[Cite as State ex rel. Professionals Guild of Ohio v. State Emp. Relations Bd., 2020-Ohio-3289.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Professionals Guild of Ohio,              :

                 Relator,                               :

v.                                                      :                          No. 18AP-334

[Ohio] State Employment Relations                       :                   (REGULAR CALENDAR)
Board et al.,
                                                        :
                 Respondents.
                                                        :



                                             D E C I S I O N

                                       Rendered on June 11, 2020


                 On brief: James E. Melle, for relator.

                 On brief: Dave Yost, Attorney General, Georgia L. Verlaney,
                 and Tracy M. Nave, for respondent State Employment
                 Relations Board.

                 On brief: Mathias H. Heck, Jr., Prosecuting Attorney, and
                 Todd M. Ahearn, for respondents County Commissioners of
                 Montgomery County, Ohio, Montgomery County Department
                 of Job and Family Services, Children Services Division.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator, Professionals Guild of Ohio ("Professionals Guild"), brings this
mandamus action requesting a writ ordering respondent Ohio State Employment Relations
Board ("SERB") to vacate the dismissals of three unfair labor practice ("ULP") charges
brought by Professionals Guild on behalf of employees of respondent Montgomery County,
No. 18AP-334                                                                              2


Ohio, Department of Job and Family Services, Children Services Division ("Montgomery
County").
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
determined that SERB did not abuse its discretion in dismissing Professionals Guild's ULP
charges in SERB case Nos. 2016-ULP-12-0280 and 2017-ULP-06-0107, but that SERB
abused its discretion in dismissing the ULP charge in SERB case No. 2017-ULP-09-0169.
The magistrate therefore recommends this court grant in part Professionals Guild's request
for a writ of mandamus and order SERB to reinstate SERB case No. 2017-ULP-09-0169.
Professionals Guild, Montgomery County, and SERB have filed objections to the
magistrate's decision.
        {¶ 3} Professionals Guild first objects to the magistrate's determination as to SERB
case No. 2017-ULP-06-0107. It asserts the magistrate erred in finding that Montgomery
County's Family Medical Leave Act ("FMLA") policy, requiring concurrent consumption of
FMLA leave, was both in effect since 2002 and not an unfair labor practice, and in generally
concluding that SERB did not abuse its discretion in dismissing the ULP charge in this case.
Second, Professionals Guild contends the magistrate erred in concluding SERB did not
abuse its discretion in dismissing the ULP charge in SERB case No. 2016-ULP-12-0280
because the magistrate improperly required proof that a reduction in contractual rights is
required to establish a ULP as to Montgomery County's unilateral change to a different
FMLA leave accrual calculation method. Professionals Guild's third objection generally
alleges the magistrate erred in not reviewing the entire record as to SERB case Nos. 2016-
ULP-12-0280 and 2017-ULP-06-0107. Conversely, Montgomery County and SERB object
to the magistrate's conclusion that SERB abused its discretion in dismissing Professionals
Guild's ULP charge in SERB case No. 2017-ULP-09-0169. Montgomery County and SERB
argue SERB properly found no probable cause to support the allegations of a ULP in this
case.
        {¶ 4} In addressing these objections, we analyze the three SERB cases at issue in
sequential order. In December 2016, Professionals Guild filed a ULP charge, assigned
SERB case No. 2016-ULP-12-0280, alleging Montgomery County unilaterally changed the
No. 18AP-334                                                                              3


method for establishing the 12-month period used to determine FMLA leave accrual
without first bargaining this issue with Professionals Guild as required under Ohio law.
SERB dismissed this ULP charge based on its determination that there was no probable
cause to believe Montgomery County violated R.C. 4117.11. SERB found that Professionals
Guild failed to provide sufficient information or documentation to show that a change in
the method used to calculate available FMLA leave affected the hours, wages, or terms and
conditions of employment for its members. SERB therefore concluded Professionals Guild
had no right to bargain this issue. Professionals Guild requested reconsideration, which
SERB denied.
       {¶ 5} According to Professionals Guild, SERB abused its discretion in not finding
probable cause to believe that Montgomery County had violated R.C. 4117.11 by not
bargaining the FMLA leave calculation method issue. FMLA entitles an eligible employee
with a serious medical condition a total of 12 weeks of unpaid leave during a 12-month
period. 29 U.S.C. 2612(a)(1). The method of calculating the accrual of these 12 weeks of
leave is at the discretion of the employer. FMLA permits employers to choose one of four
methods in computing an employee's available FMLA leave during a 12-month period:
(1) the calendar year; (2) any fixed and designated leave year, such as a fiscal year or
anniversary year based on an employee's hire date; (3) a 12-month period "measured
forward" from an employee's first day of leave taken; or (4) a "rolling" 12-month period
"measured backward" from the date an employee uses any FMLA leave. 29 C.F.R.
825.200(b). While an employer may choose any one of the four outlined calculation
methods, the method chosen must be applied consistently and uniformly to all employees,
and it may be changed only if at least 60 days' notice is given. 29 C.F.R. 825.200(d)(1).
Additionally, "the transition must take place in such a way that the employees retain the
full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the
employee." 29 C.F.R. 825.200(d)(1).
       {¶ 6} Here, it is undisputed Montgomery County used the "measured forward"
method for calculating employee FMLA leave until October 3, 2016. On October 3, 2016,
Montgomery County began using the "measured backward" calculation method. In its
December 2016 ULP charge, Professionals Guild claimed Montgomery County improperly
made this change without bargaining the issue. SERB found that Professionals Guild failed
No. 18AP-334                                                                                 4


