State ex rel. Glass, Molders, Pottery, Plastics & Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp. Relations Bd.

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The State, ex rel. Glass, Molders, Pottery, Plastics & Allied

Workers International Union, AFL-CIO, CLC v. State Employment

Relations Board et al.

[Cite as State ex rel. Glass, Molders, Pottery, Plastics &

Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v.

State Emp. Relations Bd. (1994), Ohio St.3d .]

State Employment Relations Board -- Public employers seeks

determination by board that bargaining unit proposed by

employee organization is not an appropriate collective

bargaining unit -- Employer has burden of showing by

substantial evidence that proposed unit is not an

appropriate unit -- R.C. 4117.05, 4117.06 and 4117.07,

construed.

A public employer which seeks a determination by the State

Employment Relations Board that a bargaining

unit proposed by an employee organization is

not an appropriate unit for collective

bargaining purposes bears the burden of

showing by substantial evidence that the

proposed unit is not an appropriate unit.

(R.C. 4117.05, 4117.06 and 4117.07,

construed.)

(No. 93-891 -- Submitted April 5, 1994 -- Decided

September 14, 1994.)

In Mandamus.

On January 30, 1992, relator, Glass, Molders, Pottery,

Plastics & Allied Workers International Union, Local 333,

AFL-CIO, CLC ("GMPP"), filed a petition for representation

election with the State Employment Relations Board ("SERB")

pursuant to R.C. 4117.05 and 4117.07. The petition was filed

on a SERB-designed form, and named the Columbiana County

Department of Human Services, Division of Children's Services

("Columbiana County DHS") as the affected public employer. In

its petition GMPP requested SERB to "conduct an election among

the employees in the bargaining unit'" which it described as

consisting of twenty children's services employees, including

nine social workers, five child care workers, two aides, one

screener, two investigators and one part-time social worker.

Columbiana County DHS then filed its own petition for

representation election, also using a SERB form. In signing

the standardized form, the employer requested that SERB proceed

pursuant to R.C. 4117.07 to conduct an election among its

employees in an appropriate bargaining unit. Columbiana County

DHS did not propose an alternative bargaining unit in its own

petition for representation election, but stated only that

"[t]he bargaining unit is not proper," referring to the

twenty-employee unit proposed by GMPP.

Contemporaneously with the filing of its employer's

petition for representation election, the Columbiana County DHS

filed a motion to dismiss the union's petition for

representation election, alleging that GMPP's petition was

technically deficient and again asserting that the

union-proposed bargaining unit was improper.

On March 25, 1992, SERB found that GMPP had filed a

petition for representation election, and had sufficiently

supported it with a showing of interest from at least thirty

percent of the employees in the proposed unit. The board

denied DHS's motion to dismiss and "direct[ed] this matter to

hearing to determine an appropriate bargaining unit."

Following an evidentiary hearing, SERB's hearing officer

found that the bargaining unit proposed by GMPP was "a unit

appropriate for collective bargaining purposes."

On April 21, 1993, SERB dismissed GMPP's petition for a

representation election for the reason that GMPP's "proposed

bargaining unit [was] not an appropriate unit for collective

bargaining purposes pursuant to O.R.C. {4117.06(B)."

GMPP then filed an action in this court seeking a writ of

mandamus ordering SERB to conduct an election in which the

employees designated in its proposed bargaining unit would

participate, and an award of attorney fees.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy,

Marc J. Jaffy and Sue Fauber, for relator.

Lee Fisher, Attorney General, and Gary E. Brown, Assistant

Attorney General, for respondent State Employment Relations

Board.

Downey & Hurst, Jonathan J. Downes and Marc A. Fishel, for

respondent Columbiana County Department of Human Services.

A. William Sweeney, J. A public employer is

statutorily required to bargain fairly with an employee

organization ("union") which has been certified by SERB as the

exclusive representative of a bargaining unit of public

employees. R.C. 4117.04; 4117.11 et seq.

R.C. 4117.05 provides two procedural methods by which a

union can become certified as the exclusive representative of a

bargaining unit. The first method (petition for election) is

established by R.C. 4117.05(A)(1), and is initiated by the

filing of a request with SERB for a representation election

under procedures set forth in R.C. 4117.07. This is the method

chosen by the relator herein, GMPP. The second method

(voluntary recognition) is established by R.C. 4117.05(A)(2),

and is initiated by the filing of a request for recognition

directly with the affected public employer, and providing SERB

with a copy of the request.

