[Cite as State ex rel. Howard v. State Emp. Relations Bd., 2016-Ohio-4765.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Roger Howard, : 

 

 Relator, : 

 

v. : No. 15AP-220 

 

[State Employee Relations Board] et al., : (REGULAR CALENDAR) 

 Respondents. : 

 

D E C I S I O N 

Rendered on June 30, 2016 

 

On brief: Daniel H. Klos, for relator. 

On brief: Michael DeWine, Attorney General, Lisa M. 

Critser and Jonathan R. Khouri, for respondent State 

Employment Relations Board. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

KLATT, J. 

{¶ 1} Relator, Roger Howard, commenced this action in mandamus seeking an 

order compelling respondent, State Employment Relations Board ("SERB"), to find that 

the Franklin County Sheriff's Office ("FCSO") violated R.C. 4117.11(A)(8) when it 

interpreted the collective bargaining agreement ("CBA") to prohibit relator from applying 

for a particular position. Relator also sought an order compelling SERB to find that 

relator's collective bargaining unit, Fraternal Order of Police, C-Lodge No. 9 ("FOP"), 

violated R.C. 4117.11(B)(6) for not advancing relator's grievance to arbitration. 

{¶ 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 issued a decision, including findings 
No. 15AP-220 2 

of fact and conclusions of law, which is appended hereto. The magistrate found that 

SERB did not abuse its discretion when it dismissed the unfair labor practice ("ULP") 

charges for lack of probable cause because the FCSO and FOP ultimately agreed that 

section 9.5 of the CBA barred relator from applying for the sergeant position at issue. 

Therefore, the magistrate has recommended that we deny relator's request for a writ of 

mandamus. 

{¶ 3} Relator has filed objections to both the magistrate's findings of fact and 

conclusions of law. 

Objections to the Magistrate's Findings of Fact

{¶ 4} Relator has objected to 14 of the magistrate's findings of fact. These factual 

objections consist of approximately 18 pages of arguments that focus solely on the 

relevance of the factual findings and/or the interpretation and application of these 

findings to the issue of law presented. It is impossible to discern from relator's arguments 

what part of the factual findings, if any, are inaccurate or why they are not supported by 

the record. We conclude from our review of the record that the findings of fact challenged 

by relator are supported by the record. For these reasons, we overrule all of relator's 

objections to the magistrate's findings of fact. 

Objections to the Magistrate's Conclusions of Law

{¶ 5} The essence of relator's objections to the magistrate's conclusions of law 

appear to be that the magistrate allegedly erred in finding no abuse of discretion by SERB 

because, according to relator, SERB should have found probable cause for an ULP based 

on the plain language of the CBA. We disagree. 

{¶ 6} Relator concedes that the issuance of a finding of probable cause by SERB is 

discretionary. Contrary to relator's assertion, the CBA does not expressly address the 

factual scenario presented by relator's grievance. Therefore, the CBA had to be 

interpreted to resolve the issues raised by relator's grievance. Given that the record 

reflects evidence that the FOP and the FCSO concluded that relator's grievance was 

unsupportable based upon their independent interpretations of the CBA, we agree with 

the magistrate that SERB did not abuse its discretion in finding the absence of probable 

cause for an ULP. Therefore, we agree with the magistrate that relator has not 
No. 15AP-220 3 

demonstrated that SERB abused its discretion and we overrule relator's objections to the 

magistrate's conclusions of law. 

{¶ 7} Following an independent review of this matter, we find that the magistrate 

has properly determined the facts and applied the appropriate law. Therefore, we adopt 

the magistrate's decision as our own, including the findings of fact and conclusions of law 

contained therein. In accordance with the magistrate's decision, we deny relator's request 

for a writ of mandamus. 

Objections overruled; writ of mandamus denied.

TYACK and BROWN, JJ., concur. 

 

 
No. 15AP-220 4 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Roger Howard, : 

 

 Relator, : 

 

v. : No. 15AP-220 

 

[State Employee Relations Board], et al., : (REGULAR CALENDAR) 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on January 29, 2016

 

Daniel H. Klos, for relator. 

Michael DeWine, Attorney General, Lisa M. Critser and 

Jonathan R. Khouri, for respondent State Employment 

Relations Board. 

