State ex rel. Glass, Molders, Pottery, Plastics & Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC 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. Glass, Molders, Pottery, Plastics & Allied
Workers International Union, Local 333, AFL-CIO, CLC, Appellee,
v. State Employment Relations Board, Appellant.
[Cite as State ex rel. Glass, Molders, Pottery, Plastics &
Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v.
State Emp. Relations Bd. (1993), Ohio St.3d .]
State Employment Relations Board -- SERB's conclusion that a
proposed bargaining unit was inappropriate is an abuse of
discretion, when -- Conclusion not supported by any
evidence and is arbitrary and capricious.
(No. 92-211 -- Submitted February 3, 1993 -- Decided April
21, 1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-628.
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, for appellee.
Lee I. Fisher, Attorney General, Joseph M. Oser and
Vincent T. Lombardo, Assistant Attorneys General, for appellant.

Francis E. Sweeney, Sr., J. 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, 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 court of appeals'
judgment granting the writ ordering SERB to certify GMPP as the
exclusive representative for the bargaining unit consisting of
all the clerical employees of the Columbiana County Auditor's
Office.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
Pfeifer, JJ., concur.

FOOTNOTE:
1. The parties' stipulations provide in pertinent part:
"(3) The Employee Organization submitted fourteen (14)
valid authorization cards with the request for recognition.
"(4) In response to a letter from SERB dated 12/28/90, on
January 7, 1991 the Employer submitted a list of employees
whicH contained fourteen (14) names.
"(5) SERB's Administrator of Representation compared the
authorization cards to the list of employees provided by the
employer and certified to SERB that 100% of the employees in
the proposed unit had signed authorization cards."

Douglas, J., concurring. I concur with Justice Francis
Sweeney's well-reasoned opinion for the majority. I write
separately for the sole purpose of emphasizing that all of the
State Employment Relation Board's ("SERB's") final orders
should be subject to some meaningful judicial review. Today's
majority apparently adopts this position in observing that
mandamus is a proper remedy to correct an abuse of discretion
by SERB when SERB's final orders are not otherwise directly
appealable to the courts.
In a series of cases beginning with 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, I
have advocated that SERB, a three-person administrative board,
should not be granted the absolute and ultimate power to make
final determinations which are in no way reviewable by the
courts -- particularly where, as here, the ruling affects a
substantial right, determines the action, and prevents a
judgment. Id. at 162-166, 572 N.E.2d at 84-87 (Douglas, J.,
dissenting). See, also, State Emp. Relations Bd. v. Warren
Cty. Sheriff (1992), 63 Ohio St.3d 69, 76-77, 584 N.E.2d 1211,
1217. (Douglas, J., concurring); 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 (Douglas, J., concurring); and State, ex
rel. Ohio Assn. of Pub. School Emp./AFSCME, AFL-CIO v. State
Emp. Relations Bd. (1992), 64 Ohio St.3d 149, 154-155, 593
N.E.2d 288, 292-293 (Douglas, J., concurring). The case at bar
illustrates the point I made in my dissenting opinion in Ohio
Assn. of Pub. School Emp., Chapter 643, AFSCME, supra (and in
my above-cited concurring opinions), that granting SERB the
absolute and ultimate power to finally determine the rights of
the parties without some judicial review presents a potential
for abuse of that power which is too great to ignore. Thus, as
the majority so ably notes, where there is no statutory right
to appeal a final determination of SERB, SERB's final orders
must be subject to challenge by way of an action in mandamus.
In Ohio Assn. of Pub. School Emp., Chapter 643, AFSCME,
supra, 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)." Today's majority states that "[m]andamus is an
appropriate remedy where no statutory right of appeal is
provided to correct an abuse of discretion in administrative
proceedings. * * * Because there was no direct right of
appeal from SERB's determination in the present case, mandamus
was the appropriate remedy."
I dissented in Ohio Assn. of Pub. School Emp. Chapter 643,
AFSCME and suggested that mandamus may be the appropriate
remedy to challenge an order by SERB dismissing an unfair labor
practice ("ULP") charge for lack of probable cause. Id. at
166, 572 N.E.2d at 86. In my concurring opinion in Franklin
Cty. Sheriff's Dept., supra, I set forth the reasons why
mandamus would be the proper remedy to challenge orders of SERB
dismissing ULP charges on the basis of no probable cause. It
is apparent from a reading of today's majority opinion that an
action in mandamus is the proper remedy to challenge SERB's
orders dismissing ULP charges and all other final orders of
SERB from which no statutory right of appeal exists. I join
the majority in its effort to ensure that SERB's final orders
are subject to meaningful judicial review. Mandamus is the
proper remedy to correct abuses of discretion by SERB.
Resnick, J., concurs in the foregoing concurring opinion.