Hamilton County Bd. of Mental Retardation and Developmental Disabilities v. Professionals Guild of Ohio

• Decision Date: 25 October 1989
• Docket Number: No. 88-1169,88-1169
• Court: Ohio Supreme Court
• Parties: , 132 L.R.R.M. (BNA) 2897, 1989 SERB 4-104 HAMILTON COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES et al., Appellees, v. PROFESSIONALS GUILD OF OHIO, Ohio Federation of Teachers, et al., Appellants.

Page 147

46 Ohio St.3d 147

545 N.E.2d 1260, 132 L.R.R.M. (BNA) 2897, 1989 SERB 4-104

HAMILTON COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES et al., Appellees, v. PROFESSIONALS GUILD OF OHIO, Ohio Federation of Teachers, et al., Appellants.

No. 88-1169.

Supreme Court of Ohio.

Submitted May 9, 1989.

Decided Oct. 25, 1989.

Syllabus by the Court

1. A county board of mental retardation and developmental disabilities is a "person" entitled to appeal an order of the State Employment Relations Board pursuant to R.C. 119.12.

2. The decision of an administrative agency whether to use its rule-making authority or its adjudication authority to resolve a dispute lies primarily in the informed discretion of the agency.

O.Jur 3d Employment Relations § 442.5

3. An order of the State Employment Relations Board must comply with R.C. 2505.02 to be appealable.

4. A State Employment Relations Board order mandating a rerun certification election is an interlocutory order.

5. The State Employment Relations Board may participate as a party in appellate review of its decisions. However, it is not a necessary or indispensable party to the review proceedings.

The Professionals Guild of Ohio ("union") filed a petition with the State Employment Relations Board ("SERB") on July 15, 1985, alleging that thirty percent of the employees of the Hamilton County Board of Mental Retardation and Developmental Disabilities ("MRDD") desired that the union be elected as their exclusive representative for purposes of collective bargaining. On September 12, 1985, MRDD and the union entered into a consent agreement to hold an election on October 15, 1985 to determine whether the union had the support of a majority of MRDD employees. SERB approved the consent agreement and ordered MRDD to file a list of eligible voters with it no later than September 19, 1985. See R.C. 4117.07.

MRDD filed an eligibility list with SERB, a copy of which was served on the union. The union filed a timely objection with SERB, alleging, inter alia, that the list was incomplete and inaccurate. MRDD filed an amended list, to which the union again objected as being, among other things, inaccurate. A final list was given to the union forty-five minutes before the election. The union also objected to this final list. The record indicates that MRDD had at some earlier time filed another list with SERB but failed to provide the union with a copy.

Notwithstanding its objections to the eligibility lists, the union decided to proceed with the election. The election was held as scheduled and the union lost by a vote of one hundred seventy-six to ninety-one. Thereafter, the union filed objections to the election result with SERB, contending, inter alia, that the election eligibility lists were inaccurate and untimely filed and that MRDD had denied it equal access to MRDD's employees.

MRDD had set rules affecting the election governing access to and solicitation of employees and distribution of materials which limited these activities on MRDD's premises to those conducted among fellow employees during nonwork time and in nonwork areas. In addition, it had distributed anti-union letters and leaflets and conducted voluntary meetings with its employees for the purpose of disseminating its views on unionization.

Following a hearing on the union's complaint, SERB's hearing officer determined that the election had been influenced by the inaccuracies and untimeliness of the eligibility lists as well as MRDD's pre-election conduct. SERB accepted the recommendations of the hearing officer, set aside the election result, ordered a new election, and promulgated rules to govern the rerun election. The rules confined the union's access to MRDD employees to "non-work time in non-work areas," providing, however, that "if the employer conducts meetings of employees * * * on work time in the workplace to express its views on representation, the employee organization must be permitted to conduct a like meeting at the workplace on work time. * * * " The rules also required that all meetings be voluntary.

MRDD, its superintendent, and three Hamilton County Commissioners appealed SERB's order to the Franklin County Court of Common Pleas, asserting that the order was unlawful, not supported by reliable, probative and substantial evidence, and was arbitrary and capricious. The trial court held, inter alia, that SERB's order was supported by reliable evidence and dismissed the appeal.

MRDD, its superintendent and the county commissioners appealed to the Franklin County Court of Appeals, assigning essentially the following errors: (1) the trial court erred in affirming SERB's order in that the order unlawfully adopted agency rules contravening MRDD's inherent and statutory rights to manage and administer facilities under its control; (2) the court erred in affirming SERB's order mandating a new election; and (3) the court erred in failing to dismiss SERB as a party to the appeal.

