stating that “a decision by SERB whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D)”
How later courts described this case
- stating that “a decision by SERB whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D)”
Written by the judges who cited it.
The opinion
Alice Robie Resnick, J.,
concurring. I concur in the majority opinion but write separately. Our entire government is established on a system of checks and balances. This fact is true of all governmental bodies. However, there is no review pursuant to R.C. 4117.02 when the State Employment Relations Board, composed of three individuals, finds no probable cause as to whether to prosecute an unfair labor practice claim.
As stated by the majority, “* * * the process of investigating and evaluating an unfair labor practice charge filed by a private party is clearly not a quasi-judicial adjudication.” The Eighth Appellate District in Boieru v. State Emp. Relations Bd. (1988), 54 Ohio App. 3d 23, 27 , 560 N.E. 2d 801, 806 , has noted that “[t]he decision to prosecute or not to prosecute a[n] [unfair labor practice] claim is a purely ex-ecutory and nonjudicial function.” This is apparent from the fact that no hearing or notices are required.
A non-judicial function cannot be made into a final appealable order under R.C. 2505.02. All that took place in this matter was an investigation, which is ministerial rather than quasi-judicial. Under R.C. 119.06, in order for an adjudication order to be valid, a hearing must be afforded in accordance with R.C. 119.01 to 119.13. R.C. 4117.02 has no provision for an adjudication hearing prior to the board’s making its initial probable cause determination.
In order to hold that this initial decision finding no probable cause is a final appealable order, this court would have to redraft R.C. 4117.02. It is not the function of this court to legislate. However, I strongly recommend that the General Assembly review R.C. 4117.02 to decide whether it is advisable to entrust unbridled discretion in a three-member board to determine whether probable cause exists to prosecute an unfair labor practice charge. I believe it is advisable that these decisions be reviewed, otherwise excessive authority is held by one agency. To be true to the system of checks and balances by which our government operates, R.C. 4117.02 should be legislatively amended.