[Cite as State ex rel. Mun. Constr. Equip. Operators' Labor Council v. State Emp. Relations Bd., 2017-Ohio-
2624.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Municipal Construction                   :
Equipment Operators' Labor Council,
                                                       :
                 Relator,
                                                       :                   No. 15AP-471
v.
                                                       :           (REGULAR CALENDAR)
Ohio State Employment Relations Board,
                                                       :
                 Respondent.
                                                       :


                                         D E C I S I O N

                                        Rendered on May 2, 2017


                 On Brief: Climaco, Wilcox, Peca, Tarantino & Garofoli
                 Co., L.P.A., Stewart D. Roll, and David M. Cuppage, for
                 relator.

                 On Brief: Michael DeWine, Attorney General, and Lori
                 Friedman, for respondent.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Municipal Construction Equipment Operators' Labor Council
("MCEO"), has filed this original action seeking a writ of mandamus ordering respondent,
Ohio State Employment Relations Board ("SERB"), to vacate its October 9, 2014 order
that dismissed, for lack of probable cause, MCEO's unfair labor practice ("ULP")
complaint against North Ridgeville City School District Board of Education ("BOE").
        {¶ 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 rendered a decision and
recommendation that included findings of fact and conclusions of law, which is appended
hereto.    The magistrate concluded MCEO failed to establish that SERB abused its
No. 15AP-471                                                                          2


discretion either by dismissing the ULP charge or failing to properly investigate the
charge. Accordingly, the magistrate recommended that we deny the requested writ of
mandamus.
       {¶ 3} In State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Ohio State
Emp. Relations Bd., 10th Dist. No. 15AP-471, 2015-Ohio-5001, this court held that venue
for the relator's complaint was proper in Franklin County, and we denied the relator's
motion to transfer this case back to the Ninth District Court of Appeals. In MCEO, the
basic facts and procedural history of this case were set out as follows:
               Relator initially filed this original action in the Ninth District
               Court of Appeals. According to the complaint, following a
               SERB conducted election, relator was certified as the new
               exclusive representative of the non-teacher employees of BOE.
               Thereafter, relator and BOE commenced negotiations for a
               collective bargaining agreement ("CBA").

               According to the complaint, relator and BOE tentatively
               agreed upon 21 out of 44 CBA articles. In addition, relator
               advised BOE that it was prepared to accept BOE's proposal on
               eight additional CBA articles subject to reaching an agreement
               on compensation.

               Thereafter, BOE advised relator that BOE had determined
               that negotiations were at impasse and that the parties should
               proceed to mediation with the Federal Mediation and
               Conciliation Service pursuant to a provision in the existing
               CBA.

               According to the complaint, BOE's refusal to continue
               negotiations and its declaration of impasse is a violation of
               R.C. 4117.11(A)(5). Therefore, relator filed an unfair labor
               practice charge against BOE with SERB. BOE moved to
               dismiss that charge.

               According to the complaint, a SERB "labor relations
               specialist"  issued      an     investigators memorandum
               recommending dismissal of the unfair labor practice charge.
               Thereafter, SERB issued a written order granting BOE's
               motion to dismiss for lack of probable cause.

               Relator alleges in its complaint that SERB failed to investigate
               the unfair labor practice charge.
No. 15AP-471                                                                               3


Id. at ¶ 2-7.
       {¶ 4} The SERB order dismissing MCEO's ULP complaint provides, in relevant
part, as follows:
                The investigation revealed no probable cause existed to
                believe Charged Party violated Ohio Revised Code § 4117.11.
                Information gathered during the investigation revealed that
                the Charged Party acted in accordance with the provisions in
                the parties' collective bargaining agreement, when after forty-
                five (45) calendar days, it declared impasse.

