The opinion
[This decision has been published in Ohio Official Reports at 95 Ohio St.3d 533.]
THE STATE EX REL. PORTAGE LAKES EDUCATION ASSOCIATION, OEA/NEA, ET
AL. v. STATE EMPLOYMENT RELATIONS BOARD ET AL.
[Cite as State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp.
Relations Bd., 2002-Ohio-2839.]
Mandamus sought to compel State Employment Relations Board to vacate its
dismissals of three cases alleging unfair labor practices by Portage Lakes
Career Center Board of Education, find that there is probable cause to
believe that the board committed the alleged unfair labor practices, issue
complaints on those charges, and set the cases for hearing—Writ denied
when relators have not satisfied their burden of proving that SERB acted
in an unreasonable, arbitrary, or unconscionable manner in dismissing
the cases.
(No. 2001-1691—Submitted March 26, 2002—Decided June 26, 2002.)
IN MANDAMUS.
__________________
Per Curiam.
{¶1} Relator Portage Lakes Education Association, OEA/NEA (“PLEA”)
is the exclusive bargaining representative of a unit of teachers and support
employees of intervening respondent, Portage Lakes Career Center Board of
Education, who are employed at Portage Lakes Career Center (“PLCC”). PLCC is
a joint vocational school district located in Summit County, Ohio. Relator Amy
Zenner is a former PLCC teacher who had been assigned duties as a vocational and
special education (“VOSE”) coordinator. Relator Larry Starcher is a former PLCC
teacher who had been assigned duties as an automotive instructor. Relator Robert
Hill is a classified employee of PLCC who performs custodial and maintenance
duties.
SUPREME COURT OF OHIO
{¶2} On September 27, 2000, PLEA filed unfair labor practice charges in
three separate cases on behalf of Zenner, Starcher, and Hill, with respondent State
Employment Relations Board (“SERB”) against the board of education and PLCC
Superintendent Mark Lukens. The facts surrounding these three SERB cases are
as follows.
SERB Case No. 00-ULP-09-0579: Zenner
{¶3} In 1980, the board of education created the position of VOSE
coordinator at PLCC. The board of education hired Delores Dixon-Kayuha to be
the VOSE coordinator. During her tenure as VOSE coordinator, Dixon-Kayuha
performed various duties, which included providing small-group instruction.
Dixon-Kayuha retired at the conclusion of the 1997-1998 school year.
{¶4} In 1998, the board of education hired Zenner and Lisa Huey as VOSE
coordinators for PLCC. Zenner was hired for the VOSE coordinator position
vacated by Dixon-Kayuha, and Huey was hired to fill a second VOSE coordinator
position for which the board of education sought, but did not receive, additional
funding. The board of education assigned Zenner most of the instructional duties
and assigned Huey most of the administrative duties historically associated with the
VOSE coordinator position. In August 1998, Zenner filed a grievance protesting
the duties assigned to her for the 1998-1999 school year; she claimed that she
should have been assigned the administrative duties that had been assigned to Huey.
In August 1999, an arbitrator found in favor of Zenner on her grievance and ordered
the board of education to assign to her those duties that had been performed by
Dixon-Kayuha as VOSE coordinator. As a result of the arbitrator’s decision, the
board of education assigned more administrative duties to Zenner and more
instructional duties to Huey for the 1999-2000 school year.
{¶5} The General Assembly enacted legislation in 1999 that changed the
method of funding joint vocational school districts from a “per unit” basis, which
provided funding based upon the number of instructors and specific positions,
2
January Term, 2002
including VOSE coordinator positions. The new method of an “average daily
membership” provides funding based upon the number of students enrolled in the
joint vocational school district. Cf. former R.C. 3317.16, 1998 Am.Sub.H.B. No.
650, 147 Ohio Laws, Part III, 5207, and former R.C. 3317.16, 1999 Am.Sub.H.B.
No. 282. Due to the funding changes, PLCC did not receive more state funding for
the 1999-2000 school year than it received for the 1998-1999 school year under the
unit-funding system. Earlier legislation had increased academic requirements for
vocational school districts, 1997 Am.Sub.S.B. No. 55, 147 Ohio Laws, Part III,
6542, and forced the board of education to hire additional instructors to teach
academic courses beginning with the 2000-2001 school year, 1997 Am.Sub.S.B.
No. 55.