to show it had a right to bargain this issue. In addressing this issue, the magistrate found
that Montgomery County complied with federal requirements regarding the change in
calculation method, and Professionals Guild has identified no reduction in contractual
rights based on this change. The magistrate further found that Professionals Guild also did
not identify prior negotiation on this issue or any language in pertinent collective
bargaining agreements addressing the terms of FMLA leave. The magistrate therefore
concluded that SERB did not abuse its discretion in dismissing Professionals Guild's
December 2016 ULP charge. While we disagree with Professionals Guild's assertion that
the magistrate did not review the entire record, we agree the magistrate reached the wrong
conclusion as to this charge.
       {¶ 7} R.C. Chapter 4117 "establishe[s] a comprehensive framework for the
resolution of public-sector labor disputes by creating a series of new rights and setting forth
specific procedures and remedies for the vindication of those rights." Franklin Cty. Law
Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9, 59 Ohio St.3d
167, 169 (1991). As pertinent here, it is a ULP for a public employer to "[r]efuse to bargain
collectively" with its employees' representative. R.C. 4117.11(A)(5); see R.C. 4117.12(A) (a
violation of R.C. 4117.11 constitutes a ULP and is remediable by SERB).
       {¶ 8} R.C. 4117.08(A) requires a public employer to bargain with the exclusive
representative as to "[a]ll matters pertaining to wages, hours, or terms and other conditions
of employment and the continuation, modification, or deletion of an existing provision of a
collective bargaining agreement, * * * except as otherwise specified in this section." See
also R.C. 4117.08(C)(9) (unless otherwise provided for in a collective bargaining agreement,
a public employer "is not required to bargain on subjects reserved to the management and
direction of the governmental unit except as affect wages, hours, terms and conditions of
employment, and the continuation, modification, or deletion of an existing provision of a
collective bargaining agreement"). A determination whether a public employer's unilateral
action "affects wages, hours, terms and conditions of employment" within the meaning of
R.C. 4117.08 "is generally a factual question * * * properly determined by SERB, which was
designated by the General Assembly to facilitate an amicable, comprehensive, effective
labor-management relationship between public employees and employers." Lorain City
School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 260 (1988). When
No. 18AP-334                                                                                5


a party files a ULP charge with SERB, SERB or its designated agent must investigate the
charge and determine if there is "probable cause for believing that a violation has occurred."
R.C. 4117.12(B).
       {¶ 9} We find SERB unreasonably found Professionals Guild did not meet its
burden in establishing probable cause that a ULP occurred when Montgomery County
unilaterally changed the method for calculating FMLA leave during a 12-month period
without bargaining the issue with Professionals Guild. At issue is whether SERB abused its
discretion in finding Professionals Guild failed to show that this change affected the "hours,
wages, or terms and conditions of employment" for its members. For the purpose of
analyzing the effect of this change, it is inconsequential that the method of calculating
FMLA leave had not been negotiated previously or that the change complied with federal
law.
       {¶ 10} Montgomery County's decision to change the FMLA leave calculation method
will substantively impact the timing of leave accrual for employees Professionals Guild
represents. The "measured forward" and "measured backward" methods have differing
characteristics, and depending on which one is chosen, affect an employee's eligibility to
take leave on a particular date. For example, unlike the measured forward method, the
measured backward method precludes the possibility of an employee taking 11 weeks of
leave at the end of a one-year period and then immediately taking another 12 weeks of leave
to begin the next one-year period. By changing the method for calculating FMLA leave,
Montgomery County changed the wages, hours, or terms and other conditions of
employment for the employees represented by Professionals Guild.               Consequently,
Professionals Guild demonstrated the existence of probable cause that Montgomery County
committed a ULP by not bargaining this issue. Thus, SERB abused its discretion in
dismissing Professionals Guild's December 2016 ULP charge. We sustain Professionals
Guild's objection to the magistrate's contrary conclusion.
       {¶ 11} In June 2017, Professionals Guild filed a ULP charge, assigned SERB case No.
2017-ULP-06-0107, alleging Montgomery County improperly retroactively applied FMLA
leave to run concurrently with a period of contractual leave already used by an employee.
Professionals Guild asserted the bargaining unit employees always had been permitted to
elect whether to use FMLA leave. As to this ULP charge, SERB determined that no probable
No. 18AP-334                                                                               6


cause existed to believe Montgomery County violated R.C. 4117.11. SERB found that
Professionals Guild did not submit any documentation or identify any contractual language
supporting its position. SERB further found that Montgomery County identified its FMLA
policy regarding the application of FMLA leave in conjunction with contractual leave.
SERB noted its finding that this policy had been in effect since 2002 and there had been no
change. Therefore, in August 2017, SERB dismissed Professionals Guild's June 2017 ULP
charge. Professionals Guild moved for reconsideration, but SERB denied that request.
       {¶ 12} In his decision, the magistrate noted that, under federal law, an employer
may run contractual paid leave concurrent with unpaid FMLA leave, and that the
application of the FMLA leave may be applied retroactively. The magistrate found that,
during SERB's investigation, Professionals Guild did not rebut Montgomery County's
document supported assertion that it has had a policy since at least 2002 under which
FMLA leave must run concurrently with all other county leave benefits.            Thus, the
magistrate concluded that SERB did not abuse its discretion in dismissing Professionals
Guild's June 2017 ULP charge.
       {¶ 13} According to Professionals Guild, an employer cannot apply FMLA leave if an
employee declines that application, and it rebutted Montgomery County's assertion of a
concurrent FMLA policy in effect since at least 2002. The gravamen of this ULP charge is
that Montgomery County improperly did not permit an employee to decline to designate
certain leave as FMLA leave, and that this action deviated from Montgomery County's
previous policy of permitting such an election. Professionals Guild argues the magistrate
erred in not finding these assertions to be supported in the record. Relatedly, it argues the
magistrate did not review the entire record before the court, resulting in the erroneous
conclusion. We disagree.
       {¶ 14} We are not persuaded by Professionals Guild's argument that Montgomery
County was required to permit the employee to elect to defer the use of FMLA leave.
Pursuant to 29 C.F.R. 825.220 "[e]mployees cannot waive, nor may employers induce
employees to waive, their prospective rights under FMLA." Thus, once an eligible employee
communicates to the employer of the need to take leave for an FMLA-qualifying reason,
neither the employee nor the employer may decline FMLA protection for that leave.
Additionally, "[o]nce the employer has acquired knowledge that the leave is being taken for
No. 18AP-334                                                                               7


