State ex rel. Howard v. State Emp. Relations Bd.

[Cite as State ex rel. Howard v. State Emp. Relations Bd., 2016-Ohio-4765.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Roger Howard, :

Relator, :

v. : No. 15AP-220

[State Employee Relations Board] et al., : (REGULAR CALENDAR)

Respondents. :

D E C I S I O N

Rendered on June 30, 2016

On brief: Daniel H. Klos, for relator.

On brief: Michael DeWine, Attorney General, Lisa M.
Critser and Jonathan R. Khouri, for respondent State
Employment Relations Board.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
{¶ 1} Relator, Roger Howard, commenced this action in mandamus seeking an
order compelling respondent, State Employment Relations Board ("SERB"), to find that
the Franklin County Sheriff's Office ("FCSO") violated R.C. 4117.11(A)(8) when it
interpreted the collective bargaining agreement ("CBA") to prohibit relator from applying
for a particular position. Relator also sought an order compelling SERB to find that
relator's collective bargaining unit, Fraternal Order of Police, C-Lodge No. 9 ("FOP"),
violated R.C. 4117.11(B)(6) for not advancing relator's grievance to arbitration.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
No. 15AP-220 2

of fact and conclusions of law, which is appended hereto. The magistrate found that
SERB did not abuse its discretion when it dismissed the unfair labor practice ("ULP")
charges for lack of probable cause because the FCSO and FOP ultimately agreed that
section 9.5 of the CBA barred relator from applying for the sergeant position at issue.
Therefore, the magistrate has recommended that we deny relator's request for a writ of
mandamus.
{¶ 3} Relator has filed objections to both the magistrate's findings of fact and
conclusions of law.
Objections to the Magistrate's Findings of Fact
{¶ 4} Relator has objected to 14 of the magistrate's findings of fact. These factual
objections consist of approximately 18 pages of arguments that focus solely on the
relevance of the factual findings and/or the interpretation and application of these
findings to the issue of law presented. It is impossible to discern from relator's arguments
what part of the factual findings, if any, are inaccurate or why they are not supported by
the record. We conclude from our review of the record that the findings of fact challenged
by relator are supported by the record. For these reasons, we overrule all of relator's
objections to the magistrate's findings of fact.
Objections to the Magistrate's Conclusions of Law
{¶ 5} The essence of relator's objections to the magistrate's conclusions of law
appear to be that the magistrate allegedly erred in finding no abuse of discretion by SERB
because, according to relator, SERB should have found probable cause for an ULP based
on the plain language of the CBA. We disagree.
{¶ 6} Relator concedes that the issuance of a finding of probable cause by SERB is
discretionary. Contrary to relator's assertion, the CBA does not expressly address the
factual scenario presented by relator's grievance. Therefore, the CBA had to be
interpreted to resolve the issues raised by relator's grievance. Given that the record
reflects evidence that the FOP and the FCSO concluded that relator's grievance was
unsupportable based upon their independent interpretations of the CBA, we agree with
the magistrate that SERB did not abuse its discretion in finding the absence of probable
cause for an ULP. Therefore, we agree with the magistrate that relator has not
No. 15AP-220 3

demonstrated that SERB abused its discretion and we overrule relator's objections to the
magistrate's conclusions of law.
{¶ 7} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
Objections overruled; writ of mandamus denied.

TYACK and BROWN, JJ., concur.
No. 15AP-220 4

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Roger Howard, :

Relator, :

v. : No. 15AP-220

[State Employee Relations Board], et al., : (REGULAR CALENDAR)

Respondents. :

MAGISTRATE'S DECISION

Rendered on January 29, 2016

Daniel H. Klos, for relator.

Michael DeWine, Attorney General, Lisa M. Critser and
Jonathan R. Khouri, for respondent State Employment
Relations Board.

Ron O'B rien, Prosecuting Attorney, and Scott J. Gaugler, for
respondent Franklin County Sheriff Zach Scott.

