State ex rel. Prof'ls Guild v. State Emp't Relations Bd., 18AP-334
| Decision Date | 11 June 2020 |
| Docket Number | No. 18AP-334,18AP-334 |
| Citation | 2020 Ohio 3289 |
| Parties | State ex rel. Professionals Guild of Ohio, Relator, v. [Ohio] State Employment Relations Board et al., Respondents. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
On brief: James E. Melle, for relator.
On brief: Dave Yost, Attorney General, Georgia L. Verlaney, and Tracy M. Nave, for respondent State Employment Relations Board.
On brief: Mathias H. Heck, Jr., Prosecuting Attorney, and Todd M. Ahearn, for respondents County Commissioners of Montgomery County, Ohio, Montgomery County Department of Job and Family Services, Children Services Division.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
{¶ 1} Relator, Professionals Guild of Ohio ("Professionals Guild"), brings this mandamus action requesting a writ ordering respondent Ohio State Employment Relations Board ("SERB") to vacate the dismissals of three unfair labor practice ("ULP") charges brought by Professionals Guild on behalf of employees of respondent Montgomery County, Ohio, Department of Job and Family Services, Children Services Division ("Montgomery County").
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate determined that SERB did not abuse its discretion in dismissing Professionals Guild's ULP charges in SERB case Nos. 2016-ULP-12-0280 and 2017-ULP-06-0107, but that SERB abused its discretion in dismissing the ULP charge in SERB case No. 2017-ULP-09-0169. The magistrate therefore recommends this court grant in part Professionals Guild's request for a writ of mandamus and order SERB to reinstate SERB case No. 2017-ULP-09-0169. Professionals Guild, Montgomery County, and SERB have filed objections to the magistrate's decision.
{¶ 3} Professionals Guild first objects to the magistrate's determination as to SERB case No. 2017-ULP-06-0107. It asserts the magistrate erred in finding that Montgomery County's Family Medical Leave Act ("FMLA") policy, requiring concurrent consumption of FMLA leave, was both in effect since 2002 and not an unfair labor practice, and in generally concluding that SERB did not abuse its discretion in dismissing the ULP charge in this case. Second, Professionals Guild contends the magistrate erred in concluding SERB did not abuse its discretion in dismissing the ULP charge in SERB case No. 2016-ULP-12-0280 because the magistrate improperly required proof that a reduction in contractual rights is required to establish a ULP as to Montgomery County's unilateral change to a different FMLA leave accrual calculation method. Professionals Guild's third objection generally alleges the magistrate erred in not reviewing the entire record as to SERB case Nos. 2016-ULP-12-0280 and 2017-ULP-06-0107. Conversely, Montgomery County and SERB object to the magistrate's conclusion that SERB abused its discretion in dismissing Professionals Guild's ULP charge in SERB case No. 2017-ULP-09-0169. Montgomery County and SERB argue SERB properly found no probable cause to support the allegations of a ULP in this case.
{¶ 4} In addressing these objections, we analyze the three SERB cases at issue in sequential order. In December 2016, Professionals Guild filed a ULP charge, assigned SERB case No. 2016-ULP-12-0280, alleging Montgomery County unilaterally changed the method for establishing the 12-month period used to determine FMLA leave accrual without first bargaining this issue with Professionals Guild as required under Ohio law. SERB dismissed this ULP charge based on its determination that there was no probable cause to believe Montgomery County violated R.C. 4117.11. SERB found that Professionals Guild failed to provide sufficient information or documentation to show that a change in the method used to calculate available FMLA leave affected the hours, wages, or terms and conditions of employment for its members. SERB therefore concluded Professionals Guild had no right to bargain this issue. Professionals Guild requested reconsideration, which SERB denied.
