State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Employment Relations Bd., 85-314

• Decision Date: 16 January 1986
• Docket Number: No. 85-314,85-314
• Citation: 22 Ohio St.3d 1,488 N.E.2d 181
• Parties: , 124 L.R.R.M. (BNA) 2649, 22 O.B.R. 1, 1984-86 SERB 373 The STATE, ex rel. DAYTON FRATERNAL ORDER OF POLICE LODGE NO. 44, v. STATE EMPLOYMENT RELATIONS BOARD et al.
• Court: Ohio Supreme Court

Page 1

22 Ohio St.3d 1

488 N.E.2d 181, 124 L.R.R.M. (BNA) 2649, 22 O.B.R. 1,

1984-86 SERB 373

The STATE, ex rel. DAYTON FRATERNAL ORDER OF POLICE LODGE NO. 44, v. STATE EMPLOYMENT RELATIONS BOARD et al.

No. 85-314.

Supreme Court of Ohio.

Jan. 16, 1986.

Syllabus by the Court

1. The collective bargaining law of the state of Ohio is a law of a general nature. As such, the second sentence of R.C. 4117.01(F)(2) violates Section 26, Article II of the Ohio Constitution in that the provision in question does not have uniform operation throughout the state of Ohio.

2. The second sentence of R.C. 4117.01(F)(2) is null and void as it offends the equal protection guarantees of Section 2, Article I of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution since the classification contained therein bears no rational relationship to the legitimate governmental purposes of the Public Employees Collective Bargaining Act.

On April 12, 1972, the City Commission of Dayton, Ohio passed an ordinance dealing with public-sector collective bargaining. The ordinance provided that certain categories of employees, including "supervisory employees," could not participate in the collective bargaining process. It further provided that the city manager was responsible for " * * * determining the appropriate representation unit * * *." On December 29, 1972, the city manager determined that all Dayton Police Department sergeants, lieutenants and captains and all lieutenants, captains and district chiefs of the Dayton Fire Department were "supervisory employees" within the meaning of the ordinance and excluded them from the bargaining unit represented by the Dayton Fraternal Order of Police Lodge No. 44 ("FOP") and the International Association of Fire Fighters.

The FOP then filed a lawsuit in the Court of Common Pleas of Montgomery County challenging the validity of the ordinance and seeking a judicial determination of its rights. On July 22, 1976, the court declared that the ordinance was valid in all respects, that police sergeants, lieutenants and captains were "supervisory employees" within the meaning of the ordinance, and that the city manager had properly excluded them from the FOP representation unit. ¹ On May 16, 1978, the court of appeals affirmed. ²

In 1983, Ohio enacted the Public Employees Collective Bargaining Act, which is codified in R.C. Chapter 4117. The Act, which took effect on April 1, 1984, created the State Employment Relations Board ("SERB") (R.C. 4117.02[A] ) and provided that the SERB would be responsible for determining whether proposed employee bargaining units qualify as a bargaining unit under the terms of the Act (R.C. 4117.06). In addition, the Act broadly defines "public employer," R.C. 4117.01(B), and "public employee," R.C. 4117.01(C), but states that "supervisors" do not have collective bargaining rights under the Act, R.C. 4117.01(C)(10) and 4117.03.

R.C. 4117.01(F) defines "supervisor":

" 'Supervisor' means any individual who has authority, in the interest of the public employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other public employees; to responsibly direct them; to adjust their grievances; or to effectively recommend such action, if the exercise of that authority is not of a merely routine or clerical nature but requires the use of independent judgment * * *."

The broad sweep of this definition is substantially narrowed by R.C. 4117.01(F)(2):

"With respect to members of a police or fire department, no person shall be deemed a supervisor except the chief of the department or those individuals who, in the absence of the chief, are authorized to exercise the authority and perform the duties of the chief of the department. Where prior to June 1, 1982, a public employer pursuant to a judicial decision rendered in litigation to which the public employer was a party, has declined to engage in collective bargaining with members of a police or fire department on the basis that such members are supervisors, those members of a police or fire department do not have the rights specified in Chapter 4117 of the Revised Code for the purposes of future collective bargaining. * * * "

The second sentence of R.C. 4117.01(F)(2) is the so-called "Dayton Amendment," and is the subject of this lawsuit.

