[Cite as State ex rel. Hall v. State Emp. Relations Bd., 122 Ohio St.3d 528, 2009-Ohio-3603.]




          THE STATE EX REL. HALL, APPELLEE, v. STATE EMPLOYMENT
                            RELATIONS BOARD, APPELLANT.
               [Cite as State ex rel. Hall v. State Emp. Relations Bd.,
                        122 Ohio St.3d 528, 2009-Ohio-3603.]
Mandamus — Appeal from judgment granting writ of mandamus to compel the
        State Employment Relations Board to vacate dismissal of a charge —
        Court of appeals’ grant of writ reversed — Court of appeals could not
        substitute its judgment for that of board.
      (No. 2009-0159 — Submitted July 14, 2009 — Decided July 29, 2009.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 90808,
                                     2008-Ohio-6661.
                                  ___________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment granting a writ of mandamus to
compel appellant, State Employment Relations Board (“SERB”), to vacate its
dismissal of an unfair-labor-practice charge, find that there is probable cause for
the charge, and hold a hearing on the merits of the charge. Because the court of
appeals erred in holding that SERB abused its discretion in dismissing the charge,
we reverse the judgment of the court of appeals and deny the writ.
                                     Child-Abuse Call
        {¶ 2} Appellee, Barbara Hall, was employed as a social service worker
by the Cuyahoga County Department of Children and Family Services (“county”).
On January 8, 2004, Hall processed a KIDS hotline call from a healthcare worker
reporting that the maternal aunt of a two-year-old child claimed that the child had
been physically and sexually abused by the boyfriend of the child’s mother. The
healthcare employee noted that the aunt relayed that the child said that his
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“bottom was hurting,” that his mother’s boyfriend was responsible for it, and that
the child had exhibited bruises covering his body a couple weeks earlier. When
Hall asked for the mother’s name, there was a lapse of 17 seconds during which
the healthcare worker looked it up and provided it to her.
       {¶ 3} Hall then designated the call as a nonreferral, which meant that the
allegations of child abuse would not be referred for investigation. Hall informed
the healthcare worker that the matter would not be investigated because “she can’t
go on speculation, she don’t have any proof.” Under the county’s policy, which
Hall acknowledged receiving, all cases involving alleged physical and sexual
abuse of children were required to be referred for investigation.
       {¶ 4} A little over two weeks later, the child was admitted to a hospital
and found to have a left subdural hematoma, left arm fracture, and bilateral
hemorrhages – conditions that were consistent with shaken-baby syndrome.
                            Discharge and Grievance
       {¶ 5} In March, the county held a predisciplinary conference. At the
conference, Hall claimed that during the 17-second pause during the January
hotline call, she was instructed by her supervisor to designate the child-abuse call
as a nonreferral.   The supervisor denied Hall’s claim.           Hall was placed on
administrative leave with pay while the county investigated her actions in not
referring the child-abuse allegations.
       {¶ 6} The county found Hall guilty of neglect of duty and terminated her
employment effective May 19, 2004.            The county concluded that Hall had
violated its guidelines of appropriate conduct by failing to properly assess and
process the hotline call involving the child-abuse allegations.
       {¶ 7} Two days later, Hall’s union, the American Federation of State,
County, and Municipal Employees, Ohio Council 8, Local 1746, AFL-CIO,
appealed her termination to step 3 of the grievance procedure contained in the
collective-bargaining agreement between the county and the union.               The




