Ohio Ass'n of Public School Employees v. Cleveland City School Dist. Bd. of Educ.

• Decision Date: 28 July 1987
• Docket Number: No. 87AP-102,87AP-102
• Citation: 37 Ohio App.3d 126,524 N.E.2d 532
• Parties: , 47 Ed. Law Rep. 295, 1987 SERB 4-41 OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES, Appellant, v. CLEVELAND CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee; State Employment Relations Board.
• Court: Ohio Court of Appeals

Page 126

37 Ohio App.3d 126

524 N.E.2d 532, 47 Ed. Law Rep. 295, 1987 SERB 4-41

OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES, Appellant, v. CLEVELAND CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee State Employment Relations Board.

No. 87AP-102.

Court of Appeals of Ohio, Tenth District, Franklin County.

July 28, 1987.

Syllabus by the Court

1. When an unfair labor practice charge is filed, R.C. 4117.12 provides that the State Employment Relations Board or its designated agents shall investigate the charge. R.C. 4117.12 does not require a formal hearing in which witnesses are sworn, testimony is taken and records are kept, unless the board has probable cause to believe that there has been a violation. When the decision to dismiss an unfair labor practice charge is not made pursuant to a quasi-judicial proceeding (which proceeding is not required by R.C. Chapter 4117), appellant does not have a right to appeal under R.C. 119.12.

2. The order of the State Employment Relations Board dismissing an unfair labor practice charge, which order is not made pursuant to a quasi-judicial proceeding, is not a final order within R.C. 2505.02, 4117.13(D) or 119.12.

Lucas, Prendergast, Albright, Gibson & Newman and Rankin M. Gibson, Columbus, for appellant.

Duvin, Flinker & Cahn, Frank W. Buck and Martin T. Wymer, Cleveland, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Joseph M. Oser and Loren L. Braverman, Columbus, for the State Employment Relations Bd.

[1987 SERB 4-42] REILLY, Justice.

This is an appeal from a judgment of the Franklin County Court of Common Pleas dismissing the appeal of appellant Ohio Association of Public School Employees ("appellant"), because it lacked subject matter jurisdiction.

Appellant filed an unfair labor practice charge on March 17, 1984 with the State Employment Relations Board ("SERB") asserting that the Cleveland City School District Board of Education ("school district") had violated R.C. 4117.11(A)(1), (2) and (5).

SERB conducted an investigation of the charge, pursuant to R.C. 4117.12, and found that there was no probable cause for finding a violation of the foregoing statute and dismissed the action.

Appellant appealed to the trial court which, in pertinent part, held:

" * * * [N]either O.R.C. § 4117.13(D) nor O.R.C. § 119.12 confers jurisdiction upon the Court of Common Pleas to hear an appeal from a decision of SERB to dismiss a charge of unfair labor practice based upon its administrative investigation without issuing a complaint or holding an evidentiary hearing. As this Court lacks jurisdiction over the subject matter of the within appeal, Appellee's motion to dismiss is hereby SUSTAINED. The Attorney General's motion to allow the SERB to intervene is OVERRULED as moot."

Appellant asserts the following assignments of error:

"I. The court of common pleas erred in dismissing this appeal on the ground that the court lacks jurisdiction to review a refusal by [the] State Employment Relations Board to issue a complaint.

"II. The SERB order dismissing appellant's unfair labor practice charge is not supported by reliable, probative and substantial evidence and [is] not in accordance with law."

SERB also advances an assignment of error:

"The lower court erred by overruling SERB's Motion to Intervene."

Appellant contends that the court of common pleas has jurisdiction to hear an appeal from SERB's order dismissing its unfair labor practice charge for lack of probable cause because SERB is subject to R.C. Chapter 119 pursuant to R.C. 4117.02(M), which provides the following:

"Except as otherwise specifically provided in this section, the board is subject to Chapter 119. of the Revised Code, including the procedure for submission of proposed rules to the general assembly for legislative review under division (H) of section 119.03 of the Revised Code." (Emphasis added.)

Appellant cites specifically R.C. 119.12, which states, in relevant part:

"Any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the court of common pleas of Franklin county * * *."

Appellant, however, does not have a remedy under R.C. 119.12. That section applies to appeals in which the administrative proceedings are quasi-judicial. The Supreme Court in State, ex rel. Bd. of Edn., v. State Bd. of Edn. (1978), 53 Ohio St.2d 173, 176, 7 O.O.3d 357, 358, 373 N.E.2d 1238, 1241, recognized this basic principle, as follows:

"Before an appeal can successfully be brought to the Court of Common Pleas of Franklin County under the provisions of R.C. Chapter 119, the proceedings of the administrative agency must have been quasi-judicial in nature. Section 4(B), Article IV of the Ohio Constitution; paragraph one of the syllabus in Fortner v. Thomas (1970), 22 Ohio St.2d 13 . In employing the term 'quasi-judicial,' this court held in paragraph two of the syllabus in M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150 , that:

[1987 SERB 4-43] " 'Proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence.' " (Emphasis added.)

SERB's decision dismissing appellant's unfair labor practice charge was not made in a quasi-judicial proceeding. Hence, R.C. Chapter 4117 does not require such a proceeding to be conducted. R.C. 4117.12 does not mandate or include procedures for notice, hearing and the opportunity for the presentation of evidence unless "the board has probable cause for believing that a violation has occurred," and a complaint is issued. There is no indication from R.C. 4117.12 that the General Assembly intended a quasi-judicial proceeding to be conducted by SERB involving each unfair labor practice charge filed.

It is noteworthy that the General Assembly based unfair labor practice proceedings before SERB upon the National Labor Relations Act ("NLRA"), Section 151 et seq., Title 29, U.S. Code, which also does not provide for a formal hearing or determination of an unfair labor practice charge unless the general counsel finds there is probable cause for believing that an unfair labor practice has been or is being committed. It is recognized that the procedural format or structure involved in labor practice proceedings at the federal level is different from that required by R.C. 4117.12. The general counsel, under federal law, acting as a separate body independent of the board determines whether there is probable cause to believe that an unfair labor practice has been, or is being, committed. See National Labor Relations Act, Section 3(d), as amended, Section 153(d), Title 29, U.S. Code. The board acts as the adjudicator of the charge. By comparison, SERB determines whether there is probable cause to issue a complaint and also adjudicates matters relating thereto. Nevertheless, there is no indication from the language in R.C. Chapter 4117 that the General Assembly intended to depart from established federal law which does not require notice, hearing, and an opportunity to present evidence prior to the issuance of a complaint by the general counsel.

R.C. 4117.12 provides that when an unfair labor practice charge has been filed, either SERB or its designated agents shall investigate the charge. R.C. 4117.12 does not require a formal hearing in which witnesses are sworn, testimony is taken and records are kept, unless the...