[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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3 

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-laborpractice 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 unfairlabor-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 fairrepresentation 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. 
January Term, 2009 

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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. 

______________________