State ex rel. Intl. Union of Operating Engineers, Local 20 v. State Employment Relations Bd. , 2023 Ohio 1253 ( 2023 )

[Cite as State ex rel. Intl. Union of Operating Engineers, Local 20 v. State Employment Relations Bd., 2023-
Ohio-1253.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. International Union of :
Operating Engineers, Local 20,
:
Relator-Appellant, No. 22AP-515
: (C.P.C. No. 21CV-3508)
v.
: (ACCELERATED CALENDAR)
State Employment Relations Board,
:
Respondent-Appellee.
:
D E C I S I O N
Rendered on April 18, 2023
On brief: Law Office of Robert Mitchell, and Robert
Mitchell, for appellant. Argued: Robert Mitchell.
On brief: Dave Yost, Attorney General, and Sherry M.
Phillips, for appellee. Argued: Sherry M. Phillips.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Relator-appellant, International Union of Operating Engineers, Local 20
(“Union”), appeals from a decision and entry of the Franklin County Court of Common
Pleas denying its request for a writ of mandamus ordering respondent-appellee, State
Employment Relations Board (“SERB”), to find probable cause on the Union’s claim of an
unfair labor practice. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} This matter involves the Union’s claim of an unfair labor practice against the
Board of Education of the Cincinnati City School District (“school district”). The Union,
which is the exclusive bargaining unit of carpenter foremen and carpenters employed by
the school district, alleged in its unfair labor practice charge that the school district violated
No. 22AP-515 2
Ohio’s collective bargaining law when it refused to pay double-time wages for work
performed during the COVID-19 pandemic in accordance with the parties’ collective
bargaining agreement (“CBA”). More specifically, Article 8.2 of the CBA provides, in
pertinent part:
When schools are closed because of an epidemic or other public
calamity, and employees are not required to report to work, any
employee in this bargaining unit required to work during such
calamity, shall receive double the regular rate.
Additionally, Article 19 of the CBA prohibits strikes and lockouts, stating “the Union agrees
that it will not authorize any strike, work stoppage or other action during the term of this
Agreement,” and the school district “further agrees that it will not lock out its employees.”
Further, the CBA includes a grievance procedure and defines a grievance as “an alleged
violation of a specific article and section of this Agreement arising under and during the
term of this Agreement.” (CBA Article 7.1.)
{¶ 3} In response to orders issued by the State of Ohio Department of Health in
response to the COVID-19 pandemic, the school district closed on March 16, 2020. From
March 16 through April 20, 2020, most Union members stayed home and received their
regular wages; however, those union members that did report to work during that period
received double-time wages.
{¶ 4} During this interim period, the school district negotiated memoranda of
understanding with other unions representing a variety of non-teaching employees. Under
these memoranda of understanding, the non-teaching employees agreed to return to work
at straight-pay wage rates. However, the Union and the school district could not reach an
agreement on a comparable memorandum of understanding under which the carpenters
would work for straight-pay wages while the teachers worked remotely and students stayed
at home. The parties disagreed about whether the double-time wages provision in CBA
Article 8.2 continued to apply when some school district employees were reporting to work.
{¶ 5} After failing to reach an agreement, the school district advised the Union that,
effective April 23, 2020, the school district had no necessary current work for the
bargaining unit members of the Union to perform and, as a result, the school district
advised it would no longer pay Union members. The school district reasoned that because
school buildings remained closed and students and teachers remained at home, there were
No. 22AP-515 3
no essential tasks that it needed Union carpenters to perform. The Union construed the
school district’s position as an improper lockout of the Union’s bargaining unit members.
{¶ 6} On April 24, 2020, the Union executed a memorandum of understanding
with the school district in which the Union members agreed to work for straight-pay wages.
The memorandum of understanding provided that the school district “recognizes and
agrees that bargaining unit employees returning to work under this [memorandum of
agreement] might be entitled to double their regular rate of pay, pursuant to Article 8,
Section 2 of the parties’ CBA,” but “[i]n the spirit of cooperation and shared sacrifice, the
Union agrees to return to work at their regular rate of pay.” (Memorandum of Agreement.)
Beginning April 27, 2020, the Union members returned to work for normal hours at
straight-pay wages. Despite signing the memorandum of understanding, the Union
maintains it did not agree with the school board’s interpretation of Article 8.2 of the CBA.
