The opinion
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State Employment Relations Board, Appellee; Kelley, Appellant,
v. Adena Local School District Board of Education, Appellee.
[Cite as State Emp. Relations Bd. v. Adena Local School Dist.
Bd. of Edn. (1993), Ohio St.3d .]
State Employment Relations Board -- Unfair labor practice
charge -- "In part" test used to determine the actual
motivation of an employer charged with an unfair labor
practice, construed and applied.
(No. 92-135 -- Submitted February 10, 1993 -- Decided June
23, 1993.)
1. The "in part" test to determine the motivation of an
employer charged with an unfair labor practice is mandated
by R.C. Chapter 4117.
2. Under the "in part" test to determine the actual motivation
of an employer charged with an unfair labor practice, the
proponent of the charge has the initial burden of showing
that the action by the employer was taken to discriminate
against the employee for the exercise of rights protected
by R.C. Chapter 4117. Where the proponent meets this
burden, a prima facie case is created which raises a
presumption of antiunion animus. The employer is then
given an opportunity to present evidence that its actions
were the result of other conduct by the employee not
related to protected activity, to rebut the presumption.
The State Employment Relations Board then determines, by a
preponderance of the evidence, whether an unfair labor
practice has occurred.
Appeal from the Court of Appeals for Ross County, No. 1732.
Appellant, Daniel Kelley, began employment as a vocational
agriculture teacher at Adena High School on July 1, 1976.
Appellee, Adena Local School District Board of Education ("the
board of education"), employed appellant under a series of
limited contracts, including a five-year limited contract which
expired in 1984. In April 1984, the board of education issued
appellant a two-year probationary contract, and declined to
issue the continuing contract for which he was eligible. The
board of education, in issuing the probationary contract,
followed the recommendations of Kenneth Putnam, principal of
Adena High School, and Paul D. Murphy, superintendent of
schools.
In addition to classroom instruction, appellant's duties
as a teacher of vocational agriculture included visitation of
students to observe their employment in agriculture-related
businesses. In observing students, appellant was required to
visit their places of employment in the afternoons several
times during the school year, and also to make visits in the
summer under an extended service contract. Principal Putnam's
reasons for recommending a probationary contract rather than a
continuing one centered around his belief that appellant had
failed to follow instructions from Putnam and Murphy requiring
appellant to provide, and to adhere to, an accurate daily work
schedule on the extended service days.
Several months before recommending that appellant receive
a probationary contract, Principal Putnam, in an evaluation of
appellant's performance dated February 28, 1984, graded
appellant as "effective" in most evaluated areas. Appellant
was graded as "needs improvement" in some areas, including
establishing goals, keeping accurate records, accepting
responsibility, and dependability. Appellant did not receive a
grade of "unsatisfactory" in any of the twenty-two evaluation
areas. The key at the top of the evaluation form explains that
a grade of "effective" means that a teacher's performance has
"[m]et district expectations" in that area; a grade of
"unsatisfactory" means that the teacher's performance "[d]id
not meet district expectations" and was a "possible
consideration for non-renewal."
Superintendent Murphy advised appellant of Putnam's
recommendation of a probationary contract, informing appellant
that Murphy would support Putnam's recommendation. Murphy also
informed appellant that his contract status would be evaluated
at the end of the two-year period, at which time appellant
either would be offered a continuing contract or would be
nonrenewed pursuant to R.C. 3319.11. Murphy related to
appellant that the future evaluation would be based on the
following three factors:
"1. Your providing Mr. Putnam with an accurate daily work
schedule for your extended service days and time spent outside
of the classroom to meet Mr. Putnam's approval.
"2. The fact that you will meet the above mentioned
schedule when provided unless prior notice is served to Mr.
Putnam that you have to make changes.
"3. The fact that you will follow through and meet the
obligations of any or all above mentioned schedule changes to
the satisfaction of Mr. Putnam."
Appellant, a member of the Adena Education Association
("the teachers' union"), which had a collective bargaining
agreement with the school board, filed a grievance in June
1984, claiming that the failure to offer a continuing contract
violated the agreement. Appellant's grievance also objected to
the placement of an anonymous "survey" in his personnel file,
which detailed alleged instances of appellant's failure to
comply with his student visitation schedule. The grievance was
submitted to arbitration, with the arbitrator determining that
the board of education did not violate the collective
bargaining agreement when it offered a two-year probationary
contract. However, the arbitrator did sustain the second part
of the grievance, and ordered the survey removed from
appellant's personnel file. The arbitrator found that
Principal Putnam, who acknowledged preparing the survey,
violated the agreement by not discussing the document with
appellant beforehand, or at least alerting appellant that the
survey was in the file.
During the appellant's two-year probationary period,
school officials evaluated his job performance several times.
In an evaluation dated January 30, 1985, Principal Putnam again
graded appellant as "effective" in most areas, this time
including the area of keeping accurate records. Appellant was
graded as "needs improvement" in some areas, including
accepting responsibility and dependability. Once again,
appellant received no grade of "unsatisfactory."
Putnam subsequently assumed the post of superintendent of
the school district in 1985. Putnam's successor as principal
of Adena High School, Jake Grooms, in an evaluation dated
November 20, 1985, graded appellant as "effective" in most
areas, but as "needs improvement" in two areas: adhering to
board policies and accepting responsibility. Appellant
received no grade of "unsatisfactory." On February 5, 1986,
appellant was graded as "effective" in all areas by Grooms.
Later that month, Grooms recommended to Putnam that appellant
be issued a continuing contract.