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agreement provides, “It is important that the employee complaints regarding
unjust or discriminatory suspensions and/or discharge be handled promptly.
Therefore, all such disciplinary action may be reviewed through the Grievance
Procedure, beginning at Step 3.”       The local union president stated that she
personally gave Hall a copy of the grievance shortly after it was filed.
                          Further Actions on Grievance
        {¶ 8} In June 2004, a step 3 grievance hearing was held during which
Hall was represented by the local union president. At the union’s request, the
grievance was put on hold so that the union could obtain more information and
the county’s investigation into the child abuse could be completed. A couple of
months later, the local union president met with the county investigator, who
confirmed that the investigation had substantiated the child abuse. The union
president advised the county to answer the grievance. The union president also
discussed the investigation results with Hall and told her that she did not believe
that the case would be successful if arbitrated.
        {¶ 9} After not receiving a written response to the grievance by January
2005, the union president called the county’s human resources director, who
informed her that a response denying the grievance would be forthcoming. The
union president believed that she had received the county’s written step 3
response to the grievance and had given the file to the union’s Ohio Council 8
staff to review for possible arbitration. During 2005, the union president told Hall
that the grievance was being reviewed by Ohio Council 8 for possible arbitration
and reminded her that it was a serious case that might not be appealed to
arbitration.
        {¶ 10} In December 2006, after the Ohio Council 8 president asked the
local union president about Hall’s grievance, the local union president discovered
that the county had never issued a step 3 grievance response. The union then
contacted the county, and by letter dated December 20, 2006, the county issued a




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decision denying the grievance and concluding that Hall was terminated with just
cause.
         {¶ 11} The union timely appealed the denial of the grievance to
arbitration. Upon reviewing the matter, however, Ohio Council 8 determined that
the grievance lacked merit because (1) Hall did not follow proper procedures to
assign the case for investigation, (2) Hall was told of possible physical and sexual
abuse of the child, which was sufficient to refer the matter for investigation under
the county’s policies, (3) it was Hall’s responsibility to assess the hotline call, and
a supervisor’s override of that decision was required to be written, and (4) there
was no override in the case. By letter dated April 26, 2007, the union advised Hill
that based on its review, the grievance did not have sufficient merit to warrant
continuing the appeal to arbitration and that the union would withdraw the
grievance.
                          Unfair-Labor-Practice Charge
         {¶ 12} Hall filed with SERB an unfair-labor-practice charge against the
union. She claimed that the union violated its duty to fairly represent her under
R.C. 4117.11(B)(6). More specifically, Hall asserted that the union (1) never
provided her with a copy of the grievance submitted by the union on her behalf
and failed to keep her updated, (2) never submitted a grievance regarding her
initial suspension from employment, and (3) delayed for three years before
informing her that the grievance would not be appealed to arbitration.
         {¶ 13} A labor-relations specialist investigated the matter for SERB and
requested that Hall and the union provide responses to certain requests for
information.    The labor-relations specialist requested that Hall provide all
documentation supporting her position, and the specialist requested that the union
provide any witness statements supporting its position.            After the parties
submitted their responses, the labor-relations specialist submitted a memorandum
concluding that “[b]ased on the merits of [Hall’s] grievance, it appears [the union]




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acted reasonably when it determined not to proceed any further on the grievance.
The investigation does not show that [the union’s] actions were arbitrary,
discriminatory, or in bad faith.” The labor-relations specialist recommended that
SERB dismiss the charge with prejudice for lack of probable cause. SERB agreed
and dismissed Hall’s unfair-labor-practice charge with prejudice.
                                Mandamus Case
       {¶ 14} Hall then filed a complaint in the Court of Appeals for Cuyahoga
County for a writ of mandamus to compel SERB to reinstate her unfair-labor-
practice charge, issue a complaint against the union, and hold a hearing on the
matter. Hall also sought a writ of mandamus to compel SERB to provide her with
a copy of its investigative file on her charge. The latter claim was rendered moot
when SERB released a copy of its investigatory file to Hall.
       {¶ 15} The parties filed motions for summary judgment. Hall submitted
affidavits of three former county employees with her motion. None of these
affidavits had been submitted to SERB during its investigation of Hall’s unfair-
labor-practice charge.    In her motion, Hall claimed that the union failed to
prosecute her grievance over a three-year period and thus failed to timely submit
her grievance to step 3 of the grievance procedure in the collective-bargaining
agreement after requesting that the county place her grievance on hold in 2004.
       {¶ 16} The court of appeals granted a writ of mandamus to compel
SERB to vacate its dismissal of Hall’s unfair-labor-practice charge, find probable
cause for the charge, and hold a hearing on the merits. The court of appeals
concluded that SERB abused its discretion in dismissing Hall’s charge.
       {¶ 17} This cause is now before the court on SERB’s appeal as of right.
Ohio Council 8 and the Ohio Education Association have submitted amicus curiae
briefs in support of SERB.
                         Mandamus: Standard of Review




