
    Foltz v. City of Dayton et al.
    (No. 133630
    Decided November 6, 1969.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Lucas, Prendergast, Albright, Gibson, Brown & Newman, Mr. Peter J. Gee and Mr. Rankin M. Gibson, for plaintiffs.
    
      Mr. James W. Drake, city attorney, and Mr. E. Donald Hawkins, for defendant City of Dayton.
    
      Messrs. Knee & Snyder, Mr. Robert C. Knee, Sr., and Mr. Garry A. Snyder, for defendants Dayton Public Service Union, Local 101 and others.
   Bbenton, J.

Plaintiff, Walter Foltz, a non-union employee of the city of Dayton, requests that the defendants, the city of Dayton, the Dayton Public Service Union and certain officers of said union be enjoined from enforcing the union security provisions of a collective bargaining contract.

Foltz complains specifically against the deduction of agency shop fees without written authorization and disciplinary action for any failure to so authorize.

This is a class action involving a substantial number of the city’s employees. Moreover, this is a taxpayers’ action to enjoin the carrying out of a contract alleged to be improper as not being substantially in accordance with statutory and constitutional law and thus invalid and illegal.

I

During the course of this litigation the defendants have consistently contended that plaintiff has an adequate remedy at law and is therefore not entitled to any equitable relief. The facts and circumstances disclosed by the evidence and as hereinafter in part delineated clearly indicate that a legal remedy was not presently available in a single action and as such would not be certain and complete. Legal action would fail to provide full and entire relief and protection from loss and threatened loss. Also it is incapable of being equal to all reasonable demands. A multiplicity of suits would be inevitable. Besides a taxpayers ’ action is, in any event, proper. Thus the court has no hesitation in concluding that its equitable jurisdiction over the subject matter has been established. Fuchs v. United Motor Stage Co., 135 Ohio St. 509.

II

The facts as found by the court may be summarized as follows:

1. Walter Foltz, plaintiff, has been a civil service employee for many years of the city of Dayton, holding the position of Painter I, in the Department of Parks and Recreation and is presently so employed.

2. Foltz is not and was not when this suit was commenced a member of the Dayton Public Service Union.

3. Foltz is a taxpayer of the city of Dayton by virtue of the city income tax imposed by the city of Dayton upon persons working within the municipal corporation limits of Dayton.

4. The city of Dayton is a municipal corporation and capable of being sued.

■ 5. Defendant, Local 101, Dayton Pnblic Service Union is a labor organization located at 1407 East Third Street, Dayton, Ohio.

6. The individual defendants are either officers or members of said union.

7. The city of Dayton entered into an agreement with Local 101 on May 13, 1969, whereby all employees are obligated to pay a monthly service charge ($4.00) to the union, even though the employee is not a member of said union and has not voluntarily authorized a deduction of dues or a service charge to said union.

8. This agreement further provided that the city must discipline at union request any employee of the city failing to pay said service charge and such discipline may include a minimum of one day’s suspension or a maximum of discharge from employment.

9. Foltz has not authorized any deduction of dues from his pay check, nor does he intend to pay union dues to the Dayton Public Service Union. Furthermore, there are at least ninety-five other non-union employees in a similar position.

10. Dayton Public Service Union has requested that the city of Dayton discipline Foltz and the other ninety-five employees failing to pay their shop dues as required by the agreement, and the city has clearly demonstrated that it will pursue and impose the provisions of the union security as against all employees failing to abide thereby.

11. It is an imminent probability, almost beyond doubt, that Foltz and others similarly situated will be irreparably damaged if they do not comply with the union security agreement.

12. The relevant provisions of the collective bargaining agreement are as follows:

“Article IV
“Union Security
“Thirty days after the execution date of this Agreement, or any extension thereof, all present employees within the unit shall either join the Union or in lieu thereof pay a monthly service charge to the Union in an amount equal to the Union’s regular monthly dues, as a contribution toward the administration of this contract. The above provision shall be applicable to new employees thirty (30) days after date of hire.
“Provided, however, that should the payment of such charge be contrary to the expressed dogma of the religious sect or church of such member, he may upon application and hearing by the Civil Service Board be exempted from this provision.
“Upon written notice from the Union, the City shall discipline an employee covered herein, for failure to pay such contract administration charge up to and including discharge, but in no event less than a suspension of one day for each month the employee fails to make such payment.
‘ ‘ The union agrees that upon discharge or disciplinary action by the City of an employee failing to pay said contract administration fee or union dues, the Union shall indemnify and save the City of Dayton harmless from any loss and/or damage occasioned therefrom.”

HI

The issues presented are:

1. Is the check-off of union dues of a municipal employee a police regulation or a self-executing municipal function not limited by state police power?

2. Is the check-off system in direct conflict with the police power of the state and consequently invalid?

3. Is the union security agreement invalid because it encompasses a delegation of power or function and thus fails to accomplish a governmental, public, or municipal purpose?