On March 27, 1986, Putnam recommended to the board of
education that appellant's teaching contract not be renewed.
In a memorandum explaining his recommendation, Putnam stated:
"Accurate daily work schedules have not been kept." Putnam
went on to list specific instances when appellant either failed
to submit proper work schedules or failed to adhere to
established schedules. In the memorandum, Putnam informed the
board members that a conversation with a supervisor from the
Ohio Agricultural Education Service (which promulgates
guidelines for vocational agriculture teachers) reinforced his
position that "Mr. Kelley's performance in afternoon and
extended time use is below expectancies."
The board of education unanimously accepted Putnam's
recommendation, and in April 1986 appellant's contract was not
renewed. This decision effectively ended appellant's
employment, pursuant to R.C. 3319.11.
On June 30, 1986, the teachers' union filed an unfair
labor practice ("ULP") charge on appellant's behalf with the
State Employment Relations Board ("SERB"). The ULP charge
alleged that appellant was not issued a continuing contract
because he had filed a grievance over the school board's 1984
decision to issue him a two-year limited contract instead of a
continuing contract, and had taken that grievance to
arbitration. Thus, the teachers' union charged that the 1986
nonrenewal decision was motivated by a desire to retaliate
against appellant for the exercise of protected rights, in
violation of R.C. 4117.11(A)(1), (A)(3), and (A)(5).
SERB conducted an investigation and found probable cause
to believe that a ULP had been committed. On August 14, 1987,
SERB issued a complaint alleging that the board of education's
decision to nonrenew appellant "was due in whole or in part
because [sic] the employee had engaged in activities protected
by R.C. Chapter 4117." Paragraph nine of the complaint alleged
that "the employee fulfilled the suggested areas of
professional improvement" following the 1984 issuance of a
probationary contract to appellant.
When SERB issued the complaint, it scheduled an
evidentiary hearing for August 24, 1987. The board of
education moved for a continuance of the hearing, which was
granted by SERB's hearing officer. The hearing was rescheduled
for October 26, 1987. The board of education filed an answer
to the complaint on October 23, 1987. In addition to denying
the allegations that appellant's nonrenewal was based on the
exercise of rights protected by R.C. Chapter 4117, the board of
education also denied paragraph nine of the complaint, thereby
setting forth its position that appellant had not fulfilled the
suggested areas of improvement.
At the hearing, SERB and appellant (who had intervened in
the action) argued that the board of education's answer was
untimely, and moved that the allegations of the complaint be
deemed admitted pursuant to Ohio Adm.Code 4117-7-04(B), which
provides that a failure to file a timely answer shall be deemed
an admission of the complaint's allegations. The hearing
officer granted the motion, finding the board of education's
answer untimely. In so ruling, the hearing officer relied on
R.C. 4117.12(B)(1), which provides that the charged party in a
ULP action "shall within ten days from receipt of the complaint
*** file an answer to the complaint ***." As a result, the
factual allegations of the complaint were deemed admitted,
including the allegation of paragraph nine that appellant had
fulfilled the suggested areas of improvement. However, the
hearing officer ruled that some of the allegations were
conclusory in nature (and not factual) and did not deem those
allegations admitted.
Because the board of education was deemed to have admitted
that appellant had fulfilled the areas of improvement, the
hearing officer precluded the presentation of any evidence to
the contrary on that issue. However, the board of education
was allowed to present evidence that appellant's nonrenewal was
unrelated to the exercise of activities protected by R.C.
Chapter 4117.
SERB's hearing officer issued a proposed order on October
31, 1988, determining that the facts of the case, "while
circumstantial in nature, permit a reasonable inference to be
drawn that Respondent's actions were motivated at least in part
by Kelley's engagement in protected activity." In reaching
this conclusion, the hearing officer relied on the deemed
admission that appellant had fulfilled the suggested areas of
improvement and on appellant's satisfactory performance
evaluations. Because the deemed admission played a major role
in the hearing officer's conclusion, it is impossible to
speculate whether that conclusion would have been different if
appellant's fulfillment of the areas of improvement had not
been accepted as an established fact.
The hearing officer recommended that SERB order the board
of education to immediately offer reinstatement to appellant
with tenure effective at the commencement of the 1986-1987
school year and to compensate him for the same period (minus
unemployment compensation or income from other employment).
In an "Order and Opinion" issued December 29, 1989, SERB
overruled the board of education's exceptions and adopted the
proposed order. SERB determined the hearing officer was
correct in ruling that the board of education's answer was
late, and so found that the factual allegations of the
complaint were appropriately deemed admitted. SERB ultimately
concluded that the board of education committed a ULP in
violation of R.C. 4117.11(A)(1) and (3) when it denied
appellant a continuing contract. In reaching its conclusion,
SERB relied on the deemed admission that appellant had
fulfilled the areas of improvement, appellant's favorable
evaluations, and on Principal Grooms's recommendation to offer
appellant a continuing contract.
In its opinion SERB stated: "*** the preponderance of the
evidence supports the conclusion that Putnam's stated reason
for not renewing Kelley's contract was a pretextual cover for
an intent to retaliate for Kelley's exercise of his protected
contractual grievance rights." SERB thus determined that this
was a "pretext" case (one in which the employer's sole
motivation is to retaliate for the employee's exercise of
protected rights) rather than a "mixed motive" case (one in
which an employer's action is partly motivated by a desire to
retaliate and partly by legitimate reasons). SERB ordered the
board of education to offer appellant a continuing contract,
and awarded appellant back pay, minus any unemployment
compensation or income from other employment received in the
meantime.
