The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Staple v. State Emp. Relations Bd., Slip Opinion No. 2025-Ohio-4698.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
THE STATE EX REL. STAPLE, APPELLEE, v. STATE EMPLOYMENT RELATIONS
BOARD ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Staple v. State Emp. Relations Bd., Slip Opinion
No. 2025-Ohio-4698.]
Mandamus—Labor relations—Public employees—R.C. Ch. 4117—State
Employment Relations Board abused its discretion in dismissing public
employee’s unfair-labor-practice charge against employer because
employer did not have authority to determine that employee’s notice to
arbitrate was untimely under collective-bargaining agreement—Board
abused its discretion when it dismissed public employee’s unfair-labor-
practice charge against union without providing basic rationale for
dismissal—Board did not abuse its discretion when it dismissed public
employee’s additional unfair-labor-practice charge against union, because
union acted in accordance with public employee’s waiver of union
representation—Court of appeals’ judgment granting writ of mandamus
SUPREME COURT OF OHIO
affirmed in part and reversed in part.
(No. 2024-0279—Submitted January 7, 2025—Decided October 15, 2025.)
APPEAL from the Court of Appeals for Franklin County,
No. 22-AP-78, 2024-Ohio-140.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DETERS, HAWKINS, and SHANAHAN, JJ. BRUNNER, J., concurred in part
and dissented in part and would affirm the court of appeals’ judgment in full.
Per Curiam.
{¶ 1} Appellee, Christopher Staple, wanted to arbitrate when his employer,
the Ravenna Police Department, fired him. Appellant Fraternal Order of Police,
Ohio Labor Council, Inc. (“the union”), requested arbitration on his behalf. But
appellant City of Ravenna asserted that it would deny that request because the union
had asked too late.
{¶ 2} Staple maintained that an arbitrator—not the city—should have
determined the timeliness of his notice to arbitrate. Additionally, Staple believed
that any lateness in filing the notice was the union’s fault. So, he charged the city
and the union with unfair labor practices in separate cases before appellant State
Employment Relations Board (“SERB” or “the board”). The board dismissed the
charges for lack of probable cause.
{¶ 3} Staple petitioned the Eleventh District Court of Appeals for a writ of
mandamus to compel the board to consider his charges on the merits. His
mandamus action was transferred to the Tenth District Court of Appeals. The Tenth
District held that the board had abused its discretion, and it granted the writ as to
both cases Staple had brought before the board. The board, the city, and the union
have appealed, and we now affirm in part and reverse in part.
2
January Term, 2025
I. FACTS AND PROCEDURAL HISTORY
{¶ 4} While Staple was working for the Ravenna Police Department, he was
accused of improper conduct. After an investigation, he was fired in October 2020.
He protested this termination by filing a grievance in accordance with the process
set out in the collective-bargaining agreement (“the agreement”) between the union
and the city.
{¶ 5} Under the agreement, the last stage of the internal grievance process
is the mayor’s review of the grievance. Within ten days of the grievant’s meeting
with the mayor, the mayor must issue a written decision and send it to the grievant
and the union. The date of the mayor’s decision starts the clock for purposes of
calculating the time allowed for the union to submit the grievance to arbitration. If
the mayor fails to file a written decision by the end of the ten-day period, the
grievance is deemed denied and the clock for submitting the grievance to arbitration
starts.
{¶ 6} The agreement specifies at the beginning of the section titled
“Arbitration Procedure” that “within thirty (30) calendar days” of the mayor’s
decision, the union “may submit the grievance(s) to arbitration.” The arbitration-
procedure section does not include a definitions subsection, but the previous section
of the agreement—setting forth the “Grievance Procedure”—includes a
“Definitions” subsection that provides a definition for “Days.” It says, “A day as
used in this procedure, shall mean calendar days, excluding Saturdays, Sundays, or
holidays as provided for in this Agreement.” This definition aligns with the
common understanding of a “business day.” See, e.g., Black’s Law Dictionary
(12th Ed. 2024) (defining “business day” as “[a] day that most institutions are open
for business, usu. a day on which banks and major stock exchanges are open,
excluding Saturdays, Sundays, and certain major holidays”).
{¶ 7} Shortly after his termination, Staple exercised his right to substitute
his own counsel for the union’s under R.C. 4117.03(A)(5). He signed a waiver
3
SUPREME COURT OF OHIO
releasing the union from “all duties of representation and liabilities arising out of
the arbitration hearing to be held in reference to this grievance.” (Capitalization
deleted.)
