State ex rel. Hemphill v. Ohio State Emp. Relations Bd.

[Cite as State ex rel. Hemphill v. Ohio State Emp. Relations Bd., 2022-Ohio-2299.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Traci Hemphill, :

Relator-Appellant, :

v. : No. 21AP-469
(C.P.C. No. 21CV-1035)
Ohio State Employment Relations Board, :
(REGULAR CALENDAR)
Respondent-Appellee. :

D E C I S I O N

Rendered on June 30, 2022

On brief: Percy Squire, Co., L.L.C., and Percy Squire, for
appellant. Argued: Percy Squire.

On brief: Dave Yost, Attorney General, and Sherry M.
Phillips, for respondent. Argued: Sherry M. Phillips.

APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Relator-appellant, Traci Hemphill, appeals from a judgment of the Franklin
County Court of Common Pleas denying appellant's petition for a writ of mandamus and
granting judgment in favor of respondent-appellee, Ohio State Employment Relations
Board ("SERB"). Because appellant's unfair labor practice charge was untimely and
because SERB did not abuse its discretion in dismissing the charge for lack of probable
cause, we affirm.
No. 21AP-469 2

Facts and Procedural History
{¶ 2} Appellant was a case manager for the Mahoning County Ohio Department of
Job and Family Services ("MCDJFS"). On November 17, 2016, appellant was removed from
her position for allegedly violating a MCDJFS policy. On November 22, 2016, appellant's
union filed a grievance with MCDJFS requesting that appellant be reinstated with full
backpay and benefits. MCDJFS denied the grievance on January 24, 2017.
{¶ 3} Following the denial of her grievance, appellant sought to arbitrate her
grievance through her union and/or through private counsel. The record is unclear
whether the request for arbitration was initially made by the union, by private counsel on
behalf of the union, or by private counsel on behalf of appellant. Ultimately, an arbitrator
was selected and the arbitration was scheduled for September 28, 2018. Prior to the
scheduled arbitration date, appellant alleged MCDJFS threatened that, if she persisted in
her effort to regain her employment, it would "attempt to cause [appellant] to be indicted
for certain past unrelated alleged conduct." (Appellant's Verified Petition at ¶ 14.)
Appellant further alleged that due to the threat of criminal prosecution and the risk of self-
incrimination, appellant's counsel "requested that the arbitration be stayed pending
resolution of any potential criminal allegations against [appellant]." Id. at ¶ 15. Following
the request to stay the arbitration, the arbitrator withdrew from the proceedings. Id. at
¶ 16.
{¶ 4} On May 9, 2019, appellant filed an unfair labor practice ("ULP") charge with
SERB alleging that MCDJFS "embarked upon a continuing course of conduct to intimidate
and coerce [appellant] into discontinuing grievance procedures * * * by threatening
criminal prosecution if she did not cease her reemployment efforts" in violation of R.C.
4117.11(A)(5). (Ex. E to Verified Petition.) An investigator for SERB requested appellant
provide all documentation supporting her position. The investigator made a similar
request to MCDJFS. MCDJFS responded with documents and statements. Appellant did
not respond. On October 10, 2019, SERB entered an order dismissing with prejudice
appellant's ULP charge for lack of probable cause. However, SERB's order states that
appellant's grievance is still pending. (Verified Petition at ¶ 18.)
{¶ 5} In December 2019, appellant's union delivered a step five grievance status
sheet to MCDJFS that identified appellant's grievance as withdrawn. On February 18,
No. 21AP-469 3

2020, MCDJFS informed appellant's counsel that the union had withdrawn appellant's
grievance and, accordingly, it would not reschedule appellant's grievance for arbitration.
Ninety-three days later, on May 20, 2020, appellant filed a second ULP charge with SERB
that alleged the same conduct previously alleged in her first ULP charge, but stating
additionally that her grievance was no longer pending and that MCDJFS "continued to
retaliate against [appellant] and refused to schedule arbitration." (Verified Petition at ¶ 19
and Ex. G.) On May 27, 2020, the SERB investigator requested that appellant provide all
information and documentation supporting her position. In response, appellant submitted
the following statement:
This is refiling [sic] of a previous charge based upon the failure
of Mahoning County Department of Job & Family Services to
operate in good faith within the meaning of R.C. 4117.11(A)(5).
The Board determined on October 10, 2019 that the charge
would be dismissed, among other reasons, because the relevant
grievance was "still pending." See, Case NO. 2019-ULP-05-
0098, Exhibit A.

Upon request of the Charging Party to resume the grievance
procedure, the Employer then denied that the grievance was
still pending. See, Email Chain at Exhibit B.