Ron O'B rien, Prosecuting Attorney, and Scott J. Gaugler, for 

respondent Franklin County Sheriff Zach Scott. 

 

IN MANDAMUS 

{¶ 8} Relator, Roger Howard, has filed this original action requesting that this 

court issue a writ of mandamus ordering respondent, State Employment Relations Board 

("SERB") to find that the Franklin County Sheriff's Office ("FCSO") violated R.C. 

4117.11(A)(8) when interpreting the collective bargaining agreement ("CBA") in a manner 

which prohibited relator from applying for a job, and finding that his collective bargaining 

unit, Fraternal Order of Police, C-Lodge No. 9 ("FOP"), violated R.C. 4117.11(B)(6) when 

FOP did not advance relator's grievance to arbitration. 
No. 15AP-220 5 

Findings of Fact: 

{¶ 9} 1. Relator is employed by the FCSO and the FOP is the board-certified 

representative for full-time, sworn, uniform deputies employed by FCSO. 

{¶ 10} 2. FOP and FCSO are parties to a CBA effective January 1, 2013 through 

December 31, 2015, which includes a binding grievance-arbitration process. 

{¶ 11} 3. In February 2014, relator was working as a sergeant assigned to the 

corrections division. 

{¶ 12} 4. On February 11, 2014, relator bid upon a position as a corporal in the 

Patrol Division. In order to take this job, relator was willing to be demoted to the rank of 

corporal because he desired a position in the Patrol Division. 

{¶ 13} 5. Section 9.5(E) of the CBA provides: 

Any member who is not in the same rank as identified in the 

notice of the posted vacancy shall not be selected to fill the 

vacancy, except that a member in a higher rank than the 

posted vacancy shall be eligible to be selected for the posted 

vacancy if he agrees to a demotion to the rank of the posted 

vacancy, if selected. 

{¶ 14} 6. In a letter dated February 11, 2014 from Chief Michael Flynn of the 

FCSO, relator was notified that he had been selected to fill the corporal vacancy for which 

he applied. That letter provides: 

You have been selected for the 2 Corporals-Patrol-1st shift 

via the job posting. However, your transfer is being delayed. 

Your transfer will be no later than April 6, 2014. 

Your voluntary demotion to Corporal will occur when your 

transfer takes effect. Until that time you will remain in the 

rank of Sergeant. 

{¶ 15} 7. On February 20, 2014, the FCSO and the FOP entered into a 

Memorandum of Understanding ("MOU") because FCSO had sergeant positions that 

remained vacant and needed to be filled. The MOU provides, in pertinent part: 

[One] Members who have between one year and two years 

seniority in the rank of Corporal shall be permitted to 

participate in the promotional examination for Sergeant, 

which is being conducted in March 2014. This group of 

members shall be placed on a separate eligibility list that 

may be utilized only upon exhaustion of the list of members 
No. 15AP-220 6 

with two or more years seniority in the rank of Corporal that 

is established in accordance with Article 10. Members shall 

be selected for promotion from this second eligibility list in 

accordance with the terms of Article 10. 

[Two] In the event that the promotional lists established 

under paragraph 1 are both exhausted, and the Sheriff wishes 

to provisionally promote additional Sergeants in accordance 

with Section 10.3(C), the Sheriff may do so prior to 

January 1, 2015 by selecting from all Corporals who have 

more than one year seniority in the rank of Corporal. 

[Three] No other provisions of Article 10 are affected by this 

memorandum of Understanding. 

[Four] This Memorandum of Understanding shall not serve 

as precedent with respect to future promotions or the filling 

of any future vacancies not expressly addressed herein. 

{¶ 16} 8. In a letter dated March 10, 2014, Chief Michael Flynn informed relator 

that his transfer to corporal in the patrol division would be effective Monday, March 24, 

2014. 

{¶ 17} 9. On March 12, 2014, while awaiting his transfer, relator applied for a 

sergeant position in the patrol division. Relator did not get the sergeant position. 

{¶ 18} 10. In a letter dated March 17, 2014, relator was informed by Chief Flynn 

that his transfer to corporal in the patrol division was effective March 21, 2014. 

