State ex rel. Glass, Molders, Pottery, Plastics & Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp. Relations Bd.

• Decision Date: 21 April 1993
• Docket Number: No. 92-211,AFL-CI,CL,A,92-211
• Citation: 609 N.E.2d 1266,66 Ohio St.3d 157
• Court: Ohio Supreme Court
• Parties: , 1993 SERB 4-25 The STATE ex rel. GLASS, MOLDERS, POTTERY, PLASTICS & ALLIED WORKERS INTERNATIONAL UNION, LOCAL 333,ppellee, v. STATE EMPLOYMENT RELATIONS BOARD, Appellant.

Page 157

66 Ohio St.3d 157

609 N.E.2d 1266, 1993 SERB 4-25

The STATE ex rel. GLASS, MOLDERS, POTTERY, PLASTICS & ALLIED WORKERS INTERNATIONAL UNION, LOCAL 333, AFL-CIO, CLC, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD, Appellant.

No. 92-211.

Supreme Court of Ohio.

Submitted Feb. 3, 1993.

Decided April 21, 1993.

[1993 SERB 4-25] On December 21, 1990, relator-appellee, Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local 333, AFL-CIO, CLC ("GMPP") filed a "request for recognition" with respondent-appellant, State Employment Relations Board ("SERB"), in which GMPP sought to be recognized as the exclusive representative of a proposed bargaining unit of employees of the Columbiana County Auditor ("Auditor"). On the request for recognition form provided by SERB, GMPP described the proposed unit as "All Clerical Employees," consisting of fourteen persons.

On December 28, 1990, SERB sent the Auditor a letter asking him to provide SERB with a list of the names of the employees in the proposed bargaining unit. On January 7, 1991, the Auditor filed with SERB a list of employees which stated that the proposed bargaining unit would consist of "All Clerical Staff." The list contained fourteen names.

The parties have stipulated that on February 1, 1991, a SERB administrator presented the case to SERB for its consideration and recommended to SERB that it certify GMPP as the exclusive representative. The administrator, in the memorandum to SERB, advised SERB that the substantial evidence was sufficient, that no objections had been filed by the employer, and that the employer had complied with the posting requirements.

On May 21, 1991, SERB issued its opinion and order, stating that the request for recognition had been dismissed because GMPP's unit description "lacks the necessary specificity." SERB found the bargaining unit inappropriate because GMPP had not included a description of specific job titles.

GMPP filed a mandamus action in the Franklin County Court of Appeals. The court of appeals granted the writ of mandamus, holding that SERB's conclusion that the proposed bargaining unit was inappropriate was not supported by any evidence and was arbitrary and capricious and, hence, an abuse of discretion.

The cause is now before this court upon an appeal as of right.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, for appellee.

Lee I. Fisher, Atty. Gen., Joseph M. Oser and Vincent T. Lombardo, Asst. Attys. Gen., for appellant.

FRANCIS E. SWEENEY, Sr., Justice.

SERB argues that there is substantial evidence in the record to support its decision that the bargaining unit was inappropriate pursuant to R.C. 4117.05(A)(2)(b)(iv). Specifically, SERB contends the bargaining unit was inappropriate on the ground that the description of the unit lacked specific job titles. We reject this contention and affirm the decision of the court of appeals granting appellee's request for a writ of mandamus.

In order for a writ of mandamus to issue, a relator must demonstrate (1) that he or she has a clear legal right to the relief prayed for, (2) that respondents are under a corresponding clear, legal duty to perform the requested acts, and (3) that the relator has no plain and adequate legal remedy. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 50-51, 451 N.E.2d 225, 227.

Mandamus is an appropriate remedy where no statutory right of appeal is provided to correct an abuse of discretion in administrative proceedings. State ex rel. Breno v. Indus. Comm. (1973), 34 Ohio St.2d 227, 63 O.O.2d 378, 298 N.E.2d 150. Because there was no direct right of appeal from SERB's determination in the present case, mandamus was the appropriate remedy. See R.C. 4117.06(A).

R.C. 4117.06 vests SERB with the authority to determine an appropriate unit for bargaining. However, in cases of an employee organization's request for recognition as a unit's exclusive representative, [1993 SERB 4-26] R.C. 4117.05(A)(2)(b)(iv) specifies that SERB shall certify the organization filing the request unless SERB receives substantial evidence that the proposed unit is not an appropriate proposed unit pursuant to R.C. 4117.06. Thus, R.C. 4117.05 puts the burden of proof on the one who objects to the proposed unit to put forth substantial evidence that the unit is not an appropriate unit.

In the present case, the employer filed no objections to the proposed bargaining unit. While SERB has the discretion to sua sponte dismiss the request for recognition on the ground that the description of the bargaining unit lacks specificity, SERB may not abuse its discretion by acting arbitrarily, unreasonably, or unconscionably. See R.C. 4117.05(A)(2); State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936.

SERB asserts that substantial evidence of inappropriateness was demonstrated by GMPP's description of the bargaining unit merely as "All Clerical Employees," fourteen in number, and GMPP's failure to state specific job titles. However, the form provided by SERB for filing a recognition request required the applicant only to "use job titles where applicable." Thus, the designation of specific job titles was mandatory only "where applicable." Furthermore, even if job titles were always mandatory, GMPP showed substantial compliance by naming "All Clerical Employees," as the stipulations strongly suggest that all employees of the proposed bargaining unit were clerical workers. ¹ Moreover, if SERB's certification of GMPP hinged on the specificity of job titles, SERB should have required such information on its form or requested it in subsequent correspondence with GMPP instead of outright dismissing the request for recognition. Finally, since there is no evidence that any employees objected to the bargaining unit, or any fact relevant to appropriateness under R.C. 4117.06, SERB had no basis for concluding pursuant to R.C. 4117.05(A)(2)(b) that the unit described in the request for recognition was not appropriate.

For the foregoing reasons, we find that SERB's conclusion that the proposed bargaining unit was inappropriate was not supported by substantial evidence and was a clear abuse of discretion. Accordingly, we affirm the...