IV

The issues presented here are substantially the same issues as were before the court in Hagerman v. Dayton, 147 Ohio St. 313.

Syllabus 5 of the Hagerman case reads as follows:

“A municipal ordinance which provides for or authorizes a check-off of the wages or salary of civil service appointees is a police regulation and is in conflict with Section 6346-13, General Code” (now Section 1321.32, Revised Code) (Sections 3 and 7 of Article XVIII, Ohio Constitution).

Syllabus 7 of the Hagerman case reads as follows:

‘ ‘ There is no authority for the delegation of any powers or functions of either a municipality or its civil service appointees to any organization of any kind.”

Despite the fact that the Supreme Court of Ohio has not overruled the propositions of law therein pronounced, the defendants urge this court to embark on a crusade characterized as the “living law.” This court has no quarrel with the theories and propositions propounded by the union and the City of Dayton. The court recognizes that collective bargaining is a most useful tool in the field of labor relations. When properly employed it assists in keeping the economy within due bounds and benefits all mankind in many ways.

Thus, in effect, the union’s position is that no employee of the city of Dayton should reap the benefits derived from the efforts of the union without paying his fair share. With this proposition there is no disagreement. The court recognizes that labor has come a long way and progressively entered new areas. Much has been accomplished by labor organizations as between the employees and the governmental agency for which they work.

In the balance of power as between the executive, legislative and judicial branch of government, it has long been established that the function of the judiciary is to interpret and enforce the law. The legislative enacts the laws and the executive carries them out. May this court, then, indulge in new philosophies and concepts in order to give birth and life to the so-called “living law?” The court recognizes that the union ably presented the concept of the “living law” inasmuch as the testimony was un-contradicted as to the great number of union security agreements now in effect and recognized between various governmental agencies and their employees all over this great land of ours. Upon this undaunted progression this trial court is urged to interpret the enactments of the Legislature and the pronouncements in the Hagerman case as bad law and not in conformity with the evolution and revolution presently existing in the field of labor relations in the governmental sector.

In consequence of the foregoing, then, the court is not unmindful of the heavy burden cast upon it in an endeavor to ascertain if there are any shadows present over the existing law in Ohio that may be uncovered and thereby light up a new world of aid and comfort for the union and the city of Dayton.

V

Section 3, Article XVIII of the Constitution of the State of Ohio was adopted in 1912. This section is more commonly known as the “Home Rule” provision. This section has been interpreted as allowing municipalities to adopt police regulations in order to efficiently govern themselves. It has also been interpreted to mean that a municipality is restricted and limited by the general police power of the state. Leavers v. Canton, 1 Ohio St. 2d 33; Bazell v. Cincinnati, 13 Ohio St. 2d 63; 1963 Atty. Gen. Opinions 268. In consequence thereof, a police regulation of a municipality may not come into direct conflict with the general police power of the state. If it does, such regulation is void. Struthers v. Sokol, 108 Ohio St. 263; Municipal Corporations and the Police Power in Ohio, 29 O. S. Law Journal 29.

Section 9.41, Revised Code, provides that any person employed by a political subdivision, such as a municipality, cannot check-off wages of a public employee unless an authorization in writing is first obtained from such employee, which may be revocable at any time.

The difficulty and the concern has to do with the question of what municipal acts are included under “local police regulations” and therefore become subject to the control of the State Legislature. The scope of this phrase has been a continual source of litigation since the adoption of the Home Rule Amendment in 1912. With respect to ministerial acts of municipalities, the Supreme Court of Ohio has expanded or contracted the scope of the phrase with the divergent attitudes of the court toward local autonomy.

It should be noted that the words, “general laws,” as used in the phrase, “not in conflict with general laws” in Section 3, Article XVIII of the Constitution refer to laws enacted by the General Assembly. State, ex rel Arey, v. Sherrill, 142 Ohio St. 574.

The primary difficulties arose in those areas that dealt with Civil Service requirements of municipal employees. State, ex rel. Lentz, v. Edwards, 90 Ohio St. 305; State, ex rel. Vogt, v. Donahey, 108 Ohio St. 440, holding a municipal ordinance regulating the Civil Service was the subject of “local self government” and that the appointment of police officers was a matter of local self government. See also Hile v. Cleveland, 118 Ohio St. 99.

In the early 1940’s the Civil Service Requirements with respect to the police and fire departments began to receive different treatment. In Cincinnati v. Gamble, 138 Ohio St. 220, a retirement system with the city which had been established for the police and firemen was held to yield to a state statute on the same subject. See also State, ex rel. Strain, v. Houston, 138 Ohio St. 203; and State, ex rel. O’Driscoll, v. Cull, 138 Ohio St. 516.