{¶ 8} The mayor heard Staple’s grievance on November 13, 2020, and
denied it in a letter dated November 19. The next day, Staple received an email
that the city alleges contained the mayor’s denial letter as an attachment.
{¶ 9} Staple wanted to send the dispute to arbitration. The waiver that
Staple had signed included a proviso stating that he expected that the union would
still cooperate with him to get his case to arbitration. Staple’s counsel, David
Worhatch, and the union’s counsel, Michael Piotrowski, had agreed that the union
would cooperate with Worhatch to invoke Staple’s right to arbitration on his behalf
but that Worhatch would do the rest of the work arbitrating.
{¶ 10} After the mayor denied the grievance, Worhatch and Piotrowski
discussed the deadline for the union’s submission to the city of a notice to arbitrate.
Piotrowski detailed the content of this discussion in a memorandum in opposition
to a motion that Staple had submitted to the board.1 He asserted that Worhatch had
calculated that January 5 was 30 days after November 20. Presumably, that
calculation was based on the definition of “Days” in the grievance procedure.
Piotrowski maintained that he did not have a copy of the agreement in front of him
during their discussion but that he had questioned the January 5 due date because it
seemed far beyond when the union would usually file such a notice. Piotrowski
claimed that he told Worhatch that he should “check his calculation.” He further
asserted that he had invited Worhatch to use the union’s form version of the notice
but that Worhatch insisted that he would draft a longer and more detailed notice
himself.
1. At the conclusion of the memorandum in opposition that Piotrowski submitted on behalf of the
union, he “certif[ied] and affirm[ed], under penalty of perjury, that the facts recited in the foregoing
motion [were] true and correct t[o] the best of [his] personal knowledge and information.”
4
January Term, 2025
{¶ 11} The parties dispute the deadline for submitting the notice to arbitrate.
However, it is uncontested that 30 calendar days after November 20 was actually
December 20, 2020, a Sunday. Assuming that the agreement follows the principles
for counting time that are established in Ohio law, the deadline counted out in
calendar days would be Monday, December 21. See R.C. 1.14 (when calculating
the time in which a legal act may be done, “when the last day falls on Sunday . . .
the act may be done on the next succeeding day that is not Sunday or a legal
holiday”). Moreover, none of the appellants challenge Staple’s assertion that under
the agreement’s definition of “Days” in the grievance-procedure section, 30 days
after November 20 was January 5.
{¶ 12} Early in the morning on December 21, Worhatch emailed the union
a copy of his notice to arbitrate. Neither the union nor Staple submitted this email
into evidence before the board. According to the union, however, Worhatch asked
the union to file the notice before January 5. The union sent a copy of the notice to
the city two days after receiving Worhatch’s email, on Wednesday, December 23.2
{¶ 13} On January 8, after the deadline had indisputably passed, the city
responded. It refused to arbitrate, claiming that the union’s notice was four days
late. After Worhatch followed up with the city, the city clarified that because the
union did not request arbitration within 30 calendar days, the city had determined
that it need not submit to arbitration. The city rejected Worhatch’s argument that
the definition of “Days” in the grievance-procedure section of the agreement (i.e.,
“calendar days, excluding Saturdays, Sundays, or holidays”) applied to the
arbitration process set forth in the arbitration-procedure section of the agreement.
2. The union asserts that it sent both the notice to arbitrate that Worhatch drafted and its own
“standard form notice” to the city. Staple asserts that the union “elected to use its own form.”
Nonetheless, both parties agree that the union sent notice to the city on Wednesday, December 23.
Assuming that either notice would have sufficiently put the city on notice of Staple’s intent to
arbitrate, this opinion will refer to whatever version(s) the union sent as simply “the notice.”
5
SUPREME COURT OF OHIO
{¶ 14} Staple then tried to compel arbitration, but the Portage County Court
of Common Pleas dismissed his complaint. Staple v. Ravenna, Portage C.P. No.
2021 CV 107, 2021 WL 7978900 (June 11, 2021). On appeal, the Eleventh District
Court of Appeals affirmed, pointing out that Staple was not a party to the agreement
and that he therefore could not compel arbitration without the union’s assistance.
2022-Ohio-261, ¶ 28, 36 (11th Dist.). We declined jurisdiction. 2022-Ohio-1893.