The board of education appealed SERB's order to the Ross
County Court of Common Pleas. The board of education
contended, in part, that SERB erred (1) in ruling that the
board of education's answer was untimely and in deeming the
factual allegations of the complaint admitted on that basis,
(2) in finding that the case was one of pretext, and (3) in
finding that appellant's nonrenewal was motivated by antiunion
animus.
After considering the record, a court-appointed referee
issued a report, which sustained the board of education's first
assignment of error. The referee determined that R.C.
4117.12(B)(1), in requiring that an answer to a ULP charge be
filed within ten days of receipt of the complaint, is directory
and not mandatory. Finding no prejudice to SERB in the board
of education's filing its answer prior to the hearing, the
referee found that SERB had erred in deeming the factual
allegations of the complaint admitted.
Rather than recommending remand to SERB for a reevaluation
of the facts, the referee proceeded to review the evidence
relating to whether appellant had fulfilled the areas of
improvement, which SERB had not considered due to the deemed
admissions. The referee's report also partially sustained the
assignment of error regarding the board of education's
motivation, determining that this was not a pretext case.
However, because the referee found that SERB had established
that appellant's nonrenewal was motivated at least in part by a
desire to retaliate against appellant for his exercise of
protected rights in filing the grievance, the referee found
that this was a "mixed motive" case. SERB's position on mixed
motive cases at that time was that if an employer's actions
were motivated at least "in part" by a desire to retaliate
against an employee for the exercise of protected rights, then
the discharge (or nonrenewal in this case) is unlawful. See In
re Gallia-Jackson-Vinton Joint Vocational School Dist. Bd. of
Edn. (Nov. 13, 1986), SERB No. 86-044. The referee applied
that approach, and ultimately recommended that SERB's order be
affirmed, because substantial evidence in the record supported
SERB's conclusion that a ULP occurred. On September 26, 1990,
the court approved the referee's report and adopted it as its
judgment.
The board of education appealed to the Court of Appeals
for Ross County. In its first assignment of error, the board
of education asserted that the trial court erred in finding
this to be a mixed motive case. The board of education argued
that no discriminatory motive was behind the decision to
nonrenew appellant's contract. The court of appeals resolved
this assignment of error by holding that "the court below
abused its discretion in determining that appellant had
committed an unfair labor practice since it should have
remanded the case to SERB after it determined that SERB had
erred in deeming the complaint's factual allegations admitted."1
In its second assignment of error, the board of education
argued that the trial court erred in applying SERB's "in part"
test to this case. The court of appeals decided that the "in
part" test is "not a reasonable interpretation of R.C. Chapter
4117" and that the better approach is the "but for" test, which
allows an employer to prove that an action against an employee
would have been taken regardless of the employee's exercise of
protected rights. Under this test, an employer acting in
retaliation against an employee has not committed a ULP if the
employer can show that the act would have been taken even if
that discriminatory intent had not been present.
The court of appeals ruled that "the judgment of the court
below is reversed and remanded for further proceedings, i.e.,
an ultimate remand to SERB, consistent with this opinion."
The cause is now before this court pursuant to the
allowance of a motion to certify the record.
Lee I. Fisher, Attorney General, and Joseph M. Oser,
Assistant Attorney General, for appellee State Employment
Relations Board.
Cloppert, Portman, Sauter, Latanick & Foley, Susan Hayest
Kozlowski and Mark A. Foley, for appellant.
Means, Bichimer, Burkholder & Baker Co., L.P.A., Matthew
J. DeTemple and Robert T. Baker, for appellee Adena Local
School District Board of Education.
Alice Robie Resnick, J. For the reasons which follow, we
find that the trial court did not abuse its discretion in
ruling that substantial evidence in the record supported SERB's
determination that a ULP occurred. We reverse the judgment of
the court of appeals and reinstate the judgment of the trial
court upholding SERB's order that appellee board of education
offer appellant reinstatement and award him back pay.
I
In Lorain City Bd. of Edn. v. State Emp. Relations Bd.
(1988), 40 Ohio St.3d 257, 259-261, 533 N.E.2d 264, 266-267,
this court explained that different standards of review are to
be applied by a common pleas court and by a court of appeals
when reviewing an order of SERB in a ULP case. When a common
pleas court reviews a SERB order, the court must determine
whether the order is supported by substantial evidence in the
record. This standard of review for a common pleas court is
supplied by R.C. 4117.13(D), which provides that "*** [t]he
findings of the board [SERB] as to the facts, if supported by
substantial evidence, on the record as a whole, are
conclusive." See Lorain City Bd. of Edn., supra, at 259, 533
N.E.2d at 266.
An appellate court, on the other hand, plays a more
limited role than a trial court in reviewing the same SERB
order. The role of the appellate court is to determine whether
the trial court has abused its discretion. The appellate court
must affirm the judgment of the trial court if no abuse of
discretion occurred. Id., 40 Ohio St.3d at 260-261, 533 N.E.2d
at 267.
The trial court in this case reviewed SERB's order and
determined that substantial evidence in the record supported
SERB's conclusion that the board of education committed a ULP.
The court of appeals, in reversing the judgment of the trial
court, held that the trial court abused its discretion in
ruling as it did. We thus examine the decision of the court of
appeals, to determine if that court was correct in holding that
the trial court abused its discretion.
A
The court of appeals based its decision that the trial
court abused its discretion on the trial court's failure to
remand the cause to SERB upon determining that SERB had ruled
improperly that the allegations of the complaint were to be
deemed admitted.2 We recognize that the trial court could have
remanded the cause to SERB, to allow SERB to consider the facts
surrounding the allegations improperly deemed admitted. The
initial question we address is whether the trial court abused
its discretion in failing to remand the cause to SERB.