On or about April 4, 1984, the FOP filed a Request for Voluntary Recognition as a bargaining unit with the SERB. A copy of the request was served on the city of Dayton. The request described the proposed bargaining unit as, "[s]worn supervisors of [the] Dayton Police Department holding the ranks of Sergeant, Lieutenant and Captain." The request was assigned case No. 84-VR-04-0231. By a letter dated May 29, 1984, the Mayor of Dayton wrote to the SERB, stating in part:

"As you are well aware, supervisors in Dayton's city government are treated differently, under state law, than supervisors in uniformed services in other communities. * * *

"The so-called 'Dayton Amendment' to the new State Collective Bargaining Law is thought, by some, to be unconstitutional in that Dayton's uniformed supervisors are addressed differently than those in all other Ohio cities.

"We are seeking direction and decision from the members of the State Employment Relations Board. * * *

" * * * [I]t would only seem fair if supervisory employees around the state were treated as are Dayton's employees, or, in the alternative, Dayton's employees were treated as all others--in other words, the law should probably apply one way or the other, equally across the state of Ohio.

"We are, therefore, requesting that this case be used as a vehicle for obtaining a formal, legal opinion as to the constitutionality of the 'Dayton Amendment' to the State Collective Bargaining Law."

On May 31, 1984, the city of Dayton filed a motion to dismiss the FOP Request for Voluntary Recognition on the ground that the bargaining unit proposed by the FOP consisted of persons who are not "public employees" under the Act and thus " * * * do not have the rights specified in Chapter 4117. of the Revised Code for purposes of collective bargaining, because prior to June 1, 1982 * * * [the city] declined to engage in collective bargaining with such [police department] members pursuant to judicial decisions in litigation to which the * * * [city] was a party."

On June 14, 1984, a SERB hearing officer issued a proposed order recommending that the city's motion to dismiss be granted. He noted that Dayton's Mayor had requested that the board determine the constitutionality of the "Dayton Amendment," but concluded that since the SERB was an administrative agency, and not a court, it had no authority to make such a determination. He went on to find that Dayton Police Department sergeants, lieutenants and captains did not have the right to engage in collective bargaining, " * * * in that they were determined to be supervisors under the terms of * * * [the relevant Dayton ordinance] pursuant to a judicial decision rendered in litigation to which the public employer was a party prior to June 1, 1982."

The FOP filed exceptions to the proposed order with the entire board. On November 21, 1984, the board issued an opinion in effect accepting the hearing officer's recommendations. The board found that the " * * * [Dayton Amendment] was intended to apply, and does apply, exclusively to the Dayton Police Department " (emphasis added), and that "[i]t is conceivable * * * that the uniquely exclusive specificity of the 'judicial decision' exemption offends the equal protection provisions of the Ohio Constitution and the equal protection clause in the Fourteenth Amendment of the United States Constitution." (Footnotes omitted.) The board concluded that since it was a part of the executive branch of government, it had no authority to declare the "Dayton Amendment" unconstitutional, and that such a determination could only be made by the judiciary.

On February 25, 1985, relator, the FOP, filed a complaint in this court seeking a writ of mandamus to require the SERB to reinstate case No. 84-VR-04-0231, and to rule on it in accordance with the law. Relator further requested this court to declare the "Dayton Amendment" unconstitutional. The city of Dayton and the SERB were named as respondents.

Jaffy, Livorno, Kaufmann & Arnett Co., L.P.A., Stewart R. Jaffy and Henry A. Arnett, Columbus, for relator.

Anthony J. Celebrezze, Jr., Atty. Gen., and Loren L. Braverman, Columbus, for respondent SERB.

J. Anthony Sawyer, Acting Law Director, Pickrel, Schaeffer & Ebeling, Richard J. Holzer, Andrew C. Storar and Janet K. Cooper, Dayton, for respondent City of Dayton.

DOUGLAS, Justice.

I

With the enactment of the Public Employees Collective Bargaining Act, Ohio adopted a comprehensive law to govern labor relations between public employees and their employers. This legislation was long overdue. The Act replaced the outmoded, unworkable and unfair Ferguson Act. By the time the new Act went into effect, Ohio was the fortieth state to have enacted some form of legislation to regulate their public-sector labor relations. ³

Until the Act went into effect, Ohio had no legal framework governing public-sector labor relations, and dealt with these issues on an ad hoc basis. Student Project: Public Sector Collective Bargaining in Ohio: Before and After Senate Bill No. 133 (1983), 17 Akron L.Rev. 229. This produced an abundance of litigation and controversy and, in fact, there were four hundred twenty-eight public employee work stoppages in Ohio between the years 1973 and 1980. ⁴ There were no guiding principles which public employers and employees could review in order to structure their conduct in dealing with terms and conditions of employment. Thus, the pre-Act system, if it can be called a system, was an ineffective and costly way to manage public-sector labor relations.

The new Act is a positive step forward....