Then in 1958 in State, ex rel. Canada, v. Phillips, 168 Ohio St. 191, the court reaffirmed that the words, “as are not in conflict with general laws” as used in Section 3 of Article XVIII of the Constitution, modify the power to enact “local police * * * regulations” but not the grant of “powers of local self government.” Obviously, then, a municipal act which is a “power of local self government” cannot be “in conflict” with a state statute.

Hagerman v. Dayton, 147 Ohio St. 313, is an interesting example of the Supreme Court apparently placing-municipal acts dealing with Civil Service in the category of “local police regulations.” As noted by the 5th syllabus of the Hagerman case, the court held that a city ordinance which provided for the check-off of union dues of city employees was a “local police regulation” and in “conflict” with the state statutes. The court defined “local police regulations ’ ’ as “the enactment of any ordinance which is aimed at the preservation of the health, safety, welfare or comfort of citizens of a municipality. ’ ’ In this court’s judgment, the application of this definition to the facts of the Hagerman case is suspect.

The decision in the Hagerman case also stressed that allowing for the check-off of union dues was an improper delegation of power and further that the check-off served no municipal purpose. It might, therefore, be construed that the court’s holding on “conflict with general laws” should be considered dictum.

It is interesting to note that in the Hagerman case Justices Zimmerman and Bell bottomed their concurrence in the judgment on the proposition that the ordinance under consideration authorized a governmental department of the municipality to perform extra-governmental services for the benefit of private enterprise, having no connection with the functioning of the city government.

An earlier case interpreting the Home Buie Amendment and alluded to by Justices Zimmerman and Bell in Hagerman, held that the powers of local self government conferred by Section 3, Article XVIII of the Constitution “are clearly such as involve the exercise of the functions of government.” (Emphasis added.) Fitzgerald v. Cleveland, 88 Ohio St. 338.

Also in the Hagerman case, supra, at page 328, the Ohio Supreme Court said:

“There is no municipal purpose served by the checkoff of wages of civil service employees. Counsel for ap-pellees argue that a check-off is a convenience to both the municipal appointee and the labor union. We must be realistic and take judicial notice, of what is generally known, that the check-off is a means of maintaining membership. Indeed, the record in this case shows that each so-called contract member is required to give a cognovit note for twenty months dues in advance and these proposed check-off payments are to be applied on such notes. The check-off is contrary to the spirit and purpose of the civil service laws of the state.”

The law as pronounced by the Supreme Court iu the Hagerman case is inescapable and thus a municipal ordinance which provides for a check-off of wages or salary of a member of the Civil Service, classified section, is a police regulation, and contrary to the general laws of the state of Ohio unless it subordinates itself. Section 9.41, Bevised Code.

Furthermore, it would appear that the Hagerman case dictates the conclusion that since the union security agreement under consideration does not accomplish a governmental, public, or municipal purpose, but serves merely to promote the private interests of a non-public organization, it is ultra vires and invalid.

The only difference between this case and the Hagerman case is that the parties are endeavoring to accomplish by contract in this case what they attempted to accomplish by ordinance in the Hagerman case.

VI

This court is cognizant of the difficulties and frustrations encountered in the application of labor relations' to governmental agencies. Indeed, the argument of the defendants that public employees are not on a parity with employees in private industry as compared with the growth and development of union causes in the private sector is well founded. Unquestionably unions in the public sector provide for good faith bargaining, adequate grievance procedures, the best in wages and fringe benefits and, in general, contribute to the totality of better relationships between government and its employees.

Nevertheless, this court is not the proper forum for a commitment to invoke a change in the mandated pronouncements of the law as interpreted and enforced by the Supreme Court of Ohio.

This court is reluctantly constrained to abide by its oath of office and refrain from interfering with the legislative function of government. This court may not legislate the law and it may not execute the law. Its sole function is to interpret the law as it finds it to be and to enforce the same.

It therefore must be left to the Legislature to alter or amend the laws in conflict with the union security agreement and to the Supreme Court of Ohio to determine whether the spirit and scope of the Hagerman case applies today or whether time dictates a change in its earlier decision.

VII

In conclusion, then, based upon the applicable facts and law, it is the decision of this court that the union security agreement is in direct conflict with the general law of this state and that it does not accomplish a governmental, public, or municipal purpose as distinguished from private, and, in consequence thereof, is ultra vires and invalid.

Now, therefore, the city of Dayton should be permanently enjoined from effectuating the union security agreement and from deducting from any employee of the city of Dayton union dues or agency shop fees except on express authorization of said employee and from taking any disciplinary action against employees not voluntarily signing authorizations for the deduction of union dues or agency shop or service fees. Further, the union and the individual defendant should be permanently enjoined from any activity or interference for the purpose of inducing or tending to induce the city of Dayton to comply with the terms of the agency shop provisions and from intimidating, coercing, or threatening employees of the city of Dayton with disciplinary action or discharge for failure to sign an agency shop or union dues authorization.

Judgment accordingly.  