Hamilton County Board of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio

Douglas, J.,

concurring in part and dissenting in part. As indicated by the majority, there are four major issues for us to resolve in this case. I write separately because our determination of these issues could very well have an effect on administrative law and labor relations in our state for an extended period of time.

I

In proposition of law number four, appellee, “MRDD,” argues that the State Employment Relations Board, “SERB,” is not a proper party to common pleas court proceedings brought pursuant to R.C. 119.12. The court of appeals agreed with MRDD on the basis that SERB is not a “person” or “party” within the meaning of R.C. 119.01 and, therefore, could not bring an appeal pursuant to R.C. 119.12. Thus, according to the court of appeals, SERB has no right to participate in any capacity in an appeal brought pursuant to R.C. 119.12.

MRDD’s contention and the holding of the court of appeals are clearly in error. In addition to those parts of R.C. 119.12 cited by MRDD and the court of appeals, the section also provides that:

“The judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal. Such appeals may be taken either by the party or the agency * * * and shall be pursuant to the Rules of Appellate Procedure * * *. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules of the agency, and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas * * *.” (Emphasis added.)

It is obvious, and elementary, that if an agency can appeal from the judgment of a court of common pleas, that agency must also be able to participate in the proceedings which occur in the court of common pleas. Accordingly, without addressing the adjudication-enforcement argument, it is enough to say that the statute permits SERB to be a party in appellate review and, in addition, that sound public policy *156reasons support SERB’S right to participate in cases involving appellate review of its decisions. See, further, Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St. 2d 256, 18 O.O. 3d 450, 416 N.E. 2d 614, where we recognized that there is a difference between courts and administrative agencies with regard to adjudication and enforcement.

I concur in the first sentence of paragraph five of the syllabus of the majority opinion. Since we are not called upon to decide the question decided in the second sentence of paragraph five, I make no judgment thereon.

II

I concur in paragraph two of the syllabus and the discussion of the majority supporting the holding.

III

I concur with paragraph four of the syllabus, as it is a correct proposition of law. I do not agree, however, with the majority’s assertions and discussion supporting the proposition.

The appeal herein of the SERB directive was filed pursuant to R.C. 119.12. Such right of appeal, when it exists, arises from orders of state administrative agencies whereby “[a]ny party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the court of common pleas * * (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 * * *.” (Emphasis added.) “Person” is defined in R.C. 119.01(F) as “* * * a person, firm, corporation, association, or partnership.”

MRDD argues that it is a “person” because it is a “public employer,” and R.C. 4117.01(A) provides that the term “person” includes “public employers.” However, MRDD, in order to reach its desired conclusion, mixes apples with oranges — R.C. Chapter 4117 with R.C. Chapter 119. MRDD states that R.C. 4117.02(M) makes SERB’S orders subject to an R.C. Chapter 119 appeal. I disagree with this proposition but accept it for purposes of argument. If MRDD is correct, then the descriptive terms set forth in R.C. Chapter 119 must be used to determine the requirements for appeal — not the definitional terms of R.C. Chapter 4117.

MRDD uses this ploy with the hope that the resulting confusion will carry the day. Recognizing the weakness of this argument, MRDD then essentially argues that it is, as a derivative of the board of county commissioners, a “body corporate and politic” in an attempt to fit itself into R.C. 119.01(F).4 The difficulty encountered by MRDD in this regard is that Ohio law is to the contrary!

As far back as the year 1910, this court, in Board of Cty. Commrs. v. Gates (1910), 83 Ohio St. 19, 30, 93 N.E. 255, 259, said that “* * * a county is not a body corporate but rather a subordinate political division * * *157(Emphasis added.) In Schaffer v. Board of Trustees (1960), 171 Ohio St. 228, 230, 12 O.O. 2d 343, 344, 168 N.E. 2d 547, 549, the court said that “* * * a county is a subdivision of the state, organized for judicial and political purposes. It is not a legal person or a separate political entity. * * *” (Emphasis added.) The Schaffer court then explained the difference between a county as an organization and a true corporation such as a “municipal corporation.” See, also, Western Pa. Natl. Bank v. Ross (C.A. 6, 1965), 345 F. 2d 525.

