Department of Administrative Services, Office of Collective Bargaining v. State Employment Relations Bd., s. 90-537

• Citation: 562 N.E.2d 125,54 Ohio St.3d 48
• Decision Date: 03 October 1990
• Docket Number: Nos. 90-537,90-538 and 90-539,s. 90-537
• Parties: , 1990 SERB 4-71 DEPARTMENT OF ADMINISTRATIVE SERVICES, OFFICE OF COLLECTIVE BARGAINING, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellees; Fraternal Order of Police, Ohio Labor Council, Inc., Appellant. The STATE, ex rel. FRATERNAL ORDER OF POLICE, Ohio Labor Council, Inc., v. COURT OF APPEALS FOR FRANKLIN COUNTY et al. The STATE, ex rel. FRATERNAL ORDER OF POLICE, Ohio Labor Council, Inc., v. DEPARTMENT OF ADMINISTRATIVE SERVICES et al.
• Court: United States State Supreme Court of Ohio

Page 48

54 Ohio St.3d 48

562 N.E.2d 125, 1990 SERB 4-71

DEPARTMENT OF ADMINISTRATIVE SERVICES, OFFICE OF COLLECTIVE BARGAINING, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellees;

Fraternal Order of Police, Ohio Labor Council, Inc., Appellant.

The STATE, ex rel. FRATERNAL ORDER OF POLICE, Ohio Labor Council, Inc., v. COURT OF APPEALS FOR FRANKLIN COUNTY et al.

The STATE, ex rel. FRATERNAL ORDER OF POLICE, Ohio Labor Council, Inc., v. DEPARTMENT OF ADMINISTRATIVE SERVICES et al.

Nos. 90-537, 90-538 and 90-539.

Supreme Court of Ohio.

Submitted June 19, 1990.

Decided Oct. 3, 1990.

Syllabus by the Court

[1990 SERB 4-71] When a court patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction regardless of whether the lower court has ruled on the question of its jurisdiction. State, ex rel. Mansfield Tel. Co., v. Mayer (1966), 5 Ohio St.2d 222, 34 O.O.2d 428, 215 N.E.2d 375, and State, ex rel. Osborn, v. Jackson (1976), 46 Ohio St.2d 41, 75 O.O.2d 132, 346 N.E.2d 141, overruled to the extent that they are inconsistent with this opinion.

In 1987, the Fraternal Order of Police ("FOP"), Ohio Labor Council, Inc. filed a motion with the State Employment Relations Board ("SERB") to hold a representation election for a collective bargaining unit for Ohio Highway Patrol sergeants. The Office of Collective Bargaining ("OCB"), Department of Administrative Services objected to formation of the bargaining unit.

On March 16, 1989, after hearing, SERB decided that the sergeants were not "supervisors," as defined in R.C. Chapter 4117, and thus were not precluded from belonging to a bargaining unit. It then ordered an election to be held. FOP prevailed in the election and on October 12, 1989, SERB certified FOP as the exclusive bargaining representative for the sergeants.

OCB appealed the certification order to the Court of Common Pleas of Franklin County. On December 13, 1989, the court of common pleas dismissed the appeal, holding that OCB had no statutory right to appeal SERB's decision, and that the court, therefore, lacked jurisdiction to hear the appeal. OCB appealed this dismissal to the Court of Appeals for Franklin County and sought a stay of execution of the trial court's judgment. The court of appeals construed the motion for stay as a motion for injunction and enjoined FOP and its agents "from further negotiations predicated upon * * * [SERB's] certification order * * *."

On March 30, 1990, FOP appealed to this court (case No. 90-537), arguing in its memorandum in support of jurisdiction that the court of appeals had no jurisdiction to enjoin negotiations. FOP also filed a motion to dissolve the stay or injunction in case No. 90-537. Also, on March 30, 1990, FOP filed complaints in prohibition (case No. 90-538) and mandamus (case No. 90- 539) seeking, respectively, to prohibit the court of appeals from hearing the appeal and enforcing the temporary injunction, and to compel OCB to bargain collectively under the Public Employees' Collective Bargaining Act. The respective respondents have filed motions to dismiss case Nos. 90-538 and 90-539 for failure to state a claim on which relief can be granted. In case No. 90-537, OCB urges this court to overrule FOP's motion to certify the record and to dismiss FOP's motion to dissolve the court of appeals' injunction. FOP has filed motions for consolidation in all three cases, and OCB has moved to intervene instanter as of right in case No. 90-538.

Paul L. Cox and Kay E. Cremeans, for the Fraternal Order of Police, Ohio Labor Council, Inc.

Anthony J. Celebrezze, Jr., Atty. Gen., Schottenstein, Zox & Dunn Co., L.P.A., Felix C. Wade and William J. Barath, for Dept. of Administrative Services, Office of Collective Bargaining.

