State Emp. Relations Bd. v. Miami Univ. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO

**** SUBJECT TO FURTHER EDITING ****

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State Employment Relations Board, et al., Appellants, v. Miami
University, Appellee.
[Cite as State Emp. Relations Bd. v. Miami Univ.
(1994), Ohio St.3d .]
Public employees' collective bargaining -- Ohio public
employer commits unfair labor practice in violation of
R.C. 4117.11(A)(5) when it unilaterally terminates
bargaining with an incumbent union, despite its good faith
doubt as to the union's continued majority status.
An Ohio public employer may not unilaterally withdraw
recognition of and/or refuse to bargain collectively with
an incumbent union, despite any good faith doubt the
employer may have concerning the union's continuing
majority status.
(Nos. 93-2129 and 93-2211 -- Submitted November 30, 1994
-- Decided December 23, 1994.)
Appeal from the Court of Appeals for Butler County, No.
CA93-03-0040.
On January 15, 1986, following a representation election
conducted by appellant State Employment Relations Board
("SERB"), appellant Ohio Council 8, American Federation of
State, County and Municipal Employees, AFL-CIO ("AFSCME") was
certified as the exclusive representative of a bargaining unit
consisting of non-teaching support and maintenance employees of
appellee, Miami University ("Miami"). Thereafter, AFSCME and
Miami entered into a collective bargaining agreement effective
August 22, 1986 through August 21, 1989. On May 2, 1989, an
employee in the bargaining unit filed a petition for
decertification election with SERB seeking to decertify AFSCME
as the exclusive representative. SERB dismissed the petition
for decertification without prejudice and reaffirmed such
dismissal upon reconsideration.1 No attempt has been made to
refile the petition.
Following SERB's dismissal of the petition for
decertification, AFSCME requested the commencement of

negotiations. Miami refused to bargain on the basis that it
"has doubt as to the continued majority status of AFSCME."
Thereafter, Miami unilaterally implemented a number of changes
in the wages and terms and conditions of employment of AFSCME's
bargaining unit employees.
Beginning June 26, 1989, AFSCME filed three unfair labor
practice ("ULP") charges with SERB alleging that Miami had
violated R.C. 4117.11(A)(1) and (A)(5). SERB found probable
cause to believe that Miami had committed a ULP with respect to
each charge, issued complaints with respect to each charge and
consolidated the cases for purposes of hearing. On April 15,
1992, following an evidentiary hearing, a SERB hearing officer
issued a proposed order which concluded in part that Miami's
"unilateral changes in the wages and terms and conditions of
employment *** as well as [its] general refusal to bargain with
AFSCME *** constitutes interference and a refusal to bargain,
in violation of {{4117.11(A)(1) and (A)(5)." On October 2,
1992, SERB adopted the order of its hearing officer.
Miami appealed to the Butler County Court of Common Pleas
pursuant to R.C. 4117.13(D). The court of common pleas
affirmed SERB's decision, holding that an employer may not
unilaterally withdraw recognition of a certified union on the
basis of good faith doubt as to the union's majority status.
In so holding, the court found itself in disagreement with the
decision in New Miami Local School Dist. Bd. of Edn. v. State
Emp. Relations Bd. (1989), 57 Ohio Misc.2d 27, 566 N.E.2d 201,
also emanating from the Butler County Court of Common Pleas.
Instead, the trial court reasoned that since "certification by
SERB, and not the majority status of the union, is the key
which triggers a public employer's duty to bargain with an
employee organization," only SERB can relieve the employer of
its duties under R.C. Chapter 4117.
The court of appeals, in a split decision, reversed the
judgment of the common pleas court and remanded the case "with
instructions to determine if SERB's finding that Miami failed
to establish a good faith doubt is supported by substantial
evidence." The appellate court found that SERB's decision
"represents a break with its own past decisions, and *** is
fundamentally inconsistent with the statutory frame work [sic]
of R.C. [Chapter] 4117."
The cause is now before this court pursuant to the
allowance of motions to certify the record.

Lee Fisher, Attorney General, and Joseph M. Oser,
Assistant Attorney General, for appellant SERB.
Ronald H. Janetzke, Chief General Counsel, and Andrew J.
Love, for appellant Ohio Council 8.
Thompson, Hine & Flory, William C. Moul and Bonnie I.
O'Neil, for appellee.

