Ohio Ass'n of Public School Employees v. Dayton City School District Board of Education

572 N.E.2d 80, 59 Ohio St. 3d 159, 1991 Ohio LEXIS 1118, 141 L.R.R.M. (BNA) 2296

• Court: Ohio Supreme Court
• Decided: May 15, 1991
• Docket: No. 90-143
• Status: Published

Opinions

H. Brown, J.

For the reasons which follow, we conclude that a determination by the State Employment Relations Board as to whether to prosecute an unfair labor practice charge is not an adjudication, and affirm the judgment of the court below.

R.C. 4117.11 designates certain acts by employers or employee representatives as unfair labor practices which may be remedied by SERB. R.C. 4117.12(A). R.C. 4117.12(B) provides the means by which the prohibitions of R.C. 4117.11 maybe enforced. Any person may file a charge with SERB. Once a charge is filed, “* * * the board [SERB] or its designated agent shall investigate the charge. If the board has probable cause for believing that a violation has occurred, the board shall issue a complaint and shall conduct a hearing concerning the charge * * *” to adjudicate whether an unfair labor practice has in fact occurred.

Quasi-judicial adjudications by SERB are, of course, subject to judicial review pursuant to R.C. Chapter 119 and R.C. 4117.02(M). South Community, Inc. v. State Emp. Relations Bd. (1988), 38 Ohio St. 3d 224, 527 N.E. 2d 864, syllabus. R.C. 4117.13 also specifically provides for judicial enforcement and review of unfair labor practice adjudications. However, SERB’S investigation and evaluation of an unfair labor practice charge filed by a private party are clearly not an adjudication. Ohio Assn. of Pub. School Emp. v. Cleveland Bd. of Edn. (1987), 37 Ohio App. 3d 126, 524 N.E. 2d 532. Before a complaint is issued, “* * * there is no requirement for notice, hearing, and the opportunity for introduction of evidence.” M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St. 2d 150, 61 O.O. 2d 394, 290 N.E. 2d 562, paragraph two of the syllabus. Because there has been no hearing, there is no record to be filed with the reviewing court as required by R.C. 4117.13(A) and (D). The only record of SERB’S investigation is its investigatory file, which is confidential. See Franklin Cty. Bd. of Commrs. v. State Emp. Relations Bd. (Feb. 3, 1988), Franklin C.P. No. 87CV-12-8196, unreported (reprinted in 1988 SERB 4-16). SERB’S role in this early stage of the proceeding is most closely analogous to that of a public prosecutor investigating a citizen’s complaint of criminal activity. In either case, the decision not to prosecute is discretionary, and not generally subject to judicial review. State, ex rel. Murr, v. Meyer (1987), 34 Ohio St. 3d 46, 516 N.E. 2d 234.

Nor is there a private right to enforce the unfair labor practice provisions of R.C. 4117.11 without the participation of SERB. “The unfair labor practices listed in * * * [R.C.] 4117.11 are the vehicles for each opposing side to challenge the other, through the intervention of the Board. But as much as they seem to be private grounds for attack, they are public in nature. The concept is a public right, where privately initiated complaints are carried through to decision at public expense, with the state vindicating the private persons’ rights through public proceedings.” (Footnotes omitted.) O’Reilly, Ohio Public Employee Collective Bargaining (1984) 51-52, Section 9.01; see, also, Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St. 3d 167, 572 N.E. 2d 87, decided this day.

Nevertheless, the dissent mistakenly asserts that R.C. 4117.13(D) subjects probable cause determinations to judicial review. As is clear from a review of the statute as a whole, R.C. 4117.13 applies only to the enforcement and review of SERB’S final order resulting from an adjudication on the merits of an unfair labor practice case. It does not grant this right to appeal quasi-prosecutorial determinations to proceed or not proceed with unfair labor practice complaints. The language granting a right of appeal to “[a]ny person aggrieved by any final order * * * denying * * * the relief sought * * *,” upon which the dissent so heavily relies, is intended to allow the charging party to appeal where SERB, after a full hearing, finds that an unfair labor practice has not been committed. A probable cause determination is not a final order resulting from an adjudication on the merits of an unfair labor practice case. One must mangle the plain wording of the statute in question in order to effect the “public policy” which the dissent wants to implement.¹

It is worthwhile to compare R.C. 4117.13(D) to 4112.06(A), which governs judicial review of actions by the Ohio Civil Rights Commission. The commission’s role in unlawful discrimination cases is analogous to SERB’s role in unfair labor practice cases. The commission investigates citizen complaints and issues a complaint if it finds probable cause that unlawful discrimination has occurred. R.C. 4112.05(B). R.C. 4112.06(A) grants a right of appeal to anyone “* * * aggrieved by a final order of the commission, including a refusal to issue a complaint * * *.” (Emphasis ¿dded.) If the commission’s probable cause determinations were “final orders” as that term is generally used, the General Assembly would not have needed to add the emphasized language to subject these determinations to judicial review. Conversely, the fact that no such language appears in R.C. 4117.13(D) evinces a clear intent to treat SERB’s probable cause determinations differently — to make them not subject to judicial review.

The General Assembly has made its intent known in plain and unambiguous terms, and we have no power to “construe” the statute to reach a different result. Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E. 2d 413, paragraph five of the syllabus; see, also, Cleveland Trust Co. v. Eaton (1970), 21 Ohio St. 2d 129, 138, 50 O.O. 2d 354, 359, 256 N.E. 2d 198, 204; Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574.

We also note that the procedures for unfair labor practice cases mandated by R.C. 4117.12 and 4117.13 are substantively identical to those established in Section 10 of the National Labor Relations Act to govern unfair labor practice cases before the National Labor Relations Board. Section 160, Title 29, U.S. Code. It has long been established that a decision by the NLRB’s General Counsel not to issue an unfair labor practice complaint is not reviewable by the courts. George Banta Co. v. Natl. Labor Relations Bd. (C.A.4, 1980), 626 F. 2d 354.

Accordingly, we hold that a decision by SERB whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D). The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Holmes and Wright, JJ., concur. Re snick, J., concurs separately. Sweeney and Douglas, JJ., dissent.

1 Given that the General Assembly has made a clear policy choice which we are compelled to respect, the dissent’s comments are more properly directed to that body. However, we do note that there are several reasons why it would not necessarily be desirable from a public policy standpoint to adopt the dissent’s interpretation of R.C. Chapter 4117.

For instance, one party to a labor dispute (be it the employer, the collective bargaining representative, or a rival union) might file a series of unfounded, but colorable, unfair labor practice charges against its opposition as a means of harassment. When SERB dismisses these charges for lack of probable cause, the charging party could, under the dissent’s interpretation, extend the harassment through two appeals of right, to the court of common pleas and the court of appeals, and a possible discretionary appeal to this court, forcing the charged party to expend time and money in court defending its interests. The danger is particularly acute where the charging party is much stronger, financially, than the charged party — a situation which could easily occur when the charging party is an employer and the charged party is a newly formed employee organization. While financial sanctions would perhaps ultimately be available under R.C. 4117.12(B), Civ. R. 11, or App. R. 23, they might come too late to prevent the charging party from securing an unfair and unwarranted advantage in an organizational campaign or in bargaining.

Further, if a finding that probable cause does exist were also deemed appealable, this would permit a charged party which is guilty of unfair labor practices to delay remedial action by SERB for the duration of the appeal process.