535 N.E.2d 1383 | Ohio Ct. App. | 1987
Lorain Education Association (the "association") challenges an order of the Lorain County Court of Common Pleas dismissing the association's administrative appeal pursuant to R.C. Chapter 4117. We affirm.
The association subsequently filed a notice of appeal with the Lorain County Court of Common Pleas, citing R.C. Chapters 4117 and 119. On October 10, 1986, a transcript of the investigatory materials relied upon by SERB in reaching its determination was filed with the trial court. On December 15, 1986, SERB filed a motion to dismiss the administrative appeal. After receiving a memorandum in opposition to SERB's motion from the association, the trial court determined that the association had no statutory right of appeal and dismissed the cause.
On appeal, the association makes three assignments of error. We will address the second assignment of error first.
In its order dismissing the appeal, the trial court stated that "Lorain City School District Board of Education's Motion to Dismiss is granted." The record reveals that the only party that had filed a motion to dismiss was SERB. However, we find no reversible error by the trial court regarding this obvious misnomer.
The trial court's decision to dismiss the appeal was based upon its *350
finding that the association had no statutory right to appeal SERB's finding of no probable cause. This goes to the subject matter jurisdiction of the trial court. Assuming arguendo that the trial court correctly determined that it lacked subject matter jurisdiction, the trial court could have dismissed the association's appeal sua sponte. Civ. R. 12(H)(3); Fox v. EatonCorp. (1976),
In this assignment of error, the association contends that the trial court erred in holding that the association had no right to appeal SERB's determination that no probable cause existed to believe that the unfair labor practices alleged had actually occurred.
It is well-settled Ohio administrative law that an aggrieved party has no right to appeal from the decision of a statutory board, except as provided by statute. Lindblom v. Bd. of TaxAppeals (1949),
"Any person aggrieved by any final order of the board granting or denying, in whole or in part, the relief sought may appeal to 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, by filing in the court a notice of appeal setting forth the order appealed from and the grounds of appeal. The court shall cause a copy of the notice to be served forthwith upon the board. Within ten days after the court receives a notice of appeal, the board shall file in the court a transcript of the entire record in the proceeding, certified by the board, including the pleading and evidence upon which the order appealed from was entered."
In the case sub judice, the dispositive question is whether SERB's finding of no probable cause is a "final order" within the purview of R.C.
R.C. Chapter 4117 reposes SERB with broad powers, some of which certainly are not subject to challenge by a direct appeal to a common pleas court. For example, SERB has the duty to determine "the unit appropriate for the purposes of collective bargaining." R.C.
The association contends that the definition of "final order" contained in R.C.
We do acknowledge that SERB's finding of no probable cause effectively terminated the action and prevented a judgment. However, that does not necessarily mean that the legislature intended for such decisions to be subject to judicial review.
The investigatory function of SERB is similar to that of the General Counsel to the National Labor Relations Board ("NLRB"). Although the General Counsel delegates the initial determination of probable cause to various regional directors, the General Counsel has broad discretion in making the final determination of whether a complaint should issue. See Section 153(d), Title 29, U.S. Code; Section 102.19, Title 29, C.F.R. The position of the General Counsel is similar to that of a United States Attorney in determining whether a criminal charge should be issued and his determination in this regard is not subject to judicial review.Retail, Wholesale Dept. Store Union, AFL-CIO, Local 310 v.Natl. Labor Relations Bd. (C.A. 6, 1984),
We recognize that the Ohio Legislature chose not to adopt the federal system of separating the prosecutorial and judicial functions in unfair labor practice adjudications. See O'Reilly, Ohio Public Employee Collective Bargaining (1984) 11, 12, Section 2.01. Unlike the NLRB, SERB decides both which charges to issue complaints upon and which complaints have merit. Id. at 11; R.C.
Similar to the General Counsel, SERB may delegate its investigatory duties to "designated agents." R.C.
When an appeal of a "final order" by SERB has been filed in a court of common pleas, SERB must certify and transmit a record, "including the pleadings and evidence upon which the order was entered * * *." R.C.