Anthony J. Celebrezze, Jr., Atty. Gen., and Robert E. Ashton, for the State Employment Relations Board in case Nos. 90-537 and 90-538.

[1990 SERB 4-72] Michael Miller, Pros. Atty., and Carol Hamilton O'Brien, for the Court of Appeals for Franklin County et al. in case No. 90-538.

PER CURIAM.

For the reasons that follow, we grant the various motions to consolidate the cases, overrule the motion to certify the record in case No. 90-537, grant OCB's motion to intervene in case No. 90-538, grant a writ of prohibition in case No. 90-538, and deny a writ of mandamus in case No. 90-539.

FOP's Right to Immediate Appeal

(Case No. 90-537)

The court of common pleas held that it had no jurisdiction to consider OCB's appeal from SERB's order because OCB is not a "person" as defined in R.C. 119.01(F), ¹ and only parties who are persons may appeal under R.C. 119.12. ² As is discussed more fully below, we affirm this conclusion under State, ex rel. Osborn, v. Jackson (1976), 46 Ohio St.2d 41, 75 O.O.2d 132, 346 N.E.2d 141. However, the correctness of this conclusion does not make the court of appeals' acceptance of the case on its docket a final, appealable order.

R.C. 2505.02 defines "final order" as follows:

"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. * * * "

The mere docketing of a case by the court of appeals does not constitute an "order" as described in R.C. 2505.02. Therefore, docketing the case is not a final order subject to immediate appeal.

FOP also argues that the court's enjoining of collective bargaining during pendency of the appeal is itself a final, appealable order because it was made in a special proceeding and affects a substantial right, citing Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452. In Amato, we held that a trial court's class certification order in a class action is a final, appealable order, and that determining immediate appealability under the "special proceeding" clause of R.C. 2505.02 " * * * is resolved through a balancing test. This test weighs the harm to the 'prompt and orderly disposition of litigation,' and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable." Id. at 258, 21 O.O.3d at 161, 423 N.E.2d at 456.

FOP's argument fails this test. Nothing makes appeal to this court following the court of appeals' decision "not practicable." FOP argues that there has been too much delay already, which has deprived employees of their proper representation. Conceding this still does not make appeal "not practicable."

More important, we have frequently held that denial of a motion to vacate a common pleas court's temporary restraining order or temporary injunction is not a final order under R.C. 2505.02. Jones v. First Natl. Bank of Bellaire (1931), 123 Ohio St. 642, 176 N.E. 567, syllabus; State, ex rel. Northern Ohio Tel. Co., v. Winter (1970), 23 Ohio St.2d 6, 52 O.O.2d 29, 260 N.E.2d 827; Forest Hills Util. Co. v. Whitman (1975), 41 Ohio St.2d 25, 70 O.O.2d 114, 322 N.E.2d 646; State, ex rel. Add Venture, Inc., v. Gillie (1980), 62 Ohio St.2d 164, 16 O.O.3d 198, 404 N.E.2d 151. See, also, State, ex rel. Tilford, v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245. We find no reason to apply a different rule to injunctions issued by a court of appeals.

FOP also argues that the court of appeals had no authority to issue the temporary injunction under App.R. 7, but this argument is rebutted on the face of the rule:

"(A) * * * A motion * * * for an order * * * granting an injunction during the pendency of an appeal may be made to the court of appeals * * *. * * * The motion * * * normally will be considered by at least two judges of the court * * *."

Moreover, R.C. 2727.05 provides:

" * * * Upon like proof [an affidavit satisfactory to the court], an injunction also may be allowed by the supreme court or court of appeals, or by a judge of either, as a temporary remedy, during the pendency of a case on appeal in such courts."

R.C. 2727.03 also provides for issuance of injunctions by courts of appeals. Accordingly, the motions to certify the record and to dissolve the injunction are overruled. FOP's Request for a Writ of Prohibition and OCB's

Motion to Intervene (Case No. 90-538)

OCB has filed a motion to intervene under Civ.R. 24. Civ.R. 24(A) states, in part:

"Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

FOP has not objected to OCB's intervention. In Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 352, 505 N.E.2d 1010, 1013, the Court of Appeals for Franklin County held that Civ.R. 24(A)(2) should be liberally construed to permit intervention, citing McCormac, Ohio Civil Rules Practice (1970), at 81, Section 4.36. Moreover, in Schucker v. Metcalf (Nov. 15, 1984), Franklin App. No. 84AP-548, unreported, 1984 WL 5986, reversed on other grounds (1986), 22 Ohio St.3d 33, 22 OBR 27, [1990 SERB 4-73] 488 N.E.2d 210, Judge McCormac, writing for the court of appeals, permitted persons who were not public officials to intervene in a prohibition case under Civ.R. 24(A)(2). We follow this rule of liberal construction and grant OCB's motion to intervene in this case.

Respondents argue in their motion to dismiss that a court of appeals has authority to determine its own jurisdiction, that appeal and not prohibition is the proper remedy...