The Charging Party now requests relief based upon the refusal
of the Employer to resume the grievance process.

(SERB Record of Proceedings at 114.)
{¶ 6} Other than a copy of SERB's order dismissing the previous ULP charge and
essentially the same e-mail chain attached to the ULP charge, appellant provided no other
documentation or argument in support of the charge.
{¶ 7} MCDJFS responded to the SERB investigator's request for information by
providing a June 4, 2020 letter in which the union confirmed that it had withdrawn
appellant's grievance, stating:
In regards to our previous conversation regarding Ms.
Hemphill, I have spoken with Debbie Bindas, Regional
Director for AFSCME Council 8 for clarification. Grievances
and the grievance process belongs to the local union and
council 8. No individual member has any rights to pursue a
grievance outside of the process outlined in the cba. However,
she states if an individual wishes to pursue further legal action
No. 21AP-469 4

with private representation they are free to do that. AFSCME
local 2001 and Council 8 are not parties to any
arbitration/litigation pursued by Ms. Hemphill or her
attorney. Local 2001 and Council 8 have given Ms. Hemphill
fair representation through the grievance procedure and have
collectively decided not to advance the grievance to
arbitration. Let me know if there is anything else needed.

(Ex. I to Union's June 4, 2020 Response to SERB Investigator's Request for Information.)
{¶ 8} On August 13, 2020, SERB dismissed appellant's ULP charge for lack of
probable cause and because the charge was not timely filed. (Ex. A, Verified Petition)
{¶ 9} Appellant filed a verified petition for a writ of mandamus on February 18,
2021. SERB's dismissal of appellant's second ULP charge (May 20, 2020) is the subject of
appellant's petition for mandamus. At the request of the parties, the trial court decided the
case based solely on the parties' briefs. In a decision and entry filed September 2, 2021, the
trial court denied appellant's petition for a writ of mandamus.
{¶ 10} Appellant appeals, assigning the following error:
The Court of Common Pleas erred when it denied
[Appellant's] request for a Writ of Mandamus.

Legal Analysis
{¶ 11} R.C. 4117.12(B) requires SERB to issue a complaint and conduct a hearing on
a ULP charge if, following an investigation, it has probable cause to believe that a violation
has occurred. State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations
Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, ¶ 33. A probable-cause determination by SERB
considers whether there is reasonable cause to believe that a violation occurred. Id. at ¶ 37.
Probable-cause determinations by SERB under R.C. 4117.12(B) are not reviewable by direct
appeal. Id. at ¶ 35, citing Ohio Assn. of Pub. School Emps. Chapter 643, AFSCME/AFL-
CIO v. Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159 (1991), syllabus. An action
in mandamus is the appropriate remedy to obtain judicial review of SERB orders
dismissing ULP charges for lack of probable cause. State ex rel. Serv. Emps. Internatl.
Union, Dist. 925 v. State Emp. Relations Bd., 81 Ohio St.3d 173 (1998), syllabus.
{¶ 12} In order to demonstrate entitlement to a writ of mandamus, the petitioner
must show a clear legal right to the relief prayed for, a clear legal duty of the respondent to
No. 21AP-469 5

perform the act requested, and the absence of a plain and adequate remedy in the ordinary
course of the law. State ex rel. Professionals Guild of Ohio v. State Emp. Relations Bd.,
10th Dist. No. 08AP-417, 2009-Ohio-2155, ¶ 4, citing State ex rel. Berger v. McMonagle, 6
Ohio St.3d 28 (1983). A writ of mandamus will issue to correct an abuse of discretion by
SERB to dismiss unfair labor practice charges. Portage Lakes at ¶ 35; State ex rel. Leigh v.
State Emp. Relations Bd., 76 Ohio St.3d 143, 145 (1996). An abuse of discretion means an
unreasonable, arbitrary, or unconscionable decision. Portage Lakes at ¶ 35, citing State ex
rel. Elsass v. Shelby Cty. Bd. of Commrs., 92 Ohio St.3d 529, 533 (2001). Because
mandamus proceedings are premised upon the petitioner establishing an abuse of
discretion by SERB in its probable-cause determination, courts should not substitute their
judgment for that determination. Id. at ¶ 41.
{¶ 13} Here, appellant contends in her sole assignment of error that the trial court
erred by finding that SERB did not abuse its discretion in dismissing appellant's ULP
charge. Appellant argues that SERB abused its discretion in determining that her ULP
charge was untimely and not supported by probable cause. We disagree.
{¶ 14} R.C. 4117.12(B) governs the filing of ULP charges with SERB and provides:
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. * * * 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.

