Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd.

[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 392.]

FORT FRYE TEACHERS ASSOCIATION, OEA/NEA, ET AL., APPELLEES AND

CROSS-APPELLANTS, v. STATE EMPLOYMENT RELATIONS BOARD ET AL.,

APPELLANTS AND CROSS-APPELLEES.

[Cite as Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd.,

1998-Ohio-435.]

Schools—Teachers—Unfair labor practices—State Employment Relations

Board—School board barred by doctrine of collateral estoppel from

relitigating issue of its motivation in nonrenewing a teacher’s limited

teaching contract, when—Application of collateral estoppel does not

infringe upon SERB’s exclusive jurisdiction to decide whether unfair labor

practices have occurred.

(No. 96-2642—Submitted January 13, 1998—Decided April 22, 1998.)

APPEALS and CROSS-APPEAL from the Court of Appeals for Washington County,

No. 95CA33.

__________________

{¶ 1} Appellee Michael Rauch was employed by the appellant Fort Frye

Local School District Board of Education (“School Board”) as a high school

industrial arts teacher under two separate one-year limited teaching contracts from

1986 until 1988. While so employed, Rauch was a member of the appellee Fort

Frye Teachers’ Association (“Union”), the exclusive bargaining representative for

the certificated staff.

{¶ 2} In 1987, the collective bargaining agreement between the Union and

the School Board was up for renegotiation. Dissatisfied with the School Board’s

final offer, the Union decided to strike on October 19, 1987. Rauch was a staunch

supporter and served as a co-captain of the picket line during the strike.

SUPREME COURT OF OHIO

{¶ 3} On November 2, 1987, the School Board reopened the schools with

replacement substitute teachers and Fort Frye teachers who crossed the picket line.

On November 16, 1987, an agreement was reached on terms which closely

approximated the final offer of the School Board before the strike began. The

Union felt it had lost. Many striking teachers believed that the teachers who crossed

the picket line caused this defeat. To show their solidarity, several striking teachers

informally agreed to ostracize the nonstriking teachers by refusing to socialize with

them upon their return to work.

{¶ 4} In addition to the ostracism, the School Board also received several

reports of unprofessional conduct on the part of Rauch. Specifically, it was alleged

that Rauch had harassed several teachers and two students. Nonstriking teachers

and community members called for the nonrenewal of Rauch’s contract. After

receiving these complaints, the School Board’s superintendent notified Rauch that

he was recommending that the School Board nonrenew Rauch’s contract for the

following year due to his attitude and conduct.1 On April 21, 1988, the School

Board accepted the superintendent’s recommendation and declined to renew

Rauch’s limited teaching contract upon its termination at the end of the 1987-1988

school year.

{¶ 5} On April 22, 1988, the Union filed an unfair labor practice charge

(“ULP”) against the School Board with appellant State Employment Relations

Board (“SERB”) on Rauch’s behalf. The Union alleged that the School Board

nonrenewed the employment contract of Rauch in retaliation for engaging in

activities protected under R.C. Chapter 4117.

{¶ 6} SERB found probable cause to believe a ULP had occurred and a

complaint was issued against the School Board. After conducting an evidentiary

1. According to the terms of the collective bargaining agreement, the School Board could nonrenew

the limited contracts of teachers with less than four years of experience without establishing just

cause for their termination.

2

January Term, 1998

hearing, a SERB hearing officer found a ULP. SERB disagreed with its hearing

officer’s recommendation and entered judgment in the School Board’s favor. On

July 22, 1991, appellees appealed to the common pleas court. In addition, on

August 20, 1991, Rauch filed a complaint in federal court against the School Board,

alleging a violation of his constitutional right of freedom of association.

{¶ 7} On July 30, 1992, a federal jury returned a general verdict in Rauch’s

favor. The School Board filed a motion for judgment notwithstanding the verdict,

which was denied. The School Board then appealed, but later dismissed its appeal

in July 1993.

