State ex rel. Alben v. State Emp. Relations Bd. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Alben et al. v. State Employment Relations Board.
[Cite as State ex rel. Alben v. State Emp. Relations Bd. (1996), Ohio St.3d .]
Mandamus to compel State Employment Relations Board to vacate its
dismissal of relators' unfair labor practice charges and to hold a
hearing on the charges -- Writ denied, when.

(No. 95-1380 -- Submitted May 21, 1996 -- Decided July 24, 1996.)
In Mandamus.

The Columbus Board of Education ("CBE") employs relators, Barbara
Alben et al., a group of forty-five tutors. Relators are certified teachers employed
primarily to educate special-needs or learning-disabled students as part of
programs enacted by the federal government and approved by the Ohio
Department of Education. The most frequent use of tutors, particularly after the
enactment of federal and state handicapped education laws in the mid-1970s, was
in the area of special education and in federally funded programs to assist
disadvantaged pupils in reading, mathematics, and other subjects (the so-called
"Title I" and "Chapter I" programs). Baker & Carey, Baker's 1995-96 Handbook
of Ohio School Law (1995) 361, Section 7.44.1. The Columbus Education
Association ("CEA"), an affiliate of the Ohio Education Association ("OEA"),

purports to represent relators as their exclusive bargaining agent in collective
bargaining with CBE.

On September 2, 1994, relators filed unfair labor practice charges against
CBE and CEA/OEA with respondent, State Employment Relations Board
("SERB"), within ninety days of June 6, 1994, the effective date of the collective
bargaining agreement. The applicable provisions of the collective bargaining
agreement became effective on September 1, 1994. Relators subsequently
amended the charges in October 1994 to add additional charging parties.

Relators charged that CEA/OEA had violated R.C. 4117.11(B)(1) and (6) by
(1) unfairly representing tutors in negotiating terms and conditions of employment
drastically different from those of similarly situated teachers and in violation of
decisions of this court, (2) negotiating a settlement in 1992 which precluded tutors
from eligibility for continuing contracts, and (3) including tutors in the bargaining
unit when they were not part of the deemed certified unit.

Relators also charged that CBE had violated R.C. 4117.11(A)(1) and (8) by
(1) knowingly entering into a contract in which similarly situated persons are
treated disparately, and (2) entering into an illegal contract with CEA/OEA where
the contract attempted to dictate terms of employment to employees who were not

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part of the deemed certified unit. Relators demanded to be paid by CBE in a
manner commensurate with similarly situated teachers or in accordance with the
R.C. 3317.13 minimum salary schedule for teachers.

In decisions issued in March 1995, SERB dismissed relators' unfair labor
practice charges, indicating as to each charge the following:

"Pursuant to Ohio Revised Code Section 4117.12, the Board conducted an
investigation of this charge. The investigation reveals that there is no probable
cause to believe that the Charged Party has violated Ohio Revised Code Section
4117.11. The information gathered during the investigation failed to support the
probability of any unlawful motivation or conduct ***. Also, the events giving
rise to the charge occurred more than ninety (90) days prior to the filing of the
charge. Accordingly, the charge is dismissed."

Relators subsequently filed a complaint for a writ of mandamus to compel
SERB to vacate its dismissals and hold a hearing on the unfair labor practice
charges. Attached to the complaint was an affidavit of relators' counsel. After
SERB filed an answer in which it stated that it did not abuse its discretion in
dismissing relators' unfair labor practice charges, we issued an alternative writ and

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schedule for the presentation of evidence and briefs. The parties did not file any
further evidence.
____________________

Schottenstein, Zox & Dunn, James E. Davidson, Susan Porter and Marie-
Joelle C. Khouzam, for relators.

Betty D. Montgomery, Attorney General, and Andrea F. Rocco, Assistant
Attorney General, for respondent.
____________________

Per Curiam.
Standard of Review, Burden of Proof, and Evidence

Relators assert in their various propositions of law that SERB abused its
discretion in dismissing their unfair labor practice charges against CBE and
CEA/OEA. R.C. 4117.12(B) provides that "[w]hen anyone files a charge with the
board alleging that an unfair labor practice has been committed the board or its
designated agent shall investigate the charge. If the board has probable cause for
believing that a violation has occurred, the board shall issue a complaint and shall
conduct a hearing concerning the charge."

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Probable cause determinations by SERB under R.C. 4117.12(B) are not
reviewable by direct appeal. See 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. However, mandamus is an appropriate remedy
where no statutory right of appeal is available to correct an abuse of discretion by
an administrative body like SERB. State ex rel. Glass, Molders, Pottery, Plastics
& Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp.
Relations Bd. (1993), 66 Ohio St.3d 157, 159, 609 N.E.2d 1266, 1267. A writ of
mandamus will thus issue to correct an abuse of discretion by SERB in dismissing
unfair labor practice charges. See State ex rel. Ohio Assn. of Pub. School
Emp./AFSCME, AFL-CIO v. State Emp. Relations Bd. (1992), 64 Ohio St.3d 149,
151-153, 593 N.E.2d 288, 290-291. An abuse of discretion implies an attitude that
is unreasonable, arbitrary, or unconscionable. State ex rel. Brenders v. Hall
(1995), 71 Ohio St.3d 632, 637, 646 N.E.2d 822, 826. In addition, due deference
must be afforded 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.