{¶ 7} Subsequently, on June 20, 2020, the Union filed its unfair labor practice
charge with SERB, alleging the school district engaged in an illegal lockout from April 23 to
April 27, 2020 in order to force the Union to accept only straight-time pay in lieu of double-
time pay. The Union did not file a grievance with the school district in accordance with the
terms of the CBA.
{¶ 8} After reviewing the evidence and the parties’ responses, the SERB
investigator issued a memorandum recommending SERB dismiss the Union’s charge for
lack of probable cause to believe that the school district had committed an unfair labor
practice. SERB dismissed the charge with prejudice on September 3, 2020, finding no
probable cause and concluding “the matter is purely contractual, encompassing no
arguable statutory violation.” (Dismissal of Unfair Labor Practice Charge.) SERB
additionally concluded the Union did not present any evidence supporting a lockout
violation or other violation of R.C. 4117.11(A). Lastly, SERB noted the issues had been
resolved for over two months by the time the Union filed the unfair labor practice charge.
{¶ 9} The Union then filed a motion for reconsideration of the dismissal on
October 5, 2020, arguing the dispute was not purely contractual and that the school
district’s refusal to allow the Union members to return to work unless the Union agreed to
the school district’s interpretation of the CBA constituted an improper lockout. SERB
denied the motion for reconsideration.
No. 22AP-515 4
{¶ 10} On June 4, 2021, the Union filed a petition for a writ of mandamus in the trial
court to direct SERB to find probable cause of an unfair labor practice and proceed to a
hearing. Both parties filed motions for summary judgment, and the trial court converted
those motions into briefs pursuant to the terms of an April 11, 2022 stipulation. The trial
court then denied the Union’s petition for a writ of mandamus, finding SERB did not abuse
its discretion in concluding the dispute was a matter of contractual interpretation of the
parties’ CBA and that the appropriate method of resolving a contractual dispute was
through the grievance procedure contained in the CBA. Thus, the trial court concluded
SERB did not abuse its discretion in dismissing the unfair labor practice charge for lack of
probable cause. The trial court journalized its decision in a July 25, 2022 decision and
entry. The Union timely appeals.
II. Assignment of Error
{¶ 11} The Union assigns the following sole assignment of error for our review:
The trial court erred in denying Relator’s petition for writ of
mandamus, concluding that SERB did not abuse its discretion
by dismissing Relator’s unfair labor practice charge for lack of
probable cause.
III. Analysis
{¶ 12} In its sole assignment of error, the Union argues the trial court erred in
denying its petition for a writ of mandamus compelling SERB to find probable cause of the
Union’s unfair labor practice charge.
{¶ 13} “Mandamus is a writ, issued in the name of the state to an inferior tribunal, a
corporation, board, or person, commanding the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01. To be
entitled to a writ of mandamus, the Union must show: (1) it has a clear legal right to the
requested relief, (2) that SERB is under a clear legal duty to provide the requested relief,
and (3) the Union has no plain and adequate remedy in the ordinary course of law. State
ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, ¶ 13, citing State ex rel.
Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, ¶ 6.
{¶ 14} R.C. Chapter 4117 governs collective bargaining for public employees. Under
R.C. 4117.12(B), SERB must issue a complaint and conduct a hearing on an unfair labor
practice charge when it has probable cause for believing a violation has occurred.
No. 22AP-515 5
Specifically, “[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.” R.C. 4117.12(B).
While R.C. Chapter 4117 does not define “probable cause,” the Supreme Court of Ohio has
construed the term, in the context of R.C. 4117.12(B), to require SERB to “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.” State ex rel.
Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d 533,
2002-Ohio-2839, ¶ 38.
{¶ 15} When SERB makes a probable cause determination under R.C. 4117.12(B),
the probable cause determination is not reviewable by direct appeal. State ex rel. Portage
Lakes Edn. Assn. at ¶ 35, citing Ohio Assn. of Pub. School Emps., Chapter 643,
AFSCME/AFL-CIO v. Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159 (1991),
syllabus. “Instead, in the absence of an adequate remedy in the ordinary course of law, ‘an
action in mandamus is the appropriate remedy to obtain judicial review of orders by [SERB]
and dismissing unfair labor practice charges for lack of probable cause.’ ” Portage Lakes
Edn. Assn. at ¶ 35, quoting State ex rel. Serv. Emps. Internatl. Union, Dist. 925 v. State
Emp. Relations Bd., 81 Ohio St.3d 173 (1998), syllabus. Thus, a writ of mandamus will
issue where SERB has abused its discretion in dismissing unfair labor practice charges. Id.;
State ex rel. Alben v. State Emp. Relations Bd., 76 Ohio St.3d 133, 135 (1996). An abuse of
discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. Portage
Lakes Edn. Assn. at ¶ 35, citing State ex rel. Elsass v. Shelby Cty. Bd. of Commrs., 92 Ohio
St.3d 529, 533 (2001).
