Summary
finding provision which denied certain Dayton municipal employees collective bargaining rights to be “the very kind of arbitrary legislative enactment that is prohibited by the equal protection guarantees of both the Ohio and United States Constitution”
Summary of this case from Wisconsin Educ. Ass'n Council v. WalkerOpinion
No. 85-314
Decided January 16, 1986.
Labor relations — Public employment — Second sentence of R.C. 4117.01(F) (2), unconstitutional.
O.Jur 3d Employment Relations § 442.
1. The collective bargaining law of the state of Ohio is a law of a general nature. As such, the second sentence of R.C. 4117.01(F)(2) violates Section 26, Article II of the Ohio Constitution in that the provision in question does not have a uniform operation throughout the state of Ohio.
2. The second sentence of R.C. 4117.01(F)(2) is null and void as it offends the equal protection guarantees of Section 2, Article I of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution since the classification contained therein bears no rational relationship to the legitimate governmental purposes of the Public Employees Collective Bargaining Act.
IN MANDAMUS.
On April 12, 1972, the City Commission of Dayton, Ohio passed an ordinance dealing with public-sector collective bargaining. The ordinance provided that certain categories of employees, including "supervisory employees," could not participate in the collective bargaining process. It further provided that the city manager was responsible for "* * * determining the appropriate representation unit * * *." On December 29, 1972, the city manager determined that all Dayton Police Department sergeants, lieutenants and captains and all lieutenants, captains and district chiefs of the Dayton Fire Department were "supervisory employees" within the meaning of the ordinance and excluded them from the bargaining unit represented by the Dayton Fraternal Order of Police Lodge No. 44 ("FOP") and the International Association of Fire Fighters.
The FOP then filed a lawsuit in the Court of Common Pleas of Montgomery County challenging the validity of the ordinance and seeking a judicial determination of its rights. On July 22, 1976, the court declared that the ordinance was valid in all respects, that police sergeants, lieutenants and captains were "supervisory employees" within the meaning of the ordinance, and that the city manager had properly excluded them from the FOP representation unit. On May 16, 1978, the court of appeals affirmed.
FOP v. Dayton (C.P. 1976), 92 L.R.R.M. 3559, 3566.
FOP v. Dayton (1978), 60 Ohio App.2d 259 [14 O.O.3d 238].
In 1983, Ohio enacted the Public Employees Collective Bargaining Act, which is codified in R.C. Chapter 4117. The Act, which took effect on April 1, 1984, created the State Employment Relations Board ("SERB") (R.C. 4117.02[A]) and provided that the SERB would be responsible for determining whether proposed employee bargaining units qualify as a bargaining unit under the terms of the Act (R.C. 4117.06). In addition, the Act broadly defines "public employer," R.C. 4117.01(B), and "public employee," R.C. 4117.01(C), but states that "supervisors" do not have collective bargaining rights under the Act, R.C. 4117.01(C)(10) and 4117.03.
R.C. 4117.01(F) defines "supervisor":
" `Supervisor' means any individual who has authority, in the interest of the public employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other public employees; to responsibly direct them; to adjust their grievances; or to effectively recommend such action, if the exercise of that authority is not of a merely routine or clerical nature but requires the use of independent judgment * * *."
The broad sweep of this definition is substantially narrowed by R.C. 4117.01(F)(2):
"With respect to members of a police or fire department, no person shall be deemed a supervisor except the chief of the department or those individuals who, in the absence of the chief, are authorized to exercise the authority and perform the duties of the chief of the department. Where prior to June 1, 1982, a public employer pursuant to a judicial decision rendered in litigation to which the public employer was a party, has declined to engage in collective bargaining with members of a police or fire department on the basis that such members are supervisors, those members of a police or fire department do not have the rights specified in Chapter 4117 of the Revised Code for the purposes of future collective bargaining. * * *"
The second sentence of R.C. 4117.01(F)(2) is the so-called "Dayton Amendment," and is the subject of this lawsuit.