Alice Robie Resnick, J. Under Serb's present policy, an
Ohio public employer may not unilaterally withdraw recognition
of and/or refuse to bargain collectively with a deemed
certified union, despite any good faith doubt the employer may
have concerning the union's continuing majority support among
the unit's employees. Instead, an employer may only cease
negotiations with a certified union during the pendency of a

decertification or rival union petition after the granting of a
stay by SERB. Thus, an employer is guilty of committing a ULP
in violation of R.C. 4117.11(A)(5) where it refuses to
negotiate with a certified union following the dismissal of a
pending petition. In re Marion Cty. Children's Services Bd.
(October 1, 1992), SERB 92-017, 1992 SERB Official Rptr. 3-54.
This case presents a challenge to that policy.
Miami contends, and the court of appeals held, that SERB's
policy, reflected in Marion Cty. Children's Services Bd., is
fundamentally inconsistent with the statutory framework of R.C.
Chapter 4117 (the Ohio Public Employees Collective Bargaining
Act), federal private-sector labor decisions and SERB's own
past decisions. SERB and AFSCME, on the other hand, concede
that SERB's present policy regarding good faith refusal to
negotiate represents a departure from private sector precedent,
but argue that substantial differences between the Ohio and
federal statutes clearly warrant a different result.
In assessing SERB's policy, this court must afford
deference to SERB's interpretation of R.C. Chapter 4117.
Lorain City School Dist. Bd. of Edn. v. State Emp. Relations
Bd. (1988), 40 Ohio St.3d 257, 533 N.E.2d 264, paragraph two of
the syllabus. The General Assembly has entrusted SERB with the
responsibility of administering the statute, and has bestowed
upon it the special function of applying the statute's
provisions to the complexities of Ohio's industrial life. In
so doing, it has delegated to SERB the authority to make
certain policy decisions. Our review is limited to whether
SERB's policy is unreasonable or in conflict with the explicit
language of R.C. Chapter 4117. Id. at 260, 533 N.E.2d at 266;
State Emp. Relations Bd. v. Adena Local School Dist. Bd. of
Edn. (1993), 66 Ohio St.3d 485, 496-499, 613 N.E.2d 605,
613-615. See, also, Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc. (1984), 467 U.S. 837, 865-866, 104 S.Ct.
2778, 2793, 81 L.Ed.2d 694, 717.
It is also important to note the relationship that federal
decisions bear to Ohio public sector labor law. Since "R.C.
Chapter 4117's treatment of ULP cases is modeled to a large
extent on the federal statutes that empower the NLRB to resolve
ULP charges in cases within its jurisdiction *** the NLRB's
experience *** can be instructive ***." Adena Local School
Dist. Bd. of Edn., supra, 66 Ohio St.3d at 495, 613 N.E.2d at
612-613. It is not, however, conclusive. The prime focus must
remain whether the federal approach "comports with the goals of
the General Assembly when it enacted those statutes,
particularly R.C. 4117.11 (which defines ULPs)." Id., 66 Ohio
St.3d at 494, 613 N.E.2d at 612. In addition, "[t]he only
sources of law whose production binds [SERB] are the General
Assembly of Ohio, Ohio courts, and the federal courts (with
territorial jurisdiction) when deciding federal constitutional
questions. These are the authorities to which SERB's ligaments
of responsibility attach and no others." In re City of Bedford
Hts. (July 24, 1987), SERB 87-016, 1987 SERB Official Rptr.
3-54, at 3-55.
With these principles in mind, we now turn our attention
to a review of the relevant authority. Under the Ohio
Collective Bargaining Act, a public employer is required to
bargain collectively with an employee organization certified as