(Stip. Record at 160.)
       {¶ 5} "SERB's decision on whether to issue a complaint in an unfair labor practice
case is not reviewable on direct appeal." State ex rel. Mun. Constr. Equip. Operators'
Labor Council v. Ohio State Emp. Relations Bd., 10th Dist. No. 10AP-195, 2011-Ohio-
4478, ¶ 7, citing State ex rel. Tritt v. State Emp. Relations Bd., 97 Ohio St.3d 280, 2002-
Ohio-6437, ¶ 6. A writ of mandamus is available, however, "to remedy an abuse of
discretion by SERB in dismissing a ULP charge." Id. See also State ex rel. Murray v.
Ohio State Emp. Relations Bd., 10th Dist. No. 15AP-1007, 2017-Ohio-839, ¶ 6, citing State
ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d
533, 2002-Ohio-2839, ¶ 35. To obtain a writ of mandamus, relator must establish: " '(1) a
clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform
the act requested, and (3) that relator has no plain and adequate remedy in the ordinary
course of the law.' " Kinsey v. Bd. of Trustees of Police & Firemen's Disability & Pension
Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting State ex rel. Consol. Rail Corp. v.
Gorman, 70 Ohio St.2d 274, 275 (1982).
       {¶ 6} R.C. 4117.11(A) defines a ULP, in relevant part, as follows:
                It is an unfair labor practice for a public employer, its agents,
                or representatives to:

                ***

                (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.
No. 15AP-471                                                                                           4


        {¶ 7} The issue for the magistrate in this case was whether SERB abused its
discretion when it dismissed MCEO's ULP complaint against BOE for lack of probable
cause. An abuse of discretion means an unreasonable, arbitrary, or unconscionable
decision. Portage Lakes at ¶ 35. The magistrate identified the dispositive inquiry in this
case as whether Article 3.12 of the expiring collective bargaining agreement ("CBA")
governed the parties' right to declare an impasse or whether the parties' right to declare
an impasse arises only on the occurrence of an "ultimate impasse" as defined in the Ninth
District Court of Appeals' decision in Twinsburg City School Dist. Bd. of Edn. v. State
Emp. Relations Bd., 172 Ohio App.3d 535, 2007-Ohio-957 (9th Dist.).
        {¶ 8} In Twinsburg, the local school district sought judicial review of the decision
of SERB's ruling that the district committed a ULP by unilaterally imposing its final offer
on its union employees. The trial court affirmed the SERB's decision and the district
appealed.1 In affirming the trial court, the Ninth District determined that the district
committed a ULP under R.C. 4117.11(A)(5) when it unilaterally imposed its last, best offer
on the employees even though the union was still willing to negotiate on every
outstanding issue, and the district's negotiators had stated that negotiating sessions had
been productive. Id. at ¶ 27. In order to establish an "ultimate impasse" under the Ninth
District decision in Twinsburg, "there must be 'no realistic possibility that continuation of
discussion at that time would have been fruitful.' " Id. at ¶ 15, quoting Am. Fedn. of
Television & Radio Artists, AFL-CIO, Kansas City Local v. Natl. Labor Relations Bd., 395
F.2d 622, 628 (C.A.D.C.1968).
        {¶ 9} Conversely, Article 3.12 of the parties' CBA provides as follows:
                If the parties are unable to reach agreement within forty-five
                (45) calendar days of the expiration of this agreement, either
                party may declare the issues to be at impasse. Thereupon,
                the parties will seek to resolve the impasse through
                mediation. To this end, they shall request the assistance of the
                Federal Mediation and Conciliation Service. The FMCS shall
                appoint a federal mediator who will conduct mediation in
                accordance with its rules. The parties agree that this
                procedure set forth above shall be the exclusive dispute


1The common pleas court has jurisdiction of an appeal from a SERB decision "granting or denying, in whole
or in part, the relief sought." R.C. 4117.13(D).
No. 15AP-471                                                                              5


               resolution procedure and shall supersede those established in
               R.C. 4117.10, 4117.14, and related sections.

