State ex rel. Alben v. State Emp. Relations Bd.

• Decision Date: 24 July 1996
• Docket Number: No. 95-1380,95-1380
• Citation: 76 Ohio St.3d 133,666 N.E.2d 1119
• Parties: , 110 Ed. Law Rep. 803, 1996 SERB 4-27 The STATE ex rel. ALBEN et al. v. STATE EMPLOYMENT RELATIONS BOARD.
• Court: Ohio Supreme Court

Page 133

76 Ohio St.3d 133

666 N.E.2d 1119, 110 Ed. Law Rep. 803, 1996 SERB 4-27

The STATE ex rel. ALBEN et al. v. STATE EMPLOYMENT RELATIONS BOARD.

No. 95-1380.

Supreme Court of Ohio.

Submitted May 21, 1996.

Decided July 24, 1996.

The Columbus Board of Education ("CBE") employs relators, Barbara Alben et al., a group of forty-five tutors. Relators are certified teachers employed primarily to educate special-needs or learning-disabled students as part of programs enacted by the federal government and approved by the Ohio Department of Education. The most frequent use of tutors, particularly after the enactment of federal and state handicapped education laws in the mid-1970s, was in the area of special education and in federally funded programs to assist disadvantaged pupils in reading, mathematics, and other subjects (the so-called "Title I" and "Chapter I" programs). Baker & Carey, Baker's 1995-96 Handbook of Ohio School Law (1995) 361, Section 7.44.1. The Columbus Education Association ("CEA"), an affiliate of the Ohio Education Association ("OEA"), purports to represent relators as their exclusive bargaining agent in collective bargaining with CBE.

On September 2, 1994, relators filed unfair labor practice charges against CBE and CEA/OEA with respondent, State Employment Relations Board ("SERB"), within ninety days of June 6, 1994, the effective date of the collective bargaining agreement. The applicable provisions of the collective bargaining agreement became effective on September 1, 1994. Relators subsequently amended the charges in October 1994 to add additional charging parties.

Relators charged that CEA/OEA had violated R.C. 4117.11(B)(1) and (6) by (1) unfairly representing tutors in negotiating terms and conditions of employment drastically different from those of similarly situated teachers and in violation of decisions of this court, (2) negotiating a settlement in 1992 which precluded tutors from eligibility for continuing contracts, and (3) including tutors in the bargaining unit when they were not part of the deemed certified unit.

Relators also charged that CBE had violated R.C. 4117.11(A)(1) and (8) by (1) knowingly entering into a contract in which similarly situated persons are treated disparately, and (2) entering into an illegal contract with CEA/OEA where the contract attempted to dictate terms of employment to employees who were not part of the deemed certified unit. Relators demanded to be paid by CBE in a manner commensurate with similarly situated teachers or in accordance with the R.C. 3317.13 minimum salary schedule for teachers.

In decisions issued in March 1995, SERB dismissed relators' unfair labor practice charges, indicating as to each charge the following:

"Pursuant to Ohio Revised Code Section 4117.12, the Board conducted an investigation of this charge. The investigation reveals that there is no probable cause to believe that the Charged Party has violated Ohio Revised Code Section 4117.11. The information gathered during the investigation failed to support the probability of any unlawful motivation or conduct * * *. Also, the events giving rise to the charge occurred more than ninety (90) days prior to the filing of the charge. Accordingly, the charge is dismissed."

Relators subsequently filed a complaint for a writ of mandamus to compel SERB to vacate its dismissals and hold a hearing on the unfair labor practice charges. Attached to the complaint was an affidavit of relators' counsel. After SERB filed an answer in which it stated that it did not abuse its discretion in dismissing relators' unfair labor practice charges, we issued an alternative writ and schedule for the presentation of evidence and briefs. The parties did not file any further evidence.

Schottenstein, Zox & Dunn, James E. Davidson, Susan Porter and Marie-Joelle C. Khouzam, Columbus, for relators.

Betty D. Montgomery, Attorney General, and Andrea F. Rocco, Assistant Attorney General, for respondent.

PER CURIAM.

Standard of Review, Burden of Proof, and Evidence

Relators assert in their various propositions of law that SERB abused its discretion in dismissing their unfair labor practice charges against CBE and CEA/OEA. R.C. 4117.12(B) provides that "[w]hen anyone files a charge with the board alleging that an unfair labor practice has been committed, the board or its designated agent shall investigate the charge. If the board has probable cause for believing that a violation has occurred, the board shall issue a complaint and shall conduct a hearing concerning the charge."

