Opinion
No. 90-1685
Submitted October 9, 1991 —
Decided February 19, 1992.
APPEAL from the Court of Appeals for Warren County, No. CA89-02-013.
On July 25, 1977, William Sulfsted commenced employment as a road deputy with appellee, the Warren County Sheriff. Sulfsted left the employ of appellee on May 8, 1979 to pursue employment with the Clermont County Sheriff but resumed his duties with appellee on October 30, 1979. In late 1983 or early 1984, informational meetings were conducted with the deputy sheriffs regarding the implications of the Ohio Public Employees' Collective Bargaining Act (R.C. Chapter 4117). During this period of his employment, Sulfsted enjoyed favorable annual performance evaluations and a work record free of disciplinary action.
On April 1, 1984, R.C. Chapter 4117 became law. Shortly thereafter organizational meetings were held to provide sheriff's deputies with the opportunity to consider various employee organizations as their bargaining agent. Present at these meetings were representatives from the American Federation of State, County and Municipal Employees ("AFSCME"), the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Teamsters") and the Fraternal Order of Police ("FOP"). At this time, Sulfsted was involved in organizational efforts undertaken by the Corrections, Law Enforcement and Safety Employees of Ohio, Teamsters Local 740 ("Teamsters Local 740"). While Warren County Sheriff Robert G. Dalton was resigned to the inevitable unionization of his deputies and their right to choose their own representatives, he opposed the selection of the Teamsters for this function. He personally preferred representation by the Ohio Brotherhood of Deputy Sheriffs. On May 2, 1984, Teamsters Local 740 petitioned appellant, State Employment Relations Board ("SERB") for certification as the bargaining representative for the Warren County Sheriff's employees, including deputy sheriffs.
On May 8, 1984, Sulfsted attempted to cast his vote in a primary election. As a result of a recent change of residence, he was not registered to vote at his new polling location. Upon becoming informed of this fact by election officials and after consulting with his attorney, Sulfsted voted at his prior polling location.
Sulfsted later met with Sheriff Dalton and Chief Deputy James Collins regarding a previous traffic accident. At that time, Sulfsted was apprised of an investigation by the Warren County Board of Elections concluding that he had voted illegally. Sheriff Dalton remarked during his conversation that, if Sulfsted were convicted of voter fraud, he would be spending time in jail with people he (Sulfsted) had previously incarcerated. At the conclusion of the conversation, Dalton stated to Sulfsted that he (Dalton) remained opposed to the Teamsters and that it would be in the best interest of Sulfsted to disassociate himself from the Teamsters while the election investigation was proceeding.
On July 15, 1984, Sulfsted began his vacation. During this period, he was contacted by another deputy regarding a work-related matter. The consultation involved two telephone conversations. Upon his return to work, Sulfsted submitted a request for two hours of overtime as compensation for the time used by him in assisting the other deputy while on vacation.
On July 24, 1984, Sulfsted was assigned to patrol duty as acting watch commander. At this time, he had a discussion with Chief Deputy Collins wherein Sulfsted requested the assignment of Deputy Steven Clark to his cruiser. Collins rejected the idea but never ordered Sulfsted to assign Clark to another vehicle. When the other deputy had not reported at the time of Sulfsted's departure on patrol, Clark rode with Sulfsted, instead. Later that day, Sulfsted allowed Clark to go home because of illness.
On July 27, 1984, Sergeant Tim Wilson communicated to Sulfsted that Sheriff Dalton was opposed to the representation of deputies by the Teamsters and that if Sulfsted wished to avoid further confrontations with the sheriff he should disassociate himself from the Teamsters. Wilson further stated that failure of Sulfsted to do so would result in denial to him of back-up support when he was on patrol.
On August 2, 1984, a pre-disciplinary hearing was held before Chief Deputy Collins on the election charge. Following the hearing, Collins recommended a two-day suspension. Thereafter, Sulfsted was served with notice of another pre-disciplinary hearing scheduled for August 6, 1984 involving, inter alia, the assignment of Deputy Clark to the vehicle operated by Sulfsted on July 24, 1984, his subsequent permission to Clark to go home because of his illness without so advising the dispatcher, and the submission of the request for two hours' overtime for his assistance to another deputy during his vacation.