{¶6} Because of the changes in state funding and academic requirements,
the board of education decided to reorganize the special education program for
PLCC. The board of education and PLEA representatives held numerous meetings
at which the elimination of certain positions, including the VOSE coordinator
positions, was discussed as part of the effort to restructure PLCC’s vocational
courses to provide a more effective and efficient use of limited state funding. The
board of education and PLEA also discussed Zenner’s and Huey’s failure to renew
their VOSE coordinator certification for the 2000-2001 school year.
{¶7} The board of education ultimately notified several employees,
including Zenner and Huey, that their limited contracts would not be renewed. In
June 2000, the board of education eliminated the VOSE coordinator positions and
assigned most of the administrative duties associated with that position to an
administrator. The board’s decision not to renew the contracts of Zenner and Huey
and to abolish the VOSE coordinator positions was based on the loss of unit funding
for the VOSE coordinator position, the failure of Zenner and Huey to renew their
certification as VOSE coordinators, the reorganization of special education
3
SUPREME COURT OF OHIO
services, and the inability of the board of education and PLEA to agree on how best
to reorganize.
{¶8} In June 2000, the board of education issued one-year limited contracts
to Zenner and Huey for newly created special education teacher positions. These
positions included many of the same duties that Zenner and Huey had performed
during the 1999-2000 school year, except for certain administrative duties, and paid
them the same compensation they had received as VOSE coordinators.
{¶9} On June 30, 2000, PLEA filed an unfair labor practice charge with
respondent State Employment Relations Board (“SERB”). The matter was
designated SERB case No. 00-ULP-06-0388. In the case, PLEA claimed that the
board of education had retaliated against it for its successful 1999 arbitration award
on behalf of Zenner by reassigning certain VOSE coordinator duties to an
administrator for the 1999-2000 school year.
{¶10} In July 2000, Zenner accepted an offer of employment with a
different employer and requested that she be released from her one-year limited
contract for the 2000-2001 school year with the board of education. The board of
education accepted Zenner’s resignation on July 20. According to the PLCC
superintendent, Zenner’s sole stated reason for resigning was her success in
obtaining a job closer to her home.
{¶11} On September 27, 2000, PLEA and Zenner filed another unfair labor
practice charge with SERB against the board of education, SERB case No. 00-ULP-
09-0579. In their charge, PLEA and Zenner claimed that the board of education
and the PLCC superintendent had engaged in a pattern of intimidation and coercion
that led to Zenner’s resignation:
{¶12} “For over one year, Charged Parties Portage Lakes Career Center and
Superintendent Mark Lukens have engaged in a pattern of conduct which
constitutes continuing violations of Ms. Zenner’s rights to engage in protected,
concerted activity under Chapter 4117 of the Ohio Revised Code, primarily because
4
January Term, 2002
of her victory in an arbitration between Charging Party PLEA and Charged Party
Board. This pattern of conduct has led to several charges including charge Nos.
00-02-ULP-0089, 00-05-ULP-0288, and 00-06-ULP-0388.
{¶13} “Most recently, since on or about July 5, 2000, Charged Parties Board
and Superintendent Lukens have continued their patterns of intimidation and
coercion by unilaterally assigning duties of the bargaining unit which Ms. Zenner
should have been performing, to an administrator outside the bargaining unit as
addressed in case No. 00-06-ULP-0388.
{¶14} “Faced with such intimidation and coercion, Ms. Zenner had no
reasonable alternative but to resign, so she submitted a resignation which was
accepted by Charged Party Board in August 2000. Such action is a constructive
dismissal, improperly achieved against Ms. Zenner, in direct retaliation for the
exercise of her protected rights.”
{¶15} On November 27, 2000, SERB found that probable cause existed in
case No. 00-ULP-06-0388 to believe that the board of education had violated R.C.
4117.11(A)(1), (3), and (5) by unilaterally assigning some bargaining-unit duties to
a non-bargaining-unit employee in retaliation for Zenner winning an arbitration
award.
{¶16} By memorandum dated December 21, 2000, a SERB labor relations
specialist investigated the charge in case No. 00-ULP-09-0579 and determined that
Zenner’s resignation did not rise to the level of a constructive discharge because
nothing was alleged to have happened after Zenner’s acceptance of the recall
position in June 2000 that would have necessitated her resignation because of
intolerable working conditions. The labor relations specialist recommended that
the charge in case No. 00-ULP-0579 be dismissed for lack of probable cause to
believe that the board of education and the PLCC superintendent had committed an
unfair labor practice.
