State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, AFL-CIO v. State Emp. Relations Bd.

• Decision Date: 08 July 1992
• Docket Number: AFL-CI,No. 91-750,A,91-750
• Citation: 64 Ohio St.3d 149,593 N.E.2d 288
• Parties: , 1992 SERB 4-45 The STATE, ex rel. OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES/AFSCME,ppellant, v. STATE EMPLOYMENT RELATIONS BOARD, Appellee, et al.
• Court: Ohio Supreme Court

Page 149

64 Ohio St.3d 149

593 N.E.2d 288, 1992 SERB 4-45

The STATE, ex rel. OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES/AFSCME, AFL-CIO, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD, Appellee, et al.

No. 91-750.

Supreme Court of Ohio.

Submitted April 7, 1992.

Decided July 8, 1992.

[1992 SERB 4-45] Relator-appellant, Ohio Association of Public School Employees/AFSCME, AFL-CIO ("OAPSE"), was certified by the respondent-appellee, State Employment Relations Board ("SERB"), on August 8, 1985 as the exclusive bargaining representative for certain employees of the respondent Lorain County Board of Mental Retardation and Developmental Disabilities ("the Lorain County board"). On September 28, 1985, the Lorain County board instituted a time clock and sign-in procedure, which applied to members of OAPSE, without bargaining for the change with OAPSE. Subsequent negotiations on an initial collective bargaining agreement commenced, but the parties were unable to resolve their differences over the unilaterally implemented procedure.

While negotiations were ongoing, appellant filed an unfair labor practice ("ULP") charge with SERB on January 15, 1986, alleging several other employer violations in addition to the institution of the time clock and sign-in procedure. The parties subsequently settled all other issues at the bargaining table, but were unable to reach agreement on the time clock and sign-in issue. At the time that the parties reached an agreement on a labor contract, in March 1986, they agreed in a "side letter" (not signed until October 1986) that appellant would dismiss the other ULP charges "with the exception of those charges regarding time clocks and sign-in sheets and the parties agree to abide by the ruling of SERB or last court appealed to by either party with respect to those charges."

After SERB investigated the ULP charge involving the time clock and sign-in issue, general counsel for SERB recommended, on November 19, 1986, that SERB "find probable cause to believe that an unfair labor practice has been committed and direct the issuance of a complaint." The general counsel believed that the case was "ripe for resolution of the legal issues of refusal to bargain as well as the Employer's assertion that the charge was untimely filed."

On December 4, 1986, SERB overruled the recommendation of its general counsel and declined to issue a complaint. SERB dismissed appellant's ULP charge as untimely, finding that the events giving rise to the charge occurred more than ninety days prior to the filing of the charge with SERB.

Appellant filed a notice of appeal from SERB's decision with the Franklin County Court of Common Pleas on December 16, 1986. On June 26, 1989, the trial court determined that it lacked subject-matter jurisdiction to entertain the appeal. Appellant appealed that decision to the Franklin County Court [1992 SERB 4-46] of Appeals, and also requested a writ of mandamus from the appellate court. The court of appeals affirmed the trial court's determination of no jurisdiction, agreeing that SERB's decision not to issue a complaint was not quasi-judicial in nature (and therefore not appealable). An appeal to this court was dismissed for want of prosecution (case No. 91-449). In a separate decision on February 19, 1991, the court of appeals denied appellant's request for a writ of mandamus, ¹ and declined to hold that SERB abused its discretion in finding the ULP charge untimely. That court refused to order SERB to vacate its dismissal of the ULP charge, and denied appellant's request to order SERB to grant appellant a hearing on the merits of the charge, or on the issue of timeliness.

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

Lucas, Prendergast, Albright, Gibson & Newman and James E. Melle, Columbus, for appellant.

Lee I. Fisher, Atty. Gen., and Joseph M. Oser, Columbus, for appellee.

ALICE ROBIE RESNICK, Justice.