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In order to be entitled to the requested writ of mandamus compelling SERB
to vacate its dismissals, issue a complaint, and hold a hearing on the charges,
relators must thus establish that SERB abused its discretion in dismissing the
unfair labor practice charges.

SERB contends that relators failed to satisfy their burden of proof by filing
no evidence in this case. More specifically, SERB asserts that we cannot consider
the affidavit of relators' counsel, which was filed with their complaint. SERB
bases the foregoing assertion on State ex rel. Copeland v. State Med. Bd. (1923),
107 Ohio St. 20, 140 N.E. 660, paragraph two of the syllabus ("Affidavits attached
to a petition and by proper averments made a part thereof may not properly be
considered as evidence, and do not tend to support the petition or sustain the
burden of proof required to be met by plaintiff upon issue joined by an answer.").
However, Copeland did not interpret S.Ct.Prac.R. X, which applies to original
actions, other than habeas corpus, filed in this court. S.Ct.Prac.R. X(7) provides
that "[t]o facilitate the consideration and disposition of original actions, counsel,
when possible, should submit an agreed statement of facts to the Supreme Court.
All other evidence should be submitted by affidavits, stipulations, depositions, and

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exhibits." Therefore, the affidavit of relators' counsel filed with the complaint
constitutes evidence which is properly before the court.

Nevertheless, we will not consider relators' statements in their
memorandum as evidence. These statements do not fit in any of the categories of
evidence specified in S.Ct.Prac.R. X(7).
Deemed Certified Bargaining Unit

Guided by the foregoing limited standard of review and considering the
appropriate evidence, relators' main argument is that they are entitled to
extraordinary relief in mandamus because CBE and CEA/OEA committed unfair
labor practices by unlawfully including relators in the deemed certified bargaining
unit. Relators rely on Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp.,
AFL-CIO v. Cincinnati (1994), 69 Ohio St.3d 677, 635 N.E.2d 361, syllabus,
which held that under Section 4(A) of Am.Sub.S.B. No. 133, "adjustments or
alterations to deemed certified collective bargaining units are not permitted until
challenged by another employee organization." A deemed certified collective
bargaining unit is the historical unit in which the employee representative
bargained with the employer on behalf of public employees in a collective
bargaining relationship that predated the April 1, 1984 passage of the Ohio

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Collective Bargaining Act. State ex rel. Brecksville Edn. Assn. v. State Emp.
Relations Bd. (1996), 74 Ohio St.3d 665, 666, 660 N.E.2d 1199, 1200, fn. 1.

Relators contend that they and other tutors employed by CBE were not
included in the deemed certified bargaining unit and that they were improperly
added to the unit in 1987. According to relators, they "properly brought
information to SERB showing that they had a clear legal right to relief, as they had
been improperly included in the deemed-certified bargaining unit ***." As
previously noted, before a writ of mandamus will issue, a clear legal right thereto
must be proven, and the burden of establishing such right is on relators. State ex
rel. Fant v. Sykes (1986), 28 Ohio St.3d 90, 91, 28 OBR 185, 186, 502 N.E.2d
597, 598-599.

Contrary to relators' assertions, they introduced no evidence in the instant
case that establishes that they were not included in the deemed certified bargaining
unit. Relators' counsel's affidavit states merely that relators "asserted" in their
charges filed with SERB that tutors were not part of the deemed certified unit.
Relators did not adduce either SERB's investigative file or the "information" they
now claim they provided to SERB during its investigation. There is also no
indication that relators ever attempted to obtain a copy of SERB's investigative

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file. See Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio
St.3d 498, 589 N.E.2d 24, paragraph one of the syllabus ("Investigatory files
compiled by the State Employment Relations Board pursuant to R.C. 4117.12
must be disclosed upon request pursuant to R.C. 4117.17 and 149.43 unless an in
camera inspection demonstrates that all or any portions of the files are excepted
from disclosure."). Under these circumstances, relators have not introduced
sufficient evidence to satisfy their burden of proof that SERB abused its discretion
in dismissing for lack of probable cause their unfair labor practice charges as to
relators' unlawful inclusion in the deemed certified unit.

In addition, in their brief, relators rely on a recognition clause purportedly
fixing the composition of the deemed certified bargaining unit on April 1, 1984.
Assuming that relators had properly introduced this agreement as evidence in
SERB's investigation and before us here, the alleged recognition clause provides
that the bargaining unit includes the "certified teaching employees of the
Columbus City School District ***." Since relators are certified teachers, they
would be part of the deemed certified bargaining unit. Therefore, even when
considering relators' argument as evidence, it is apparent that relators are part of
the deemed certified bargaining unit.

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Finally, we recently distinguished Ohio Council 8, in holding that "Section
4(A) of Am.Sub.S.B. No. 133 does not deprive the State Employment Relations
Board of jurisdiction to consider a petition jointly filed by an employer and an
exclusive bargaining representative requesting SERB to amend the composition of
a deemed certified bargaining unit." Brecksville, supra, at syllabus.