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       {¶ 18} “R.C. 4117.12(B) requires SERB to issue a complaint and
conduct a hearing on an unfair-labor-practice charge if it has probable cause for
believing that a violation occurred.” 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
949, ¶ 16. “Because these SERB determinations are not reviewable by direct
appeal, mandamus is available to remedy an abuse of discretion by SERB in
dismissing unfair-labor-practice charges.” State ex rel. Stewart v. State Emp.
Relations Bd., 108 Ohio St.3d 203, 2006-Ohio-661, 842 N.E.2d 505, ¶ 10. “An
abuse of discretion connotes an unreasonable, arbitrary, or unconscionable
attitude.” State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d
181, 183, 677 N.E.2d 343.
                     Probable Cause and R.C. 4117.11(B)(6)
       {¶ 19} We must determine whether the court of appeals erred in holding
that SERB abused its discretion when it dismissed Hall’s unfair-labor-practice
charge for lack of probable cause. SERB is required to issue a complaint and
conduct a hearing on an unfair-labor-practice charge if, after 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, 769 N.E.2d 853, ¶ 38. This determination is
generally factual, and courts cannot substitute their judgment for that of SERB if
there is conflicting evidence. Id. at ¶ 41.
       {¶ 20} Hall claimed that the union violated R.C. 4117.11(B)(6), which
specifies that “[i]t is an unfair labor practice for an employee organization, its
agents, or representatives, or public employees to * * * [f]ail to fairly represent all
public employees in a bargaining unit.” In determining whether SERB abused its
discretion when it held that Hall did not establish probable cause that the union
violated its duty to fairly represent her, we “must defer to SERB’s interpretation
of R.C. Chapter 4117.” Grady, 78 Ohio St.3d at 183-184, 677 N.E.2d 343; State




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Emp. Relations Bd. v. Miami Univ. (1994), 71 Ohio St.3d 351, 353, 643 N.E.2d
1113.
        {¶ 21} SERB has applied the following standard for determining whether
a union has violated its duty of fair representation:
        {¶ 22} “ ‘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.’ ” In re Wheeland (June 6, 1995), Franklin App. No.
94APE10-1424, 1995 WL 347896, *4, quoting In re AFSCME, Local 2312 (Oct.
16, 1989), SERB No. 89-029, at 3-203 to 3-204.
        {¶ 23} In Vencl v. Internatl. Union of Operating Engineers, Local 18
(C.A.6, 1998), 137 F.3d 420, 426, the United States Court of Appeals for the
Sixth Circuit interpreted the National Labor Relations Act’s comparable language
imposing a duty of fair representation on unions:
        {¶ 24} “A union breaches that duty by acting arbitrarily. Ruzicka v.
General Motors Corp., 649 F.2d 1207, 1209 (6th Cir.1981) (‘Ruzicka II’). A
union acts arbitrarily by failing to take a basic and required step. Id. at 1211.
Timely filing is both basic and required. In Ruzicka II, the union failed to file a
timely grievance. The court noted that ‘absent justification or excuse, a union’s
negligent failure to take a basic and required step, unrelated to the merits of the
grievance, is a clear example of arbitrary and perfunctory conduct which amounts
to unfair representation.’ Id. (citation omitted). As an example of a viable
excuse, the court held that the union’s untimely filing could be excused if a prior




