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

[This opinion has been published in Ohio Official Reports at 76 Ohio St.3d 143.]

[THE STATE EX REL.] LEIGH, APPELLANT, v. STATE EMPLOYMENT RELATIONS

BOARD, APPELLEE.

[Cite as State ex rel. Leigh v. State Emp. Relations Bd., 1996-Ohio-416.]

Mandamus to compel State Employment Relations Board to properly investigate

dismissed unfair labor practice charge, issue a complaint finding

probable cause to believe that an unfair labor practice was committed,

and hold a hearing on the charge—Writ denied, when.

(No. 95-2423—Submitted May 21, 1996—Decided July 24, 1996.)

APPEAL from the Court of Appeals for Franklin County, No. 95APD07-931.

__________________

{¶ 1} The Ohio Department of Administrative Services (“ODAS”)

employed appellant, Larry G. Leigh, as a custodian. In June 1991, Leigh was laid

off due to lack of work. In August 1991, the union, through its local president,

Leonard T. Woods, initiated a grievance on behalf of Leigh and other displaced

workers. The grievance was submitted to arbitration in August 1993. In April

1994, the union informed Leigh of an unfavorable arbitration decision. According

to Leigh, he did not receive a copy of the arbitration decision until June 3, 1994.

{¶ 2} On June 13, 1994, Leigh filed unfair labor practice charges against

ODAS and the union. Leigh claimed, inter alia, that (1) ODAS had laid him off in

1991 “in violation of its contractual obligations” and (2) ODAS had acted in concert

with the union to deny his right to fair representation on his grievance. Leigh

alleged that Woods, who had represented him in the grievance process, was actually

a supervisor who was exempt from his bargaining unit.

{¶ 3} Anton J. Naess, a labor relations specialist for appellee, State

Employment Relations Board (“SERB”), conducted an investigation of Leigh’s

charges and prepared a memorandum for SERB that recommended dismissal of the

SUPREME COURT OF OHIO

charges based on a lack of probable cause to believe that any unfair labor practice

had been committed. Naess concluded that information supplied by the union

indicated that Woods was a bargaining unit member at all pertinent times, although

there was a brief period of time prior to the grievance when Woods served in a

supervisory capacity.

{¶ 4} In November 1994, SERB dismissed the unfair labor practice charge

that pertained to ODAS for the following reasons:

“Pursuant to Ohio Revised Code Section 4117.12, the Board conducted an

investigation of this charge. The investigation reveals that there is no probable

cause to believe that [ODAS] has violated Ohio Revised Code Section 4117.11.

Many of the events giving rise to this case occurred more than ninety (90) days

prior to the filing of the charge. Additionally, the information gathered during the

investigation failed to establish the probability of any unlawful motivation or

conduct behind the manner in which [ODAS] addressed [Leigh’s] concerns.

Accordingly, the charge is dismissed.”

{¶ 5} Leigh then instituted an action in the Court of Appeals for Franklin

County for a writ of mandamus to compel SERB to properly investigate the

dismissed unfair labor practice charge, issue a complaint finding probable cause to

believe that an unfair labor practice was committed, and hold a hearing on the

charge. The court of appeals granted SERB’s motion for summary judgment and

denied the writ.

{¶ 6} The cause is now before this court upon an appeal as of right.

__________________

Renny J. Tyson Co., L.P.A., and Renny J. Tyson, for appellant.

Betty D. Montgomery, Attorney General, and Daniel P. Jones, Assistant

Attorney General, for appellee.

__________________

Per Curiam.

2

January Term, 1996

{¶ 7} Leigh asserts in his sole proposition of law that the court of appeals

erred in entering summary judgment, where there was sufficient evidence to raise

a genuine issue of material fact whether SERB had abused its discretion in failing

to properly investigate the unfair labor practice charge against ODAS.

{¶ 8} Civ.R. 56(C) provides that before summary judgment may be granted,

it must be determined that (1) no genuine issue as to any material fact remains to

be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)

it appears from the evidence that reasonable minds can come to but one conclusion,

and viewing such evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the party against whom the motion for summary judgment

is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628

N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,

327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

{¶ 9} R.C. 4117.12(B) provides that “[w]hen 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. *** ”

{¶ 10} 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,

AFSCME, AFL-CIO v. Dayton City School Dist. Bd. of Edn. (1991), 59 Ohio St.3d

159, 572 N.E.2d 80, syllabus. However, mandamus is an appropriate remedy where

no statutory right of appeal is available to correct an abuse of discretion by SERB.

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. A writ of mandamus will issue to correct an abuse of

discretion by SERB to dismiss unfair labor practice charges. State ex rel. Ohio

Assn. of Pub. School Emp./AFSCME, AFL-CIO v. State Emp. Relations Bd. (1992),

3

SUPREME COURT OF OHIO

64 Ohio St.3d 149, 151-152, 593 N.E.2d 288, 290-291. An abuse of discretion

implies an attitude that is unreasonable, arbitrary, or unconscionable. State ex rel.