{¶ 19} 11. On March 18, 2014, relator filed a grievance which was assigned 

grievance number 14-09. Relator explained his grievance as follows: 

On March 12th, 2014 The Grievant became aware that he 

had been passed over for a job posting to 2nd Shift Patrol 

Sgt. The Grievant believes this to be in violation of the 

collective bargaining agreement between The Franklin 

County Sheriffs Office and The Fraternal Order of Police, 

Capital City Lodge #9. 

{¶ 20} 12. Chief Deputy Geoff Stobart held a Step 2 grievance meeting on 

March 19, 2014. Chief Stobart concluded that relator's grievance should be denied based 

on the following findings: 

Sgt. Roger Howard believed he was entitled to the position 

and claims Sgt. Downing was not entitled to the position. 
No. 15AP-220 7 

Sgt. Howard had accepted a reduction in rank to post to a 

vacant Corporal's Position. Howard was awarded this 

position and was being held in his previous position pending 

the promotions of the next round of Sergeants. 

A MOU was drafted and signed by both the FOP and 

Management. This MOU allowed the Office to promote 

Corporals who had more than one year of seniority. This is 

exactly what the Office did. 

The Office worked with the FOP and agreed to offer 

promotions working off the established list of all those who 

had signed up to take the promotional exam. Those eligible 

were placed on a list in order of seniority, and offered 

promotions. 

Every single person on the list was offered a Sergeant's 

position. Downing was the last eligible person on [the] list 

established in accordance with the MOU. He was offered and 

accepted. 

It should be further noted that even after promoting or 

offering every person on this list promotions, the Office is 

still short Sergeants. 

The Office clearly worked with the FOP to establish this 

MOU. The FOP was involved in all discussions about how we 

intended to manage this process up to and including showing 

them the list we intended work from. 

The office strongly feels the process used was consistent with 

the spirit of the MOU, we clearly worked with the FOP 

during the course of this process, and the solution agreed on 

was the right and fair thing to do for both the FOP and the 

Office. 

Sgt. Downing was promoted consistent with the clearly 

established agreement, and is therefore entitled to the 

vacancy is [sic] question. 

{¶ 21} 13. A Step 3 grievance meeting with Chief Deputy Jim Gilbert occurred on 

March 26, 2014. Chief Deputy Gilbert also recommended that the grievance be denied, 

stating: 

There are currently openings in the rank of Sergeant within 

the Sheriff's Office. 
No. 15AP-220 8 

I reviewed the information provided by the FOP as well as 

asked the grievant questions regarding this matter. The 

grievant was asked "So you took the Sergeant's test two 

weeks ago and what is your intention from here regarding a 

promotion to that rank?" The grievant stated he "probably" 

wouldn't take a promotion to Sergeant if offered by the 

Sheriff's Office. He further stated that he thought taking the 

self-demotion was best for his career because the Patrol 

Bureau is where he has always wanted to work. 

In reviewing the MOU, reviewing previous documents 

regarding promotional matters and hearing from the 

grievant[,] I believe that the process was consistent with the 

MOU. The FOP along with management worked together 

during this process. The grievant appears to be upset with 

the "stars not aligning" as he would have liked. He knew in 

taking a self-demotion that at some point other Sergeant 

positions within the Office would be coming open however, 

he chose to take a Corporal assignment under no pressure 

from the FOP or the Sheriff's Office. In fact to further point 

out his "intentions" for future promotional opportunities he 

stated he "probably" wouldn't take a promotion to the rank 

of Sergeant that is going to be offered to him within the next 

several weeks. 

{¶ 22} 14. In a letter dated March 28, 2014 and addressed to relator, Sheriff Zach 

Scott informed him that he agreed with Deputy Chief Gilbert's Step 3 response and, as 

such, relator's grievance was denied. 

{¶ 23} 15. In a letter dated April 10, 2014, Jason Pappas, as president of the FOP, 

notified Sheriff Scott of FOP's intent to proceed to arbitration on relator's grievance, 

stating: 

Pursuant to our current collective bargaining agreement the 

lodge is notifying you of our intent to proceed to arbitration 

on the attached grievance #14-9. 

I will initiate the notification to the Federal Mediation and 

Conciliation Service of our need for a panel of arbitrators. 

