[Cite as State ex rel. Ames v. Emp. Relations Bd., 2019-Ohio-1003.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Diedree Ames,                          :

                 Relator,                            :

v.                                                   :                    No. 17AP-380

The State of Ohio State Employment                   :                (REGULAR CALENDAR)
Relations Board,
                                                     :
                 Respondent.
                                                     :


                                          D E C I S I O N

                                      Rendered on March 21, 2019


                 On brief: Daniel H. Klos, for relator.

                 On brief: Dave Yost, Attorney General, Michael D. Allen, and
                 Tiffany S. Henderson, for respondent.

                                             IN MANDAMUS
DORRIAN, J.
        {¶ 1} In this original action, relator, Diedree Ames, requests a writ of mandamus
ordering respondent, State Employment Relations Board, to find probable cause that
relator's union, Service Employees International Union District 1199, engaged in an unfair
labor practice when the union failed to pursue arbitration on behalf of relator. The matter
arises out of a grievance filed by relator after she was terminated from her employment as
a parole officer with the Ohio Department of Rehabilitation and Correction.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate recommends that this
court deny relator's request for a writ of mandamus.
No. 17AP-380                                                                              2


       {¶ 3} No party has filed objections to the magistrate's decision. The case is now
before this court for review.
       {¶ 4} No error of law or other defect is evident on the face of the magistrate's
decision. Therefore, we adopt the findings of fact and conclusions of law contained therein.
Accordingly, relator's request for a writ of mandamus is denied.
                                                                Writ of mandamus denied.
                           KLATT, P.J., and SADLER, J., concur.
No. 17AP-380                                                                           3


                                     APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


State ex rel. Diedree Ames,                 :

             Relator,                       :

v.                                          :                     No. 17AP-380

State Employment Relations Board,           :                (REGULAR CALENDAR)

             Respondent.                    :



                         MAGISTRATE'S DECISION

                              Rendered on October 26, 2018


             Daniel H. Klos, for relator.

             Michael DeWine, Attorney General, Michael D. Allen, and
             Tiffany S. Henderson, for respondent.


                                    IN MANDAMUS
      {¶ 5} Relator, Diedree Ames, brings this original action seeking a writ of
mandamus ordering respondent, State Employment Relations Board ("SERB"), to find
probable cause that relator's union, Service Employees International Union District 1199
("SEIU" or "the union") engaged in an unfair labor practice ("ULP") when the union failed
to pursue arbitration on behalf of relator. The matter arises out of a grievance filed by
relator after she was terminated from her employment as a parole officer with the Ohio
Department of Rehabilitation and Correction ("ODRC").
No. 17AP-380                                                                              4


Findings of Fact:
        {¶ 6} 1. Relator was terminated from her position as a parole officer with ODRC
on January 18, 2011.
        {¶ 7} 2. Relator's union representation for the period in question was provided by
SEIU.
        {¶ 8} 3. Relator's employment during the pertinent period was governed by a
collective bargaining agreement ("CBA") between SEIU and ODRC with effective dates of
July 1, 2009 through June 30, 2011.
        {¶ 9} 4. Articles 6, 7, and 8 of the CBA contain, respectively, a non-discrimination
clause, grievance and arbitration procedures, and a progressive discipline schedule.
        {¶ 10} 5. Article 6 provides as follows:
               6.01 Non Discrimination

               Neither the Employer nor the Union shall unlawfully
               discriminate against any employee of the bargaining units on
               the basis of race, sex, creed, color, religion, age, national
               origin, political affiliation, Union affiliation and activity,
               handicap or sexual orientation, or discriminate in the
               application or interpretation of the provisions of this
               Agreement, except those positions which are necessarily
               exempted by bona fide occupational qualifications due to the
               uniqueness of the job, and in compliance with the existing
               laws of the United States or the State of Ohio. In addition, the
               Employer shall comply with all the requirements of the
               Federal Americans with Disabilities Act and the regulations
               promulgated under that Act.

               The Employer and Union hereby state a mutual commitment
               to equal employment opportunity, in regards to job
               opportunities within the Agencies covered by this Agreement.

               6.02 Agreement Rights

               No employee shall be discriminated against, intimidated,
               restrained, harassed, or coerced in the exercise of rights
               granted by this Agreement.