a FMLA-qualifying reason, the employer must notify the employee as provided in [29
C.F.R.] 825.300(d)." 29 C.F.R. 825.301(a). FMLA leave may be retroactively designated,
assuming the failure to timely designate does not injure the employee.            29 C.F.R.
825.301(d). Thus, the magistrate correctly rejected Professionals Guild's argument that
Montgomery County was not permitted to retroactively run FMLA leave concurrently with
contractual leave despite the employee's preference to delay the usage of FMLA leave.
       {¶ 15} We also are unpersuaded by Professionals Guild's challenge to the
magistrate's finding that it did not rebut Montgomery County's assertion that it has had an
FMLA leave policy requiring concurrent use of FMLA leave and contractual leave in effect
since 2002.    In response to Professionals Guild's ULP charge, Montgomery County
submitted evidence to the SERB investigator that it has had a policy since 2002 that FMLA
leave runs concurrently with any other contractual leave. In objecting to the magistrate's
decision, Professionals Guild asserts the Montgomery County policy that was effective since
2002 did not apply to the employees it represents, that the policy remained inapplicable to
them even after Montgomery County became their employer in 2007, and that the
employees were permitted to choose when to use FMLA leave until 2016. Professionals
Guild made these same assertions before SERB in support of its motion for reconsideration.
       {¶ 16} The charging party bears the initial burden of establishing probable cause
that an unfair labor practice has occurred. State ex rel. Fuller v. State Emp. Relations Bd.,
193 Ohio App.3d 272, 2011-Ohio-1599, ¶ 28 (10th Dist.). But the SERB investigator noted
that Professionals Guild "did not provide any documentation or point[] to any contractual
language that supports their position" that an employee may elect to have FMLA leave run
consecutively to contractual leave. (Stipulation of Evidence at 20968-I25.) Because
Professionals Guild did not meet this burden, SERB dismissed the charge. In response to
this dismissal, Professionals Guild submitted evidence with its motion for reconsideration
that, according to it, supported its position that Montgomery County's policy concerning
the use of FMLA leave and contractual leave did not apply to them until 2016. The motion
for reconsideration, however, did not point to any obvious error in SERB's analysis as it
related to the information that had been submitted as part of the investigation. Nor did the
submission preclude SERB from deciding not to reconsider its earlier reliance on the
evidence that Montgomery County had submitted as part of SERB's investigation. Thus,
No. 18AP-334                                                                             8


Professionals Guild fails to show that SERB abused its discretion in denying Professionals
Guild's motion for reconsideration. And simply because the magistrate did not expressly
analyze Professionals Guild's motion for reconsideration filing does not mean it was not
considered in reaching his conclusion.
      {¶ 17} For these reasons, we reject Professionals Guild's arguments concerning the
magistrate's recommendation as to its June 2017 ULP charge.
      {¶ 18} In September 2017, Professionals Guild filed a ULP charge, assigned SERB
case No. 2017-ULP-09-0169, alleging Montgomery County had unilaterally changed its
policy regarding FMLA recertification from an annual requirement to a biannual
requirement without bargaining the issue. Based on its investigation of this ULP charge,
SERB found that Professionals Guild did not show how the "now-twice yearly FMLA re-
certification requirement has affected its members' wages, hours or terms and conditions
of employment," that Professionals Guild "did not provide any correlation between the
contractual language it believes supports their position and that of the FMLA re-
certification requirement language," and that "the       parties'   Collective   Bargaining
Agreement is silent regarding FMLA guidelines and/or requirements." (Stipulation of
Evidence at 20968-N46.) Finding no probable cause to believe Montgomery County
violated R.C. 4117.11, SERB dismissed the September 2017 ULP charge.
      {¶ 19} As to the dismissal of the September 2017 ULP charge, the magistrate found
that while Montgomery County's change in the recertification policy was permissible under
the FMLA, and even though the parties' collective bargaining agreement did not address
this issue, it presents a change in the terms and conditions of employment. The magistrate
therefore concluded that SERB abused its discretion in dismissing this ULP charge because
Professionals Guild established probable cause and the charge warranted further inquiry.
Montgomery County and SERB object to this conclusion. They assert SERB's dismissal of
this ULP charge was proper because there existed no probable cause to believe that
Montgomery County improperly changed the FMLA recertification requirement. We
disagree.
       {¶ 20} An employer is permitted to require an employee to submit certification from
a health care provider to support the necessity of FMLA leave. Pursuant to 29 C.F.R.
825.305(a), "[a]n employer may require that an employee's leave * * * due to the employee's
No. 18AP-334                                                                               9