Thus, it is clear that neither MRDD nor the board of county commissioners is a “specified person” as required by R.C. 119.01(D). Further, it is clear that neither entity is a “person” as defined in R.C. 119.01(F). Accordingly, even though I agree with paragraph four of the syllabus (and paragraph three of the syllabus as an abstract proposition of law5), there has been no “adjudication” which these entities may appeal.6 Thus, the SERB order is interlocutory and hence not appealable, and R.C. 2505.02 is inapplicable since the requirements of R.C. Chapter 119 have not first been met.

IV

Further, SERB’S order was not an “adjudication” as required by R.C. 119.12 and defined in R.C. 119.01(D). The rerun election order of SERB did not determine the rights, duties, privileges, benefits, or legal relationships of a specified person. All the order did was establish the right of the union and a group of unnamed employees to have a new election. In fact, it is conceivable that in a fairly held rerun election, MRDD could win. Then, of course, there would be nothing to appeal. Accordingly, SERB’S rerun election order was not an “adjudication” and, therefore, is not appealable.

V

Our problems with today’s case are directly attributable to our decision in South Community, Inc. v. State Emp. Relations Bd. (1988), 38 Ohio St. 3d 224, 527 N.E. 2d 864. In that case, I warned, in my dissent, that “* * * [p]iecemeal appeals such as that allowed today will cripple the bargaining process beyond rehabilitation. * * *” Id. at 231, 527 N.E. 2d at 870. Further, “* * * [i]f 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.” Id. at 232, 527 N.E. 2d at 871.

While I am pleased that today’s majority now seems to see the error of *158South Community and limits, to some degree, its effectiveness, it is my judgment that we should meet the entire problem head-on and overrule South Community. By adding as accepted authority Staples v. Ohio Civ. Serv. Emp. Assn./American Fed. of State, Cty. & Mun. Emp., Local 11, AFL-CIO (1986), 32 Ohio App. 3d 9, 513 N.E. 2d 821, the majority just compounds the problem.

The procedural history of Staples should be recalled. This court had originally unanimously decided to review Staples. Subsequent to our vote certifying the case for review, the parties entered into a joint motion to dismiss the appeal on the basis that they had settled their differences and the appeal was moot. Acting on that motion, this court, in Staples v. Ohio Civ. Serv. Emp. Assn./American Fed. of State, Cty. & Mun. Emp., Local 11, AFL-CIO (1987), 31 Ohio St. 3d 602, 31 OBR 490, 510 N.E. 2d 805, dismissed the appeal. I dissented as to the dismissal because I believed then and still believe that the issue in Staples of the final appealability of a rerun election order under R.C. Chapter 119 was a “ * * question of great public or general interest * * ” id. at 603, 31 OBR at 490, 510 N.E. 2d at 805, which this court should have decided at that time. Our failure to do so now leaves the holding of the Staples case untested by Supreme Court appellate review and directly leads us to today’s decision which seems, in my opinion, to go against the holding in Staples, all the while citing it as authority.

VI

This leads, then, to a discussion of the last issue in this case and to paragraph one of the syllabus in the majority opinion. I respectfully dissent from the holding pronounced in paragraph one and the discussion supporting the proposition set forth. MRDD is not a “person” entitled to appeal an order of SERB pursuant to R.C. 119.12.