IN MANDAMUS

{¶ 8} Relator, Roger Howard, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, State Employment Relations Board
("SERB") to find that the Franklin County Sheriff's Office ("FCSO") violated R.C.
4117.11(A)(8) when interpreting the collective bargaining agreement ("CBA") in a manner
which prohibited relator from applying for a job, and finding that his collective bargaining
unit, Fraternal Order of Police, C-Lodge No. 9 ("FOP"), violated R.C. 4117.11(B)(6) when
FOP did not advance relator's grievance to arbitration.
No. 15AP-220 5

Findings of Fact:
{¶ 9} 1. Relator is employed by the FCSO and the FOP is the board-certified
representative for full-time, sworn, uniform deputies employed by FCSO.
{¶ 10} 2. FOP and FCSO are parties to a CBA effective January 1, 2013 through
December 31, 2015, which includes a binding grievance-arbitration process.
{¶ 11} 3. In February 2014, relator was working as a sergeant assigned to the
corrections division.
{¶ 12} 4. On February 11, 2014, relator bid upon a position as a corporal in the
Patrol Division. In order to take this job, relator was willing to be demoted to the rank of
corporal because he desired a position in the Patrol Division.
{¶ 13} 5. Section 9.5(E) of the CBA provides:
Any member who is not in the same rank as identified in the
notice of the posted vacancy shall not be selected to fill the
vacancy, except that a member in a higher rank than the
posted vacancy shall be eligible to be selected for the posted
vacancy if he agrees to a demotion to the rank of the posted
vacancy, if selected.

{¶ 14} 6. In a letter dated February 11, 2014 from Chief Michael Flynn of the
FCSO, relator was notified that he had been selected to fill the corporal vacancy for which
he applied. That letter provides:
You have been selected for the 2 Corporals-Patrol-1st shift
via the job posting. However, your transfer is being delayed.
Your transfer will be no later than April 6, 2014.

Your voluntary demotion to Corporal will occur when your
transfer takes effect. Until that time you will remain in the
rank of Sergeant.

{¶ 15} 7. On February 20, 2014, the FCSO and the FOP entered into a
Memorandum of Understanding ("MOU") because FCSO had sergeant positions that
remained vacant and needed to be filled. The MOU provides, in pertinent part:
[One] Members who have between one year and two years
seniority in the rank of Corporal shall be permitted to
participate in the promotional examination for Sergeant,
which is being conducted in March 2014. This group of
members shall be placed on a separate eligibility list that
may be utilized only upon exhaustion of the list of members
No. 15AP-220 6

with two or more years seniority in the rank of Corporal that
is established in accordance with Article 10. Members shall
be selected for promotion from this second eligibility list in
accordance with the terms of Article 10.

[Two] In the event that the promotional lists established
under paragraph 1 are both exhausted, and the Sheriff wishes
to provisionally promote additional Sergeants in accordance
with Section 10.3(C), the Sheriff may do so prior to
January 1, 2015 by selecting from all Corporals who have
more than one year seniority in the rank of Corporal.

[Three] No other provisions of Article 10 are affected by this
memorandum of Understanding.

[Four] This Memorandum of Understanding shall not serve
as precedent with respect to future promotions or the filling
of any future vacancies not expressly addressed herein.

{¶ 16} 8. In a letter dated March 10, 2014, Chief Michael Flynn informed relator
that his transfer to corporal in the patrol division would be effective Monday, March 24,
2014.
{¶ 17} 9. On March 12, 2014, while awaiting his transfer, relator applied for a
sergeant position in the patrol division. Relator did not get the sergeant position.
{¶ 18} 10. In a letter dated March 17, 2014, relator was informed by Chief Flynn
that his transfer to corporal in the patrol division was effective March 21, 2014.
{¶ 19} 11. On March 18, 2014, relator filed a grievance which was assigned
grievance number 14-09. Relator explained his grievance as follows:
On March 12th, 2014 The Grievant became aware that he
had been passed over for a job posting to 2nd Shift Patrol
Sgt. The Grievant believes this to be in violation of the
collective bargaining agreement between The Franklin
County Sheriffs Office and The Fraternal Order of Police,
Capital City Lodge #9.