(Emphasis added.)
       {¶ 10} The magistrate concluded that Article 3.12 of the expiring CBA governed the
parties' rights in this case and that Article 3.12 gave either of the parties the right to
declare an impasse if the parties were "unable to reach agreement within forty-five (45)
calendar days of the expiration of this agreement." The magistrate noted that unlike the
Twinsburg case, the result of the BOE's declaration of an impasse is not the imposition of
the BOE's last, best offer. Rather, the expiring CBA requires the parties to submit the
remaining disputed issues to mediation, the parties' chosen alternative dispute resolution
process. Accordingly, the magistrate determined that SERB did not abuse its discretion
when it determined that the Twinsburg case was inapplicable and that there was no
probable cause to believe the BOE "refuse[d] to bargain collectively with the
representative of his employees." R.C. 4117.11(A)(5).
MCEO's Objections
       {¶ 11} MCEO has interposed numerous objections to both the magistrate's
findings of fact and conclusions of law. Because a resolution of MCEO's objections to the
magistrate's factual findings depends largely on this court's interpretation of Article 3.12
of the expiring CBA, we begin our analysis with the objections to the magistrate's
conclusions of law.
Objections to the Magistrate's Conclusions of Law
       {¶ 12} Though MCEO raises numerous objections to the magistrate's conclusions
of law, the objections essentially raise the following three contentions for our review:
(1) SERB abused its discretion when it determined that Article 3.12 of the CBA permitted
the BOE to unilaterally declare an impasse in negotiations after the passage of the 45-day
period even though MCEO remained willing to continue negotiations and there existed a
reasonable possibility that further negotiations would be fruitful; (2) SERB abused its
discretion when it dismissed the ULP complaint because the CBA contains an implied
covenant of good faith which prevented the BOE from taking an opportunistic advantage
of the 45-day provision in Article 3.12; and (3) SERB denied MCEO due process of law by
granting the BOE's motion to dismiss the ULP complaint without conducting a thorough
No. 15AP-471                                                                            6


investigation of the allegations in the complaint and without providing MCEO an
opportunity to respond to the motion.
      {¶ 13} With regard to MCEO's first argument, the magistrate determined that
Article 3.12 of the expiring CBA permitted either party to declare an impasse in
negotiations when, after the 45-day period had elapsed, the parties were unable to reach
an agreement. The magistrate concluded that Article 3.12 did not require the parties to
agree that negotiations were at an impasse or for the party electing to declare an impasse
to prove that there existed no reasonable possibility that future negotiations would be
fruitful. In our view, the plain language of Article 3.12 of the expiring CBA supports the
magistrate's conclusion.
      {¶ 14} MCEO next contends that the magistrate applied an incorrect standard of
review in deferring to SERB's interpretation of Article 3.12 of the CBA rather than
conducting a de novo review to determine the parties' intent.
      {¶ 15} " 'A collective bargaining agreement is a contract, and "[t]he overriding
concern of any court when construing a contract is to ascertain and effectuate the
intention of the parties." ' " Koehring v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
06AP-396, 2007-Ohio-2652, ¶ 20, quoting State ex rel. Kabert v. Shaker Hts. City School
Dist. Bd. of Edn., 78 Ohio St.3d 37, 44 (1997), quoting TRINOVA Corp. v. Pilkington
Bros., P.L.C., 70 Ohio St.3d 271, 276 (1994). "The intent of the parties to a contract is
presumed to reside in the language they chose to employ in the agreement." Koehring at
¶ 20, quoting Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (1987), paragraph one of the
syllabus, following and approving Blosser v. Enderlin, 113 Ohio St. 121 (1925), paragraph
one of the syllabus. When the terms of the parties' agreement are unambiguous and clear
on their face, the court need not look beyond the plain language of the contract to
determine the rights and obligations of the parties. Beasley v. Monoko, Inc., 195 Ohio
App.3d 93, 2011-Ohio-3995, ¶ 30 (10th Dist.).
      {¶ 16} In SERB v. State Office of Collective Bargaining, 10th Dist. No. 91AP-939
(June 11, 1992), this court stated that "there is no statutory provision or case law which
mandates that trial courts afford due deference to SERB's interpretation of a collective
bargaining agreement."     Our review of the magistrate's decision reveals that the
magistrate simply applied Article 3.12 of the CBA, as written, without deferring to SERB.
No. 15AP-471                                                                               7


