760 N.E.2d 850 | Ohio Ct. App. | 2001
Appellee Dennis Cook filed two unfair-labor-practice charges against appellants the city of Norwood, its Director of Public Service, Gary Hubbard, and its Superintendent of Public Works, Kevin Cross (collectively "Norwood"). SERB determined that there was probable cause for believing that Norwood had committed or was committing unfair labor practices in violation of R.C.
The Ohio Attorney General, on behalf of SERB, moved to dismiss the charges based on a settlement agreement executed by SERB and Norwood Cook did not sign the agreement and opposed the motion to dismiss. SERB adopted the settlement agreement and dismissed the unfair-labor-practice charges with prejudice. It concluded that "[t]he settlement agreement substantially remedies the underlying issues arising from the unfair labor practice charges, effectuates policies of O.R.C. Chapter 4117, and promotes good labor relations."
Cook appealed SERB's decision to the trial court. (SERB's directive granting the motion to dismiss had contained a notification of how to file an appeal under R.C.
On appeal, SERB challenges the trial court's remand, arguing that SERB is not required to hold a hearing under R.C.
The issue here is whether the word "shall," as used in R.C.
Cook argues that the legislature's use of "shall" clearly mandates that SERB issue a complaint and conduct a hearing upon finding probable cause to believe that an unfair labor practice has occurred. Cook relies on the Ohio Supreme Court's statements in State ex rel. Serv. Emp. InternatlUnion, Dist. 925 v. State Emp. Relations Bd.4 In that case, a labor-relations specialist for SERB investigated a claim of an unfair labor practice involving a university's decision to privatize its hospital operations, recommending that SERB find probable cause to believe that an unfair labor practice had been committed. SERB rejected the recommendation, determined that the investigator had failed to support a finding of probable cause, and dismissed the charge. The union then sought a writ of mandamus to compel SERB to issue a complaint and to conduct a hearing
Thus, the issue before the Ohio Supreme Court was whether mandamus should lie where SERB had abused its discretion in dismissing an unfair-labor-practice charge on the basis of no probable cause, when there clearly was probable cause to believe that an unfair labor practice had occurred. The court issued the writ *464 and directed SERB to reinstate the unfair-labor-practice charge, to issue a complaint, and to conduct a hearing. In its decision, the court stated,
R.C.
4117.12 (B) mandates that SERB shall issue a complaint and shall conduct a hearing concerning an unfair labor practice charge if, following an investigation of the charge, it has probable cause to believe that an unfair labor practice has occurred Thus, SERB has a clear legal duty to pursue an unfair labor practice case if it has probable cause to believe that an unfair labor practice has been committed. Additionally, the party that files the unfair labor practice charge with SERB has a clear legal right to have that charge proceed beyond the probable-cause stage of the proceeding if, in fact, there is probable cause to believe that an unfair labor practice has occurred
In response to SERB's argument that its only clear legal duty under R.C.
The Supreme Court also rejected SERB's argument that R.C. Chapter 4117 implicitly allowed it to decline to issue a complaint, as long as its decision was based on "good labor policy for the benefit of the public." The court held that such an exception was neither expressed nor implied in R.C.
The employee asked the court to order SERB to rescind the agreement and to hold a hearing. The issue was whether the use of "shall" in R.C
The common pleas court also found support in Local 282, InternatlBrotherhood of Teamsters v. NLRB,9 and its application of federal law to the National Labor Relations Board. According to the common pleas court's interpretation of that case, the National Labor Relations Act does not confer a private right of action on a charging party, instead giving the NLRB the role of "act[ing] on behalf of the public to vindicate public rights."10 Thus, settlement agreements are acceptable if they "effectuate the policies of the act and promote good labor relations."11 In sum, the court of common pleas determined that a hearing was not necessary and that the settlement agreement should be upheld
We note that the common pleas decision was reached before the Ohio Supreme Court's discussion of the issue in State ex rel. Serv. EmpInternatl. Union, Dist. 925 v. State Emp. Relations Bd. After that case, the Montgomery County case is no longer viable *466
The trial court determined that the plain language of R.C.
When a statute is unambiguous and definite, "it must be applied as written and no further interpretation is necessary."13 Consequently, "[i]n order to determine the intent of the General Assembly in enacting legislation the court must give effect to the words used in the statute,"14 and it can neither delete words nor insert words not used.15
In contrast, "[a] statute is ambiguous when its language is subject to more than one reasonable interpretation."16 Thus, in cases of ambiguity, interpretation is necessary.17 The Ohio Supreme Court has instructed that the word "shall" in a statute "shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that [it] receive a construction other than [its] ordinary usage."18 *467
The Ohio Supreme Court has also determined, albeit in dicta, that R.C
SERB and Norwood ask us to find an exception in the statute where a settlement has been reached between SERB and the charged party. We are precluded from adding words to an unambiguous statute. Had the General Assembly intended for a settlement agreement between SERB and the entity charged with an unfair labor practice to preclude the charge from proceeding beyond the probable-cause stage, it could easily have expressed its intent by writing an exception into the statute. It did not, and we do not have license to do so. Thus, we conclude that the trial court was correct in remanding the case to SERB with instructions that SERB issue a complaint and hold a hearing. Accordingly, we overrule SERB's only assignment of error and Norwood's first assignment
Norwood's second assignment of error is subsumed in its first assignment, and it is overruled for the same reasons. Therefore, we affirm the judgment of the trial court
Judgment affirmed
Doan, P.J., and Sundermann, J., concur