issuing a limited writ directing SERB “to consider all the facts and circumstances of this case relevant to the question of timeliness, and to issue some explanation setting forth its reasoning”
How later courts described this case
- issuing a limited writ directing SERB “to consider all the facts and circumstances of this case relevant to the question of timeliness, and to issue some explanation setting forth its reasoning”
Written by the judges who cited it.
The opinion
Holmes, J.,
dissenting. I dissent, in that there was no abuse of discretion in SERB’S entering the order that relator’s unfair labor practice charge had alleged acts which occurred more than ninety days prior to the unfair labor practice charge being filed. The facts seem to be undisputed here that on January 15, 1986, OAPSE filed an unfair labor practice charge with SERB alleging that the employer had engaged in a series of unfair labor practices, including the time clock and sign-in procedure, for the employees represented by OAPSE. During the course of SERB’S investigation of the charge, OAPSE submitted to SERB the affidavit of one Joyce Brackett in which she states that the employer instituted the time clock and sign-in procedure on August 1, 1985.
R.C. 4117.12(B) provides in relevant part: “The 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 * * Given that the only claim remaining before SERB was the time clock and sign-in procedure, which act occurred more than ninety days prior to the filing of OAPSE’s January 15, 1986 charge, SERB refused to prosecute and dismissed OAPSE’s charge as untimely.
*156 Mandamus is an extraordinary writ and is allowed only where “a clear legal right thereto has been shown.” State, ex rel. Coen, v. Indus. Comm. (1933), 126 Ohio St. 550, 553 , 186 N.E. 398, 399 . Mandamus will lie to compel a state agency to act or perform statutory duties, but will not issue to control the exercise of the agency’s discretion unless an “abuse of such discretion affirmatively appears.” Id. at 554 , 186 N.E. at 399 . An abuse of discretion warranting the issuance of a writ of mandamus and judicial interference with the exercise of administrative discretion “implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.” State, ex rel. Shafer, v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581 , 590-591, 50 O.O. 465 , 469, 113 N.E.2d 14 , 19; see, also, Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261 , 533 N.E.2d 264, 267 .
Accordingly, it is only those “rare instances where an administrative body’s ruling cannot be reconciled with the facts or reason which must be remedied by the issuance of the extraordinary writ of mandamus.” State, ex rel. Smith, v. Indus. Comm. (1986), 26 Ohio St.3d 128, 132 , 26 OBR 110, 113, 498 N.E.2d 447, 449 . Where there is a “ ‘ “ ‘rational connection between the facts found and the choice made’ ” ’ ” by the administrative agency, mandamus will not issue. Id. at 132 , 26 OBR at 113, 498 N.E.2d at 450 .
SERB acted rationally, and clearly did not abuse its discretion in determining it would not prosecute relator’s charge because SERB considered it untimely. The unfair labor practice charge alleged a unilateral change regarding the time clock and sign-in procedure. The affidavit submitted by OAPSE indicated that OAPSE did not file its charge within ninety days of the unilateral change. R.C. 4117.12(B).
Moyer, C.J., and Wright, J., concur in the foregoing dissenting opinion.