{¶ 24} 16. By way of e-mails contained in the stipulation of evidence, it is apparent 

that both FOP and FCSO thoroughly reviewed relator's grievance. For example, in 
No. 15AP-220 9 

response to an e-mail from relator's counsel dated April 16, 2014, an attorney for the FOP 

responded: 

Thank you for the letter. I have discussed this case with my 

client again this morning; and, utilizing the information 

contained in your letter, the Lodge will continue to conduct 

its review of this grievance. This review already has been 

extensive and has included a review of job bids by selfdemoted members over a period of approximately 20 years. 

As of this date, the Lodge has not found any other situation 

in which a self-demoted member was permitted to bid upon 

and receive an assignment in his previous (higher) rank 

while "on hold." If Roger has any contrary examples of that 

circumstance, please share them with me as soon as possible. 

As of this point in time, the Lodge believes that, for purposes 

of job bids under Article 9, a member who has accepted a bid 

assignment in a lower rank is no longer eligible to bid upon 

an assignment in their previous (higher) rank - regardless of 

whether they were placed on a temporary "hold" in the 

higher rank. This position is based upon the Lodge's 

understanding of the parties' intent with respect to Section 

9.5E. of the collective bargaining agreement. However, the 

Lodge will consider the information provided in your letter, 

it will accept any additional information that you or your 

client wish to offer, and it will conduct additional research 

regarding prior cases. 

I understand that Roger has had extensive discussions 

regarding his grievance with Lodge representatives, and your 

letter provides additional significant detail regarding Roger's 

position with respect to that grievance. Since he has retained 

you as his counsel, we will not be conducting a conference 

call with Roger today. However, I will convey to you the 

Lodge's final position on Roger's grievance -- i.e., whether it 

will arbitrate that grievance -- on or before April 30, 2014. 

Also, as noted above, please feel free to share any additional 

information that you or Roger wish the Lodge to consider; 

and, if you believe that a conversation between you and me 

would be helpful, fee free to suggest a time, and we can 

schedule a telephone call. 

(Emphasis sic.) 

{¶ 25} 17. A second e-mail from relator's counsel that same day provides: 
No. 15AP-220 10 

This is to follow up on our conversation regarding the 

parties' interpretation of Section 9.5E. of the FOP collective 

bargaining agreement. In particular, I understand that the 

FCSO and the FOP have the same interpretation of Section 

9.5E. In particular, that section of the contract permits a 

member to "self-demote" to a lower rank by bidding on a 

posted vacancy in a lower rank and being selected for that 

assignment. Once the member has been selected for the 

assignment in the lower rank (i.e., is notified of and does not 

reject the lower rank assignment), the member is thereafter 

precluded from receiving an assignment in a higher rank 

through the Article 9 bid process (unless he is subsequently 

re-promoted to the higher rank). 

It also is my understanding that the FCSO believes that the 

"hold" placed upon Roger Howard, which temporarily 

delayed his transfer to his new Corporal assignment 

following his self-demotion, did not restore him to the rank 

of Sergeant for the purpose of additional job bids under 

Article 9 of the contract. If my understanding of the FCSO's 

position is accurate, the FOP does not dispute that position 

and would not interpret the contract differently. 

Please let me know if the foregoing accurately reflects the 

position of the FCSO and its interpretation of both Section 

9.5E. and the effect of the temporary hold that was placed on 

Cpl. Howard's transfer to his new assignment. 

{¶ 26} 18. Thereafter, in an e-mail dated April 30, 2014, relator's counsel withdrew 

the request for arbitration, stating: 

This is to notify you, as Roger Howard's attorney, that the 

FOP (Capital City Lodge No. 9) will not arbitrate Corporal 

Howard's grievance, #14-09, and it will notify the Sheriff's 

Office that the request for arbitrations being withdrawn. 

This decision is based upon the rationale set forth in my 

email of April 17, appended below. Both prior and 

subsequent to my email, the Lodge was unable to find any 

instances where a member agreed to "self demote" by 

accepting a bid to a lower ranked assignment, but as then 

permitted to receive a bid to an assignment in his/her 

previous (higher) rank - regardless of whether that member 

had been placed on a temporary "hold" in his/her former 

rank. The Lodge also has not received any examples of that 

situation from Roger. 
No. 15AP-220 11 

More importantly, the Lodge was able to confirm that its 

understanding of the intent of Section 9.5 E. of the collective 

bargaining agreement (as discussed in my previous email) is 

shared by the Sheriff's Office. As such, insofar as both parties 

to the contract share the same understanding regarding the 

meaning of that Section as it applies to Corporal Howard's 

situation, there would be no basis to challenge the denial of 

Roger's grievance (and no ability to win an arbitration). 

