Opinion
No. 82-642
Decided August 10, 1983.
Public employees — Labor relations — Representation election for bargaining unit serving under collective bargaining contract granted, when — Broad equitable principles to be applied.
O.Jur 2d Labor § 50.
A court should apply broad equitable principles in order to determine whether it is proper to order a representation election for a bargaining unit of public employees serving under a collective bargaining contract. ( Civil Service Personnel Assn. v. Akron, 48 Ohio St.2d 25 [2 O.O.3d 98], distinguished.)
APPEAL from the Court of Appeals for Cuyahoga County.
From 1974 through 1979, appellant, Service, Hospital, Nursing Home Public Employees Union, Local No. 47 ("Local 47"), was the exclusive bargaining representative of the staff employees who worked at six adult training centers operated by the Cuyahoga County Board of Mental Retardation ("Board"). During that time, Local 47 and the Board executed two collective bargaining agreements. The first of these became effective after Local 47 defeated appellee, the Association of Cuyahoga County Teachers of the Trainable Retarded ("Association"), in a representation election in May 1974. The second agreement was in effect from October 6, 1976, through December 31, 1979.
During the fall of 1979, the Association secured the signatures of a majority of the bargaining unit on petitions requesting a representation election. On November 8, 1979, the Association filed a complaint in the court of common pleas requesting that the court: (1) declare that the Association is entitled to a representation election, (2) grant mandatory injunctive relief ordering the Board to request the American Arbitration Association to hold a representation election, and (3) issue a temporary restraining order and permanent injunction preventing the Board from recognizing Local 47 as the exclusive bargaining representative. After a hearing, the court concluded that the Association was not entitled to permanent injunctive relief because "* * * [the] continued representation by Local 47 would not be clearly and convincingly foreign to the interest of the bargaining unit employees."
The court of appeals rejected that analysis and reversed the court of common pleas. Instead, the appellate court concluded that "`broad equitable principles of fairness'" apply to an action seeking representation and that "a court of equity cannot require a majority of workers to submit to a bargaining representative not of their [own] choosing in perpetuity." As a result, the court of appeals ordered that: (1) the parties conduct an election within sixty days from the date of the filing of the court of appeals' opinion and judgment entry; and (2) the Board, if it decides to bargain collectively, must recognize and negotiate only with the representative which receives a majority of the votes of the workers in the bargaining unit.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
John T. DeFazio Co., L.P.A., Green, Schiavoni, Murphy, Haines Sgambati Co., L.P.A., Mr. Eugene Green and Mr. Barry Laine, for appellee.
Schwarzwald, Robiner, Wolf Rock Co., L.P.A., Mr. Melvin S. Schwarzwald and Mr. Steven B. Potter, for appellant.
Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee, Robert J. Walter Co., L.P.A., and James E. Melle Co., L.P.A., urging affirmance for amicus curiae, Ohio Assn. of Public School Employees.
The primary issue in this cause concerns the standard which a court should apply in determining whether it is proper to order a representation election for a bargaining unit of public employees serving under a collective bargaining contract. Appellant argues that this court's holding in Civil Service Personnel Assn. v. Akron (1976), 48 Ohio St.2d 25 [2 O.O.3d 98] (" Akron"), requires that "* * * the incumbent organization * * * be proven to have acted clearly and convincingly foreign to the interests of the employees in the bargaining unit" before a court could order a representation election. We disagree.
Appellant bases its argument on the following language in Akron at page 28: "This court has recently recognized the right of public employees, under appropriate circumstances, to bargain collectively. See Dayton Teachers Assn. v. Dayton Bd. of Edn. (1975), 41 Ohio St.2d 127 [70 O.O.2d 223], 323 N.E.2d 714. That right cannot be effectively eliminated for a significant number of such employees through the employer's selection of a bargaining representative that is clearly and convincingly foreign to their interest."
Akron, however, involved an effort by employees of certain departments of the city of Akron to hold an election to determine whether a community of interest existed with the other employees in the union. That is, the "clearly and convincingly foreign to their interest" standard was applied in Akron only to the issue of whether distinct bargaining units existed. This case, however, requires us to consider when it is appropriate for the entire bargaining unit to vote on whether a new representative should serve the bargaining unit.