On or about April 4, 1984, the FOP filed a Request for Voluntary Recognition as a bargaining unit with the SERB. A copy of the request was served on the city of Dayton. The request described the proposed bargaining unit as, "[s]worn supervisors of [the] Dayton Police Department holding the ranks of Sergeant, Lieutenant and Captain." The request was assigned case No. 84-VR-04-0231. By a letter dated May 29, 1984, the Mayor of Dayton wrote to the SERB, stating in part:
"As you are well aware, supervisors in Dayton's city government are treated differently, under state law, than supervisors in uniformed services in other communities. * * *
"The so-called `Dayton Amendment' to the new State Collective Bargaining Law is thought, by some, to be unconstitutional in that Dayton's uniformed supervisors are addressed differently than those in all other Ohio cities.
"We are seeking direction and decision from the members of the State Employment Relations Board. * * *
"* * * [I]t would only seem fair if supervisory employees around the state were treated as are Dayton's employees, or, in the alternative, Dayton's employees were treated as all others — in other words, the law should probably apply one way or the other, equally across the state of Ohio.
"We are, therefore, requesting that this case be used as a vehicle for obtaining a formal, legal opinion as to the constitutionality of the `Dayton Amendment' to the State Collective Bargaining Law."
On May 31, 1984, the city of Dayton filed a motion to dismiss the FOP Request for Voluntary Recognition on the ground that the bargaining unit proposed by the FOP consisted of persons who are not "public employees" under the Act and thus "* * * do not have the rights specified in Chapter 4117. of the Revised Code for purposes of collective bargaining, because prior to June 1, 1982 * * * [the city] declined to engage in collective bargaining with such [police department] members pursuant to judicial decisions in litigation to which the * * * [city] was a party."
On June 14, 1984, a SERB hearing officer issued a proposed order recommending that the city's motion to dismiss be granted. He noted that Dayton's Mayor had requested that the board determine the constitutionality of the "Dayton Amendment," but concluded that since the SERB was an administrative agency, and not a court, it had no authority to make such a determination. He went on to find that Dayton Police Department sergeants, lieutenants and captains did not have the right to engage in collective bargaining, "* * * in that they were determined to be supervisors under the terms of * * * [the relevant Dayton ordinance] pursuant to a judicial decision rendered in litigation to which the public employer was a party prior to June 1, 1982."
The FOP filed exceptions to the proposed order with the entire board. On November 21, 1984, the board issued an opinion in effect accepting the hearing officer's recommendations. The board found that the "* * * [Dayton Amendment] was intended to apply, and does apply, exclusively to the Dayton Police Department" (emphasis added), and that "[i]t is conceivable * * * that the uniquely exclusive specificity of the `judicial decision' exemption offends the equal protection provisions of the Ohio Constitution and the equal protection clause in the Fourteenth Amendment of the United States Constitution." (Footnotes omitted.) The board concluded that since it was a part of the executive branch of government, it had no authority to declare the "Dayton Amendment" unconstitutional, and that such a determination could only be made by the judiciary.
On February 25, 1985, relator, the FOP, filed a complaint in this court seeking a writ of mandamus to require the SERB to reinstate case No. 84-VR-04-0231, and to rule on it in accordance with the law. Relator further requested this court to declare the "Dayton Amendment" unconstitutional. The city of Dayton and the SERB were named as respondents.
Jaffy, Livorno, Kaufmann Arnett Co., L.P.A., Stewart R. Jaffy and Henry A. Arnett, for relator.
Anthony J. Celebrezze, Jr., attorney general, and Loren L. Braverman, for respondent SERB.
J. Anthony Sawyer, acting law director, Pickrel, Schaeffer Ebeling, Richard J. Holzer, Andrew C. Storar and Janet K. Cooper, for respondent city of Dayton.
