State ex rel. Util. Supervisors Emps. Assn. v. Ohio State Emp. Relations Bd. , 2024 Ohio 5178 ( 2024 )

[Cite as State ex rel. Util. Supervisors Emps. Assn. v. Ohio State Emp. Relations Bd., 2024-Ohio-5178.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Utilities Supervisors :
Employees’ Association,
:
Relator,
v. : No. 22AP-480
Ohio State Employment Relations Board, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on October 29, 2024
On brief: Gertsburg Licata Co., LPA, and Stewart D. Roll, for
relator.
On brief: Dave Yost, Attorney General, and Sherry M.
Phillips, for respondent.
IN MANDAMUS
MENTEL, P.J.
{¶ 1} Alleging that the City of Cleveland refused to bargain collectively with it as
required under R.C. 4117.11(A)(5), relator, Utilities Supervisors Employees’ Association,
filed an unfair labor practice charge with respondent, State Employment Relations Board
(“SERB”). SERB dismissed the charge based on a lack of probable cause. Relator then
brought this original action seeking a writ of mandamus ordering SERB to hold a hearing
on the matter, find a violation of the statutory right alleged, order collective bargaining, and
award damages.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate. The magistrate recommends that we deny relator’s
request for a writ of mandamus after concluding that the record does not support the
No. 22AP-480 2
contention that SERB abused its discretion when dismissing relator’s charge. The
magistrate also recommends overruling relator’s May 9, 2023 motion for leave to file a
motion to amend the record.
{¶ 3} Relator filed no objection to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.”
Civ.R. 53(D)(4)(c). Our review of the magistrate’s decision reveals no error of law or other
evident defect. See, e.g., State ex rel. Alleyne v. Indus. Comm., 10th Dist. No. 03AP-811,
2004-Ohio-4223 (adopting the magistrate’s decision where no objections filed). We agree
with the magistrate’s conclusion that SERB did not abuse its discretion. Accordingly, we
adopt the decision of the magistrate in full, deny relator’s motion as moot, and deny
relator’s request for a writ of mandamus.
Motion denied; writ of mandamus denied.
LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.
_________________
No. 22AP-480 3
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Utilities Supervisors :
Employees’ Association,
:
Relator,
:
v. No. 22AP-480
:
Ohio State Employment Relations Board, (REGULAR CALENDAR)
:
Respondent.
:
MAGISTRATE’S DECISION
Rendered on August 6, 2024
Gertsburg Licata Co., LPA, and Stewart D. Roll, for relator.
Dave Yost, Attorney General, and Sherry M. Phillips, for
respondent.
IN MANDAMUS
{¶ 4} Relator Utilities Supervisors Employees’ Association (“the Association”)
filed before respondent State Employment Relations Board (“SERB”) an unfair labor
practice charge against the City of Cleveland (“the City”). The Association alleged the City
refused to bargain collectively within the meaning of R.C. 4117.11(A)(5). SERB issued a
decision dismissing the charge with prejudice for lack of a probable cause to believe the
City had failed to negotiate in good faith. Now, the Association requests the issuance of a
writ of mandamus ordering SERB to: (1) hold a hearing, (2) find the City violated
R.C. 4117.11, (3) order the City to bargain collectively with the Association on the topic of
wages, and (4) grant damages to the Association on the basis of the City’s alleged refusal
to bargain.
No. 22AP-480 4
I. Findings of Fact
{¶ 5} 1. The City is a public employer, as defined in R.C. 4117.01(B).
{¶ 6} 2. The Association is an employee organization, as defined in
R.C. 4117.01(D).
{¶ 7} 3. The City and the International Union of Operating Engineers, Local 10
(“Local 10”), entered into a collective bargaining agreement effective April 1, 2019 through
March 31, 2022 (“the CBA”). (Stip. at 98.) Under the terms of the CBA, Local 10 was
recognized as the sole and exclusive representative for the bargaining unit, which
consisted of employees of the City serving in certain specified full-time supervisory
classifications.
{¶ 8} 4. Following a representation election, the Association replaced Local 10 as
the exclusive representative of the bargaining unit in June 2021. Since that time, the City
and the Association continued to operate under the terms of the CBA in effect between
the City and Local 10, even after CBA expired on March 31, 2022.
{¶ 9} 5. On January 21, 2022, the Association filed with SERB a notice to
negotiate. Beginning on January 24, 2022, the Association began contacting the City to
schedule negotiations. On January 24, 2022, a representative of the City confirmed
receipt of the notice to negotiate. On January 31, 2022, the City informed the Association
of the identity of its lead negotiator.