We find that the relevant language of the CBA is clear and free of ambiguity, and we agree
with the magistrate that Article 3.12 permits a party to declare an impasse in negotiations
after 45 days, regardless of whether there is a reasonable possibility that further
negotiations would be fruitful.     Accordingly, MCEO's contention that the magistrate
employed an incorrect standard of review is without merit.
       {¶ 17} As the magistrate noted, it was clearly the intent of the General Assembly to
vest SERB with the authority to administer and enforce R.C. Chapter 4117. Accordingly,
the General Assembly also vested SERB with exclusive jurisdiction to determine ULPs
defined in R.C. 4117.11. E. Cleveland v. E. Cleveland Firefighters Local 500, Internatl.
Assn. of Firefighters, 70 Ohio St.3d 125, 128 (1994). R.C. 4117.14(A) "govern[s] the
settlement of disputes between an exclusive representative and a public employer
concerning the termination or modification of an existing collective bargaining agreement
or negotiation of a successor agreement." R.C. 4117.14 further provides at subsection (E)
that "[n]othing in this section shall be construed to prohibit the parties, at any time, from
voluntarily agreeing to submit any or all of the issues in dispute to any other alternative
dispute settlement procedure." (Emphasis added.)
       {¶ 18} With regard to MCEO's good-faith argument, we note that neither the ULP
complaint nor the complaint for a writ of mandamus allege that the BOE failed to
negotiate in good faith during the seven-month period between January 2014, when
negotiations commenced, and August 8, 2014, when the BOE declared an impasse.
Rather, MCEO claims that the BOE refused to collectively bargain when it unilaterally
declared an impasse even though MCEO remained willing to continue negotiations, and
there existed a realistic possibility that continuation of discussion at that time would have
been fruitful. R.C. 4117.01 defines the phrase "[t]o bargain collectively" in subsection (G)
as follows:
               [T]o perform the mutual obligation of the public employer, by
               its representatives, and the representatives of its employees to
               negotiate in good faith at reasonable times and places with
               respect to wages, hours, terms, and other conditions of
               employment and the continuation, modification, or deletion
               of an existing provision of a collective bargaining agreement,
               with the intention of reaching an agreement, or to resolve
               questions arising under the agreement. "To bargain
No. 15AP-471                                                                                   8


               collectively" includes executing a written contract
               incorporating the terms of any agreement reached. The
               obligation to bargain collectively does not mean that either
               party is compelled to agree to a proposal nor does it require
               the making of a concession.

(Emphasis added.)
       {¶ 19} The absence or presence of good-faith bargaining is determined objectively
based on a consideration of the totality of the circumstances. Akron v. State Emp.
Relations Bd., 9th Dist. No. 26227, 2013-Ohio-1213, ¶ 7. The circumvention of the duty to
bargain is unlawful, regardless of subjective good faith. Id. "In applying the totality of the
circumstances test, permissible 'hard bargaining' is distinguishable from bargaining in
bad faith." Id., citing Twinsburg at ¶ 15-19.
       {¶ 20} As stated above, we agree with the magistrate's conclusion that Article 3.12
of the expiring CBA grants either of the parties a right to declare an impasse in
negotiations if, after 45 calendar days from the expiration of the CBA, the parties are
unable to reach an agreement. The plain language of Article 3.12 of the expiring CBA does
not require the existence of an objective impasse in negotiations, just that the parties are
unable to reach an agreement within the allotted 45-day period. Accordingly, we also
agree that the right to declare an impasse in negotiations exists under Article 3.12,
regardless of whether one of the parties remains willing to negotiate and regardless of
whether there is a realistic possibility that the continuation of negotiations will be fruitful.
       {¶ 21} MCEO argues, however, that the BOE's right to declare an impasse under
Article 3.12 is not absolute and that the party declaring an impasse under the expiring
CBA must do so in good faith. In making this argument, MCEO relies on Ohio common
law which imposes a duty of good faith on the parties to certain contracts. The Supreme
Court of Ohio has described the general duty to exercise good faith and fair dealing as
" '[a] compact reference to an implied undertaking not to take opportunistic advantage in
a way that could not have been contemplated at the time of drafting, and which therefore
was not resolved explicitly by the parties.' " Am. Contrs. Indemn. Co. v. Nicole Gas Prod.
Ltd., 10th Dist. No. 07AP-1039, 2008-Ohio-5056, ¶ 14, quoting Ed Schory & Sons v.
Francis, 75 Ohio St.3d 433, 443-44 (1996).
No. 15AP-471                                                                            9