With the enactment of the Public Employees Collective Bargaining Act, Ohio adopted a comprehensive law to govern labor relations between public employees and their employers. This legislation was long overdue. The Act replaced the outmoded, unworkable and unfair Ferguson Act. By the time the new Act went into effect, Ohio was the fortieth state to have enacted some form of legislation to regulate their public-sector labor relations.
By the time Ohio enacted the Public Employees Collective Bargaining Act, only ten states were without some form of legislation authorizing collective bargaining in the public sector. They were: Arizona, Arkansas, Colorado, Louisiana, Mississippi, North Carolina, South Carolina, Utah, Virginia and West Virginia. Note, S. 133: Ohio's Public-Sector Collective-Bargaining Framework (1984), 9 U. Dayton L. Rev. 583, 584, fn. 8.
Until the Act went into effect, Ohio had no legal framework governing public-sector labor relations, and dealt with these issues on an ad hoc basis. Student Project: Public Sector Collective Bargaining in Ohio: Before and After Senate Bill No. 133 (1983), 17 Akron L. Rev. 229. This produced an abundance of litigation and controversy and, in fact, there were four hundred twenty-eight public employee work stoppages in Ohio between the years 1973 and 1980. There were no guiding principles which public employers and employees could review in order to structure their conduct in dealing with terms and conditions of employment. Thus, the pre-Act system, if it can be called a system, was an ineffective and costly way to manage public-sector labor relations.
9 U. Dayton L. Rev. 583, supra, at 595, and Note, Collective Bargaining, Impasse Resolution Strikes in the Public Sector (1981), 16 New Eng. L. Rev. 505, 540.
The new Act is a positive step forward. It sets forth firmly defined legal guidelines that minimize the possibility of public-sector labor disputes and provides for the orderly resolution of any disputes that occur. This law brings stability and clarity to an area where there had been none and will facilitate the determination of the rights and obligations of government employees and employers, and give them more time to provide safety, education, sanitation, and other important services. In addition, the Act assures that both public employers and employees will be accorded many of the same rights and be governed by many of the same responsibilities as employees and employers in the non-public sector. In now being treated relatively equally with employees in the private-sector, public employees have been removed from second-class citizenship.
II
Recognizing the foregoing purposes, the issue in this case is whether the "Dayton Amendment," R.C. 4117.01(F)(2), meets those purposes and whether the provision in question violates any of the guarantees of the Constitution of the state of Ohio or the Constitution of the United States.
Section 26, Article II of the Ohio Constitution provides, in part, that "[a]ll laws, of a general nature, shall have a uniform operation throughout the state * * *." This court noted in Brown v. State, ex rel. Merland (1929), 120 Ohio St. 297, at 304, that "* * * `[i]f the subject does or may exist in, and affect the people of every county, in the state, it is of a general nature.' " It is clear that the Public Employees Collective Bargaining Act is a law of statewide concern since it affects persons in every county of the state.
The question then becomes whether the Act, and specifically the second sentence of R.C. 4117.01(F)(2), has uniform operation throughout the state. As we have seen, the provision does not affect any employees in the state except those specific policemen and fire fighters in the city of Dayton who have previously been determined to be "supervisors." In its clearest sense, the provision involved bears every evidence of special legislation affecting, to their detriment, only one group of employees while granting to all other employees in the state, likely situated, the full protection and rights afforded by the Act. Cf. Andrews v. State, ex rel. Henry (1922), 104 Ohio St. 384. Thus, we find that the provision in question does not have a uniform operation throughout the state.
Section 2, Article I of the Ohio Constitution provides that "[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit * * *." This provision is the functional equivalent of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6, 8 [15 O.O.3d 3]. That provision provides that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws."
