[Cite as State ex rel. Ballog v. State Emp. Relations Bd., 2012-Ohio-4401.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97805



          STATE OF OHIO EX REL. MELISSA BALLOG
                                                                      RELATOR

                                                       vs.

           STATE EMPLOYMENT RELATIONS BOARD
                                                                      RESPONDENT




                                           JUDGMENT:
                                           WRIT DENIED


                                          Writ of Mandamus
                                    Motion Nos. 452138 and 456651
                                          Order No. 458634

RELEASE DATE:                 September 25, 2012
ATTORNEYS FOR RELATOR

Gerald R. Walton, Esq.
John J. Schneider, Esq.
Gerald R. Walton & Associates
2800 Euclid Avenue, Suite 320
Cleveland, Ohio 44115

ATTORNEYS FOR RESPONDENT

Michael DeWine, Esq.
Ohio Attorney General
By: Lori Weisman, Esq.
Assistant Attorney General
Labor Relations Section
615 W. Superior Avenue, 11th Floor
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

       {¶1} Relator, Melissa Ballog, was terminated from her employment with the

Cuyahoga Metropolitan Housing Authority (“CMHA”) on March 24, 2010. Ballog was

a member of the American Federation of State, County and Municipal Employees,

AFL-CIO (“AFSCME”), Local 1355.          The president of Local 1355 filed a grievance on

Ballog’s behalf and CMHA denied the grievance. Ultimately, Local 1355 and AFSCME

Ohio Council 8 determined that the grievance did not have sufficient merit to appeal to

arbitration, withdrew the appeal and did not appeal further.

       {¶2} Ballog filed an unfair labor practice charge with respondent, State

Employment Relations Board (“SERB”). She charged Ohio Council 8 and Local 1355

(collectively “the union”) under R.C. 4117.11(B)(6) (failure “to fairly represent all public

employees in a bargaining unit”).    SERB dismissed the unfair labor practice charge for

lack of probable cause to believe that the union violated R.C. 4117.11(B)(6) and as

untimely. Ballog filed a motion for reconsideration supported by several documents

including an affidavit of counsel. SERB denied the motion.

       {¶3} Ballog commenced this action against SERB to challenge the propriety of

the dismissal of the unfair labor practice charge.   She requested that this court issue a

writ of mandamus compelling SERB to: reinstate her unfair labor practice charge; issue a

complaint against the union; and hold a hearing in accordance with R.C. Chapter 4117.1


       1
           In Count Two of the complaint, she requested that this court issue a writ of
       {¶4} SERB filed a motion for summary judgment, which Ballog opposed.

Later, Ballog filed a motion for summary judgment (repeating almost verbatim her brief

in opposition to SERB’s motion for summary judgment).           SERB opposed Ballog’s

motion for summary judgment and this court granted Ballog’s request for leave to file a

reply brief.

       {¶5} CMHA employed Ballog as a Low Income Housing Eligibility Analyst.

Her duties included interviewing individuals to determine if they were eligible for

housing assistance programs.      She also would enter information provided by the

interviewee into CMHA’s computer system.

       {¶6} Ballog also participated in CMHA’s Low Income Public Housing (“LIPH”)

program and was a resident at a CMHA-operated estate.      She was on the waiting list for

the Housing Choice Voucher Program (“HCVP” or “Section 8”).           CMHA authorized

Ballog to access certain aspects of the LIPH computer records, but did not authorize her

to access Section 8 records.

       {¶7} In the letter informing Ballog of her termination, CMHA’s Human

Resources Coordinator stated:

       Specifically, during the pre-disciplinary conference you admitted that on or
       about Thursday, February 25, 2010 you accessed your HCVP record
       without authorization. Further, after accessing your HCVP record, you
       deleted said record without authorization. Your conduct was dishonest,



mandamus compelling SERB to produce the investigatory file in her unfair labor
practice charge, Case No. 2011-ULP-08-0218. The parties agree that this claim is
moot.
       inappropriate, and a gross conflict of interest.        Your conduct as
       aforementioned cannot and will not be tolerated by the Authority.

       {¶8}    Ballog, however, states that she did not have the necessary “pass codes” to

modify information in the Section 8 computer system. She denies that she deleted

anything.

       {¶9}    It is well-established that mandamus is the remedy for challenging SERB’s

dismissal of an unfair labor practice charge for lack of probable cause. See, e.g., State

ex rel. Hall v. State Emp. Relations Bd., 122 Ohio St.3d 528, 2009-Ohio-3603, 912

N.E.2d 1120, ¶ 18. We must, therefore, determine whether SERB abused its discretion

by dismissing Ballog’s unfair labor practice charge. Id.

       {¶10}     Ballog challenges SERB’s conclusion that no probable cause existed to

believe that the union violated its duty to fairly represent her.   See R.C. 4117.11(B)(6).

That is, she contends that the union did not take certain basic and required steps necessary

for fair representation.   One of those steps is deciding whether to take a grievance to

arbitration.   Hall, supra, ¶ 26.       Ballog argues that the union did not timely

communicate to her the decision that her grievance did not have sufficient merit to

warrant an appeal to arbitration.

