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State ex rel. Murray v. Ohio State Employment Relations Board

Court of Appeals of Ohio, Tenth District

March 9, 2017

State ex rel. David Murray, Relator,
v.
Ohio State Employment Relations Board, Respondent.

         IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION

          Daniel H. Klos, for relator.

          Michael DeWine, Attorney General, and Aaron Johnston, for respondent.

          DECISION

          KLATT, J.

         {¶ 1} Relator, David Murray, commenced this original action in mandamus seeking an order compelling respondent, State Employment Relations Board ("SERB"), to find that he timely filed his unfair labor practice ("ULP") charges, and to issue ULP complaints against his employer, Columbus Division of Police, and his union, Capital Fraternal Order of Police, City Lodge 9 ("FOP").

         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate found that relator failed to demonstrate that SERB abused its discretion by finding that relator's filing of the ULP charges was untimely. Therefore, the magistrate has recommended that this court deny relator's request for a writ of mandamus.

         {¶ 3} Relator has filed objections to the magistrate's decision. Before we address the objections, it is important to identify the statutory framework at issue.

         {¶ 4} R.C. Chapter 4117 addresses public employees collective bargaining. "It was clearly the intention of the General Assembly to vest SERB with broad authority to administer and enforce R.C. Chapter 4117. * * * This authority must necessarily include the power to interpret the Act to achieve its purposes." Lorain City School Dist Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 260 (1988); State Emp. Relations Bd. v. Miami Univ., 71 Ohio St.3d 351, 353 (courts "must afford deference to SERB's interpretation of R.C. Chapter 4117").

         {¶ 5} Pursuant to R.C. 4117.12(B), a party alleging an unfair labor practice before SERB must bring the charge within 90 days of the alleged unfair labor practice.[1] By enacting the 90-day limitations period in R.C. 4117.12(B), the General Assembly meant to require employees claiming unfair labor practices to seek redress promptly. State Emp. Relations Bd. v. Ohio State Univ., 36 Ohio App.3d 1 (10th Dist.1987). SERB has held that the 90-day limitations period begins to run when (1) the charging party knows or has constructive knowledge of the unfair labor practice and (2) actual damage to the charging party is caused by the unfair labor practice. In re City of Barberton, SERB No. 88-008 (July 5, 1988). Damage occurs when the charging party becomes or should become aware of the injury. Hubbard Twp. Bd. of Trustees v. SERB, SERB No. 4-36 (Apr. 11, 1989). SERB's determination of how to calculate that 90-day period is entitled to deference. Miami Univ. at 353.

         {¶ 6} Mandamus will issue to correct an abuse of discretion by SERB. An abuse of discretion means an unreasonable, arbitrary, or unconscionable decision. State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, ¶ 35.

         {¶ 7} Relator's first four objections relate to his 2011-ULP-01-0027 and 2011-ULP-01-0028 charges (failure to arbitrate). In these objections, relator challenges the magistrate's conclusion that SERB did not abuse its discretion in using the date that relator filed his federal lawsuit against his employer (September 3, 2010), as the start of the 90-day limitations period for filing these ULP charges.

         {¶ 8} Relator essentially makes two arguments for why SERB abused its discretion in using September 3, 2010, the date relator filed his federal lawsuit, as the start date in calculating the 90-day limitations period. First, relator argues that September 3, 2010 is an arbitrary date because the collective bargaining agreement ("CBA") does not specify when arbitration must occur. Second, relator argues that he had not suffered any actual damage on September 3, 2010. Neither argument supports the conclusion that SERB abused its discretion.

         {¶ 9} Even though the CBA did not specify when arbitration must occur, relator alleged in his federal lawsuit a violation of his rights under the CBA, including his right to arbitration. In addition, in a letter explaining why relator filed the lawsuit, his counsel indicated he filed the federal lawsuit, at least in part, to assert his client's right to arbitrate his termination. Relator filed his 2011-ULP-01-0027 and 0028 charges with SERB 122 days after he filed his federal lawsuit. These charges are premised on his employer's failure to arbitrate his termination. Because the failure to arbitrate his termination was the basis for these ULP charges as well as part of his federal claims, we agree with the magistrate that SERB did not abuse its discretion in concluding that relator knew or had constructive knowledge of these alleged unfair labor practices at the time he filed his federal complaint.