own serious health condition that makes the employee unable to perform one or more of
the essential functions of the employee's position, be supported by a certification issued by
the health care provider of the employee." The employer also may require an employee to
submit a recertification. 29 C.F.R. 825.308(b) states: "In all cases, an employer may
request a recertification of a medical condition every six months in connection with an
absence by the employee."
       {¶ 21} In objecting to the magistrate's decision, Montgomery County and SERB
argue there is an absence of any policy or agreement altering Montgomery County's right
under FMLA law to request recertification every six months. But this argument does not
address the alleged change in recertification policy or whether that change affects the terms
and conditions of employment. In this regard, Montgomery County and SERB suggest the
magistrate erred in finding a significant change in the terms and conditions of employment
as a result of the recertification policy change. Montgomery County and SERB contend the
magistrate's finding, that the change from annual to biannual recertification places an
additional burden on employees, was inappropriate because Professionals Guild cited no
evidence demonstrating any change regarding the recertification requirement.             But
Montgomery County did not make this argument before SERB in response to Professionals
Guild's charge. Before SERB, Professionals Guild expressly alleged Montgomery County
unilaterally changed its FMLA recertification requirement from annual to biannual without
bargaining the issue. As the magistrate noted, in response, Montgomery County argued
that requiring biannual recertification did not alter a bargained-for term of employment,
and that this recertification requirement was permitted under FMLA regulations.
Montgomery County did not, however, refute Professionals Guild's assertion that the
employer's policy had changed as to the required frequency of recertifications.
Consequently, Montgomery County's attempt to raise this issue in its objections to the
magistrate's decision is unavailing.
       {¶ 22} Moreover, SERB's decision dismissing Professionals Guild's ULP charge
implicitly accepted for the purpose of its analysis that Montgomery County had changed its
recertification requirement to every six months, stating that Professionals Guild did not
sufficiently show "how the now-twice yearly FMLA re-certification requirement has
affected the members' wages, hours or terms and conditions of employment." (Pl's. Ex. 12,
No. 18AP-334                                                                               10


attached to May 10, 2018 Part 3, Exs. to Compl.) We recognize that SERB's decision also
states "[t]he policy regarding FMLA re-certification has been in effect since 2009," but that
reference seems to relate to the information Montgomery County submitted to SERB
pertaining to the changes made in 2009 to 29 C.F.R. 825.308, which addresses
recertifications. Effective January 16, 2009, this rule was amended to eliminate uncertainty
as to how often employers may require recertification of chronic conditions by clarifying an
employer may request recertification every six months. See 73 Fed. Reg. 67934. Thus,
SERB's decision rejected Professionals Guild's charge that the unilateral change from
annual to biannual recertification was a ULP on the basis that Professionals Guild had not
shown how that change affected wages, hours, or terms and conditions of employment.
       {¶ 23} We agree with the magistrate's reasoning that, while FMLA law permitted
Montgomery County to change its recertification policy to require more frequent
recertifications, it was unreasonable for SERB not to find that this change affected the terms
and conditions of employment. The increased recertification frequency requirement places
additional burden on employees with chronic conditions. And the fact that the parties had
not previously bargained this issue did not relieve Montgomery County of its obligation to
bargain this change in its policy. Therefore, we concur in the magistrate's conclusion that
SERB abused its discretion in dismissing this charge for lack of probable cause.
       {¶ 24} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined that SERB abused its discretion in dismissing
Professionals Guild's ULP charge in SERB case No. 2017-ULP-09-0169, and that SERB did
not abuse its discretion in dismissing Professionals Guild's ULP charge in SERB case No.
2017-ULP-06-0107. As to these SERB cases, the magistrate applied the pertinent law to
the salient facts. However, the magistrate erroneously concluded that SERB did not abuse
its discretion in dismissing Professionals Guild's ULP charge in SERB case No. 2016-ULP-
12-0280. Accordingly, we adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law contained therein, except as to the magistrate's
conclusions of law pertaining to SERB case No. 2016-ULP-12-0280. We therefore sustain
in part and overrule in part Professionals Guild's objections to the magistrate's decision,
overrule Montgomery County and SERB's objections to the magistrate's decision, and grant
in part Professionals Guild's request for a writ of mandamus. SERB is ordered to vacate its
No. 18AP-334                                                                            11


dismissals of SERB case Nos. 2016-ULP-12-0280 and 2017-ULP-09-0169 and to issue
complaints in those cases.
                 Professionals Guild's objections sustained in part and overruled in part;
                                              Montgomery County's objections overruled;
                                                             SERB's objections overruled;
                                                       writ of mandamus granted in part.

                             DORRIAN and NELSON, JJ., concur
No. 18AP-334                                                                             12


                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Professionals Guild of Ohio,   :

              Relator,                       :

v.                                           :                     No. 18AP-334

[Ohio] State Employment Relations            :               (REGULAR CALENDAR)
Board et al.,
                                             :
              Respondents.
                                             :


                         MAGISTRATE'S DECISION

                             Rendered on December 20, 2019


              James E. Melle, for relator.

              Dave Yost, Attorney General, Georgia L. Verlaney, and
              Tracy M. Nave, for respondent State Employment Relations
              Board.

              Mathias H. Heck, Jr., Prosecuting Attorney, and Todd M.
              Ahearn, for respondents County Commissioners of
              Montgomery County, Ohio, Montgomery County Department
              of Job and Family Services, Children Services Division.