{¶ 27} 19. In June 2014, relator was removed from his position as a corporal in the 

patrol division and was reassigned to the corrections division after receiving negative 

performance evaluations. 

{¶ 28} 20. On June 10, 2014, relator filed an unfair labor practice ("ULP") charge 

against FCSO alleging a violation of R.C. 4117.11(A)(8) (Case No. 2014-ULP-06-0085). In 

his statement of facts, relator stated: 

On March 12, 2014, I was denied a Sergeant position that I 

posted for and was the most qualified for pursuant to the 

Collective Bargaining Agreement ("CBA"). The position was 

given to someone who should not have even been considered 

for the position due to the fact that a qualified person 

(myself) posted (pursuant to an existing Memorandum of 

Understanding dated February __, 2014). The Union was 

induced by the employer to take the position that the "spirit" 

of the MOU had not been violated, even though the letter of 

the MOU clearly was violated. The Union and the employer 

have, in the past, allowed posting for positions while other 

transfers were "on hold," as was the case with me, pursuant 

to § 9.2 of the CBA, which states that a transfer does not take 

effect until the employee actually assumes their new duties. I 

filed a timely grievance on the issue. On April 30, 2014, the 

Union informed me that it was withdrawing my grievance 

over my objections because it was "in agreement" with the 

employer. 

{¶ 29} 21. Relator points to Section 9.2 of the CBA, which provides: 

Section 9.2 Transfer and Vacancy Defined. 

A transfer is any change in a member's regular assignment, 

except days off. A vacancy is defined as a newly created 

position to be filled, an opening which results from a 

transfer, except a temporary transfer; or a position to be 

filled resulting from termination, resignations, demotions 

and/or promotions. 
No. 15AP-220 12 

{¶ 30} 22. That same day, relator filed an unfair labor practice ("ULP") charge 

against FOP alleging a violation of R.C. 4117.11(B)(6) (Case No. 2014-ULP-0086). Relator 

stated: 

On March 12, 2014, I was denied a Sergeant position that I 

posted for and was the most qualified for pursuant to the 

Collective Bargaining Agreement ("CBA"). The position was 

given to someone who should not have even been considered 

for the position due to the fact that a qualified person 

(myself) posted (pursuant to an existing Memorandum of 

Understanding dated February __, 2014). The Union was 

induced by the employer to take the position that the "spirit" 

of the MOU had not been violated, even though the letter of 

the MOU clearly was violated. The Union and the employer 

have, in the past, allowed posting for positions while other 

transfers were "on hold," as was the case with me, pursuant 

to § 9.2 of the CBA, which states that a transfer does not take 

effect until the employee actually assumes their new duties. I 

filed a timely grievance on the issue. On April 30, 2014, the 

Union informed me that it was withdrawing my grievance 

over my objections because it was "in agreement" with the 

employer. 

{¶ 31} 23. On June 16, 2014, Holly M. Levine, a labor relationship specialist with 

SERB, addressed letters to counsel requesting responses to certain questions and inviting 

the parties to consider mediation as a preliminary step to resolving the dispute before an 

initial finding regarding the ULP charges. 

{¶ 32} 24. Relator, FCSO, and FOP submitted information relating to SERB's 

request. 

{¶ 33} 25. Holly Levine issued separate investigator's memoranda, dated July 28, 

2014, concerning relator's ULP charges against the FCSO as well as against FOP to SERB. 

In her Findings Upon Examination related to the ULP charge against FCSO, Levine set 

forth the position of both relator and FCSO, stating: 

Charging Party asserts while his transfer was on a temporary 

hold, on March 12, 2014, he submitted a bid on a newly 

posted vacant Sergeant position in the Patrol Division. 

Charging Party asserts he was wrongfully denied the 

position. 
No. 15AP-220 13 

On March 18, 2014, Charging Party filed a grievance alleging 

he was passed over for the job vacancy of Sergeant. The 

grievance was denied. 

