Ohio Council 8 v. City of CincinnatiOhio Council 8 v. City of Cincinnati
Lead Opinion
“Fоr a unit that has not been approved by the board through the procedures of division (A) of section 4117.05 or 4117.07 of the Revised Code, a petition for unit*680 clarification or amendment of a deemed certified unit may be filed only during the period of one hundred twenty days to ninety days before the expiration date of the collective bargaining agreement, after expiration of the collective bargaining agreement, or at any other time if the petition is submitted by mutual request of the parties. Unless the petition for amendment or clarification of such a unit is submitted by mutual request, the board will consider clarification or amendment only if the petitiоn alleges that the unit contains a combination of employees prohibited by division (D) of section 4117.06 of the Revised Code.”
This rule would allow SERB to entertain employer petitions to adjust or alter deemed certified collective bargaining units that violate the prohibitions of
A rule promulgated by an agency, “ ‘issued pursuant to statutory authority, has the force and effect of law unless it is unreasonable or is in clear conflict with statutory enactment governing the same subject matter.’ ” Youngstown Sheet & Tube Co. v. Lindley (1988),
Section 4(A) of the Am.Sub.S.B. No. 133 provides that:
“Exclusive recognition through a written contract, agreement, or memorandum of understanding by a public employer to an employee organization whether specifically stated or through tradition, custom, practice, election, or negotiation [thаt] the employee organization has been the only employee organization representing all employees in the unit is protected subject to the time restriction in division (B) of section 4117.05 of the Revised Code. Notwithstanding any other provision of this act, an employee organization recognized as the exсlusive representative shall be deemed certified until challenged by another employee organization under the provisions of this act and the State Employment Relations Board has certified an exclusive representative.” (Emphasis added.) 140 Ohio Laws, Part I, 336, 367.
The issue presented in this case is whether
Section 4(A) expressly states that an employee organization’s deemed сertified status continues “until challenged by another employee organization.” SERB contends, and the court of appeals held, that this language does not preclude
In order to cogently discuss each of SERB’S arguments, we must first set forth both arguments in full. The “separate concept” argument was explained by the court of appeals as follows:
“The concept of whether a bargaining unit includes the appropriate job classifications is a concept which is separate from the issue of certification. A challenge to the appropriateness of a bargaining unit does not necessarily threaten a representative’s deemed cеrtified status
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“ * * * Whether SERB segments the bargaining unit according to the prohibitions set forth inR.C. 4117.06(D)(2) or decides not to segment the bargaining unit, the representative’s ‘deemed certified’ status is not affected.”
The “exception” argument, on the other hand, begins with the premise that “it is clear from the total statutory reference that the boundaries of exclusive representation are fixed by the unit in which pre-April 1, 1984 recognition occurred. Beyond this, the legislative command, expressed specifically in the relevant enactments, requires that the ‘deemed certified’ recognition acquired before April 1, 1984, continue indefinitely unless displaced. Displacement, аccording to the Act, occurs when an incumbent employee organization is successfully ‘challenged’ by a rival employee organization with consequent [SERB] certification.” (Emphasis added.) In re Univ. of Cincinnati (Univ. Hosp.), supra, SERB 85-022, at 122. The argument continues, however, that “[t]here is one exception to this principle. That exception is operative when the unit in question combined classifications before April 1,1984, which could not have been joined after that date. * * * [I]t is hardly conceivable that the legislature intended to proscribe specific job combinations in the same unit (as it obviously did) and at the same time intended to allow those combinations to stand indefinitely simply because they were negotiated before the effective date of the Act.” Id.
The “separate concept” argument erroneously presumes that it is only the union and not the preexisting bargaining units that are deemed certified by Section 4(A) of Am.Sub.S.B. No. 133. However, “[w]hen enacted, the [Ohio Public Employees’ Bargaining] Aсt contained special uncodified or temporary provisions that related to historical units and bargaining relationships. The effect, in part, of these provisions was to preserve the units, agreements, and bargaining structures that existed prior to April 1,1984 [the effective date of
Section 4 of Am.Sub.S.B. No. 133, therefore, was clearly “ ‘designed to maintain the status quo in those public sector employer/employee collective bargaining relationships antedating April 1, 1984.’ ” State Emp. Relations Bd. v. Bedford Hts. (1987),
Further, the idea that under Section 4(A), the composition of a bargaining unit is a concept distinct from representative certification is akin to envisioning a wagon as a concept distinct from its wheels. “[T]he appropriateness of the unit is an integral, interwoven, and indispensable element in selecting an exclusive representative. * * * The bargaining unit describes the ‘physical geography of collective bargaining.” Day, A Primer of Unit Design Under Ohio’s Public Employees’ Collective Bargaining Statute (1986), 11 U.Dayton L.Rev. 221, 222-223.