{¶ 8} Meanwhile, the state action proceeded. On January 12, 1993, the

common pleas court affirmed SERB’s decision. Appellees appealed. The court of

appeals did not address the merits of the appeal. Instead, it reversed and remanded

the case to SERB for a consideration of this court’s decision in State Emp. Relations

Bd. v. Adena Local School Dist. Bd. of Edn. (1993), 66 Ohio St.3d 485, 613 N.E.2d

605, which held that R.C. Chapter 4117 mandates the application of the “in part”

test in order to determine the motivation of an employer charged with a ULP.2

{¶ 9} SERB ordered the parties to submit additional briefs addressing the

“in part” standard. In their additional brief, appellees argued that the School Board

was collaterally estopped by the federal jury verdict from contesting the issue of its

motivation under the Adena standard.

{¶ 10} SERB rejected the appellees’ argument, applied the Adena standard,

and again failed to find a ULP. Upon appeal, the common pleas court agreed.

2. Under the “in part” test, the proponent of the ULP has the initial burden of showing that the

action by the employer was taken to discriminate against the employee for the exercise of rights

protected by R.C. Chapter 4117. Where the proponent meets this burden, a prima facie case is

created that raises a presumption of antiunion animus. The employer is then given an opportunity

to present evidence that its actions were the result of other conduct by the employee not related to

protected activity, to rebut the presumption. SERB then determines, by a preponderance of the

evidence, whether a ULP has occurred. State Emp. Relations Bd. v. Adena Local School Dist. Bd.

of Edn. (1993), 66 Ohio St.3d 485, 613 N.E.2d 605, paragraph two of the syllabus.

3

SUPREME COURT OF OHIO

However, the court of appeals reversed and remanded. The court agreed with

appellees’ position and held that upon remand, the School Board is collaterally

estopped by the jury verdict in federal court from contesting the issue of its

motivation with regard to alleged violations of R.C. Chapter 4117.

{¶ 11} The cause is now before us pursuant to the allowance of

discretionary appeals and a cross-appeal.

__________________

Cloppert, Portman, Sauter, Latanick & Foley, Mark A. Foley, Susan Hayest

Kozlowski and William J. Steele, for appellees and cross-appellants.

Betty D. Montgomery, Attorney General, and Peter M. Thomas, Assistant

Attorney General, for appellant and cross-appellee State Employment Relations

Board.

Whalen & Compton Co., L.P.A., G. Frederick Compton, Jr., R. Brent

Minney and Craig A. Robinson, for appellant and cross-appellee Fort Frye Local

School District Board of Education.

_______________

FRANCIS E. SWEENEY, SR., J.

{¶ 12} The issue presented in this case is twofold. First, we must decide

whether the School Board is barred by the doctrine of collateral estoppel from

relitigating the issue of its motivation in nonrenewing Rauch’s limited teaching

contract. Second, we must determine whether the application of collateral estoppel

infringes upon SERB’s exclusive jurisdiction to decide whether unfair labor

practices have occurred. Because we find that collateral estoppel applies and that

this decision does not invade SERB’s exclusive jurisdiction, we affirm the court of

appeals and remand the matter to SERB for further proceedings consistent with this

opinion.

{¶ 13} It has long been held that the legal doctrine of res judicata consists

of two related concepts—claim preclusion and issue preclusion. Grava v. Parkman

4

January Term, 1998

Twp. (1995), 73 Ohio St.3d 379, 381, 653 N.E.2d 226, 228. Although not at issue

here, the claim preclusion concept holds that a valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action. Id. at

syllabus.

{¶ 14} The doctrine of issue preclusion, also known as collateral estoppel,

holds that a fact or a point that was actually and directly at issue in a previous action,

and was passed upon and determined by a court of competent jurisdiction, may not

be drawn into question in a subsequent action between the same parties or their

privies, whether the cause of action in the two actions be identical or different.

Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67,

paragraph three of the syllabus; Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493,

12 O.O.3d 403, 391 N.E.2d 326, syllabus; Goodson v. McDonough Power Equip.,

Inc. (1983), 2 Ohio St.3d 193, 2 OBR 732, 443 N.E.2d 978, paragraph one of the

syllabus. While the merger and bar aspects of res judicata have the effect of

precluding the relitigation of the same cause of action, the collateral estoppel aspect

precludes the relitigation, in a second action, of an issue that has been actually and

necessarily litigated and determined in a prior action that was based on a different

cause of action. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112, 49

O.O.2d 435, 437-438, 254 N.E.2d 10, 13. “In short, under the rule of collateral

estoppel, even where the cause of action is different in a subsequent suit, a judgment

in a prior suit may nevertheless affect the outcome of the second suit.” Id. at 112,

49 O.O.2d at 438, 254 N.E.2d at 13.

{¶ 15} Appellants contend that certain collateral estoppel requirements

were not met. First, we note that there is no disagreement that the federal district

court is a court of competent jurisdiction. However, the School Board contends

5

SUPREME COURT OF OHIO

that the prior3 federal action did not involve the same parties or their privies because

SERB was not a party to the federal lawsuit. We reject this argument.

{¶ 16} In determining whether there is privity of parties, “a court must look

behind the nominal parties to the substance of the cause to determine the real parties

in interest.” Trautwein, 58 Ohio St.2d at 501, 12 O.O.3d at 407, 391 N.E.2d at 331.

That is, we must consider which party estoppel is being asserted against.

{¶ 17} In both the state and federal action, Rauch and the School Board

have been adversaries. SERB, however, has played a unique role. SERB is the

administrative agency responsible for deciding public-sector labor relations

disputes pursuant to R.C. Chapter 4117. Franklin Cty. Law Enforcement Assn. v.

Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167,

170, 572 N.E.2d 87, 90. Thus, in accordance with R.C. Chapter 4117, and

depending upon the posture of the case, SERB has aligned itself with both Rauch

and the School Board.4 Since SERB’s authority is limited to state administrative

claims, SERB could not be a party to a federal action alleging a federal

constitutional violation. However, the fact that SERB was not involved in the

federal action is immaterial. The real parties in interest (Rauch and the School

3. The School Board argues that the federal action should not be considered as the prior action

because the SERB action began years before the federal action. This argument is rejected. When

two actions are pending that involve the same issue, it is the final judgment first rendered in one of

the actions that becomes conclusive in the other action, regardless of which action was commenced

first. 1 Restatement of the Law 2d, Judgments (1982) 142, Section 14, comment a. When the

School Board dismissed its appeal to the Sixth Circuit Court of Appeals in July 1993, the federal

proceeding became final. This appeal, involving the SERB proceeding, demonstrates that the state

proceeding is yet to be final.

4. For instance, at the state level, the Union, on Rauch’s behalf, filed a ULP charge with SERB

against the School Board. SERB investigated the charge and found probable cause to believe that

the School Board had committed a ULP. Then SERB, as complainant, filed a complaint against the

School Board. Rauch and the Union were granted permission to intervene as interested parties. A

SERB hearing officer recommended that SERB find that a ULP was committed. However, when

SERB rejected this recommendation and dismissed the charge, SERB allied itself with the School

Board on the subsequent appeal. When the case was remanded to SERB, SERB allied itself with

Rauch. Later, when the charge was again dismissed, SERB was again allied with the School Board

when Rauch appealed that determination.

6

January Term, 1998

Board) have remained the same. These are the parties whose interests were

implicated by the federal action and the ULP charge. Thus, the party against whom

estoppel is sought (the School Board) was a party to the prior action.

{¶ 18} The more difficult question is whether the same facts used to support

the civil rights violation are the same facts to sustain a ULP charge. If the same

evidence would sustain both issues, then the two issues are the same for purposes

of applying collateral estoppel. Norwood, 142 Ohio St. 299, 27 O.O. 240, 52

N.E.2d 67, paragraph four of the syllabus. We find the evidence is the same.

