Fort Frye Teachers Ass'n v. State Employment Relations Board

Cook, J.,

dissenting. 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.

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 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.”

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 *399 factual issues in determining employer motivation for discharge under the Adena standard that the two cannot be separated.

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.

Accordingly, as part of any factual resolution on the issue of motivation, Adena demands consideration of rights protected- by R.C. 4117.03 vis-a-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 .

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 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).

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 *400 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.

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 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.

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.

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 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 *401 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.

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.