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

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State, ex rel. Ohio Association of Public School
Employees/AFSCME, AFL-CIO, Appellant, v. State Employment
Relations Board, Appellee, et al.
[Cite as State, ex rel. Ohio Assn. of Pub. School
Emp./AFSCME, AFL-CIO, v. State Emp. Relations Bd. (1992),
Ohio St.3d .]
State Employment Relations Board -- SERB issues decision
to dismiss an unfair labor practice charge against an
employer as untimely filed without issuing a complaint
-- SERB errs by failing to make a complete examination
and determination of the timeliness issue.
(No. 91-750 -- Submitted April 7, 1992 -- Decided July 8,
1992.)
Appeal from the Court of Appeals for Franklin County, No.
89AP-841.
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
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, for appellant.
Lee I. Fisher, Attorney General, and Joseph M. Oser, for
appellee.

Alice Robie Resnick, J. 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 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 circumstances
presented by this case.
We narrowly hold, in the circumstances of this case, that
SERB erred by failing to make a complete examination and
determination of the timeliness issue. Therefore, we return
this cause to SERB and issue a limited writ directing it to
consider all the facts and circumstances of this case relevant
to the question of timeliness, and to issue some explanation
setting forth its reasoning.
Judgment reversed
and limited writ allowed.
Sweeney, Douglas and H. Brown, JJ., concur.
Moyer, C.J., Holmes and Wright, JJ., dissent.
FOOTNOTES:
1 The parties stipulated that SERB's complete file
concerning the ULP charge was to be admitted into evidence in
the mandamus action.
2 In its unsuccessful attempt to directly appeal SERB's
decision underlying this action, appellant contended that there
is a fundamental difference between a situation in which SERB
declines to issue a complaint because it finds no probable
cause, and a situation in which SERB dismisses a complaint for
untimeliness, without deciding whether there is probable
cause. We agree that there is a significant conceptual
difference between the two situations. It would appear,
however, that the General Assembly has chosen not to provide a

right of review in either circumstance. This question is
conceded for purposes of this mandamus appeal.
3 R.C. 4117.12(B) reads, in pertinent part:
"***The board may not issue a notice of hearing based upon
any unfair labor practice occurring more than ninety days prior
to the filing of the charge with the board ***."
4 Ohio Adm. Code 4117-7-01(A) reads, in pertinent part:
"A charge that an unfair labor practice has been or is
being committed may be filed by any person. Such charge shall
be filed with the board within ninety days after the alleged
unfair labor practice was committed.***"
5 The entire text of SERB's order of dismissal in this case
(SERB Case No. 86-ULP-1-0016), issued December 4, 1986, reads:
"The Ohio Association of Public School Employees/American
Federation of State, County and Municipal Employees, AFL-CIO
(Charging Party) has filed an unfair labor practice charge
against the Lorain County Board of Mental Retardation and
Developmental Disabilities (Charged Party). The Charged Party
alleged that the charge was untimely filed. The investigation
revealed that the allegations giving rise to the charge
occurred more than ninety (90) days prior to the filing of the
charge with the Board. Pursuant to Ohio Revised Code Section
4117.12 and Ohio Administrative Code Rule 4117-7-01(A), the
charge is dismissed.
"It is so directed."
6 The meaning of the word "occurring" is not set forth in
the statute. As is true with many of the terms in R.C. Chapter
4117, SERB, in the sound exercise of its discretion, must
define and interpret the term on a case-by-case basis.
Douglas, J., concurring. I concur with what the majority
has decided today. 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, syllabus, a majority
of this court held 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)." I dissented in
Chapter 643, AFSCME, supra, to, among other things, express my
concern that orders of the State Employment Relations Board
("SERB") dismissing unfair labor practice ("ULP") charges on
the basis of no probable cause should be subject to some
judicial review. Id. at 162-166, 572 N.E.2d at 84-87. I
suggested that an action in mandamus may be an appropriate
remedy to challenge such orders. Id. at 166, 572 N.E.2d at
86. In my concurring opinion in Franklin Cty. Sheriff's Dept.
v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 508-512,
589 N.E.2d 24, 31-34, I set forth the reasons why an action in
mandamus is, in fact, the appropriate remedy to challenge an
abuse of discretion by SERB in dismissing a ULP charge for lack
of probable cause. Id. at 511-512, 589 N.E.2d at 34.
Today, a majority of this court issues a limited writ
directing SERB to explain its decision dismissing a ULP charge
as untimely filed so that a determination may be made, at some
later date, whether SERB abused its discretion in dismissing
the charge. I recognize that SERB did not make a no probable
cause determination in dismissing the ULP charge in this
matter. However, I submit that today we have taken our first

