Holmes, J.,
concurring in part and dissenting in part. I concur in the judgment of the majority which affirms the judgment of the court of appeals that permits Ohio Historical Society (“OHS”) to maintain a declaratory judgment action in the trial court in order to determine whether the State Employment Relations Board (“SERB”) properly concluded it was a “public employer” for purposes of R..C. Chapter 4117. As the court of appeals noted, “[i]nasmuch as the trial court’s decision to grant or deny declaratory relief is usually a discretionary one, this matter must be reversed and remanded to that court to allow it to reconsider its action and reevaluate the motions to dismiss in the Society’s declaratory judgment action. * * *”
I must respectfully dissent from the majority’s opinion holding that *49SERB’S determination that OHS is a public employer is not a final appealable order, but rather establishes only a preliminary matter.
I believe the narrow issue presented in this case is whether an adjudication that an employer is a public employer is appealable prior to a representation election. Obviously, such an adjudication not only determines whether SERB has the authority to order an election, but also whether the employer, in this case OHS, is subject to all the other provisions of the Public Employees’ Collective Bargaining Act. Notwithstanding the outcome of the election, SERB has determined in this case that OHS is subject to the Act and to SERB’S jurisdiction.1
I adhere to the position espoused by the New York Court of Appeals in In the Matter of New York (Ins. Dept. Liquidation Bur.) v. Pub. Emp. Relations Bd. (1986), 68 N.Y. 2d 695, 506 N.Y. Supp. 2d 305, 497 N.E. 2d 672, where an employer appealed a decision of the Public Employment Relations Board (“PERB”), holding that it was a “public employer” under the New York Civil Service Law. The board and union urged dismissal on the ground that no appeal was available until after an election and order certifying the union as the bargaining agent. The New York Court of Appeals reversed a decision in favor of PERB and explicitly adopted the dissenting opinion of the intermediate appellate court, which stated: “Here, PERB dealt only with whether the State Insurance Department Liquidation Bureau (Bureau) was a ‘public employer’ as that term is defined in Civil Service Law * * * [Section] 201(6). No determination was made relative to defining the negotiating unit or verifying the employees’ choice of organization to represent them. Moreover, an election will not moot the issue of whether the Bureau is a ‘public employer.’ * * * ‘[C]ommon sense and fairness require that petitioners be allowed to proceed with their Article 78 proceeding at this juncture, rather than incur the time and expense required in the certification process * * * which would not be required if the Bureau is subsequently deemed to be a nonpublic employer.’ ” In the Matter of New York (Ins. Dept. Liquidation Bur.) v. Pub. Emp. Relations Bd. (1985), 114 App. Div. 2d 734, 736, 494 N.Y. Supp. 2d 514, 516-517 (Yesawich, J., dissenting). Clearly, an election will not moot the issue of whether OHS is a “public employer.” Rather, OHS will have to expend the time, energy, and funds for an election, which otherwise could prove to be a meaningless exercise. Furthermore, if no exclusive bargaining representative is selected in the representation election, OHS will be subject to repeated elections at least every twelve months, and will not be able to appeal SERB’s determination that it is a “public employer” until an exclusive representative is elected. See R.C. 4117.07(B)(6).
The majority cites several cases for the proposition that preliminary orders concerning representation elections are not generally appealable. Of these cases I find Panama City v. Fla. *50Pub. Emp. Relations Comm. (Fla. App. 1976), 333 So. 2d 470; Renton Edn. Assn. v. Wash. State Pub. Emp. Relations Comm. (1979), 24 Wash. App. 476, 603 P. 2d 1271; Orlando v. Orlando Professional Fire Fighters (Fla. App. 1982), 412 So. 2d 406; and Div of State Lands Emp. Assn. v. Div of State Lands (1985), 72 Ore. App. 559, 696 P. 2d 578, not to be on point. Specifically, the above-cited cases do not address whether the employer is subject to the state collective bargaining laws. Rather they discuss which particular organization should be certified by the respective board as the exclusive bargaining representative, or the designation and classification of certain employees.
Moreover, the majority improperly relies on Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio (1989), 46 Ohio St. 3d 147, 545 N.E. 2d 1260 (“MRDD”), for support in this case. In MRDD we determined that an “order mandating a rerun certification election is an interlocutory order.” Id. at paragraph four of the syllabus. Nowhere in MRDD did we discuss whether a determination by SERB that an employer was a “public employer,” within the meaning of R.C. 4117.01 et seq., was a final appealable order. The present case is distinguishable from MRDD in that the key issue here is not whether SERB had the authority to order an election, but whether SERB had any jurisdiction in the first instance over the employer. See Harrison v. Labor Relations Comm. (1973), 363 Mass. 548, 551, 296 N.E. 2d 196, 198 (Supreme Judicial Court of Massachusetts held that postponement of judicial review was not necessary in cases where the state Labor Relations Commission acted outside its jurisdiction); Leedom v. Kyne (1958), 358 U.S. 184, 188 (Supreme Court of the United States held that certain decisions of the National Labor Relations Board, normally not reviewable, that were made in excess of its powers were reviewable by the federal district court).
Accordingly, I would hold that OHS is entitled to appeal from SERB’S adjudication that OHS is a “public employer” and/or OHS may maintain a declaratory judgment action to determine whether it is subject to SERB’S jurisdiction.
The determination by SERB that OHS was a “public employer” made OHS arguably subject to, at least, the provisions of R.C. 4117.03 (rights of public employees); R.C. 4117.07 (petitions for representation elections); and R.C. 4117.11 (unfair labor practices), irrespective as to whether the results of the representation election were certified or an election was ever held.