5
SUPREME COURT OF OHIO
{¶17} SERB acted in accordance with the recommendations. On January
10, 2001, SERB issued a complaint against the board of education in case No. 00-
ULP-06-0388. On January 11, 2001, SERB unanimously dismissed the charge in
case No. 00-ULP-09-0579 for lack of probable cause because “[i]nformation
gathered during the investigation reveals Ms. Zenner’s resignation does not rise to
the level of a constructive discharge.”
SERB Case No. 00-ULP-09-0578: Starcher
{¶18} Relator Larry Starcher was one of two automotive instructors
employed at PLCC by the board of education. During the winter of 2000, the board
of education settled a grievance filed by Starcher concerning his use of an
unrestricted personal day. Starcher also provided affidavits in SERB case Nos. 00-
ULP-02-0089 and 00-ULP-05-0288. Most of the union members mentioned in
these cases did not file additional charges alleging retaliatory action by the board
of education.
{¶19} Because of the legislative changes that prompted the reorganization
of the vocational special education program at PLCC, the board of education no
longer received funding based on the number of instructors for the automotive
program and it needed to hire additional instructors for academic courses. No more
than eight students had completed the PLCC automotive program in each school
year from 1996-1997 through 1999-2000.
{¶20} In April 2000, Superintendent Lukens recommended that the board
of education not renew Starcher’s limited teaching contract because of the loss of
unit funding for the school district, the need to hire additional staff in other areas,
and low student enrollment in the automotive program. Starcher was the less senior
of the two automotive instructors. The board of education voted not to renew
Starcher’s teaching contract, and in June 2000, after conducting a hearing requested
by Starcher, the board of education affirmed its previous decision. As part of its
reorganization, the board of education reduced the number of teachers in other
6
January Term, 2002
PLCC programs, i.e., law enforcement, computerized business technology, health
care technician, and “option 4.”
{¶21} Following the board’s nonrenewal of his teaching contract, Starcher
applied for three teaching positions. A bachelor’s degree was either a required or
a desired qualification for these positions. Starcher, who does not have a bachelor’s
degree, was not selected for any of the positions for which he applied.
{¶22} On September 27, 2000, in case No. 00-ULP-09-0578, PLEA and
Starcher filed an unfair labor practice charge with SERB against the board of
education and the PLCC superintendent. They claimed that the board’s failure to
reemploy Starcher for the 2000-2001 school year constituted retaliation against him
for providing affidavits in case Nos. 00-ULP-02-0089 and 00-ULP-05-0288.
{¶23} By a memorandum dated December 21, 2000, a SERB labor relations
specialist who had investigated the charge recommended that SERB dismiss the
unfair labor practice charge for lack of probable cause. On January 11, 2001, SERB
unanimously dismissed the charge because “[i]nformation gathered during the
investigation reveals the recall was based upon business needs in accordance with
the available openings.”
SERB Case No. 00-ULP-09-0577: Hill
{¶24} The board of education employs custodians, maintenance workers,
and custodial/maintenance employees at PLCC. Robert Hill is the only
custodial/maintenance employee.
{¶25} From November 1997 until the end of the 1999-2000 school year,
custodian Luvera Kovach worked the evening shift from 2:30 p.m. to 10:30 p.m. at
PLCC. When Superintendent Lukens began his employment as superintendent in
1999, he expressed his concern that there were no maintenance employees present
in the PLCC building during the evening hours to handle potential maintenance
problems. The PLCC director of building and grounds advised the superintendent
that because of Kovach’s inability to handle some of the more physically
7
SUPREME COURT OF OHIO
demanding tasks assigned to custodians on the day shift, Kovach had been assigned
to the night shift. During the 1999-2000 school year, with only Kovach working
the custodial evening shift at PLCC and no maintenance employees assigned to that
shift, the school experienced certain maintenance problems, including power
outages and other electrical troubles and overflowing toilets.
{¶26} In April 2000, Kovach retired, and Superintendent Lukens advised a
PLEA representative that he intended to reassign Hill to the evening shift. Lukens
reasoned that because Hill was the only employee classified as
custodial/maintenance, his presence at the PLCC building in the evening would
increase efficiency by his ability to address maintenance problems as they arose
and by providing him an opportunity to complete maintenance projects that could
not be completed during the day shift, when some of the classrooms were occupied
by students. After PLEA failed to advise Lukens of any concerns about the
proposed reassignment, he reassigned Hill to the night shift in August 2000.