The court of appeals held that the trial court had a duty
to remand this cause to SERB, and that the failure to remand
constituted an abuse of discretion. It appears that the court
of appeals believed that when the trial court conducted its own
review of the evidence not considered by SERB, the trial court
usurped SERB's role as the finder of fact in ULP cases.
However, even though we may agree that the trial court should
have remanded the cause to SERB, it must be remembered that a
court of appeals must affirm a trial court decision on a SERB
order in a ULP case unless the trial court abused its
discretion. "An abuse of discretion '"' *** implies not merely
error of judgment, but perversity of will, passion, prejudice,
partiality, or moral delinquency.'"'" Lorain City Bd. of Edn.,
supra, 40 Ohio St.3d at 261, 533 N.E.2d at 267, quoting State
ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster
(1986), 22 Ohio St.3d 191, 193, 22 OBR 275, 277, 489 N.E.2d
288, 290.
We cannot agree that the trial court abused its discretion
by not remanding this cause to SERB for further findings of
fact. A thorough examination of the record in this case
reveals that the board of education encouraged the trial court
to conduct its own consideration of the evidence not considered
by SERB. The board of education requested that the trial court
use evidence not considered by SERB to find that the decision
to nonrenew appellant was not retaliatory. Specifically, the
board of education urged the trial court "to reject SERB's
jaundiced 'in part' standard of proof and find that the Board
of Education has rebutted Kelley's prima facie case of
discrimination and that SERB's Opinion and Order should be
reversed."
In considering the evidence which SERB had refused to
consider, the trial court did as the board of education
desired. However, the trial court found circumstantial
evidence of discriminatory intent in the record, and upheld
SERB's finding that a ULP had been committed.3 We find it
incongruous that the board of education should encourage the
trial court to examine the evidence, and then benefit from a
ruling by the court of appeals that the trial court abused its
discretion when it examined the evidence. We hold that the
trial court, in the circumstances of this case, did not abuse
its discretion when it did not remand the cause to SERB.
B
Our inquiry does not stop there. We also consider whether
the trial court abused its discretion when it found substantial
evidence in the record to support the determination that a ULP
occurred. It is apparent that the trial court did not abuse
its discretion in this regard. The trial court recognized that
the good evaluations given to appellant, as well as Principal
Grooms's recommendation that appellant be given a continuing
contract, were substantial circumstantial evidence of a
discriminatory motive behind the decision to nonrenew
appellant. These factors, considered along with appellant's
improvement in setting work schedules and adhering to them (a
finding we accept as factually established based on our
discussion in Part IA of this opinion), clearly constitute
substantial evidence to support the determination that a ULP
occurred.
II
The trial court in this case, after examining the
evidence, determined that the board of education's decision to
nonrenew appellant was motivated both by legitimate and
illegitimate reasons. The trial court then applied what was
SERB's approach at that time in "mixed motive" cases, the "in
part" test adopted in In re Gallia, supra. Because the
employer's action was motivated at least in part by a desire to
retaliate for the participation in a protected activity (filing
a grievance), the trial court found that a ULP had occurred,
and upheld SERB's order.
Upon appeal, the appellate court found that the trial
court erred in applying the "in part" test, because that test
cannot reasonably be reconciled with R.C. Chapter 4117. In
ordering this cause remanded to SERB, the court of appeals
noted that SERB has announced that it will now apply the
so-called "but for" test, which has been applied by the
National Labor Relations Board ("NLRB") since 1980. See In re
Ft. Frye Local School Dist. Bd. of Edn. (July 17, 1991), SERB
No. 91-005. The court of appeals determined that the "in part"
test can lead to absurd results, because a ULP can be found
under that test when an employer's actions are motivated mainly
by legitimate reasons, and only in small part by discriminatory
ones. Thus, the appellate court found that the "but for" test
is mandated by R.C. Chapter 4117.
We do not accept the conclusions drawn by the court of
appeals. We therefore examine the "in part" and "but for"
causation tests in light of R.C. Chapter 4117. We seek to
determine which test, if either, comports with the goals of the
General Assembly when it enacted those statutes, particularly
R.C. 4117.11 (which defines ULPs) and R.C. 4117.12 (which
guides SERB in its disposition of ULP charges).
The motivation behind an employer's decision to take an
action regarding an employee is the central question that must
be resolved in a ULP case. R.C. Chapter 4117 makes it SERB's
responsibility to evaluate the factual situation surrounding a
ULP charge, and to determine whether a ULP has in fact
occurred. Determining the motivation underlying an employer's
decision almost always presents difficulties which are not
easily overcome. Motivation is rarely clear. An employer
charged with a ULP will almost always claim that the particular
action was taken for sound business reasons, totally unrelated
to the employee's participation in protected activities. The
employee will almost always claim that the action was taken to
retaliate for his or her exercise of protected rights. Since
evidence of the employer's motivation is rarely direct, SERB
must rely on a good deal of circumstantial evidence in arriving
at its conclusion. To facilitate consideration of ULP cases,
administrative agencies (e.g., SERB and the NLRB) utilize
causation tests to provide some uniformity in evaluating ULP
charges and to give a reviewing court a framework for
determining if substantial evidence supports the agency's
decision. The "in part" and "but for" approaches are two
examples of such causation tests.
