Ohio Historical Society v. State Employment Relations Board

Alice Robie Resnick, J.,

dissenting. Although I have misgivings about the manner in which the majority resolves some of the procedural matters in this case, I limit my discussion to the principal issue presented. That issue is whether the Ohio Historical Society (“the Society”) is a “public employer” for purposes of R.C. Chapter 4117. A thoughtful consideration of relevant statutory provisions points to one inescapable conclusion: Even if one accepts the somewhat dubious assumption that the Society is a private corporation, the Society is clearly a “public employer” as that term is used in R.C. 4117.01(B). The majority’s determination that the Society is not a public employer is irreconcilable with the undisputed facts underlying this case. I dissent.

I

The employees of the Society are “public employees” pursuant to R.C. 4117.01(C), and therefore their employer must be a “public employer” pursuant to R.C. 4117.01(B), because the Society inescapably is an “other branch of public employment” as specified in the last phrase of R.C. 4117.01(B).

R.C. 4117.01(C) specifically provides that the term “public employee” includes any person who works “pursuant to a contract between a public employer and a private employer and over whom the national labor relations board [‘NLRB’] has declined jurisdiction on the basis that the involved employees are employees of a public employer[.]” (Emphasis added.) I believe that the General Assembly, through this provision, was addressing precisely the situation presented by this case. SERB’S order finding the Society to be a public employer relied on R.C. 4117.01(C). While SERB noted that “a respectable argument could be mounted that the Society is a public employer based on the similarities between the functions of the [S]ociety and those of state government,” SERB realized there was no need to entertain that inquiry. The Society’s employees clearly fit the definition of “public employees” contained in the “including” language of R.C. 4117.01(C).

It is apparent that employees of the Society work pursuant to a contract between the state and the Society. The majority even seems to recognize this, stating that “[t]he Society’s relationship with the state is based on contract. The Society contracts with the state to perform certain public functions designated in R.C. 149.30 for which the Society receives public funds.” However, the majority appears to reason that, because the Society’s privately funded work and publicly funded work are “inextricably intertwined,” the Society’s employees are not working “solely” pursuant to a contract with the state, and thus are not “public employees.” However, the word “solely” doe's not appear anywhere in R.C. 4117.01(C). As noted by the majority, the *481Society performs numerous public functions and receives approximately sixty-five to seventy percent of its total operating budget from state appropriations. It is clear that the Society’s employees work “pursuant to a contract” with the state. Because the NLRB has already declined jurisdiction over the Society’s employees, both requirements of R.C. 4117.01(C) are met, and the Society’s employees are “public employees.”

The concurring opinion seems to intimate that the NLRB erred by declining to exercise jurisdiction over the employees. However, the propriety of the NLRB’s determination actually is irrelevant. What is of consequence is that the NLRB ruled as it did, thereby fulfilling one of the specific requirements of R.C. 4117.01(C). Moreover, the General Assembly, when it enacted R.C. Chapter 4117, attempted to provide that all employees in Ohio would be covered either by that chapter (if public employees) under SERB’S jurisdiction unless expressly excluded, or by the National Labor Relations Act (if not public employees) under the jurisdiction of the NLRB. The General Assembly therefore chose to define “public employee” two ways in R.C. 4117.01(C). In most cases, the definition is straightforward: a public employee is one who works for a public employer. However, the legislature did not stop there in defining “public employee,” but continued with the “including” language. A public employee can also be one who works for a private employer which has some, but not all, the attributes of a public employer. When an employer’s status as a public employer is in doubt, the legislature provided that that employer’s employees might still be “public employees” when the NLRB declined to exercise jurisdiction over them.

If the Society’s employees are “public employees” (as they obviously are), it is glaringly apparent that the Society, as their employer, must be a “public employer” for R.C. Chapter 4117 purposes. The Society’s argument that sometimes employees may be “public employees,” but their employer may at the same time not be a “public employer” should be unequivocally rejected. R.C. 4117.01(B) must be read in pari materia with R.C. 4117.01(C). A “public employer” is, by definition, one who employs “public employees.” And a “public employee” is, by definition, one who works for a “public employer.” When the definition of either R.C. 4117.01(B) or (C) is fulfilled, the definition of the other provision is also fulfilled. The General Assembly’s decision to add the open-ended phrase “other branch of public employment” at the end of R.C. 4117.01(B) is an indication that in some instances a “public employer” may not possess all of the attributes of a state body. The Society, by advocating that we read R.C. 4117.01(B) and (C) as if they are unrelated, fails to appreciate the legislative intent that all employees in Ohio fall within the jurisdiction of either the NLRB or SERB.

*482R.C. 4117.22 requires that “Chapter 4117. of the Revised Code shall be construed liberally for the accomplishment of the purpose of promoting orderly and constructive relationships between all public employers and their employees.” The majority’s narrow interpretation of the definitional provisions of R.C. 4117.01 cannot be reconciled with the overall purpose of R.C. Chapter 4117, which is to afford collective bargaining rights, specified in R.C. 4117.03, to all “public employees.” As this court recognized in Cincinnati Metro. Hous. Auth. v. State Emp. Relations Bd. (1990), 53 Ohio St.3d 221, 226, 560 N.E.2d 179, 184: “[R.C. Chapter 4117’s] overriding purpose is embodied in the very broad definition of ‘public employer,’ to extend the coverage of [R.C. Chapter 4117] as widely as possible in order to prevent the disruption of important public services by labor disputes.”