{¶27} Hill had served as support staff representative of PLEA during the
1996-1997 school year and represented the support staff in negotiations that led to
the collective bargaining agreement between the board of education and PLEA. A
grievance filed by Hill concerning harassing behavior by his immediate supervisor
was resolved in the 1997-1998 school year with a promise by the supervisor that it
would not happen again. Hill had also complained privately to the superintendent
at the beginning of the 1999-2000 school year about problems in the maintenance
department, but the superintendent disregarded Hill’s allegations.
{¶28} On September 27, 2000, in case No. 00-ULP-09-0577, PLEA and
Hill filed an unfair labor practice charge with SERB. They claimed that the board
of education and the PLCC superintendent assigned Hill to the night shift despite
Hill’s status as the most senior bargaining-unit employee in the maintenance
department. By memorandum dated December 21, 2000, a SERB labor relations
specialist who had investigated the charge concluded that the board of education
8
January Term, 2002
and the superintendent had a logical business reason for the reassignment and that
no connection was made between Hill’s concerted protected activities and his
reassignment. The investigator recommended that the unfair labor practice charge
be dismissed for lack of probable cause. On January 11, 2001, in a unanimous
decision, SERB dismissed the unfair labor practice charge for lack of probable
cause. SERB concluded that “[i]nformation gathered during the investigation
reveals the schedule change was for reasons other than protected activity.”
Motion for Reconsideration
{¶29} Following the January 2001 dismissal of the unfair labor practice
charges in case Nos. 00-ULP-09-0577, 00-ULP-09-0578, and 00-ULP-09-0579,
relators, Zenner, Starcher, Hill, and PLEA, filed a motion with SERB for
reconsideration of its decisions unanimously dismissing the charges. Relators cited
proceedings in three other unfair labor practice cases before SERB, case Nos. 00-
ULP-11-0668, 00-ULP-11-0691, and 01-ULP-01-0032, as new developments that
were not before SERB when it dismissed case Nos. 00-ULP-09-0577, 00-ULP-09-
0578, and 00-ULP-09-0579. Otherwise, relators’ argument consisted mostly of the
evidence that SERB had previously considered.
{¶30} In April 2001, a SERB labor-relations specialist reviewed relators’
motion and recommended denying it. By opinion dated May 24, 2001, in another
unanimous decision, SERB denied relators’ motion for reconsideration. SERB
concluded that “[a] review of the original investigation reveals that the Charging
Party has failed to raise issues warranting reversal of the dismissals.”
9
SUPREME COURT OF OHIO
Mandamus
{¶31} Over three months later, on September 20, 2001, relators, Zenner,
Starcher, Hill, and PLEA, filed this action for a writ of mandamus to compel SERB
to vacate its dismissals of case Nos. 00-ULP-09-0577 (Hill), 00-ULP-09-0578
(Starcher), and 00-ULP-09-0579 (Zenner), find that there is probable cause to
believe that the board of education committed the alleged unfair labor practices,
issue complaints on those charges, and set the cases for hearing. SERB filed an
answer, and the board of education filed a motion to intervene as a respondent and
an answer. We granted the motion to intervene, granted an alternative writ, and
issued a schedule for the presentation of evidence and briefs. 93 Ohio St.3d 1486,
758 N.E.2d 186.
Mandamus: Standard of Review and Probable Cause
{¶32} Relators assert that SERB erred in dismissing their unfair labor
practice charges and that they are entitled to a writ of mandamus to compel SERB
to issue complaints and conduct hearings on their charges. Before addressing
relators’ assertion, we must determine the appropriate standards for reviewing
SERB decisions finding no probable cause that unfair labor practice charges have
occurred.
{¶33} R.C. 4117.12(B) requires SERB to issue a complaint and conduct a
hearing on an unfair labor practice charge if it has probable cause for believing that
a violation has occurred:
{¶34} “When anyone files a charge with the board alleging that an unfair
labor practice has been committed, the board or its designated agent shall
investigate the charge. If the board has probable cause for believing that a
violation has occurred, the board shall issue a complaint and shall conduct a
hearing concerning the charge.” (Emphasis added.)