A
R.C. Chapter 4117's treatment of ULP cases is modeled to a
large extent on the federal statutes that empower the NLRB to
resolve ULP charges in cases within its jurisdiction. Larson,
Ashmus, Bumpass & Ward, Public Sector Collective Bargaining:
The Ohio System (1984) 100. Thus, consideration of the NLRB's
experience in applying the "in part" and "but for" tests can be
instructive in resolving which test, if either, best
accomplishes the goals embodied in Ohio's statutes regarding
ULPs.
Between the 1930s and 1980, the NLRB, when evaluating ULP
charges, applied the "in part" test. The NLRB construed the
National Labor Relations Act ("NLRA"), Section 151 et seq.,
Title 29, U.S.Code, to provide that a ULP has occurred when the
NLRB finds that an employer's action was taken at least in part
to discriminate against an employee for engaging in protected
activities, regardless of other reasons for the action. See,
e.g., Consumers' Research, Inc. (1936), 2 N.L.R.B. 57, 73 (if
antiunion animus plays any part in a discharge decision, a
violation of the NLRA occurs); Dow Chem. Co. (1939), 13
N.L.R.B. 993, 1023, enforced in relevant part (C.A.6, 1941),
117 F.2d 455 (a violation occurs if the employer acts out of
antiunion bias "whether or not the [employer] may have had some
other motive in addition to that of repressing [protected
activity] and without regard to whether or not the [employer's]
asserted motive was lawful").
In 1980, in Wright Line, Div. of Wright Line, Inc. (1980),
251 N.L.R.B. 1083, enforced (C.A.1, 1981), 662 F.2d 899,
certiorari denied (1982), 455 U.S. 989, 102 S.Ct. 1612, 71
L.Ed.2d 848, the NLRB changed the analysis it applied in
resolving ULP cases. In Wright Line, the NLRB adopted a
causation test commonly called the "but for" test, in an
attempt to alleviate dissatisfaction over the "in part" test
expressed by several federal courts of appeals. Id., 251
N.L.R.B. at 1083.4
In Wright Line, 251 N.L.R.B. at 1089, the NLRB set forth
the following test to evaluate employer motivation in ULP cases:
"First, we shall require that the General Counsel [of the NLRB]
make a prima facie showing sufficient to support the inference
that protected conduct was a 'motivating factor' in the
employer's decision. Once this is established, the burden will
shift to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct."
The Wright Line test allows the employer to present its
alleged legitimate reasons for its actions as an affirmative
defense. This causation test is commonly called the "but for"
test because it establishes that a ULP has occurred when the
evidence shows that "but for" the exercise of protected
activity, the employer's action (e.g., a discharge) regarding
the employee would not have been taken.
The Wright Line test was not uniformly embraced by the
federal courts of appeals. See Comment, Transportation
Management: The Validation of Wright Line (1984), 2 Hofstra
Labor L.J. 185, 193-194. However, in Natl. Labor Relations Bd.
v. Transp. Mgt. Corp. (1983), 462 U.S. 393, 103 S.Ct. 2469, 76
L.Ed.2d 667, the United States Supreme Court held that the
NLRB's Wright Line test was a permissible construction of the
NLRA, and was entitled to deference. The court also found that
the "in part" test applied before Wright Line "was plainly
rational and acceptable." Transp. Mgt., 462 U.S. at 399, 103
S.Ct. at 2473, 76 L.Ed.2d at 673.
B
As we have said, the ULP provisions of Ohio's R.C. Chapter
4117 are modeled in many respects upon the NLRA. Since the
General Assembly enacted R.C. Chapter 4117 to be effective in
1984, we may safely assume that that body was aware of the
controversy in the federal courts concerning the NLRB's
application of the "in part" and "but for" tests, and of Wright
Line and Transp. Mgt. Both appellant and the board of
education in this case argue that the General Assembly intended
to codify a causation test in R.C. Chapter 4117, although they
of course disagree as to which test was adopted.
A ULP occurs when an employer takes an action regarding an
employee that is motivated by antiunion animus. See R.C.
4117.12(A) and 4117.11(A). R.C. 4117.12(B) details the
procedure SERB is to follow in taking evidence, and in
evaluating that evidence, to determine if a party has engaged
in a ULP. R.C. 4117.12(B)(3) requires SERB to decide, based
upon the preponderance of the evidence, whether the charged
party has engaged in a ULP, and to act on its determination by
issuing an order. The order to be issued by SERB is further
explained in R.C. 4117.12(B)(4). That statute specifically
provides: "No order of the board [SERB] shall require the
reinstatement of any individual as an employee who has been
suspended or discharged, or require the payment to him of any
back pay, if the suspension or discharge was for just cause not
related to rights provided in section 4117.03 of the Revised
Code ***."
Appellant reads R.C. Chapter 4117, and particularly R.C.
4117.12(B)(4), as requiring the "in part" test to determine
causation in ULP cases. The board of education urges that R.C.
Chapter 4117 mandates the Wright Line "but for" method of
analysis. The trial court in this case found that appellant's
interpretation was correct. The court of appeals, in reversing
the trial court, held that the "in part" test is not a
reasonable interpretation. Furthermore, SERB, in Ft. Frye,
supra, has abandoned the "in part" test in favor of the "but
for" test. In Ft. Frye, SERB specifically cited the trial
court's opinion in this case, and disagreed with the trial
court's interpretation of R.C. Chapter 4117. Thus, both the
court of appeals in this case and SERB in Ft. Frye have found
that the Wright Line approach is the correct test to determine
employer motivation in ULP cases.
Initially, we cannot agree with the court of appeals that
the "in part" test is not a reasonable interpretation of R.C.