Probable cause determinations by SERB under R.C. 4117.12(B) are not reviewable by direct appeal. See Ohio Assn. of Pub. School Emp., Chapter 643 AFSCME, AFL-CIO v. Dayton City School Dist. Bd. of Edn. (1991), 59 Ohio St.3d 159, 572 N.E.2d 80, syllabus. However, mandamus is an appropriate remedy where no statutory right of appeal is available to correct an abuse of discretion by an administrative body like SERB. State ex rel. Glass, Molders, Pottery, Plastics & Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 157, 159, 609 N.E.2d 1266, 1267. A writ of mandamus will thus issue to correct an abuse of discretion by SERB in dismissing unfair labor practice charges. See State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, AFL-CIO v. State Emp. Relations Bd. (1992), 64 Ohio St.3d 149, 151-153, 593 N.E.2d 288, 290-291. An abuse of discretion implies an attitude that is unreasonable, arbitrary, or unconscionable. State ex rel. Brenders v. Hall (1995), 71 Ohio St.3d 632, 637, 646 N.E.2d 822, 826. In addition, due deference must be afforded to SERB's interpretation of R.C. Chapter 4117. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 533 N.E.2d 264, paragraph two of the syllabus.

In order to be entitled to the requested writ of mandamus compelling SERB to vacate its dismissals, issue a complaint, and hold a hearing on the charges, relators must thus establish that SERB abused its discretion in dismissing the unfair labor practice charges.

SERB contends that relators failed to satisfy their burden of proof by filing no evidence in this case. More specifically, SERB asserts that we cannot consider the affidavit of relators' counsel, which was filed with their complaint. SERB bases the foregoing assertion on State ex rel. Copeland v. State Med. Bd. (1923), 107 Ohio St. 20, 140 N.E. 660, paragraph two of the syllabus ("Affidavits attached to a petition and by proper averments made a part thereof may not properly be considered as evidence, and do not tend to support the petition or sustain the burden of proof required to be met by plaintiff upon issue joined by an answer."). However, Copeland did not interpret S.Ct.Prac.R. X, which applies to original actions, other than habeas corpus, filed in this court. S.Ct.Prac.R. X(7) provides that "[t]o facilitate the consideration and disposition of original actions, counsel, when possible, should submit an agreed statement of facts to the Supreme Court. All other evidence should be submitted by affidavits, stipulations, depositions, and exhibits." Therefore, the affidavit of relators' counsel filed with the complaint constitutes evidence which is properly before the court.

Nevertheless, we will not consider relators' statements in their memorandum as evidence. These statements do not fit in any of the categories of evidence specified in S.Ct.Prac.R. X(7).

Deemed Certified Bargaining Unit

Guided by the foregoing limited standard of review and considering the appropriate evidence, relators' main argument is that they are entitled to extraordinary relief in mandamus because CBE and CEA/OEA committed unfair labor practices by unlawfully including relators in the deemed certified bargaining unit. Relators rely on Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp., AFL-CIO v. Cincinnati (1994), 69 Ohio St.3d 677, 635 N.E.2d 361, syllabus, which held that under Section 4(A) of Am.Sub.S.B. No. 133, "adjustments or alterations to deemed certified collective bargaining units are not permitted until challenged by another employee organization." A deemed certified collective bargaining unit is the historical unit in which the employee representative bargained with the employer on behalf of public employees in a collective bargaining relationship that predated the April 1, 1984 passage of the Ohio Collective Bargaining Act. State ex rel. Brecksville Edn. Assn. v. State Emp. Relations Bd. (1996), 74 Ohio St.3d 665, 666, 660 N.E.2d 1199, 1200, fn. 1.

Relators contend that they and other tutors employed by CBE were not included in the deemed certified bargaining unit and that they were improperly added to the unit in 1987. According to relators, they "properly brought information to SERB showing that they had a clear legal right to relief, as they had been improperly included in the deemed-certified bargaining unit * * *." As previously noted, before a writ of mandamus will issue, a clear legal right thereto must be proven, and the burden of establishing such right is on relators. State ex rel. Fant v. Sykes (1986), 28 Ohio St.3d 90, 91, 28 OBR 185, 186, 502 N.E.2d 597, 598-599.

Contrary to relators' assertions, they introduced no evidence in the instant case that establishes that they were not included in the deemed certified bargaining unit. Relators' counsel's affidavit...