{¶35} Probable-cause determinations by SERB under R.C. 4117.12(B) are
not reviewable by direct appeal. Ohio Assn. of Pub. School Emp., Chapter 643,
10
January Term, 2002
AFSCME/AFL-CIO v. Dayton City School Dist. Bd. of Edn. (1991), 59 Ohio St.3d
159, 572 N.E.2d 80, syllabus. Instead, in the absence of an adequate remedy in the
ordinary course of law, “[a]n action in mandamus is the appropriate remedy to
obtain judicial review of orders by the State Employment Relations Board and
dismissing unfair labor practice charges for lack of probable cause.” State ex rel.
Serv. Emp. Internatl. Union, Dist. 925 v. State Emp. Relations Bd. (1998), 81 Ohio
St.3d 173, 689 N.E.2d 962, syllabus; 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. Mandamus will
issue to correct an abuse of discretion by SERB in dismissing unfair labor practice
charges. State ex rel. Leigh v. State Emp. Relations Bd. (1996), 76 Ohio St.3d 143,
145, 666 N.E.2d 1128. An abuse of discretion means an unreasonable, arbitrary,
or unconscionable decision. State ex rel. Elsass v. Shelby Cty. Bd. of Commrs.
(2001), 92 Ohio St.3d 529, 533, 751 N.E.2d 1032.
{¶36} Relators contend that SERB abused its discretion by finding that
there was no probable cause to believe that the board of education committed unfair
labor practices in the three SERB cases involving Zenner, Starcher, and Hill. In
analyzing SERB’s probable-cause determination, we must first review the statutory
language, reading undefined words and phrases in context and construing them in
accordance with the rules of grammar and common usage. State ex rel. Painesville
v. Lake Cty. Bd. of Commrs. (2001), 93 Ohio St.3d 566, 569-570, 757 N.E.2d 347.
{¶37} “Probable cause” is not defined in R.C. Chapter 4117, so it must be
accorded its ordinary definition. “Probable cause” is normally referred to in the
context of the commission of a crime and it is defined as “[a] reasonable ground to
suspect that a person has committed or is committing a crime.” Black’s Law
Dictionary (7th Ed.1999) 1219; see, also, Webster’s Third New
Internatl.Dictionary (1971) 1806, defining “probable cause” as “a reasonable
ground for supposing that a criminal charge is well-founded.” Similarly, an
11
SUPREME COURT OF OHIO
appellate court has compared the SERB probable-cause determination to a
consideration of whether there is “reasonable cause to believe” that a violation
occurred. See Springfield City School Support Personnel v. State Emp. Relations
Bd. (1992), 84 Ohio App.3d 294, 299, 616 N.E.2d 983.
{¶38} Therefore, after construing R.C. 4117.12(B) in accordance with rules
of grammar and common usage, we hold that 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.
{¶39} The role of SERB “in this early stage of the proceeding is most
closely analogous to that of a public prosecutor investigating a citizen’s complaint
of criminal activity. In either case, the decision not to prosecute is discretionary,
and not generally subject to judicial review.” Ohio Assn. of Pub. School Employees,
59 Ohio St.3d at 160, 572 N.E.2d 80. The issue of probable cause in criminal
proceedings is essentially one of fact. See, e.g., State v. Tibbetts (2001), 92 Ohio
St.3d 146, 153, 749 N.E.2d 226, 242.
{¶40} The probable-cause determination by SERB is no different. See,
generally, Drucker, Collective Bargaining in Ohio (1995) 670, Section 14.20(B)
(“In general, the investigators and Board members examine the facts to determine
if it is more likely than not that an unfair labor practice has been committed”). “In
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.” Id.
{¶41} Because mandamus proceedings are premised upon the relators’
establishing an abuse of discretion by SERB in its probable-cause determination,
courts should not substitute their judgment for that of the administrative agency,
12
January Term, 2002
i.e., SERB. See, e.g., State ex rel. Wolfe v. Delaware Cty. Bd. of Elections (2000),
88 Ohio St.3d 182, 185, 724 N.E.2d 771, where we held, in a mandamus case in
which the relator had to establish that the board of elections abused its discretion,
that “[w]e will not substitute our judgment for that of a board of elections if there
is conflicting evidence on an issue”; cf. Lorain City School Dist. Bd. of Edn. v. State
Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (administrative
appeal from SERB decision).
{¶42} With the foregoing standards in mind, we now review the three SERB
determinations that are the subject of this mandamus case.
SERB Case No. 00-ULP-09-0579: Zenner
{¶43} Relators assert that SERB abused its discretion in dismissing case
No. 00-ULP-09-0579 for lack of probable cause. Relators claim that Zenner was
constructively discharged from her employment at PLCC.
