancellation of licenses.”

Obviously, there is no such limiting language found here applicable to this chapter of law. Instead, the legislature provided that SERB was an agency generally subject to R.C. Chapter 119, including, but not limited to, that chapter’s rulemaking provisions. It behooves this court to follow the legislative intent in this regard and not delete the word “including” from R.C. 4117.02(M), and substitute the words “limited to.”

Appellants contend that the specific right-of-appeal provisions included in R.C. Chapter 4117 are exclusive, and that by reference, R.C. 4117.02(M) is not to be interpreted as a general right of appeal under R.C. 119.12. Accordingly, it is argued by appellants that the Public Employees’ Collective Bargaining Act has provided the only appeals available under R.C. Chapter 4117, which are appeals in those special circumstances that involve an appeal from a final order in an unfair labor practice proceeding, by way of R.C. 4117.13(D), or an appeal of a penalty for an unlawful strike by way of R.C. 4117.23.

However, it is argued by appellee herein, and we agree, that R.C. 4117.13(D) and 4117.23 do not conflict with R.C. 4117.02(M), but merely set forth those circumstances requiring specific procedures to initiate the right of appeal. The procedure for an appeal from a final order in an unfair labor practice proceeding is outlined in R.C. 4117.13(D). This section sets forth the specific procedure to be followed and states that the jurisdiction for such appeal is in “the court of common pleas of any county where the unfair labor practice in question was alleged to have been engaged in, or where the person resides or transacts business * * *_” This latter section also sets forth the review authority of the court of common pleas. As to the factual findings of the board, it limits the court of common pleas as follows: “The findings of the board as to the facts, if supported by substantial evidence on the record as a whole, are conclusive.” As to the final determination of the court *227of common pleas, this section grants broad jurisdiction by providing that: “The court has exclusive jurisdiction to grant the temporary relief or restraining order it considers proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the board.”

R.C. 4117.23 provides for an appeal to the board by an employee of a penalty imposed by the employer for an unauthorized strike, and thence to the court. However, this section provides no procedures or standards for such review. R.C. 4117.13(D) and 4117.23 then do provide for special circumstances quite separate and apart from other matters that could reasonably be presented for a general review pursuant to R.C. 119.12. The specific issues that would be presented pursuant to an appeal of an order in an unfair labor practice proceeding, and the issues presented in an appeal by an employee of a penalty in an unauthorized strike procedure, would be considerably more narrow than the general issues of law that might be brought in an R.C. 119.12 appeal.

Even more restrictive is the specific issue provided for determination within R.C. 4117.06(A), and that is “the unit appropriate for the purposes of collective bargaining.” In this instance, the legislature has deemed SERB to be the appropriate final authority to determine from among a number of competing bargaining units which one is appropriate. This section provides that the board’s “determination is final and conclusive and not appealable to the court.”

R.C. 4117.06(A) does not apply to the issues presented by South Community in this case, i. e., the initial issue of whether these employees are “public employees” subject to the Act, and the issue of whether certain of the employees should have been entitled to vote in the rerun election. In that the exception to appealability of SERB’s order does not apply here, and the more specific appellate sections of this Act are not applicable, the general grant of the right to appeal under R.C. 119.12, provided by R.C. 4117.02(M), would be applicable.

Appellant SERB contends that this court’s decision in State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St. 3d 1, 22 OBR 1, 488 N.E. 2d 181, implicitly recognized that there exists no right of appeal such as we have herein. Such a holding is not to be found either within the syllabus or the opinion of that case. The Dayton case was a mandamus action brought by the relator for the purposes of obtaining a determination that the second sentence of R.C. 4117.01 (F)(2), the so-called Dayton Amendment, was unconstitutional, and to compel SERB to reinstate relator’s “Request for Voluntary Recognition.” The court found that the subject statutory provision was unconstitutional.

In addition, the court rejected the respondent city of Dayton’s argument that relator had an adequate remedy at law under R.C. 2506.01. The court relied on two grounds in rejecting such argument. First, it noted that R.C. 2506.01, “* * * by its own terms, applies only to decisions made by some authority of a ‘political subdivision’ of the state.” Dayton, supra, at 7, 22 OBR at 6, 488 N.E. 2d at 186. As the court stated, the term “political subdivision” does not include the state of Ohio or its agencies; therefore, R.C. 2506.01 could not provide for appeals of determinations by SERB, since it is a state agency. Id. Second, the court stated, the specific terms of R.C. 4117.06(A) make SERB’S determina*228tion of the appropriate bargaining unit final and non-appealable. Since the issue raised by relator involved unit determination, R.C. 4117.06(A) prohibited an appeal. Therefore, the court held that relator had no adequate remedy at law under R.C. 2506.01 and was entitled to maintain its mandamus action.

Also, the appellants argue that appeal of the issues sought here should also be denied based upon a comparative analysis of the chapter of Ohio law pertaining to the Public Employees’ Collective Bargaining Act and the National Labor Relations Act. We feel that it is not necessary to go into any great detail in the analysis of each of these laws and their similarities and differences. It need only be noted that the National Labor Relations Board deals with private sector employers and employees, and SERB deals with public sector employers and employees. The General Assembly has considered the public policy differences, and so enacted R.C. Chapter 4117. Finally, even though we would review the present issues within the general context of the National Labor Relations Act, Ohio’s Act specifically provides for the appeal sought herein by way of R.C. 4117.02(M), which quite clearly carries out the legislative purpose to make SERB subject to R.C. Chapter 119.

Based upon all the foregoing, we hold that R.C. 4117.02(M) creates a general statutory right of appeal and vests jurisdiction in the court of common pleas to determine the issues attempted to be appealed by South Community.

Accordingly, we hereby affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Locher and Wright, JJ., concur. Sweeney, Douglas and H. Brown, JJ., dissent.