576 N.E.2d 745 (Ohio 1991), 90-544, Cincinnati v. Ohio Council 8, American Fedn. of State, Cty. & Mun. Emp., AFL-CIO

Docket Nº:90-544.
Citation:576 N.E.2d 745, 61 Ohio St.3d 658
Opinion Judge:HERBERT R. BROWN, J.
Attorney:Richard A. Castellini, City Sol., and Mark C. Vollman, Cincinnati, for appellee., Ronald H. Janetzke, Columbus, Kirschner, Weinberg & Dempsey, Larry P. Weinberg and Robert D. Lenhard, Washington, D.C., for appellants. Richard A. Castellini, city solicitor, and Mark C. Vollman, Cincinnati for appe...
Judge Panel:MOYER, C.J., concurs. SWEENEY and DOUGLAS, JJ., concur in part and dissent in part. RESNICK, J., concurs in the syllabus, but would reverse the judgment of the court of appeals and reinstate the judgment of the trial court. HOLMES, J., concurs in part and dissents in part. WRIGHT, J., concurs in ...
Case Date:August 27, 1991
Court:Supreme Court of Ohio

Page 745

576 N.E.2d 745 (Ohio 1991)

61 Ohio St.3d 658




No. 90-544.

Supreme Court of Ohio.

August 27, 1991

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Submitted Feb. 6, 1991.

SYLLABUS BY THE COURT [61 Ohio St.3d 659]

1. The provisions of a collective bargaining agreement entered into pursuant to R.C. Chapter 4117 prevail over conflicting laws, including municipal home-rule charters enacted pursuant to Section 7, Article XVIII of the Ohio Constitution, except for those laws specifically exempted by R.C. 4117.10(A). (R.C. 4117.1 0[A], construed; Rocky River v. State Emp. Relations Bd. [1989], 43 Ohio St.3d 1, 539 N.E.2d 103, and Clermont Environmental Reclamation Co. v. Wiederhold [1 982], 2 Ohio St.3d 44, 2 OBR 587, 442 N.E.2d 1278, followed; Ebbing v. Hamilton [1985], 29 Ohio App.3d 69, 29 OBR 79, 502 N.E.2d 661, disapproved.)

2. A "permissive" subject of collective bargaining is one whose inclusion in th e agreement is not prohibited by law, but which is not one of the mandatory sub jects of bargaining listed in R.C. 4117.08(A). While parties to a collective b argaining relationship are required to bargain over mandatory subjects, they are not required to do so with regard to permissive subjects. (R.C. 4117.01[G], 4117.08[A] and 4117.11[A] and [B], construed.)

3. The language of R.C. 4117.10(A) which provides that collective bargaining ag reements generally prevail over conflicting

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laws applies equally to contract pr ovisions encompassing mandatory subjects of bargaining and those encompassing permissive subjects of bargaining. (R.C. 4117.10[A], construed.)

Appellants, Ohio Council 8 and Locals 190, 223, 240, 250, 1543, and 3119 of the American Federation of State, County and Municipal Employees ("AFSCME"), are the collective bargaining representatives of several bargaining units consisting of the employees of the appellee, the city of Cincinnati. The city and AFSCME have been parties to a series of collective bargaining [61 Ohio St.3d 660] agreements governing their relationship which have included the following provision:

"The City agrees to check-off employee deductions to Public Employees Organized for Political Legislative Equality (PEOPLE)."

PEOPLE is AFSCME's political action committee, apparently funded by voluntary contributions from AFSCME members. PEOPLE makes contributions to candidates for political office. The city contends that contributions are made to candidates for federal, state and local office, including in Ohio, while AFSCME contends that they are made solely [1991 SERB 4-88] to candidates for federal office and to candidates in states other than Ohio. Some PEOPLE funds are apparently also used for lobbying and political education programs.

The 1981-1983 collective bargaining agreement also contains the following provision, entitled "Legality":

"It is the intent of the City and the Union that this Agreement comply, in every respect, with applicable * * * charter requirements * * *. If it is determined by a proper legal authority that any provision of this Agreement is in conflict with law, that provision shall be null and void * * *. In the event of an unlawful determination [sic ], that provision shall be reopened, and the City and the Union shall meet within fourteen (14) calendar days for the purpose of negotiating a lawful alternative provision."