On August 3, 1983, Sheriff Dalton imposed a two-day suspension of Sulfsted based on the August 2, 1984 pre-disciplinary hearing. Sulfsted was thereafter suspended for August 4 and 5, 1984.
On August 7, 1984, a hearing on the latter charges was held before Sheriff Dalton. On August 8, 1984, Sheriff Dalton issued an order removing Sulfsted. This order was appealed to the State Personnel Board of Review.
On August 15, 1984, an unfair labor practice charge was filed against the Warren County Sheriff with SERB for violation of R.C. 4117.11(A)(1) and (3). The charges were based upon the actions taken by Dalton against Sulfsted which were alleged to have been motivated by Dalton's disdain for Sulfsted's union activities.
On October 18, 1984, the hearing on the appeal of Sulfsted's removal by appellee was scheduled to occur. Immediately prior to the scheduled hearing, appellee withdrew the removal order and reinstated Sulfsted.
On October 24, 1984, Sulfsted returned to work. On November 2, 1984, Sulfsted was on patrol in the northern portion of Warren County. Sulfsted testified that upon encountering a suspicious parked vehicle without license plates, he relayed by radio facts which would have been sufficient to elicit a backup response from other deputies. No backup assistance was provided. Instead, the watch commander responsible for providing such assistance informed the dispatcher shortly after the request by Sulfsted was made that he was leaving his post to obtain donuts at a shop in Springboro, Ohio.
On November 9, 1984, Sulfsted attended a meeting with Sergeant Wilson following an investigation of Sulfsted's alleged partisan political activity. The meeting was confrontational in nature.
After this meeting, Sulfsted experienced chest pains which required medical attention. Sulfsted subsequently was on medical leave until January 3, 1985. On January 4, 1985, Sulfsted received a reprimand for insubordination and a poor performance evaluation for his 1984 work year. On January 10, 1985, Sulfsted submitted a request to appellee for a three-month leave of absence. The request was denied by appellee on the same day.
On January 17, 1985, Sulfsted, citing the conditions under which he was working, resigned from the office of the Warren County Sheriff. Thereafter, he obtained employment with the Ohio Conference of Teamsters as a union representative. He continued in this employment until January 1986. On January 15, 1986, Sulfsted requested reinstatement to his former position. On January 21, 1986, appellee denied this request.
Following its investigation of the unfair labor practice charge, SERB, on October 9, 1986, found probable cause to support the charge and a complaint was issued on April 17, 1987. The complaint, in addition to referring to acts alleged in the charge, identified acts which occurred after the August 15, 1984 filing thereof which the subsequent investigation of SERB revealed also constituted unfair labor practices. These incidents included the December 21, 1984 performance evaluation of Sulfsted, his January 4, 1985 reprimand for insubordination, the January 10, 1985 denial of his three-month leave-of-absence request, his January 17, 1985 resignation (which SERB determined to be a constructive discharge) and the January 21, 1986 denial of his January 15, 1986 request for reinstatement. Following three days of hearings culminating September 30, 1987, the hearing officer issued his proposed order on January 26, 1988, concluding that appellee had violated R.C. 4117.11(A)(1) and (3) and recommending that Sulfsted be reinstated with back pay and benefits dating from January 18, 1985. This recommendation was adopted virtually in its entirety by SERB on September 28, 1988.
On October 6, 1988, this order was appealed to the Warren County Common Pleas Court. On January 13, 1989, the common pleas court affirmed the reinstatement but reduced the period of back pay to two years, concluding that two years of the unemployment experienced by Sulfsted was attributable to delay by Sulfsted and by the agency. Appellee filed an appeal to the Court of Appeals for Warren County challenging the affirmance of the reinstatement order. SERB filed a cross-appeal challenging the modification of the award of back pay.
On July 9, 1990, the appellate court reversed the judgment of the trial court, concluding that the entire order of SERB was invalid due to its consideration of incidents occurring after the filing of the unfair labor practice charge on August 15, 1984.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Lee I. Fisher, Attorney General, and Barbara A. Serve, for appellant.
Wood Lamping, Paul R. Berninger and Mark R. Fitch, for appellee.