{¶ 15} Meanwhile, Staple had also filed two sets of unfair-labor-practice
charges with the board. The first was against the city. In it, Staple claimed that the
city had denied him the right to have his grievance arbitrated, in violation of
R.C. 4117.11(A)(1). Once the union filed the notice of arbitration, Staple argued,
the city did not have the authority to unilaterally determine that the notice was filed
too late for the grievance to be arbitrated. According to Staple, that determination
went to the jurisdiction of the arbitrator, which, under the agreement (incorporating
by reference the Labor Arbitration Rules of the American Arbitration Association),
the arbitrator alone can decide.
{¶ 16} The second set of charges was against the union. Staple claimed that
assuming the union had filed the notice to arbitrate too late, it failed to fairly
represent him, in violation of R.C. 4117.11(B)(6). He also claimed that the union
had caused the city to commit an unfair labor practice, a violation under R.C.
4117.11(B)(2).
{¶ 17} The board dismissed each charge after investigation. First, on
Staple’s charge against the city, the board determined that the city did not violate
R.C. 4117.11(A)(1) by failing to move Staple’s grievance to arbitration, because
(1) the city “assert[ed] that the notice to arbitrate . . . did not follow the timelines
established” by the agreement and (2) the notice was filed on Worhatch’s
instructions, so it was not the city’s fault for “fail[ing] to process the request.” In
re Staple v. Ravenna, SERB No. 2021-ULP-03-0044 (June 3, 2021). Second,
regarding Staple’s R.C. 4117.11(B)(6) charge against the union, the board
6
January Term, 2025
concluded that because the union was just following Worhatch’s instructions for
filing a notice to arbitrate, “any alleged failure to process the request was not on the
part of the Union.” In re Staple v. Fraternal Order of Police, Ohio Labor Council,
Inc., SERB No. 2021-ULP-03-0045 (June 3, 2021). The board did not rule on
Staple’s charge that the union had violated R.C. 4117.11(B)(2).
{¶ 18} After the board denied Staple’s motions for reconsideration in each
case, Staple petitioned the Eleventh District for a writ of mandamus, naming the
board, the city, and the union as respondents. His complaint asked the court to
compel the board to vacate its decisions and consider his charges on the merits.
Staple’s case was transferred to the Tenth District after the Eleventh District held
that because the board’s principal place of business was in Franklin County and the
union and the city were “nominal parties,” the Tenth District was the proper venue.
No. 2021-P-0115, 2 (11th Dist. Jan. 24, 2022).
{¶ 19} Staple’s case was assigned to a magistrate, who recommended that
the Tenth District grant mandamus relief. After considering the respondents’
objections to the magistrate’s decision, the appellate court determined that the
board had committed legal errors in finding a lack of probable cause to believe that
(1) the city committed an unfair labor practice by failing to submit the timeliness
question to arbitration and (2) the union committed an unfair labor practice when it
allegedly delayed in filing the notice to arbitrate. 2024-Ohio-140, ¶ 43, 96 (10th
Dist.). For each case, the court granted a writ of mandamus “directing SERB to
vacate its order dismissing the [unfair-labor-practice] charge . . . , issue an order
finding that probable cause exists to believe an [unfair labor practice] has been
committed, and commence further proceedings as appropriate in accordance with
such determination.” Id. at ¶ 43. The court also granted a limited writ requiring the
7
SUPREME COURT OF OHIO
board to rule on the R.C. 4117.11(B)(2) charge against the union. Id. The board,
the union, and the city now appeal.3
II. ANALYSIS
{¶ 20} SERB has jurisdiction to adjudicate unfair-labor-practice charges
under R.C. Ch. 4117. R.C. 4117.12. When a public employee files a charge against
an employer or union alleging an unfair labor practice, the board “must investigate
the charge and determine whether there is probable cause to believe a violation
occurred.” State ex rel. Murray v. State Emp. Relations Bd., 2018-Ohio-5131, ¶ 8,
citing R.C. 4117.12(B). If the board has a “reasonable ground to believe that an
unfair labor practice has occurred,” it must issue a complaint and conduct a hearing
on the charge. State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp.
Relations Bd., 2002-Ohio-2839, ¶ 38; see id. at ¶ 37, quoting Black’s Law
Dictionary (7th Ed. 1999) (“‘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.’”).