In light of these statutory provisions and the absence of any provisions indicating otherwise, we find that the legislature did not intend for SERB's decisions not to issue complaints, based upon a lack of probable cause, to be subject to judicial review.
The association contends that Ohio should adopt the rule established in the Pennsylvania case of Pa. Social Serv. Local668 v. Pa. Labor Relations Bd. (1978),
We recognize that the Ohio Legislature referred to both the Pennsylvania and federal models in drafting R.C. Chapter 4117.O'Reilly, supra, at 11. We also recognize that R.C.
Having made that determination, the court referred to Pennsylvania's Administrative Agency Law, Section 1710.47, Title 71, Pa. Stat. (repealed eff. June 27, 1978), which provided:
"* * * `Where an Act of Assembly expressly provides that there shall be no appeal from an adjudication of an agency, or that the adjudication of an agency shall be final or conclusive, or shall not be subject to review, or where the applicable acts of assembly are silent on the question of judicial review, any person aggrieved by such an adjudication, who has a direct interest in such adjudication may nevertheless appeal the same in the manner provided by sections 41 through 44 of this act * * *' * * *." (Emphasis deleted; footnote omitted.) Id. at 87,
The court, then determined that the labor board's decision not to issue a complaint was an "adjudication" under Section 1710.47 and, consequently, subject to judicial review. While we do not criticize the Pennsylvania Supreme Court's reasoning in Pa.Social Serv. Local 668, we find that a similar examination of Ohio law mandates a different result.
Administrative appeals in Ohio are governed generally by the Ohio Administrative Procedure Act, R.C.
"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, except that appeals from orders of the fire marshal, issued under Chapter 3737. of the Revised Code may be to the court of common *353 pleas of the county in which the building of the aggrieved person is located."
Assuming arguendo that SERB is an "agency" under R.C.
"* * * the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person, but does not include the issuance of a license in response to an application with respect to which no question is raised, nor other acts of a ministerial nature."
It is noteworthy that the association did not initiate the appeal sub judice in the Court of Common Pleas of Franklin County. Assuming arguendo that it had, we find that the Act does not contemplate or authorize appeals of the subject matter here in controversy. R.C.
"No adjudication order of an agency shall be valid unless the agency is specifically authorized by law to make such order.
"No adjudication order shall be valid unless an opportunity for a hearing is afforded in accordance with sections
"The following adjudication orders shall be effective without a hearing:
"(A) Orders revoking a license in cases where an agency is required by statute to revoke a license pursuant to the judgment of a court;
"(B) Orders suspending a license where a statute specifically permits the suspension of a license without a hearing;
"(C) Orders or decisions of an authority within an agency if the rules of the agency or the statutes pertaining to such agency specifically give a right of appeal to a higher authority within such agency, to another agency, or to the board of tax appeals, and also give the appellant a right to a hearing on such appeal."
Thus if SERB's finding of no probable cause is considered a "final order" made pursuant to an "adjudication," it is invalid because it was made without a prior hearing being held. However, R.C.
Since a finding of no probable cause made pursuant to an investigation by SERB is not an adjudication order under R.C.
Neither R.C.
In its final assignment of error, the association contends:
After concluding that the association had no statutory authority to appeal SERB's finding of no probable cause, the trial court stated the following in its entry dismissing the appeal:
"Even assuming this could be an appealable order, then to appeal in accordance with O.R.C.
On October 10, 1986, a transcript of the evidence relied upon by SERB was filed with the trial court, along with a letter stating that all of the documents were either "originals or true and accurate copies thereof." This letter was signed by the Executive Director of SERB, Jacqueline F. Davis. Assumingarguendo that Davis somehow failed to properly certify the record, this should not be grounds for dismissing the association's appeal.
SERB is under a mandatory duty to transmit a transcript of the entire record to a common pleas court for the purpose of appeal. R.C.
However, in light of our disposition of assignment of error number one, we find that the association suffered no prejudice as a result of the trial court's error concerning the record.
Judgment affirmed.
QUILLIN, P.J., and BAIRD, J., concur.