Brenders v. Hall (1995), 71 Ohio St.3d 632, 637, 646 N.E.2d 822, 826.

{¶ 11} Therefore, in order to be entitled to the requested writ of mandamus

compelling SERB to investigate the unfair labor practice charge, issue a complaint,

and hold a hearing, Leigh must establish that SERB abused its discretion in

dismissing the unfair labor practice charge.

{¶ 12} Leigh alleged that ODAS committed an unfair labor practice by

laying him off in 1991 in violation of “contractual obligations.” Under R.C.

4117.12(B), “[t]he board 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 ***.” The 1991 layoff was well over ninety days prior to his 1994 filing

of the charge with SERB. The uncontroverted evidence thus establishes that SERB

did not abuse its discretion in dismissing this claim based on untimeliness. Unlike

State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, AFL-CIO v. State Emp.

Relations Bd. (1992), 64 Ohio St.3d 149, 152-153, 593 N.E.2d 288, 291, there is

no genuine controversy as to when the alleged unfair labor practice occurred so as

to require a limited writ of mandamus to compel SERB to investigate the timeliness

issue and provide some explanation setting forth its rationale.

{¶ 13} Leigh further alleged that ODAS committed an unfair labor practice

by acting in concert with the union to deprive him of fair representation in the

grievance and arbitration procedure. SERB determined that based on its

investigation, there was no probable cause to believe that there had been any

unlawful conduct or motivation in the manner in which ODAS addressed Leigh’s

concerns.

{¶ 14} Leigh claims that SERB was not entitled to summary judgment on

the foregoing charge because the evidence indicated that his union representative,

Woods, was acting as a supervisor during the periods relevant to Leigh’s grievance

4

January Term, 1996

and arbitration. The summary judgment evidence indicates that Woods served in a

supervisory capacity for ten months in 1990, prior to the events which are the

subject of Leigh’s charge. Woods filed a grievance in 1992 in which he alleged

that although he was classified as an “Air Quality Technician I,” he was performing

duties outside his classification, including duties that were supervisory in nature.

Woods asked to be reclassified as an “Air Quality Technician II.” An arbitrator

granted Woods’s grievance. Both Air Quality Technicians I and II are within the

bargaining unit. Leigh filed an affidavit in which he stated that Woods continued

to fulfill supervisory duties when he represented Leigh on his grievance concerning

the layoff and that Leigh did not believe that the grievance could have been fairly

presented by Woods because of Woods’s connection with management as a

supervisory employee.

{¶ 15} Although the foregoing indicates that Leigh’s union representative

may have performed certain supervisory duties, Woods was still classified as being

within the bargaining unit. Woods was not an exempt supervisory employee. In

addition, the mere fact that Woods performed certain supervisory duties did not

raise a genuine issue of material fact as to whether Woods acted in concert with

management in depriving Leigh of his right to fair representation during the

grievance and arbitration procedure. SERB did not abuse its broad discretion in

dismissing Leigh’s charge based on lack of probable cause.

{¶ 16} As the movant for summary judgment, SERB had the initial burden

of demonstrating, with Civ.R. 56(C) evidentiary materials, that there were no

genuine issues of material fact concerning whether SERB abused its discretion in

dismissing Leigh’s unfair labor practice charge. Dresher v. Burt (1996), 75 Ohio

St.3d 280, 292-293, 662 N.E.2d 264, 273, limiting Wing v. Anchor Media, Ltd. of

Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus;

see, also, Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 40-41, 623

5

SUPREME COURT OF OHIO

N.E.2d 591, 594-595, detailing the problems encountered by appellate courts in

interpreting paragraph three of the Wing syllabus.

{¶ 17} SERB supported its motion for summary judgment with Civ.R.

56(C) summary judgment evidence. That evidence established that SERB

conducted a thorough investigation and that SERB did not abuse its broad

discretion in dismissing Leigh’s unfair labor practice charge. Leigh failed to

introduce summary judgment evidence setting forth specific facts showing that any

genuine issue of material fact remained. See Dresher, supra, 75 Ohio St.3d at 293,

662 N.E.2d at 273, quoting Civ.R. 56(E). As the court of appeals concluded, “[t]he

evidentiary material before the court does not demonstrate a genuine issue of

material fact as to the quality of the investigation done by SERB or the correctness

of the decision to dismiss the unfair labor practice charges filed by Mr. Leigh.”

{¶ 18} The court of appeals properly granted summary judgment in favor

of SERB and denied the requested extraordinary relief in mandamus. Accordingly,

the judgment of the court of appeals is affirmed.

Judgment affirmed.

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

STRATTON, JJ., concur.

__________________

6