Opinion
No. 90-2479
Submitted December 4, 1991 —
Decided February 12, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-1252.
The origins of the controversy presently before this court can be traced to contract negotiation disputes between Groveport-Madison Local Education Association, OEA/NEA ("association"), appellee, and appellant Groveport-Madison Local School District Board of Education ("school board"). When all efforts to resolve these disputes failed, the association, whose membership consists of personnel employed by the school board, filed with appellant State Employment Relations Board ("SERB") a notice of intent to commence a strike against the school board beginning January 18, 1989. On January 18, 1989, the partial strike commenced in accordance with the terms of the strike notice. That same day, the school board, pursuant to R.C. 4117.23(A), requested that SERB determine that the strike was not authorized.
Attached to the notice were a number of schedules specifically detailing the different times of day the members of the bargaining unit represented by the association were to strike at the various schools throughout the school district between January 18, 1989 and February 28, 1989. At times the bargaining unit members were not scheduled to strike, the employees were to engage in the full and faithful performance of their job duties.
R.C. 4117.23 provides, in part:
"(A) In the case of a strike that is not authorized in accordance with this chapter, the public employer may notify the state employment relations board of the strike and request the board to determine whether the strike is authorized under Chapter 4117. of the Revised Code. The board shall make its decision within seventy-two hours of receiving the request from the public employer.
"(B) If the board determines that the strike is not authorized then the public employer:
"(1) May remove or suspend those employees who one day after notification by the public employer of the board decision that a strike is not authorized continue to engage in the nonauthorized strike; and
"(2) If the employee is appointed or reappointed, employed, or reemployed, as a public employee, within the same appointing authority, may impose the following conditions:
"(a) The employee's compensation shall in no event exceed that received by him immediately prior to the time of the violation.
"(b) The employee's compensation is not increased until after the expiration of one year from the appointment or reappointment, employment, or reemployment.
"(3) Shall deduct from each striking employee's wages, if the board also determines that the public employer did not provoke the strike, the equivalent of two days' wages for each day the employee remains on strike commencing one day after receiving the notice called for in division (B)(1) of this section. * * *
"Any penalty that is imposed upon the employee, except for the penalty imposed under division (B)(3) of this section, may be appealed to the board. The board may modify, suspend, or reverse the penalty imposed by the public employer, if the board does not find that the penalties are appropriate to the situation; the imposition of a penalty is appealable to the court."
On January 19, 1989, SERB conducted a hearing to determine whether the strike against the school board was authorized. After the hearing, SERB issued its determination, stating, in part, that:
"Upon consideration of the filings, stipulations, and arguments of counsel, SERB concludes that the strike is unauthorized. The type of irregular activity present in this case is, in concept, contrary to the very principle of damage control inherent in the statute and redirects the parties' energies more toward complex scheduling and away from settlement of their differences.
In its subsequent opinion, SERB concluded that although R.C. Chapter 4117, specifically, R.C. 4117.01(H), seemingly permits "intermittent" strike action, the association's partial strike activity was, "* * * in concept, contrary to the very principle of damage control inherent in the statute * * *." R.C. 4117.01(H) provides, in part:
"`Strike' means concerted action in failing to report to duty; willful absence from one's position; stoppage of work, slowdown, or abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment for the purpose of inducing, influencing, or coercing a change in wages, hours, terms and other conditions of employment. * * *" (Emphasis added.)
According to the parties, the members of the association timely ceased all strike activity against the school board upon proper notification of SERB's determination that the strike was unauthorized. Therefore, no penalty was levied by the school board against any employee who participated in the strike.
On January 24, 1989, the association filed an R.C. 119.12 appeal in the Court of Common Pleas of Franklin County seeking review of SERB's determination that the strike was unauthorized. Both the school board and SERB moved to dismiss the appeal. The trial court granted the motions and dismissed the appeal, finding that it lacked jurisdiction to review SERB's determination. Specifically, the trial court concluded that R.C. 4117.23 precludes an appeal from a determination by SERB that a strike is not authorized. The court of appeals reversed the judgment of the trial court and remanded the cause to the trial court for further proceedings.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Cloppert, Portman, Sauter, Latanick Foley, Mark A. Foley and Susan Hayest Kozlowski, for appellee.
Lee I. Fisher, Attorney General, and Joseph M. Oser, for appellant SERB.
Whalen Compton, G. Frederick Compton, Jr., R. Brent Minney and Patricia A. Hill, for appellant school board.
The only issue which is properly before us is whether the Court of Common Pleas of Franklin County has jurisdiction under R.C. 119.12 to review SERB's determination that the association's partial strike against the school board was unauthorized. For the reasons that follow, we find that the trial court has jurisdiction to consider the merits of the association's R.C. 119.12 appeal.
Appellants contend that R.C. 4117.23, which expressly permits an appeal to the court concerning the imposition of strike penalties, impliedly prohibits the association from maintaining an R.C. 119.12 appeal from SERB's determination that the strike was unauthorized. We disagree.
In South Community, Inc. v. State Emp. Relations Bd. (1988), 38 Ohio St.3d 224, 527 N.E.2d 864, syllabus, this court held that SERB is "an `agency' whose adjudications are made subject to judicial review pursuant to R.C. 119.12, specifically by R.C. 4117.02(M)." Therefore, as we recently stated in Ohio Historical Society v. State Emp. Relations Bd. (1990), 48 Ohio St.3d 45, 46, 549 N.E.2d 157, 158, "the general provisions of R.C. 119.12 govern the appealability of an adjudication order issued by SERB," except where R.C. Chapter 4117 provides for specific procedures to initiate an appeal from a particular adjudication order, or where R.C. Chapter 4117 specifically prohibits an appeal from an adjudication order issued by SERB. See, also, South Community, supra, 38 Ohio St.3d at 226-227, 527 N.E.2d at 866-867.