Significantly, regardless of whether a union seeks

certification as an exclusive representative by way of petition

for election or request for voluntary recognition, the law

contemplates that the union will itself propose the composition

of the appropriate bargaining unit. A petition for a

representation election must allege that a least thirty percent

of "an appropriate unit" wish to be represented by an exclusive

representative. R.C. 4117.07(A)(1). Accordingly, Ohio Adm.

Code 4117-5-02(A)(3) requires that a petition for

representation election filed by or on behalf of public

employees include "[a] description of the bargaining unit

proposed by the petitioner specifying inclusions and exclusions

and the approximate number of employees in the unit." Where an

employee organization seeks voluntary recognition, it must

allege in its request for recognition that a majority of the

employees "in the bargaining unit" wish to be so represented.

R.C. 4117.05(A)(2). Accordingly, Ohio Adm. Code

4117-3-01(A)(2) requires that a voluntary recognition request

include "[a] description of the bargaining-unit which the

employee organization proposes to represent, specifying

inclusions and exclusions and the approximate number of

employees in the unit." Thus, in respect to bargaining unit

determination, Ohio's public employee collective bargaining law

is analogous to the National Labor Relations Act, Section 151

et seq., Title 29, U.S. Code ("NLRA"). The NLRA provides

employees in the private sector with the right of

self-organization, and under the NLRA "[t]he initiative in

selecting an appropriate unit resides with the employees." Am.

Hosp. Assn. v. Natl. Labor Relations Bd. (1991), 499 U.S. 606,

610, 111 S.Ct. 1539, 1542, 113 L.Ed. 2d 675, 678.

It is clear that R.C. Chapter 4117 allows for the possible

existence of more than one appropriate unit covering any

particular public employee or employees. For example, R.C.

4117.06(C) mandates SERB to decide the appropriate unit in a

particular case "even though some other unit might also be

appropriate." Similarly, where more than one union seeks to

represent any particular public employees, each union may

propose a different bargaining unit in a petition for

election. R.C. 4117.06(A) provides, in part: "The state

employment relations board shall decide in each case the unit

appropriate for the purposes of collective bargaining." Of

necessity then, before a representation election of all

employees in the appropriate unit can be held, SERB must

consider all proposals and, where more than one proposed unit

is "an" appropriate unit, decide which of them shall be deemed

"the" appropriate unit. As the filing of either a petition for

election with SERB pursuant to R.C. 4117.05(A)(1) or receipt of

a copy of a request for recognition under R.C. 4117.05(A)(2)

constitutes the initiation of a case, SERB is under a clear

legal statutory duty to determine the unit appropriate for the

purposes of collective bargaining when either a petition for

election or a copy of a voluntary request for recognition is

filed with it.

An employer who has been presented with a request for

voluntary recognition may raise objections to the union's

proposed bargaining unit by presenting SERB with substantial

evidence that the proposed unit is not "an appropriate unit."

R.C. 4117.05(A)(2)(b)(iv). Where a union seeks certification

by way of petition for election, the statutes do not expressly

place a burden of producing substantial evidence in opposition

to a bargaining unit on one who objects to the composition of

the unit. Rather, an employer named in a petition for

representation election has the option of filing its own

petition for election and including in that petition an

alternative appropriate bargaining unit for SERB to consider.

R.C. 4117.07(A) and (B). See, also, Ohio Adm. Code

4117-5-02(B)(3) (providing that an employer filing its own

petition for representation election shall include therein "[a]

description of the bargaining unit for which representation has

been requested, and if different, a description of the

bargaining unit proposed by the employer, and the approximate

number of employees in the unit or units.") (Emphasis added.)

Relator GMPP sought recognition as the exclusive

representative for collective bargaining purposes of Columbiana

County children's services employees, and in furtherance of

that goal filed a petition for representation election with

SERB as provided in R.C. 4117.05 and 4117.07(A)(1). In

response, DHS filed its own petition for election subsequent to

receipt of GMPP's petition. It did not, however, describe an

alternative unit in its petition, but merely objected to the

one proposed by GMPP. Thus, the sole bargaining unit proposal

formally at issue before SERB was that described in GMPP's

petition for election.

We have previously recognized that one who objects to the

composition of a unit proposed in a request for voluntary

recognition bears the burden of proof of showing by substantial

evidence that the proposed unit is not an appropriate unit.

State ex rel. Glass, Molders, Pottery, Plastics & Allied

Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp.