{¶ 10} 6. In January 2022, there was a change in the City’s administration after the
City’s new mayor took office. In response to the Association’s attempts to schedule
negotiations, the City’s lead negotiator explained that there would be a delay in the City’s
commencement of negotiations. On February 1, 2022, the lead negotiator sent the
Association an email stating: “We are in the process of developing initial proposals with
the new Administration. This may take a few weeks before things are brought up to
speed.” (Stip. at 10, 64.) The lead negotiator also explained that he was involved in
another series of negotiations with a different party and was attempting to resolve that
matter before focusing on the City’s negotiations.
{¶ 11} 7. On March 9, 2022, the Association filed an unfair labor practice charge
against the City, alleging that the City’s failure to provide dates for the commencement of
negotiations constituted a refusal to bargain collectively in violation of R.C. 4117.11(A)(5).
No. 22AP-480 5
{¶ 12} 8. On March 9, 2022, the City’s lead negotiator emailed the Association
explaining that he had had “multiple conversations” with the Association’s counsel
explaining the “multiple factors that impeded the City’s efforts at this time to commence
negotiations at the pace you desire, along with many other bargaining units who are in
the same situation.” (Stip. at 212-13.) The lead negotiator detailed the factors as follows:
The City has experienced a change in leadership for the first
time in 16 years, with a new Mayor and senior administrative
leadership. Naturally, this change comes with a possible
modification in how to conduct negotiations from both a
procedural and substantive perspective. The uncertainty until
late last year regarding who would become Mayor, along with
the equal uncertainty until early this year regarding who
would be appointed to senior administrative positions,
delayed the usual efforts to prepare for negotiations months
in advance of the March 31 contract expiration dates. As I
explained when we first discussed scheduling negotiations
almost immediately after the filing/service of the Notice to
Negotiate, those preparation efforts had not yet started
because the new senior administrators were just beginning to
assume their responsibilities. In addition, the City was still
attempting to fill the critical Manager of Labor Relations
position, which had been vacant for several months. That new
person began working two days ago.
Because of the uncertainty in leadership, our firm did not
know whether we would continue to represent the City as
outside labor counsel. This obviously impeded any efforts by
our firm to prepare for negotiations any time last year. Indeed,
we did not know until shortly before the filing/service of the
Notice to Negotiate that we would continue in that role. Upon
receiving that confirmation, we began immediately to assist
the City with negotiations preparation.
The delays in securing senior leadership also delayed the
appointment of the members of the City’s negotiations teams
— not only for the USEA negotiations, but for more than 30
other sets of negotiations. Although you expressed an
eagerness in scheduling dates, even if they were weeks in
advance, we also discussed how unproductive it would be to
schedule dates and then have to cancel them because the
bargaining team had not been appointed or was not fully
prepared to participate.
(Stip. at 213-14.) Based on these factors and “the enormity of the City’s bargaining
responsibilities,” the lead negotiator argued that the pace of the City’s efforts to prepare
No. 22AP-480 6
for and commence negotiations was reasonable. (Stip. at 181.) The lead negotiator stated
that he had consulted with the City to begin scheduling dates for negotiations and offered
seven dates and times to conduct an initial bargaining session.
{¶ 13} 9. On April 4, 2022, the Association and City met and commenced
negotiations. The Association presented its wage proposal, and the City presented its
initial proposals, which did not include a proposal on wages. According to the City, the
delay in presenting a wage proposal was due to the fact that “City Council had recently
passed the budget and it would take the City additional time to calculate the wage
proposals.” (Stip. at 182.) After the City did not present a wage proposal, the negotiations
were concluded with an agreement to continue negotiations on April 21, 2022.
{¶ 14} 10. Following the April 4, 2022 meeting, the lead negotiator for the City
emailed the Association seeking to “confirm” that the Association was going to “withdraw
its unfair labor practice charge against the City without the need for the parties to submit
position statements.” (Stip. at 207.) The Association responded that it would not
withdraw the unfair labor practice charge, stating that it “hope[d] the next meeting on
April 21, 2022, will include a productive conversation on wages.” (Stip. at 206.) The City’s
lead negotiator defended its position in an April 12, 2022 email to the Association, stating:
While the Union can continue to maintain the charge, the City
firmly believes that the charge lacks merit. Negotiations have
commenced; we have conducted one bargaining session; and
we have another scheduled. The City’s timetable for
presenting its wage proposal to this Union and every other
bargaining representative for its 32 bargaining agreements no
more constitutes bad faith bargaining than the Union’s
apparent delay in completing its initial proposals presentation
during our initial bargaining session. My recollection is that
the Union presented only a written wage proposal and an oral
uniform/clothing/maintenance allowance proposal (which
Oliver followed up with written details). The City then
presented its complete initial proposals, which included a
reservation on wages and discipline procedures. The Union
then requested a caucus to discuss the remainder of its initial
proposals in light of the City’s initial proposals. When the
bargaining session resumed, the Union concluded the
proceedings without presenting any further proposals. The
City does not intend to file a charge over the Union’s actions,
which are substantively similar to the City’s actions.