the exclusive representative of a unit of public employees.
R.C. 4117.04(B). This includes the duty to bargain with regard
to "[a]ll matters pertaining to wages, hours, or terms and
other conditions of employment." R.C. 4117.08(A). A refusal
to bargain collectively constitutes a ULP. R.C. 4117.11(A)(5).
The duty to bargain arises when an employee organization
becomes the exclusive representative of a bargaining unit. In
order for this to occur, the employee organization must either
be certified by SERB pursuant to R.C. 4117.05(A) or be "deemed
certified" pursuant to Section 4(A) of Am.Sub.S.B. No. 133,
effective April 1, 1984. (140 Ohio Laws, Part I, 367.)
The duty to bargain with an exclusive representative
continues so long as the representative maintains its exclusive
status. Once certified, the representative's exclusive status
is maintained until the representative is displaced in
accordance with the procedures set forth in R.C. 4117.07.
Displacement occurs following a four step process: (1) a
decertification or rival union petition is filed; (2) SERB
investigates the petition, and if it finds reasonable cause to
believe that a question of representation exists, holds a
hearing; (3) if, following the hearing, SERB finds that a
question of representation does exist, it must direct an
election; and (4) SERB must certify the results of the
election. R. C. 4117.07(A).
Prior to the enactment of R.C. Chapter 4117, federal
decisions had already embraced the "good faith doubt" doctrine
in the private sector. Under this doctrine, an employer who
withdraws recognition and refuses to bargain with an incombant
union is not guilty of a ULP if the employer had a good faith
or reasonable doubt of the union's continuing majority status.
Landmark Internatl. Trucks, Inc. v. NLRB (C.A.6, 1983), 699
F.2d 815; Orion Corp. v. NLRB (C.A.7, 1975), 515 F.2d 81; NLRB
v. Dayton Motels, Inc. (C.A.6, 1973), 474 F.2d 328.
Concomitantly, the NLRB wrestled with the effect that the
filing of a decertification or rival union petition had on the
employer's duty to continue negotiations. In Midwest Piping &
Supply Co., Inc. (1945), 63 NLRB 1060, the NLRB held that an
employer commits a ULP by recognizing and bargaining with a
union where a real question concerning representation exists.
In William D. Gibson Co. (1954), 110 NLRB 660, the NLRB
permitted an employer to continue bargaining with an incumbent
union despite a representation claim by a rival union. In Shea
Chemical Corp. (1958), 121 NLRB 1027, 1029, the NLRB overruled
Gibson and held that "upon presentation of a rival or
conflicting claim which raises a real question concerning
representation, an employer may not go so far as to bargain
collectively with the incumbent (or any other) union unless and
until the question concerning representation has been settled
by the Board." This rule was later applied to real questions
of representation raised by the filing of a valid
decertification petition in Telautograph Corp. (1972), 199 NLRB
892.
In 1982, the NLRB reversed both Shea Chemical and
Telautograph and held that the mere filing of a rival or
decertification petition will no longer require, or permit, an
employer to withdraw from bargaining with an incumbent union.
RCA Del Caribe, Inc. (1982), 262 NLRB 963; Dresser Indus., Inc.

(1982), 264 NLRB 1088. The NLRB explained that:
"As the Midwest Piping doctrine has been applied over the
years in cases involving rivalries between incumbent and
outside labor organizations, it has become increasingly evident
that the Board's efforts to promote employee free choice have
been at a price to the stability of collective-bargaining
relationships. In particular the Shea Chemical adaptation of
Midwest Piping has failed to accord incumbency the advantages
which in nonrival situations the Board has encouraged in the
interest of industrial stability. The recognition of the
special status of an incumbent union indicates a judgment that,
having once achieved the mantle of exclusive bargaining
representative, a union ought not to be deterred from its
representative functions even though its majority status is
under challenge." RCA Del Caribe, Inc., supra, 262 NLRB at
965. This, of course, did not preclude an employer from
withdrawing recognition in good faith based on other objective
considerations. Id. at 965, fn. 13.
Against this backdrop, SERB first addressed the issue of
whether a public employer in Ohio may decline in good faith to
bargain with an incumbent union in In re Cleveland City School
Dist. Bd. of Edn. (February 1, 1985), SERB 85-003, 1984-86 SERB
Official Rptr. 28. In considering the issue, SERB noted
initially that "[t]he undulating course of NLRB doctrine
suggests the possibility of alternative persuasions or, at
least, a choice." Id. at 28, fn. 1. SERB went on to establish
the policy that an employer may justifiably refuse to bargain
with an incumbent union where a decertification or rival union
petition is filed and a stay is granted by SERB. Id. at
syllabus; In re North Canton City Schools (August 2, 1985),
SERB 85-037, 1984-86 SERB Official Rptr. 146; In re West
Carrollton City School Dist. (June 26, 1986), SERB 86-026,
1984-86 SERB Official Rptr. 294.
Later, SERB clarified its policy in Marion Cty. Children's
Services Bd., supra, SERB 92-017. In that case, as in this
case, the employer refused to bargain with AFSCME based on its
assertion of good faith doubt following the dismissal of a
decertification petition. SERB found that the employer
committed a ULP by refusing to resume negotiations with AFSCME
after the decertification petition which had been pending was
dismissed. SERB did "not agree *** that good faith doubt may
be established apart from a pending petition." Id. at 3-57.
Instead, after acknowledging its departure from NLRB precedent,
SERB offered the following explanation:
"Chapter 4117 neither provides for voluntary recognition
of bargaining representatives outside the certification process
nor contemplates voluntary withdrawal of recognition. Even
when an employer is willing to voluntarily recognize a
bargaining agent, this agent must be certified by SERB.
(O.R.C. {4117.05(A)(2)). Clearly, under Ohio law,
certification is the benchmark which triggers a bargaining
obligation.
"Only SERB has the power to certify an employee
organization as the exclusive bargaining agent, and only SERB
can take away such a certification. The duty to bargain in
Ohio Revised Code {4117.08(A) exists as long as a certified or
deemed certified exclusive bargaining agent exists and may