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course of dealing reasonably indicated that the employer would accept a late
filing.”
           {¶ 25} SERB subsequently adopted the Vencl holding in its fair-
representation analysis:
           {¶ 26} “We hereby adopt this analysis into our process of determining
whether a union’s conduct is ‘arbitrary’ and the process outlined within it. There
are certain basic and required steps a union must take when fulfilling its duty of
fair representation; the specific steps will vary depending upon the nature of the
representation being provided; a non-exhaustive list of these representation
functions includes filing a grievance, processing a grievance, deciding whether to
take a grievance to arbitration, participating in labor-management committee
meetings, negotiating with an employer regarding wages, hours, terms and
conditions of employment, and conducting a contract ratification meeting. Failure
to take a basic and required step while performing any of these representation
functions creates a rebuttable presumption of arbitrariness. When looking at this
issue, we must look at all of the circumstances involved, including, but not limited
to, what steps were basic and required, how severe the mistake or misjudgment
was, what the consequences of the union’s acts were, and what the union’s
reasons for its acts were.
           {¶ 27} “The initial burden is on the Charging Party and the Complainant
to show that the union acted arbitrarily, and therefore did not fairly represent the
Charging Party, by showing that the union failed to take a basic and required
step.” In re OCSEA/AFSCME Local 11 (July 22, 1998), SERB No. 98-010, at 3-
58; see also Dist. 1199, The Health Care & Soc. Servs. Union, SEIU, AFL-CIO v.
State Emp. Relations Bd., Franklin App. No. 02AP-391, 2003-Ohio-3436, 2003
WL 21499655, ¶ 37-38.
           {¶ 28} With these standards governing our analysis of SERB’s dismissal
of Hall’s charge, we next determine whether SERB abused its discretion.




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               Application of Standards to Evidence Before SERB
        {¶ 29} The court of appeals held that SERB abused its discretion in
dismissing Hall’s unfair-labor-practice charge alleging a violation of the union’s
duty of fair representation under R.C. 4117.11(B)(6). As the court of appeals
noted, because the parties agreed that neither bad faith nor discrimination applied,
the dispositive issue was whether there was probable cause before SERB that the
union’s actions relating to Hall’s grievance were arbitrary. The court of appeals
found that probable cause existed because (1) the union “failed to take the basic
and required step of notifying the Federal Mediation and Conciliation Service,”
(2) the union “lost track of the status of the grievance during 2005 and did not
promptly pursue it,” (3) the labor-relations specialist excused the union’s actions
based on an improper standard, and (4) the labor-relations specialist “did not
provide each party an equal opportunity to present its case.” 2008-Ohio-6661 at ¶
30. For the following reasons, however, these reasons lack merit.
         Notification of the Federal Mediation and Conciliation Service
        {¶ 30} Step 5 of the grievance procedure in the collective-bargaining
agreement between the county and the union provides that if a grievance is not
satisfactorily settled at step 3 of the process, “the Union may, within thirty (30)
days after the receipt of the Step 3 answer, submit the issue to arbitration. The
Union shall notify the Federal Mediation and Conciliation Service (‘FMCS’) of
its intent to arbitrate.”
        {¶ 31} Significantly, in her filings supporting the unfair-labor-practice
charge before SERB and in her filings in her court of appeals mandamus action,
Hall never asserted that the union failed to comply with step 5 of the grievance
procedure because it did not notify FMCS. Consequently, there was no reason for
the union to submit evidence or argument on that issue. See Dist. 1199, 2003-
Ohio-3436, 2003 WL 21499655, at ¶ 31 (“Because that is the only issue set forth