R.C. 119.12 provides that a “party” may appeal any order of an agency issued pursuant to an “adjudication.” To be a “party,” one must also be a “person” pursuant to R.C. 119.01(G). To be a “person,” one must meet the definition found in R.C. 119.01(F). I have already set forth that MRDD does not meet the “adjudication” requirements or the “person” requirements of the statute. Accordingly, MRDD is not entitled to appeal the order of SERB now under review. See, further, State, ex rel. Osborn, v. Jackson (1976), 46 Ohio St. 2d 41, 75 O.O. 2d 132, 346 N.E. 2d 141, and Thaxton v. Medina City Bd. of Edn. (1986), 21 Ohio St. 3d 56, 21 OBR 357, 488 N.E. 2d 136.

VII

In conclusion, the real tragedy of this case is the disenfranchising, for a substantial period of time, of certain public employees who were meant, by the General Assembly in enacting R.C. Chapter 4117, to be protected by the representation and collective bargaining process. We have fostered and perpetuated this unfairness by our decision in South Community where I predicted that allowing a public employer to appeal election proceedings would result in repeated delays which very well could cripple the bargaining process.

The case at bar perfectly illustrates my point. Employees, through their chosen union, Professionals Guild of Ohio, filed a petition for a representation election with SERB on July 15, 1985. The election was held on October 15, 1985 but, upon appeal to SERB, the election was found not to have been fairly conducted because of certain ac*159tions of MRDD.7 SERB ordered a rerun election but, instead of complying, MRDD appealed SERB’S order. The case has been tied up in the courts ever since — and it is now the fall of 1989, four years later.

Thus, the employees of MRDD have had no opportunity to vote in a fair election in order to decide whether to be represented by Professionals Guild. Such an unwarranted delay infringes on the employees’ rights granted them in R.C. 4117.03(A)(1). Courts should not be unwitting participants in such a travesty and, hopefully, today’s decision will put such activities to rest.

Accordingly, this court should dismiss the entire appeal for lack of jurisdiction. Because the majority decision does not do so, I concur in part and dissent in part.

Sweeney and Resnick, JJ., concur in the foregoing opinion.

I question whether the board of county commissioners (or, for that matter, the commissioners as individuals) are proper parties to this appeal. SERB has not ordered the board or the commissioners, as individuals, to take any action. Only MRDD was the subject of SERB’S order. The board and commissioners only became parties by having their names added to an appeal of an order that did not directly affect them.

Likewise, MRDD argues that it is an “association” and, therefore, fits in R.C. 119.01(F). This argument does not merit further discussion.

The discussion of R.C. 2505.02 in the majority opinion is not complete. There is more than just the first prong of the section. An order, such as we have here under review, might very well be argued to be one affecting a substantial right in a special proceeding. See Lorain Edn. Assn. v. Lorain City School Dist. Bd. of Edn. (1989), 45 Ohio St. 3d 12, 16-17, 544 N.E. 2d 687, 691 (Douglas, J., concurring); Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St. 3d 124, 127, 543 N.E. 2d 1200, 1203 (Douglas, J., dissenting). See, also, Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St. 3d 86, 541 N.E. 2d 64.

The argument is made by appellee(s) that such a holding would permit labor organizations (“associations”) to appeal SERB’S rulings but prevent non-corporate public employers from appealing. This, of course, is incorrect. Public employers (political subdivisions) may obtain judicial review of SERB orders in representation cases by using the unfair-labor-practice process. R.C. 4117.13.

MRDD was ordered to provide the Guild with a list of eligible voters. At various times, MRDD provided at least four different lists. One of the lists was provided just forty-five minutes before the election was to take place.

In addition, MRDD distributed anti-union literature to the employees, both during working hours on MRDD property and through the mails. Part of this information and literature is included in the record and conveys the impression that public employees in Ohio could be jailed for participating in a strike authorized pursuant to R.C. Chapter 4117. This is, of course, incorrect.

Staff meetings concerning the issue were held by the employers during work time and on the work premises. At such meetings, anti-union literature was distributed and commentary unfavorable to the union was presented. The union was never given equal access to the employees.

It was for these and other reasons that SERB ordered a rerun election and this part of SERB’S order has been affirmed by both the trial court and the court of appeals.

Of course, the rerun election has not yet been held!