{¶ 21} The board’s probable-cause determination on an unfair-labor-
practice charge cannot be reviewed on direct appeal. Id. at ¶ 35. Thus, because
there is no adequate remedy in the ordinary course of law, a party may seek a writ
of mandamus after the board dismisses its charge. Id. The writ will issue only if
the board has abused its discretion in dismissing an unfair-labor-practice charge.
Id.; see also State ex rel. Alben v. State Emp. Relations Bd., 1996-Ohio-120, ¶ 9
(“In order to be entitled to the requested writ of mandamus compelling SERB to
vacate its dismissals, issue a complaint, and hold a hearing on the charges, [the]
3. Staple also sought declaratory relief, which the Tenth District denied. 2024-Ohio-140 at ¶ 43, 95-
96 (10th Dist.). This part of the ruling was not challenged on appeal.
8
January Term, 2025
relators must . . . establish that SERB abused its discretion in dismissing the unfair
labor practice charges.”).
{¶ 22} On appeal of a judgment granting or denying mandamus relief, we
apply the same standard of review as the court of appeals: abuse of discretion. See
Murray at ¶ 6, 9. When the board has dismissed a charge for lack of probable cause,
we will overturn that determination only if it was unreasonable, arbitrary, or
unconscionable. See State ex rel. Service Emps. Internatl. Union, Dist. 925 v. State
Emp. Relations Bd., 1998-Ohio-463, ¶ 15-16; see also Portage Lakes Edn. Assn. at
¶ 39-41 (a probable-cause issue is one of fact, and a reviewing court will not
substitute its judgment for SERB’s when the evidence on an issue conflicts);
compare Portage Lakes Edn. Assn. at ¶ 68 (denying writ against SERB when its
dismissal of unfair-labor-practice charges was consistent with its labor-relations
specialist’s recommendation and “no internal documents or testimonial admissions
of [the charged party] establish[ed] that the only reasonable decision by SERB
would be findings of probable cause” on the charges). Nonetheless, no adjudicative
body has discretion to make a legal error. See Johnson v. Abdullah, 2021-Ohio-
3304, ¶ 39 (“We take this opportunity to make it clear that courts lack the discretion
to make errors of law . . . .”). So, if the board has committed legal error or if it
acted unreasonably, arbitrarily, or unconscionably in dismissing a charge for a lack
of probable cause, it has abused its discretion.
{¶ 23} Staple raised three issues before the Tenth District that are relevant
to our analysis. First, did the board abuse its discretion when it failed to find
probable cause to support an unfair-labor-practice charge against the city? The city
refused to submit to arbitration. It calculated the deadline for the union to file a
notice to arbitrate as December 21, 2020. The notice was filed on December 23.
Staple contended that the city’s calculation of the deadline was wrong and that it
should have at least submitted the issue of timeliness to an arbitrator.
9
SUPREME COURT OF OHIO
{¶ 24} Second, did the board abuse its discretion when it failed to resolve
one of Staple’s charges against the union? Staple alleged two charges against the
union: one under R.C. 4117.11(B)(2) and one under R.C. 4117.11(B)(6). The
board’s decision mentioned both in the introductory paragraph, but it did not
resolve the charge alleged under R.C. 4117.11(B)(2).
{¶ 25} Third, did the board abuse its discretion when it failed to find
probable cause to support Staple’s R.C. 4117.11(B)(6) charge against the union?
This charge arose from the union’s decision to wait until December 23 to file the
notice to arbitrate. Staple asserted that the union should have filed sooner because
it had access to the agreement and could have checked the deadline Worhatch had
calculated and because Worhatch sent the union his version of the notice on
December 21.
{¶ 26} The Tenth District resolved all three issues in Staple’s favor and
granted the requested writ of mandamus. We reverse the Tenth District’s judgment
to the extent that it granted a writ as to the R.C. 4117.11(B)(6) charge against the
union, because Staple’s waiver absolved the union of its duty to calculate deadlines.
We affirm the Tenth District’s judgment to the extent that it granted a writ as to the
other two charges.
A. Staple’s motion to dismiss errs on the law
{¶ 27} As an initial matter, Staple moved to dismiss this appeal for want of
a final, appealable order. He claims that his postjudgment motion before the Tenth
District for attorney’s fees and costs remains unresolved and that the court of
appeals’ judgment is therefore not final and appealable. Staple asked for court costs
and attorney’s fees under R.C. 2335.39 in his mandamus complaint. And following
the Tenth District’s judgment in his favor, he moved in that court for an award of
attorney’s fees and expenses from the board under both R.C. 2335.39 and
R.C. 2323.51.