R.C. 4117.23 specifically provides that the imposition of a strike penalty is appealable to the court. R.C. 4117.23 does not, however, address the appealability of a determination by SERB that a strike is not authorized. R.C. 4117.23 neither specifically prohibits an appeal from a determination by SERB that a strike is unauthorized, nor sets forth specific appeal procedures governing the right to appeal such a determination. Accordingly, our holding in South Community requires that the general provisions of R.C. 119.12 govern the appealability of a determination by SERB that a strike is not authorized.
Appellants cite Central Ohio Transit Auth. v. Transport Workers Union of America, Local 208 (1988), 37 Ohio St.3d 56, 524 N.E.2d 151, to support the argument that R.C. 4117.23 impliedly precludes an appeal from SERB's determination that a strike is not authorized. In Central Ohio Transit Auth., at paragraph two of the syllabus, we held that under R.C. 4117.16(A), the court of common pleas is without jurisdiction over a strike by public employees after SERB has determined, pursuant to R.C. 4117.16(A), that a strike does not pose a clear and present danger to the public health or safety. Under R.C. 4117.16(A), the jurisdiction of the court is specifically conditioned upon SERB's determination that a strike poses a clear and present danger. Conversely, R.C. 4117.23 does not limit the jurisdiction of the court of common pleas with respect to SERB's determination that a strike is unauthorized. Appellants' reliance upon Central Ohio Transit Auth. is misplaced.
Both appellants also rely on our discussion concerning R.C. 4117.23 in South Community, supra. Appellant school board also relies on Ohio Historical Society, supra, to support the contention that R.C. 4117.23 precludes the association from maintaining an R.C. 119.12 appeal from SERB's determination that the strike was unauthorized. However, our discussion of R.C. 4117.23 in these two cases is clearly limited to the appealability of strike penalties. An appeal from a determination by SERB that a strike is not authorized is governed by R.C. 119.12.
R.C. 119.12 provides in part that "[a]ny 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 * * *." An "adjudication" is "* * * the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person * * *." R.C. 119.01(D). We find that a determination by SERB that a strike is not authorized is clearly an "adjudication" order as we have heretofore understood that term. Here, the association, a "party," was adversely affected by SERB's determination and could properly appeal under R.C. 119.12 if, as explained infra, SERB's order is a "final order."
R.C. 119.01(G) defines a "party" as the "* * * person whose interests are the subject of an adjudication by an agency." (Emphasis added.) R.C. 119.01(F) defines a "person" as "* * * a person, firm, corporation, association, or partnership." (Emphasis added.)
Having concluded that R.C. 119.12 governs the right of a party to appeal a determination by SERB that a strike is not authorized and that such a determination by SERB constitutes an "adjudication" order, we must next consider whether SERB's order that a strike is not authorized is a "final order" within the meaning of R.C. 2505.02, since an order of SERB must comply with R.C. 2505.02 to be appealable. Hamilton Cty. Bd. of Mental Retardation Developmental Disabilities v. Professionals Guild of Ohio (1989), 46 Ohio St.3d 147, 545 N.E.2d 1260, paragraph three of the syllabus.
R.C. 2505.02 defines three types of final orders: "(1) an order affecting a substantial right in an action which in effect determines the action and prevents a judgment; (2) an order affecting a substantial right made in a special proceeding or made upon summary application after judgment; or (3) an order vacating or setting aside a judgment or granting a new trial. * * *" Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 87-88, 541 N.E.2d 64, 67. Today, we need only discuss the first type of final order, which is an order affecting a substantial right which determines an action and prevents a judgment.
R.C. 2505.02 provides in relevant part:
"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."
A determination by SERB that a strike is not authorized affects the rights of public employees to abstain, in whole or in part, from the full, faithful and proper performance of their job duties to induce, influence or coerce a change in wages, hours, terms and other conditions of employment. In our judgment, the right to strike without reprisal is clearly a substantial right of public employees and their exclusive bargaining representative because it is, perhaps, the only right these parties have to effectively obtain a beneficial settlement over disputed issues. Further, a decision by SERB that a strike is not authorized fixes and determines the rights of public employees, the exclusive bargaining representative, and the public employer, and prevents the exclusive bargaining representative from obtaining a favorable determination by SERB on the issue. Therefore, a determination by SERB that a strike is not authorized is a "final order" within the meaning of R.C. 2505.02.
For the foregoing reasons, we find that the association's R.C. 119.12 appeal should not have been dismissed by the trial court. We hold that a determination by the State Employment Relations Board that a strike is not authorized is a final adjudication order which may be appealed by a proper party to the Court of Common Pleas of Franklin County under R.C. 119.12.
Our holding today is a natural progression from our prior decisions.
In South Community, supra, syllabus, this court held, in a clear statement of purpose, that R.C. 4117.02(M) creates a general statutory right to appeal SERB's adjudication orders pursuant to R.C. 119.12. Recently, in Ohio Historical Society, supra, we reaffirmed our view concerning the general right to appeal SERB's final adjudication orders under R.C. 119.12. Today, we strongly reaffirm our commitment to ensure that final orders issued by SERB are subject to judicial review.
Accordingly, we affirm the judgment of the court of appeals. We order that appellee's R.C. 119.12 appeal be reinstated and we remand this cause to the trial court to review the merits of that appeal.
Judgment affirmed.
MOYER, C.J., SWEENEY, WRIGHT, H. BROWN and RESNICK, JJ., concur.
HOLMES, J., concurs in judgment only.