      {¶ 22} Under the common law, not every contract is subject to an implied
obligation of good faith and fair dealing. Sammarco v. Anthem Ins. Cos., Inc., 131 Ohio
App.3d 544, 555 (1st Dist.1998). The duty of common law is not imposed when a matter
is specifically covered by the written terms of a contract.     Hamilton Ins. Servs. v.
Nationwide Ins. Cos., 86 Ohio St.3d 270, 274 (1999). Rather, the duty is "implied only
under limited circumstances, such as when the contract is silent as to an issue." Myers v.
Evergreen Land Dev. Ltd., 7th Dist. No. 07 MA 123, 2008-Ohio-1062, ¶ 28. In such a
case, the parties are required to exercise good faith in filling the gap.      Id., citing
Burlington Resources Oil & Gas Co. v. Cox, 133 Ohio App.3d 543, 547 (4th Dist.1999).
For example, an obligation of good faith is imposed in contracts of insurance and certain
commercial contracts arising under Ohio's Uniform Commercial Code, R.C. Chapter 1305.
Sammarco at 555.
      {¶ 23} Here, the parties' duty to perform their mutual obligations in good faith
arises under R.C. 4117.01(G), rather than under the common law. To that end, the
expiring CBA contains the parties' voluntary agreement to submit disputed issues to
mediation if they are unable to reach agreement within the allotted 45-day time period.
R.C 4117.14(E). Contrary to MCEO's assertion, the obligation to bargain in good faith
under R.C. 4117.01(G) does not mean that the BOE can be compelled to continue
negotiations directly with MCEO where the parties have contractually agreed to submit
the disputed issues to mediation.     State ex rel. MARCA Edn. Assn. v. State Emp.
Relations Bd., 10th Dist. No. 03AP-764, 2004-Ohio-2647 (SERB did not abuse its
discretion in finding no probable cause that the employer committed a ULP by
terminating mediation where the union and employer submitted their negotiations for a
new CBA to mediation and the expiring CBA allowed either party to unilaterally terminate
mediation).
      {¶ 24} We also find no merit in MCEO's contention that the magistrate applied an
erroneous standard in reviewing SERB's order. Our review of the magistrate's decision
reveals that the magistrate both cited and applied the appropriate "abuse of discretion"
standard in reviewing SERB's dismissal of MCEO's ULP complaint for lack of probable
cause. (Mag. Decision at 3-4, citing State ex rel. Leigh v. State Emp. Relations Bd., 76
Ohio St.3d 143 (1996).) See also Murray at ¶ 7. Furthermore, MCEO acknowledges in its
No. 15AP-471                                                                            10


arguments in support of its objections that the abuse of discretion standard applies to our
review of a SERB order dismissing a ULP complaint.
       {¶ 25}    MCEO next contends that SERB denied it due process of law when it
failed to adequately investigate the ULP charge. With respect to SERB's investigation of
the ULP complaint, this court set forth the relevant law in MCEO, 2011-Ohio-4478, at ¶ 10
as follows:
                SERB has established a rule providing that "[i]nvestigation of
                [ULP] charges shall be limited to the facts and issues raised in
                the charge and any facts or issues reasonably related to the
                charge." Ohio Adm.Code 4117-7-02(A). SERB's rules also
                provide that, upon a written request from an investigator, a
                party is required to submit information within the time
                deadline established by the investigator. Ohio Adm.Code
                4117-7-02(D). This rule does not mandate that investigators
                use any specific method to obtain relevant information, but it
                clearly contemplates investigators using written requests for
                information to the parties.

       {¶ 26}    The record shows that the SERB investigator submitted written requests
for information to MCEO and to the BOE. Therein, the investigator asked MCEO's
representative to "please state specifically why you believe the Charged Party's conduct as
alleged in the charge violates Ohio Revised Code § 4117.11. Please provide documentation
supporting your position." (Stip. Record at 34.) Therefore, the record shows that SERB
permitted the parties to submit any relevant evidence and make supporting arguments.
       {¶ 27}    Both MCEO and the BOE submitted responses to the investigator's
written questions and supporting documentation.           Each of the parties submitted a
detailed explanation of its position, along with supporting documentation. Accordingly,
the record does not support MCEO's allegation that SERB conducted an inadequate
investigation of the ULP complaint.
       {¶ 28}    MCEO has also contended that it was denied due process because it was
not properly served with the BOE's motion to dismiss. In his affidavit attached as an
exhibit to MCEO's complaint for a writ of mandamus, MCEO's counsel maintains that he
did not receive a copy of the BOE's motion to dismiss the ULP complaint because MCEO
sent it to an incorrect e-mail address. However, our review of the certificate of service
attached to the motion filed with SERB evidences service to the correct e-mail address.
No. 15AP-471                                                                              11