temporarily be stayed only by SERB action.
"Accordingly, we do not believe the Ohio statute
contemplates allowing an employer to decide unilaterally to
terminate a bargaining relationship conferred by certification.
"There is no statutory basis for such unilateral action,
and moreover, such action flies in the face of any good labor
policy.
"Further, a review of private sector law in the area of
good faith doubt convinces us that allowing employers to
suspend bargaining obligations on this basis undermines labor
stability and proliferates litigation to an extent not
warranted by any benefits it affords. *** Allowing employers to
suspend bargaining obligations based on good faith doubt
creates a conflict between the termination of the collective
bargaining process by the employer on one hand, and the
statutory duty to bargain with the certified bargaining
representative on the other hand. Such a conflict has a
resolution in the private sector where the employer may
petition the NLRB for a Board-conducted election under Section
9(c)(1)(B) of the NLRA (an RM election). However, this is not
the case in the public sector. Chapter 4117 does not
contemplate an employer-initiated election where no petition is
pending before the Board. Thus, in the public sector, allowing
an employer to act on its 'good faith doubt' without Board
action leads to an irresolvable conflict, which does not
encourage good and sensible public policy. ***" Id. at 3-57 to
3-58.
In reviewing SERB's policy, we note that the absence of
any provision relative to the "good faith doubt" doctrine in
R.C. Chapter 4117,2 in spite of the substantial body of pre-Act
private sector law on the subject, evinces a legislative
delegation of policy-making authority to SERB in this area. We
cannot say that SERB's policy choice, as reflected in Marion
Cty. Children's Services Bd., is unreasonable. Instead, its
choice strikes a balance between employee rights and the status
of a certified union under the Ohio Act.
Moreover, R.C. Chapter 4117 clearly establishes SERB as
the conduit through which Ohio public sector bargaining
relationships must pass. Unlike the federal statutes, "[t]he
wording of the Ohio Act suggests that, except where the union
has enjoyed 'historical' (pre-Act) recognition, a union
achieves full status as an exclusive representative only when
it has been formally certified by SERB." Drucker, Collecting
Bargaining Law in Ohio (1993) 243, Section 6.02(B)(2).
Concomitantly, that status can only be displaced by SERB. R.C.
4117.07. It is not inconsistent with this scheme for SERB to
preclude the cessation of bargaining without SERB's involvement.
Accordingly, a public employer in Ohio commits a ULP in
violation of R.C. 4117.11(A)(5) when it unilaterally terminates
bargaining with an incumbent union, despite its good faith
doubt as to the union's continued majority status.
In light of the foregoing, the judgment of the court of
appeals is reversed, and the judgment of the trial court is
reinstated.
Judgment reversed.
Moyer, C.J., Douglas, F.E. Sweeney and Pfeifer, JJ.,
concur.

A.W. Sweeney and Wright, JJ., concur in judgment only.

FOOTNOTES:
1 Miami appealed SERB's dismissal of the petition for
decertification. That appeal, however, was ultimately
dismissed on the basis that "Miami lacks standing2under R.C.
119.12 to appeal from a decision of SERB dismissing a
decertification petition filed by a public employee pursuant to
R.C. 4117.07(A)(1)." Miami Univ. v. State Emp. Relations Bd.
(1990), 70 Ohio App.3d 514, 520, 591 N.E.2d 415, 419.
2 Contrast this with, e.g., 43 P.S. Section 1101.607(ii),
where the Pennsylvania statute specifically provides that "a
public employer alleging a good faith doubt of the majority
status of said representative may file a [decertification]
petition. ***"
Wright, J., concurring in judgment only. I concur in
the outcome of this case only because of the differences
between the wording of the Ohio Public Employee's Collective
Bargaining Act and the wording of the National Labor Relations
Act. Further, I believe the syllabus in this case is too
far-reaching given the issue before us.