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State ex rel. Hudak v. State Employment Relations Board

Court of Appeals of Ohio, Fifth District

June 25, 2013

STATE OF OHIO, EX REL. DOUGLAS HUDAK Appellant
v.
STATE EMPLOYMENT RELATIONS BOARD Appellee

Civil appeal from the Stark County Court of Common Pleas, Case No.2012CV02425

For Appellant DOUGLAS BOND JENNIFER CLEARY

For Appellee MICHAEL DEWINE Labor Relations Section Canton, LORI WEISMAN Labor Relations Section

Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

OPINION

Gwin, P.J.

{¶1} Appellant appeals the December 6, 2012, judgment entry of the Stark County Common Pleas Court, granting appellee's motion for summary judgment, overruling appellant's motion for summary judgment, and entering judgment for appellee on the petition.

Facts & Procedural History

{¶2} Relator-Appellant Douglas Hudak was employed by Stark County Department of Job and Family Services ("SCDJFS"). In September of 2010, SCDJFS initiated disciplinary proceedings against appellant and charged him with sexual harassment and threatening management. At a pre-disciplinary conference in October of 2010, a hearing officer found claims sufficient to terminate appellant. SCDJFS terminated appellant on November 18, 2010.

{¶3} On December 2, 2010, appellant's union, the United Steelworkers Union, Local 9187 ("union") filed a grievance on appellant's behalf. An arbitration hearing was held on July 26, 2011. On September 19, 2011, the arbitrator determined appellant's termination was appropriate.

{¶4} On October 13, 2011, appellant sent an email to union representative Robert Andrews ("Andrews"), stating the following:

"[B]ob I dropped off this same question at your office but my lawyer needed an answer to this specific question which I believe I already know the answer is there any provision in the collective bargaining agreement that allows a further appeal in the court?"

{¶5} In response, Andrews sent the following email to appellant on October 14, 2011:

"Doug,
In accordance with the CBA (page 9 - next to last paragraph) "The decision of the Arbitrator shall be binding upon the parties." Take care, Bob."

{¶6} Appellant filed with appellee State Employment Relations Board ("SERB") an unfair labor practice charge against the union on March 20, 2012. He claimed the union violated its duty under O.R.C. § 4117.11(B)(6) when it failed to seek to vacate or modify the arbitrator's September 19, 2011 decision. More specifically, appellant asserted the failure of the union to file an appeal of the arbitrator's decision, in conjunction with the email from Andrews, showed that the union was acting in an arbitrary manner and in bad faith, deceiving him about the union's right to appeal. Alternatively, appellant argued the union acted with gross negligence in being unaware that the union had the right to appeal the arbitrator's decision.

{¶7} Judith Knapp ("Knapp"), a labor-relations specialist, investigated the matter for SERB and requested that appellant and the union provide responses to certain requests for information. Appellant detailed the conduct of the union he believed violated O.R.C. § 4117.11. The union denied it committed an unfair labor practice and stated appellant's charge lacked merit. After the parties submitted their responses to Knapp's requests for information, Knapp compiled a May 7, 2012, memorandum finding that,

"On October 14, 2011, Mr. Hudak knew or should have known that the Union would not be appealing his decision. Based on that date, the charge should have been filed on or before January 12, 2012, but was not filed until March 20, 2012. Mr. Hudak did not provide any information or documentation to toll the statute of limitations."

{¶8} Knapp recommended that SERB dismiss the charge with prejudice as being untimely filed. On June 1, 2012, SERB dismissed appellant's unfair labor practice charge with prejudice for lack of probable cause and as being untimely.

{¶9} Appellant then filed a complaint in the Stark County Court of Common Pleas on August 1, 2012, for a writ of mandamus to compel SERB to find his unfair labor practice charge was timely and that probable cause existed to support his unfair labor practice charge. SERB submitted to the trial court a certified copy of the records received and produced by SERB in relation to appellant's charge on October 24, 2012. On the same day, SERB submitted a notice of filing to supplement the record and indicated two documents were inadvertently omitted from the original filing: the initial request from Knapp to the union and the copy of Knapp's Investigator's Memorandum. A certified copy of these two documents was clocked by the Stark County Clerk of Courts on November 29, 2012. Appellant filed a notice of filing a supplement to the record on December 3, 2012, and attached a ...


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