Generally speaking, these provisions do not restrict the government's ability to classify persons, so long as the classifications that are created are rationally related to a legitimate government interest. Kinney v. Kaiser Aluminum Chemical Corp. (1975), 41 Ohio St.2d 120, 123 [70 O.O.2d 206]. To avoid violating the above-quoted Equal Protection Clauses, a classification made by state legislation "* * * `must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.' * * *" Allied Stores of Ohio, Inc. v. Bowers (1959), 358 U.S. 522, 527. The question thus becomes whether the legislature's decision to exempt, in effect, Dayton Police Department sergeants, lieutenants and captains from the collective bargaining rights, granted to all other similarly situated police personnel in Ohio, bears a fair and substantial relation to the object of the Public Employees Collective Bargaining Act.
The parties have stipulated that:
"Within the organizational structure of the City of Dayton Police Department, there is no job classification denominated as `captain,' nor does any member of said Department hold a rank denominated as `captain.'"
We hold that it does not bear any such relation. The purpose of the "Dayton Amendment" is to deny certain Dayton municipal employees the collective bargaining rights enjoyed by all other similarly situated municipal employees in Ohio. If there is a reason for exempting Dayton employees from the rights enjoyed by all others, then that reason is not contained in the record of this case. Frankly, this classification makes no sense and this is especially so when one considers that the "Dayton Amendment," which takes away from these employees the rights and protections of the Act, does not, as a corollary, relieve these employees from the obligations and proscriptions found in R.C. 4117.15. The purpose of the Act is to minimize public-sector labor conflict and to provide a mechanism for resolving disputes when they arise. The second sentence of R.C. 4117.01(F)(2) does not accomplish this purpose.
In sum, the "Dayton Amendment" classification appears to be without any legitimacy and is the very kind of arbitrary legislative enactment that is prohibited by the equal protection guarantees of both the Ohio and United States Constitutions.
III
In addition to arguing that the second sentence of R.C. 4117.01(F)(2) does not violate Section 26, Article II and Section 2, Article I of the Ohio Constitution, and the Fourteenth Amendment to the United States Constitution, respondent city of Dayton contends that mandamus is not an appropriate remedy to be pursued by relator because it has an adequate remedy at law. Respondent Dayton also argues that what relator really seeks is a declaratory judgment as to the constitutionality of a statute. We reject both of these contentions.
Respondent relies upon R.C. 2506.01 which provides, in pertinent part, that:
"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located, as provided in sections 2505.01 to 2505.45, inclusive, of the Revised Code, and as such procedure is modified by sections 2506.01 to 2506.04, inclusive, of the Revised Code." (Emphasis added.)
This section, by its own terms, applies only to decisions made by some authority of a "political subdivision" of the state. This does not include the state itself or any of the state agencies. Fair v. School Employees Retirement System (1975), 44 Ohio App.2d 115, 118-119 [73 O.O.2d 101]. Since the SERB is an agency of the state, a decision made by the SERB is not appealable pursuant to the rights granted in R.C. 2506.01.
Further, by the specific terms of R.C. 4117.06, relator is precluded from appealing the order of the SERB. Subdivision (A) of R.C. 4117.06 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." (Emphasis added.)
R.C. 2731.05 provides that a writ of mandamus must not be issued where there is a plain and adequate remedy at law. The existence of the remedy of appeal does not necessarily bar the issuance of a writ of mandamus. State, ex rel. Emmich, v. Indus. Comm. (1947), 148 Ohio St. 658 [36 O.O. 265]; State, ex rel. Cody, v. Toner (1983), 8 Ohio St.3d 22, 23. For a remedy at law to be adequate, the remedy should be complete in its nature, beneficial and speedy. State, ex rel. Merydith Constr. Co., v. Dean (1916), 95 Ohio St. 108, 123. The question is whether the remedy is adequate under the circumstances. State, ex rel. Butler, v. Demis (1981), 66 Ohio St.2d 123, 124 [20 O.O.3d 121]. The relator herein and the employees it seeks to represent will be denied recognition of their rights under the Act until a final determination is made as to the constitutionality of the provision in question. Through any appeal process, assuming one was available, the final determination would be months, and more likely years, away and these employees would never be able to recover or enjoy those rights accorded to employees by the Act. We find that relator does not have a plain or adequate remedy at law.
