South Community, Inc. v. State Employment Relations Board

Douglas, J.,

dissenting. Because I believe there is no right of appeal in this case, I dissent.

The most persuasive arguments advanced by appellants, arguments I find utterly compelling, are not even addressed in the majority opinion. The first of these involves the language of R.C. 119.12, which precludes an appeal in this case.

R.C. 4117.02(M) states that “[except as otherwise specifically provided in this section, the [state employment relations] board is subject to Chapter 119 of the Revised Code * * The majority seems to believe that this provision automatically means a right of appeal always exists unless otherwise specified in R.C. 4117.02. Clearly, this is not the case. The above section merely states that “the board is subject to Chapter 119 * * which must mean that the board is subject to all the provisions of that chapter, including those which withhold any right of appeal. In this case, the very portion of R.C. 119.12 quoted by the majority, in a footnote, without analysis, actually precludes appellee’s appeal.

R.C. 119.12 provides in pertinent part:

“Any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the court of common pleas of Franklin county * * (Emphasis added.)
“Adjudication” is defined in R.C, 119.01(D) as “* * * the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person * *

Appellee is attempting to appeal SERB’S determinations that appellee’s employees are “public employees” and that the employees eligible to vote in the re-run election are limited to those *229who were eligible to vote in the first election. These orders are purely interlocutory in nature, and, hence, are not appealable. Only final adjudications are appealable under R.C. 119.12. State, ex rel. Harris, v. Williams (1985), 18 Ohio St. 3d 198, 18 OBR 263, 480 N.E. 2d 471. “ ‘[T]he touchstone of finality * * * [is] the fixing of obligations or legal relationships.’ ” Id. at 201, 18 OBR at 265, 480 N.E. 2d at 473. The orders appellee is attempting to appeal fix no obligations and impose no liability; they were merely preparatory to further proceedings, i.e., the representation election and the certification of its results.

That an administrative order must be final before it becomes appealable under R.C. 119.12 is further clarified by the provisions of R.C. 2505.03(A), which states in relevant part:

“Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, agency, board, department, tribunal, commission, or other instrumentality may be reviewed on appeal by a court of common pleas * * (Emphasis added.)

Thus, the appeal “provided by law” under R.C. 119.12 is strictly limited to appeals of final orders. A “final order” is defined in R.C. 2505.02 as “[a]n order that affects a substantial right made in a special proceeding.” Absolutely no substantial right of appellee has been affected by this proceeding. SERB’S administration of the election and the certification of its results do not impinge on any right of appellee in this case. The election is concerned solely with the question of the representation of appellee’s employees in the collective bargaining process. Thus, appellee has no right of appeal.

Additionally, this court has held that “[bjefore an appeal can successfully be brought to the Court of Common Pleas of Franklin County under the provisions of R.C. Chapter 119, the proceedings of the administrative agency must have been quasi-judicial in nature.” State, ex rel. Bd. of Edn., v. State Bd. of Edn. (1978), 53 Ohio St. 2d 173, 176, 7 O.O. 3d 357, 358, 373 N.E. 2d 1238, 1241, citing Section 4(B), Article IV of the Ohio Constitution. SERB representation election proceedings are fundamentally administrative. It is obvious from the provisions of R.C. 4117.07 that the function of SERB is to supervise the election to ensure that it is properly and fairly conducted. SERB’S role does not involve the exercise of discretion of a judicial nature.

The conclusion that SERB’S orders in representation elections are non-appealable finds further support in the analogous federal case law. Following the holding of the United States Supreme Court in American Federation of Labor v. NLRB (1940), 308 U.S. 401, federal courts uniformly rule that there is no direct judicial review of proceedings for certification of elections of the collective bargaining representative. See, e.g., Charlie Rossi Ford, Inc. v. Price (C.A. 9, 1977), 564 F. 2d 372; Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers of America v. NLRB (C.A.D.C. 1971), 449 F. 2d 1046, 1048, at fn. 2.