{¶44} The elements of a constructive discharge in violation of R.C.
4117.11(A)(1) and (3) are:
{¶45} “ ‘(1) The employer has imposed or knowingly allowed intolerable
working conditions;
{¶46} “ ‘(2) The employer’s conduct was motivated at least in part by anti-
union animus or other intent to discriminate against an employee for exercise of
rights guaranteed by O.R.C. Chapter 4117; and
{¶47} “ ‘(3) A reasonable person subjected to such circumstances would
have resigned.’ ” In re Norwood (Oct. 7, 1999), SERB No. 99-025, at 3-168,
quoting In re Warren Cty. Sheriff (Sept. 28, 1988), SERB No.88-014, at 3-78; see,
also, State ex rel. Alben v. State Emp. Relations Bd. (1996), 76 Ohio St.3d 133, 135,
666 N.E.2d 1119, citing Lorain City School Dist. Bd. of Edn., supra, at paragraph
two of the syllabus (“due deference must be afforded to SERB’s interpretation of
R.C. Chapter 4117”).
13
SUPREME COURT OF OHIO
{¶48} Based on its investigation, SERB could reasonably conclude that
there was no probable cause to believe that the board of education constructively
discharged Zenner. The uncontroverted investigative evidence established that
Zenner had not renewed her certification to be a VOSE coordinator for the 2000-
2001 school year and that legislative changes had ended the method of state funding
of specific positions like VOSE coordinator. Given Zenner’s failure to renew her
VOSE coordinator certification, it is difficult to accept Zenner’s contention that she
could have continued as VOSE coordinator for PLCC but for the actions of the
board of education. There is no evidence or allegation that actions of the board of
education or the superintendent prevented Zenner from renewing her certification.
{¶49} Moreover, as the labor-relations specialist concluded, there is no
evidence that anything occurred between June 2000, when Zenner accepted a
limited contract for a new teaching position, and July 2000, when she resigned, that
would have necessitated her resignation because of intolerable working conditions.
{¶50} Relators argue that because SERB found probable cause to issue a
complaint in case No. 00-ULP-09-0388, it had exhausted its prosecutorial
discretion in case No. 00-ULP-09-0579 and was required to find probable cause
and issue a complaint in the latter case. The sole case relators cite for this novel
proposition is Jefferson Technical College Edn. Assn. v. State Emp. Relations Bd.
(Sept. 10, 1992), Jefferson App. No. 91-J-21, 1992 WL 223733.
{¶51} Jefferson Technical, however, is inapposite. The court of appeals in
that case held merely that once SERB finds probable cause exists to believe that an
unfair labor practice occurred and issues a complaint, it cannot dismiss the
complaint and refer the matter to arbitration under the parties’ collective bargaining
agreement. See, also, State Emp. Relations Bd. v. Perkins (2001), 144 Ohio App.3d
460, 760 N.E.2d 850, holding similarly that SERB is required to issue a complaint
and conduct a hearing after it finds probable cause for believing that the charged
party committed unfair labor practices and it cannot dismiss charges based on a
14
January Term, 2002
subsequent settlement agreement that the employee opposed. Unlike Jefferson
Technical or Perkins, SERB has never found probable cause that the board of
education committed unfair labor practices in case No. 00-ULP-09-0579.
{¶52} Further, neither law nor policy supports a holding that a probable-
cause determination in one case must result in a probable-cause determination in a
related case. A comparable holding would require a dismissal for lack of probable
cause in a case when there is a dismissal in another case. Applying the latter rule
in this case would then result in dismissal of case No. 00-ULP-09-0579 because
one of the cases mentioned in PLEA and Zenner’s charge as part of a pattern of
conduct is case No. 00-ULP-05-0288, which was dismissed by SERB for lack of
probable cause before the dismissals that are the subject of this mandamus case.
Neither this rule nor the rule advanced by relators imposes a mandatory duty on
SERB to issue or not issue a complaint in a particular case based on their
determinations in separate cases.
