State ex rel. Tritt v. State Emp. Relations Bd.

[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 280.]

THE STATE EX REL. TRITT, APPELLEE, v. STATE EMPLOYMENT RELATIONS

BOARD, APPELLANT.

[Cite as State ex rel. Tritt v. State Emp. Relations Bd., 2002-Ohio-6437.]

Employer and employee—Public employment—Unfair labor practices—Writ of

mandamus granted by court of appeals compelling State Employment

Relations Board to vacate its dismissal of relator’s unfair labor practice

charge against city of Columbus and to conduct further proceedings to

determine whether there was probable cause to believe that an unfair

labor practice had occurred—Court of appeals’ judgment reversed, when.

(No. 2002-0793—Submitted October 15, 2002—Decided December 11, 2002.)

APPEAL from the Court of Appeals for Franklin County, No. 01AP-751.

____________________

Per Curiam.

{¶1} In April 1988, the Department of Public Utilities, Division of Water

of the city of Columbus, Ohio, hired appellee, Herschel Tritt, as a building

maintenance worker. On December 13, 1998, he began probationary employment

as a Building Inspector I with the city’s Department of Trade and Development,

Division of Building and Development Services. Effective November 12, 1999,

the city terminated Tritt’s probationary employment following an unfavorable

written performance appraisal.

{¶2} Tritt, through his union, AFSCME, Ohio Council 8, Local 1632, filed

a grievance concerning the termination pursuant to the collective bargaining

agreement between the city and the union. In December 1999, a city hearing officer

denied the grievance because Tritt’s termination did not violate contractual rights.

By letter dated April 26, 2000, the union notified Tritt that his grievance did not

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have “sufficient merit to warrant an appeal to arbitration and discretionary

mediation was not agreed to by the City.” The union withdrew Tritt’s grievance.

{¶3} On June 9, 2000, Tritt filed an unfair labor practice charge against

Columbus with appellant, State Employment Relations Board (“SERB”). Tritt

claimed that the city had violated R.C. 4117.11(A)(1) and (A)(3) by retaliating

against him for exercising his protected rights and preventing him from exercising

those rights. Tritt challenged the city’s November 12, 1999 termination. On

September 12, 2000, SERB dismissed Tritt’s unfair labor practice charge as

untimely filed. SERB determined that the “events giving rise to the charge occurred

more than 90 days before the filing of the charge with the Board” and that “[n]o

mitigating circumstances exist that warrant the equitable tolling of the statute of

limitations.” On December 4, 2000, SERB denied Tritt’s motion for

reconsideration of the dismissal of his unfair labor practice charge.

{¶4} Over six months later, on June 29, 2001, Tritt filed a complaint in the

Court of Appeals for Franklin County for a writ of mandamus to compel SERB “to

overturn the Board’s decision dismissing Relator’s charge; to complete an

investigation of Relator’s charge of unfair labor practices against the City, and/or

to articulate its reasons in support of its determination that Relator’s charge was

untimely filed.” On March 29, 2002, the court of appeals granted a writ of

mandamus compelling SERB to vacate its dismissal of Tritt’s charge and to conduct

further proceedings to determine whether there was probable cause to believe that

an unfair labor practice had occurred. The court of appeals held that SERB erred

in determining that Tritt’s unfair labor practice charge had not been timely filed.

{¶5} This cause is now before the court upon an appeal as of right by SERB.

Columbus and the union filed amicus curiae briefs in support of SERB.

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January Term, 2002

Mandamus: Standard of Review

{¶6} SERB asserts that the court of appeals erred in granting the writ of

mandamus. A SERB determination whether to issue a complaint in an unfair labor

practice case is not reviewable by direct appeal. Ohio Assn. of Pub. School Emp.,

Chapter 643, AFSCME/AFL-CIO v. Dayton City School Dist. Bd. of Edn. (1991),

59 Ohio St.3d 159, 572 N.E.2d 80, syllabus. Mandamus, however, is available to

remedy an abuse of discretion by SERB in dismissing unfair labor practice charges.

State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State Emp. Relations Bd.

(1998), 81 Ohio St.3d 173, 178, 689 N.E.2d 962; State ex rel. Portage Lakes Edn.

Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839,

769 N.E.2d 853, at ¶35.

Timeliness

{¶7} SERB dismissed Tritt’s unfair labor practice charge because the events

giving rise to the charge occurred more than 90 days before he filed the charge with

SERB and because no mitigating circumstances warranted equitable tolling of the

statute of limitations. Tritt does not challenge the board’s determination that there

were no grounds for equitable tolling.

{¶8} Under R.C. 4117.12(B), SERB “may not issue a notice of hearing

based upon any unfair labor practice occurring more than ninety days prior to the

filing of the charge with the board.” This provision requires employees to seek

prompt redress for unfair labor practices. State ex rel. Grady v. State Emp.

Relations Bd. (1997), 78 Ohio St.3d 181, 184, 677 N.E.2d 343. “The ninety-day

time period does not commence until the charging party knew or should have

known of the conduct which constituted the improper conduct and actual damage

ensued.” Id., citing Fraternal Order of Police, Ohio Labor Council, Inc. v.