Furthermore, this court has held that, in certain circumstances, the jurisdiction of an administrative agency will be deemed to be exclusive. For example, this court has ruled that “[t]he jurisdiction specifically conferred by statute upon the Public Utilities Commission over public utilities of the state * * * is so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive. ” (Emphasis added.) State, ex rel. Ohio Bell Tel. Co., v. Court (1934), 128 Ohio St. 553, 557, 1 *230O.O. 99, 100-101, 192 N.E. 787, 788-789. See, also, State, ex rel. Northern Ohio Tel. Co., v. Winter (1970), 23 Ohio St. 2d 6, 52 O.O. 2d 29, 260 N.E. 2d 827; State, ex rel. Geauga Cty. Budget Comm., v. Court (1982), 1 Ohio St. 3d 110, 1 OBR 143, 438 N.E. 2d 428 (Board of Tax Appeals). Where such exclusive jurisdiction is vested in an administrative agency, assertion of jurisdiction by a court constitutes a usurpation of judicial authority. Winter, supra, at 9, 52 O.O. 2d at 30, 260 N.E. 2d at 829.

A review of R.C. Chapter 4117 reveals that the jurisdiction vested in the State Employment Relations Board is immense in its scope. The board was vested with the authority to, inter alia, hold hearings, R.C. 4117.02(H)(3), conduct investigations, R.C. 4117.02(G), adopt rules and procedures, R.C. 4117.02(H)(8), issue subpoenas, R.C. 4117.02(H)(3), determine the appropriate bargaining unit, R.C. 4117.06(A), direct, conduct, and certify the results of representation elections, R.C. 4117.07, adjudicate charges of unfair labor practices, R.C. 4117.12, administer dispute resolution procedures, R.C. 4117.14, and determine whether a strike is authorized, R.C. 4117.23. In short, the jurisdiction conferred on the board by the General Assembly is so extensive, self-contained and all-encompassing as to warrant the conclusion that it is likewise exclusive, except where otherwise specified.3 Thus, the intervention of a court, except where expressly permitted, constitutes a usurpation of judicial powers. Winter, supra.

The procedure envisioned by the legislature in representation elections is clear. First, the employees choose an exclusive representative for purposes of collective bargaining. This may be accomplished in several ways, the most typical of which is by election. Larson, Bumpass, Ashmus & Ward, Public Sector Collective Bargaining: The Ohio System (1984) 24. A petition for such an election may be filed by employees, by an individual or organization acting on their behalf, or by the employer. Upon the filing of such a petition, SERB, if it has reasonable cause to find an existing question of representation, will conduct a hearing. If, after the hearing, SERB determines that such a question exists, an election will be ordered. R.C. 4117.07(A). SERB supervises the conduct of the election according to its own rules, and certifies the entity which receives a majority of the valid ballots cast as the exclusive representative of the bargaining unit. R.C. 4117.07(C)(3). At this point, a dissatisfied employer may file objections to the election. Ohio Adm. Code 4117-5-10. If SERB rejects this challenge, the employer may seek indirect appeal by refusing to bargain with the exclusive representative, await the inevitable charge of unfair labor practice, and raise the alleged invalidity of the election as a defense. In the latter case, if SERB finds that the employer has engaged in an unfair labor practice, that order is appealable to the court of common pleas. R.C. 4117.13(D).

This restriction of the right of appeal in representation election matters is neither unfair nor illogical. In examining the similar design of the federal law, courts have recognized that the underlying purpose of this restriction is “to avoid dilatory tactics which would postpone the commencement of bargaining when the employer really had no substantial objections to the conduct of the election other than a desire to delay bargaining as long as possible.” Boire v. Miami Herald Pub. *231Co. (C.A. 5, 1965), 343 F. 2d 17, 20. See, also, Boire v. Greyhound Corp. (1964), 376 U.S. 473, 476-479; Groendyke Transport, Inc. v. Davis (C.A. 5, 1969), 406 F. 2d 1158, 1163.

Clearly, the General Assembly did not intend that public employers could appeal a SERB order certifying an organization as the exclusive representative of a public employee bargaining unit. There can be no doubt that when the General Assembly enacted R.C. Chapter 4117, it meant the Act to be an efficient and practical means for facilitating the bargaining process and aiding in the resolution of disputes. Piecemeal appeals such as that allowed today will cripple the bargaining process beyond rehabilitation. With the Act robbed of its efficacy on interminable delays and uncertainly, the legislature’s intentions will never be realized.