{¶ 19} In their federal action, appellees sought damages for the School

Board’s violation of Rauch’s freedom of association rights. The material issue was

whether the School Board nonrenewed Rauch’s contract in retaliation for his

exercise of the right to associate as protected by the First Amendment to the United

States Constitution. The underlying facts substantiating the School Board’s

retaliatory motive centered around Rauch’s union activities. The test for

determining whether a violation of First Amendment rights, including associational

rights, has occurred is found in Mt. Healthy City School Dist. Bd. of Edn. v. Doyle

(1977), 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. This case sets forth a “but for”

test for establishing that an employee’s exercise of First Amendment rights was

violated by employer retaliation.5 This standard is a much stricter standard than

Ohio’s standard to determine whether an unfair labor practice charge has occurred.

(See Adena, 66 Ohio St.3d at 495-497, 613 N.E.2d at 613-614, where we rejected

the Mt. Healthy “but for” test applicable to First Amendment rights and established

the “in part” test applicable to unfair labor practice proceedings. However, both

standards revolve around the same factual issue, the employer’s motivation.)

5. The United States Supreme Court determined that once the plaintiff establishes that the exercise

of First Amendment rights played some role in the employer’s decision to discharge an employee,

the burden shifts to the employer to show that the discharge would have occurred absent motive to

punish for First Amendment activity. Mt. Healthy City School Dist. Bd. of Edn. v. Doyle (1977),

429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471, 484.

7

SUPREME COURT OF OHIO

{¶ 20} Similarly, in the state administrative action, the material issue was

whether the School Board nonrenewed Rauch’s contract in retaliation for his

exercise of rights protected by R.C. Chapter 4117. As such, the essential facts

regarding this issue concerned the same union activities engaged in by Rauch that

were relied upon by the jury in the federal action. Since the same evidence would

prove the underlying facts in each of these two proceedings, the issues are the same

for purposes of applying the collateral estoppel doctrine.

{¶ 21} We find that the collateral estoppel requirements have been satisfied.

Thus, we conclude that the court of appeals properly applied collateral estoppel to

the issue of the employer’s motivation.

{¶ 22} However, an ancillary issue needs to be addressed. Appellants

believe that the application of the collateral estoppel doctrine will destroy SERB’s

exclusive jurisdiction. Appellants assert that under the guise of the collateral

estoppel doctrine, the appellate court usurped SERB’s role as the exclusive arbiter

of unfair labor practice charges.

{¶ 23} Appellants do not cite cases which hold that administrative tribunals

should not be bound by collateral estoppel principles. Instead, appellants merely

cite cases which have held that SERB has exclusive jurisdiction to determine

whether unfair labor practices have occurred. See, e.g., E. Cleveland v. E.

Cleveland Firefighters Local 500, I.A.F.F. (1994), 70 Ohio St.3d 125, 127, 637

N.E.2d 878, 879-880; State ex rel. Fraternal Order of Police, Ohio Labor Council,

Inc. v. Franklin Cty. Court of Common Pleas (1996), 76 Ohio St.3d 287, 667

N.E.2d 929. Appellees do not argue with the holdings from these cases. In fact,

they agree that the General Assembly has vested SERB with exclusive jurisdiction

to determine whether unfair labor practices have taken place.

{¶ 24} We fail to understand appellants’ argument. In fact, we agree with

the court of appeals and find that the application of the collateral estoppel doctrine

does not infringe upon SERB’s jurisdiction to determine the ultimate issue in the

8

January Term, 1998

case, i.e., whether the School Board’s nonrenewal of Rauch’s contract constituted

an unfair labor practice. SERB still must answer this issue on remand. Collateral

estoppel applies only to the fact that the School Board may not relitigate the issue

of its motivation for nonrenewing Rauch’s contract. SERB continues to have

exclusive jurisdiction over the ULP charge.