Chapter 4117. The "in part" test, because it focuses on the
employer's motivation and requires a finding that a ULP has
been committed when it is established that the motivation is
improper, obviously comports with R.C. Chapter 4117. Clearly,
when a preponderance of the evidence supports a finding that an
employer acted at least in part to discriminate against an
employee for the exercise of protected rights, SERB's finding
of a ULP is a reasonable interpretation of the statutory
directive.
We also do not agree with the court of appeals that R.C.
Chapter 4117, and in particular R.C. 4117.12(B)(4), call for
the "but for" test. In our view, the Wright Line "but for"
method cannot be reconciled with R.C. Chapter 4117. Allowing
the employer to present, as an affirmative defense, all the
alleged legitimate reasons supporting the action against the
employee turns the focus of the inquiry away from the
employer's motivation. The inquiry instead then becomes
focused on the employee's work record, and SERB's factual
consideration becomes subsumed by both the employer's and
employee's evidence on that question. Even though SERB has
necessarily already concluded that the employer was motivated
by improper reasons before the employer needs to present this
evidence, the employer's improper motivation is sanctioned so
long as the employer can convince the factfinder to accept its
view of the employee's work history.5
Contrary to the assertions of the board of education, R.C.
4117.12(B)(4) does not authorize the "but for" test. That
statute provides that SERB may not order the reinstatement of
any individual "if the suspension or discharge was for just
cause not related to rights provided in section 4117.03 of the
Revised Code ***." We find that this statute, by limiting
SERB's order when the employer's action was "not related to"
protected rights, further emphasizes that a ULP must be found
when an employer's motivation is improper. The "but for" test,
because it turns the inquiry away from the employer's
motivation, is not a reasonable interpretation of R.C. Chapter
4117.6
Even though we have found the "but for" approach to be
inconsistent with R.C. Chapter 4117, we also find that, unless
the employer is given an opportunity to counter the evidence
presented by the employee, the "in part" approach will not be
the most accurate test. When, for example, it is determined
that antiunion animus played a minuscule part in the employer's
decision regarding an employee, a literal application of the
"in part" test would appear to mandate a finding that the
employer committed a ULP. We find that R.C. Chapter 4117 does
not require SERB to conclude that a ULP occurred in that
circumstance. The "in part" test must not be applied so
narrowly. Rather, the "in part" approach must be broad enough
to take into account the actual or true motive of the
employer. Thus, only when the employer's decision regarding
the employee was actually motivated by antiunion animus must a
ULP be found. In determining actual motivation in the context
of the "in part" test, the requirements of R.C. Chapter 4117
are best fulfilled when SERB considers the evidence before it
in the framework of a single inquiry, focusing on intent of the
employer.
Hence, we hold that the "in part" test to determine the
motivation of an employer charged with a ULP is mandated by
R.C. Chapter 4117. We further hold that under the "in part"
test to determine the actual motivation of an employer charged
with a ULP, the proponent of the charge has the initial burden
of showing that the action by the employer was taken to
discriminate against the employee for the exercise of rights
protected by R.C. Chapter 4117. Where the proponent meets this
burden, a prima facie case is created which raises a
presumption of antiunion animus. The employer is then given an
opportunity to present evidence that its actions were the
result of other conduct by the employee not related to
protected activity, to rebut the presumption. SERB then
determines, by a preponderance of the evidence, whether a ULP
has occurred.
When the "in part" test is properly applied it results in
a determination of the actual motive of the employer in taking
the action. This approach allows SERB to consider the
employee's work history, but only as circumstantial evidence of
the employer's motivation, and not as a separate inquiry
characterized as an affirmative defense. Thus, application of
the "in part" test in this manner allows SERB, in resolving ULP
charges, to focus on the important inquiry--the motivation of
the employer. The problems associated with the "but for" test
and its burden-shifting, wrongly focused, bifurcated inquiry
are avoided.
We realize that recognizing actual motivation to be a
component of the "in part" test will not necessarily make
SERB's task in determining employer motivation an easy one.
SERB must still evaluate the evidence presented to determine if
antiunion animus actually motivated the employer to take the
action against the employee. However, we are confident that
this causation analysis will allow SERB to comport more closely
with the requirements of R.C. Chapter 4117 in resolving ULP
cases.
C
In applying the preceding discussion to the facts of this
case, we find that the trial court did not err in applying the
"in part" test to determine causation. At the time the trial
court rendered its judgment, the "in part" test of In re Gallia
was the approach applied by SERB to resolve ULP cases. As
explained above, that approach was a reasonable interpretation
of R.C. Chapter 4117.
III
Conclusion
Based on our discussion in Part I of this opinion, the
trial court did not abuse its discretion in finding that
appellant's nonrenewal was motivated by antiunion animus.
Based on our discussion in Part II of this opinion, we hold
that the trial court correctly applied the law to its finding
to reach an appropriate conclusion. The judgment of the court
of appeals is reversed, and the judgment of the trial court is
reinstated.7
Judgment reversed.
A.W. Sweeney, Douglas, F.E. Sweeney and Pfeifer, JJ.,
concur.
Moyer, C.J., and Wright, J., concur in part and concur in
judgment.
FOOTNOTES:
1 Neither SERB nor appellant appealed from the trial court's
decision that SERB erred in deeming the factual allegations of
the complaint admitted.
2 Because no appeal was taken from the trial court's
determination that SERB erred in ruling that the allegations of
the complaint were to be deemed admitted, we must assume that
the trial court ruled correctly, and that the allegations of
the complaint should not have been deemed admitted.