step in the direction that I have been advocating for some
time. Specifically, today we recognize that mandamus is a
proper remedy to challenge an abuse of discretion by SERB in
dismissing a ULP charge where this court's decision in Chapter
643, AFSCME, supra, otherwise precludes judicial review of
SERB's final decisions.
In this regard, there is no material distinction between
an order of SERB dismissing a ULP charge as untimely filed, and
an order by SERB dismissing a ULP charge for lack of probable
cause. In either event, the bottom line is that SERB's order
extinguishes the substantial rights of the charging party.
Additionally, as I set forth in my concurrence in Franklin Cty.
Sheriff's Dept., supra, at 511-512, 589 N.E.2d at 34, this
court's holding in Chapter 643, AFSCME, supra, has no bearing
on the question of whether mandamus is an appropriate remedy to
challenge an order of SERB dismissing a ULP charge on the basis
of no probable cause as there is no requirement that there be
an "adjudication" or "quasi-judicial" act before a writ of
mandamus may issue.
As a final matter, the case at bar may be helpful to
demonstrate the point I made in my dissenting opinion in
Chapter 643, AFSCME, supra, and in a number of cases since that
time. The point is that it is imperative for this court to
recognize the right to appeal a finding of SERB of no probable
cause or provide, through an action in mandamus, some remedy
for such orders to be subjected to judicial review. Take the
following example where this need may directly affect the
outcome of this case.
Assume that SERB complies with our order herein and
explains its reasoning (which proves to be erroneous) for
dismissing the ULP charge as untimely filed. Could SERB ensure
that its decision dismissing the ULP charge not be subject to
judicial review by simply including in its decision an
erroneous finding of no probable cause and, thereby, extinguish
all rights of the charging party? The question would seem to
answer itself -- no! Yet that is precisely what SERB could do
unless and until this court recognizes some remedy for an
aggrieved party (be it employer, employee or employee
organization) to seek review of SERB's no probable cause
determinations.
I again reiterate that orders of SERB dismissing ULP
charges on the basis of no probable cause should be and must be
subject to some judicial review. Today's majority takes a step
in the right direction, and I applaud the effort to ensure that
SERB's final orders are subject to some meaningful review.
Sweeney, J., concurs in the foregoing concurring opinion.
Holmes, J., dissenting. I dissent, in that there was no
abuse of discretion in SERB's entering the order that relator's
unfair labor practice charge had alleged acts which occurred
more than ninety days prior to the unfair labor practice charge
being filed. The facts seem to be undisputed here that on
January 15, 1986, OAPSE filed an unfair labor practice charge
with SERB alleging that the employer had engaged in a series of
unfair labor practices, including the time clock and sign-in
procedure, for the employees represented by OAPSE. During the
course of SERB's investigation of the charge, OAPSE submitted
to SERB the affidavit of one Joyce Brackett in which she states

that the employer instituted the time clock and sign-in
procedure on August 1, 1985.
R.C. 4117.12(B) provides in relevant part: "The board may
not issue a notice of hearing based upon any unfair labor
practice occurring more than ninety days prior to the filing of
the charge with the board ***." Given that the only claim
remaining before SERB was the time clock and sign-in procedure,
which act occurred more than ninety days prior to the filing of
OAPSE's January 15, 1986 charge, SERB refused to prosecute and
dismissed OAPSE's charge as untimely.
Mandamus is an extraordinary writ and is allowed only
where "a clear legal right thereto has been shown." State, ex
rel. Coen, v. Indus. Comm. (1933), 126 Ohio St. 550, 553, 186
N.E. 398, 399. Mandamus will lie to compel a state agency to
act or perform statutory duties, but will not issue to control
the exercise of the agency's discretion unless an "abuse of
such discretion affirmatively appears." Id. at 554, 186 N.E.
at 399. An abuse of discretion warranting the issuance of a
writ of mandamus and judicial interference with the exercise of
administrative discretion "impl[y] not merely error of
judgment, but perversity of will, passion, prejudice,
partiality, or moral delinquency." State, ex rel. Shafer, v.
Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 590-591, 50 O.O.
465, 469, 113 N.E.2d 14, 19; see, also, Lorain City School
Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio
St.3d 257, 261, 533 N.E.2d 264, 267.
Accordingly, it is only those "rare instances where an
administrative body's ruling cannot be reconciled with the
facts or reason which must be remedied by the issuance of the
extraordinary writ of mandamus." State, ex rel. Smith, v.
Indus. Comm. (1986), 26 Ohio St.3d 128, 132, 26 OBR 110, 113,
498 N.E.2d 447, 449. Where there is a "'"'rational connection
between the fact found and the choice made'"'" by the
administrative agency, mandamus will not issue. Id. at 132, 26
OBR at 113, 498 N.E.2d at 450.
SERB acted rationally, and clearly did not abuse its
discretion in determining it would not prosecute relator's
charge because SERB considered it untimely. The unfair labor
practice charge alleged a unilateral change regarding the time
clock and sign-in procedure. The affidavit submitted by OAPSE
indicated that OAPSE did not file its charge within ninety days
of the unilateral change. R.C. 4117.12(B).
Moyer, C.J., and Wright, J., concur in the foregoing
dissenting opinion.