The County explained that despite Charging Party's 

interpretation of the contract, it is their belief that self 

demotion clause in Article 9.5(E) of the contract makes the 

demotion effective immediately upon selection acceptance of 

the position in a lower rank. Even though Charging Party 

was still in his previous assignment as a Sergeant, with his 

transfer on hold, he was in effect Acting Sergeant, in that he 

was performing Sergeant's duties and pay, but his rank had 

been converted to Corporal when he was selected to fill and 

accepted the Patrol Corporal's assignment. 

{¶ 34} Levine also set forth relator's ULP charge against the FOP as well as the 

FOP's response, stating: 

On March 18, 2014, Charging Party filed a grievance alleging 

he was passed over for the job vacancy of Sergeant. The 

grievance was denied. 

Charging Party asserts FOP failed to fairly represent him 

when it refused to take his grievance to arbitration. 

FOP maintains that it spent a considerable amount of time 

discussing Charging Party's grievance with him. FOP 

contends that it was unable to find any evidence that the 

contract had previously been interpreted in the way that 

Charging Party would like it to be interpreted. Specifically, 

FOP explained that Charging Party utilized a contractual 

provision to voluntarily self-demote in order to bid upon and 

receive an assignment in a lower rank. After the demotion 

became effective, he attempted to "un do" the demotion by 

bidding upon another vacant assignment in his previous 

rank. The contract does not permit him to re-promote 

himself in that fashion. 

{¶ 35} 26. Levine recommended that SERB dismiss the charges with prejudice 

against both FCSO and FOP for lack of probable cause to believe that either party 

committed a ULP. With regard to FCSO, Levin explained: 

Charging Party alleges the County violated Ohio Revised 

Code § 4117.11(A)(8) by causing or attempting to cause the 

Union to violate its duty of fair representation. Specifically, 

Charging Party contends that the County's interpretation of 
No. 15AP-220 14 

the contract led the Union to unfairly represent him by 

refusing to take his grievance to arbitration. 

Contrary to the allegations raised by Charging Party, the 

County's actions involve contractual interpretation and do 

not rise to the level of a statutory violation. Charging Party 

did not provide sufficient information to support the (A)(8) 

allegation. 

{¶ 36} 27. With regard to FOP, Levine explained: 

In the case of In re OCSEA/AFSCME Local 11, SERB 98-010 

(7-22-98), SERB modified In re AFSCME, Local 2312, SERB 

89-029 (10-16-89) holding that arbitrariness, discrimination 

and bad faith are distinct components of the same duty and 

should be reviewed on an equal basis. The definition of 

"arbitrary" conduct was modified to include a failure to take 

a basic and required step without justification or viable 

excuse. SERB also held that a union's failure to state the 

reasons behind its actions, which was not previously called 

for may result in an unrebutted presumption of 

arbitrariness. In re Ohio Civil Service Employees 

Assn/AFSCME, Local 11, SERB 93-019 (12-20-93), aff'd In 

re Wheeland v. SERB, 1994 SERB 4-86 (CP, Franklin, 9-2-

94), aff'd In re Wheeland, 1995 SERB 4-19 (10th Dist. Ct. 

App, Franklin, 6-6-95). 

When an unfair labor practice charge is filed because a union 

has allegedly violated its duty of fair representation, SERB 

will look to see if the union's actions are arbitrary, 

discriminatory, or in bad faith. If SERB finds any of these 

components, there is a breach of the duty. The Complainant 

has the burden of proving that the union did not fairly 

represent its bargaining-unit members. As to the component 

of arbitrariness, when the Complainant meets its burden of 

proof, a breach of the duty of fair representation will be 

found if the union cannot rebut the findings by providing 

justification or viable excuse for its conduct; if the 

justification or excuse constitutes simple negligence, we will 

find independent that the conduct is not arbitrary. 

The investigation reveals that FOP's actions were not 

arbitrary, discriminatory or in bad faith. In fact, the FOP put 

forth a concerted effort to explain the contractual provision, 

in question, to Charging Party and the reasons for denying 

the grievance. 
No. 15AP-220 15 

(Emphasis sic.) 