Relations Bd. (1993), 66 Ohio St.3d 157, 609 N.E. 1266 ("GMPP

I") (interpreting R.C. 4117.05[A][2][b][iv]). As DHS filed an

employer's petition for election without including an

alternative bargaining unit proposal, its legal posture as to

the issue of unit determination was similar to that of an

employer objecting to a unit proposal contained in a request

for voluntary recognition. A public employer which seeks a

determination that a bargaining unit proposed by an employee

organization in a petition for representation election is not

an appropriate unit similarly bears the burden of showing by

substantial evidence that the union's proposed bargaining unit

is not an appropriate unit. Such a holding is necessary to

ensure that unit-determination decisions are made consistently

regardless of whether the issue arises pursuant to the filing

of a petition for election or a voluntary request for

recognition, and also accords with the statutory framework of

R.C. Chapter 4117. Accordingly, SERB abuses its discretion in

finding the bargaining unit proposed in an R.C. 4117.07(A)

petition to be inappropriate in the absence of substantial

evidence that the proposed unit is not "an" appropriate unit.

Cf. Trustees of Masonic Hall & Asylum Fund v. Natl. Labor

Relations Bd. (C.A.2, 1983), 699 F. 2d 626.

SERB's hearing officer concluded in a comprehensive

written recommendation based on all the evidence that the unit

proposed by GMPP was "an" appropriate unit even if some other

configuration of employees in Columbiana County might also be

deemed appropriate. In rejecting that conclusion, SERB found

instead that the GMPP-proposed unit was not "an" appropriate

unit. SERB's determination that the GMPP-proposed unit was not

"an appropriate unit" cannot stand unless it was supported by

substantial evidence in the record.

R.C. 4117.06(B)1 sets forth relevant criteria for

determining whether a proposed bargaining unit is an

appropriate unit for collective bargaining purposes. We do not

find substantial evidence in the record before us that a unit

consisting of the children's services employees of Columbiana

County is not "an" appropriate unit for collective bargaining

purposes. Having reviewed the record, we agree with the

hearing officer's summary of the evidence and conclusions:

"[I]n sum, the petitioned-for employees share substantial and

similar collective bargaining objectives so as to justify the

creation of the smaller bargaining unit. *** [T]he evidence

is clear that the Children's Services unit is a functionally

distinct unit. *** At the same time, there is no substantial

evidence that the Department's administrative structure or

efficiency of operations would be compromised by the creation

of the proposed bargaining unit. Overfragmentation is not an

issue in this case and there is no history of collective

bargaining. For all of the foregoing reasons, the conclusion

is warranted that the petitioned-for unit is appropriate."

SERB expressly acknowledged that the evidence before it

supported the conclusion that "[t]here is no question that the

petitioned-for employees share a community of interest." It

has been noted that "[t]he operative concept behind all

bargaining unit determinations is that the employees in a

single unit must have an identifiable 'community of

interest.'" Knapp, Anatomy of a Public Sector Bargaining Unit

(1985), 35 Case W. Res. L.Rev. 395, at 403. SERB nevertheless

refused to find that a unit consisting solely of the children's

services employees constituted "an" appropriate unit based on

its own policy determination that "where the petitioned-for

unit consist [sic] of only a small group of employees within a

large department, the Board will look for evidence that the

community of interest of the small group is sufficiently

distinct and unique in relation to other employees and

administratively sensible to make their segregation

appropriate." (Emphasis added.) SERB found that "the record

as a whole does not support the proposition that the

petitioned-for unit is a rational separate and distinct

group." SERB stated that "[s]maller units, by their nature,

may have very similar interests and objectives but in many

cases bigger units are administratively more stable and more

manageable. Where to draw the line is something to be

determined on a case-by-case basis." SERB concluded that the

GMPP-proposed unit would "creat[e] many administrative problems

and hur[t] the efficiency of the [DHS] operation" and that

"[i]n the case before us the line should be drawn wider than in

the petitioned-for unit."

The record does not contain substantial evidence to

support these conclusions. The evidence was uncontroverted

that no other unions had been certified in the Columbiana

County Department of Human Services, and that no other unions

sought recognition. Therefore concerns of over-fragmentation

did not preclude a finding that the GMPP-proposed unit was

appropriate. Similarly, DHS failed to show by substantial

evidence that it could not effectively administer the

children's services employees were they represented by an

exclusive representative.