Respondent's argument that relator should bring a declaratory judgment action in a trial court is also not well-taken. In State, ex rel. Fenske, v. McGovern (1984), 11 Ohio St.3d 129, at paragraph two of the syllabus, we held:
"The availability of an action for declaratory judgment does not bar the issuance of a writ of mandamus if the relator demonstrates a clear legal right thereto, although the availability of declaratory judgment may be considered by the court as an element in exercising its discretion whether a writ should issue. However, where declaratory judgment would not be a complete remedy unless coupled with ancillary relief in the nature of mandatory injunction, the availability of declaratory injunction is not an appropriate basis to deny a writ to which the relator is otherwise entitled."
Thus, we find that it was proper for relator to seek the remedy of mandamus. Accordingly, we determine that the "Dayton Amendment" is unconstitutional.
Since the "Dayton Amendment" is unconstitutional, it is null and void, and the SERB is under a duty to consider relator's Request for Voluntary Recognition in accordance with the law. We, therefore, hold:
(1) The collective bargaining law of the state of Ohio is a law of a general nature. As such, the second sentence of R.C. 4117.01(F)(2) violates Section 26, Article II of the Ohio Constitution in that the provision in question does not have a uniform operation throughout the state of Ohio.
(2) The second sentence of R.C. 4117.01(F)(2) is null and void as it offends the equal protection guarantees of Section 2, Article I of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution since the classification contained therein bears no rational relationship to the legitimate governmental purposes of the collective bargaining Act.
Thus, relator has a clear legal right to have its Request for Voluntary Recognition considered by the SERB in accordance with the law and the SERB is under a clear legal duty to consider the request in accordance with the law. Relator has no adequate remedy at law.
A writ of mandamus is hereby issued ordering the SERB to reinstate its case No. 84-VR-04-0231 upon its docket within thirty days from the date of issuance of the writ and to resolve that case in accordance with the law.
Writ allowed.
CELEBREZZE, C.J., SWEENEY and C. BROWN, JJ., concur.
CELEBREZZE, C.J., SWEENEY and C. BROWN, JJ., concur separately.
LOCHER, HOLMES, and WRIGHT, JJ., concur in the syllabus and judgment only.
On July 6, 1983 Governor Richard Celeste signed into law Am. Sub. S.B. No. 133, the provisions of which thereafter took effect on October 6, 1983 and April 1, 1984. The passage of Ohio's Public Employees Collective Bargaining Act ended years of public controversy and legislative debate concerning the rights of Ohio's public employees. Heralded into place was a comprehensive collective bargaining law which has brought, and will continue to bring, substantial changes in the relationship between most of Ohio's public workers and their employers. Through the passage of this Act, Ohio has wisely joined a majority of its sister states which already offer bargaining rights to public employees.
Unfortunately, as this case demonstrates, the controversy surrounding public employee bargaining is far from over. As one commentator has predicted, "[w]ith the enactment of Senate Bill 133 * * * [t]he arena will simply shift from the floors of the statehouse to the confines of the courts * * *."
White, Kaplan Hawkins, Ohio's Public Employee Bargaining Law: Can It Withstand Constitutional Challenge? (1984), 53 U. Cin. L. Rev. 1, at 46.
There can be no doubt that the Act is a law of statewide concern. It is conceded that the law is of a "general nature," as that term is used in Section 26, Article II of the Ohio Constitution. Andrews v. State, ex rel. Henry (1922), 104 Ohio St. 384. Once recognized as such, the question in the case at bar narrows to whether the challenged portion of R.C. 4117.01(F)(2) has "a uniform operation throughout the state." See Andrews, supra, at 386.