Hubbard Twp. Trustees (1990), 68 Ohio App.3d 843, 847, 589 N.E.2d 1386.

{¶9} The court of appeals determined that the 90-day period for Tritt to file

an unfair labor practice charge against the city did not begin until the union notified

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him on April 26, 2000, that his grievance did not have sufficient merit to warrant

an appeal to arbitration. As SERB, the city, and the union persuasively assert, the

court of appeals erred in so holding.

{¶10} Tritt knew or should have known of the allegedly improper conduct

of the city on November 12, 1999, the date of his termination. Exhaustion of the

grievance procedure of the collective bargaining agreement was not a prerequisite

for Tritt to incur actual damage. His damage occurred when his employment with

the city was terminated. His then pending grievance did not stay his termination.

{¶11} The court of appeals relied on Grady and its view of public policy to

reach a contrary conclusion. In Grady, however, the issue was whether actual

damage from a local union’s decision not to pursue an employee’s grievance to

arbitration occurred at the time of termination or whether it occurred only after the

employee had exhausted his attempt to secure relief from a national union. Grady,

78 Ohio St.3d at 184, 677 N.E.2d 343. In holding that the employee’s attempts to

secure relief from the national union did not extend his time to file his unfair labor

practice charge, we observed:

{¶12} “Grady’s contention is meritless. Grady knew of the events

underlying his unfair labor practice charge by February 27, 1995, when he admits

he received the local union’s letter notifying him that it would not advance his

grievance to arbitration. Any damage to Grady would have occurred by March 6,

1995, the date the city notified Grady of his termination from employment and the

exhaustion of the collectively bargained grievance procedure due to his local

union’s refusal to submit his grievance to arbitration. The national union could not

have submitted a timely request for arbitration because the national union was not

a party to the collective bargaining agreement. Because the March 6, 1995 date

was more than ninety days before Grady filed his unfair labor practice charge with

SERB, SERB did not abuse its discretion in dismissing the charge as untimely.”

Grady, 78 Ohio St.3d at 184, 677 N.E.2d 343.

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January Term, 2002

{¶13} In Grady, we did not hold that damage from an unfair labor practice

does not occur until the grievance procedure has been exhausted. Although Grady

was not damaged until the grievance process ended, that was not because of any

general exhaustion requirement. It was simply because the union’s premature

ending of the grievance process was itself the alleged unfair labor practice. We

therefore focused on when Grady suffered actual damage from the conduct forming

the basis for the unfair labor practice charge, which was the union’s refusal to

advance Grady’s grievance. The damage ultimately ensuing from the union’s

conduct was Grady’s termination from employment, which occurred several days

later.

{¶14} By contrast, Tritt’s unfair labor practice charge was against his

employer, Columbus, for firing him rather than against his union for failing to

advance his grievance further in the collective bargaining procedure. Thus, actual

damage from the city’s conduct occurred on the date of Tritt’s termination, i.e.,

November 12, 1999. Consequently, Grady is inapposite.

{¶15} The court of appeals further relied on public policy in granting the

writ of mandamus. The court of appeals stated that if it were to adopt SERB’s

interpretation that the 90-day period of R.C. 4117.12(B) began running from the

date of termination of his employment, it would be unduly burdensome on SERB:

{¶16} “SERB’s argument, if accepted, would routinely cause terminated

employees to pursue both a grievance and an unfair labor practice charge

simultaneously. Thus, employees who had been restored to employment and were

satisfied with the remedy achieved through collective bargaining would be forced

to file with SERB in order to protect their potential remedy through SERB. This

would be an unnecessary burden on SERB.”

{¶17} These policy considerations, however, are not evident in the language

of the 90-day time period of R.C. 4117.12(B). Because the General Assembly is

the final arbiter of public policy, judicial policy preferences may not be used to

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override valid legislative enactments. State ex rel. E. Cleveland Fire Fighters’

Assn., Local 500, IAFF, 96 Ohio St.3d 68, 2002-Ohio-3527, 771 N.E.2d 251, at

¶12. In fact, SERB itself asserts that these occasional cases would not unnecessarily

burden it.

{¶18} Based on the foregoing, the court of appeals erred in granting the writ

of mandamus. SERB did not act unreasonably, arbitrarily, or unconscionably in

dismissing Tritt’s unfair labor practice charge. Because Tritt did not file his unfair

labor practice charge within 90 days after he was fired on November 12, 1999, it

was untimely. Therefore, the court of appeals should have denied the writ.

Accordingly, we reverse the judgment of the court of appeals.

Judgment reversed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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Granger Co., L.P.A., and Mark S. Granger, for appellee.

Betty D. Montgomery, Attorney General, and Michael D. Allen, Assistant

Attorney General, for appellant.

Janet E. Jackson, Columbus City Attorney, and Alan P. Varhus, Assistant

City Attorney, urging reversal for amicus curiae city of Columbus.

Peter M. McLinden, Associate General Counsel, urging reversal for amicus

curiae Ohio Council 8, AFSCME, AFL-CIO.

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