                                      IN MANDAMUS

       {¶ 25} In this original action, relator, Professionals Guild of Ohio, requests a writ
of mandamus ordering respondent the Ohio State Employment Relations Board ("SERB")
to vacate the dismissals of three unfair labor practice ("ULP") charges brought by relator
on behalf of employees of the Montgomery County, Ohio, Department of Job and Family
Services, Children Services Division, also a named respondent in the case.
No. 18AP-334                                                                              13


Findings of Fact:
        {¶ 26} 1. Relator is an employee organization, as defined in R.C. 4117.01(D), which
represents a bargaining unit consisting of public employees of Montgomery County, Ohio,
Department of Job and Family Services, Children Services Division ("Montgomery
County").
        {¶ 27} 2. Relator and Montgomery County negotiated a collective bargaining
agreement covering the affected employees effective April 1, 2017 through March 31,
2020.
        {¶ 28} 3. Relator and Montgomery County were also parties to a predecessor
collective bargaining agreement ("CBA") effective April 1, 2014 through March 31, 2017.
        {¶ 29} 4. Similar CBAs between relator and Montgomery County cover the period
between 2007 and 2014.
        {¶ 30} 5. A predecessor employer, Montgomery County Children Services Board
("CS Board"), entered into comparable CBAs with relator before 2007.
        {¶ 31} 6. Relator was recognized at all relevant times by Montgomery County and
CS Board as the exclusive bargaining representative of the effected professional and non-
professional employees as described in the applicable CBAs.
        {¶ 32} 7. The CBAs in question contain the following language in a "Safety and
Health" section variously numbered between the successive CBAs, and currently found in
Article 10, Section 1 of the latest CBA: "In order to have a safe place to work, the Employer
agrees to comply with all laws applicable to its operations concerning the safety and health
of employees covered by this agreement. All such employees shall comply with all safety
and health rules and regulations established by the Employer."
        {¶ 33} 8. Relator filed three ULP charges with SERB on behalf of Montgomery
County bargaining unit employees.
        {¶ 34} 9. All three ULPs involve interaction between The Family and Medical
Leave Act ("FMLA"), codified at 29 U.S.C. 2601 et sec. and 29 C.F.R. 825.100 et sec., and
the employees' contractual leave rights under the pertinent CBAs.
No. 18AP-334                                                                           14


       {¶ 35} 10. Relator filed its first ULP with SERB on December 16, 2016 under SERB
case No. 2016-ULP-12-0280. SERB dismissed this ULP on April 20, 2017, and denied
relator's motion for reconsideration on July 13, 2017.
       {¶ 36} 11. The first ULP asserts that relator's bargaining unit employees are
entitled to 12 weeks of FMLA leave in any 12-month period pursuant to 29
U.S.C. 2612(a)(1) and 29 CFR 825.200(a). Prior to October 3, 2016, Montgomery County
and its predecessor, the CS Board, used a "measured forward" method for establishing
the 12-month period in which the 12-week entitlement arises under 29 C.F.R. 825.200(b),
but that after October 3, 2016, Montgomery County unilaterally changed this method to
a "measured backward" method under the same section.
       {¶ 37} 12. SERB ruled that an employer may change the method of calculation for
FMLA accrual, that Montgomery County had properly done so when it switched to a third-
party administrator for FMLA leave management, and relator had failed to show that it
had a right to bargain this issue.
       {¶ 38} 13. Relator filed its second ULP charge on June 15, 2017 under case No.
2017-ULP-06-0107. SERB dismissed this ULP on August 24, 2017.
       {¶ 39} 14. The second ULP concerned an employee who submitted a request to use
contractual sick, vacation, and personal leave under the CBA then in force. This leave was
necessary to cover for a medical condition that required her absence from work. The
employee did not request FMLA leave for this absence, desiring to reserve it for later use
if needed. Montgomery County approved the use of contractual leave, and later approved
two weeks of FMLA leave requested by the employee to extend her approved absence.
       {¶ 40} 15. When approving the additional 2 weeks of FMLA leave, Montgomery
County applied 10 weeks of FMLA leave retroactively to run concurrently with the period
of contractual leave already used by the employee, thus exhausting the employee's entire
FMLA leave for the 12-month period.
       {¶ 41} 16. In dismissing the second ULP, SERB determined that no probable cause
existed to believe that Montgomery County had violated R.C. 4117.11 by committing a
ULP. SERB determined the union had failed to provide documentation, contractual
language, or other authority to establish there had been a change in Montgomery County's
No. 18AP-334                                                                           15