Respondents argue, inter alia, that R.C. 4117.01(F)(2) does not, on its face, single relator out from the given class of public employees ( i.e., members of police and fire departments) afforded collective bargaining rights under R.C. Chapter 4117. Respondents stress that the language of this subsection is applicable to every location in the state in which the specified statutory conditions are present: where a public employer, pursuant to a judicial decision rendered prior to June 1, 1982, declined to collectively bargain with certain police or fire personnel on the grounds that they were supervisors. Because there is no language within the statute itself limiting its application to the city of Dayton, respondents reason that the law comports with the "uniform application" requirement. Indeed, the suspect clause does not specifically name relator. However, respondents' proposition, although literally accurate, is not a realistic assessment of the applicability of R.C. 4117.01(F)(2) to municipalities other than Dayton.
In this regard, it is abundantly clear that the second sentence of R.C. 4117.01(F)(2), referred to by the Mayor of Dayton as the "Dayton Amendment," operates to exclude select police officers in the city of Dayton, and only Dayton, from the collective bargaining Act. The State Employment Relations Board's opinion states as its finding that "[t]he language of R.C. 4117.01(F)(2) was intended to apply, and does apply, exclusively to the Dayton Police Department. Hence it is obvious that the statute was intended to exempt the Dayton safety employees who fit the statutory category." A priori, a conclusion that Dayton is the only municipality known to be subject to this statutory exception is inescapable.
It is also clear that Ohio's Constitution does not preclude all legislative classification but has been viewed to require only that the classification bear a reasonable relationship to the objectives sought to be accomplished. Once the legislature has established a particular classification, the law will not be invalidated unless it is clearly arbitrary, unjust, capricious, or unreasonable. State v. Hogan (1900), 63 Ohio St. 202, 210. However, I agree with my colleagues that there is no just reason for arbitrarily denying Dayton's safety officers the rights enjoyed by all others. When necessary the courts will look to the operation and application of statutes, apparently neutral on their face, and strike those that do not operate equally and uniformly as to all members of a class brought within their operation. E.g., New York Central Rd. Co. v. Bucyrus (1933), 126 Ohio St. 558; Garcia v. Siffrin (1980), 63 Ohio St.2d 259 [17 O.O.3d 167]; Cox v. State (1938), 134 Neb. 751, 279 N.W. 482; Christen v. County of Winnebago (1966), 34 Ill.2d 617, 218 N.E.2d 103. See, also, State v. Rogers (1967), 281 Ala. 27, 198 So.2d 610.
For example, in New York Central Rd. v. Bucyrus, supra, this court reviewed and invalidated a law which purported to be applicable to any village with a population of 3,066. However, it turned out that only one village met this qualification. The law was found to violate Section 26, Article II of the Ohio Constitution.
For us to adopt respondents' untenable contention, we would, by construction, have to blindly uphold a special law which is in direct violation of the interdiction of Ohio's Constitution. We decline to do so.
In short, I can find no legitimate purpose nor justifiable reason why the city of Dayton's safety workers should not join their fellow public employees in the "brave new world" of collective bargaining under Ohio's Public Employees Collective Bargaining Act.
O'Reilly, Structures and Conflicts: Ohio's Collective Bargaining Law for Public Employees (1983), 44 Ohio St. L.J. 891, 942.
Accordingly, I wholeheartedly join, and indeed applaud, the excellent analysis contained in today's majority decision. The infirmities of singling out these Dayton police officers by arbitrarily creating two classes of employees, thus forfeiting forever these workers' rights to collectively bargain, makes this provision repugnant to Section 26, Article II of the Ohio Constitution and capriciously thwarts the laudatory goals giving rise to the Act.
I hasten to re-emphasize that today's decision which strikes only the second sentence of R.C. 4117.01(F)(2) as void, does not affect the validity of the rest of the Public Employees Collective Bargaining Act.
SWEENEY and C. BROWN, JJ., concur in the foregoing concurring opinion.