Therefore, the record does not support MCEO's claim that it was denied due process
based on a lack of service.
       {¶ 29}      Moreover, before SERB makes a determination that probable cause exists,
there is no requirement for notice, hearing, and the opportunity for introduction of
evidence. See R.C. 4117.12; Gunn v. Euclid Teachers Assn., 65 Ohio App.3d 312, 316 (8th
Dist.1989). As noted above, MCEO previously raised its arguments in support of the ULP
complaint in response to the investigator's inquiry. MCEO has raised no new arguments
in this court that were not presented to SERB. Accordingly, even if MCEO did not receive
a copy of the BOE's motion to dismiss, a fact which the SERB record does not support,
MCEO suffered no material prejudice because MCEO had an opportunity to submit its
arguments in support of the ULP complaint and did so. Accordingly, MCEO's contention
it was denied due process is without merit.
       {¶ 30}      For the foregoing reasons, we overrule MCEO's objections to the
magistrate's conclusions of law.
Objections to the Magistrate's Factual Findings
       {¶ 31} MCEO has also objected to a number of the magistrate's factual findings
because it believes these findings are either incomplete or inaccurate. MCEO claims the
magistrate should have found additional facts relevant to its argument that the BOE
refused to bargain in good faith when it elected to proceed to mediation pursuant to
Article 3.12 of the expiring CBA.
       {¶ 32} This court has stated that "Civ.R. 53(D)(3)(a)(ii), which provides for a
magistrate to make findings of fact and conclusions of law, does not specify the level of
detail required in those findings." MCEO, 2011-Ohio-4478, at ¶ 18. Accordingly, "[w]e
have previously held that 'when a party objects to [a magistrate's] report, it is essential
that the report include sufficient information to permit the trial court to resolve the legal
issues raised by the objection.' " Id., quoting Zacek v. Zacek, 11 Ohio App.3d 91, 94 (10th
Dist.1983). See also State ex rel. Bedard v. Lockbourne, 69 Ohio App.3d 452, 459 (10th
Dist.1990) ("To comply with Civ.R. 53, a [magistrate's] report must refer to facts
contained in the record that support the conclusion and recommendation of the
[magistrate].").
No. 15AP-471                                                                             12


       {¶ 33} In our view, the magistrate's findings of fact are sufficient on their face
without the additional findings suggested by MCEO. Contrary to MCEO's assertions, the
magistrate's findings are neither incomplete nor inaccurate. Moreover, the additional
facts that MCEO wished the magistrate to find are relevant to this dispute only if this
court were to adopt MCEO's erroneous interpretation of Article 3.12 of the expiring CBA.
Accordingly, for the reasons cited infra, we decline to adopt MCEO's interpretation of the
expiring CBA, and we overrule MCEO's objections to the magistrate's findings of fact.
Motion to Conduct Discovery
       {¶ 34} Finally, we note that MCEO has also moved this court to set aside the
magistrate's December 8, 2015 order denying MCEO's motion to conduct discovery. The
magistrate denied the motion based on the Supreme Court's authority in Portage Lakes.
In Portage Lakes, the court stated that "the review of a SERB decision is generally limited
to the facts as they existed at the time SERB made its decision." Id. at ¶ 55. We agree with
the magistrate's determination, and for the reasons set forth in the magistrate's order, we
deny MCEO's motion to conduct discovery.
       {¶ 35} Following an independent review of the magistrate's decision and the
objections filed by MCEO, we find that the magistrate has determined the pertinent facts
and properly applied the relevant law. Accordingly, for the reasons set forth in both the
magistrate's decision and those expressed herein, we adopt the magistrate's decision, as
modified by our supplemental discussion, as our own, including the findings of fact and
conclusions of law contained therein.       MCEO's objections are overruled, and the
requested writ of mandamus is hereby denied.
                                                      Motion to conduct discovery denied;
                                          objections overruled, writ of mandamus denied.

                     DORRIAN and LUPER SCHUSTER, JJ., concur.
                               ___________________
No. 15AP-471                                                                      13


                                   APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT



State ex rel. Municipal Construction       :
Equipment Operators' Labor Council,
                                           :
               Relator,
                                           :
v.                                                          No. 15AP-471
                                           :
Ohio State Employment Relations Board,             (REGULAR CALENDAR)
                                           :
               Respondent.
                                           :


                          MAGISTRATE'S DECISION

                             Rendered on October 25, 2016


               Climaco, Wilcox, Peca, Tarantino, & Garofoli Co., L.P.A.,
               Stewart D. Roll, and David M. Cuppage, for relator.