{¶ 16} “In reviewing an order of an administrative agency, an appellate court’s role
is more limited than that of a trial court reviewing the same order.” Lorain City School
Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 260-61 (1988). While the
trial court must examine the evidence, “[s]uch is not the charge of the appellate court.” Id.Instead, the appellate court determines only whether the trial court has abused its
discretion. Id. As to purely legal questions, however, this court exercises plenary review.
Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993).
No. 22AP-515 6
{¶ 17} Through its petition for a writ of mandamus, the Union argued the school
district committed an unfair labor practice pursuant to R.C. 4117.11(A)(1), (5), and (7). In
pertinent part, R.C. 4117.11 provides:
(A) It is an unfair labor practice for a public employer, its
agents, or representatives to:
(1) Interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in Chapter 4117. of the Revised Code
or an employee organization in the selection of its
representative for the purposes of collective bargaining or the
adjustment of grievances;
***
(5) Refuse to bargain collectively with the representative of his
employees recognized as the exclusive representative or
certified pursuant to Chapter 4117. of the Revised Code;
***
(7) Lock out or otherwise prevent employees from performing
their regularly assigned duties where an object thereof is to
bring pressure on the employees or an employee organization
to compromise or capitulate to the employer’s terms regarding
a labor relations dispute.
{¶ 18} The Union asserts that the school district created an impermissible lockout
and violated its rights under R.C. Chapter 4117 when it informed the Union it had no
necessary current work for its members to perform beginning April 23, 2020 after the
parties failed to reach an agreement on a memorandum of understanding related to a
return to work on straight-pay wages. The Union argues the school district’s negotiating
tactic was designed to pressure the Union into agreeing to an interpretation of the CBA it
would not have otherwise agreed to. When the school district informed Union members
they would not be allowed back into buildings and would not be paid after April 22, 2020,
the Union asserts it had no choice but to sign the memorandum of understanding agreeing
to straight-pay wages. The Union argues this conduct is enough to demonstrate, at
minimum, probable cause of an unfair labor practice such that SERB should have issued a
complaint and proceeded to a hearing on the matter.
No. 22AP-515 7
{¶ 19} SERB responds that it did not abuse its discretion when it dismissed the
unfair labor practice charge for lack of probable cause because the Union did not
demonstrate that the school district had committed a statutory violation of R.C. 4117.11(A).
After conducting its investigation, SERB determined the issue of whether the carpenters
wrongly refused to return to work unless they were paid double-time wages or whether the
school district improperly refused to schedule the carpenters for work unless they agreed
to straight-time pay was solely a contractual dispute related to the meaning of Article 8.2
of the CBA.
{¶ 20} As noted above, Article 8.2 of the CBA provides “[w]hen schools are closed
because of an epidemic or other public calamity, and employees are not required to report
to work, any employee in this bargaining unit required to work during such calamity, shall
receive double the regular rate.” (Emphasis added.) (CBA Article 8.2.) In its own
Statement of Position provided to the SERB investigator, the Union stated it interpreted
Article 8.2 as requiring double-time wages for carpenters unless all school district
employees were working, while the school district interpreted the same language as
requiring double-time wages for carpenters only where the carpenters were the only school
district employees working. Thus, as the Union acknowledged the dispute related to
differing interpretations of the CBA, SERB concluded the issue was purely contractual in
nature. Because the CBA additionally included a grievance arbitration procedure, SERB
concluded the Union’s appropriate remedy would have been to file a grievance pursuant to
the terms of the CBA. Therefore, SERB found there was no probable cause to support the
Union’s unfair labor practice charge and dismissed the claim.