{¶ 20} 12. Chief Deputy Geoff Stobart held a Step 2 grievance meeting on
March 19, 2014. Chief Stobart concluded that relator's grievance should be denied based
on the following findings:
Sgt. Roger Howard believed he was entitled to the position
and claims Sgt. Downing was not entitled to the position.
No. 15AP-220 7

Sgt. Howard had accepted a reduction in rank to post to a
vacant Corporal's Position. Howard was awarded this
position and was being held in his previous position pending
the promotions of the next round of Sergeants.

A MOU was drafted and signed by both the FOP and
Management. This MOU allowed the Office to promote
Corporals who had more than one year of seniority. This is
exactly what the Office did.

The Office worked with the FOP and agreed to offer
promotions working off the established list of all those who
had signed up to take the promotional exam. Those eligible
were placed on a list in order of seniority, and offered
promotions.

Every single person on the list was offered a Sergeant's
position. Downing was the last eligible person on [the] list
established in accordance with the MOU. He was offered and
accepted.

It should be further noted that even after promoting or
offering every person on this list promotions, the Office is
still short Sergeants.

The Office clearly worked with the FOP to establish this
MOU. The FOP was involved in all discussions about how we
intended to manage this process up to and including showing
them the list we intended work from.

The office strongly feels the process used was consistent with
the spirit of the MOU, we clearly worked with the FOP
during the course of this process, and the solution agreed on
was the right and fair thing to do for both the FOP and the
Office.

Sgt. Downing was promoted consistent with the clearly
established agreement, and is therefore entitled to the
vacancy is [sic] question.

{¶ 21} 13. A Step 3 grievance meeting with Chief Deputy Jim Gilbert occurred on
March 26, 2014. Chief Deputy Gilbert also recommended that the grievance be denied,
stating:
There are currently openings in the rank of Sergeant within
the Sheriff's Office.
No. 15AP-220 8

I reviewed the information provided by the FOP as well as
asked the grievant questions regarding this matter. The
grievant was asked "So you took the Sergeant's test two
weeks ago and what is your intention from here regarding a
promotion to that rank?" The grievant stated he "probably"
wouldn't take a promotion to Sergeant if offered by the
Sheriff's Office. He further stated that he thought taking the
self-demotion was best for his career because the Patrol
Bureau is where he has always wanted to work.

In reviewing the MOU, reviewing previous documents
regarding promotional matters and hearing from the
grievant[,] I believe that the process was consistent with the
MOU. The FOP along with management worked together
during this process. The grievant appears to be upset with
the "stars not aligning" as he would have liked. He knew in
taking a self-demotion that at some point other Sergeant
positions within the Office would be coming open however,
he chose to take a Corporal assignment under no pressure
from the FOP or the Sheriff's Office. In fact to further point
out his "intentions" for future promotional opportunities he
stated he "probably" wouldn't take a promotion to the rank
of Sergeant that is going to be offered to him within the next
several weeks.

{¶ 22} 14. In a letter dated March 28, 2014 and addressed to relator, Sheriff Zach
Scott informed him that he agreed with Deputy Chief Gilbert's Step 3 response and, as
such, relator's grievance was denied.
{¶ 23} 15. In a letter dated April 10, 2014, Jason Pappas, as president of the FOP,
notified Sheriff Scott of FOP's intent to proceed to arbitration on relator's grievance,
stating:
Pursuant to our current collective bargaining agreement the
lodge is notifying you of our intent to proceed to arbitration
on the attached grievance #14-9.

I will initiate the notification to the Federal Mediation and
Conciliation Service of our need for a panel of arbitrators.

{¶ 24} 16. By way of e-mails contained in the stipulation of evidence, it is apparent
that both FOP and FCSO thoroughly reviewed relator's grievance. For example, in
No. 15AP-220 9

response to an e-mail from relator's counsel dated April 16, 2014, an attorney for the FOP
responded:
Thank you for the letter. I have discussed this case with my
client again this morning; and, utilizing the information
contained in your letter, the Lodge will continue to conduct
its review of this grievance. This review already has been
extensive and has included a review of job bids by self-
demoted members over a period of approximately 20 years.
As of this date, the Lodge has not found any other situation
in which a self-demoted member was permitted to bid upon
and receive an assignment in his previous (higher) rank
while "on hold." If Roger has any contrary examples of that
circumstance, please share them with me as soon as possible.