{¶53} Relators further assert that a consideration of evidence relating to
other cases requires a finding of probable cause and the issuance of a complaint in
case No. 00-ULP-09-0579. More specifically, relators contend that SERB failed to
address their allegation that the board of education and the superintendent had
engaged in a pattern of conduct of unfair labor practices. But that allegation was
expressly limited to a pattern of conduct restricting Zenner’s rights, and the charge
reflected that the alleged pattern was related to relators’ contention that Zenner had
been constructively discharged, a claim that was investigated and adequately
addressed by SERB and its labor relations specialist. And relators could have raised
Zenner’s constructive-discharge claim in case No. 00-ULP-06-0388 instead of
filing a new charge in case No. 00-ULP-09-0579. See State Emp. Relations Bd. v.
Warren Cty. Sheriff (1992), 63 Ohio St.3d 69, 584 N.E.2d 1211, syllabus (“Any
incidents which occur prior to the issuance of the complaint may be considered by
the board in determining whether an unfair labor practice has been committed”).
15
SUPREME COURT OF OHIO
{¶54} Nor does the examination of any claimed new evidence warrant a
finding that SERB abused its discretion in dismissing case No. 00-ULP-09-0579
for lack of probable cause. We have held that in mandamus actions, a court is not
limited to considering facts and circumstances at the time a proceeding is instituted
but should consider the facts and conditions at the time it determines whether to
issue a peremptory writ. State ex rel. Wilson v. Sunderland (2000), 87 Ohio St.3d
548, 549, 721 N.E.2d 1055. In the mandamus cases cited by relators, however,
later events either mooted the case or names were subsequently withdrawn from a
petition to transfer territory. See, e.g., State ex rel. Karam v. Cull (1942), 139 Ohio
St. 415, 22 O.O. 472, 40 N.E.2d 670; State ex rel. Apple v. Pence (1941), 137 Ohio
St. 569, 19 O.O. 340, 31 N.E.2d 841.
{¶55} By contrast, the right to extraordinary relief in mandamus to compel
SERB to issue a complaint on unfair labor practice charges is premised upon
relators’ establishing that SERB abused its discretion at the time it dismissed the
charges. 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. See, e.g., E. Palestine City School Dist. Bd. of Edn.
v. State Emp. Relations Bd. (Dec. 15, 1987), Columbiana App. No. 87-C-6, 1987
WL 29612 (“When the Common Pleas Judge came on to consider for final
disposition the appeal involved, it was up to him to consider only the facts as they
existed at the time the Board issued its order”); Drucker, Collective Bargaining Law
in Ohio, supra, at 696, Section 14.34(D).
{¶56} Finally, even if the additional evidence introduced by relators is
considered, it does not establish an abuse of discretion by SERB. In fact, one of
the postdecision evidentiary items introduced with relators’ evidence is the July
2001 SERB decision in case No. 00-ULP-06-0388, in which SERB concluded that
the board of education did not retaliate against Zenner by not renewing her limited
16
January Term, 2002
contract. In re Portage Lakes Career Ctr. Bd. of Edn. (July 6, 2001), SERB No.
HO 2001-ALJ-004, at 2-23.
{¶57} Therefore, SERB did not abuse its discretion in dismissing PLEA and
Zenner’s unfair labor practice charges in case No. 00-ULP-09-0579.
SERB Case No. 00-ULP-09-0578: Starcher
{¶58} Relators contend that SERB abused its discretion in dismissing case
No. 00-ULP-09-0578 for lack of probable cause. They claim that the board’s
justification for not renewing Starcher’s contract and failing to reemploy him in
another position must be considered pretextual and that SERB failed to address
Starcher’s allegation that a coworker named Don Ellesin, who was not a union
supporter, was preselected to fill an unposted, new teaching position.
{¶59} As noted previously, evidence regarding managerial justification can
be sufficient to warrant the dismissal of a case even when facts alleged in an unfair
labor practice charge are verified. Drucker, Collective Bargaining in Ohio, supra,
at 670, Section 14.20(B). Based on the evidence before it, SERB could reasonably
determine that there was no probable cause to believe that the board of education’s
failure to reemploy Starcher for the 2000-2001 school year constituted prohibited
retaliation against him for providing affidavits in other unfair labor practice cases.
{¶60} The decision not to renew Starcher’s limited contract as an
automotive instructor was based upon the loss of unit funding for the school district,
the need to hire additional teachers for academic courses, and low student
enrollment in the automotive program. The board of education reduced the number
of teachers in additional PLCC programs, and other PLEA members who testified
in the unfair labor practice cases did not subsequently allege retaliatory conduct by
the board. And the board of education’s decision not to employ Starcher for any of
the three teaching vacancies for which he later applied was justified because
Starcher did not have the required or desired bachelor’s degree for those positions.