(Stip. at 203.)
No. 22AP-480 7
{¶ 15} 11. On April 21, 2022, the parties met for their second negotiation session.
{¶ 16} 12. On April 22, 2022, the Association filed an amended unfair labor
practice charge based on the alleged failure of the City at the April 4 and April 22, 2022
negotiation sessions to negotiate wages and uniform reimbursement costs in response to
the Association’s proposals on the same topics. The Association further stated that the
City’s “excuse for not negotiating on April 4, 2022, was that [the City’s] new
administration had not yet determined how much money it could devote toward employee
wages and uniform reimbursement costs.” (Stip. at 108.) According to the Association,
the City did not negotiate on April 21, 2022 because it “first wanted to negotiate with
larger Cleveland unions and the police union so that it could establish a ‘pattern’ which
the smaller unions would have to follow.” Id. The Association asserted that these actions
constituted a violation of R.C. 4117.11(A)(5).
{¶ 17} 13. The Association’s unfair labor practice charge was investigated by a
SERB labor relations specialist.
{¶ 18} 14. In response to a request for information by the investigator, the City
provided a position statement that included a factual summary. According to the City, the
Association “only wanted to discuss the wage proposal and uniform reimbursement
costs,” but the City informed the Association that the City “was not prepared to discuss
the wage proposal at that time and indicated that the City wanted to negotiate the non-
economic terms.” (Stip. at 184.) According to the City, the Association “refused to
continue the negotiations and offer any reasonable alternatives to the numerous pending
bargaining items between the City and Union for their initial collective bargaining
agreement.” Id. Furthermore, the City stated that the Association “refused to meet again
until SERB ruled on its ULP charge against the City; refused to provide the City with the
remainder of the Union’s initial proposals; and refused to negotiate the non-economic
proposals.” Id. The City stated that shortly after the second negotiation session began, it
concluded due to the Association’s position that “it would not continue to bargain without
the City first negotiating wages.” Id.{¶ 19} The City argued that it “presented its initial proposals to the [Association]
and requested to continue negotiations while the economic wage proposal was
temporarily on hold.” (Stip. at 186.) The City argued that the Association had: “(1) refused
No. 22AP-480 8
to provide the City with its initial proposals, (2) [refused to] provide counterproposals to
the City’s numerous initial proposals, (3) left the negotiations prematurely after learning
the City did not have its economic proposal, and (4) refused to schedule any further
negotiation with the City until the City provided a wage proposal to the Union.” Id.{¶ 20} With regard to the Association’s allegations of pattern bargaining, the City
stated that it did not engage in pattern bargaining with the Association. In support of this,
the City stated:
All of the contracts between the City and its 32 Unions expire
at the same time and the City has not even started
negotiations with all of its unions. No pattern has been set
with any Union. No decision has been made to wages with any
Union.
***
The City is in its infancy with negotiations with every other
bargaining unit (approximately 31). To date, the City has not
met or even exchanged initial proposals with a large number
of its unions, including its largest Union, AFSCME Local 100.
In regards to the bargaining units it has met with, all of the
City’s initial proposals contained an economic hold in each
and every one. The City did not treat [the Association] less
than compared to any other Union. Recently, the City has
presented a wage proposal to a few bargaining units and it was
only after a few rounds of bargaining sessions. Again, [the
Association] and the City had two bargaining sessions, with
the last one taking place on April 21, 2022, which combined
lasted less than a few hours. Had [the Association] engaged in
negotiations and participated in give and take instead of
refusing to further negotiate until SERB had issued a ruling
on its charge, the parties would have most likely continued to
meet and the City would have been able to provide its wage
proposal.
(Stip. at 188-89.)
{¶ 21} 15. The SERB labor relations specialist issued an investigator’s
memorandum on July 21, 2022. The labor relations specialist made the following
findings:
Information gathered during the investigation reveals that the
parties are in negotiations for a successor agreement
However, the [Association] asserts that the [City] is
negotiating in bad faith because [the City] did not submit
wage proposals during the first two bargaining sessions
No. 22AP-480 9
between the parties. The [City] has rebutted this allegation by
providing information regarding the reasons it has yet to
submit proposals for wages. These reasons include a change
in the City’s Mayor, the appointment of a new Labor Relations
Director, and other economic considerations created by these
changes. The parties are still engaged in contentious
negotiations and are working with the prior contract in effect
as negotiations move forward. Based on the information
provided, the [City’s] actions do not rise to the level of an
(A)(5) statutory violation.