The delay occasioned by repeated legal challenges to election proceedings can, of course, be extreme. For example, in Ohio Historical Society v. State Emp. Relations Bd. (June 30, 1988), Franklin App. Nos. 87AP-1179 and 87AP-1230, unreported, motion to certify allowed (1988), 39 Ohio St. 3d 716,_N.E. 2d_, it was noted that the employees filed an election petition in May 1984, which was contested by the employer, the Ohio Historical Society. When SERB rejected the argument that the Society was not a public employer, the Society appealed to the Court of Common Pleas of Franklin County. The Society also filed a declaratory judgment action in that court, seeking a declaration that it was not a public employer. That action was dismissed. By the time the court of appeals issued a decision on June 30, 1988, over four years had passed since the filing of the petition, and no election had yet been held. Surely this is not the expeditious, orderly disposition envisioned by the General Assembly. Instead, our legislators intended to provide public employers and employees with a prompt hearing before a body with expertise in the area of public employment relations.

One of the primary objectives of the Act was to reduce the number of public sector work stoppages in Ohio. Prior to the passage of the Act, this state experienced one of the worst records in the nation with regard to the frequency of strikes by public employees, even though the Ferguson Act, then in effect, outlawed such actions. In 1980, Ohio had sixty such strikes — the third highest public employee strike rate in the country. Note, S. 133: Ohio’s Public-Sector Collective-Bargaining Framework (1984), 9 U. Day. L. Rev. 583, 595. Between 1973 and 1980, there were four hundred twenty-eight public sector strikes in this state, an average of over fifty a year. State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St. 3d 1, 5, 22 OBR 1, 4, 488 N.E. 2d 181, 185.

A comparison of these alarming numbers with the statistics since the passage of R.C. Chapter 4117 shows a remarkable change. In the two years following the passage of the Act, there was a total of nine strikes. Sharpe & Tawil, Fact-Finding in Ohio: Advancing the Role of Rationality in Public Sector Collective Bargaining (1987), 18 U. Tol. L. Rev. 283,301. Obviously, the Act is enjoying a phenomenal success.

Of course, there will be those who say that this success has come at too high a price. Some of the “costs” most often cited are the reduced autonomy of municipalities and other political subdivisions, which may no longer unilaterally dictate many contract terms, and the allegedly increased budget burden in the form of higher employee salaries, etc. Those who com*232plain that these costs outweigh the benefits of the Act would do well to remember the high price exacted by conditions existing before its passage. The financial losses suffered by cities due to lost work days were no doubt monumental. The potential for such losses has been drastically curtailed by the adoption of the Act. Surely the concessions which collective bargaining may require from public employers are not too high a price to pay for ending the strike epidemic. In practical terms, these concessions will mean that the people of this state will no longer face the disruptions and hardship caused by frequent work stoppages in education, public transportation, garbage collection, police and fire protection, and other vital services. The public coffers will no longer be drained by incessant strikes, and the public employees who might have resorted to a strike in the past will not have to suffer the personal deprivations such actions incur. Public employees who previously had to engage in “collective begging” now are accorded rights of “collective bargaining.” In short, everyone benefits from the success of the Act.

However, I now fear that the Act’s success will be short-lived. If collective bargaining is permitted to be repeatedly disrupted by scattershot appeals such as the one allowed today, the entire process will disintegrate and the noble purposes of the Act will be frustrated.

Such a result was avoided when the Act managed to survive the first wave of attacks in State, ex rel. Dayton Fraternal Order of Police and Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St. 3d 50, 26 OBR 42, 496 NE. 2d 983. Today’s decision, however, attempts to cut the heart right out of the body of the Act. If this occurs, it will indeed be unfortunate and possibly even disastrous.

Accordingly, I would reverse the judgment of the court of appeals and reinstate the order of the trial court dismissing this appeal.

Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion.

See R.C. 4117.12(C), 4117.13(D), 4117.15(A), 4117.16(A) and 4117.23(B)(3).