3 It is significant that SERB's record contained other
circumstantial evidence of discriminatory motivation in
addition to those factual allegations of the complaint which
were deemed admitted. The trial court did not conduct a new
consideration of all factual material, only of that which it
found SERB should have considered but did not. This was not a
situation in which the trial court made factual findings based
totally on evidence never considered by SERB.
4 The NLRB in Wright Line borrowed the causation test from the
decision of the United States Supreme Court in Mt. Healthy City
School Dist. Bd. of Edn. v. Doyle (1977), 429 U.S. 274, 97
S.Ct. 568, 50 L.Ed.2d 471, in which an employee asserted that
his discharge was motivated by a desire to retaliate against
him for his exercise of First Amendment rights. The Supreme
Court in Mt. Healthy held that the plaintiff first had to show
that the employer's dissatisfaction with the plaintiff's
exercise of First Amendment protected activity played some role
in the employer's decision to discharge him. Once that showing
was established, the burden then was on the employer to show
that the discharge would have occurred even if no motive to
punish the plaintiff for his First Amendment activity had been
present. Id. at 287, 97 S.Ct. at 576, 50 L.Ed.2d at 484.
5 The board of education cites our recent decision in
Cleveland Civ. Serv. Comm. v. Ohio Civ. Rights Comm. (1991), 57
Ohio St.3d 62, 565 N.E.2d 579. The board of education argues
that that case, which involved application of R.C. Chapter 4112
to a discrimination case, compels application of the "but for"
test in the present case. We find that Cleveland Civ. Serv.
Comm., because it did not involve R.C. Chapter 4117, is not
persuasive.
6 We are aware of the need to afford due deference to SERB's
interpretation of R.C. Chapter 4117. See Lorain City Bd. of
Edn., supra, paragraph two of the syllabus. However, when
SERB's interpretation cannot be reconciled with the explicit
language of R.C. Chapter 4117, that interpretation is not
entitled to deference.
7 We are cognizant of the broad statement in R.C.
3319.11(G)(7) that "the determination whether to reemploy or
not reemploy a teacher is solely a [board of education's]
determination and not a proper subject of judicial review
***." We find that the policy of nonreview must yield when
interests implicated by R.C. Chapter 4117 are involved. See
R.C. 4117.10(A).
Wright, J., concurring in part and concurring in
judgment. While I am able to join Parts I, II(A), II(C), and
III of the majority opinion, I cannot join Part II(B) or the
syllabus. There is simply no support in R.C. Chapter 4117 for
the majority's conclusion that the chapter "mandate[s]" the use
of the "in part" test. Moreover, the majority deviates from
this court's precedent and the scheme of R.C. Chapter 4117 by
substituting its judgment for SERB's.
The Public Employees, Collective Bargaining Act, codified
in R.C. Chapter 4117, creates "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." Franklin Cty.
Law Enforcement Assn. v. Fraternal Order of Police, Capital
City Lodge No. 9 (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87,
90. The linchpin in this framework is SERB, the entity in
which primary authority for the administration of this system
of rights and remedies is vested. This court's precedent holds
that in the adjudication of unfair labor practice ("ULP")
charges, SERB's interpretation of the Act is to be given broad
deference by the courts. See Lorain City Bd. of Edn. v. State
Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 533 N.E.2d 264.
"It was clearly the intention of the General Assembly to
vest SERB with broad authority to administer and enforce R.C.
Chapter 4117. *** This authority must necessarily include the
power to interpret the Act to achieve its purposes." Id. at
260, 533 N.E.2d at 267.
Thus, in reviewing a SERB decision in a ULP case, the
courts "must accord due deference to SERB's interpretation of
R.C. Chapter 4117." Id. If courts could interpret R.C.
Chapter 4117 without regard to SERB's construction, the General
Assembly's creation of "a specialized administrative agency ***
to make determinations" would have been pointless. Id.
This court's decision in Lorain City Bd. of Edn., supra,
mirrors the approach that has been taken by the federal
courts. The United States Supreme Court has recognized that
"[t]he ultimate problem is the balancing of the conflicting
legitimate interests" presented in labor cases. Natl. Labor
Relations Bd. v. Truck Drivers Local Union No. 449, Internatl.
Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,
A.F.L. (1957), 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed. 2d
676, 682. The court wrote that "[t]he function of striking
that balance to effectuate national labor policy is often a
difficult and delicate responsibility, which the Congress
committed primarily to the National Labor Relations Board,
subject to limited judicial review." Id. See, also, Natl.
Labor Relations Bd. v. Erie Resistor Corp. (1963), 373 U.S.
221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308, 319 ("we must
recognize the Board's special function of applying the general
provisions of the Act to the complexities of industrial life");
Natl. Labor Relations Bd. v. J. Weingarten, Inc. (1975), 420
U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171, 183.
Thus, when SERB construes the Act in a permissible
fashion, the courts should not interfere. It is only when the
agency makes a decision that is without support under the law
that we may impose our construction of the statute. See, e.g.,
Ohio Historical Soc. v. State Emp. Relations Bd. (1993), 66
Ohio St.3d , N.E.2d (SERB's ruling that
historical society is a public employer was without support in
the Act).
The majority admirably sets forth the terms of the debate
over the "in part" and the "but for" tests. In my view,
however, its discussion of the law leads inexorably to the
conclusion that both tests are permissible under R.C. Chapter
4117 and neither is "mandated." It is precisely on this point
that the majority errs.