(Stip. at 230-31.) Based on the findings in the investigation, the labor relations specialist
recommended that SERB “dismiss the charge with prejudice for lack of probable cause to
believe that an unfair labor practice has been committed by Charged Party.” (Stip. at 231.)
{¶ 22} 16. On July 21, 2022, SERB dismissed the Association’s unfair labor practice
charge, making the following findings:
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 [the City] violated Ohio Revised Code §
4117.11. Information gathered during the investigation
revealed that the parties are in negotiations for a successor
agreement. The [Association] believes that because the [City]
has not submitted wage proposals at the first two bargaining
sessions they are negotiating in bad faith. The [City] provided
compelling information that show the reasons it has yet to
submit wage proposals, which include, a change in the Mayor,
a new Labor Relations Director, and other economic issues
that have been affected by these changes. The parties are
engaged in contentious negotiations and are working under
the prior contract as negotiations move forward. Based on the
information provided, the [City’s] actions do not rise to the
level of an (A)(5) violation of the statute. Accordingly, the
charge is dismissed with prejudice for lack of probable cause
to believe the statute has been violated.
(Stip. at 232.)
{¶ 23} 17. On August 5, 2022, the Association commenced this mandamus action
by filing its complaint. The Association also filed an application for an alternative writ of
mandamus.
{¶ 24} 18. On August 15, 2022, SERB filed a memorandum in opposition to the
application for an alternative writ. On September 7, 2022, SERB filed a motion to dismiss.
No. 22AP-480 10
{¶ 25} 19. On September 7, 2022, the Association filed an amended complaint and
amended application for alternative writ of mandamus. In the amended application for
alternative writ of mandamus, the Association sought an alternative writ ordering SERB
to hold a hearing on the unfair labor practice charge, find that the City violated R.C.
4117.11, and order the City to bargain collectively with the Association. In the alternative,
the Association sought an order requiring the City to file and serve its verified return.
{¶ 26} 20. On September 15, 2022, a magistrate’s order was issued denying as
moot SERB’s motion to dismiss based on the filing of the amended complaint.
{¶ 27} 21. On September 26, 2022, SERB filed its answer to the amended
complaint.
{¶ 28} 22. On October 26, 2022, a magistrate’s order was issued finding that
because SERB had filed an answer to the amended complaint and an order setting forth
a schedule for the submission of evidence and briefs had already been issued, the
Association’s amended application for an alternative writ of mandamus was moot. The
magistrate found that because material facts were in dispute, it did not appear beyond
doubt at that time that the Association was entitled to the requested extraordinary relief.
As a result, the magistrate concluded no other relief was appropriate at that time.
{¶ 29} 23. On May 9, 2023, the Association filed a motion for leave to file motion
for an order which allows amendment of the record.
{¶ 30} 24. On June 26, 2023, counsel for the Association filed a motion to
withdraw as counsel of record, stating that it was the understanding of counsel that the
Association was in the process of retaining new counsel. Counsel further stated that the
Association had been notified that its presence was required at any subsequent hearing
dates.
{¶ 31} 25. On July 13, 2023, a magistrate’s order was issued granting the June 26,
2023 motion to withdraw.
{¶ 32} 26. On May 29, 2024, a magistrate’s order was issued noting that service of
the July 13, 2023 magistrate’s order appeared to have failed and that substitute counsel
for the Association had not filed a notice of appearance. Because of the Association’s
status as entity not capable of proceeding pro se, substitute counsel was required to file a
No. 22AP-480 11
notice of appearance within 30 days. No such notice has been filed as of the date of this
decision.
II. Discussion and Conclusions of Law
{¶ 33} The Association seeks extraordinary relief in mandamus, asserting that
SERB erred in finding no probable cause existed to believe the City committed an unfair
labor practice.
A. Mandamus
{¶ 34} A writ of mandamus is an extraordinary remedy “ ‘issued in the name of the
state to an inferior tribunal, a corporation, board, or person, commanding the
performance of an act which the law specifically enjoins as a duty.’ ” State ex rel. Russell v.
Klatt, 159 Ohio St.3d 357, 2020-Ohio-875, ¶ 7, quoting R.C. 2731.01. See State ex rel.