10
January Term, 2025
{¶ 28} When there is an unresolved claim for attorney’s fees in a case, an
order resolving other claims is generally not final and appealable unless the trial
court determines, according to Civ.R. 54(B), that there is no just reason for delay.
See R.C. 2505.02 and 2505.03; Civ.R. 54(B). Our precedent confirms this. See
Internatl. Bhd. of Elec. Workers, Local Union No. 8 v. Vaughn Industries, L.L.C.,
2007-Ohio-6439, paragraph two of the syllabus (“When attorney fees are requested
in the original pleadings, an order that does not dispose of the attorney-fee claim
and does not include, pursuant to Civ.R. 54(B), an express determination that there
is no just reason for delay, is not a final, appealable order.”).
{¶ 29} Here, Staple initially requested the attorney’s fees available to a
prevailing litigant under R.C. 2335.39, which provides for an award of attorney’s
fees under certain circumstances when the State is a party. Staple’s complaint also
contained a general plea for reasonable attorney’s fees as “otherwise . . . may be
provided by law.” Then, in his motion after judgment in the court of appeals, Staple
requested attorney’s fees based on both R.C. 2335.39 and R.C. 2323.51.
{¶ 30} Staple’s motion to dismiss fails for two reasons. First, his claim for
attorney’s fees under R.C. 2323.51 is not an unresolved claim. He did not ask for
attorney’s fees under R.C. 2323.51 in his complaint. Instead, he made a new claim
under that section after the judgment was issued. The Tenth District could not have
ruled on a motion for attorney’s fees under R.C. 2323.51 that was not before it when
it entered judgment. So, Staple’s R.C. 2323.51 claim has no bearing on whether
the Tenth District’s resolution of his claims was final.
{¶ 31} Second, Staple’s unresolved claim for attorney’s fees under R.C.
2335.39 does not prevent a final judgment either. R.C. 2335.39(B)(1) states a
precondition for receiving damages in appropriate cases: the “prevailing eligible
party” must file a motion requesting the award of attorney’s fees “after the court
enters final judgment in the action or appeal.” A request for attorney’s fees under
R.C. 2335.39, therefore, presupposes a final judgment. Because this claim cannot
11
SUPREME COURT OF OHIO
be resolved until there is a final judgment, it cannot prevent a final, appealable
order, as Staples argues. We therefore deny Staple’s motion to dismiss for lack of
a final, appealable order.
B. The board committed legal error in resolving Staple’s charge
against the city
{¶ 32} Staple’s unfair-labor-practice charge against the city accused it of
“[i]nterfer[ing] with, restrain[ing], or coerc[ing] [him] in the exercise of the rights
guaranteed in [R.C.] Chapter 4117,” an unfair labor practice under
R.C. 4117.11(A)(1). In response to a request for information from the board, Staple
alleged that once the union sent the city its notice to arbitrate, the city had to
arbitrate at least the procedural question of timeliness. Instead, the city outright
refused to submit to arbitration.
{¶ 33} An arbitrator has discretion to determine matters of procedural
arbitrability, such as timeliness, unless there is “‘positive assurance’ that the dispute
was not susceptible of arbitration.” Council of Smaller Ents. v. Gates, McDonald
& Co., 1998-Ohio-172, ¶ 22-33. And here, the arbitrator also explicitly has that
discretion based on the agreement’s incorporation of the Labor Arbitration Rules
of the American Arbitration Association. See Rule 3a of the American Arbitration
Association’s Labor Arbitration Rules, available at https://adr.org/media
/izfl4pme/labor-rules.pdf (accessed June 17, 2025) (“The arbitrator shall have the
power to rule on his or her own jurisdiction.”).
{¶ 34} In arguing before the board that the city’s decision to refuse
arbitration was an unfair labor practice, Staple first made a factual contention,
claiming that he never received the notice of the mayor’s denial of his grievance by
hand delivery or certified mail, as he claimed he had requested. Staple asserted that
his receipt of the mayor’s denial was required to start the clock on the 30-day period
to submit his notice to arbitrate. The board’s investigator, however, brushed over
this dispute and found credible the city’s contention that Staple received an email
12
January Term, 2025
with the mayor’s denial letter attached on November 20, 2020. Staple renewed this
argument before the Tenth District, expanding it to include his assertion that the
email did not actually contain the mayor’s denial letter as an attachment. The Tenth
District did not consider this argument, and Staple now renews it before us.