{¶ 37} 28. On August 15, 2014, SERB dismissed relator's ULP charge against the 

FCSO, stating: 

Pursuant to Ohio Revised Code § 4117.12, the State 

Employment Relations Board conducted an investigation of 

this charge. The investigation revealed no probable cause 

existed to believe Charged Parties violated Ohio Revised 

Code § 4117.11. Information gathered during the 

investigation revealed that contrary to the allegations raised 

by the Charging Party, the Charged Parties' actions involve 

contractual interpretation and do not rise to the level of a 

statutory violation. Charging Party did not provide sufficient 

information to support the (A)(8) allegation. Accordingly, 

the charge is dismissed with prejudice for lack of probable 

cause to believe the statute has been violated. 

{¶ 38} 29. On August 15, 2014, SERB also dismissed relator's ULP charge against 

the FOP, stating: 

Pursuant to Ohio Revised Code § 4117.12, the State 

Employment Relations Board conducted an investigation of 

this charge. The investigation revealed no probable cause 

existed to believe Charged Parties violated Ohio Revised 

Code § 4117.11. Information gathered during the 

investigation revealed that contrary to the allegations raised 

by the Charging Party, the Charged Parties' actions were not 

arbitrary, discriminatory or in bad faith. In fact, Charged 

Party put forth a concerted effort to explain the contractual 

provision in question to the Charging Party and the reasons 

for denying the grievance. Accordingly, the charge is 

dismissed with prejudice for lack of probable cause to believe 

the statute has been violated. 

{¶ 39} 30. Thereafter, relator filed this mandamus action asking this court to 

compel SERB to find probable cause to believe his ULPs have been committed, issue 

complaints, and conduct hearings on the ULP charges against both FCSO and FOP. 

Conclusions of Law: 

{¶ 40} Relator asserts that SERB erred in dismissing his ULP charges and that he 

is entitled to a writ of mandamus to compel SERB to issue complaints and conduct 

hearings on his charges. Before addressing relator's assertion, we must determine the 
No. 15AP-220 16 

appropriate standards for reviewing SERB's decisions finding no probable cause that ULP 

charges have occurred. 

{¶ 41} R.C. 4117.12(B) requires SERB to issue a complaint and conduct a hearing 

on a ULP charge if it has probable cause for believing that a violation has occurred: 

When anyone files a charge with the board alleging that an 

unfair labor practice has been committed, the board or its 

designated agent shall investigate the charge. If the board 

has probable cause for believing that a violation has 

occurred, the board shall issue a complaint and shall 

conduct a hearing concerning the charge. 

(Emphasis added.) 

{¶ 42} Probable cause determinations by SERB under R.C. 4117.12(B) are not 

reviewable by direct appeal. Ohio Assoc. of Public Emps., Chapter 643 v. Dayton City 

School Dist. Bd. of Edn., 59 Ohio St.3d 159 (1991). Instead, in the absence of an adequate 

remedy in the ordinary course of law, an action in mandamus is the appropriate remedy 

to obtain judicial review of orders by SERB dismissing ULP charges for lack of probable 

cause. State ex rel. Service Emps. Internatl. Union, Dist. 925 v. State Emp. Relations Bd., 

81 Ohio St.3d 173 (1998), syllabus. A writ of mandamus will issue to correct an abuse of 

discretion by SERB in dismissing ULP charges. State ex rel. Leigh v. State Emp. 

Relations Bd., 76 Ohio St.3d 143 (1996). An abuse of discretion means an unreasonable, 

arbitrary, or unconscionable decision. State ex rel. Elsass v. Shelby Cty. Bd. of 

Commissioners, 92 Ohio St.3d 529, a court addressing a petition for mandamus will not 

substitute its judgment for that of SERB if there is conflicting evidence on the contested 

issue. State ex rel. Portage Lakes Edn. Assn. v. State Emp. Relations Bd., 95 Ohio St.3d 

533 (2002). 

{¶ 43} Chapter R.C. 4117 does not define the term "probable cause." That term has 

been defined by the Supreme Court of Ohio in Portage Lakes: 

The Ohio State Employment Relations Board 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. 