{¶ 25} The judgment of the court of appeals is affirmed, and the cause is

remanded to SERB for a determination whether an unfair labor practice in violation

of R.C. 4117.11 occurred.6

Judgment affirmed

and cause remanded.

DOUGLAS, RESNICK and PFEIFER, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.

__________________

COOK, J., dissenting.

{¶ 26} I respectfully dissent. Because the State Employment Relations

Board (“SERB”) possesses special expertise and superior procedures to resolve the

mixed questions of fact and law posed by R.C. Chapter 4117 and State Emp.

Relations Bd. v. Adena Local School Dist. Bd. of Edn. (1993), 66 Ohio St.3d 485,

613 N.E.2d 605, the judicially created doctrine of collateral estoppel should not

apply to mixed-motive cases under SERB’s jurisdiction.

{¶ 27} Adena at paragraph two of the syllabus held:

“Under the ‘in part’ test to determine the actual motivation of an employer

charged with an unfair labor practice, the proponent of the charge has the initial

burden of showing that the action by the employer was taken to discriminate against

the employee for the exercise of rights protected by R.C. Chapter 4117. Where the

proponent meets this burden, a prima facie case is created which raises a

6. Based upon our affirmance of the court of appeals’ decision, we need not reach the cross-appeal.

9

SUPREME COURT OF OHIO

presumption of antiunion animus. The employer is then given an opportunity to

present evidence that its actions were the result of other conduct by the employee

not related to protected activity, to rebut the presumption. The State Employment

Relations Board then determines, by a preponderance of the evidence, whether an

unfair labor practice has occurred.”

{¶ 28} The legal questions bound up in this analysis are: what conduct R.C.

Chapter 4117, in fact, protects and what activities constitute unfair labor practices

(“ULP”) under that chapter. These legal judgments are so intertwined with factual

issues in determining employer motivation for discharge under the Adena standard

that the two cannot be separated.

{¶ 29} Under Adena, SERB is charged with evaluating the factual situation

surrounding a ULP charge to determine whether a ULP has in fact occurred. “A

ULP occurs when an employer takes an action regarding an employee that is

motivated by antiunion animus.” Id. at 497, 613 N.E.2d at 614. R.C. 4117.12(B)(4)

specifically provides that SERB cannot order reinstatement or back pay to a public

employee discharged for just cause unrelated to rights provided in R.C. 4117.03.

{¶ 30} Accordingly, as part of any factual resolution on the issue of

motivation, Adena demands consideration of rights protected by R.C. 4117.03 vis-

à-vis employee actions that are not protected by that section. It is against this

backdrop that SERB must determine the employer’s true motivation for discharge.

Requiring SERB to determine employer motivation under Adena on a case-by-case

basis is also consistent with this court’s recognition that “[t]he General Assembly

has entrusted SERB with the responsibility of administering the statute, and has

bestowed upon it the special function of applying the statute’s provisions to the

complexities of Ohio’s industrial life.” State Emp. Relations Bd. v. Miami Univ.

(1994), 71 Ohio St.3d 351, 353, 643 N.E.2d 1113, 1115.

{¶ 31} Moreover, as stated in Adena, 66 Ohio St.3d at 494-495, 613 N.E.2d

at 612, “[m]otivation is rarely clear. An employer charged with a ULP will almost

10

January Term, 1998

always claim that a particular action was taken for sound business reasons, totally

unrelated to the employee’s participation in protected activities. The employee will

almost always claim that the action was taken to retaliate for his or her exercise of

protected rights. Since evidence of the employer’s motivation is rarely direct,

SERB must rely on a good deal of circumstantial evidence in arriving at its

conclusion.” In conjunction with this difficult task, SERB possesses fact-finding

powers greater than those possessed by a jury. For example, (1) SERB agents who

have investigated a ULP charge are made parties to the action and may present

evidence, (2) SERB has discretion to permit any interested party to intervene and

present evidence at the hearing, and (3) in conducting hearings, neither SERB nor

its hearing officers are bound by the Rules of Evidence prevailing in courts. R.C.