{¶ 35} The city presented to the board evidence showing that the mayor
denied the grievance in a letter dated November 19. It also presented a scanned
copy of an email that the police chief sent Staple on November 20. This email
indicates that a PDF file containing the mayor’s denial letter was attached when the
police chief later forwarded the email to counsel for the city, though it does not
specify that the same file was attached to the original email that the police chief
sent Staple. Nevertheless, although a reasonable board could have found otherwise
on the facts presented, we do not find the board’s acceptance of November 20 as
the date of Staple’s receipt of the mayor’s denial letter to be unreasonable, and we
therefore find no abuse of discretion here. See Portage Lakes Edn. Assn., 2002-
Ohio-2839, at ¶ 39-41. Accordingly, we adopt the board’s finding that Staple
received some form of notice of the mayor’s decision on November 20, 2020.
{¶ 36} Once the board determined the point at which Staple learned that his
grievance had been denied and that he would need to pursue arbitration, there was
no factual dispute on this charge remaining before the board. The board, however,
still made a series of legal determinations to reach its conclusion that the December
23 notice to arbitrate was untimely. Staple argues that the board’s implicit decision
to deem the mayor’s denial “filed” as of November 20, thereby justifying the city’s
decision not to arbitrate, impermissibly treads on the role of the arbitrator to
interpret the agreement in the first instance.
{¶ 37} Though accepting that the city sent Staple an email on November 20
with an attachment is a factual determination, the board implicitly interpreted the
terms of the agreement to conclude that the city correctly determined that the
December 23 notice to arbitrate was untimely. The agreement states that the clock
13
SUPREME COURT OF OHIO
for filing a notice to arbitrate starts with “the rendering of the decision at Step 3 or
a timely default by the Employer at Step 3,” referring to the mayor’s review of the
grievance. To prevent a default on the part of the city, the mayor was required to
“timely file a response” to the grievance. Though the term “file” is not defined in
the agreement, the agreement elsewhere says that the mayor must “render his
decision in writing and deliver to the grievant and the [union] his written decision.”
(Emphasis added.) The agreement does not specify how the written decision must
be delivered to the grievant and the union.
{¶ 38} The board determined that the notice to arbitrate was late. To do so
based on the agreement, the board logically had to conclude (1) that the mayor’s
denial letter dated November 19, 2020, and the email sent to Staple on November
20, 2020, counted as “filing” a response to the grievance so that the city never
defaulted and (2) that the 30-day clock for submitting a notice to arbitrate started
either (a) on November 19, 2020, the date that the mayor placed on his denial letter
or (b) on delivery of the written decision to Staple and the union, which was effected
either by the email Staple received on November 20, 2020, or by some other means
not in the record before November 23, 2020.
{¶ 39} In so interpreting the agreement, the board erred. The issue the board
should have considered is not whether the notice to arbitrate was timely but, rather,
who decides whether it was timely based on the agreement. An arbitrator might
have ultimately found that the city’s method to “render and deliver” the mayor’s
written denial to both Staple and the union sufficed and that the union’s notice was
therefore late. But the agreement makes clear that an arbitrator should make that
call in the first instance, as arbitration hearings “shall be conducted pursuant to the
Rules and Regulations of the American Arbitration Association,” which in turn
recognize that an arbitrator “shall have the power to rule on his or her jurisdiction.”
Rule 3a of the American Arbitration Association’s Labor Arbitration Rules,
available at https://adr.org/media/izfl4pme/labor-rules.pdf (accessed June 17,
14
January Term, 2025
2025). Under the terms of the agreement, therefore, a party to the agreement may
not unilaterally decide that the notice was late; only an arbitrator may do so.
{¶ 40} The city agreed to submit grievances to arbitration upon receiving
notice to arbitrate. The union filed a notice to arbitrate. The city could have
asserted before the arbitrator its argument that the arbitrator should dismiss the
matter for lack of jurisdiction because the notice was late, but it was not within the
city’s discretion to refuse arbitration based on its own interpretation of the
agreement.