We agree with the court of appeals, however, that the logic of Akron provides the appropriate analytical framework for review in this case: "* * * When the rights of parties are clearly defined and established by law (especially when the source of such definition is through constitutional or statutory provision) the maxim `equity follows the law' is usually strictly applied. However, as in the case at bar, where the rights of parties are not thus delineated, broad equitable principles of fairness obtain, and the outcome of each case will be determined in light of such considerations." Akron, supra, at 27.
In Ohio, no applicable statutory law presently exists. Nevertheless, we — along with the court of appeals — recognize that the guidelines in the National Labor Relations Act, especially Sections 151 et seq., Title 29, U.S. Code, are illustrative of "broad equitable principles" at work. Indeed, the court of appeals observed in this case:
"Under federal law, there exist four limitations on the right of a labor organization, a group of employees, or an employer to challenge a bargaining representative on the ground that it has lost its majority status among the employees of a bargaining unit. The first limitation is statutory; 29 U.S.C. § 159(c)(3) provides that no election may be held in any bargaining unit in which a valid election has been held within the preceding twelve months. The other three limitations on the right to remove a bargaining representative were established by the N.L.R.B. and upheld by the federal courts. Under the `certification bar,' the N.L.R.B. refuses to entertain petitions showing lack of majority status, which are filed within one year after certification of a union, unless `unusual circumstances' are shown to exist. General Box Co. (1949), 82 N.L.R.B. 678; Mar-Jac Poultry Co. (1962), 136 N.L.R.B. 785; Brooks v. N.L.R.B. (1954), 348 U.S. 96; Burns v. Int'l Security Serv., Inc. [ sic N.L.R.B. v. Burns Int'l Security Services, Inc.] (1972), 406 U.S. 272; N.L.R.B. v. Pepsi-Cola Bottling Co. (C.A. 10, 1980), 613 F.2d 267, 272. Another limitation, the `recognition bar,' prohibits a challenge to a union's majority status for a `reasonable time' after an employer has in good faith recognized a union's demonstrated majority, where no other union was engaged in organizing the employees. Timbalier Towing Co. (1974), 208 N.L.R.B. 613. The `recognition bar' was created to give a recognized union a reasonable time within which to negotiate a collective bargaining agreement with the employer.
"The third limitation, the `contract bar,' imposes a procedural qualification on representation petitions filed under 29 U.S.C. § 159(c); where a union and an employer have entered into a collective bargaining agreement of no more than three years duration, a petition may only be filed within a thirty-day time period, more than sixty days and less than ninety days before termination of the existing contract. Retired Persons Pharmacy v. N.L.R.B. (C.A. 2, 1975), 519 F.2d 486; [ Local Union 3074,] United Steel Workers v. Shore (D.C. Pa. 1974), 386 F. Supp. 600."
In this case, more than half of the members of the bargaining unit signed petitions requesting an election. They entered this request more than five years after the most recent election, and approximately three years after the most recent contract went into effect but within the last quarter of the last year of that contract.
Accordingly, we hold that, under the totality of the circumstances in this case, equity compels that we affirm the judgment of the court of appeals and grant the expressed wishes of a majority of the bargaining unit for a representation election.
II
The court of appeals also held that "* * * a court is without power to compel negotiations between * * * [a public] agency and a labor organization." Appellant contends, however, that "[w]here an Ohio public employer has recognized a labor organization as the exclusive collective bargaining agent of a unit of its employees, it must continue to collectively bargain exclusively with that labor organization as the representative of those employees unless a new collective bargaining agent is chosen by the employees in an election." We disagree.
In Dayton Teachers Assn., supra, this court held, in paragraph one of the syllabus: "A board of education is vested with discretionary authority to negotiate and to enter into a collective bargaining agreement with its employees, so long as such agreement does not conflict with or purport to abrogate the duties and responsibilities imposed upon the board of education by law." (Emphasis added.) Clearly, the Dayton Teachers Assn. holding recognizes a discretionary authority for a board of education to bargain collectively. Furthermore, appellant has not cited any statutes or cases requiring that a public employer in Ohio continue to bargain collectively after having done so previously. Therefore, the court of appeals was correct in concluding that the trial court was without power to require the Board to bargain collectively.
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., KEEFE, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
KEEFE, J., of the First Appellate District, sitting for W. BROWN, J.