Blachere v. Tyack, 10th Dist. No. 22AP-478, 2023-Ohio-781, ¶ 13 (stating that the
purpose of mandamus is to compel the performance of an act that the law specifically
enjoins as a duty resulting from an office, trust, or station). In order for a writ of
mandamus to issue here, the Association must establish by clear and convincing evidence:
(1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the SERB
to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Gil-Llamas v. Hardin, 164 Ohio St.3d 364, 2021-Ohio-1508, ¶ 19. “ ‘Clear and
convincing evidence’ is a measure or degree of proof that is more than a preponderance
of the evidence but less than the beyond-a-reasonable-doubt standard required in a
criminal case; clear and convincing evidence produces in the trier of fact’s mind a firm
belief of the fact sought to be established.” State ex rel. Ware v. Crawford, 167 Ohio St.3d
453, 2022-Ohio-295, ¶ 14, citing State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio
St.3d 350, 2013-Ohio-3720, ¶ 14.
B. Unfair Labor Practices under the Ohio Public Employees Collective
Bargaining Act
{¶ 35} Prior to the enactment of the Ohio Public Employees Collective Bargaining
Act (“the Act”), which is codified in R.C. Chapter 4117, “Ohio had no legal framework
governing public-sector labor relations, and dealt with these issues on an ad hoc basis.”
State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Emp. Relations Bd.,
22 Ohio St.3d 1, 5 (1986). Without this legal framework, public employees had no
No. 22AP-480 12
constitutional or statutory right to collectively bargain or strike. Franklin Cty. Law
Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9, 59 Ohio St.3d
167, 169 (1991). The Act’s enactment in 1984 “established a comprehensive framework for
the resolution of public-sector labor disputes by creating a series of new rights and setting
forth specific procedures and remedies for the vindication of those rights.” Id. The
purpose of the Act was to “minimize public-sector labor conflict and to provide a
mechanism for resolving disputes when they arise.” Dayton Fraternal Order of Police
at 6. In furtherance of the Act’s purpose, SERB was created as an agency of the state of
Ohio with the charge of administering the Ohio Public Employees Collective Bargaining
Act. State ex rel. Brecksville Edn. Assn. v. State Emp. Relations Bd., 74 Ohio St.3d 665,
666 (1996); R.C. 4117.02. The Act recognizes that public employers and employees,
including employee organizations, have a right to be free from unfair labor practices, as
such practices are defined in R.C. 4117.11. Franklin Cty. Law Enforcement Assn. at 169.
{¶ 36} SERB possesses “exclusive jurisdiction to determine the validity, or lack
thereof, of unfair labor practices.” City of E. Cleveland v. E. Cleveland Firefighters Local
500, I.A.F.F., 70 Ohio St.3d 125, 127 (1994). See R.C. 4117.12(A); Franklin Cty. Law
Enforcement Assn. at 170 (“SERB has exclusive jurisdiction to decide matters committed
to it pursuant to R.C. Chapter 4117.”); State ex rel. Cleveland v. Sutula, 127 Ohio St.3d
131, 2010-Ohio-5039, ¶ 20. R.C. 4117.12(B) governs the process employed by SERB to
determine the validity of unfair labor practice charges, providing as follows: “When
anyone files a charge with [SERB] alleging that an unfair labor practice has been
committed, [SERB] or its designated agent shall investigate the charge. If [SERB] has
probable cause for believing that a violation has occurred, [SERB] shall issue a complaint
and shall conduct a hearing concerning the charge.”
{¶ 37} Because probable cause is not defined in R.C. Chapter 4117, the Supreme
Court of Ohio has found that it must be accorded its ordinary meaning. State ex rel.
Portage Lakes Edn. Assn. v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-
2839, ¶ 37. Thus, “SERB 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 ¶ 38. See State ex rel. Teamsters Local Union
No. 284 v. State Emp. Relations Bd., 10th Dist. No. 20AP-307, 2021-Ohio-3318, ¶ 14. “In
No. 22AP-480 13
making its determination, SERB will consider not only the evidence that supports the
allegations of the charge but also, of course, any information that may rebut the charge or
offer a defense to the violation alleged. Issues such as managerial justification, the
absence of protected activity by a charging party, or the failure to show any indication of
unlawful motivation may be sufficient to secure dismissal of a case even when the facts
alleged in the charge have been verified.” (Citation and quotation omitted.) Portage Lakes
at ¶ 40. In this way, the court likened SERB’s probable cause determination to that of a
prosecutor investigating a citizen’s complaint of criminal activity. Id. at ¶ 39-40. The
charging party bears the initial burden of demonstrating that an unfair labor practice has
occurred. State ex rel. Fuller v. State Emp. Relations Bd., 193 Ohio App.3d 272, 2011-
Ohio-1599, ¶ 28 (10th Dist.).
{¶ 38} Mandamus is the appropriate action to challenge SERB’s dismissal of an
unfair labor practice charge for lack of probable cause. State ex rel. Serv. Emp. Internatl.
Union, Dist. 925 v. State Emp. Relations Bd., 81 Ohio St.3d 173 (1998), paragraph one of
the syllabus. See Ohio Assn. of Pub. School Emp., Chapter 643, AFSCME/AFL-CIO v.
Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159, 161 (1991) (stating that “a
decision by SERB whether or not to issue a complaint in an unfair labor practice case is
not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D)”). The
Supreme Court of Ohio has held that “SERB is under a clear legal duty to issue a complaint
concerning an unfair labor practice charge when SERB's investigation of that charge
reveals the existence of probable cause to believe that an unfair labor practice has been
committed.” Serv. Emp., 81 Ohio St.3d at 179. See State ex rel. Hall v. State Emp.
Relations Bd., 122 Ohio St.3d 528, 2009-Ohio-3603, ¶ 19 (stating that “[t]his
determination is generally factual, and courts cannot substitute their judgment for that of
SERB if there is conflicting evidence”).
{¶ 39} A court reviews SERB’s determination to dismiss an unfair labor practice
charge for an abuse of discretion. State ex rel. Leigh v. State Emp. Relations Bd., 76 Ohio
St.3d 143, 145 (1996); State ex rel. Professionals Guild v. State Emp. Relations Bd., 10th
Dist. No. 08AP-417, 2009-Ohio-2155, ¶ 12 (stating that in considering the evidence “the
question before us is not whether we disagree with SERB’s determination that probable
cause did not exist, but whether SERB abused its discretion in so concluding”). “An abuse
No. 22AP-480 14
of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.” State
ex rel. Stiles v. School Emps. Retirement Sys., 102 Ohio St.3d 156, 2004-Ohio-2140, ¶ 13.
See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 39.
C. Whether SERB Abused its Discretion by Dismissing the Unfair Labor
Practice Charge Against the City
{¶ 40} Before addressing the merits of this matter, it is necessary to resolve the
Association’s May 9, 2023 motion for leave to file motion for an order which allows
amendment of the record. In its memorandum in support of the motion, the Association
states that it seeks to add evidence to the record reflecting events that occurred after SERB
issued its decision dismissing the unfair labor practice charge. “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,
2002-Ohio-2839, at ¶ 55. See State ex rel. Hamilton Cty. Bd. of Commrs. v. State Emp.
Relations Bd., 102 Ohio St.3d 344, 2004-Ohio-3122, ¶ 21; Davis v. State Emp. Relations
Bd., 10th Dist. No. 13AP-40, 2013-Ohio-3545, ¶ 12; Hall at ¶ 37. Because SERB’s May 9,
2023 motion seeks to add matters to the record that were not before SERB at the time it
made its probable cause determination, this motion must be denied.
{¶ 41} At issue in this matter is whether SERB abused its discretion by dismissing
the Association’s unfair labor practice charge for lack of probable cause. The Association
asserted in its unfair labor practice charge that the City violated R.C. 4117.11(A)(5). This
statute provides it is an unfair labor practice for a public employer, including its agents or
representatives, to “[r]efuse to bargain collectively with the representative of his
employees recognized as the exclusive representative or certified pursuant to [R.C.
Chapter 4117].” R.C. 4117.11(A)(5).
{¶ 42} The Association argues the City committed a violation of R.C. 4117.11(A)(5)
by engaging in surface bargaining, a form of bad-faith bargaining. “The absence or
presence of good-faith bargaining is determined objectively based on a consideration of
the totality of the circumstances.” State ex rel. Mun. Constr. Equip. Operators’ Labor
Council v. Ohio State Emp. Relations Bd., 10th Dist. No. 15AP-471, 2017-Ohio-2624, ¶ 19,
citing Akron v. State Emp. Relations Bd., 9th Dist. No. 26227, 2013-Ohio-1213, ¶ 7. “The
No. 22AP-480 15
circumvention of the duty to bargain is unlawful, regardless of subjective good faith.”
Mun. Constr. at ¶ 19. “ ‘In applying the totality of the circumstances test, permissible
“hard bargaining” is distinguishable from bargaining in bad faith.’ ” Id., quoting Akron at
¶ 7, citing Twinsburg City School Dist. Bd. v. State Emp. Relations Bd., 172 Ohio App.3d
535, 2007-Ohio-957, ¶ 16 (9th Dist.). In Akron, the court explained distinguishing
permissible hard bargaining from impermissible surface bargaining as follows:
In the private sector, when a party is found to have used
negotiation techniques to frustrate or avoid mutual
agreement, that party is said to have engaged in “surface
bargaining.” A party is alleged to have engaged in surface
bargaining based upon the totality of its conduct at or away
from the bargaining table, since an intent to frustrate an
agreement is rarely articulated. “More than in most areas of
labor law, distinguishing hard bargaining from surface
bargaining calls for sifting a complex array of facts, which
taken in isolation may often be ambiguous.” “[I]f the Board is
not to be blinded by empty talk and by the mere surface
motions of collective bargaining, it must take some
cognizance of the reasonableness of the positions taken by an
employer in the course of bargaining negotiations.” Although
an employer may be willing to meet at length and confer with
the union, the employer has refused to bargain in good faith if
it merely goes through the “motions” of bargaining, such as
where an employer offers a proposal that cannot be accepted,
along with an inflexible attitude on major issues and no
proposal of reasonable alternatives.