As of this point in time, the Lodge believes that, for purposes
of job bids under Article 9, a member who has accepted a bid
assignment in a lower rank is no longer eligible to bid upon
an assignment in their previous (higher) rank - regardless of
whether they were placed on a temporary "hold" in the
higher rank. This position is based upon the Lodge's
understanding of the parties' intent with respect to Section
9.5E. of the collective bargaining agreement. However, the
Lodge will consider the information provided in your letter,
it will accept any additional information that you or your
client wish to offer, and it will conduct additional research
regarding prior cases.

I understand that Roger has had extensive discussions
regarding his grievance with Lodge representatives, and your
letter provides additional significant detail regarding Roger's
position with respect to that grievance. Since he has retained
you as his counsel, we will not be conducting a conference
call with Roger today. However, I will convey to you the
Lodge's final position on Roger's grievance -- i.e., whether it
will arbitrate that grievance -- on or before April 30, 2014.
Also, as noted above, please feel free to share any additional
information that you or Roger wish the Lodge to consider;
and, if you believe that a conversation between you and me
would be helpful, fee free to suggest a time, and we can
schedule a telephone call.

(Emphasis sic.)

{¶ 25} 17. A second e-mail from relator's counsel that same day provides:
No. 15AP-220 10

This is to follow up on our conversation regarding the
parties' interpretation of Section 9.5E. of the FOP collective
bargaining agreement. In particular, I understand that the
FCSO and the FOP have the same interpretation of Section
9.5E. In particular, that section of the contract permits a
member to "self-demote" to a lower rank by bidding on a
posted vacancy in a lower rank and being selected for that
assignment. Once the member has been selected for the
assignment in the lower rank (i.e., is notified of and does not
reject the lower rank assignment), the member is thereafter
precluded from receiving an assignment in a higher rank
through the Article 9 bid process (unless he is subsequently
re-promoted to the higher rank).

It also is my understanding that the FCSO believes that the
"hold" placed upon Roger Howard, which temporarily
delayed his transfer to his new Corporal assignment
following his self-demotion, did not restore him to the rank
of Sergeant for the purpose of additional job bids under
Article 9 of the contract. If my understanding of the FCSO's
position is accurate, the FOP does not dispute that position
and would not interpret the contract differently.

Please let me know if the foregoing accurately reflects the
position of the FCSO and its interpretation of both Section
9.5E. and the effect of the temporary hold that was placed on
Cpl. Howard's transfer to his new assignment.

{¶ 26} 18. Thereafter, in an e-mail dated April 30, 2014, relator's counsel withdrew
the request for arbitration, stating:
This is to notify you, as Roger Howard's attorney, that the
FOP (Capital City Lodge No. 9) will not arbitrate Corporal
Howard's grievance, #14-09, and it will notify the Sheriff's
Office that the request for arbitrations being withdrawn.

This decision is based upon the rationale set forth in my
email of April 17, appended below. Both prior and
subsequent to my email, the Lodge was unable to find any
instances where a member agreed to "self demote" by
accepting a bid to a lower ranked assignment, but as then
permitted to receive a bid to an assignment in his/her
previous (higher) rank - regardless of whether that member
had been placed on a temporary "hold" in his/her former
rank. The Lodge also has not received any examples of that
situation from Roger.
No. 15AP-220 11

More importantly, the Lodge was able to confirm that its
understanding of the intent of Section 9.5 E. of the collective
bargaining agreement (as discussed in my previous email) is
shared by the Sheriff's Office. As such, insofar as both parties
to the contract share the same understanding regarding the
meaning of that Section as it applies to Corporal Howard's
situation, there would be no basis to challenge the denial of
Roger's grievance (and no ability to win an arbitration).