The parties do not dispute that in September 1980, the City Solicitor informed AFSCME that he believed the PEOPLE deductions violated Section 4, Article V of the City Charter, a provision commonly referred to as Cincinnati's "Little Hatch Act." This provision states in pertinent part:

"No person in the administrative service shall directly or indirectly give, solicit or receive, or in any manner be concerned in giving, soliciting or receiving any assessment, subscription or contribution for any political party or for any candidate. * * * "

The city stopped collecting PEOPLE contributions in July 1981. AFSCME commenced grievance procedures under the collective bargaining agreement which culminated in an arbitral award finding the city in breach of the agreement. In the arbitral proceeding, the city argued that the legality provision operated to invalidate the PEOPLE checkoff provision. The arbitrator noted, however, that the city presented no evidence that the PEOPLE funds were being used in a manner which violated the charter. Accordingly, he concluded that the city had breached the agreement, and ordered the city to resume collecting checkoff funds. The arbitrator's award was upheld by the courts in an action brought under R.C. 2711.09; however, the issue of the legal validity of the PEOPLE checkoff provision was not considered. American [61 Ohio St.3d 661] Fedn. of State, Cty. & Mun. Emp. v. Cincinnati (Apr. 25, 1984), Hamilton App. No. C-830539, unreported, 1984 WL 6874.

The city filed the instant case in 1983, seeking a declaration that the PEOPLE checkoff provision is invalid because it violates Section 4, Article V of the charter. After protracted litigation, during which the city and AFSCME apparently agreed to successor collective bargaining agreements containing the PEOPLE checkoff provision, the Court of Appeals for Hamilton County held that the provision was invalid.

This cause is before this court pursuant to the allowance of a motion to certify the record.

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Richard A. Castellini, City Sol., and Mark C. Vollman, Cincinnati, for appellee.

Ronald H. Janetzke, Columbus, Kirschner, Weinberg & Dempsey, Larry P. Weinberg and Robert D. Lenhard, Washington, D.C., for appellants.


This case presents two issues for our determination: (1) whether, under R.C. Chapter 4117, the Public Employees' Collective Bargaining Act, a provision in a collective bargaining agreement prevails over a conflicting provision in a municipal home-rule charter, and (2) whether the collective bargaining agreement at issue here requires the city to deduct contributions to PEOPLE. For the reasons which follow, we answer the first query in the affirmative, but find that the record does not contain sufficient evidence to resolve the second, and remand for further proceedings.


Home-Rule Charters and R.C. 4117.10(A)

Before the Collective Bargaining Act became effective, a collective bargaining agreement between a public employer and its employees was enforceable only to the extent that it was not contrary to law. See Struthers City Schools Bd. of Edn. v. Struthers Edn. Assn. (1983), 6 Ohio St.3d 308, 6 OBR 368, 453 N.E.2d 613; Dayton Classroom Teachers Assn. v. Dayton Bd. of Edn. (1975), 41 Ohio St.2d 127, 70 O.O.2d 223, 323 N.E.2d 714. Under the old rule, public employers sometimes attempted to avoid their responsibilities under collective bargaining agreements by asserting that a particular provision was "contrary to law"--particularly where the provision in question gave employees greater rights than those provided by statute. See, e.g., Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d [61 Ohio St.3d 662] 129, 551 N.E.2d 186. More frequently, confusion over just what was or was not "contrary to law" led to protracted litigation.

The Collective Bargaining Act, most specifically R.C. 4117.10(A), completely changed this rule. That statute provides, in pertinent part:

" * * * Laws pertaining to civil rights, affirmative action, unemployment compensation, workers' compensation, the retirement of public employees, residency requirements, the minimum educational requirements contained in the Revised Code pertaining to public education including the requirement of a certificate by the fiscal officer of a school district pursuant to section 5705.41 of the Revised Code, and the minimum standards promulgated by the state board of education pursuant to division (D) of section 3301.07 of the Revised Code prevail over conflicting provisions of agreements between employee organizations and public employers. * * * "

This provision lists laws which prevail over a conflicting provision in a collective bargaining agreement. "Under the principle of statutory construction that inclusion of a list of items will exclude other items not on the list, the remaining thousands of state and local laws which may conflict with the contracts, do not prevail over those contracts." O'Reilly, Ohio Public Employee Collective Bargaining (1984) 176; see, also, Lewis & Spirn, Ohio Collective[1991 SERB 4-89] Bargaining Law (1983) 70; Larson, Ashmus, Bumpass & Ward, Public Sector Collective Bargaining: The Ohio System (1984) 69. R.C. 4117.10(A) simplifies contract administration by eliminating concern over whether an agreement is "contrary to law," and encourages honesty and good faith in collective bargaining by requiring the parties to live up to the agreement they make.

R.C. Chapter 4117, of which R.C. 4117.10(A) is a part, is a law of a general nature which is to be applied uniformly throughout the state. State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St.3d 1, 22 OBR 1, 488 N.E.2d 181. As such, it prevails over any inconsistent provision in a municipal home-rule charter by virtue of Section 3, Article XVIII of the Ohio Constitution. See, e.g., Clermont Environmental Reclamation Co. v. Wiederhold (1982), 2 Ohio St.3d 44, 48-49, 2 OBR

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587, 590-591, 442 N.E.2d 1278, 1281-1282, and cases therein cited. We have also recognized that R.C. Chapter 4117 prevails over home-rule charters because it was enacted pursuant to Section 34, Article II of the Ohio...

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