{¶ 41} Since the board disregarded the procedure set forth in an agreement
entered into under R.C. Ch. 4117, it rendered a decision outside the bounds of its
discretion under the law. We conclude that on the face of the agreement, an
arbitrator should have ruled on the timeliness of the notice to arbitrate and that the
city’s refusal to submit this issue to an arbitrator provided at least probable cause
to believe that the city committed an unfair labor practice. We therefore affirm the
Tenth District’s judgment to the extent that it granted a writ of mandamus requiring
the board to issue a complaint and conduct a hearing on this charge.
C. The board erred in ignoring one charge against the union
{¶ 42} Staple charged the union with “[c]aus[ing] or attempt[ing] to cause”
the city to commit an unfair labor practice, a violation of R.C. 4117.11(B)(2). As
noted above, the board did not substantively address this alleged violation its
decision.
{¶ 43} The board does not have to issue findings of fact, but if it fails to
address a charge entirely, a limited writ of mandamus may issue to require SERB
to consider the charge and give its reasoning for not issuing a complaint. See State
ex rel. Ohio Assn. of Pub. School Emps./AFSCME, AFL-CIO v. State Emp.
Relations Bd., 1992-Ohio-119, ¶ 11-13 (this court could not assess whether the
board had acted arbitrarily when it summarily dismissed a charge as untimely filed);
compare Collins v. Collins, 2011-Ohio-2087, ¶ 41 (9th Dist.) (a trial court need not
15
SUPREME COURT OF OHIO
address every factor it considered in its analysis when writing its judgment entry,
but “it is axiomatic that a reviewing court should be able to discern [the trial court’s]
reasons”). In short, the board may not have to make a full factual determination at
this stage, but it does have to provide a basic rationale when it dismisses a charge.
Its failure to do so here justifies the Tenth District’s issuance of a limited writ
requiring the board to “consider all facts and circumstances relevant to the alleged
violation of R.C. 4117.11(B)(2), and to issue a new order explaining the reasoning
for its decision on that charge,” 2024-Ohio-140 at ¶ 43 (10th Dist.). We therefore
affirm that portion of the Tenth District’s judgment.
D. The board did not abuse its discretion in applying Staple’s waiver
{¶ 44} Staple also charged the union with a violation of R.C. 4117.11(B)(6)
for “[f]ail[ing] to fairly represent” him as a public employee in its bargaining unit.
In establishing probable cause in support of this violation, “the charging party bears
the initial burden of showing that the union acted arbitrarily by failing to take a
basic and required step.” State ex rel. Fuller v. State Emp. Relations Bd., 2011-
Ohio-1599, ¶ 28 (10th Dist.). If the charging party meets this burden, “a
presumption arises that the union acted arbitrarily,” and the “union can rebut this
presumption with evidence of a justification or viable excuse for its action or
inaction.” Id.
{¶ 45} Staple established that it was the union’s responsibility to timely file
a notice of arbitration. Under the agreement, if the union chose to arbitrate, any
failure to file a notice to arbitrate in a timely manner would be a violation of
R.C. 4117.11(B)(6); untimeliness constitutes a “failure to take a basic and required
step.” In re OSCEA/AFSCME, Local 11, SERB No. 98-010, at 3-58 (July 22,
1998). The union was also capable of calculating the deadline to file and knew that
Staple intended to arbitrate. The union has never claimed otherwise. Under the
board’s precedent, then, Staple satisfied his initial burden. See id.
16
January Term, 2025
{¶ 46} The burden then shifted to the union to explain itself. It responded
that Staple had signed a waiver, freeing the union of its obligation to support him.
The union claimed that because of that waiver, it no longer had a duty to calculate
the timeliness of the filing of Staple’s arbitration notice.
{¶ 47} The terms of Staple’s waiver explicitly hold the union “harmless
from all duties of representation and liabilities arising out of the arbitration hearing
to be held in reference to this grievance and all subsequent proceedings.”
(Capitalization deleted.) The waiver also specifies that Staple “agree[d] to waive
[his] right of representation by the [union].” (Capitalization deleted.) Staple’s
waiver further states, “I understand that the [union] will cooperate in any
appropriate manner consistent with this agreement and the applicable collective
bargaining agreement to which it is a party to secure my right to arbitrate.”
{¶ 48} The waiver clearly frees the union from having to represent Staple
at the arbitration proceedings. Staple, however, did not waive at least one right that
imposes a corresponding duty on the union: the right to its aid in bringing his
grievance to arbitration. And because of the limitation on what rights Staple
waived, the union retains its duty to “cooperate in any appropriate manner” to
ensure that Staple can arbitrate if he so desires. Moreover, the waiver
acknowledges that there will likely be an arbitration hearing, as the union is
indemnified from an arbitration hearing “to be held in reference to this grievance.”