Prior to 1991, SERB used the "in part" test in mixed
motive cases. In In re Gallia-Jackson-Vinton Joint Vocational
School Dist. Bd. of Edn. (Nov. 13, 1986), SERB No. 86-044, SERB
adopted the "in part" test and expressly declined to follow the
"but for" test. On two subsequent occasions SERB expressly
declined to abandon the "in part" test. See In re Ohio Dept.
of Transp. (Oct. 8, 1987), SERB No. 87-020; State Emp.
Relations Bd. v. Adena Local School Dist. Bd. of Edn., (Dec.
29, 1989), SERB No. 89-034. For many of the reasons enunciated
in the majority opinion, I believe that this test is
permissible under R.C. Chapter 4117 in mixed motive cases.
In 1991, however (after this case had been decided by
SERB, appealed to and decided by the common pleas court, and
appealed to the court of appeals), SERB changed its position
and expressly adopted the "but for" test of Wright Line, Div.
of Wright Line, Inc. (1980), 251 N.L.R.B. 1083. In re Ft. Frye
Local School Dist. Bd. of Edn. (July 17, 1991), SERB No.
91-005. It explained, "the time has come for SERB to change
its initial 'in part' test to the more balanced, more mature
and more reasonable 'but for' test." Id. SERB now feels, as
many state labor boards do, "that the existence of
discrimination on the basis of protected rights is most
accurately determined by asking whether the disciplinary act
would have occurred but for the protected activity." Id. It
has decided that labor and management interests are most
effectively balanced by using the "but for" test. Id. SERB's
written opinion in Ft. Frye, supra, persuades me that the "but
for" test is also permissible under R.C. Chapter 4117.
In Natl. Labor Relations Bd. v. Transp. Mgt. Corp. (1983),
462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667, the United States
Supreme Court considered whether the National Labor Relations
Board's use of the Wright Line "but for" test was proper under
the National Labor Relations Act. The court deferred to the
board; it held that the Wright Line test would not be disturbed
because it is not "an impermissible construction of the Act."
Id. at 402, 103 S.Ct. at 2475, 76 L.Ed.2d at 676. This court
should now adopt the same position with regard to both the "in
part" and the "but for" tests as used by SERB.
R.C. Chapter 4117 neither mandates nor prohibits the use
of either the "in part" or the "but for" tests. The Act is
worded broadly enough to easily accommodate both approaches and
I believe that this is just what the General Assembly
intended. The majority, in fact, does not hold that the
language of the Act leads to the conclusion it reaches.8
The majority, instead, treats its decision as a labor
policy choice -- a political choice. And, of course, it is.
The majority has made the essentially political decision that
"the requirements of R.C. Chapter 4117 are best fulfilled" when
SERB uses the "in part" test. (Emphasis added.) But the
judgment as to what "best fulfill[s]" the requirements of the
Act has been vested by the General Assembly in SERB -- not this
court. Our inquiry in ULP cases should begin, and end, with
the question of whether what SERB did was permissible -- not
whether it was "best."
Moreover, there are serious questions in my mind as to
whether SERB will be able to apply the test promulgated by the
majority. The test amounts to the "in part" test with a
caveat: the antiunion animus must be more than a "minuscule
part" of the employer's motivation. The majority writes that
"only when the employer's decision regarding the employee was
actually motivated by antiunion animus must a ULP be found."
(Emphasis added.) This sounds to me as much like the "but for"
test as the "in part" test. Under the "but for" test a ULP
occurs if the employee would not have been disciplined but for
his or her protected activities. Under the majority's test,
SERB is charged with finding whether the employer was "actually
motivated" by the employee's exercise of protected activities.
These two inquiries seem much the same to me and my concern is
that SERB will be as confused as I am and will not be able to
effectively apply the majority's test. Of course, this problem
would not arise if SERB, instead of this court, was allowed to
formulate and follow its own permissible tests.
This case was decided by the common pleas court when SERB
was using the Gallia-Jackson "in part" test. That court
appropriately deferred to the SERB test and found a ULP. The
court of appeals, however, erred by substituting its judgment
for SERB's and mandating the "but for" test. Although it
reaches a different conclusion, a majority of this court now
commits the same sort of error -- it substitutes its judgment
for SERB's in order to obtain the political result it desires.
Both precedent and sound judicial policy require that we
consistently show deference to SERB's handling of ULP cases.
We have held that SERB, a "specialized administrative agency"
with "considerable expertise in labor-management relations," is
entitled to deference. Lorain City Bd. of Edn., supra, 40 Ohio
St.3d at 260, 533 N.E.2d at 267. Yet the majority seems
willing to extend this deference to SERB only if SERB reaches
the conclusion the majority would have reached.
I express no opinion as to which of the two tests I prefer
or believe to "best fulfill" the goals of the Act. I would
merely hold that both the "in part" and "but for" tests are
permissible under R.C. Chapter 4117 and that the court of
appeals erred by mandating the "but for" test.
Moyer, C.J., concurs in the foregoing opinion.
FOOTNOTE:
8 The majority begins Part II(B) of its opinion by
observing that in 1984, when the Act was passed, the General
Assembly must have been aware of the debate over the test to be
used in mixed-motive cases. It also correctly states that by
1984 the National Labor Relations Board was firmly committed to
the Wright Line "but for" test and that the use of this test
had been sanctioned by the United States Supreme Court.
Contrary to the majority's implication, I would guess that,
given the state of the law at the time, if the General Assembly
had considered which test would be used in mixed-motive cases,
it would have believed that SERB would adopt the "but for"
test. But, as I have stated, the language of the Act is broad
enough to tolerate both tests and that, I believe, is exactly
what the legislature intended.