               Michael DeWine, Attorney General, and Lori J. Friedman,
               for respondent.


                                   IN MANDAMUS

      {¶ 34} In this original action relator, Municipal Construction Equipment
Operators' Labor Council ("MCEO"), requests a writ of mandamus ordering respondent,
the Ohio State Employment Relations Board ("SERB"), to find probable cause to believe
that an employer participating in labor negotiations with the union, North Ridgeville
City School District Board of Education ("school board" or "employer") committed
unfair labor practices ("ULP"), and to issue a ULP complaint and conduct a hearing on
MCEO's previously-filed ULP charge before SERB.
No. 15AP-471                                                                           14


Findings of Fact:
        {¶ 35} 1. The school board and MCEO's predecessor, the Ohio Association of
Public School Employees AFSCME/AFL-CIO Local 276 ("OAPSE"), were parties to a
collective bargaining agreement ("CBA") in force from July 1, 2011 through June 30,
2013.
        {¶ 36} 2. On July 1, 2013, the day following expiration of the CBA, MCEO filed its
petition for representation election with SERB in order to represent the non-teaching,
non-certified employees of North Ridgeville Schools.
        {¶ 37} 3. MCEO was eventually deemed the exclusive representative for these
employees.
        {¶ 38} 4. MCEO and the school board began negotiating a successor CBA in
January 2014. Negotiations were active and ongoing for the next several months with
frequent meetings and exchanges of emails and proposals.
        {¶ 39} 5. During the course of these negotiations, the terms of employment for
the affected school district employees continued to be governed by the CBA that lapsed
at the end of June 2013, pursuant to In Re State Emp. Relations Bd. v. Crestline
Exempted School Dist. Bd. of Edn., SERB No. 2006-003 (March 21, 2006).
        {¶ 40} 6. Article 3.12 of the CBA provided specific terms under which the parties
could declare an impasse in negotiations for a subsequent agreement:
               If the parties are unable to reach agreement within forty-five
               (45) calendar days of the expiration of this agreement, either
               party may declare the issues to be at impasse. Thereupon,
               the parties will seek to resolve the impasse through
               mediation. To this end, they shall request the assistance of
               the Federal Mediation and Conciliation Service. The FMCS
               shall appoint a federal mediator who will conduct mediation
               in accordance with its rules. The parties agree that this
               procedure set forth above shall be the exclusive dispute
               resolution procedure and shall supersede those established
               in R.C. 4117.10, 4117.14, and related sections.

        {¶ 41} 7. After more than 45 days of negotiations, the school board's attorney
notified MCEO by email on August 8, 2014 that the school board would declare an
impasse under Article 3.12 of the CBA and request intervention of the Federal Mediation
and Conciliation Service ("FMCS").
No. 15AP-471                                                                            15


      {¶ 42} 8. On August 12, 2014, MCEO filed a ULP charge with SERB claiming that
the school board improperly declared an impasse in negotiations.
      {¶ 43} 9. MCEO argued in furtherance of its ULP charge that the declaration of
an "impasse" must be guided by the definition found in Twinsburg City School Dist. Bd.
of Edn. v. State Emp. Relations Bd., 172 Ohio App.3d 535, 2007-Ohio-957 (9th Dist.),
and comparable federal cases.
      {¶ 44} 10. The school board moved before SERB on August 15, 2014 to dismiss
the ULP charge, citing its right to declare an impasse under Article 3.12 of the CBA.
      {¶ 45} 11. SERB's labor relations investigator gathered information from the
parties and issued a memorandum on September 15, 2014 recommending that SERB
grant the school board's motion to dismiss.
      {¶ 46} 12. By order dated October 9, 2014, SERB determined that no probable
cause existed to find a statutory ULP violation and dismissed MCEO's ULP charge with
prejudice.
      {¶ 47} 13. MCEO commenced the present action with a complaint seeking a writ
of mandamus filed May 5, 2015.
Conclusions of Law:
      {¶ 48} A relator seeking a writ of mandamus must establish: (1) a clear right to
the relief prayed for; (2) a clear legal duty upon the respondent to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. Kinsey v. Bd. of Trustees of the Police & Fire Pension Fund of Ohio, 49 Ohio
St.3d 224, 225 (1990). Relator MCEO asserts that SERB abused its discretion in
dismissing the ULP charge and that MCEO is entitled to a writ of mandamus to compel
SERB to issue a complaint and conduct a hearing on the charge. For the reasons that
follow, the magistrate finds no abuse of discretion by SERB, and denies MCEO's request
for a writ of mandamus.
      {¶ 49} 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 and conduct a hearing. Id. There is no direct avenue
No. 15AP-471                                                                          16