{¶ 27} 19. In June 2014, relator was removed from his position as a corporal in the
patrol division and was reassigned to the corrections division after receiving negative
performance evaluations.
{¶ 28} 20. On June 10, 2014, relator filed an unfair labor practice ("ULP") charge
against FCSO alleging a violation of R.C. 4117.11(A)(8) (Case No. 2014-ULP-06-0085). In
his statement of facts, relator stated:
On March 12, 2014, I was denied a Sergeant position that I
posted for and was the most qualified for pursuant to the
Collective Bargaining Agreement ("CBA"). The position was
given to someone who should not have even been considered
for the position due to the fact that a qualified person
(myself) posted (pursuant to an existing Memorandum of
Understanding dated February __, 2014). The Union was
induced by the employer to take the position that the "spirit"
of the MOU had not been violated, even though the letter of
the MOU clearly was violated. The Union and the employer
have, in the past, allowed posting for positions while other
transfers were "on hold," as was the case with me, pursuant
to § 9.2 of the CBA, which states that a transfer does not take
effect until the employee actually assumes their new duties. I
filed a timely grievance on the issue. On April 30, 2014, the
Union informed me that it was withdrawing my grievance
over my objections because it was "in agreement" with the
employer.

{¶ 29} 21. Relator points to Section 9.2 of the CBA, which provides:
Section 9.2 Transfer and Vacancy Defined.

A transfer is any change in a member's regular assignment,
except days off. A vacancy is defined as a newly created
position to be filled, an opening which results from a
transfer, except a temporary transfer; or a position to be
filled resulting from termination, resignations, demotions
and/or promotions.
No. 15AP-220 12

{¶ 30} 22. That same day, relator filed an unfair labor practice ("ULP") charge
against FOP alleging a violation of R.C. 4117.11(B)(6) (Case No. 2014-ULP-0086). Relator
stated:
On March 12, 2014, I was denied a Sergeant position that I
posted for and was the most qualified for pursuant to the
Collective Bargaining Agreement ("CBA"). The position was
given to someone who should not have even been considered
for the position due to the fact that a qualified person
(myself) posted (pursuant to an existing Memorandum of
Understanding dated February __, 2014). The Union was
induced by the employer to take the position that the "spirit"
of the MOU had not been violated, even though the letter of
the MOU clearly was violated. The Union and the employer
have, in the past, allowed posting for positions while other
transfers were "on hold," as was the case with me, pursuant
to § 9.2 of the CBA, which states that a transfer does not take
effect until the employee actually assumes their new duties. I
filed a timely grievance on the issue. On April 30, 2014, the
Union informed me that it was withdrawing my grievance
over my objections because it was "in agreement" with the
employer.

{¶ 31} 23. On June 16, 2014, Holly M. Levine, a labor relationship specialist with
SERB, addressed letters to counsel requesting responses to certain questions and inviting
the parties to consider mediation as a preliminary step to resolving the dispute before an
initial finding regarding the ULP charges.
{¶ 32} 24. Relator, FCSO, and FOP submitted information relating to SERB's
request.
{¶ 33} 25. Holly Levine issued separate investigator's memoranda, dated July 28,
2014, concerning relator's ULP charges against the FCSO as well as against FOP to SERB.
In her Findings Upon Examination related to the ULP charge against FCSO, Levine set
forth the position of both relator and FCSO, stating:
Charging Party asserts while his transfer was on a temporary
hold, on March 12, 2014, he submitted a bid on a newly
posted vacant Sergeant position in the Patrol Division.
Charging Party asserts he was wrongfully denied the
position.
No. 15AP-220 13

On March 18, 2014, Charging Party filed a grievance alleging
he was passed over for the job vacancy of Sergeant. The
grievance was denied.

The County explained that despite Charging Party's
interpretation of the contract, it is their belief that self
demotion clause in Article 9.5(E) of the contract makes the
demotion effective immediately upon selection acceptance of
the position in a lower rank. Even though Charging Party
was still in his previous assignment as a Sergeant, with his
transfer on hold, he was in effect Acting Sergeant, in that he
was performing Sergeant's duties and pay, but his rank had
been converted to Corporal when he was selected to fill and
accepted the Patrol Corporal's assignment.