The union cross-appealed, asserting that a public employer has no right pursuant to R.C. Chapter 119 to appeal a SERB order made in a representation proceeding.

The court of appeals, addressing first the appealability of SERB's decision, held that, pursuant to R.C. 4117.02(M) and its decision in Staples v. Ohio Civ. Serv. Emp. Assn./American Fed. of State, Cty. & Mun. Emp., Local 11, AFL-CIO (1986), 32 Ohio App.3d 9, 513 N.E.2d 821, MRDD and the Hamilton County Commissioners are parties adversely affected by SERB's decision and hence have the right, pursuant to R.C. Chapter 119, to appeal the decision.

Secondly, the court held that " * * * [a]s an agency governed by the rule-making procedure of R.C. Chapter 119, SERB must also comply with the requirements in R.C. 119.03 when adopting proposed rules, including giving reasonable public notice of the proposed rule and the hearing date, filing the proposed rule with the Secretary of State and the director of the Legislative Service Commission sixty days before the adoption of the rule, making the proposed rule available to the public at the agency thirty days before the hearing, and conducting a record hearing at the time designated in the public notice, at which hearing any person affected by the proposed rule may appear and be heard orally or in writing, offer evidence and examine witnesses. * * *" The court indicated that SERB's access, solicitation and distribution rules for the rerun election did not comply [1989 SERB 106] with R.C. 119.03 and could be used only if adopted in accordance with that statute.

The court of appeals affirmed that part of the trial court's decision which sustained SERB's rerun election order. It found, as the trial court did, that the errors in and untimeliness of the eligibility lists may have contributed to the union's loss. Finally, the court held that the trial court erred in failing to dismiss SERB as a party. It indicated that, pursuant to R.C. Chapter 119, SERB cannot be a party in a proceeding in which it is the adjudicating agency.

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

Sponseller & Veltmann, Nancy L. Sponseller, Dublin, and Benjamin B. Segel, Columbus, for appellees Hamilton County Board of Mental Retardation and Developmental Disabilities et al.

Berkman, Gordon, Murray & Palda, George W. Palda and Jeremy A. Rosenbaum, Cleveland, for appellant Professionals Guild of Ohio.

Anthony J. Celebrezze, Jr., Atty. Gen., and Robert E. Ashton, for appellant State Employment Relations Board.

Means, Bichimer, Burkholder & Baker Co., L.P.A., Robert T. Baker and Kimball H. Carey, Columbus, urging affirmance for amicus curiae, Ohio School Boards Association.

MOYER, Chief Justice.

This appeal raises four issues for our disposition.

I

The first issue is whether MRDD is a person under R.C. 119.01(F) and thus a party with the right under R.C. 119.12 to appeal a decision of the State Employment Relations Board.

R.C. 119.12 provides, in pertinent part: "Any party adversely affected by any order of an agency issued pursuant to [an] * * * adjudication may appeal to the court of common pleas of Franklin county * * *."

"Party" is defined in R.C. 119.01(G) as "the person whose interests are the subject of an adjudication by an agency." "Person" is defined in R.C. 119.01(F) as "a person, firm, corporation, association, or partnership."

R.C. 4117.02(M) provides that "[e]xcept as otherwise specifically provided in this section, [SERB] * * * is subject to Chapter 119. of the Revised Code * * *."

SERB and the union contend that MRDD is not a person or party within the meaning of R.C. 119.01 and hence has no right to appeal a SERB adjudication order pursuant to R.C. 119.12. We do not agree.

A political subdivision of a state is embraced within the meaning of the word "person" by a statute such as R.C. 119.01(F) defining "person" as including a corporation, association or partnership. See Ohio v. Helvering (1934), 292 U.S. 360, 370, 54 S.Ct. 725, 727, 78 L.Ed. 1307. A body corporate and politic is a governmental body or public corporation having powers and duties of government. Uricich v. Kolesar (1936), 132 Ohio St. 115, 118, 7 O.O. 222, 223, 5 N.E.2d 335, 337; Utah State Bldg. Comm. v. Great American Indemn. Co. (1943), 105 Utah 11, 140 P.2d 763. Black's Law Dictionary (5 Ed.1979) 307, defines "public corporation" as " * * * one created by the state for political purposes and to act as an agency in the administration of civil government, generally within a particular territory or subdivision of the state, and usually invested, for that purpose, with subordinate and local powers of legislation; such as a county, city, town, or school district."

As we indicated in Uricich, supra, 132 Ohio St. at 118-119, 7 O.O. at 223, 5 N.E.2d at 337, the word "person" has been applied to counties which are bodies corporate and politic. Thus, an entity qualifying as a body corporate...