Akron at ¶ 7, quoting In re Springfield Local School Dist. Bd. of Edn., SERB No. 97-007,
1997 WL 34638264, *7 (Feb. 6, 1997).
{¶ 43} The Association argues the City’s failure to present a wage proposal and
alleged plan to engage in pattern bargaining constituted bad-faith surface bargaining.
Pattern bargaining has been described as a negotiation method in which an employer first
reaches an agreement on terms and conditions with one of its unions that it then seeks to
apply as a pattern or standard in its negotiations with other unions. See Globe Newspaper
Co. v. Internatl. Assn. of Machinists, Local 264, 648 F.Supp.2d 193, 195 (D.Mass.2009),
fn. 3 (“The Globe has typically engaged in ‘pattern bargaining’ with its various unions.
Under this negotiation method, the Globe reaches a lead wage settlement with one of the
larger unions and then follows the ‘pattern’ from that settlement with each of the other
unions.”). Alternatively, this method has been employed by unions through securing an
No. 22AP-480 16
agreement with a particular employer in order to set terms of collective bargaining
agreements across an entire industry. See KSW Mechanical Servs. v. Mechanical Contrs.
Assn. of New York, S.D.N.Y. No. 11 Civ. 5100, 2012 U.S. Dist. LEXIS 42248, at *8-9
(Mar. 27, 2012) (“In typical pattern bargaining, a union reaches an agreement with an
employer that sets the pattern for the entire industry. Subsequently, other companies
agree to the same provisions as a means of equalizing labor costs. Pattern bargaining
results in the same wages, benefits, and working conditions for all employees in an
industry.”).
{¶ 44} In support of its allegations of pattern bargaining, the Association points to
evidence outside the record.1 There is no indication the information alleged by the
Association was before SERB when it reached its decision dismissing the Association’s
unfair labor practice charge. As a result, the Association’s statements made in reliance on
evidence outside the record are disregarded. See Portage Lakes, 2002-Ohio-2839, at ¶ 55.
{¶ 45} In another unfair labor practice case involving the City, SERB considered
circumstances resembling pattern bargaining in determining whether the City had
engaged in surface bargaining. In re Cleveland, SERB No. 2004-004, 2004 OH SERB
LEXIS 28 (Aug. 9, 2004). In Cleveland, before the initial negotiation session between the
City and a union, the City sent, as its initial proposal, a copy of the collective bargaining
agreement it had recently reached with another union. At the negotiation session, the
City’s representative explained that the City did not want to enter into an agreement with
the union that differed substantially from the terms it had reached with its other unions.
The City also stated that “it could not offer different benefits to the Union.” Id. at *5.
Because of the City’s demands that the union accept its wage proposal, the union asked
the City to set aside the issue of wages and move forward to negotiate the remaining items
of concern that the City had reviewed with the union. The City refused, taking the position
that it would not discuss anything further until the union moved off its wage proposal.
{¶ 46} SERB found in that case that the City engaged in bad-faith bargaining
during its negotiation session in violation of R.C. 4117.11(A)(1) and (A)(5). SERB stated
that “[d]espite its protestations that it was not refusing to bargain, the City’s conduct at
1 See Association’s Reply Brief at 3-7 (citing a news article regarding an alleged collective bargaining
agreement between another union and the City).
No. 22AP-480 17
the June 13, 2003 meeting can only be described as ‘surface bargaining’ ” because the City
“refused to engage with the Union in any give-and-take whatsoever.” Id. at *10. The City’s
refusal to “make any counterproposals to the Union’s opening counterproposal” indicated
that although the City was “willing to ‘meet and confer’ with the Union,” it was “not willing
to propose any reasonable alternatives.” Id. at *10-11. SERB also cited the City’s
termination of the negotiation session after rejecting the union’s suggestion to table the
issue of wages and move to negotiate other items as an example of the City’s “inflexible
attitude” that constituted bad-faith surface bargaining. Id. at ¶ 11.
{¶ 47} In this case, multiple factors support finding SERB did not abuse its
discretion by determining there was not probable cause to support the charged violation
of R.C. 4117.11(A)(5). First, the Association points to no authority directly holding that
pattern bargaining constitutes a per se violation of R.C. 4117.11(A)(5). Although SERB
addressed circumstances that could constitute pattern bargaining in Cleveland, SERB did
not hold that pattern bargaining alone rendered the City’s actions in that case a violation
of the statutory duty to bargain collectively.