17
SUPREME COURT OF OHIO
{¶61} Further, Starcher raised the same allegations regarding Ellesin in case
No. 00-ULP-02-0089, and SERB dismissed that case for lack of probable cause.
{¶62} Consequently, SERB did not abuse its discretion in dismissing case
No. 00-ULP-09-0578 for lack of probable cause.
SERB Case No. 00-ULP-09-0577: Hill
{¶63} Relators finally contend that SERB abused its discretion in
dismissing case No. 00-ULP-09-0577 for lack of probable cause. They assert that
the board of education and the superintendent committed an unfair labor practice
by assigning Hill to the night shift.
{¶64} Relators’ contention is meritless. The decision by SERB was
reasonable and within its discretionary authority. Evidence was introduced during
the investigation that the superintendent’s assignment of Hill to the night shift was
based on business needs. Hill was the only custodial/maintenance employee, and
his presence at PLCC in the evening increases the ability of the board of education
to address maintenance problems when they arise. Additionally, there is no
collective bargaining provision conferring a preference in assignments on the most
senior bargaining-unit employee in the maintenance department or any evidence
establishing a historical practice of such preference.
{¶65} SERB did not abuse its discretion in dismissing case No. 00-ULP-
09-0577 for lack of probable cause.
Motion for Reconsideration
{¶66} Nor did SERB abuse its discretion in denying relators’ motion for
reconsideration. Relators’ motion was an amalgamation of evidence that had
already been considered by SERB and other unfair labor practice cases that did not
warrant a modification of its previous decisions to dismiss case Nos. 00-ULP-09-
0577, 00-ULP-09-0578, and 00-ULP-09-0579 for lack of probable cause.
Conclusion
18
January Term, 2002
{¶67} Based on the foregoing, relators have not satisfied their burden of
proving that SERB acted in an unreasonable, arbitrary, or unconscionable manner
in dismissing case Nos. 00-ULP-09-0577, 00-ULP-09-0578, and 00-ULP-09-0579.
We will not substitute our judgment for that of SERB because the record contains
evidentiary support for its dismissals.
{¶68} In that regard, this case is distinguishable from Serv. Emp. Internatl.
Union, 81 Ohio St.3d 173, 689 N.E.2d 962, a case not cited by relators, in which
we granted a writ of mandamus to compel SERB to issue a complaint and conduct
a hearing on an unfair labor practice charge. In Serv. Emp. Internatl. Union, the
SERB labor relations specialist who conducted the investigation concluded that
there was probable cause to believe that an unfair labor practice charge had
occurred and recommended the issuance of a complaint, SERB split two to one in
rejecting its investigator’s recommendation, and two internal documents of the
charged party and deposition testimony of the general counsel of the charged party
established probable cause. Conversely, here SERB unanimously accepted the
recommendations of its labor relations specialist to dismiss the charges, and there
are no internal documents or testimonial admissions of the board of education that
establish that the only reasonable decision by SERB would be findings of probable
cause and the issuance of complaints.
{¶69} A contrary holding, e.g., adopting a more liberal standard to find
probable cause after construing the evidence most strongly in favor of the charging
parties, would result in de novo mandamus determinations in these cases, a result
that is supported by neither law nor precedent. We have not used mandamus in this
fashion to second-guess probable cause determinations by prosecutors in criminal
matters, see State ex rel. Evans v. Columbus Dept. of Law (1998), 83 Ohio St.3d
174, 699 N.E.2d 60, and State ex rel. Murr v. Meyer (1987), 34 Ohio St.3d 46, 516
N.E.2d 234, and we will not permit comparable expanded judicial review of
probable cause determinations by administrative agencies like SERB.
19
SUPREME COURT OF OHIO
{¶70} Therefore, given the failure of relators to establish that SERB abused
its discretion in dismissing the unfair labor practice charges, we deny the writ.
Writ denied.
MOYER, C.J., RESNICK, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
DOUGLAS and F.E. SWEENEY, JJ., concur in judgment.
__________________
Macala, Baasten, McKinley, Piatt & Gore, L.L.C., and Salvatore J. Falletta,
for relators.
Betty D. Montgomery, Attorney General, and Peter M. Thomas, Assistant
Attorney General, for respondent.
Whalen & Compton Co., L.P.A., G. Frederick Compton, Jr., and Mari Alice
Zacharyasz, for intervening respondent.
__________________
20