Consequently, assuming, arguendo, that relators were not part of the deemed
certified bargaining unit, CBE and CEA could have properly petitioned SERB to
amend the unit to include them.

Accordingly, relators are not entitled to a writ of mandamus to compel
SERB to vacate its dismissals of the unfair labor practice charges relating to
realtors' unlawful inclusion in the deemed certified collective bargaining unit.

Disparate Treatment of Similarly Situated Employees

Relators further contend that SERB erred in dismissing their unfair labor
practice charges against CBE and CEA/OEA for lack of probable cause where
relators gave information to SERB that CEA "had negotiated terms and conditions
of employment that were substantially less than similarly-situated teachers." The
evidence establishes that relators do not receive the same wages and benefits as
non-tutor teachers.
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By definition, individual or small group instruction for handicapped
children such as that provided by relators is "supplementary in nature" and does
not involve the same responsibilities as teachers instructing regular classes. See
Ohio Adm.Code 3301-51-03(C)(1)(a) and (C)(6)(c). While these different
responsibilities do not require different compensation, we have recognized the
general rule that an hourly rate for tutors which is agreed upon in a collective
bargaining agreement may be less than the rate of compensation provided to other
teachers by a salary schedule. State ex rel. Chavis v. Sycamore City School Dist.
Bd. of Edn. (1994), 71 Ohio St.3d 26, 32, 641 N.E.2d 188, 194; State ex rel. Burch
v. Sheffield-Sheffield Lake City School Dist. Bd. of Edn. (1996), 75 Ohio St.3d
216, 219, 661 N.E.2d 1086, 1089; Baker & Carey, supra, at 362, Section 7.44.1.
The mere fact that a negotiated collective bargaining agreement results in a
detriment to one group of employees does not establish an unfair labor practice.
See, generally, Annotation, What Constitutes Unfair labor Practice Under State
Public Employee Relations Acts (1981), 9 A.L.R.4th 20, 107-108, Section 22.

Additionally, relators failed to introduce sufficient evidence to establish
entitlement to compensation commensurate with that received by non-tutor
teachers. Much of the "evidence" relators rely on is taken from their
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memorandum in support filed with their complaint. As previously discussed, this
does not constitute appropriate evidence under S.Ct.Prac.R. X(7).

Therefore, relators have not established that SERB abused its discretion in
dismissing their unfair labor practice charges for lack of probable cause.
Timeliness

Relators claim that SERB abused its discretion in dismissing their unfair
labor practice charges on the alternative basis that "the events giving rise to the
charge[s] occurred more than ninety (90) days prior to the filing of the charge[s]."

R.C. 4117.12(B) does not require SERB to issue findings of fact to support
a dismissal of an unfair labor practice charge prior to issuing a complaint. Cf.
R.C. 4117.12(B)(3), requiring SERB to state findings of fact in a decision
following the issuance of a complaint and evidentiary hearing on unfair labor
practice charges. Nevertheless, when a genuine controversy exists regarding when
an unfair labor practice occurs, SERB "should be required to give some
explanation" if it dismisses a charge based on untimeliness. See Ohio Assn. of
Pub.School Emp./ AFSCME, AFL-CIO, supra, 64 Ohio St.3d at 152, 593 N.E.2d at
291. The court issued a limited writ of mandamus to compel SERB in the
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foregoing case to consider all of the facts and circumstances relevant to the
question of timeliness and to issue an explanation. Id. at 153, 593 N.E.2d at 292.

Ohio Assn. of Pub. School Emp./ AFSCME, AFL-CIO is inapposite for the
following reasons. First, SERB did not err in dismissing relators' unfair labor
practice charges relating to the alleged 1992 tutor settlement because the 1992
agreement became effective more than ninety days prior to the filing of the
charges.

Second, SERB's reliance on a finding of untimeliness to support dismissal
of the charges was in addition to its finding of lack of probable cause. As detailed
previously, relators have not established that SERB abused its discretion in
dismissing relators' unfair labor practice charges based on its finding of a lack of
probable cause to support a violation of R.C. 4117.11. A reviewing court is not
authorized to reverse a correct decision merely because erroneous reasons were
assigned as a basis thereof. State ex rel. Levin v. Schremp (1995), 73 Ohio St.3d
733, 735, 654 N.E.2d 1258, 1261. Assuming that SERB erred in finding all of
relators' charges to be untimely, mandamus will not lie because SERB properly
dismissed the charges on the alternate basis that there was no probable cause for
believing that an unfair labor practice had been committed by CBE or CEA/OEA.
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Conclusion

Relators have not established a clear legal right to the requested
extraordinary relief in mandamus. Although relators allege that SERB's
dismissals are "contrary to the evidence," they have introduced neither SERB's
investigative file nor evidence which they claim to have provided SERB during its
investigation. Relators have not introduced sufficient evidence to prove that
SERB abused its discretion in dismissing relators' unfair labor practice charges
due to a lack of probable cause. Accordingly, the writ is denied.

Writ denied.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.

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