The central question presented for our consideration concerns the precise method by which a proceeding to determine the existence of an unfair labor practice is commenced. The basis for the appellate court's reversal of the SERB order was a determination that, upon the filing of an unfair labor practice charge, the agency is precluded from considering conduct of the employer which occurs thereafter. This holding is unsupportable by the law. R.C. 4117.12 governs the initiation of an administrative investigation of an unfair labor practice. R.C. 4117.12(B) provides in relevant part:
"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. * * *" (Emphasis added.)
Consequently, what initiates the investigatory process is the filing of a charge "that an unfair labor practice has been committed[.]" The charge therefore involves the allegation of a violation of law, not the recitation of particular incidents which give rise to the violation. In the case at bar, appellee was charged with violations of R.C. 4117.11(A)(1) and (3), which provide:
"It is an unfair labor practice for a public employer, its agents, or representatives to:
"(1) Interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Chapter 4117. of the Revised Code or an employee organization in the selection of its representative for the purposes of collective bargaining or the adjustment of grievances;
"* * *
"(3) Discriminate in regard to hire or tenure of employment or any term or condition of employment on the basis of the exercise of rights guaranteed by Chapter 4117. of the Revised Code. * * *"
It was the contention of the charging party at the time the charge was filed that Sulfsted was being interfered with and discriminated against because of his union activities. In support of these allegations, the charge cited prior incidents of interference and discrimination which, it was contended, evidenced an anti-union animus on the part of appellee. These incidents alone are sufficient to provide the evidentiary foundation for the SERB order. R.C. 4117.13(D) governs the standard of review to be applied to a determination of SERB. It provides in relevant part:
"The court [of common pleas] has exclusive jurisdiction to grant the temporary relief or restraining order it considers proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the board. The findings of the board as to the facts, if supported by substantial evidence on the record as a whole, are conclusive." (Emphasis added.)
In Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260, 533 N.E.2d 264, 266, this court observed that review under R.C. 4117.13(D) is extremely deferential to factual determinations by the agency:
"* * * Such disputes are properly determined by SERB, which was designated by the General Assembly to facilitate an amicable, comprehensive, effective labor-management relationship between public employees and employers. State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St.3d 1, 5, 22 OBR 1, 4, 488 N.E.2d 181, 184-185. As long as SERB's decision on such matters is supported by substantial evidence, it must be affirmed. Courts should not be required to intervene in every factual dispute between contesting parties."
It is therefore apparent that incidents occurring prior to the filing of the charge were substantial evidence that an unfair labor practice had occurred. Consideration of events occurring after the filing of the charge would therefore be mere surplusage.
Nevertheless, the contention of appellee that such incidents could not be considered is without foundation. As an initial matter, R.C. 4117.12(B) and Ohio Adm. Code 4117-7-01(A) clearly indicate that a "charge" merely initiates the investigatory process which may involve other incidents that have occurred subsequent to the filing thereof. In this regard, Ohio Adm. Code 4117-7-01(A) provides:
"A charge that an unfair labor practice has been or is being committed may be filed by any person. Such charge shall be filed with the board within ninety days after the alleged unfair labor practice was committed. * * *" (Emphasis added.)
It is readily apparent that this section presumes that unfair labor practices may be of a continuing nature and may involve incidents occurring after the filing of the charge. Moreover, Ohio Adm. Code 4117-7-02(A) provides:
"Investigation of charges shall be limited to the facts and issues raised in the charge and any facts or issues reasonably related to the charge. If the board determines that it has probable cause for believing that an unfair labor practice has been or is being committed, it shall direct issuance of a complaint and cause the complaint to be served upon the charged party." (Emphasis added.)
The limiting language of Ohio Adm. Code 4117-7-02(A) clearly dovetails with the provisions of R.C. 4117.11 and 4117.12 that a "charge" is restricted to the particular course of conduct which gives rise to a violation under R.C. 4117.11. For example, a charge alleging a violation of R.C. 4117.11(A)(1) will not permit a SERB investigation of a violation of R.C. 4117.11(A)(2), but SERB may investigate further incidents which support the allegation of a violation of the former subsection.