{¶ 34} Levine also set forth relator's ULP charge against the FOP as well as the
FOP's response, stating:
On March 18, 2014, Charging Party filed a grievance alleging
he was passed over for the job vacancy of Sergeant. The
grievance was denied.

Charging Party asserts FOP failed to fairly represent him
when it refused to take his grievance to arbitration.

FOP maintains that it spent a considerable amount of time
discussing Charging Party's grievance with him. FOP
contends that it was unable to find any evidence that the
contract had previously been interpreted in the way that
Charging Party would like it to be interpreted. Specifically,
FOP explained that Charging Party utilized a contractual
provision to voluntarily self-demote in order to bid upon and
receive an assignment in a lower rank. After the demotion
became effective, he attempted to "un do" the demotion by
bidding upon another vacant assignment in his previous
rank. The contract does not permit him to re-promote
himself in that fashion.

{¶ 35} 26. Levine recommended that SERB dismiss the charges with prejudice
against both FCSO and FOP for lack of probable cause to believe that either party
committed a ULP. With regard to FCSO, Levin explained:
Charging Party alleges the County violated Ohio Revised
Code § 4117.11(A)(8) by causing or attempting to cause the
Union to violate its duty of fair representation. Specifically,
Charging Party contends that the County's interpretation of
No. 15AP-220 14

the contract led the Union to unfairly represent him by
refusing to take his grievance to arbitration.

Contrary to the allegations raised by Charging Party, the
County's actions involve contractual interpretation and do
not rise to the level of a statutory violation. Charging Party
did not provide sufficient information to support the (A)(8)
allegation.

{¶ 36} 27. With regard to FOP, Levine explained:
In the case of In re OCSEA/AFSCME Local 11, SERB 98-010
(7-22-98), SERB modified In re AFSCME, Local 2312, SERB
89-029 (10-16-89) holding that arbitrariness, discrimination
and bad faith are distinct components of the same duty and
should be reviewed on an equal basis. The definition of
"arbitrary" conduct was modified to include a failure to take
a basic and required step without justification or viable
excuse. SERB also held that a union's failure to state the
reasons behind its actions, which was not previously called
for may result in an unrebutted presumption of
arbitrariness. In re Ohio Civil Service Employees
Assn/AFSCME, Local 11, SERB 93-019 (12-20-93), aff'd In
re Wheeland v. SERB, 1994 SERB 4-86 (CP, Franklin, 9-2-
94), aff'd In re Wheeland, 1995 SERB 4-19 (10th Dist. Ct.
App, Franklin, 6-6-95).

When an unfair labor practice charge is filed because a union
has allegedly violated its duty of fair representation, SERB
will look to see if the union's actions are arbitrary,
discriminatory, or in bad faith. If SERB finds any of these
components, there is a breach of the duty. The Complainant
has the burden of proving that the union did not fairly
represent its bargaining-unit members. As to the component
of arbitrariness, when the Complainant meets its burden of
proof, a breach of the duty of fair representation will be
found if the union cannot rebut the findings by providing
justification or viable excuse for its conduct; if the
justification or excuse constitutes simple negligence, we will
find independent that the conduct is not arbitrary.

The investigation reveals that FOP's actions were not
arbitrary, discriminatory or in bad faith. In fact, the FOP put
forth a concerted effort to explain the contractual provision,
in question, to Charging Party and the reasons for denying
the grievance.
No. 15AP-220 15

(Emphasis sic.)

{¶ 37} 28. On August 15, 2014, SERB dismissed relator's ULP charge against the
FCSO, stating:
Pursuant to Ohio Revised Code § 4117.12, the State
Employment Relations Board conducted an investigation of
this charge. The investigation revealed no probable cause
existed to believe Charged Parties violated Ohio Revised
Code § 4117.11. Information gathered during the
investigation revealed that contrary to the allegations raised
by the Charging Party, the Charged Parties' actions involve
contractual interpretation and do not rise to the level of a
statutory violation. Charging Party did not provide sufficient
information to support the (A)(8) allegation. Accordingly,
the charge is dismissed with prejudice for lack of probable
cause to believe the statute has been violated.

