South Community, Inc. v. State Employment Relations Bd.

• Decision Date: 24 August 1988
• Docket Number: No. 87-953,87-953
• Citation: 527 N.E.2d 864,38 Ohio St.3d 224
• Parties: , 48 Ed. Law Rep. 1261, 1988 SERB 4-69 SOUTH COMMUNITY, INC., Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellants.
• Court: Ohio Supreme Court

Page 224

38 Ohio St.3d 224

527 N.E.2d 864, 48 Ed. Law Rep. 1261, 1988 SERB 4-69

SOUTH COMMUNITY, INC., Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellants.

No. 87-953.

Supreme Court of Ohio.

Submitted March 8, 1988.

Decided Aug. 24, 1988.

Syllabus by the Court

The State Employment Relations Board is an "agency" whose adjudications are made subject to judicial review pursuant to R.C. 119.12, specifically by R.C. 4117.02(M).

[1988 SERB 4-70] This case is one of a number in which we have allowed a motion to certify in order for this court to review various provisions of the Public Employees' Collective Bargaining Act found within R.C. Chapter 4117. In this case, the Ohio Association of Public School Employees ("OAPSE") filed a petition for representative election with the State Employment Relations Board ("SERB"). The appellee here, South Community, Inc., as the employer, moved to dismiss, asserting that South Community's employees were not "public employees" within the meaning of R.C. 4117.01(C). SERB denied the motion to dismiss and directed that the election proceed. OAPSE distributed a sample "Official Secret Ballot" which suggested that SERB had endorsed OAPSE. The election was held on October 30, 1985, in which election OAPSE prevailed.

South Community objected to the election, and SERB set aside the results and ordered another election; however, SERB held that only employees hired before July 3, 1985 were eligible to vote in the rerun election. On December 18 a rerun election was held, and over the objection of South Community, SERB certified OAPSE as the exclusive bargaining unit of the employees. South Community then appealed to the court of common pleas basing its appeal upon R.C. 119.12, ¹ whose appellate procedure, it is argued by appellee herein, is made applicable to R.C. Chapter 4117, specifically by R.C. 4117.02(M). ²

OAPSE filed a motion to intervene in the appeal in the court of common pleas. Both OAPSE and SERB filed motions to dismiss on the basis that the court lacked subject-matter jurisdiction. The trial court granted SERB's motion to dismiss on the basis that SERB's determination of the exclusive bargaining agent was final under R.C. 4117.06(A) which, in pertinent part, states:

"The state employment relations board shall decide in each case the unit appropriate for the purposes of collective bargaining. The determination is final and conclusive and not appealable to the court."

The court of appeals reversed the trial court on the basis that the appeal from SERB was not the certification of the representative unit per se, but that the appeal was one concerning the issue of whether it was proper for SERB to exclude a number of employees from voting in the rerun election. The court of appeals thus found that appeals concerning the manner in which the election was held fall within the general appellate language of R.C. 4117.02(M), and are therefore appealable pursuant to R.C. 119.12.

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

Pickrel, Schaeffer & Ebeling Co., L.P.A., Andrew C. Storar and Janet K. Cooper, Dayton, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Columbus, Robert E. Ashton, Canton, Loren L. Braverman and Susan Hayest Kozlowski, Columbus, for appellant SERB.

Lucas, Prendergast, Albright, Gibson & Newman, Robert J. Walter and Mark R. Scherer, Columbus, for appellant OAPSE.

Sponseller & Segel, Nancy L. Sponseller and Benjamin B. Segel, Columbus, urging affirmance for amici curiae, Hamilton County Bd. of Mental Retardation and Developmental Disabilities et al.

Means, Bichimer, Burkholder & Baker Co., L.P.A., Robert T. Baker and Kimball H. Carey, Columbus, urging affirmance for amicus curiae, Ohio School Boards Ass'n.

Stege, Delbaum & Hickman Co., L.P.A., and Franklin J. Hickman, Cleveland, urging affirmance for amicus curiae, Ohio Ass'n of County Boards of Mental Retardation and Developmental Disabilities.

HOLMES, Justice.

R.C. 119.12 provides generally for appeals of adjudication orders issued by an "agency." "Agency" is defined in R.C. 119.01(A), which states, in pertinent part:

" 'Agency' means * * * the functions of an administrative or executive officer, department, division, bureau, board, or commission of the government of the state specifically made subject to sections 119.01 to 119.13 of the Revised Code * * *."