A second deficiency in the analysis of the appellate court is its apparent conclusion that the filing of the charge initiates the adjudicatory process. The proceeding before the hearing examiner is initiated only through the issuance of a complaint by SERB after its determination that probable cause for the finding of a violation has been established. Thus, any conduct occurring before the issuance of the complaint on April 17, 1987 may be considered by the hearing examiner. Accordingly, the incidents occurring in 1986 were a legitimate basis for the complaint and were properly considered by the hearing officer.
Finally, we reject the conclusion of the appellate court that the October 1984 reinstatement of Sulfsted pursuant to the proceedings before the State Personnel Board of Review ("PBR") precluded SERB's consideration of the incidents precipitating the discharge and subsequent reinstatement. Any action taken in the PBR proceeding has no effect on the proceedings before SERB — an independent agency charged with a completely different statutory responsibility. To suggest that reinstatement of an employee by PBR divests SERB of jurisdiction to consider whether the conduct giving rise to the disciplinary action was an unfair labor practice misapprehends the distinct nature of the functions performed by each agency. At best, reinstatement merely reduces the amount of damages which would have otherwise been awarded.
We therefore conclude that an adjudicatory proceeding to determine whether an unfair labor practice has been committed is commenced by the issuance of a complaint by SERB pursuant to R.C. 4117.12(B). Any incidents which occur prior to the issuance of the complaint may be considered by SERB in determining whether an unfair labor practice has been committed.
The final issue for our determination concerns the Warren County Common Pleas Court's reduction of the back pay award from four years to two years. Appellant cross-appealed this determination to the court of appeals which, by reversing the order in its entirety, affirmed the reduction. The subsequent appeal of the appellate court's determination to this court preserves the issue for our review.
The basis for the common pleas court's decision to reduce the award was the delay by the agency and Sulfsted in issuing the complaint and adjudicating the unfair labor practice. However, this delay cannot be imputed to Sulfsted, who was not even a party to the proceeding. There is no more basis for doing so than there is for penalizing a plaintiff in the amount of his prejudgment interest because of the time it takes the trial court to schedule his case for trial. See, generally, Candee v. Webster (1859), 9 Ohio St. 452. In short, the delay by SERB was not caused by any action or inaction by Sulfsted. The charge was filed within ninety days of the incident giving rise to it in accordance with R.C. 4117.12(B). The time SERB took to issue and resolve the complaint was beyond Sulfsted's control. Inasmuch as there was substantial evidence supporting the finding of an unfair labor practice and the remedy provided therefor, the affirmance of the trial court's modification of the award must be reversed.
While we conclude that the tolling of the back pay award for the period that the unfair labor practice charge was pending was error, we are cognizant of the fact that during the period encompassed by the award Sulfsted was employed for approximately one year by the Ohio Conference of Teamsters. Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to SERB with instructions to reduce the award by an amount equal to the compensation realized by Sulfsted during the period of his employment with the Teamsters.
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
HOLMES, J., dissents.
I concur in all respects with Justice Sweeney's well-reasoned majority opinion. I write separately for the sole purpose of raising one important question.
In the case at bar, the State Employment Relations Board ("SERB") issued a complaint having found probable cause to believe that unfair labor practices had been committed by the Warren County Sheriff. The facts in this case are outrageous and SERB clearly had cause to issue the complaint. But what would William Sulfsted's remedy have been if SERB had determined (for whatever reason) that there was no probable cause to believe that an unfair labor practice had been committed and, therefore, failed to issue a complaint in this matter? In Ohio Assn. of Pub. School Emp., Chapter 643, AFSCME, AFL-CIO v. Dayton City School Dist. Bd. of Edn. (1991), 59 Ohio St.3d 159, 572 N.E.2d 80, syllabus, a majority of this court held that "[a] decision by the State Employment Relations Board whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D)."
I dissented in Chapter 643, AFSCME, and the case at bar makes my point, set forth in the dissent, that a three-person administrative board should not have the absolute and ultimate power to make a final determination that is in no way reviewable by the courts — especially when that ruling determines the action, prevents a judgment and affects a substantial right. Id. at 162-166, 572 N.E.2d at 84-87. Unless and until this court recognizes the right of an aggrieved party (be it employer, employee or employee organization) to appeal a finding of SERB of no probable cause or provides, through an action in mandamus, some remedy for such orders of SERB to be subjected to judicial review, this patently unfair situation will continue to exist.