{¶ 38} 29. On August 15, 2014, SERB also dismissed relator's ULP charge against
the FOP, stating:
Pursuant to Ohio Revised Code § 4117.12, the State
Employment Relations Board conducted an investigation of
this charge. The investigation revealed no probable cause
existed to believe Charged Parties violated Ohio Revised
Code § 4117.11. Information gathered during the
investigation revealed that contrary to the allegations raised
by the Charging Party, the Charged Parties' actions were not
arbitrary, discriminatory or in bad faith. In fact, Charged
Party put forth a concerted effort to explain the contractual
provision in question to the Charging Party and the reasons
for denying the grievance. Accordingly, the charge is
dismissed with prejudice for lack of probable cause to believe
the statute has been violated.

{¶ 39} 30. Thereafter, relator filed this mandamus action asking this court to
compel SERB to find probable cause to believe his ULPs have been committed, issue
complaints, and conduct hearings on the ULP charges against both FCSO and FOP.
Conclusions of Law:
{¶ 40} Relator asserts that SERB erred in dismissing his ULP charges and that he
is entitled to a writ of mandamus to compel SERB to issue complaints and conduct
hearings on his charges. Before addressing relator's assertion, we must determine the
No. 15AP-220 16

appropriate standards for reviewing SERB's decisions finding no probable cause that ULP
charges have occurred.
{¶ 41} R.C. 4117.12(B) requires SERB to issue a complaint and conduct a hearing
on a ULP charge if it has probable cause for believing that a violation has occurred:
When 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.

(Emphasis added.)

{¶ 42} Probable cause determinations by SERB under R.C. 4117.12(B) are not
reviewable by direct appeal. Ohio Assoc. of Public Emps., Chapter 643 v. Dayton City
School Dist. Bd. of Edn., 59 Ohio St.3d 159 (1991). Instead, in the absence of an adequate
remedy in the ordinary course of law, an action in mandamus is the appropriate remedy
to obtain judicial review of orders by SERB dismissing ULP charges for lack of probable
cause. State ex rel. Service Emps. Internatl. Union, Dist. 925 v. State Emp. Relations Bd.,
81 Ohio St.3d 173 (1998), syllabus. A writ of mandamus will issue to correct an abuse of
discretion by SERB in dismissing ULP charges. State ex rel. Leigh v. State Emp.
Relations Bd., 76 Ohio St.3d 143 (1996). An abuse of discretion means an unreasonable,
arbitrary, or unconscionable decision. State ex rel. Elsass v. Shelby Cty. Bd. of
Commissioners, 92 Ohio St.3d 529, a court addressing a petition for mandamus will not
substitute its judgment for that of SERB if there is conflicting evidence on the contested
issue. State ex rel. Portage Lakes Edn. Assn. v. State Emp. Relations Bd., 95 Ohio St.3d
533 (2002).
{¶ 43} Chapter R.C. 4117 does not define the term "probable cause." That term has
been defined by the Supreme Court of Ohio in Portage Lakes:
The Ohio State Employment Relations Board must issue a
complaint and conduct a hearing on an unfair labor practice
charge if, following an investigation, it has a reasonable
ground to believe that an unfair labor practice has occurred.

Id. at 541.
No. 15AP-220 17

{¶ 44} In Portage Lakes, the Supreme Court of Ohio analogized the role of SERB
in determining whether there was probable cause to that of a public prosecutor
investigating a complaint of criminal activity. In both cases, "the decision not to
prosecute is discretionary, and not generally subject to judicial review." Ohio Assoc. of
Public Emps. "The issue of probable cause in criminal proceedings is essentially one of
fact." See, e.g., State v. Tibbetts, 92 Ohio St.3d 146, 153 (2001).
{¶ 45} In his ULP charges, relator alleged that FCSO violated R.C. 4117.11(A)(8)
and FOP violated R.C. 4117.11(B)(6). The substance of his ULPs stems from his assertion
that he should have been given the sergeant position for which he applied after he had
applied for and was given the corporal position. Relator argues that FCSO and FOP
together took the exact opposite position with regards to applications than they had in the
past and discussed the factual scenarios involving two other employees. Respondents
asserted that the factual situations were not similar. Ultimately, SERB determined that
relator had failed to present sufficient information to support his allegations and
dismissed his complaints.
{¶ 46} Relator argued that FCSO violated R.C. 4117.11(A)(8)(B), which provides:
It is an unfair labor practice for a public employer, its agents,
or representatives to:

***

Cause or attempt to cause an employee organization, its
agents, or representatives to violate division (B) of this
section.