In the case at bar, two petitions for election had been

filed, one by the union and one by the employer, both

essentially requesting SERB to conduct an election "in an

appropriate unit." SERB is required by law to "decide in each

case the unit appropriate for the purposes of collective

bargaining." R.C. 4117.06(A). Where petition(s) for election

are filed, SERB is required to investigate whether the

employees described in the 4117.07(A) proposed unit desire

representation, and "if [it] finds upon the record of a hearing

that a question of representation exists, it shall direct an

election and certify the results thereof." R.C. 4117.07(A).

In conjunction, these two statutes do not permit SERB to simply

terminate its proceedings where both employee and employer

petitions for election have been filed based on its conclusion

that the union's proposed unit is not "an appropriate unit."

The hearing officer advised SERB that a finding that the

proposed unit is not appropriate "would more than likely result

in denial of the employee's statutory right of

representation." Indeed, in dismissing GMPP's petition and

failing to proceed with a representation election, SERB

foreclosed the children's services employees from their

statutory collective bargaining right to vote for or against

union representation, at least until such time as GMPP

submitted a new bargaining unit proposal, which then again may

or may not have been deemed appropriate by SERB. However, the

law does not place exclusive representative candidates in a

position where they are required to submit successive unit

proposals until such time as they propose one that is

satisfactory to SERB.2 Rather the law requires that SERB

"decide the unit appropriate" in each case that comes before

it. R.C. 4117.06(A). Where only one unit has been formally

proposed, and that unit is an appropriate unit, SERB has no

other option but to decide that the sole appropriate unit

before it shall be deemed "the" appropriate unit.

In this case the employer did not propose an alternative

bargaining unit in its petition for election and the record

before SERB lacked substantial evidence that GMPP's proposed

bargaining unit was not an appropriate unit. SERB abused its

discretion in failing to proceed with a representation election

of the Columbiana County children's services employees. Where

no statutory right of appeal exists, a writ of mandamus may be

issued to correct an abuse of discretion in SERB administrative

proceedings. GMPP I at 159, 609 N.E.2d at 1267. We therefore

issue a writ of mandamus ordering SERB to conduct a

representation election in the bargaining unit described in

GMPP's petition.

Although the relator's complaint demands an award of

attorney fees, the issue has not been addressed by either party

in their briefs submitted to this court, and we decline to make

such an award in the absence of either argument or authority

supporting it.

Writ granted.

Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur

Moyer, C.J., and Wright, JJ., dissent.

FOOTNOTES:

1 R.C. 4117.06 provides, in part:

"(B) The board shall determine the appropriateness of

each bargaining unit and shall consider among other relevant

factors: the desires of the employees; the community of

interest; wages, hours, and other working conditions of the

public employees; the effect of over-fragmentation; the

efficiency of operations of the public employer; the

administrative structure of the public employer; and the

history of collective bargaining."

2 It has been noted that "delay is one of the most

effective tactics an employer can use to fight a unionization

campaign in the workplace." Knapp, Anatomy of a Public Sector

Bargaining Unit (1985), 35 Case W. Res.L. Rev. 395, 422. In

this case the children's services workers of Columbiana County

have already been delayed in exercising their right to vote for

or against union representation for a period of over two and

one-half years from when the petition for election was filed.

In addition, testimony established that the children's services

workers had requested meetings with their employers to express

concerns with working conditions for several years prior to the

filing of the petition for election.

Wright, J., dissenting. I fail to see where SERB abused

its discretion in this case and, therefore, I must respectfully

dissent.

Last year in State ex rel. Glass, Molders, Pottery,

Plastics & Allied Workers Internatl. Union, Local 333, AFL-CIO,

CLC v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 157, 159,

609 N.E.2d 1266, 1267, I agreed with the majority that a writ

of mandamus ordering SERB to certify GMPP as the exclusive

representative was proper and should be granted because

"[m]andamus is an appropriate remedy where no statutory right

of appeal is provided to correct an abuse of discretion in

administrative proceedings." (Emphasis added.) We were

confronted then with a clear abuse of discretion. In that

case, SERB rejected the relator's request for recognition

merely because the standard form filled out by the relator

failed to state specific job titles, even though job titles

were not applicable in that particular situation and therefore

not mandatory.

There is no such clear-cut abuse of discretion in this

case.

Historically, reviewing courts have been required to meet

a formidable threshold in order to establish an abuse of

discretion by a lower court or adminstrative body. In Ohio, we

have long held that "[t]he term 'abuse of discretion' connotes

more than an error of law or judgment; it implies that the

court's attitude is unreasonable, arbitrary or unconscionable.

Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148, 31

N.E.2d 855]; Conner v. Conner (1959), 170 Ohio St. 85 [9 O.O.2d

480, 162 N.E.2d 852]; Chester Township v. Geauga Co. Budget

Comm. (1976), 48 Ohio St. 2d 372 [2 O.O.3d 484, 358 N.E.2d

610]." State v. Adams (1980), 62 Ohio St.2d 151, 157-158, 16

O.O.3d 169, 173, 404 N.E.2d 144, 149. See, also, Rock v.

Cabral (1993), 67 Ohio St.3d 108, 112, 616 N.E.2d 218, 222, and

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450

N.E.2d 1140.

SERB, moreover, is clothed with broad discretion in

determining the appropriateness of a bargaining unit. This

court consistently has recognized that the General Assembly

clearly vested SERB "with broad authority to administer and

enforce R.C. Chapter 4117," and that "[t]his authority must

necessarily include the power to interpret the Act to achieve

its purposes." Lorain Cty. Bd. of Edn. v. State Emp. Relations

Bd. (1988), 40 Ohio St.3d 257, 260, 533 N.E.2d 264, 267.

Furthermore, we typically have accorded due deference to SERB's

interpretation of R.C. Chapter 4117 except when SERB's

interpretation cannot be reconciled with the explicit language

of R.C. Chapter 4117. In order for this court to properly

issue a writ of mandamus ordering SERB to conduct an election,

GMPP must establish that SERB abused its discretion in

determining that the bargaining unit proposed by GMPP was not

appropriate pursuant to R.C. 4117.06.

I am convinced that SERB did not abuse its discretion. In

a well-written and rational opinion, SERB precisely explained

its reasons for deciding that the bargaining unit proposed by

GMPP was not appropriate, and for denying GMPP's petition for a

representative election.3 SERB based its decision on a proper

balancing of the factors found in R.C. 4117.06(B), i.e.,

community of interest; wages, hours, and other working

conditions; the effect of over-fragmentation; the efficiency of

operations; the administrative structure; and the history of

collective bargaining. Specifically, SERB determined that the

proposed unit was neither sufficiently distinct nor

administratively sensible. Nothing in the record indicates to

me that SERB abused its broad discretion when it determined

that the unit was inappropriate and thus denied GMPP's petition.

Because there is a lack of an abuse of discretion on the

part of SERB, GMPP has failed to establish either a clear legal

right to the requested mandamus relief or a corresponding clear

legal duty on the part of SERB to provide it.

Accordingly, I respectfully dissent.

Moyer, C.J., concurs in the foregoing dissenting opinion.

FOOTNOTE:

3 The relevant portion of SERB's opinion setting forth

its reasons for denying GMPP's petition is reproduced below:

"There is no question that the petitioned-for employees

share a community of interest. The narrower a unit is drawn,

the more likely the employees will share similar interests.

Wisely, however, the statute calls for analyzing all the

factors mentioned above including the administrative structure

and the efficiency of operation of the public employer.

Otherwise, any group, no matter how small, which shares common

interests could constitute an appropriate unit for collective

bargaining. For example, it would normally be inappropriate to

allow a unit composed of only four of 10 secretaries, where all

10 perform the same work and no job-related issues separate the

four from the rest. Although such a unit would pass the

'community of interest' test, it would not be administratively

viable. On the contrary, any bargained-for differences in

working conditions between the two groups of secretaries would

likely bring about tension among the employees, different pay

for the same classifications and the same job, administrative

problems and a decline in efficiency. Balancing the factors in

the above-cited section of the Revised Code involves more than

approving a unit just on the basis of the extent of

organization and some common interest among its employees.

"Thus where the petitioned-for unit consist [sic] of only

a small group of employees within a large department, the Board

will look for evidence that the community of interest of the

small group is sufficiently distinct and unique in relation to

other employees and administratively sensible to make their

segregation appropriate.

"***

"While each of the above-mentioned factors by itself does

not necessarily warrant a specific result, balancing all the

factors in O.R.C. 4117.06 leads us to the conclusion that the

petitioned-for unit is not an appropriate unit and that carving

out the Children's Services employees is not an option which

will promote an orderly and constructive relationship [between]

the Public Employer and [i]ts employees.

"Smaller units, by their nature, may have very similar

interests and objectives but in many cases bigger units are

administratively more stable and more manageable. Where to

draw the line is something to be determined on a case-by-case

basis."