Moreover, SERB’S “separate concept” argument directly conflicts with its “exception” argument embraced by
SERB’S “exception” argument is also faulty for three very simple reasons. The first reason is that Section 4(A) of Am.Sub.S.B. No. 133 contains no such exception. On the other hand, Section 4(D) of Am.Sub.S.B. No. 133 does contain the very exception that SERB seeks to have read into Section 4(A), but confines it to cases of previously granted nonexclusive recognition. Section 4(D) provides that:
*683 “Nonexclusive recognition previously granted through an agreement or memorandum of understanding shall not preclude the Board from: (1) determining an appropriate unit, (2) if necessary, removing classifications from a bargaining unit under an existing nonexclusive contract, agreement or memorandum of understanding, and (3) holding a recognition-certification election to determine an exclusive representative for all such employees deemed part of the appropriate unit.”
As SERB itself has succinctly noted, “Section 4(D) is concerned with nonexclusive reprеsentation and treats it differently from exclusive recognition. This is a distinction that obviously intends a difference between exclusive and nonexclusive.” In re Bedford Hts. (July 24, 1987), SERB 87-016 at 3-56, fn. 6.
The second reason is that the principles of statutory construction preclude SERB from interpreting an
The third reason is that Section 4(A)’s provision for deemed certification operates “[notwithstanding any other provision of this act.” In Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992),
“The appellate court further determined that, inasmuch as the officers were not public employees underR.C. 4117.01(C) , they could not form an ‘employee organization’ as defined inR.C. 4117.01(D) . This determination is erroneous. Section 4(A) specifically provides for the grandfathering of existing bargaining*684 representatives ‘[Notwithstanding any other provision of this act.’ Accordingly, reference toR.C. 4117.01(D) to determine what constitutes a preexisting employee organization is at odds with the plain language of Section 4(A).” Id. at 345,587 N.E.2d at 840 .
Similarly, reference to
Accordingly, we hold that
In light of the foregoing, the decision of the court of appeals is reversed, and the judgment of the trial court is reinstated.
Judgement reversed.
Notes
. This interplay between Sections 4(A) and 4(D) also makes it clear thаt the General Assembly did not subscribe to the “separate concept” notion that Section 4(A) deems only exclusively recognized representatives, and not units, as certified. Otherwise, it would not have been necessary for the legislature to specifically provide for unit determinations involving nonexclusive recognitiоn.
. To foreclose any future arguments on this issue, we note that the hearing officer’s determination that Section 4(A) applies only to “the period of time extending three years after April 1, 1984” is erroneous. In order to reach such a conclusion, we would have to read the time restrictions of Section 4(A)’s first sentence into its second sentence. However, the second sentence operates independently of the first. “Subsection 4(A) [first sentence] has fixed the life expectancy of written agreements, contracts, or understandings resulting from such recognition at three years by incorporating the time limits of [R.C.] 4117.05(B). However, the time limit cuts down only the life of the contract bar defense.” (Footnotes omitted.) Day, A Primer of Unit Design Under Ohio’s Public Employees’ Collective Bargaining Statute, supra, 11 U.Dayton L.Rev. at 226. The “contract bar” operates to prohibit all challenges to an exclusive representative who is under written contract, for a period of three years.
Dissenting Opinion
dissenting. I respectfully dissent.
SERB promulgated
It is agreed that the unit in question contains such prohibited members; the sole question is the effect of Am.Sub.S.B. No. 133, Section 4(A) on the power of SERB to remedy this violation in the absence of a challenge from a rival employee organization.
The majority has concluded that Section 4(A) not only protects the status of the deemed certified employee organization, but also “grandfathers” any unit, intact, in the exact form in which it existed prior to the Act’s passage. The majority asserts that the concepts of certified status and composition of a unit are so inextricably bound as to be like a wagon and its wheels. To remove any member of a unit, in other words, is tantamount to disabling the unit and changing its very nature.
This argument suffers from two faults. The first is that the concepts of certified status and unit composition are not inextricably connected. They are not akin to a wagon and its wheels but, rather, to a wagon and its contents. Removing an item from the wagon does not alter the fact that it is still a wagon.
The second fault is that the language of Section 4(A) does not support the majority’s interpretation. The section states in part that “an employee organizar tion recognized as the exclusive representative shall be deemed certified until challenged by another employee organization * * *.” (Emphasis added.) The