         {¶ 10} Relator also argues that he was not yet aware that he had suffered any actual damage when he filed the federal complaint. He contends that because potential arbitration dates were still being discussed at the time he filed his federal complaint, he had no knowledge of actual damage relating to the failure to arbitrate. Therefore, he contends that SERB abused its discretion in using the federal filing date as the start date for calculating the 90-day limitations period. We disagree.

         {¶ 11} As noted by the magistrate, relator's prayer for relief in the federal lawsuit included a demand for reinstatement, back pay and the value all other benefits due, pre- and post-judgment interest, attorney fees, court costs, and compensatory damages for emotional distress, shame, embarrassment, loss of self-esteem as well as punitive damages. Given the prayer for relief contained in the federal lawsuit, we cannot conclude that SERB abused its discretion in determining relator had at least constructive knowledge of actual damage when he filed his federal lawsuit.

         {¶ 12} Relator was terminated from his employment in 2008. Relator grieved his termination pursuant to the terms of the CBA. His grievance was rejected and relator then sought to have his grievance arbitrated. When no arbitration of his grievance occurred after nearly two years, relator filed a federal lawsuit, in part, to enforce his right to arbitrate under the CBA. Relator's prayer for relief asserted actual damage. After filing the federal lawsuit, relator waited another 122 days to file two unfair labor practice charges with SERB, both of which are premised on the failure to arbitrate. Given these facts, we agree with the magistrate that relator has not shown that SERB abused its discretion in dismissing relator's 2011-ULP-01-0027 and 0028 charges due to relator's failure to comply with the 90-day limitations period contained in R.C. 4117.12(B). For these reasons, we overrule relator's first four objections.

         {¶ 13} Relator's fifth and sixth objections relate to his 2011-ULP-12-0330 and 2011-ULP-12-0331 charges. These charges are premised on relator's allegation that his employer and union engaged in unfair labor practices by improperly settling his grievance. Although relator admits he was told on June 23, 2011 that his grievance had been settled in July 2010, he argues that he did not have knowledge of the conduct that is the basis for these ULP charges on June 23, 2011, nor did he suffer actual damage as of that date. He also argues that SERB should have applied the doctrine of equitable tolling in calculating the 90-day limitations period. Relator seems to argue that he did not actually suffer damage until September 29, 2011 when the settlement agreement was officially signed. Again, we disagree.

         {¶ 14} It is undisputed that relator was told on June 23, 2011 that his grievance had been settled. Based on that undisputed fact, SERB did not abuse its discretion in concluding that relator had actual or constructive knowledge of these UPL charges on that date. We note that after being told his grievance had been settled, relator immediately sought leave to amend his federal complaint to include claims based on what he contended was a fraudulent settlement designed to deny him his right to arbitration. Again, his federal complaint alleged actual damage. Based on these facts, relator has not shown that SERB abused its discretion by concluding that relator suffered actual harm as of June 23, 2011.

         {¶ 15} Relator learned of the settlement agreement and the alleged fraud on June 23, 2011. Relator asserted that the settlement agreement deprived him of his right to arbitrate, which was one of the claims asserted in his federal lawsuit. This allegedly fraudulent settlement agreement is also the basis for his 2011-ULP-12-0330 and 0331 charges. Relator filed these charges on December 21, 2011, more than 90 days after June 23, 2011. Given these facts, we agree with the magistrate that relator has not shown that SERB abused its discretion when it dismissed these charges. R.C. 4117.12(B). Therefore, we overrule relator's fifth and sixth objections.

         {¶ 16} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we deny relator's request for a writ of mandamus.

         Objections overruled; writ of mandamus denied.

          TYACK, P. J, and BRUNNER, J, concur

         APPENDIX

         Rendered on August 24, 2016

         IN MANDAMUS

         MAGISTRATE'S DECISION

          STEPHANIE BISCA MAGISTRATE

         {¶ 17} Relator, David Murray, has filed this original action requesting this court issue a writ of mandamus ordering respondent, State Employment Relations Board ("SERB"), to find that he timely filed his unfair labor practice ("ULP") charges, and issue unfair labor practice complaints against his employer, Columbus Division of Police ("Columbus"), and his union, Capital Fraternal Order of Police, Capital City Lodge 9 ("FOP").

         Findings of Fact:

         {¶ 18} 1. Relator was employed as a police officer by ...


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