R.C. 4117.02(M) specifically makes SERB subject to R.C. 119.01 to 119.13:

"Except as otherwise specifically provided in this section, the board [SERB] 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.)

Thus, it appears that SERB is an agency subject generally to R.C. Chapter 119. However, appellants urge this court to limit R.C. Chapter 119's application solely to rulemaking provisions, and thereby exempt SERB's adjudications from that chapter's appeal procedures. To achieve appellants' desired interpretation, however, one must ignore the express language of R.C. 4117.02(M), and the intention of the General Assembly as revealed therein. The legislature's choice of the word "including" in R.C. [1988 SERB 4-71] 4117.02(M) indicates a clear intention not to limit, but merely to describe or illustrate. The word "including" obviously is one of enlargement, and not limitation. See, e.g., R.C. 1707.01(P).

Additionally, if the General Assembly had intended R.C. Chapter 119 to be applied only to SERB's rulemaking, it could have so stated as it has often done with other agencies. As an example, R.C. 119.01(A) makes it clear that R.C. Chapter 119 applies to the Bureau of Employment Services only to a limited extent:

" * * * Sections 119.01 to 119.13 of the Revised Code do not apply to actions of the bureau of employment services except those relating to the adoption, amendment, or rescission of rules, and those relating to the issuance, suspension, revocation, or cancellation of licenses."

Obviously, there is no such limiting language found here applicable to this chapter of law. Instead, the legislature provided that SERB was an agency generally subject to R.C. Chapter 119, including, but not limited to, that chapter's rulemaking provisions. It behooves this court to follow the legislative intent in this regard and not delete the word "including" from R.C. 4117.02(M), and substitute the words "limited to."

Appellants contend that the specific right-of-appeal provisions included in R.C. Chapter 4117 are exclusive, and that by reference, R.C. 4117.02(M) is not to be interpreted as a general right of appeal under R.C. 119.12. Accordingly, it is argued by appellants that the Public Employees' Collective Bargaining Act has provided the only appeals available under R.C. Chapter 4117, which are appeals in those special circumstances that involve an appeal from a final order in an unfair labor practice proceeding, by way of R.C. 4117.13(D), or an appeal of a penalty for an unlawful strike by way of R.C. 4117.23.

However, it is argued by appellee herein, and we agree, that R.C. 4117.13(D) and 4117.23 do not conflict with R.C. 4117.02(M), but merely set forth those circumstances requiring specific procedures to initiate the right of appeal. The procedure for an appeal from a final order in an unfair labor practice proceeding is outlined in R.C. 4117.13(D). This section sets forth the specific procedure to be followed and states that the jurisdiction for such appeal is in "the court of common pleas of any county where the unfair labor practice in question was alleged to have been engaged in, or where the person resides or transacts business * * *." This latter section also sets forth the review authority of the court of common pleas. As to the factual findings of the board, it limits the court of common pleas as follows: "The findings of the board as to the facts, if supported by substantial evidence on the record as a whole, are conclusive." As to the final determination of the court of common pleas, this section grants broad jurisdiction by providing that: "The court has exclusive jurisdiction to grant the temporary relief or restraining order it considers proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the board."

R.C. 4117.23 provides for an appeal to the board by an employee of a penalty imposed by the employer for an unauthorized strike, and thence to the court. However, this section provides no procedures or standards for such review. R.C. 4117.13(D) and 4117.23 then do provide for special circumstances quite separate and apart from other matters that could reasonably be presented for a general review pursuant to R.C. 119.12. The specific issues that would be presented pursuant to an appeal of an order in an unfair labor practice proceeding, and the issues presented in an appeal by an employee of a penalty in an unauthorized strike procedure, would be considerably more narrow than the general issues of law that might be brought in an R.C. 119.12 appeal.

Even more restrictive is the specific issue provided for determination within R.C. 4117.06(A), and that is "the unit appropriate for the purposes of collective bargaining." In this instance, the legislature has deemed SERB to be the appropriate final authority to determine from among a number of competing bargaining units which one is appropriate. This section provides that the board's "determination is final and conclusive and not appealable to the court."

R.C. 4117.06(A) does not apply to the issues presented by South Community in this case, i.e., the initial issue of whether these employees are "public employees" subject to the Act, and the issue of whether certain of the employees should have been entitled to vote in the rerun election. In that the...