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in [the charging party’s] complaint, it arguably is the only issue SERB should
have decided”).
          {¶ 32} Nor is it apparent that notifying FMCS was a basic and required
step. Step 4 of the grievance procedure specifies that “[o]nce a grievance has
been appealed to arbitration, it will be referred to mediation unless either party
determines not to mediate a particular grievance.” Therefore, it was unnecessary
for the union to notify FMCS to secure an arbitrator under step 5 as long as a
decision about mediation had not been made.
          {¶ 33} The court of appeals thus erred in relying on this unargued and
erroneous ground to grant the writ.      The union acted reasonably in timely
submitting an appeal of the county’s step 3 decision denying the grievance while
the union proceeded to review whether to continue processing the grievance
through arbitration.
                       Failure to Promptly Process Grievance
          {¶ 34} The local union president lost track of Hall’s grievance from
January 2005, when the county advised her that it would deny the grievance, until
December 2006, when she discovered that she had not received a step 3 response
from the county. But the duty to make a prompt, written step 3 determination
under the collective-bargaining agreement was on the employer – the county.
There was no duty on the union to do so. In fact, the local union president had
already contacted the county and requested that it make its step 3 decision on the
grievance. This case is thus distinguishable from the SERB case cited by the
court of appeals in which a union failed to advance a grievance within the
collective-bargaining agreement’s deadline to do so and concealed that fact from
the employee. Cf. In re OCSEA, AFSCME, Local 11 (May 21, 1999), SERB No.
99-099. Here, the union’s actions did not cause any grievance-related deadline to
expire.




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        {¶ 35} The court of appeals thus erred in relying on this basis to grant
the writ.
                                Improper Standard
        {¶ 36} Nor did the labor-relations specialist apply an improper standard
to excuse the union’s actions. As noted previously, the union did not fail to take
any basic and required step under the collective-bargaining agreement in its
processing of Hall’s grievance.     The labor-relations specialist did not err in
determining that the union’s delay in following up on receipt of the county’s step
3 grievance response was due to an honest mistake rather than egregious conduct.
                  Denial of Equal Opportunity to Present Evidence
        {¶ 37} As Hall appears to admit on appeal, the court of appeals should
not have relied on the affidavits attached to her summary-judgment motion, which
were not before SERB, to determine the merits of her mandamus claim. “It is
axiomatic that SERB could not abuse its discretion based on evidence that was
not properly before the board when it made its decision. Consequently, the
review of a SERB decision is generally limited to the facts as they existed at the
time SERB made its decision.” Portage Lakes Edn. Assn., 95 Ohio St.3d 533,
2002-Ohio-2839, 769 N.E.2d 853, ¶ 55; Hamilton Cty. Bd. of Commrs., 102 Ohio
St.3d 344, 2004-Ohio-3122, 810 N.E.2d 949, ¶ 21.
        {¶ 38} Moreover, the labor-relations specialist had instructed Hall to
provide “all documentation” supporting her charge.
        {¶ 39} Therefore, the court of appeals erred in relying on this ground to
grant the writ.
                                    Conclusion
        {¶ 40} Therefore, the court of appeals erred in relying on its specified
reasons to grant the requested extraordinary relief in mandamus. Hall failed to
establish that SERB acted unreasonably, arbitrarily, or unconscionably in
dismissing her unfair-labor-practice charge. For Hall’s claims that the union




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failed to fairly represent her because it did not grieve her suspension, did not
provide her with a copy of the grievance concerning her removal from county
employment, and delayed processing of her grievance to step 3, the evidence
before SERB was conflicting, and the court of appeals could not substitute its
judgment for that of SERB. Portage Lakes Edn. Assn., 95 Ohio St.3d 533, 2002-
Ohio-2839, 769 N.E.2d 853, ¶ 41. Based on these reasons, the court of appeals
erred in holding that SERB abused its discretion and granting the writ. We
reverse the judgment of the court of appeals and deny the writ.
                                                                  Judgment reversed
                                                                    and writ denied.
       MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
       PFEIFER, J., concurs in judgment only.
                              __________________
       Gerald R. Walton & Associates, Gerald R. Walton, and John J. Schneider,
for appellee.
       Richard Cordray, Attorney General, Benjamin J. Mizer, Solicitor General,
Kimberly A. Olson, Deputy Solicitor, and Anne Light Hoke, Assistant Attorney
General, for appellant.
       R. Sean Grayson, General Counsel, and Kimm A. Massengill-Bernadin,
urging reversal for amicus curiae Ohio Council 8, AFSCME, AFL-CIO.
       Linda K. Fiely, General Counsel, urging reversal for amicus curiae Ohio
Education Association.
                           ______________________




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