(Capitalization deleted and emphasis added.) So, although the union is indemnified
from any negative effects that may arise from the hearing, it has not been absolved
of its responsibility to timely file a notice to arbitrate. If the union had failed in this
remaining duty, there could be grounds to suggest that it failed to represent Staple
as required under R.C. 4117.11(B)(6).
{¶ 49} The board found that the union had “complied with its agreement
with Mr. Staple to submit a notice to arbitrate and did so per the instructions of Mr.
Staple and his representative.” In his report, the board’s investigator highlighted
17
SUPREME COURT OF OHIO
that Worhatch declined the union’s offer to file the notice in late November 2020,
insisting on drafting his own. The investigator also pointed out that Worhatch sent
the notice to the union on December 21, with instructions to file it before January
5, 2021. The union filed the notice to arbitrate on December 23.
{¶ 50} The board determined that “any alleged failure to process the request
was not on the part of the Union.” To reach this determination, the board must have
implicitly found that the union’s efforts fulfilled any remaining obligations it had
to Staple that he had not waived. Thus, the board accepted that the union’s decision
to merely follow Worhatch’s filing instructions was sufficient cooperation and that
any errors in timing were therefore Staple’s fault.
{¶ 51} The Tenth District concluded otherwise. It found that the union’s
duty to cooperate required more than following Worhatch’s instructions. 2024-
Ohio-140 at ¶ 41 (10th Dist.). The court reasoned that if the union independently
knew or had reason to know that the correct filing deadline was December 21, then
the union violated its duty to Staple when it failed to timely file a notice to arbitrate.
Id. Although Staple waived representation, the Tenth District found that the union
retained a duty to assist in the arbitration process by filing a timely notice, as this
was the union’s “sole and exclusive responsibility” under the agreement. Id. at ¶ 35.
The court found that this duty included a responsibility to check the deadline,
independent of Worhatch’s miscalculated due date. Id. at ¶ 41. The Tenth District
concluded that the board abused its discretion when it dismissed this charge on the
basis that the union was merely following Worhatch’s calculations.
{¶ 52} We disagree. Staple made clear that he did not want the union to run
the show; rather, he wanted it to play only the limited part he needed so that his
counsel could proceed in representing him. The union agreed only to cooperate
with outside counsel and accepted that Staple did not want its aid beyond that. The
union ceded to Worhatch’s judgment, trusting him to run his client’s case aright.
In doing so, it stayed in line with Staple’s waiver. The board, therefore, did not
18
January Term, 2025
abuse its discretion when it dismissed this charge against the union, and the Tenth
District was wrong to hold otherwise. We therefore reverse the Tenth District’s
judgment to the extent that it granted a writ of mandamus as to the
R.C. 4117.11(B)(6) charge against the union.
III. CONCLUSION
{¶ 53} For the foregoing reasons, we deny Staple’s motion to dismiss for
want of a final and appealable order and we affirm the judgment of the Tenth
District Court of Appeals with regard to the unfair-labor-practice charge against the
City of Ravenna and the board’s failure to address the R.C. 4117.11(B)(2) charge
against the Fraternal Order of Police, Ohio Labor Council, Inc. We reverse,
however, the appellate court’s judgment with respect to the R.C. 4117.11(B)(6)
charge against the union.
{¶ 54} The board shall therefore vacate its order dismissing the unfair-
labor-practice charge against the city, issue an order finding that probable cause
exists to believe that an unfair labor practice has been committed, and commence
further proceedings as appropriate in accordance with that finding. And the board
shall consider the union’s alleged violation of R.C. 4117.11(B)(2) and issue a new
order explaining the reasons for its decision on that charge.
Motion to dismiss denied,
and judgment affirmed in part
and reversed in part.
__________________
Law Offices of S. David Worhatch and S. David Worhatch, for appellee.
Dave Yost, Attorney General, and Lori J. Friedman, Assistant Attorney
General, for appellant State Employment Relations Board.
Zashin and Rich Co., L.P.A., and Scott H. DeHart, for appellant City of
Ravenna.
19
SUPREME COURT OF OHIO
Michael W. Piotrowski, for appellant Fraternal Order of Police, Ohio Labor
Council, Inc.
__________________
20