       {¶11}    Her challenge to the union’s procedures ignores what Ballog did while she

was employed at CMHA. She admitted accessing her Section 8 record. Additionally,

the SERB record includes correspondence from CMHA as well as a statement from a

union staff representative indicating that Ballog stated during the Step 3 grievance

hearing that she may have inadvertently deleted her name from the list.
       {¶12}   We must determine whether SERB abused its discretion by dismissing

Ballog’s unfair labor practice charge.

        A writ of mandamus will issue to correct an abuse of discretion by SERB
       to dismiss unfair labor practice charges. * * * An abuse of discretion
       implies an attitude that is unreasonable, arbitrary or unconscionable. [State
       ex rel. Leigh v. State Emp. Relations Bd. (1996), 76 Ohio St.3d 143,] at
       145, 666 N.E.2d 1128. State ex rel. Portage Lakes Edn. Assn., OEA/NEA
       v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, 769
       N.E.2d 853; and State ex rel. Hamilton Cty. Bd. of Commrs. v. State Emp.
       Relations Bd., 102 Ohio St.3d 344, 2004-Ohio-3122, 810 N.E.2d 944. As a
       corollary, SERB cannot abuse its discretion based on evidence that was not
       properly before the board when it made its decision. Thus, the review of a
       SERB decision is limited to the facts as they existed at the time SERB made
       its decision, as shown by the SERB record. Portage Lakes and State ex rel.
       Hall v. State Emp. Relations Bd., 122 Ohio St.3d 538, 2009-Ohio-3603, 912
       N.E.2d 1120. Furthermore, the courts must give deference to SERB’s
       findings and interpretation of R.C. Chapter 4117, and the court may not
       substitute its judgment for that of SERB, even if there is conflicting
       evidence on an issue. State ex rel. Crumbley v. State Emp. Relations Bd.,
       8th Dist. No. 95299, 2011-Ohio-735, ¶ 6.

       {¶13}   Ballog insists that she not only did not, but could not, delete anything from

the Section 8 computer system.    Other aspects of the SERB record, however, reflect that

Ballog herself indicated that she may have unintentionally deleted her record.

Regardless, she accessed her Section 8 file without authorization.

       {¶14}   As Crumbley demonstrates, we must defer to SERB’s findings. We have

reviewed the SERB record and do not find that SERB’s dismissal of Ballog’s unfair labor

practice charge was unreasonable, arbitrary, or unconscionable.      Relief in mandamus is

not, therefore, appropriate.

       {¶15}   Ballog also challenges SERB’s finding that the filing of her unfair labor

practice charge was untimely. The record before SERB includes a letter dated February
16, 2011, from the regional director of Ohio Council 8 to Ballog. The letter advised her

that it had been determined that:    her grievance did not have sufficient merit to warrant

an appeal to arbitration; the union had taken steps to withdraw her grievance; and there

would be no further appeal of her grievance.

       {¶16}   Ballog filed her unfair labor practice charge on August 10, 2011.      “The

board [SERB] may not issue a notice of hearing based upon any unfair labor practice

occurring more than ninety days prior to the filing of the charge with the board” except

for persons serving in the armed forces. R.C. 4117.12(B). Clearly, Ballog filed her

unfair labor practice charge more than 90 days after the date of the February 16, 2011

letter — the communication to Ballog of the purported unfair labor practice of refusing to

take her grievance to arbitration.

       {¶17}   As mentioned above, after SERB dismissed Ballog’s unfair labor practice

charge, she filed a motion for reconsideration.       Accompanying that motion was an

affidavit from her counsel averring that the union never timely communicated with Ballog

or her counsel.   She argues that her attorney’s affidavit in support of her motion for

reconsideration filed before SERB should supersede the unsworn materials in the SERB

record regarding whether her filing was timely.

       {¶18} Yet, as stated above, we must defer to SERB’s findings when confronted

with conflicting evidence.     Crumbley, supra.    Although Ballog’s counsel speculates

that February 16, 2011, may not have been the date on which the letter was written,

nothing in the SERB record affirmatively demonstrates that the letter does not accurately
reflect the date of its origin and its having been sent to Ballog at her residence.   These

circumstances do not provide a basis for concluding that, upon reflection, SERB should

have reconsidered its judgment and deemed that it made an error by deciding that

Ballog’s unfair labor practice charge was untimely. See State ex rel. Rust v. Lucas Cty.

Bd. of Elections, 101 Ohio St.3d 63, 2004-Ohio-9, 800 N.E.2d 1162. As a consequence,

relief in mandamus is not appropriate.

       {¶19}   Accordingly, respondent’s motion for summary judgment is granted and

relator’s motion for summary judgment is denied. Relator Ballog to pay costs. This

court directs the clerk of court to serve all parties notice of this judgment and its date of

entry upon the journal as required by Civ.R. 58(B).

       {¶20} Writ denied.




JAMES J. SWEENEY, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