{¶ 5} According to Professionals Guild, SERB abused its discretion in not finding probable cause to believe that Montgomery County had violated R.C. 4117.11 by not bargaining the FMLA leave calculation method issue. FMLA entitles an eligible employee with a serious medical condition a total of 12 weeks of unpaid leave during a 12-month period. 29 U.S.C. 2612(a)(1). The method of calculating the accrual of these 12 weeks of leave is at the discretion of the employer. FMLA permits employers to choose one of four methods in computing an employee's available FMLA leave during a 12-month period: (1) the calendar year; (2) any fixed and designated leave year, such as a fiscal year or anniversary year based on an employee's hire date; (3) a 12-month period "measured forward" from an employee's first day of leave taken; or (4) a "rolling" 12-month period "measured backward" from the date an employee uses any FMLA leave. 29 C.F.R. 825.200(b). While an employer may choose any one of the four outlined calculation methods, the method chosen must be applied consistently and uniformly to all employees, and it may be changed only if at least 60 days' notice is given. 29 C.F.R. 825.200(d)(1). Additionally, "the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee." 29 C.F.R. 825.200(d)(1).
{¶ 6} Here, it is undisputed Montgomery County used the "measured forward" method for calculating employee FMLA leave until October 3, 2016. On October 3, 2016, Montgomery County began using the "measured backward" calculation method. In its December 2016 ULP charge, Professionals Guild claimed Montgomery County improperly made this change without bargaining the issue. SERB found that Professionals Guild failed to show it had a right to bargain this issue. In addressing this issue, the magistrate found that Montgomery County complied with federal requirements regarding the change in calculation method, and Professionals Guild has identified no reduction in contractual rights based on this change. The magistrate further found that Professionals Guild also did not identify prior negotiation on this issue or any language in pertinent collective bargaining agreements addressing the terms of FMLA leave. The magistrate therefore concluded that SERB did not abuse its discretion in dismissing Professionals Guild's December 2016 ULP charge. While we disagree with Professionals Guild's assertion that the magistrate did not review the entire record, we agree the magistrate reached the wrong conclusion as to this charge.
{¶ 7} R.C. Chapter 4117 "establishe[s] a comprehensive framework for the resolution of public-sector labor disputes by creating a series of new rights and setting forth specific procedures and remedies for the vindication of those rights." Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9, 59 Ohio St.3d 167, 169 (1991). As pertinent here, it is a ULP for a public employer to "[r]efuse to bargain collectively" with its employees' representative. R.C. 4117.11(A)(5); see R.C. 4117.12(A) ().
{¶ 8} R.C. 4117.08(A) requires a public employer to bargain with the exclusive representative as to "[a]ll matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement, * * * except as otherwise specified in this section." See also R.C. 4117.08(C)(9) (). A determination whether a public employer's unilateral action "affects wages, hours, terms and conditions of employment" within the meaning of R.C. 4117.08 "is generally a factual question * * * properly determined by SERB, which was designated by the General Assembly to facilitate an amicable, comprehensive, effective labor-management relationship between public employees and employers." Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 260 (1988). When a party files a ULP charge with SERB, SERB or its designated agent must investigate the charge and determine if there is "probable cause for believing that a violation has occurred." R.C. 4117.12(B).
{¶ 9} We find SERB unreasonably found Professionals Guild did not meet its burden in establishing probable cause that a ULP occurred when Montgomery County unilaterally changed the method for calculating FMLA leave during a 12-month period without bargaining the issue with Professionals Guild. At issue is whether SERB abused its discretion in finding Professionals Guild failed to show that this change affected the "hours, wages, or terms and conditions of employment" for its members. For the purpose of analyzing the effect of this change, it is inconsequential that the method of calculating FMLA leave had not been negotiated previously or that the change complied with federal law.
{¶ 10} Montgomery County's decision to change the FMLA leave calculation method will substantively impact the timing of leave accrual for employees Professionals Guild represents. The "measured forward" and "measured backward" methods have differing characteristics, and depending on which one is chosen, affect an employee's eligibility to take leave on a particular date. For example, unlike the measured forward method,...
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