FMLA policy regarding the imposition of mandatory FMLA leave running concurrently
with approved contractual leave.
      {¶ 42} 17. Relator filed a third ULP on September 25, 2017 under SERB case No.
2017-ULP-09-0169. This was dismissed by SERB on November 16, 2017.
      {¶ 43} 18. The third ULP asserts that Montgomery County improperly and
unilaterally changed policy to require more frequent recertifications of medical necessity
when approving FMLA leave.
      {¶ 44} 19. Under 29 U.S.C. 2613(e), an employer may require recertifications on a
"reasonable basis" depending on circumstances.
      {¶ 45} 20. The employer may request recertification no more often than every 30
days, or, for durable medical conditions, every 6 months. 29 C.F.R. 825.308(a) and (b).
However, the employer may set longer recertification dates. Id.
      {¶ 46} 21. The third ULP asserts that for approximately 20 years under CS Board
and, subsequently, Montgomery County policy, the employer required a physician's
recertification of a serious health condition and explanation for FMLA leave, required by
29 U.S.C. 2613(a) and (b), after one year.
      {¶ 47} 22. The third ULP then states that relator learned on June 28, 2017 that
Montgomery County would unilaterally decrease the interval of recertifications from one
year to six months, and Montgomery County subsequently refused to bargain the issue.
Relator asserts that a twice-yearly recertification imposes a greater cost upon employees
compared to a yearly recertification, in the form of time off work and medical expenses.
      {¶ 48} 23. In dismissing the third ULP, SERB stated that no probable cause
existed to believe that a violation of R.C. 4117.11(A) occurred because the change in
recertification time did not affect the employee's wages, hours, or terms and conditions
of employment, and was not a bargained-for condition of employment under the CBA.
      {¶ 49} 24. Relator filed the present complaint in mandamus on May 10, 2018
asserting that SERB's determination in each of the three ULP cases that no probable cause
existed to pursue the ULP charges was an abuse of discretion, erroneous, and contrary to
law. The complaint in mandamus states that SERB has a clear legal duty to find in each
ULP case that sufficient evidence was presented by fact and legal authority to support a
No. 18AP-334                                                                              16


finding of probable cause, and SERB should issue a ULP complaint in each, and set the
cases for hearing.
       {¶ 50} 25. Relator requests this court issue a writ of mandamus compelling SERB
to vacate the denial of relator's motions for reconsideration in two of the ULP cases, and
the dismissals of all ULP cases, reinstate the cases, and pursue them as outlined above.
Discussion and Conclusions of Law:
       {¶ 51} In order for this court to issue a writ of mandamus, relator must show a
clear legal right to the relief sought, a clear legal duty on the part of the respondent to
provide such relief, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
       {¶ 52} Pursuant to R.C. 4117.12(B), when a party files a charge with SERB alleging
that a ULP has been committed, "the board or its designated agent shall investigate the
charge." If the board finds probable cause to believe that a ULP violation occurred, it shall
issue a complaint to conduct a hearing. Id. There is no direct avenue of appeal from this
determination. Ohio Assoc. of Pub. School Emps., Chapter 643, AFSCME/AFL-CIO v.
Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159, 161 (1991). The proper means
by which to challenge SERB's dismissal of a ULP charge for lack of probable cause is
through a mandamus action. State ex rel. Serv. Emps. Internatl. Union, Dist. 925 v. State
Emp. Relations Bd., 81 Ohio St.3d 173 (1998), syllabus. The court will determine whether
SERB abused its discretion in dismissing the ULP charge. State ex rel. Leigh v. State
Emp. Relations Bd., 76 Ohio St.3d 143, 145 (1996). In this context, the term "abuse of
discretion" means that SERB's decision is unreasonable, arbitrary, or unconscionable.
Id., citing State ex rel. Brenders v. Hall, 71 Ohio St.3d 632, 637 (1995).
       {¶ 53} The Supreme Court of Ohio has acknowledged the deference due to the
specialized administrative expertise required of SERB: "It was clearly the intention of the
Ohio General Assembly to vest the Ohio State Employment Relations Board with broad
authority to administer and enforce the Ohio Public Employees' Collective Bargaining
Act, [R.C. Chapter 4117.] This authority must necessarily include the power to interpret
the Act to achieve its purposes." (Citations omitted.) Lorain City School Dist. Bd. of Edn.
v. State Emp. Relations Bd., 40 Ohio St.3d 257, 260 (1988).
No. 18AP-334                                                                            17


       {¶ 54} R.C. 4117.11(A) specifies certain acts of employers or employee
representatives that constitute ULPs:
              (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.

       {¶ 55} R.C. 4117.12(B) states means by which SERB shall enforce the above
provisions:
              When anyone files a charge with [SERB] alleging that an
              unfair labor practice has been committed, [SERB] or its
              designated agent shall investigate the charge. If [SERB] has
              probable cause for believing that a violation has occurred,
              [SERB] shall issue a complaint and shall conduct a hearing
              concerning the charge.

       {¶ 56} Because R.C. Chapter 4117 does not define the term "probable cause," courts
have afforded the term its ordinary definition as used in other areas of the law. State ex
rel. Portage Lakes Edn. Assoc., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d
533, 2002-Ohio-2839, ¶ 37. R.C. 4117.12(B) requires SERB to "issue a complaint and
conduct a hearing on an [ULP] if, following an investigation, [SERB] has a reasonable
ground to believe that an [ULP] has occurred." Id. at ¶ 38. A charging party bears the
initial burden in establishing probable cause that a ULP has occurred. State ex rel. Fuller
v. State Emp. Relations Bd., 10th Dist. No. 10AP-630, 2011-Ohio-1599, 272, 282, ¶ 28.
       {¶ 57} Relator's first ULP charge addresses Montgomery County's unilateral
decision to implement a different method for determining the applicable leave year when
computing FMLA leave availability for employees.
No. 18AP-334                                                                         18