(Emphasis added.)
{¶ 15} "By enacting a ninety-day statute of limitations, the General Assembly
intended employees to seek redress for unfair labor practices promptly." State ex rel.
Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 184 (1997). "The ninety-day time
period does not commence until the charging party knew or should have known of the
conduct which constituted the improper conduct and actual damage ensued." Id. SERB
does not abuse its discretion if it dismisses a ULP charge filed after the 90-day limitations
No. 21AP-469 6

period has expired. Id.; State ex rel. Tritt v. State Emp. Relations Bd., 97 Ohio St.3d 280,
2002-Ohio-6437, ¶ 18.
{¶ 16} Appellant's ULP charge is premised on MCDJFS' refusal to arbitrate her
grievance in violation of R.C. 4117.11(A)(5). (Appellant's Brief at 19.) The record reflects
that appellant's counsel received notice by e-mail on February 18, 2020, that MCDJFS
would not reschedule appellant's grievance for arbitration because her union had
withdrawn the grievance. Therefore, appellant had to file her ULP charge by May 17, 2020.
Appellant filed her ULP charge with SERB on May 20, 2020. Because appellant did not file
her ULP charge until after the 90-day limitations period had expired, SERB dismissed the
charge as untimely.
{¶ 17} Appellant argues that MCDJFS' refusal to arbitrate is continuing and,
therefore, the 90-day limitations period does not apply. (Appellant's Brief at 14.) We
disagree. Appellant cites no legal authority supporting her argument and to accept her
argument would eviscerate the 90-day limitations period. Because appellant filed her ULP
charge after the 90-day limitations period expired, SERB did not abuse its discretion in
dismissing it as untimely. Grady.1
{¶ 18} In addition, even if appellant had timely filed her ULP charge, appellant failed
to provide SERB with any documentation, information, or evidence that disputed the
evidence and information MCDJFS provided to SERB. The evidence and information that
MCDJFS provided (reflected in letters and e-mails between union representatives and
representatives of MCDJFS) indicated that appellant's union withdrew her grievance and
elected not to arbitrate her case. Given this undisputed information, SERB did not abuse
its discretion in also dismissing appellant's ULP charge for lack of probable cause.

1 In oral argument, appellant's counsel newly argued that MCDJFS' ongoing threat to refer the results of its
investigation of appellant's conduct to law enforcement if appellant persisted in her request for arbitration
was continuing conduct and, therefore, her ULP charge should not have been dismissed as untimely.
However, that allegation, even if true, might be a violation of R.C. 4117.11(A)(1) (it is an unfair practice for
a public employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in
Chapter 4117 of the Revised Code). Appellant did not assert a charge based on R.C. 4117.11(A)(1).
Consequently, MCDJFS' alleged continuing threats to refer the results of its investigation to law
enforcement is not relevant to appellant's R.C. 4117.11(A)(5) charge. Nor does this alleged conduct
demonstrate that SERB abused its discretion in dismissing appellant's R.C. 4117.11(A)(5) charge as
untimely.
No. 21AP-469 7

{¶ 19} In her briefs to the trial court and to this court, appellant references several
documents (particularly exhibit C to the verified petition) in arguing that (1) her grievance
had not been withdrawn; or (2) the grievance had been assigned to appellant by her union;
or (3) she detrimentally relied on the union's promise to allow her to arbitrate her grievance
through her private attorney. However, appellant did not provide this document in support
of her R.C. 4117.11(A)(5) charge to SERB despite the requests for information by SERB's
investigator. Nor did appellant assert these arguments in the statement she provided in
response to SERB's request for information. "It is axiomatic that SERB could not abuse its
discretion based on evidence that was not properly before the board when it made its
decision. Consequently, the review of a SERB decision is generally limited to the facts as
they existed at the time SERB made its decision." Portage Lakes, 95 Ohio St.3d 533, 2002-
Ohio-2839, at ¶ 55. A reviewing court should not consider evidence or arguments not
previously presented to SERB. State ex rel. Hall v. State Emp. Relations Bd., 122 Ohio
St.3d 528, 2009-Ohio-3603, ¶ 33.
{¶ 20} Given the undisputed information MCDJFS provided to SERB
demonstrating that appellant's union had withdrawn her grievance and no longer sought
arbitration, SERB did not abuse its discretion in dismissing appellant's ULP charge for lack
of probable cause and as untimely.
{¶ 21} For the foregoing reasons, we overrule appellant's sole assignment of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and BEATTY BLUNT, JJ., concur.