Relator also alleged that FOP violated R.C. 4117.11(B)(6), which provides:
It is an unfair labor practice for an employee organization, its
agents, or representatives, permanent total disability public
employees to:

***

Fail to fairly represent all public employees in a bargaining
unit.

{¶ 47} The essence of relator's argument is that his employer (FCSO) and his union
(FOP) conspired together to justify his not being given the sergeant's position to which he
No. 15AP-220 18

believed he was rightfully entitled. In order to prove a violation under R.C. 4117.11(B)(6),
relator must establish that FOP's conduct was arbitrary, discriminatory, or in bad faith
{¶ 48} In State ex rel. Hall v. State Emp. Relations Bd., 122 Ohio St.3d 528 (2009),
the Supreme Court of Ohio explained SERB's standard for determining whether a union
has violated its duty of fair representation:
If there are no apparent factors that show legitimate reason
for a union's approach to an issue, the Board will not
automatically assume arbitrariness. Rather, it will look to
evidence of improper motive: bad faith or discriminatory
intent. An element of intent must be present; it may be
evinced by discrimination based upon an irrelevant and
invidious consideration, or it may be indicated by hostile
action or malicious dishonesty i.e., bad faith. In the absence
of such intent, if there is no rational basis for the action,
arbitrariness will be found only if the conduct is so egregious
as to be beyond the bounds of honest mistake or
misjudgment

***

The initial burden is on a charging party and a complainant
to show that the union acted arbitrarily, and therefore did
not fairly represent the charging party, by showing that the
union failed to take a basic and required step.

Id. at 533-34.

{¶ 49} In the investigator's memoranda to the board, the investigator concluded
that relator's issue involved how FCSO and FOP interpreted the contractual provisions at
issue. SERB determined that relator did not meet his burden of proving his allegations
against either FCSO or FOP.
{¶ 50} In arguing to the contrary, relator continues to assert that he presented
evidence that two employees similarly situated to him were treated in the manner he
believes he should have been treated. However, FOP explained that the situations of both
employees to whom relator directed FOP's attention were not similarly situated because
section 9.5 of the CBA was not involved. Neither of those two employees had self-
demoted by bidding on and accepting an assignment to a lower rank.
{¶ 51} The reality is, after considering the issue, both FCSO and FOP concluded
that relator's situation was essentially one of first impression and further that they agreed
No. 15AP-220 19

with the manner in which FCSO had interpreted the CBA. This does not constitute bad
faith or discriminatory intent. Further, relator's grievances were heard and denied. FOP
represented relator through his Step 3 grievance and beyond. It cannot be said that the
FOP failed to take steps to represent relator's interest. The fact that FOP and FCSO
ultimately agreed on the manner in which the CBA was interpreted is not evidence of bad
faith. Based upon the facts as developed and explained in the investigator's
memorandum, the fact that the FCSO and FOP ultimately agreed on the interpretation of
the CBA provided a rational basis for the FOP to refrain from pursuing arbitration.
{¶ 52} The scenario presented by relator contrasts with the scenario presented by
both FCSO and FOP. As such, there was conflicting evidence before SERB. Following the
Supreme Court of Ohio's admonitions in Hall and Portage Lakes, this court should not
substitute its judgment for that of the administrative board and, finding that SERB could
have reasonably concluded that there was no probable cause to believe that either FCSO
or FOP violated the provisions of R.C. 4117.11(A)(8), and (B)(6), relator has not
demonstrated that he is entitled to a writ of mandamus.

/S/ MAGISTRATE
STEPHANIE BISCA

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).