Id. at 541. 
No. 15AP-220 17 

{¶ 44} In Portage Lakes, the Supreme Court of Ohio analogized the role of SERB 

in determining whether there was probable cause to that of a public prosecutor 

investigating a complaint of criminal activity. In both cases, "the decision not to 

prosecute is discretionary, and not generally subject to judicial review." Ohio Assoc. of 

Public Emps. "The issue of probable cause in criminal proceedings is essentially one of 

fact." See, e.g., State v. Tibbetts, 92 Ohio St.3d 146, 153 (2001). 

{¶ 45} In his ULP charges, relator alleged that FCSO violated R.C. 4117.11(A)(8) 

and FOP violated R.C. 4117.11(B)(6). The substance of his ULPs stems from his assertion 

that he should have been given the sergeant position for which he applied after he had 

applied for and was given the corporal position. Relator argues that FCSO and FOP 

together took the exact opposite position with regards to applications than they had in the 

past and discussed the factual scenarios involving two other employees. Respondents 

asserted that the factual situations were not similar. Ultimately, SERB determined that 

relator had failed to present sufficient information to support his allegations and 

dismissed his complaints. 

{¶ 46} Relator argued that FCSO violated R.C. 4117.11(A)(8)(B), which provides: 

It is an unfair labor practice for a public employer, its agents, 

or representatives to: 

* * * 

Cause or attempt to cause an employee organization, its 

agents, or representatives to violate division (B) of this 

section. 

 Relator also alleged that FOP violated R.C. 4117.11(B)(6), which provides: 

It is an unfair labor practice for an employee organization, its 

agents, or representatives, permanent total disability public 

employees to: 

* * * 

Fail to fairly represent all public employees in a bargaining 

unit. 

{¶ 47} The essence of relator's argument is that his employer (FCSO) and his union 

(FOP) conspired together to justify his not being given the sergeant's position to which he 
No. 15AP-220 18 

believed he was rightfully entitled. In order to prove a violation under R.C. 4117.11(B)(6), 

relator must establish that FOP's conduct was arbitrary, discriminatory, or in bad faith 

{¶ 48} In State ex rel. Hall v. State Emp. Relations Bd., 122 Ohio St.3d 528 (2009), 

the Supreme Court of Ohio explained SERB's standard for determining whether a union 

has violated its duty of fair representation: 

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, it 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 

 * * * 

The initial burden is on a charging party and a 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. 

Id. at 533-34. 

{¶ 49} In the investigator's memoranda to the board, the investigator concluded 

that relator's issue involved how FCSO and FOP interpreted the contractual provisions at 

issue. SERB determined that relator did not meet his burden of proving his allegations 

against either FCSO or FOP. 

{¶ 50} In arguing to the contrary, relator continues to assert that he presented 

evidence that two employees similarly situated to him were treated in the manner he 

believes he should have been treated. However, FOP explained that the situations of both 

employees to whom relator directed FOP's attention were not similarly situated because 

section 9.5 of the CBA was not involved. Neither of those two employees had selfdemoted by bidding on and accepting an assignment to a lower rank. 

{¶ 51} The reality is, after considering the issue, both FCSO and FOP concluded 

that relator's situation was essentially one of first impression and further that they agreed 
No. 15AP-220 19 

with the manner in which FCSO had interpreted the CBA. This does not constitute bad 

faith or discriminatory intent. Further, relator's grievances were heard and denied. FOP 

represented relator through his Step 3 grievance and beyond. It cannot be said that the 

FOP failed to take steps to represent relator's interest. The fact that FOP and FCSO 

ultimately agreed on the manner in which the CBA was interpreted is not evidence of bad 

faith. Based upon the facts as developed and explained in the investigator's 

memorandum, the fact that the FCSO and FOP ultimately agreed on the interpretation of 

the CBA provided a rational basis for the FOP to refrain from pursuing arbitration. 

{¶ 52} The scenario presented by relator contrasts with the scenario presented by 

both FCSO and FOP. As such, there was conflicting evidence before SERB. Following the 

Supreme Court of Ohio's admonitions in Hall and Portage Lakes, this court should not 

substitute its judgment for that of the administrative board and, finding that SERB could 

have reasonably concluded that there was no probable cause to believe that either FCSO 

or FOP violated the provisions of R.C. 4117.11(A)(8), and (B)(6), relator has not 

demonstrated that he is entitled to a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

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).