Ohio Ass'n of Public School Employees, Chapter 643, AFSCME/AFL-CIO v. Dayton City School Dist. Bd. of Educ.

• Decision Date: 15 May 1991
• Docket Number: No. 90-143,AFL-CI,A,90-143
• Citation: 572 N.E.2d 80,59 Ohio St.3d 159
• Parties: , 141 L.R.R.M. (BNA) 2296, 67 Ed. Law Rep. 995, 1991 SERB 4-51 OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES, CHAPTER 643, AFSCME/ppellant, v. DAYTON CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee.
• Court: Ohio Supreme Court

Page 159

59 Ohio St.3d 159

572 N.E.2d 80, 141 L.R.R.M. (BNA) 2296, 67 Ed. Law Rep. 995,

1991 SERB 4-51

OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES, CHAPTER 643, AFSCME/AFL-CIO, Appellant, v. DAYTON CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee.

No. 90-143.

Supreme Court of Ohio.

Submitted Jan. 9, 1991.

Decided May 15, 1991.

Syllabus by the Court

A decision by the State Employment Relations Board whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D).

Plaintiff-appellant, the Ohio Association of Public School Employees, Chapter 643, AFSCME/AFL-CIO ("OAPSE"), is the collective bargaining representative for paraprofessionals employed by defendant-appellee, the Dayton City School District Board of Education. On March 30, 1988, OAPSE filed an unfair labor practice charge with the State Employment Relations Board ("SERB"), alleging that the appellee had discharged Constance Wright, an OAPSE member, for her union activities in violation of R.C. 4117.11(A)(3).

Following an investigation conducted pursuant to R.C. 4117.12, SERB dismissed the unfair labor practice charge for lack of probable cause. OAPSE appealed to the Court of Common Pleas of Montgomery County, which dismissed for lack of subject matter jurisdiction. The court of appeals affirmed.

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

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

John F. Lenehan, Dayton, for appellee.

Lee I. Fisher, Atty. Gen., and Joseph M. Oser, Columbus, urging affirmance for amicus curiae, State Employment Relations Bd.

HERBERT R. BROWN, Justice.

For the reasons which follow, we conclude that a determination by the State Employment Relations Board as to whether to prosecute an unfair labor practice charge is not an adjudication, and affirm the judgment of the court below.

R.C. 4117.11 designates certain acts by employers or employee representatives as unfair labor practices which may be remedied by SERB. R.C. 4117.12(A). R.C. 4117.12(B) provides the means by which the prohibitions of R.C. 4117.11 may be enforced. Any person may file a charge with SERB. Once a charge is filed, " * * * the board [SERB] or its designated agent shall investigate the charge. If the board has probable cause for believing that a violation has occurred, the board shall issue a complaint and shall conduct a hearing concerning the charge * * * " to adjudicate whether an unfair labor practice has in fact occurred.

Quasi-judicial adjudications by SERB are, of course, subject to judicial review pursuant to R.C. Chapter 119 and R.C. 4117.02(M). South Community, Inc. v. State Emp. Relations Bd. (1988), 38 Ohio St.3d 224, 527 N.E.2d 864, syllabus. R.C. 4117.13 also specifically provides for judicial enforcement and review of unfair labor practice adjudications. However, SERB's investigation and evaluation of an unfair labor practice charge filed by a private party are clearly not an adjudication. Ohio Assn. of Pub. School Emp. v. Cleveland Bd. of Edn. (1987), 37 Ohio App.3d 126, 524 N.E.2d 532. Before a complaint is issued, " * * * there is no requirement for notice, hearing, and the opportunity for introduction of evidence." M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, 61 O.O.2d 394, 290 N.E.2d 562, paragraph two of the syllabus. Because there has been no hearing, there is no record to be filed with the reviewing court as required by R.C. 4117.13(A) and (D). The only record of SERB's investigation is its investigatory file, which is confidential. See Franklin Cty. Bd. of Commrs. v. State Emp. Relations Bd. (Feb. 3, 1988), Franklin C.P. No. 87CV-12-8196, unreported (reprinted in 1988 SERB 4-16). SERB's role in this early stage of the proceeding is most closely analogous to that of a public prosecutor investigating a citizen's complaint of criminal activity. In either case, the decision not to prosecute is discretionary, and not generally subject to judicial review. State, ex rel. Murr v. Meyer (1987), 34 Ohio St.3d 46, 516 N.E.2d 234.