of appeal from this determination. Ohio Assn. of Public School Emps., Chapter 643 v.
Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159 (1991). The proper means by
which to challenge SERB's dismissal of the ULP charge for lack of probable cause is
through the present mandamus action. State ex rel. Serv. Emps. Internatl. Union, Dist.
925 v. State Emp. Relations Bd., 81 Ohio St.3d 173 (1998), syllabus. In considering
whether a writ should issue, we determined 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).
      {¶ 50} 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 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." (Citations omitted.) Lorain City School Dist. Bd. of Edn. v. State
Emp. Relations Bd., 40 Ohio St.3d 257, 260 (1988). SERB's investigative procedures,
however, are not at issue here because the matter turns upon a single question: whether
the parties' right to declare an impasse in negotiations hinges upon the defined terms of
the prior CBA, which continue to govern parties' relations pursuant to Crestline, or
whether they were bound to apply the definition of an "ultimate impasse" set forth in
Twinsburg, supra, which states that an impasse can occur only where there is "'no
realistic possibility that a continuation of discussion at that time would have been
fruitful.'" Twinsburg at ¶ 15, quoting Am. Fedn. of Television & Radio Artists, AFL-CIO,
Kansas City Local v. NLRB, 395 Fed.2d 622, 628 (D.C. Cir.1968). In Twinsburg, the
Ninth District noted that SERB has adopted the Federal National Relations Board's
definition of an impasse stated in Am. Fedn. of Television & Radio Artists. See also,
Toledo Police Command Officers' Assn. v. State Emp. Relations Bd., 6th Dist. No. L-13-
1074, 2014-Ohio-4341, ¶ 41, quoting In re Vandalia-Butler City School Dist. Bd. of Edn.,
SERB No. 90-003 (Feb. 9, 1990): "Ultimate impasse is a legal concept adopted from the
private sector. The test developed by the NLRB as to whether there is an ultimate
impasse is reflected and approved in the case of [Am. Fedn. of Television & Radio
No. 15AP-471                                                                            17


Artists, AFL-CIO at 629], and appears to be whether there is 'no realistic possibility that
continuation of discussion at that time would have been fruitful.' Under NLRB case law
the existence of an impasse is very much a question of fact, and many factors are
considered in such factual determinations."
       {¶ 51} The definition of ultimate impasse set forth above is not applicable here.
The employer did not declare an impasse for purposes of imposing a unilateral
modification and curtailing further negotiation. See, generally, In re State Emp.
Relations Bd. v. Toledo City School Dist. Bd. of Ed., SERB No. 2001-006 (Oct. 1, 2001).
The declaration of an impasse here will lead only to mediation under the oversight of the
FMCS, i.e., further negotiation under structured and potentially more productive
conditions. Furthermore, R.C. 4117.14(C) permits the parties to implement a bargained-
for alternative dispute resolution procedure. See State Emp. Relations Bd. v.
Springfield, 31 Ohio App.3d 44 (1986).        Relator does not assert that the dispute
resolution procedures set forth in the lapsed CBA are void or not binding. This is the
only legal determination required to uphold SERB's finding of no probable cause and
dismissal of the ULP charge in this matter. MCEO's assertions that the school board did
not bargain in good faith is based exclusively upon implementation of the mediation
provision in Section 3.12 of the CBA. Likewise, any allegations that SERB failed to
adequately investigate the ULP charge warrants no further discussion because the only
factors at issue are conceded by MCEO, that is, the existence of the contractual provision
for mediation after 45 days, and the continued operation of the expired CBA pursuant to
Crestline.
       {¶ 52} For the foregoing reasons, it is the magistrate's decision that relator MCEO
has failed to establish that SERB abused its discretion in dismissing the ULP charge or
that SERB failed to properly investigate the charge. It is the magistrate's decision that
this court deny relator's request for a writ of mandamus.
                                          /S/ MAGISTRATE
                                          MARTIN L. DAVIS
No. 15AP-471                                                                       18


                               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).