The majority states that “[i]n both form and substance the Society is a private corporation.” The majority appears to rely heavily on the finding that the Society is a private entity to reach the ultimate conclusion that the Society cannot be a “public employer.” The majority places too much emphasis on the word “private” and does not thoughtfully consider the purposes underlying R.C. Chapter 4117, including R.C. 4117.01(C)’s clear provision that sometimes the employees of a “private employer” can be “public employees.” Cincinnati Metro. Hous. Auth., supra, does not at all stand for the proposition argued by the Society that only a public body can be a public employer. Rather, that case is an affirmation that an expansive, not a limiting, definition should be given to the term. The Society clearly falls within the definition provided by the General Assembly. The majority’s analysis, which is based on a very narrow interpretation of “public employer,” cannot be accepted. The proper approach is diametrically opposed to that of the majority, who would appear to require the legislature to enact a statute explicitly declaring the Society to be a public employer before it would acknowledge that fact.

Even though the Society argues that it is a private entity, the Society itself has admitted that it is not private for all purposes. In State ex rel. Fenley v. Ohio Historical Soc. (1992), 64 Ohio St.3d 509, 597 N.E.2d 120, the issue presented involved whether R.C. 149.43 (Ohio’s public records law) obligated the Society to provide copies of public records by mail. Not at issue in that case was the question whether the Society is subject to the public records law — the Society clearly conceded that it is. For an entity to fall within the public records law, R.C. 149.43(A)(1) provides that the entity must be a “public office,” a term defined in R.C. 149.011(A). In State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 602 N.E.2d 1159, this court determined that the University of Toledo Foundation, a private nonprofit corporation, is a public office for R.C. 149.43 purposes, and is subject to the public records law. See, also, State ex rel. Fostoria Daily Review Co. v. *483Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313 (a private, nonprofit corporation which performs a public function and is supported by public tax money is a “public office” within the meaning of R.C. 149.011[A], and is subject to the public records law). Even though determining whether an entity is a public office for R.C. 149.43 purposes differs significantly from determining whether it is a public employer for R.C. Chapter 4117 purposes, each inquiry requires a consideration of the distinction between a public and a private entity. Univ. of Toledo Found, and Fostoria Hosp. Assn. readily stand for the general proposition that although an entity may be a private one, it may still be public for some purposes. If the Society, allegedly a private entity, can be a public office for R.C. 149.43 purposes (as it has admitted it is), the Society also conceivably could be a public employer for R.C. Chapter 4117 purposes. As explained above, the Society is unquestionably a “public employer.” The Society’s purported status as a private corporation does not preclude that determination, because R.C. 4117.01(C) specifically provides that, in the proper circumstances, the employees of a “private employer” are “public employees.” This case clearly presents those proper circumstances.

In summary, the Society’s employees work “pursuant to a contract between a public employer and a private employer,” and “the national labor relations board has declined jurisdiction on the basis that the involved employees are employees of a public employer[.]” R.C. 4117.01(C). Because those two conditions are met, the Society qualifies as an “other branch of public employment” within the meaning of R.C. 4117.01(B), and the Society is a “public employer.” I would reverse the judgment of the court of appeals on this issue.

II

The majority analyzes at length whether the Society qualifies as “the state or any political subdivision of the state” for R.C. 4117.01(B) purposes, ultimately determining that the Society is neither the state nor a political subdivision of it. Given the foregoing view (expressed in Part I of this dissenting opinion) that R.C. 4117.01(C) specifically leads to the conclusion that the Society is a “public employer,” there is no real need to reach this question. However, the majority’s reasoning cannot go unchallenged, and so I address the issue.

R.C. 4117.01(B)’s definition of “public employer” includes “ * * * any state agency, authority, commission, or board, or other branch of public employment.” It is apparent that the Society is a “state agency” in the sense of this definition. The Society has numerous attributes of a state agency, which *484considered together make it at the very least the de facto equivalent of a state agency for R.C. Chapter 4117 purposes. It is incomprehensible how the majority is able to acknowledge these attributes, and yet find the Society is not a public employer. As the majority notes, the Society possesses the following characteristics:

—Pursuant to the Society’s constitution, nine members (one-half) of the Society’s board of trustees are appointed by the Governor.

—The Society enters into contracts with public, as well as private, entities.

—The Society performs numerous public functions for the state, as detailed in R.C. 149.30.

—State appropriations provide approximately sixty-five to seventy percent of the Society’s total operating budget.

—Employees of the Society are explicitly authorized to participate in the Public Employees Retirement System by R.C. 149.30.

—The Society’s records are examined annually by the Auditor of State.

—The Society awards credit for previous state work time to former state employees it hires.

—State appropriations provided approximately ninety-five percent of the Society’s 1985 funds for capital improvements.

—The Society has a state agency number in the state budget for identification purposes.

These characteristics, taken in the aggregate, present an overwhelming scenario. Were several of these factors not present, this might have been a closer case. However, the large amount of state funding, taken alone, is a clear indicium of a public employer. Likewise, when an employer’s employees participate in the Public Employees Retirement System, that alone also provides a strong indicator that the employer must be a public employer. The factors the majority relies on to find that the Society is not a public employer do not come close to countering the case in favor of finding that the Society is a public employer. However, as explained in Part I of this dissenting opinion, there is an even stronger ground for finding that the Society is a public employer, so that a resort to consideration of whether the Society possesses indicia of a public employer should not even be necessary.

A.W. Sweeney and F.E. Sweeney, JJ., concur in the foregoing dissenting opinion.