4117.12(B)(1).

{¶ 32} 1 Restatement of the Law 2d, Judgments (1982) 273, Section 28(3)

provides that an exception to the general rule of issue preclusion should apply

where “[a] new determination of the issue is warranted by differences in the quality

or extensiveness of the procedures followed in the two courts or by factors relating

to the allocation of jurisdiction between them.” The Reporter’s Notes expound on

that subsection by stating, “the question of preclusive effect should turn in each

case on an analysis of the comparative quality and extensiveness of the procedures

followed in the two courts, of their relative competence to deal with the particular

issue, and of the legislative purpose in allocating jurisdiction between them.” Id. at

287. When these considerations are taken into account, it becomes apparent why

collateral estoppel should not apply to exclude SERB from independently

determining whether an employer’s true motivation for discharge offends R.C.

Chapter 4117.

{¶ 33} Finally, even if I were to concede that collateral estoppel should have

general applicability to mixed-motive cases before SERB, I would nevertheless

conclude that, in this case, it has not been adequately proven as an affirmative

11

SUPREME COURT OF OHIO

defense. In the federal action, the jury considered only whether the employer’s

motivation for discharge violated Rauch’s First Amendment rights. The jury was

not required to consider the facts presented to it in relation to R.C. Chapter 4117.

In fact, SERB’s exclusive jurisdiction would have prevented the federal jury from

passing directly on such a determination. See Franklin Cty. Law Enforcement Assn.

v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167,

572 N.E.2d 87, paragraph one of the syllabus.

{¶ 34} While there is undoubtedly an overlap between rights protected by

the First Amendment to the United States Constitution and rights protected by R.C.

Chapter 4117, the protections are not coextensive. For instance, in Mt. Healthy

City School Dist. Bd. of Edn. v. Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50

L.Ed.2d 471, the United States Supreme Court reasoned that an untenured teacher’s

public disclosure and criticism of a school principal’s memorandum related to

teacher dress and appearance were entitled to First Amendment protection. In that

case, the court stated, “[the] question of whether speech of a government employee

is constitutionally protected expression necessarily entails striking ‘a balance

between the interests of the teacher, as a citizen, in commenting upon matters of

public concern and the interests of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.’ ” (Emphasis

added.) Id. at 284, 97 S.Ct. at 574, 50 L.Ed.2d at 481-482, quoting Pickering v.

Twp. High School Dist. 205 Bd. of Edn. (1968), 391 U.S. 563, 568, 88 S.Ct. 1731,

1734, 20 L.Ed.2d 811, 817. Accordingly, the Mt. Healthy court considered First

Amendment protections of a government employee as a private citizen that are

unrelated to that employee’s right to collectively bargain or engage in any other

activity that would necessarily receive R.C. 4117.03 protection.

{¶ 35} In this case, Rauch and his union have failed to demonstrate that the

federal jury based its decision regarding employer motivation on antiunion animus.

As discussed in the SERB opinion, Rauch engaged in strike activity that SERB

12

January Term, 1998

would have considered protected under R.C. 4117.03, but also engaged in

individual post-strike behavior unrelated to those rights. There is no way of telling

from the federal jury’s general verdict, unaccompanied by interrogatories, which of

these activities the jury found to have motivated the discharge. Because the burden

of pleading and proving the identity of issues rests on the party asserting collateral

estoppel (Goodson v. McDonough Power Equip., Inc. [1983], 2 Ohio St.3d 193,

198, 2 OBR 732, 737, 443 N.E.2d 978, 983-984), and neither Rauch nor the union

on his behalf has demonstrated the precise factual issue decided by the federal jury,

collateral estoppel is unavailable as an affirmative defense.

{¶ 36} Based on all of the foregoing, I would reverse and remand the case

to the appellate court for review of Rauch’s first assignment of error, which the

court previously avoided as moot based on its disposition and App.R. 12(A)(1)(c).

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing

dissenting opinion.

__________________

13