        {¶ 11} 6. Under Article 7.06 of the CBA, only the union can advance a grievance to
arbitration.
No. 17AP-380                                                                               5


       {¶ 12} 7. ODRC maintained an employee conduct policy that prohibited employees
from "[m]aking obscene gestures or statements, or false, abusive, or inappropriate
statements."   (Relator's unfair labor practice charge, ODRC Standards of Employee
Conduct, Rule 12.) The policy also prohibits "[t]hreatening, intimidating or coercing
another employee or a member of the general public." (Relator's Unfair labor practice
charge, ODRC Standards of Employee Conduct, Rule 12.)
       {¶ 13} 8. Relator filed a grievance through the union on February 6, 2011 asserting
that her termination was the result of disparate treatment and unequal enforcement of
these workplace rules and policies.
       {¶ 14} 9. The grievance progressed through mediation on August 30, 2011 without
resolution.
       {¶ 15} 10. On May 25, 2012, SEIU informed relator by letter that the union would
not pursue arbitration for relator's grievance.
       {¶ 16} 11. Relator appealed this decision not to arbitrate to the SEIU executive
committee on September 27, 2012.
       {¶ 17} 12. On October 12, 2012, the executive committee informed relator by letter
that it confirmed the decision not to arbitrate based upon the poor likelihood of prevailing.
       {¶ 18} 13. The parties have stipulated that relator filed her original charge in SERB
case No. 2012-ULP-12-0321 on December 18, 2012, and an amended charge under the
same case number on December 20, 2012. This is the SERB case underlying the present
mandamus action.
       {¶ 19} 14. Relator filed an earlier ULP charge against SEIU, apparently based on the
same circumstances, under SERB case No. 2012-ULP-05-0114. The course of proceedings
and outcome of that case are not developed in the record here, and the parties do not assert
that the previous SERB matter has any impact on the present one.
       {¶ 20} 15. Documentation relating to relator's own work discipline history and
eventual termination from employment is not included in the stipulated evidence in this
mandamus action, and the record does not further disclose the extent to which the
circumstances of her dismissal were discussed or developed during the union grievance
process or before SERB.
No. 17AP-380                                                                                 6


       {¶ 21} 16. The record contains other filings acknowledging that one stated reason
for relator's termination was relator's posting of social media messages using off-color
language and making threatening statements to co-workers. Relator suggests, and
respondent does not contest, that relator in an undefined work-related context stated to a
co-worker, "[y]our ass is mine." (Amended ULP charge, Statement of Facts of Unfair Labor
Practice at 4.) In addition, relator made a Facebook post stating "I'll gimp into work
tomorrow. I guess I could just shoot them all . . . lol." (Amended ULP charge, Statement
of Facts of Unfair Labor Practice at 4.)
       {¶ 22} 17. Relator's ULP charge states that the union failed to consider two examples
of similar conduct from relator's co-workers that gave rise to lesser discipline. In one, Sheri
Blackburn, a similarly-situated employee, authored a work-account e-mail containing
similar threatening language:
              According to the Incident Report, on November 23, 2009
              Parole Services Supervisor Angelika Manz sent Parole Officer
              Sheri Blackburn an email advising her that her performance
              evaluation was due on December 23, 2009 and asked her to
              email three goals for the next rating period.

              On November 24, 2009, PSS Manz received the following email
              from PO Blackburn:

              "Ok, here are my 3 goals:

              1) Try to maintain my stress level and keep my anger in check
              against these low lifes we half (sic) to deal with. Especially
              when they have more toys than me and eat better than me.

              2) Try not to shoot anyone unless absolutely necessary.
              Especially when I hear them brag about the above.

              3) And above all, go home alive everyday to watch my crappy
              TV, eat ramen noodles and pot pies, and check my email on my
              crappy computer.

              3 more are forthcoming."

(Relator's Amended ULP Charge, Jan. 11, 2010 Division of Parole and Community Service
Fact-Finding Investigatory Report at 1-2.)
No. 17AP-380                                                                             7


       {¶ 23} 18. Relator's ULP complaint cites another example of disparate discipline
stemming from an investigation by the division of parole. This was triggered by a complaint
by relator that another colleague, Parole Officer Jill Brady, had created a false e-mail
address through Google in order to further a complaint about relator herself:
              As a result of this complaint, Ms. Ames was investigated and
              disciplined for using the internet at work. Upon Ms. Ames
              obtaining a copy of the investigation and learning of the
              anonymous complaint against her, she contacted Google to
              find where the e-mail address originated from. Ms. Ames
              reported the false email account was created by Parole Officer
              Jill Brady's significant other, Rosemary Lewellen. Ms. Ames
              reported that it is illegal to create a false email address and
              demanded that Ms. Brady be investigated.

