Franklin Cty. Sheriff's Dept. v. SERB

BRYANT, J.,

concurring in part and dissenting in part.

Being unable to agree with the majority's disposition of appellant's argument D, I respectfully dissent from that portion of the majority opinion.

Under R.C. 4117.11(A) (3), SERB normally requires the charging party establish the following in order to present a prima facie case which the public employer must then rebut:

(1) the public employee exercised or tried to exercise protected rights;

*306(2) the public employer actually or implicitly knew of the employee's pursuit of protected rights;

(3) the public employer engaged in or allowed adverse action against the employee;

(4) the action was motivated, at least in part, by hostility to either union or protected activity. See In re Adena Local School Dist. Bd. of Edn. (Dec. 29, 1989), SERB 89-034, 1989 SERB 3-328, and In re Warren County Sheriff (Sept. 28, 1988), SERB 88-014, 1988 SERB 3-71.

Upon review of the record concerning the December 1988 order issued by SERB, I would find that the trial court did abuse its discretion in finding the order to be supported by substantial evidence on the record as a whole. According to the parties' stipulations; the three employees whose commissionswere revoked were exercising their rights under the collective bargaining agreement to seek arbitration of their grievances. Pursuant to the terms of the agreement, the department was aware of this activity and had selected arbitrators in two of the cases. While these requests were pending, the sheriff notified each employee that their auxiliary commissions had been revoked. Accordingly, no dispute exists as to the first three factors required to make out a prima facie case of discrimination under R.C. 4117.11(A)(3).

With respect to the motivating force behind the revocations, the evidence supports the trial court's determination that SERB correctly found an unfair labor practice While the timing of the revocations is not so immediate as to warrant an inference of discriminatory intent, cf. Akron Bd. of Edn. v. State Emp. Relations Bd. (1987), 38 Ohio App. 3d 95, 96-97, the record contains evidence that none of the employees were given any warning of deficiencies in their performance as auxiliaries, that none of the deputies were given a reason for the revocation, that the sheriff told one deputy that "no arbitrator was going to tell him what to do," and that the sheriff provided different reasons on various occasions for revoking the commission of one employee.

Although the majority dismisses, as unsupportive of anti-union animus, the sheriffs statement that "no arbitrator was going to tell him what to do," I disagree. Even if, taken in context, the statement may be subject to the interpretation the majority opinion gives it, it also is subject to a valid interpretation supporting SERB's determination. Given the differences in possible interpretation, deference should be afforded to that meaning SERB has ascribed to the statement.

By this dissent, however, I do not suggest that the evidence herein is overwhelmingly supportive of SERB's decision. To the contrary, the evidence is barely sufficient to the standard on review. Nonetheless, the evidence is such that I cannot say the trial court was clearly wrong in affirming SERB's decision.

The record containing substantial evidence to support the finding by SERB that the department committed unfair labor practices under R.C. 4117.11(A) (1) and (3), I would find that the trial court did not abuse its discretion in affirming this aspect of SERB's order. Accordingly, I would overrule the department's argument D.