      {¶ 58} The FMLA, 29 U.S.C. 2601 at sec., provides for unpaid leave up to 12 weeks
in a 12-month period for employees with a serious medical condition.                 29
U.S.C. 2612(a)(1). These 12 weeks of leave may be taken continuously in one block of
time, or intermittently when medically necessary. 29 U.S.C. 2612(b)(1). The FMLA allows
employers some flexibility in calculating the 12-month period applicable when computing
available FMLA leave for an employee. The employer may choose between four options:
(1) the calendar year; (2) any fixed and designated leave year, such as a fiscal year or
anniversary year based on employee's hire date; (3) a 12-month period counting forward
from an employee's first day of leave taken; or (4) a rolling 12-month period measured
backward from the date an employee uses any FMLA leave. 29 C.F.R. 825.200(b); Hill v.
Underwood Mem. Hosp., 365 F.Supp.2d 602, (D.N.J. 2005). Application of the various
methods is further detailed in the ensuing regulations:
             Under methods in paragraphs (b)(1) and (b)(2) of this section
             an employee would be entitled to up to 12 weeks of FMLA
             leave at any time in the fixed 12-month period selected. An
             employee could, therefore, take 12 weeks of leave at the end of
             the year and 12 weeks at the beginning of the following year.
             Under the method in paragraph (b)(3) of this section, an
             employee would be entitled to 12 weeks of leave during the
             year beginning on the first date FMLA leave is taken; the next
             12-month period would begin the first time FMLA leave is
             taken after completion of any previous 12-month period.
             Under the method in paragraph (b)(4) of this section, the
             "rolling" 12-month period, each time an employee takes
             FMLA leave the remaining leave entitlement would be any
             balance of the 12 weeks which has not been used during the
             immediately preceding 12 months. For example, if an
             employee has taken eight weeks of leave during the past 12
             months, an additional four weeks of leave could be taken. If
             an employee used four weeks beginning February 1, 2008,
             four weeks beginning June 1, 2008, and four weeks beginning
             December 1, 2008, the employee would not be entitled to any
             additional leave until February 1, 2009. However, beginning
             on February 1, 2009, the employee would again be eligible to
             take FMLA leave, recouping the right to take the leave in the
             same manner and amounts in which it was used in the
             previous year. Thus, the employee would recoup (and be
             entitled to use) one additional day of FMLA leave each day for
             four weeks, commencing February 1, 2009. The employee
             would also begin to recoup additional days beginning on
No. 18AP-334                                                                         19


             June 1, 2009, and additional days beginning on December 1,
             2009. Accordingly, employers using the rolling 12-month
             period may need to calculate whether the employee is entitled
             to take FMLA leave each time that leave is requested, and
             employees taking FMLA leave on such a basis may fall in and
             out of FMLA protection based on their FMLA usage in the
             prior 12 months. For example, in the example above, if the
             employee needs six weeks of leave for a serious health
             condition commencing February 1, 2009, only the first four
             weeks of the leave would be FMLA protected.

      {¶ 59} Employers may choose any of the above alternatives, but must provide 60
days notice to employees when switching calculation methods, and "the transition must
take place in such a way that the employees retain the full benefit of 12 weeks of leave
under whichever method affords the greatest benefit to the employee."                29
C.F.R. 825.200(d)(1).
      {¶ 60} Prior to October 2, 2016, Montgomery County used the measured-forward
method for computing FMLA leave availability. At that time, Montgomery County
contracted with an outside administrator to handle FMLA leave matters. Montgomery
County and CareWorks thereafter issued a notice to all employees that FMLA leave would
be henceforth calculated under the measured-backwards method. Relator sought to
bargain on the issue, Montgomery County refused, and the first ULP ensued.
      {¶ 61} In the course of SERB's investigation of the first ULP charge, relator
provided examples of the disadvantages of the looking-backward method from the
employee's perspective. In gross, this method allows employees to consider FMLA leave
as accrued at the beginning of a given period, whereas the looking-backwards method
requires a 12-month wait to recoup each day of FMLA leave once taken. Otherwise put,
the looking-forward method allows employees to accrue and use leave for a period not yet
worked, and the measured-backwards method accrues leave for past service in which
leave was not taken. Relator and Montgomery County provided various examples under
which the different methods accrue advantages and disadvantages to employees
depending on the timing of leave taken. Under the most sharply defined example, an
employee could take 23 weeks of continuous FMLA leave under the measured-forward
method, which would be impossible under the measured-backward method, which would
No. 18AP-334                                                                                20


impose a 39-week interval before leave could again be used after a 12-week leave period
by the employee.
       {¶ 62} Relator argued before SERB that a change in FMLA policy must be
bargained-for, citing the National Labor Relations Board ("NLRB") case, Verizon North,
Inc. and International Brotherhood of Electrical Workers Local 1637, NLRB No. 6-C-84-
35379, 352 N.L.R.B. 1022 (July 31, 2008) and a SERB opinion, Professionals Guild of
Ohio v. Lucas Cty. Children Serv. Bd., SERB case No. 09-ULP-06-0321 (Sept. 3, 2009).
Montgomery County responded that the method of computing 12-month FMLA leave was
not a bargainable issue because it involved neither wages, hours, or terms and conditions
of employment.
       {¶ 63} Although relator strives to characterize the FMLA as a health and safety law
subject to Article 10, Section 1 of the CBA as set forth above, the magistrate finds this is
not conclusive. Assuming, arguendo, that the FMLA is a health and safety law (SERB
asserts that it is not, as it falls under the "labor" section of the United States Code),
Article 10, Section 1 only requires Montgomery County to comply with federal laws and
regulations, which it has done by giving the requisite notice when switching between two
permissible methods of calculating FMLA leave and ensuring that employees receive the
full benefit of the prior method during the transition period.
       {¶ 64} The magistrate further finds the NLRB case of Verizon North, cited by
relator, does not provide guidance in the present case. The NLRB decision in that case
noted that parties had previously negotiated terms of the FMLA leave in the terms of their
labor agreement. Relator is unable to point to a similar history of negotiation, let alone
specific language in the current or past CBAs, regarding the terms of FMLA leave. While
29 U.S.C. 2652(a) provides that nothing in the FMLA "shall be construed to diminish the
obligation of an employer to comply with [a labor agreement] or any employment benefit
program or plan that provides greater * * * leave rights to employees than the rights
established under [the act]," relator identifies no reduction in contractual rights here.
       {¶ 65} The magistrate accordingly concludes that SERB did not abuse its discretion
in dismissing relator's first ULP charge.
No. 18AP-334                                                                             21