This case presents for our consideration circumstances surrounding a SERB decision to dismiss a ULP charge as untimely filed, without issuing a complaint. It does not involve a question of probable cause. On the precise facts of this case, because SERB did not make a full analysis of the issue of timeliness, we reverse the decision of the court of appeals denying appellant's request for a writ of mandamus, grant a limited writ, and return this cause to SERB for further proceedings.

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 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, 226-227; State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus.

We initially note that generally this court will not review a decision of SERB not to issue a complaint based on a ULP charge. That conclusion is consistent with our recent decision in 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, in which we held in the syllabus that "[a] decision by the State Employment Relations Board whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D)." Because there was no direct right of appeal in the situation before us, ² the third requirement for mandamus is present in this case, in that appellant has no adequate legal remedy available.

We now proceed to consider whether the first two requirements for mandamus are met under the circumstances of this case. Because appellant's right to the relief requested correlates directly to SERB's duty to act, we consider both requirements together.

In finding that the ULP charge was not timely filed, SERB ruled that the ninety-day limit contained in R.C. 4117.12(B) ³ and Ohio Adm.Code 4117-7-01(A) ⁴ was not met under the circumstances of this case. In reaching this result, SERB gave no reasons for its conclusion, but summarily dismissed the ULP charge. ⁵

This court normally accords great deference to a decision SERB has made on a particular issue. "It was clearly the intention of the General Assembly to vest SERB with broad authority to administer and enforce R.C. Chapter 4117. * * * This authority must necessarily include the power to interpret the Act to achieve its purposes." Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260, 533 N.E.2d 264, 267. Although we do not often readily question a decision SERB has made, our willingness[1992 SERB 4-47] to defer to SERB is not unlimited. When, as here, a genuine controversy exists regarding when a ULP "occurs," SERB should be required to give some explanation of its finding of untimeliness. ⁶

Because SERB summarily dismissed this ULP charge, there is no way for us to discern whether SERB considered all the facts and circumstances of this case in reaching its decision on the timeliness of the ULP charge. The parties were engrossed in negotiations at the bargaining table on an initial labor agreement while the ninety-day period for the filing of the ULP charge was running. Thus, there is some question whether an approach allowing for some type of tolling of the ninety-day time period would be appropriate under the circumstances of this case. We do not imply that such a principle should be employed. Rather, we simply observe that the record is insufficient to allow us to determine whether SERB acted arbitrarily.

In addition, the record reveals that prior to the employer's agreement to abide by SERB's (and ultimately the courts') resolution of the merits of the ULP charge, the employer had argued to SERB that all the ULP charges were untimely filed. Appellant argues that the employer should have been estopped from asserting timeliness as a defense. We do not presume to tell SERB how to deal with that argument. However, we do point out that while the ninety-day time period was running, the parties are presumed to have been engaging in good faith negotiations.

Appellant also argues that the employer here was under a continuing duty to negotiate and bargain over the sign-in and time clock procedure with appellant, that each refusal to bargain over the procedure was a separate ULP, and that several refusals occurred within ninety days of the ULP charge being filed, making the original ULP charge timely. See, e.g., NLRB v. Basic Wire Products, Inc. (C.A.6, 1975), 516 F.2d 261, 268. Appellant further asserts that there was no reason for it to file a new ULP charge, specifically over the employer's failure to bargain, because the parties had already agreed to have SERB resolve the first ULP charge, which was to decide the appropriateness of the time clock and sign-in procedure. We neither accept nor reject appellant's reasoning.

There are many factors present in this case--i.e., the ongoing negotiations involving the time clock and sign-in procedure, the employer's statement that it would abide by SERB's decision on the ULP charge filed in this matter, and appellant's contention that the employer committed more than one ULP involving this issue--which have been left unresolved. Not granting the writ in this case would leave too many unanswered questions relating to these matters. We do not now decide whether SERB acted within the bounds of its discretion. That SERB may have acted appropriately in ruling the way that it did is irrelevant to our result; the state of the record in this case forces us to assume too much. The record before us, and in particular the notice of dismissal entered by SERB, is totally inadequate. Thus, we find that the first two requirements for mandamus are met in the precise ...