{¶ 21} The trial court reviewed SERB’s probable cause determination and found
SERB did not abuse its discretion in finding no probable cause to support the unfair labor
practice claim. Having reviewed the record, we agree with the trial court. Here, the Union
repeatedly acknowledged the dispute was a matter of contract interpretation, both in its
filings before SERB and in its petition for a writ of mandamus. The Union even reiterates
its argument related to the differing contract interpretations in its appeal to this court. In
other words, the Union’s argument all along was that the school district was in violation of
the terms of the CBA. For such a dispute, the Union’s proper remedy was to follow the
grievance procedure as set forth in the CBA and contemplated in R.C. 4117.10(A). The
No. 22AP-515 8
Union’s own failure to follow the grievance procedure in the CBA does not create probable
cause to support its subsequent claim of an unfair labor practice. See I.A.F.F. Local 92 v.
Toledo, 136 Ohio App.3d 56, 62 (6th Dist.1999) (“[r]esolution of alleged unfair labor
practices are within the exclusive jurisdiction of the SERB” pursuant to R.C. 4117.12(A), but
“the issue of whether the collective bargaining agreement has been violated is a matter to
be resolved by arbitration” through the grievance procedure); E. Cleveland v. E. Cleveland
Firefighters Local 500, I.A.F.F., 70 Ohio St.3d 125, 128 (1994) (“[t]he General Assembly’s
vesting of SERB with exclusive jurisdiction to determine unfair labor practices defined in
R.C. 4117.11 was never meant to foreclose parties to a collective bargaining agreement from
settling differences in interpreting provisions of their agreement through the process of
binding arbitration”) .
{¶ 22} The Union sets forth several arguments as to why both SERB and the trial
court erroneously concluded there was no probable cause to support the unfair labor
practice charge, all of which lack merit. First, the Union asserts it is an oversimplification
of the issue to view it as purely a contract dispute. Though the Union acknowledges the
parties had differing interpretations of the contract, it asserts the differing interpretations,
themselves, are not the unfair labor practice. Instead, the Union argues it was the manner
in which the school district handled the differing contract interpretations that created the
unfair labor practice. Stated another way, the Union’s position is not that there was a
contractual dispute; it is that the school board, in announcing it intended not to call the
carpenters to work, forced the Union to agree to an interpretation of the contract it did not
want to agree to.
{¶ 23} The Union’s position ignores, however, that the CBA also provided for a
grievance procedure. Thus, if the Union truly believed it was being coerced into signing, it
could have filed a grievance to obtain immediate injunctive relief. The Union chose not to
do so, thereby undercutting its position that it had no choice but to sign the memorandum
of understanding. The Union does not explain why it did not avail itself of the grievance
procedure.
{¶ 24} Additionally, the Union argues that concluding the matter is purely one of
contract interpretation ignores the four-day period from April 23 to April 27, 2020 in which
the Union says the school district effectively locked out the carpenters from work. However,
No. 22AP-515 9
by the time the Union filed its unfair labor practice claim with SERB, nearly two months
had passed since it signed the memorandum of understanding agreeing to straight-pay
wages. Moreover, by the time of the SERB investigation, the school district had paid the
carpenters for the four-day period from April 23 to April 27, 2020, indicating the parties
had resolved any remaining dispute.
{¶ 25} Finally, the Union asserts that refusing to find probable cause of an unfair
labor practice represents an endorsement of the school district’s conduct during these
negotiations and could result in the school district refusing to pay double-time wages
pursuant to Article 8.2 in the future. However, the memorandum of understanding related
to the interpretation of Article 8.2 specifically states “[t]his agreement is reached on a non-
precedent setting basis, and shall not constitute evidence of practice relative to the parties’
interpretation or application of the current or any subsequent Collective Bargaining
Agreement.” (Memorandum of Understanding at 2.) Thus, the Union’s stated concerns
about future consequences of its own signing of the memorandum of understanding are
unfounded given the express language of the agreement.
{¶ 26} For all of these reasons, we agree with the trial court that SERB did not abuse
its discretion in determining that the Union did not demonstrate probable cause to support
its claim of an unfair labor practice and in dismissing the claim. Accordingly, the trial court
did not err in denying the Union’s petition for a writ of mandamus. We overrule the Union’s
sole assignment of error.
IV. Disposition
{¶ 27} Based on the foregoing reasons, the trial court did not err in denying the
Union’s petition for a writ of mandamus when it determined SERB did not abuse its
discretion in finding no probable cause to support the Union’s claim of an unfair labor
practice. Having overruled the Union’s sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J., and EDELSTEIN, J., concur.