       {¶ 66} The second ULP charge in this matter addresses Montgomery County's
designation of an employee's approved contractual leave as concurrently consuming
FMLA leave:
              Generally, FMLA leave is unpaid leave. However, under the
              circumstances described in this section, FMLA permits an
              eligible employee to choose to substitute accrued paid leave
              for FMLA leave. If an employee does not choose to substitute
              accrued paid leave, the employer may require the employee to
              substitute accrued paid leave for unpaid FMLA leave. The
              term 'substitute' means that the paid leave provided by the
              employer, and accrued pursuant to establish policies of the
              employer, will run concurrently with the unpaid FMLA leave.

29 C.F.R. 825.207(a). The FMLA regulations, therefore, "clarify an employee's rights and
responsibilities under the Act, including an allowance for employers to run paid leave
programs concurrent with unpaid FMLA leave." Allen v. Butler Cty. Comm., 331 Fed.
Appx. 389 (6th Cir.2009).
       {¶ 67} Consistently with the concurrent leave principle expressed above,
29 C.F.R. 825.301 provides for retroactive designation of leave as FMLA leave:
"Retroactive designation. If an employer does not designate leave as required * * *, the
employer may retroactively designate leave as FMLA leave with appropriate notice to the
employee as required by [29 C.F.R. 825.300] provided that the employer's failure to
timely designate leave does not cause harm or injury to the employee."                   29
C.F.R.825.301(d).
       {¶ 68} Relator did not rebut Montgomery County's assertion that it has had a
policy in place since at least 2002 under which FMLA leave would run concurrently with
all other county leave benefits. While relator cites the case of In re Twp. of Parsippany-
Troy Hills, 419 N.J. Super. 512, 17 A.3d. 834 (N.J. App. 2011), that case is distinguishable
in several respects.    In Parsippany, the employer demanded a completed FMLA
certification form from the employee requesting contractual leave and threatened
suspension if the employee did not comply. The reasoning in Parsippany also implies
that, on the facts before the court, the concurrent use of FMLA leave was governed by the
union's employment contract, and the parties had agreed that the issue would be resolved
through a contractual grievance procedure. Parsippany at 526, footnotes one and two.
No. 18AP-334                                                                            22


       {¶ 69} Because Montgomery County's evidence regarding a long-standing policy
requiring concurrent consumption of FMLA and contractual leave was unrebutted by
relator during the SERB investigation, the magistrate concludes that this permissible
imposition of concurrent leave consumption by Montgomery County on an employee was
not a ULP, and SERB did not abuse its discretion in dismissing relator's ULP charge.
       {¶ 70} In the third ULP, addressing Montgomery County's change in the FMLA
recertification requirement for employees, Montgomery County again asserted in
response to the charge that the change from annual to twice-yearly certification did not
alter a bargained-for term of employment. Montgomery County also stressed the new
certification requirement was expressly permissible under FMLA regulations.             29
C.F.R. 825.308(b) provides in part: "[A]n employer may request a recertification of a
medical condition every six months in connection with an absence by the employee."
Pursuant to 29 C.F.R. 825.305(b), the employee must then provide the employer with a
complete and sufficient certification within 15 days of an employer's request for
certification.
       {¶ 71} The magistrate first notes that Montgomery County dismisses as mere
speculation relator's assertion that more frequent recertification will impose an
additional burden on employees in the form of time off work and possible medical fees.
Relator's position in this respect is in no way speculative. 29 C.F.R. 825.308(f) provides,
"Any recertification requested by the employer shall be at the employee's expense unless
the employer provides otherwise." The concomitant additional burden on employees in
the form of leave consumption or unpaid time off is self-evident.
       {¶ 72} While Montgomery County's change in recertification policy is permissible
under the FMLA, the magistrate concludes that it presents a significant change in terms
and conditions of employment. Although relator cannot point to a specific provision in
the CBA governing FMLA certification, provision of a CBA language on every detail of
employment is unnecessary. The magistrate concludes this significant change warranted
further inquiry by SERB on the ULP charge before dismissal, and that SERB abused its
discretion in dismissing relator's third ULP.
       {¶ 73} In summary, the magistrate finds that SERB did not abuse its discretion in
dismissing the ULP charges in SERB cases 2016-ULP-12-0280 and 2017-ULP-06-0107,
No. 18AP-334                                                                           23


but the dismissal in SERB case 2017-ULP-09-0169 was unwarranted and an abuse of
discretion. It is the magistrate's decision that relator has established in part that SERB
abused its discretion, and it is the magistrate's decision that the court grant in part
relator's request for a writ of mandamus as outlined above, ordering SERB to reinstate
SERB case 2017-ULP-09-0169.


                                             /S/ MAGISTRATE
                                             MARTIN L. DAVIS




                             NOTICE TO THE PARTIES

             Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
             error on appeal the court's adoption of any factual finding or
             legal conclusion, whether or not specifically designated as a
             finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
             unless the party timely and specifically objects to that factual
             finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