{¶ 48} Next, the totality of the facts and circumstances of this case do not support
finding SERB abused its discretion. Here, unlike the circumstances resembling pattern
bargaining in Cleveland, the City did not state that it would only offer the same benefits
to the Association that it had agreed to with another union. Indeed, at the time the
Association brought its unfair labor practice charge, there is no evidence that the City had
agreed to terms and conditions with one of the other unions with which it was negotiating.
Moreover, unlike in Cleveland and Akron, there is no evidence in this case demonstrating
that the City refused to engage with the Association in any give-and-take. The City did not
offer “a proposal that cannot be accepted, along with an inflexible attitude on major issues
and no proposal of reasonable alternatives.” Akron at ¶ 7. Instead, the City presented
justifications for its delay in commencing negotiations and presenting a wage proposal.
The City also attempted to negotiate other proposals while it prepared to negotiate wages.
On the other hand, there existed evidence that the Association failed or refused to present
proposals on other topics or counterproposals to those offered by the City on nonwage-
related matters.
No. 22AP-480 18
{¶ 49} Additionally, among other particular facts and circumstances separating
this matter from that in Cleveland, the timing of negotiations coincided with a change in
the City’s administration, including the mayor and labor relations director, and the
conclusion of the City’s budgeting process. The Association does not point to cases
demonstrating the delay in commencing negotiations or presenting a wage proposal,
especially when considered in light of the City’s proffered explanations and expressed
willingness to negotiate on other proposals, constituted a refusal to bargain within the
meaning of R.C. 4117.11(A)(5). Finally, unlike in Cleveland, the City did not walk away
from or close the negotiations—the Association did.
{¶ 50} In support of its arguments, the Association cites to In re Rootstown Local
School Dist. Bd. of Edn., SERB No. 2011-004, 2011 OH SERB LEXIS 25 (July 7, 2011).2
(Association’s Brief at 7.) In Rootstown, the union alleged that the public employer
engaged in bad-faith bargaining in violation of R.C. 4117.11(A)(1) and (A)(5) by failing to
maintain the status quo ante during negotiations for a successor collective bargaining
agreement with the union. SERB found that good-faith bargaining was determined by
looking to the totality of the circumstances. SERB found the employer violated
R.C. 4117.11(A)(5) when it unilaterally instituted a wage and step freeze during
negotiations prior to exhausting the dispute resolution procedure for a successor
agreement. Yet, under the totality of the circumstances, SERB concluded that the
employer’s actions did not interfere with, restrain, or coerce bargaining-unit employees
in the exercise of their rights in violation of R.C. 4117.11(A)(1).
{¶ 51} Other than the allegation of a violation of R.C. 4117.11(A)(5), Rootstown
presents an entirely different set of factual circumstances from those present in this
matter. It is undisputed that the City and the Association continued to operate under the
terms of the prior CBA during negotiations. Rootstown does not support finding SERB
2 Other case citations appear in the Association’s table of contents in its merit brief. However, the
Association does not specifically cite these cases in its arguments. Nor does the Association explain how
these cases apply to this matter. It is unclear as to whether the Association intended to cite these cases or
whether their inclusion in the table of contents was mere typographical error. Some evidence supports
finding these to be a typographical error, as the table of contents lists pages that do not appear in the
Association’s brief. The Association bears the burden of demonstrating entitlement to a writ of mandamus.
Mun. Constr., 2017-Ohio-2624, at ¶ 5. Due to the absence of any indication of how these cases support the
Association’s arguments, the magistrate disregards the citations appearing only in the Association’s table
of contents in its merit brief.
No. 22AP-480 19
committed an abuse of discretion in dismissing the Association’s unfair labor practice
charge.
{¶ 52} Considering the totality of facts and circumstances in the record, the
Association has not demonstrated SERB abused its discretion by failing to find the City
was bargaining in bad faith or refusing to bargain. The record does not support finding
SERB abused its discretion by failing to conclude that the City was engaging in surface
bargaining or improper pattern bargaining. As a result, the Association has not shown
SERB erred by dismissing the Association’s unfair labor practice charge for lack of
probable cause.
D. Conclusion
{¶ 53} Based on the foregoing, the Association has not established a clear legal
right to the requested relief or that SERB was under a clear legal duty to provide it.
Accordingly, it is the decision and recommendation of the magistrate that the
Association’s request for a writ of mandamus should be denied. Furthermore, the
magistrate recommends denying the Association’s May 9, 2023 motion for leave to file
motion for an order which allows amendment of the record.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.