Nor is there a private right to enforce the unfair labor practice provisions of R.C. 4117.11 without the participation of SERB. "The unfair labor practices [1991 SERB 4-52] listed in * * * [R.C.] 4117.11 are the vehicles for each opposing side to challenge the other, through the intervention of the Board. But as much as they seem to be private grounds for attack, they are public in nature. The concept is a public right, where privately initiated complaints are carried through to decision at public expense, with the state vindicating the private persons' rights through public proceedings." (Footnotes omitted.) O'Reilly, Ohio Public Employee Collective Bargaining (1984) 51-52, Section 9.01; see, also, Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 572 N.E.2d 87, decided this day.

Nevertheless, the dissent mistakenly asserts that R.C. 4117.13(D) subjects probable cause determinations to judicial review. As is clear from a review of the statute as a whole, R.C. 4117.13 applies only to the enforcement and review of SERB's final order resulting from an adjudication on the merits of an unfair labor practice case. It does not grant this right to appeal quasi-prosecutorial determinations to proceed or not proceed with unfair labor practice complaints. The language granting a right of appeal to "[a]ny person aggrieved by any final order * * * denying * * * the relief sought * * *," upon which the dissent so heavily relies, is intended to allow the charging party to appeal where SERB, after a full hearing, finds that an unfair labor practice has not been committed. A probable cause determination is not a final order resulting from an adjudication on the merits of an unfair labor practice case. One must mangle the plain wording of the statute in question in order to effect the "public policy" which the dissent wants to implement. ¹

It is worthwhile to compare R.C. 4117.13(D) to 4112.06(A), which governs judicial review of actions by the Ohio Civil Rights Commission. The commission's role in unlawful discrimination cases is analogous to SERB's role in unfair labor practice cases. The commission investigates citizen complaints and issues a complaint if it finds probable cause that unlawful discrimination has occurred. R.C. 4112.05(B). R.C. 4112.06(A) grants a right of appeal to anyone " * * * aggrieved by a final order of the commission, including a refusal to issue a complaint * * *." (Emphasis added.) If the commission's probable cause determinations were "final orders" as that term is generally used, the General Assembly would not have needed to add the emphasized language to subject these determinations to judicial review. Conversely, the fact that no such language appears in R.C. 4117.13(D) evinces a clear intent to treat SERB's probable cause determinations differently--to make them not subject to judicial review.

The General Assembly has made its intent known in plain and unambiguous terms, and we have no power to "construe" the statute to reach a different result. Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E.2d 413, paragraph five of the syllabus; see, also, Cleveland Trust Co. v. Eaton (1970), 21 Ohio St.2d 129, 138, 50 O.O.2d 354, 359, 256 N.E.2d 198, 204; Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574.

We also note that the procedures for unfair labor practice cases mandated by R.C. 4117.12 and 4117.13 are substantively identical to those established in Section 10 of the National Labor Relations Act to govern unfair labor practice cases before the National Labor Relations Board. Section 160, Title 29, U.S. Code. It has long been established that a decision by the NLRB's General Counsel not to issue an unfair labor practice complaint is not reviewable by the courts. George Banta Co. v. Natl. Labor Relations Bd. (C.A.4, 1980), 626 F.2d 354.

Accordingly, we hold that a decision by SERB whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D). The judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., and HOLMES and WRIGHT, JJ., concur.

RESNICK, J., concurs separately.

SWEENEY and DOUGLAS, JJ., dissent.

ALICE ROBIE RESNICK, Justice, concurring.

I concur in the majority opinion but write separately. Our entire government is established on a system of checks and balances. This fact is true of all governmental bodies. However, there is no review pursuant to R.C. 4117.02 when the State Employment Relations[1991 SERB 4-53] Board, composed of three individuals, finds no probable cause as to whether to prosecute an unfair labor practice claim.

As stated by the majority, " * * * the process of investigating and evaluating an unfair labor practice charge filed by a private party is clearly not a quasi-judicial adjudication." The Eighth Appellate District in Boieru v. State Emp. Relations Bd. (1988), 54 Ohio App.3d 23, 27, 560 N.E.2d 801, 806, has noted that "[t]he decision to prosecute or not to prosecute a[n] [unfair labor practice] claim is a purely executory and nonjudicial function." This is apparent from the fact that no hearing or notices are required.

A non-judicial function cannot be made into a final appealable order under R.C. 2505.02. All that took place in this matter was an investigation, which is ministerial rather than quasi-judicial. Under R.C. 119.06, in order for an adjudication order to be valid, a hearing must be afforded in accordance with R.C. 119.01 to 119.13. R.C. 4117.02 has no provision for an adjudication hearing prior to the board's making its initial probable cause determination.

In order to hold that this initial decision finding no probable cause is a final appealable order, this...