Davis v. Hocking Cty. Sheriff

• Citation: 76 Ohio App.3d 843,603 N.E.2d 406
• Decision Date: 26 February 1992
• Docket Number: No. 91CA2,91CA2
• Parties: DAVIS, Appellant, v. HOCKING COUNTY SHERIFF, Appellee. *
• Court: United States Court of Appeals (Ohio)

Page 843

76 Ohio App.3d 843

603 N.E.2d 406

DAVIS, Appellant, v. HOCKING COUNTY SHERIFF, Appellee. ^*

No. 91CA2.

Court of Appeals of Ohio, Fourth District, Hocking County.

Decided Feb. 26, 1992.

Edwin C. Johnson, Logan, for appellant.

Downes & Hurst and Mark A. Fishel, Columbus, for appellee.

STEPHENSON, Presiding Judge.

This is an appeal from a judgment entered by the Hocking County Court of Common Pleas, which affirmed an order of the State Personnel Board of Review ("SPBR") dismissing on jurisdictional grounds an appeal by Raymond E. Davis of his removal from employment as a deputy sheriff by James P. Jones, the Sheriff of Hocking County. The following error is assigned:

"The court erred in affirming the decision of the State Personnel Board of Review dismissing the appeal of appellant."

The factual background of this appeal is basically undisputed. Appellant was employed as a deputy sheriff in the Hocking County Sheriff's Department. On May 9, 1990, appellant was removed from his position of deputy sheriff for, inter alia, failure of good behavior, neglect of duty, violation of department rules and conduct unbecoming an officer. An attachment to the removal order set forth specific alleged acts justifying removal.

At the time of his removal there was in effect a collective bargaining agreement between the Hocking County Sheriff's Department and the International Brotherhood of Teamsters, Public Employees of Ohio, Local 450 entered into pursuant to authority granted by R.C. Chapter 4117. Appellant was a member of the bargaining unit and within the coverage of the agreement. Article 12 provided for a grievance procedure and, in various subsections, set forth the procedures for processing a grievance, including final and binding arbitration. It is also undisputed that given the definition in Section 12.2, Article 12 of a grievance "as a dispute or controversy arising from only the misapplication or misinterpretation or compliance with the specific and express written provisions of this Agreement," and that Section 31.3, Article 31 provides that the tenure of bargaining unit employees shall "continue with good behavior and efficient service" and that an employee may be discharged for "just cause," the grievance procedure would be applicable.

Included in the collective bargaining agreement is Section 12.3(e), Article 12, which reads as follows:

"The existence of this Grievance Procedure, hereby established, shall not be deemed to require any employee to pursue the remedies herein provided and shall not impair or limit the right of any employee to pursue any other remedies available under law, except that any employee who pursues any other available remedy, other than provided by this procedure, shall automatically have waived and forfeited any remedies provided by this procedure."

Appellant timely appealed his removal, pursuant to authority granted in R.C. 124.34, to the SPBR, which has jurisdiction granted by R.C. 124.03. Appellee filed a motion to dismiss, asserting SPBR lacked jurisdiction by reason of R.C. 4117.10(A), which reads, inter alia, as follows:

"An agreement between a public employer and an exclusive representative entered into pursuant to Chapter 4117. of the Revised Code governs the wages, hours, and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure. Where no agreement exists or where an agreement makes no specification about a matter, the public employer and public employees are subject to all applicable state or local laws or ordinances pertaining to the wages, hours, and terms and conditions of employment for public employees."

An administrative law judge of the SPBR filed a report and a recommendation that the appeal be dismissed by the board for lack of jurisdiction. The hearing officer interpreted the contract language of reservation to allow the employee to pursue any other remedies available under law by stating as follows:

"It is urged on behalf of the appellant in this matter that Article 12, Section 12.3(e), does not limit the right of Appellant Davis to pursue any other remedies available under law. This contention is correct. However, this provision expressly refers to 'remedies available under law,' and because of the particular circumstances of Mr. Davis at the time of his removal, because of the nature of the collective bargaining agreement which covered his position, and because of the nature of the statutory language contained within Ohio Revised Code Section 4117.10(A), the State Personnel Board of Review is not an agency which is 'available under law' to provide a remedy as to Mr. Davis's removal. The language of Ohio Revised Code Section 4117.10(A) specifically and expressly excludes remedies, otherwise available from the State Personnel Board of Review, from the circumstances underlying this appeal." (Emphasis sic.)

SPBR accepted the recommendation and dismissed the appeal. Appellant appealed pursuant to R.C. 124.34 and 119.12 to the court below, which affirmed the order of dismissal by finding the order "supported by reliable, probative and substantial evidence and * * * in accordance with law."

The primary issue this appeal presents for review is whether the interpretation of R.C. 4117.10(A) by SPBR and the court below was proper in construing the language therein providing that "[i]f the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure."

Appellee, as apparently did the court below, urges, in effect, that the above language be construed to apply not only when there is a collective bargaining agreement containing mandatory final and binding arbitration of grievances, but also to agreements where it is optional with an employee to utilize the contract grievance procedure therein.

The unarticulated premise of such argument is that the General Assembly intended to restrict the right of parties to negotiate agreements wherein the utilization of the grievance procedure is optional. We conclude that if the General Assembly had intended that interpretation it would have utilized appropriate language to reflect such intention. It is not...