(Relator's Amended ULP Charge, undated Dvision of Parole Investigatory Letter at 1.)
       {¶ 24} The investigator further determined through interviewing Parole Officer
Brady that Brady had logged onto various internet sites through her state computer for
personal purposes. This investigation closed with the conclusion from the investigator that
Brady had admitted to improper internet usage while at work. The investigator did not
render a conclusion with respect to the impact of the alleged creation of a false e-mail
account to further allegations against relator.
       {¶ 25} 19. SERB's Labor Relations Specialist, Judy Knapp, filed a memorandum on
January 18, 2013 recommending dismissal of relator's ULP charge. The investigator's
conclusions were as follows:
              Information gathered during the investigation reveals the
              Union's actions were not arbitrary, discriminatory, or in bad
              faith when it did not advance Ms. Ames' grievance to
              arbitration. After the Union's initial decision not to advance
              the grievance, it provided Ms. Ames an opportunity to appeal
              the decision through its Executive Board. The Appeals
              Committee, based on the information provided, made the final
              decision not to advance the grievance. Pursuant to [SERB's
              decision in AFSCME Local 11, SERB No. 93-019 (Dec. 20,
              1983)], Ms. Ames had no absolute right to have her grievance
              advanced to arbitration.

(Investigator's Memorandum, Jan. 18, 2013 at 2.)
       {¶ 26} 20. On January 31, 2013, SERB rendered a determination accepting the
investigator's conclusion, finding that:
No. 17AP-380                                                                               8


              Information gathered during the investigation revealed the
              Charged Party's actions were not arbitrary, discriminatory, or
              in bad faith when it did not advance Charging Party's grievance
              to arbitration. After Charged Party's initial decision not to
              advance the grievance, it provided Charging Party an
              opportunity to appeal the decision through the Executive
              Board. The Appeals Committee, based on the information
              provided, made the decision not to advance the grievance.
              Accordingly, the charge is dismissed with prejudice for lack of
              probable cause to believe the statute has been violated.

        {¶ 27} 21. In addition to the proceedings before SERB and in the present mandamus
action, relator has pursued a related complaint in the Court of Claims of Ohio, which
granted summary judgment in favor of ODRC. This court affirmed the Court of Claims'
judgment in Ames v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-119, 2014-Ohio-
4774.
        {¶ 28} 22. Relator filed her complaint in mandamus before this court on May 25,
2017.
        {¶ 29} 23. SERB filed an answer on June 29, 2017.
        {¶ 30} 24. Relator filed her amended complaint on August 7, 2017.
        {¶ 31} 25. SERB filed its amended answer on September 1, 2017.
Discussion and Conclusions of Law:
        {¶ 32} An employee organization commits an unfair labor practice if it "[f]ail[s] to
fairly represent all public employees in a bargaining unit." R.C. 4117.11(B)(6). "Whoever
violates section 4117.11 of the Revised Code is guilty of an unfair labor practice remediable
by the state employment relations board." R.C. 4117.12(A). Any public employee in a
bargaining unit may file a charge with SERB alleging that an employee organization
committed an unfair labor practice by failing to fairly represent the employee.
R.C. 4117.12(B). In accordance with the process detailed in R.C. 4117.12(B), "SERB must
issue a complaint and conduct a hearing on an unfair labor practice charge if, following an
investigation, it has a reasonable ground to believe that an unfair labor practice has
occurred." State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd.,
95 Ohio St.3d 533, 2002-Ohio-2839, ¶ 38.
        {¶ 33} SERB's probable cause determinations in a ULP case are not reviewable by
direct appeal. Ohio Assn. of Pub. School Emps., Chapter 643, AFSCME/AFL-CIO v.
No. 17AP-380                                                                                 9


Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159 (1991). In the absence of an
adequate remedy in the ordinary course of the law, the present action in mandamus is the
appropriate remedy to obtain judicial review of SERB's order dismissing the ULP charge
for lack of probable cause. State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State
Emp. Relations Bd., 81 Ohio St.3d 173 (1998), syllabus.
       {¶ 34} The dismissal of a ULP charge by SERB will be overturned in a mandamus
action to this court only if relator can prove SERB abused its discretion. State ex rel.
Portage Lakes at ¶ 35. The relator is not required to irrefutably establish the merits of her
grievance: "The pertinent issue is whether probable cause exists to believe that an unfair
labor practice has occurred, not whether an unfair labor practice actually occurred."
(Emphasis omitted.) Serv. Emp. Internatl. Union at 181. However, in reviewing SERB's
dismissal of the ULP charge, because mandamus proceedings are "premised upon the
relators' establishing an abuse of discretion by SERB in its probable-cause determination,
courts should not substitute their judgment for that of the administrative agency." Portage
Lakes at ¶ 41.
       {¶ 35} Public employees have no absolute right under R.C. 4117.11(B)(6) to see a
grievance taken to arbitration. State ex rel. Carnes v. State Emp. Relations Bd., 10th Dist.
No. 16AP-46, 2017-Ohio-1137, ¶ 46, citing AFSCME Local 2312, SERB No. 89-029 (Oct. 16,
1989). As a result, unions have discretion in deciding which grievances warrant the
allocation of resources to take them to arbitration. Id., citing In re State Emp. Relations
Bd. v. Ohio Civil Serv. Emp. Assoc., AFSCME Local 11, AFL-CIO, SERB No. 93-019 (Dec.
20, 1993), citing Vaca v. Sipes, 386 U.S. 171 (1967).
       {¶ 36} Based upon the stipulated record before the magistrate, the briefs submitted
by the parties, and the arguments presented at oral argument, the magistrate concludes
SERB did not abuse its discretion in dismissing relator's ULP charge against the union for
lack of probable cause. Because of this conclusion, the magistrate declines to address
SERB's argument that relator's mandamus action was brought so tardily that it must be
barred by application of the doctrine of laches.
       {¶ 37} A violation of the duty of fair representation under R.C. 4117.11(B)(6), as
discussed above, will be found only if the union acted arbitrarily, discriminatorily, or in bad
faith. State ex rel. Hall v. State Emp. Relations Bd., 122 Ohio St.3d 528, 2009-Ohio-3603,
No. 17AP-380                                                                             10


¶ 22. In Hall, the Supreme Court of Ohio cited with approval SERB's standard in assessing
a union's failure to fairly represent all public employees:
              "If there are no apparent factors that show legitimate reason
              for a union's approach to an issue, the Board will not
              automatically assume arbitrariness. Rather, we will look to
              evidence of improper motive: bad faith or discriminatory
              intent. An element of intent must be present; it may be evinced
              by discrimination based upon an irrelevant and invidious
              consideration, or it may be indicated by hostile action or
              malicious dishonesty i.e., bad faith. In the absence of such
              intent, if there is no rational basis for the action, arbitrariness
              will be found only if the conduct is so egregious as to be beyond
              the bounds of honest mistake or misjudgment."

Id. at ¶ 22, quoting In re Wheeland, 10th Dist. No. 94AP-1424 (June 6, 1995), quoting
AFSCME Local 2312.
       {¶ 38} In the present case, it is difficult to find a breach of the duty of fair
representation because the evidence before the magistrate is insufficiently developed
regarding the circumstances of relator's own dismissal. While she extensively argues, and
provides some evidence to support, potentially worse violations by similarly-situated co-
workers, the record does not contain a developed factual basis to assess the reasons for
which relator herself was terminated, including any evidence regarding her past work
record.
       {¶ 39} Even to the extent that relator's admitted comments appear less egregious
than those for which co-workers received lesser punishment, the distinction is insufficient
to conclude SERB abused its discretion in refusing to go forward with the ULP complaint
on the basis that the union's decision not to advance relator's grievance to arbitration was
not supported by legitimate reasons. "Flexibility and deference must be accorded the union
in its efforts to seek benefits and enforcement for the unit as a whole, even though the
desires of individual employees or groups of employees within the unit may go unfulfilled."
Wheeland, quoting AFSCME Local 2312. The SEIU did provide SERB with rational reasons
for not advancing relator's grievance to arbitration. Both the appeals committee and the
union mediator concluded the grievance was unlikely to succeed at arbitration.
       {¶ 40} Based on the foregoing, the magistrate concludes relator has not established
a clear legal right to have SERB issue a probable cause finding on her ULP charge or a clear
No. 17AP-380                                                                                11


legal duty on the part of SERB to do so. SERB did not abuse its discretion in finding a lack
of probable cause, nor did SERB fail 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




                              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).
